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II. HOW THE COMMISSIONER FOR HUMAN RIGHTS EXERCISES PARLIAMENTARY CONTROL TO BRING UKRAINE’S LEGISLATION INTO CONFORMITY WITH INTERNATIONAL HUMAN RIGHTS STANDARDS

1. International Standards of Human Rights in Ukraine’s Legal System

Adopted after the Second World War and the destruction of totalitarian regimes that brought to naught all vestiges of human rights, the United Nations Charter proclaimed that among the purposes of the UN’s international cooperation was to promote universal respect for and observance of human rights and fundamental freedoms for all. Since then Ukraine, as one of the founding countries of the United Nations, undertook to cooperate with the Organization for the achievement of these purposes set in forth in Article 55 of the Charter.

To this end the UN General Assembly adopted on December 10, 1948 the Universal Declaration of Human Rights. For the first time in human history an international instrument laid down a list of fundamental human rights and freedoms that were binding for compliance worldwide, brought into accord the legal substance of these rights and freedoms, and defined the legal cases when their abridgement is admissible. The Universal Declaration of Human Rights was adopted as a resolution of the UN General Assembly and, therefore, was of a recommendatory nature at that time. On its basis the UN drafted in 1996 and opened for signature and ratification the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which Ukraine ratified in 1973. Over 100 countries ratified these two covenants. More than 120 countries introduced into their constitutions the list, substance and admissible abridgements of human rights and freedoms contained in the Universal Declaration, thereby transforming them into customary rules of international law, i.e. into international human rights standards that have to be complied with worldwide. At the World Conference on Human Rights (Vienna 1993) representatives of 171 countries, Ukraine included, reaffirmed the universal nature and the universally binding international human rights standards, emphasizing that their observance is an important factor for the existence of a democratic society in any country.

The universal recognition of international standards calls for the obligation of all states to agree with international monitoring over compliance with these standards by the national legal systems. Besides, after Ukraine ratified the International Covenant on Civil and Political Rights and the Optional Protocol Thereto 1966, the International Covenant on Economic, Social and Cultural Rights 1966, the International Convention on the Elimination of All Forms of Racial Discrimination 1965, the Convention on the Elimination of All Forms of Discrimination Against Women 1979, the Convention on the Rights of the Child 1989, and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, it has been duty-bound to furnish to convention bodies reports on compliance with human rights and freedoms envisioned by these conventions, to react appropriately to the remarks of these bodies, and to take part in other forms of international monitoring.

Also, by acceding to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Ukraine undertook to implement its provisions in national legislation. What distinguishes this Convention is the establishment of a mechanism of international monitoring, its most important element being the activity of the European Court of Human Rights that considers complaints filed by any persons, NGOs or groups against violations of the provisions of the Convention and protocols thereto. States parties to the Convention undertook not to obstruct in any way the exercise of this right.

Special forms of monitoring are envisioned in the European Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987 which Ukraine ratified on May 5, 1997. Its established monitoring body is the European Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on which all states parties, Ukraine included, are represented. The Committee conducts on-site inspections on compliance with the Convention by all states members and the results are furnished as confidential reports to the government of the respective state. The government must then effect necessary measures to enforce compliance and report back to the Committee. Otherwise the latter may make public the facts about human rights violations and report them to the EU Council.

Owing to such a system of international monitoring, cases of human rights violations become known worldwide and can have negative implications for the country/violator. Once human rights violations are established, the European Court of Human Rights may claim compensation for material and moral damages to be incurred by the country/violator.

In conformity with the UN Statute and the Vienna Convention on the Law of Treaties 1969 Ukraine must diligently abide by the agreements to which it is a signatory and comply with all the generally accepted rules of international law on human rights and freedoms. In particular, under the International Covenants on Human Rights 1966 Ukraine has undertaken to bring its legislation into conformity with the international standards secured in these covenants. A similar obligation is also true with respect to Article 1 of the Convention for the Protection of Human Rights and Freedoms 1950. Since the declaration of its independence Ukraine has become a component part of the international system of human rights protection and assumed respective international commitments, specifically within the framework of the European system of human rights protection which is the best developed and effective in the world.

