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I. THE HISTORICAL AND LEGAL ASPECTS OF EVOLVEMENT OF HUMAN RIGHTS IN THE WORLD AND IN UKRAINE

1. The Genesis of Human Rights

Human rights are a complex and multi-dimensional phenomenon. Throughout different epochs human rights, though invariably retaining their political and legal import, were now and then given a religious, ethnic or philosophical expression.

In asserting human rights and freedom, mankind has trodden a thorny path, as it gradually restricted the omnipotence of the state and applied the principle of equality to a constantly growing number of people and relations between them. At times the struggle for human rights and for ever new degrees of freedom became a catalyst of dramatic changes in the sociopolitical life of one or another country and led to a new understanding of the role of man in his relations with society and the state.

The origin of what was eventually called human rights can be traced to the most ancient times in human history. Ideas of the value and inviolability of life and of the equality of people before the authorities can be found in ancient myths and beliefs. Eventually, such views became widespread in ancient Greece as a logical outcome of democracy practiced in the polises. In most cases these views were related to the notion of citizenship, envisioning the equality of all members of the polis in the exercise of their rights and freedoms, above all political freedoms. The writings of the ancient Greek sophists of the 6th-5th centuries B.C. laid down the fundamental concept of natural law eventually developed by the philosophers and men of law of ancient Rome. Similar ideas were also taking shape in the East. In particular, the Chinese philosopher Mo Ti (5th century B.C.) entertained the idea that all people were equal before Heaven, while the state was the result of their agreement. A number of humanistic principles gave the world Christianity which combined its understanding of human rights with religious and moral values. It took the joint efforts of many generations to accumulate the intellectual substance and create the moral and philosophical foundation for asserting the future all-conquering ideas of human rights.

Legislatively this idea was to be implemented much later. The Magna Carta (Great Charter) adopted in England in 1215 is traditionally considered the first legal document that laid the foundation for the concept of human rights and created the preconditions for affirming human liberties and the rule of law in society. In particular, the Charter secured such important principles as commensurability of an action with the punishment for it, strict compliance with the law by officials, recognition of guilt only by judgment of a court of law, the right to freely enter and depart from the country, and other rights and liberties. Eventually, the Petition of Rights (England, 1628) made more precise the provision prohibiting imprisonment of freemen without legal grounds and declared the inadmissibility of the existence of secret courts and arbitrary repressions.

England’s next step in enforcing human rights and freedoms was the adoption of the Habeas Corpus Act in 1679. It established the procedural guarantees of a person’s inviolability, introduced bail, and restricted the time of detention.

In 1689 the Bill of Rights was adopted in England, becoming the underlying legal foundation for a constitutional monarchy. It guaranteed the subjects’ right to address a petition to the king, limited the amount of court fees and penalties, declared freedom of elections to Parliament and freedom of speech and opinion within its walls.

Under the influence of the Enlightenment the ideas of freedom, natural human rights, social contract, and separation of powers were gaining an ever-stronger foothold.

The 1776 Declaration of Independence of the United States of America was an invaluable legal document that developed and specified all these provisions. Relying on the doctrine of human rights enshrined in natural law, the Declaration states that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This document as well as the US Constitution of 1787 laid down not only the foundation of US constitutionalism, but also of the liberal concept of human rights.

But the real turning point in mankind’s struggle to assert human rights was the French Revolution, which without any exaggeration created a document of historical importance – the 1789 Declaration of the Rights of Man and of the Citizen. The Declaration legally secured for the first time the principle of formal equality of all citizens before the law and laid the groundwork for a universal concept of human rights. It proclaimed freedom of conscience, freedom of speech, presumption of innocence, inviolability of the person and his property, and also established the state’s duty to ensure and guarantee human rights and freedoms and the citizens’ right to oppose oppression. For the first time in world practice the Declaration secured the generally permissible principle of regulating legal relations: “Everything is permitted that is not directly prohibited by law.”

As the principles of constitutionalism and parliamentarism evolved throughout the world in the 18th and 19th centuries, the ideas of human rights found more and more their way into legislation. At the beginning of the 20th century, especially after the First World War and the appearance of the League of Nations and the International Labor Organization, human rights were becoming a subject of international law regulations.