According to articles 1 and 3 of the Law On the Ukrainian Parliament Commissioner for Human Rights, the Commissioner exercises parliamentary control over compliance with human and citizens’ rights and freedoms proclaimed by the Constitution, laws and international agreements of Ukraine, and also facilitates the process of bringing national legislation on human rights and freedoms into conformity with international standards for the protection of every individual’s rights on the territory of Ukraine and within its jurisdiction.

The achievement of the above-mentioned obligation is an essential precondition for the entire set of measures concerning compliance with human rights and freedoms in our country.

Another important area of activity for meeting the commitments is the preparation of human rights reports by Ukraine on its execution of the most important international conventions to which it is a party and on the respective response of government bodies to the remarks and proposals of international monitoring bodies that review these reports. Such reviews make it possible to impartially assess Ukraine’s international commitments, analyze the harmonization of its legislation and thereby facilitate its conformity with international standards. Therefore, it is important that the Commissioner for Human Rights take direct part in drafting the reports.

Now and then the Commissioner comes across inconsistencies between Ukrainian laws and international human rights standards. In each definite case a legal opinion is drawn up as a petition and included either in an annual or special report of the Commissioner for Human Rights. Such reports are to perform the function of recommendations for bodies of state authority.

Apart from these important objectives, the Commissioner exercises control over how Ukraine fulfills its international obligations as complied with national in legislation on human rights and freedoms. Special importance is attached to the human rights and freedoms enshrined in the Ukrainian Constitution, which provides for effective mechanisms of assuring them in accordance with Ukraine’s international commitments. Article 9 of the Constitution establishes the constitutional principle by which operative international treaties, agreed to be binding by the Ukrainian Parliament, shall be part of national legislation. The materialization of this principle means the real incorporation of the rules of international law in national legislation.

However, the Fundamental Law does not secure the legal rules concerning the generally recognized principles and rules of international law on human rights that are governed by international common right. But the Commissioner believes that despite the absence of the said international legal rules in the Ukrainian Constitution, they are just as binding for our country as the treaty rules, the more so under Article 18 of the Constitution: “Ukraine’s foreign political activity is aimed at ensuring its national interests and security by maintaining peaceful and mutually beneficial cooperation with members of the international community, according to generally recognized principles and rules of international law.” The Law On the Effect of International Treaties on the Territory of Ukraine of December 10, 1991 contains the provision on the priority of universal values and the generally recognized principles of international law in the country. Besides, Parliament Resolution On the Main Guidelines of Ukraine’s Foreign Policy of July 2, 1993 states that these guidelines proceed from the recognition of the priority of generally recognized rules of international law. The Commissioner believes that for Ukraine’s proper fulfillment of its international obligations it is advisable to apply this constitutional principle also to the generally recognized rules of international law and introduce respective amendments to Article 9 of the Ukrainian Constitution. Practically all modern constitutions of Europe are based on the rationale that, apart from international treaty rules, a part of their national legislation includes generally recognized principles and rules of international law, the universal provisions of which are binding for all countries without exception.

A component element in this respect is the Commissioner’s activity of spreading information in Ukrainian society about the existence of international human rights standards and Ukraine’s commitment to abide by them. Good understanding by the citizens of the basic international human rights instruments is an important precondition to enhance the public’s legal awareness about the state’s obligations.

Notably, any serious procrastination in bringing national legislation into conformity with international standards, above all European, may result in international monitoring bodies, the Council of Europe included, imposing sanctions against Ukraine. In this respect it was symptomatic that in 1999 the Parliamentary Assembly of the Council of Europe adopted the decision on the possible termination of the powers of Ukraine for failure to properly harmonize its legislation with European standards, a commitment Ukraine assumed when acceding to this important European institution. Halldor Asgrimsson, Chairman of the Committee of Ministers of the Council of Europe, and Walter Schwimmer, Council of Europe General Secretary, visited Ukraine in October 1999 to check on how Ukraine was fulfilling its obligations. As a result of their findings, sanctions against Ukraine were suspended. But the subsequent failure to honor the commitments made the Council of Europe institute proceedings to suspend the rights and duties of the members of Ukraine’s delegation to the Parliamentary Assembly, including their right to vote at its sessions.