After the Second World War the standards of human rights were markedly advanced. It was exactly at that time that human rights transcended their narrowly national confines and became an object governed by international law. In 1948 the United Nations Organization adopted the Universal Declaration of Human Rights – the first document internationally declaring the fundamental civil, political, socioeconomic and cultural rights, thereby setting the standards and ideals that all countries of the world aspire to attain today.

The concepts of human rights were developed differently in different countries throughout the ages. Although their underlying principles had a lot in common, every country asserted them in its own way, taking into account its national, legal and cultural traditions. The universally recognized standards of human rights as we know them today reflect the experience of the world nations and are essentially an achievement of entire mankind.

The genesis of human rights and freedoms in the Ukrainian lands deserves a brief introduction to show that the Ukrainians have also contributed their worthy share to the evolvement of the progressive understanding of human rights. Objective facts dissipate the myths that are circulated now and then to prove that Ukrainians are strangers to democracy and statehood and for these reasons are distinguished for their provincialism and inclination to authoritarian rule.

On the territory of what is now Ukraine there evolved a brilliant example of antique democracy – the oath of allegiance of a Chersonesus citizen. Eventually, there emerged in the union of Eastern Slavic tribes a distinctive and rather effective social and political system with elements of democracy and the first rudiments of government by the people and self-government.

In its heyday Kievan Rus (IX-XII cc.) maintained diverse international relations and was highly developed economically and politically. The kings of Byzantium, Poland, France, Sweden and Hungary considered it an honor to become related with the rulers of Kievan Rus. Owing to the concatenation of a number of circumstances, the Rus did not have a system of slavery, although limited bondage was practiced. The Rus Law, the then customary law in the Kievan domain, established certain legal rights, secured the gradual abolition of the barbarian principles of blood feud and talion, curbed the arbitrariness of the feudal lords, and regulated the everyday life of the subjects. Real elements of democracy were demonstrated in what were called riady, i.e. agreements which the subjects concluded with their princes. Also, the treaties of Kievan Rus with Byzantium in the 10th century evidence a marked religious tolerance of our ancestors.

The legal foundation of Kievan Rus rested on the Rus Pravda (Rus Law) of 1036-1037 – the first written code of feudal laws, its authorship being attributed to Grand Prince Yaroslav the Wise and his descendants. In many aspects the relative humanism and legal techniques of the Rus Pravda differ appreciably from similar codes elsewhere in Europe. The code governed a broad spectrum of public relations, including rules directly concerning the individual and his rights and liberties. In particular, it governed in great detail property and inheritance relations. A series of rules secured the prohibition of capital punishment, torture or mistreatment during interrogations, restriction and eventual prohibition of blood feud, and various legal mechanisms to protect the life, honor and dignity of the person.

The rules and principles of the Rus Pravda retained their importance also at the time when the feudal domain disintegrated and a part of its former glory continued to prevail in the lands of the powerful Galician-Volhynian Principality (1199-1340). But after numerous inroads of the Golden Horde and the expansion of the neighboring countries, the Ukrainian lands fell on hard times.

All the subsequent events brilliantly demonstrate the courageous struggle of the Ukrainian people for self-determination and the establishment of their own independent state. Human history does not, perhaps, have anything similar to Ukrainian statehood that time and again was torn to pieces by the more powerful neighbors and then was revived from ashes. Perhaps no other people has experienced such horrible torture, humiliation and physical annihilation, preserving for all that its spirit, love of freedom, independence, national distinctiveness, language, culture and psychology.

In the 14th century the larger part of the Ukrainian lands was integrated in the Grand Principality of Lithuania. In this multi-ethnic state, the Lithuanian princes gradually came under the influence of the Slavic culture, mastered the Old Rus written language, and even accepted the Rus Pravda as their own source of law. In their acts the Grand Prince of Lithuania relied on the Old Rus legal traditions. At this time the main part of the population – peasants – fell under the rule of landed proprietors, and as the rest of society became divided into social estates, the contention for their rights, liberties and privileges was brought to the forefront. The Lithuanian Statute (1529, 1566, 1588), especially its last version, which many contemporaries believed to be the most perfect book of laws in Europe, secured fundamentally new approaches to the status of the person.

A system was established where all subjects were equal before the law, although this provision was to a considerable degree only declarative. Restricted toleration was proclaimed (only to Christian religions). It was prohibited to turn a freeman into a bondsman and to make a woman marry against her will. Also, no one could be arrested without legitimate grounds, punished without a court judgment, and the right to counsel was secured. Much earlier than in other countries the judges were elected and the courts were separated from the state administration. Since the Rus Law was one of the mainstays of the Statute, the Ukrainian population never considered it as a manifestation of a foreign legal culture, but only as their own “old law.” As a transition document from the Middle Ages to modern times, the Statute was a distinctive manifesto of a law-governed state in the feudal sense of the word and remained in effect in Ukraine right up to 1840-1842.

Parallel with the Lithuanian Statute, Ukrainian cities exercised ever more extensively the rules of the Magdeburg Law as the basis of their self-government, judicial immunity, and somewhat of a guarantee against feudal highhandedness.

In the 14th century a part of the Ukrainian lands was under the rule of Poland. After the Lublin Union of 1569 the Poles dominated in the Rzecze Pospolite (Polish-Lithuanian Commonwealth). The Polish magnates and szlachta (nobles) set themselves the aim to colonize the Ukrainian lands and convert their population to Catholicism. This sparked off a number of revolts to protect the Orthodox faith and revive Ukrainian statehood. Eventually, this popular movement gained a stronghold in the Zaporozhian Sich – the Cossack Christian republic, where the ideals of freedom, equality and respect to human dignity reigned supreme.

In its constant struggle with the King and his magnates, the Polish szlachta used the slogans of the rule of law and exercise of legislative power only by the seym (parliament), provided its decisions were unanimously adopted and did not infringe on the rights and dignity of the szlachta. Notably, it was Poland that introduced the Ukrainians to the ideas of this type of democracy, its cornerstone being the freedom and equality of the szlachta.

The Cossack-Hetman era that followed was among the most dramatic and interesting pages in Ukrainian history. Through the efforts of Bohdan Khmelnitsky and his comrades-in-arms the rule of the Polish szlachta was challenged and destroyed in a sizable part of Ukraine. Established instead was a Cossack state that gained international recognition and was reckoned with by the leading European states. The Pereiaslav Agreement of January 8(18), 1654, the March Articles and other acts formalizing the alliance between Ukraine and Muscovy, though providing for a protectorate of the Muscovy czar, entitled Ukraine to remain a separate state entity with its own political and legal system, administration, courts, armed forces and finance. Above everything else, it actually asserted Ukrainian statehood with a sociopolitical system and relations between the Cossack officers and rank-and-file Cossacks based on the most democratic principles of Europe of those days. The Cossacks created conditions for the revival of the destroyed national, religious and economic rights of the Ukrainians. Serfdom was abolished, but soon it was to be reestablished and the Ukrainian peasants suffered under bondage again.

The greatest achievement of Ukrainian law-making of the Cossack era was Pylyp Orlyk’s Constitution of 1710 (Pacta et constitutiones). Different historical and legal sources call this document differently – Bender Constitution; Constitution of the Rights and Liberties of the Zaporozhian Host; Agreement between the Zaporozhian Cossacks and the Hetman of Little Russia. There is no doubt that the very nature and substance of this document reflects the Cossacks’ demands that were held against the Hetmans since the times of Hetman Vyhovsky (1657-1659) and all the czars of Muscovy since the reign of Czar Alexei Mikhailovich (1645-1676). These demands were pressed mostly to restrict the Hetman’s authority, organize power by the principle of separating it into the legislature, executive and judiciary, elect officials, and establish the rights and liberties of the subjects. In particular, this act restricted imposition of taxes, established the infallible rule of protecting women and orphans, and prescribed that the Hetman comply with the inviolable civil freedoms. Although Orlyk’s Constitution did not gain any effect in his homeland, it remained a distinctive legal documents and an interesting attempt to institutionalize a new, relatively modern model of Ukraine’s state system in case the “exiled Hetman” came to power.

After Ukraine was incorporated in Muscovy and then the Russian Empire, quite a few Ukrainian thinkers became interested in political and legal ideas of a humanitarian content. In the latter quarter of the 19th century Mykhailo Drahomanov drafted his constitution of society that was based on the idea of an association of harmonious individuals. The main point in his draft constitution was to restructure the Russian Empire on the principles of political freedom. Under political freedom he understood the right of people and citizens to self-government – both locally and nationally. He defined political freedoms as “inviolability of the body from ignominious torture and capital punishment,” inviolability of the person and home without a court judgment, freedom of choice of place of residence, freedom of conscience, speech, assembly, press, association, and the like. Drahomonov’s Constitution envisioned the right to challenge in court an official or state body for infringing on the legitimate rights of a person, the right to resist against the unlawful actions of officials, and complete equality of all in civic rights and duties.