Whenever national legislation clashes with a country’s international treaty obligations, the bodies of state authority, duty-bound that they are to perform these obligations, should abide by the priority rules of international law. The Commissioner for Human Rights proceeds from the principle of the supremacy of international law, as enshrined in Article 27 of the Vienna Convention on the Law of Treaties, under which a state party to the Convention may not refer to the provisions of its national legislation as a justification of non-compliance with international treaties.

Speaking at the first meeting of the Ukrainian Association of International Law in December 1999, the Commissioner pointed out: “The supremacy of the rules of international law should be secured in the Fundamental Law – the Constitution of Ukraine.” The absence of such an important international principle in the Ukrainian Constitution, the Commissioner believes, makes it difficult to abide by the international human rights standards in this country and exerts a bad influence on officials who are insufficiently knowledgeable of the tradition of applying these standards in practice.

Therefore, the Commissioner suggests that paragraph 2, Article 9 of the Ukrainian Constitution be amended and establish a provision, under which the generally recognized principles and rules of international law and Ukraine’s effective international treaties shall be a component part of Ukraine’s legal system, and when Ukraine’s international law commitments come into conflict the provisions of national law, the rules of the generally recognized principles and standards of international law shall be applied.

Upon gaining independence, Ukraine proclaimed that it would embark on building a law-governed state taking its bearings from universal human values. It became a principled area of Ukraine’s development on the foundations of a democratic state and the ultimate condition of integrating into the world and European community of nations.

However for Ukraine to become a really democratic, social and law-governed state, as stipulated in the Constitution, it is necessary that its people, their life, health, honor, dignity, inviolability and safety be not only proclaimed as the highest of social values, but become a reality of their life. The rule of law in the country should be backed up by principles, under which no one would be compelled to do what is not prescribed by law, while the bodies of state authority and local self-government would act on the basis of their powers and in a manner laid down in the Constitution and laws. Therefore, the conformity of national legislation with the international human rights standards is a necessary condition for materializing the said constitutional rules. During a meeting with the Prime Minister on December 29, 1999 the Ukrainian Parliament Commissioner for Human Rights pointed out that the priority of human and citizens’ rights and freedoms should become the key element of state policy. The Commissioner also brought to attention the role of the government in bringing Ukrainian human rights legislation into conformity with the country’s international law commitments and all the bodies of state authority and their officials assuring these rights and freedoms in reality. Every non-compliance with this constitutional provision in the light of Ukraine’s international obligations under any circumstance has to entail strict accountability by the respective structures of the executive.

The substance of the human rights and freedoms enshrined in the Fundamental Law accords, on the whole, with the provisions of the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Optional Protocol to the latter. To a certain extent this body of rights is also in accord with the International Convention for the Protection of Human Rights and Fundamental Freedoms as well as the First Protocol and protocols Nos.2, 4, 7, and 11 thereto.

Therefore, it can be concluded that Ukraine is changing its state policy in reorienting its entire legal system, as provided in Article 21 of the Ukrainian Constitution – human rights and freedoms are inalienable and inviolable. To assert and guarantee them is the principal duty of the state. The constitutional rights and freedoms are guaranteed and may not be abolished or restricted, except for cases stipulated by the very same Constitution.

The Commissioner for Human Rights deems it necessary to emphasize that the rules of the Ukrainian Constitution are of direct effect, and courts, just like any other state body, are duty-bound to ensure these constitutional requirements in the process of protecting human rights and freedoms.

According to the Ukrainian Constitution, everyone is entitled to know his rights and duties. And the human rights and freedoms secured in operative international treaties have to the brought to the knowledge of the population at large.

Yet another important principle secured in the Constitution is that the human rights and freedoms it establishes are not exhaustible. The Commissioner maintains that the standards of human rights and freedoms to be ensured in Ukraine have to be enlarged by acceding to a series of universal and European human rights conventions and by lifting the reservations introduced to the conventions already ratified by Ukraine.

This also holds true for Ukraine’s obligations to the Council of Europe in bringing operative legislation into conformity with the standards of the International Convention for the Protection of Human Rights and Fundamental Freedoms. Regrettably, the Law on the ratification of this Convention of July 17, 1997 does not indicate what amendments should be introduced to Ukrainian legislation in this connection. The Ministry of Justice that was charged with this task has not completed it to this day. To speed up honoring the commitments to the Council of Europe, it would be advisable that the Parliament of Ukraine adopt a program spelling out definite deadlines and performers and that the Ukrainian Government set up an interministerial working group to complete this task.