The humanistic political and legal concepts of Drahomanov were further developed in the writings of Mykhailo Hrushevsky, specifically in his draft constitution of 1905. It provided for the right of Ukrainians to have their own statehood, equality of men and women, guarantees of individual freedoms of a person, separation of the state from the church, and the like. The Ukrainian language was recognized as an official language, while all the other languages used in the country were entitled to free development.

From the mid-19th century Ukraine, when its territories were divided between Russia and the Austria-Hungary Empire, entered a stage of bourgeois-democratic reform, its most notable development being the abolition of serfdom. This process focused greater attention on the issues of human rights. In Ukraine there was also complete recognition and support for the progressive ideas of the famous Russian judicial reform of 1864 and the democratic changes that followed in the wake of the first Russian Revolution of 1905-1907. There was a similar approval of the positive political and legal changes that were occurring in Austria-Hungary. The finest representatives of the Ukrainian public on both sides of the border actively struggled for these changes.

The liberation struggles from 1917 to 1920 were a quest for the best ways of Ukraine’s development as a law-governed state. Now the issue of granting and ensuring human rights and freedoms transcended the bounds of political and legal demands and turned into something real. However, in the laws of every regime that held sway in Ukraine at that time democratic values competed with an inclination to authoritarianism, while humanistic ideas with legalized repressions of political opponents. In this period Mykhailo Hrushevsky was a living symbol of the Ukrainian national and state idea. His life and political activities merit special attention. Judging from the observations of his contemporaries, the tragedy of this historic figure consisted in that he was a great scholar who by contingent circumstances was destined to engage in big politics. Under his direct leadership from late 1917 to April 28, 1918 the sessions of the Mala Rada (Small Council), which had the powers of a legislature, passed 30 laws that were to set the legal framework for the Ukrainian State. He scientifically substantiated the principles of Ukraine’s existence as a state, but failed to materialize them owing to different objective and subjective reasons. It was exactly through his efforts that Ukraine organized its life as a national state and entered the international arena.

The Third Universal of the Ukrainian Central Rada of November 20, 1917 proclaimed the Ukrainian National Republic an autonomy within the Russian Republic, while the Fourth Universal of the Central Rada of January 2, 1918 proclaimed the Ukrainian National Republic an independent and free state. April 29, 1918 saw the adoption of the Constitution of the Ukrainian National Republic (though approved by a session of the Central Rada, the Constitution did not come into force).

That same day Hetman Pavlo Skoropadsky and his followers engineered a coup and disbanded the Central Rada. What followed was a series of constitutional laws adopted by the governments of the Hetmanate, Directory, and ZUNR (West Ukrainian National Republic) that secured a rather broad spectrum of political and individual rights and freedoms. A number of real democratic reforms were carried out, but their effectiveness waned noticeably owing to a bitter and more often than not bloody struggle for power.

Under Soviet rule four constitutions were adopted in Ukraine (1919, 1929, 1937, 1978). They secured the positive achievements of the socialist revolution and the formal attributes of Soviet Ukrainian statehood. As to human rights, the conceptual foundation of these constitutions rested for a long time on the provisions of the Declaration of the Working and Exploited People adopted in January 1918 at the 3rd All-Russia Congress of Soviets. Special emphasis was put on the need to solve socioeconomic issues as an indispensable precondition for the creation of a bright future for the working people. All constitutions envisioned a different legal status of the individual as well as the scope of his rights and freedoms. This makes it possible to trace the dynamic of the evolvement of human rights and freedoms from the viewpoint of the legal status of the individual. The UkrSSR constitutions of 1919 and 1920 set forth a somewhat broader list of human and citizens’ rights compared with the previous constitutional acts. The UkrSSR Constitution of 1937 secured a broad range of rights and freedoms, the principal ones being as follows:

§ economic rights (right to personal property and right to its inheritance, right to work, right to rest and leisure);

§ social rights (right to maintenance in old age, in case of illness and disability);

§ cultural right (right to education);

§ political rights (freedom of speech, press, assemblies and meetings, street processions and demonstrations, freedom of conscience, freedom of association into public organizations);

§ personal rights (inviolability of the person, inviolability of the home, privacy of mail);

§ electoral right (set forth in a separate chapter).

The sociopolitical implications of Ukraine assuming obligations under international law and joining international organizations could not but make the country advance toward democratization. During the Second World Ware our country made a tangible contribution to the defeat of fascism and gained wide recognition and prestige in the international arena. In 1945 Ukraine became one of the founders of the United Nations Organization and was repeatedly elected a member of the main UN bodies, committees and commissions. From this time on Ukraine acted as a subject of international law and international relations.

As a subject of international legal relations, the former Ukrainian SSR concentrated its efforts on guaranteeing human rights and freedoms. At the 1st session of the UN General Assembly, Ukraine, along with 17 other countries, was elected member of the UN Economic and Social Council, in 1947 it became member of the Economic Commission for Europe, and in 1948-1949 and 1984-1985 temporary member of the UN Security Council. Quite a few proposals that the Ukrainian SSR advanced at international forums were readily accepted and implemented. In 1948, at the San Francisco Conference, the Ukrainian delegation headed by Dmytro Manuilsky advanced the initiative that the committee he chaired formulate the Preamble, Purposes and Principles of the UN Charter. On Manuilsky’s proposals a number of important provisions on universal respect to human rights and fundamental freedoms were included in the UN Charter.

Ukraine took an active part in drafting and adopting international law documents on human rights and freedoms. Definite proposals by the Ukrainian party were taken into consideration and reflected in the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Suppression and Punishment of the Crime of Apartheid and others. To this end a lot of effort was expended by the Ukrainian lawyers V.Koretsky (full member of the UkrSSR Academy of Sciences, founder and for many years Director of the Institute of State and Law under the UkrSSR Academy of Sciences, initiator of the Ukrainian school of international law, member of the UN International Court of Justice, and USSR representative on the UN Commission on Human Rights in 1947-1949) and P.Nedbailo (professor, head of the chair of theory of state and law at the Taras Shevchenko University of Kyiv, UkrSSR representative on the UN Commission on Human Rights, UN Prize winner of 1968 for his outstanding personal contribution to the protection of human rights and freedoms).

Thus, in the practice of international law quite a few progressive rules were adopted and initiatives advanced, which served as a “positive” certification for Ukraine after it gained independence.

When compared with the previous Soviet constitutions, the UkrSSR Constitution of 1978 differed appreciably both by its structure and the scope of secured rights and freedoms. Two chapters were devoted to the status of the individual, a separate chapter governed the basic principles of citizenship, the status of foreigners and stateless persons on the territory of Ukraine was legally defined, the equality of citizens’ rights before the law was established as well as the equality of rights of men and women.

The main rights, freedoms and duties were also set forth in a whole chapter, in which the rights of citizens in all the main spheres was proclaimed; in particular, Article 37 stated that UkrSSR citizens enjoy all the socioeconomic, political and personal rights and freedoms guaranteed by the USSR Constitution, the UkrSSR Constitution and laws. It was declared that the citizens’ rights and freedoms would expand with the implementation of programs of development of society. For all that, the constitution did not take into account the human rights standards secured in the international acts, to which the UkrSSR was a party.

Socioeconomic and cultural rights held a place of priority within the system of rights and freedoms. This category of rights was among those that were actually implemented, such as the right to work, rest, health care, housing, and right to use state property, while the right to use personal property was somewhat restricted. Among the proclaimed cultural rights was the right to education ensured by all types of free education and universal obligatory secondary education, the right to use the achievements of culture, as well as the right to scientific, technical and artistic creativity.

A secondary role was assigned to political, civil and personal rights and freedoms, just like in the previous Soviet constitutions. To this category of rights and freedoms the following were referred: the right to participate in the administration of state and public affairs; the right to submit proposals to state bodies and public organizations and criticize shortcomings in their work; freedom of speech, press, assemblies, meetings, processions and demonstrations. These provisions were mostly of a declarative nature and had no respective mechanisms for their exercise. To the personal rights were referred the inviolability of the person and home, the state’s protection of a citizen’s personal life, privacy of mail and some others. A novelty among the personal rights was a citizen’s right to complain against the actions of officials of state and non-governmental organizations. The complaints had to be considered by procedure and throughout a period prescribed by law. If the actions of officials violated the law, they could be challenged in a court.