When joining the Council of Europe in 1995, Ukraine undertook to adopt within a year a framework law on legal policy in human rights. But it was only in May 1998 that the Cabinet of Ministers submitted to the Parliament the Draft Concept on State Legal Policy in Human Rights Protection which the Parliament failed to review.

As to the substance of this concept, it should be harmonized with the provisions of the Universal Declaration of Human Rights, the international human rights covenants, the Convention for the Protection of Human Rights and Fundamental Freedoms as well as with the other international human rights instruments. On the proposal of the Commissioner the Parliament forwarded to the Ministry of Justice a draft concept for modification. Instead of reviewing the draft concept, the Ministry of Justice submitted to Parliament the Principles of Ukraine’s Policy in Human Rights and Freedoms, which was endorsed by a Parliament Resolution of June 17, 1999. According to the legal opinion of the Commissioner for Human Rights, the fundamental flaw of the state policy is the lack of definite mechanisms of its implementation which is tantamount to Ukraine’s failure to honor its commitments to the Council of Europe.

The Commissioner holds that for the exercise of the entire set of human rights and freedoms in Ukraine a national program should be designed on how the state intends to comply with its international law obligations and adapt its legislation to international human rights standards. The design of the draft national program should involve representatives of all branches of power as well as scientists and NGOs.

Although a number of human rights conventions have been ratified by Ukraine throughout the past few years, national legislation is still not harmonized with them. In particular, this is true as regards the Council of Europe conventions on mutual assistance in criminal matters, transfer of supervision of offenders conditionally sentenced or conditionally released, extradition of offenders, and transfer of proceedings in criminal matters. These conventions contain important rights of the accused and imprisoned that are not accordingly governed in Ukrainian legislation. For example, in Ukraine’s Criminal Code and in the Code of Criminal Procedure no European standards are assured for the protection of human rights during extradition. Ukraine ratified these conventions as one of its conditions of acceding to the Council of Europe. The prevailing delay in harmonizing national legislation violates the requirements of Article 7 of the Law On the International Treaties of Ukraine, which binds bodies of state authority to introduce respective amendments and additions to legislation.

At the request of the Cabinet of Ministers the Commissioner for Human Rights conducted a legal examination of the Optional Protocol to the Convention on the Elimination of Discrimination Against Women and prepared a positive opinion on the possibility of accepting the Protocol and the advisability to have it ratified by Ukraine.

The Office of the Commissioners for Human Rights has been actively involved in adapting national legislation to the country’s international law commitments. In 1998-1999 alone, proposals were sent to relevant parliamentary committees to amend the Criminal Code and the draft laws on protection of motherhood, state guarantees of equal rights and opportunities for men and women, and on criminal liability for traffic in people.

The Commissioner has been expending a lot of effort in identifying the human rights conventions that have to be ratified by Ukraine as soon as possible. In particular, Ukraine has not yet acceded to the European conventions on important human rights standards, such as those assuring social and economic rights.

Of the 173 Council of Europe human rights instruments – conventions, treaties, codes and protocols – Ukraine acceding only to 32 and signed another 10. Such a situation can hardly qualify as being satisfactory. Of the group of 12 conventions on human rights protection Ukraine acceded only to 9; of the 5 conventions against torture and other cruel, inhuman or degrading treatment or punishment – to 2; of the European Social Charter conventions – to none of the 5 (signed – 2); of the conventions on social matters – none of the 15; of the conventions on health protection – to none of the 18; of the conventions on education, culture and sport – to 1 of the 14 (signed 1); of the conventions on criminal law – to 9 of the 22 (signed 1); of the conventions on common right and protection of information – to 2 of the 8; and of the conventions on bioethics – to none of the 2.

All this arrests the implementation of the European human rights standards in national legislation. Regrettably, the bodies of state authority that have to promote the ratification in the first place have little knowledge about these conventions, whether ratified or not.

The Commissioner emphasizes that now it is necessary to implement in the respective areas of national legislation the conventions that have already been ratified by Ukraine. The ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the five protocols thereto is hindered by a series of provisions in the Ukrainian law on its ratification. The Ukrainian law contains restrictions and statements based on the priority of national legislation. This clashes with the main substance of the convention and is in violation of Ukraine’s commitments to the Council of Europe. The referred to law explains the reservations by the need to introduce respective amendments to nine articles of the Code of Criminal Procedure and to four articles of the Interim Disciplinary Regulations of the Armed Forces of Ukraine.

In this connection the Commissioner for Human Rights deems it necessary to initiate the process of lifting the reservations to and statements on the Law On Ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Protocol No.1 and Protocols Nos. 2, 4, 7 and 11 Thereto.

The resolutions and statements of the Council of Europe play an important role in the process of protecting human rights and freedoms. These documents are intended to promote this process more efficiently by member countries of the Council of Europe as recommendatory rules that are of a certain legal importance (e.g., the Committee of Ministers’ resolutions on law-enforcement bodies using information about a person; European penitentiary rules; imprisonment of foreigners; legal assistance and counseling; asylum for persons threatened by persecution; instruction in and study of human rights in schools). These resolutions have to be broadly used in the work of state bodies for the protection of human rights and freedoms.

This is also true as regards the resolutions of the Parliamentary Assembly of the Council of Europe, especially on issues of psychiatry from the viewpoint of human rights, the rights of believers, religious sects and new religious movements, the rights of ethnic minorities, rights of children, rights of people infected by AIDS, prohibition of traffic in children and other forms of their exploitation.

Neither can one overlook the fact that Ukraine’s courts of general jurisdiction practically do not apply the rules of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and continue ignoring other international human rights standards, specifically the precedents of the European Court of Human Rights.

Certain positive changes in this area have been recorded in the activity of the Constitutional Court of Ukraine, which adopted a number of rulings referring to international human rights instruments. For instance, in the case of K.Ustymenko the Constitutional Court recognized Ukraine’s legislation being at variance with the resolution of the Parliamentary Assembly of the Council of Europe on a situation in which mental diseases were involved.

In the case of the appeal filed by the residents of the town of Zhovty Vody, the Constitutional Court applied the provisions of judicial protection of persons as set out in the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

In its ruling of 1999 in the case of financing courts of law, the Constitutional Court referred to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, the 1985 Resolution of the UN General Assembly, the Recommendation of the Committee of Ministers of the Council of Europe of 1994, and the Vienna Declaration and Program of Action of 1993 concerning the proper funding of courts for the protection of their independence.

Since implementation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 is an important guarantee of human rights protection in Ukraine, the Commissioner has been drawing the attention of Parliament to the need of amending legislation so that the rules of the Convention be applied in judicial practice.

The monitoring mechanisms introduced by the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 are truly unique. For this reason the state should be duty-bound to effect measures so that both practicing lawyers and the Ukrainian citizenry at large be familiarized in great detail with the provisions of this convention. Another component part of promoting legal knowledge and legal culture as a whole is to inform the public about the consideration of complaints filed by Ukrainians with the European Court of Human Rights and to provide legal assistance to the complainants. Judging from current practices, the Ukrainian citizens who submit their complaints to the European Court have only a general idea about the requirements set to such appeals. In the majority of cases failure to comply with these requirements explains why the complaints are rejected.

Information about this convention and other international human rights instruments should be spread as widely as possible. Apart from the law on the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, the text of the Convention and the protocols thereto have not been published by the parliamentary newspaper Holos Ukrainy (Voice of Ukraine) to this day.

The Commissioner’s initiatives to have the Convention made public in the pages of Holos Ukraine have not gained a positive response to this day as well.

For this reason the Commissioner for Human Rights published in the magazine Viche (Popular Assembly) No.1, 1998 the text of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ratified by the Ukrainian Parliament on July 17, 1997. In April 1999 the Commissioner launched the publication of the Bulletin of the Ukrainian Parliament Commissioner for Human Rights in Ukrainian and English. The first issue of the Bulletin featured the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols Nos. 1, 2, 4, 6, 7 and 11 thereto, the Law of Ukraine On the Ukrainian Parliament Commissioner for Human Rights, as well as the new wording of an instruction for those who wish to apply to the European Court of Human Rights. The instruction sets out the requirements to the form of appeals and procedures of their submission to the European Court. The Bulletin will also publish other important international human rights instruments and inform the public about the activity of the Commissioner. The next issue of the Bulletin will feature the full text of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

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