Apart from rights and freedoms, the UkrSSR Constitution of 1978 also set forth a broad range of duties, which at that time was untraditional for the constitutions of the majority of world countries.

The actual exercise, protection and assurance of human and citizens’ rights and freedoms are directly linked with definite historical features of development of a definite country, the way its state authority is organized, the functioning socioeconomic system, development of political institutions, the political awareness and activity of its citizens and a lot of other factors. Yet the paramount condition of existence of any state and any society is the independence and sovereignty of the state and society’s readiness and vital need to defend and uphold them.

The declaration of Ukraine’s independence on August 24, 1991 opened a new page in the history of our state and its people, making it possible to expand the citizens’ rights and freedoms and impart to them a new substance and importance.

The Declaration on Ukraine’s State Sovereignty of July 16, 1990 and the Appeal of the Verkhovna Rada of Ukraine To the Parliaments and Peoples of the World of December 5, 1991 emphasized that a desire to join the family of civilized countries was expressed by a new, democratic, law-governed state that sets itself, in particular, the goal to actually ensure human and citizens’ rights and freedoms and undertakes to strictly comply with the generally recognized principles and rules of international law and international standards of human rights and freedoms. The sociopolitical changes in 1985-1990 and especially the events of August 1991 deeply stirred up the Ukrainian public and created favorable conditions for democratic change.

The very first laws of the newly established state left no doubt whatsoever that its set goals were being backed up legislatively. Suffice it to go through the laws On Ownership, On Entrepreneurship, On Freedom of Conscience and Religious Organizations, On Ukrainian Citizenship, On Local Radas of People’s Deputies and Local and Regional Self-Government, On All-Ukraine and Local Referendums and others to see that the state’s priority areas of activity were the protection and assurance of human and citizens’ rights and freedoms and creation of an effective mechanism for their exercise.

Ukraine’s admission to membership of the Council of Europe on November 9, 1995 had a marked influence on the further development of human and citizens’ rights and freedoms. Ukraine acceded to a large number of multilateral European conventions on human rights and freedoms and assumed definite obligations on implementing their rules in its national legislation. The membership of the Council of Europe also stimulated the process of drafting and adopting the Ukrainian Constitution.

The Ukrainian Constitution of 1996 is to a certain extent a model of modern constitutionalism on human and citizens’ rights and freedoms. It defined a qualitatively new, modern status of the human being and citizen in Ukraine, actually consummating a “humanitarian revolution.”

The human being, his life and health, honor and dignity, inviolability and security are recognized in the Constitution (Article 3) as the highest social value. Human rights and freedoms and their guarantees determine the essence and orientation of the state’s activity. Under the Constitution the state is answerable to the individual for its activity, while the main duty of the state is to affirm and ensure human rights and freedoms. Following from this concept, Chapter II of the Constitution is devoted to human and citizens’ rights, freedoms and duties. This chapter is among the most important ones in the Constitution and contains about one third of its articles.

The current Ukrainian Constitution implemented all the basic international laws on human rights and, above all, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which rank among mankind’s greatest achievements of the 20th century in the humanitarian area.

Instead of a haphazard set of rights and freedoms the current Constitution specified for the first time a system of rights and freedoms in all main areas, granting, in particular, civil, political, economic, social, cultural, and human and citizens’ rights and freedoms.

The new Fundamental Law enlarged the range of constitutional rights and freedoms, granting a number of new rights and freedoms and enriching them in substance. For the first time it granted such essential rights and freedoms as the right to life (Article 27), information (Article 34), private property (Article 41) entrepreneurship (Article 42), to strike (Article 44), to an adequate standard of living (Article 48), freedom of movement, free choice of place of residence, and the right to freely leave the territory of Ukraine and to return to Ukraine (Article 33).

Since the adoption of the Constitution the rights as well as civil and political freedoms have been actualized. Capital punishment was abolished, more than 90 political parties were established, and a civil society is now taking shape.

Apart from granting rights and freedoms, the Constitution sets forth mechanisms to ensure them, as evidenced by a system of constitutional laws and regulations, specifically legal responsibility for violations of rights and freedoms, their inalienability and inviolability, inexhaustibility, and inadmissibility to abolish or narrow the substance and scope of existing rights and freedoms.

One of the greatest achievements in the assurance of rights and freedoms is the constitutionally provided for system of institutional and legal guarantees, among which a particular role is assigned to the President, the Verkhovna Rada (Parliament), bodies of the executive and local self-government, courts, the public prosecutor’s office, and the Ukrainian Parliament Commissioner for Human Rights.

Apart from domestic guarantees, the Constitution provides for using the guarantees under international law. In accordance with Article 55, everyone who has exhausted all domestic legal remedies has the right to appeal for the protection of his rights and freedoms to relevant international judicial institutions or to relevant bodies of international organizations of which Ukraine is a member or participant.

International mechanisms of human rights protection recognized by Ukraine serve as an additional guarantee for protecting human rights and freedoms. An important step to this end was the ratification on July 17, 1997 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Now Ukrainian citizens gained the opportunity to appeal to the European Court of Human Rights. Besides, by acceding to the First Optional Protocol to the International Covenant on Civil and Political Rights 1966, Ukraine also recognized the competence of the UN Human Rights Committee to consider individual complaints of Ukrainian citizens of violations of human rights and freedoms guaranteed them under this Covenant.

The Ukrainian Fundamental Law removed all obstacles in the way of ensuring human rights and freedoms by declaring that the rules of the Constitution are of direct effect and appeals addressed to a court for the protection of constitutional rights and human and citizen’s rights directly on the basis of the Ukrainian Constitution shall be guaranteed.

Unlike the constitutions of other countries, the Ukrainian Constitution decreed only those human and citizens’ duties that are of fundamental importance for the assurance of rights and freedoms: the duty to strictly comply with the Constitution and laws of Ukraine, not to encroach upon the rights and freedoms, honor and dignity of other persons (Article 68); the duty to defend the country, its independence and territorial indivisibility (Article 65); the duty to pay taxes and duties by procedure and in the amounts prescribed by law; and the like.

Yet another distinctive feature of the Constitution is that it provides for establishing and enforcing an effective mechanism to protect human rights and freedoms. This concerns, most important of all, the organization and administration of state power on the principles of its separation into the legislature, executive and judiciary (Article 6). It is the judiciary that is vested with the function of protecting the constitutional rights and freedoms. Under the Constitution the punitive function of the court gives way to protecting and regulating the law. According to the transitional provisions of the Constitution and the Law On Ratifying the Covenant for the Protection of Human Rights and Fundamental Freedoms of July 17, 1997, sanctions to arrest, detain or apprehend persons suspected of having committed an offense as well as to inspect and search a home and other property are issued exclusively by Ukrainian courts since June 28, 2001.

The Constitutional Court of Ukraine is an important link in the mechanism of protecting human and citizens’ rights and freedoms. It exercises judicial constitutional control and protection over the foundations of the constitutional system, the fundamental human and citizens’ rights and freedom, and ensures the supremacy of law and direct effect of the Constitution on the entire territory of Ukraine.

In its control functions the Constitutional Court exercises tremendous influence over the activity of the authorities with regard to their compliance with protection of human rights and freedoms and, above all, law-making. It passes rulings on non-conformity of laws or their specific provisions with the Constitution, interprets constitutional rules when considering definite complaints, and hands down official interpretations of the Constitution and laws that are binding for all subjects of the law.

The introduction of a special institution, the Ukrainian Parliament Commissioner for Human Rights, was a novelty in this country’s legal system of protection of human rights and freedoms. The Ukrainian Constitution secured the right to appeal to the Commissioner (Article 55) who exercises parliamentary control over the observance of human and citizens’ rights and freedoms (Article 101). The status, functions and competence of the Commissioner are set forth in the constitutional Law On the Ukrainian Parliament Commissioner for Human Rights adopted by Parliament on December 27, 1997. The draft of this law took into account the positive experience of the European ombudsmen. Since then, this institution has been instrumental in detecting and facilitating the elimination of human rights violations in the country. In order to understand the nature, functions and mandate of this democratic extrajudicial institution that is quite new for Ukraine, it is necessary no analyze similar human rights protection institutions in the democratic countries of the world. 

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