The Implementation of the Human Rights Universality Principle in Ukraine

Chapter 24

THE IMPLEMENTATION OF HUMAN RIGHTS UNIVERSALITY

PRINCIPLE IN UKRAINE

Fedorova Alla

Sviatun Olena

Nowadays for many countries human rights are the

supreme value recognized by the international community.

The effective development of the society is possible only

in the event when all activities of State bodies are

concentrated on liberation of personality and strengthening

of fundamental rights and freedoms of an individual. The

social value of the human rights and freedoms is determined

by the fact that it constitutes one of the forms of human

dignity. As a result, a human being is recognized as the

highest value. The promotion and protection of human rights

are the mandatory condition for complete and comprehensive

prosperity of an individual. Residing only in the mentioned

environment, the human being is capable to choose his own

life style, exercise his interests and develop his skills.

The preambles of such basic documents on the protection

of fundamental human rights as the Universal Declaration of

Human Rights (UDHR) dated 1948 and the International

Covenants dated 1966, provide that recognition of human

dignity attributed to all human beings, equal and

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inalienable rights are the foundation of freedom, justice

and universal peace. This thesis is the basis for human

rights development originating from the down of human

civilization. Nevertheless activities concerning the

development of international human rights standards, their

recognition and consolidation began in the second half of

the 20th century when the United Nation Organization (UNO)

was founded and the UDHR was adopted. The Declaration arose

directly from the experience of the Second World War and

represents the first global expression of rights to which

all human beings are entitled. The UDHR, the universal

treaties in the field of the human rights protection

adopted later and the world experience of society progress

enabled the possibility to determine a list of basic

principles of the human rights law. The principle of

universality is considered to be the most important of the

abovementioned principles.

24.1 The Universality of fundamental human rights and

freedoms

Debates on human rights universality continue for

several decades. Every time this issue gets new energy due

to erosion conception of human rights defining following

notions as sovereignty, national jurisdiction, cultural

autonomy etc1. In 1993 the international community sought in1 Alston P., Steiner H. International Human Rights in context. Law, Politics, Morals// Oxford: Clarendon Press.- 1996.- p.192.

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the Vienna Declaration to clearly emphasize the cogency

universal human rights. The particular emphasize was made

on the notion that universal nature of these rights and

freedoms cannot be the subject of the discussion. Human

rights universality was considered as the obligation of all

States to promote and to protect the human rights. Moreover

this concerns the general respect, promotion and protection

of all categories of rights for all humans.

The fundamental human rights and freedoms are indeed

universal, they are attributed to everybody. Universal

values are the important to determine all the public

activities in any State regardless their form of

government, political regime, level of social and economic

development, culture and tradition. The people who live in

different countries of the world are united not only by

language, culture etc. but also by the understanding that

they are human beings, that for every person his life,

rights and freedoms are valuable. The human being is vested

with certain rights just by the fact of being human. The

universality is based on inalienability of rights and

dignity of every person. Those rights important to every

person were accepted as basis for international human

rights standards. Universal human rights standards are

enshrined in international treaties, covenants,

conventions, charters that set out legal rules for States

in the sphere of human rights protection.

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The provisions of the 1948 Declaration are adopted in

or influenced most national constitutions. The modern

States often cite Universal Declaration, quote it or make a

reference to it. The UDHR is also used for the

interpretation of the domestic laws regarding human rights

protection. Thus, the Constitutional Court of Ukraine

referred to the provisions of UDHR on several occasions2

despite the absence of any references to it in the

Constitution of Ukraine.

However, taking into consideration the principle of

universality it should be mentioned that universal

international standards are minimal standards as they are

the result of compromise achieved by quantum satis of

States with different legal systems, views, traditions that

succeeded in making a settlement for their different

positions. Ability to reach such an agreement proved the2 E.g: Decision of the Constitutional Court of Ukraine No. 8-rp/2010dated March 11, 2010 in the case upon the constitutional petition of 46People’s Deputies of Ukraine concerning the official interpretation ofthe notions “the highest judicial body”, “superior judicial body” and“cassation challenging” contained in Articles 125 and 129 of theConstitution of Ukraine; Decision of the Constitutional Court ofUkraine No. 23-rp/2009 dated September 30, 2009 in the case upon theconstitutional petition of citizen Holovan’ Ihor Volodymyrovychconcerning official interpretation of provisions of Article 59 of theConstitution of Ukraine (case on the right to legal assistance);Decision of the Constitutional Court of Ukraine no.3-rp/2009 datedFebruary 3, 2009 in the case upon the constitutional petition of theAuthorised Human Rights Representative of the Verkhovna Rada of Ukraineon conformity with the Constitution of Ukraine (constitutionality) ofthe specific provision of Article 211.2 of the Family Code (case on agedifference between an adoptive parent and a child) // ConstitutionalCourt of Ukraine. Official Web-site:http://www.ccu.gov.ua/en/doccatalog/list?currDir=12169

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universal recognition of human life value to the entire

international community. Accordingly fundamental human

rights and freedoms would constitute world value, universal

heritage and the foundation for the progress of society.

And this should consolidate different traditions of law

understanding.

However, it is necessary to point out that the

universality principle does not challenge the existence of

differences and cultural diversity. Thus, in 1966 the

General Assembly adopted the International Covenant on

Civil and Political Rights and the International Covenant

on Economic, Social and Cultural Rights which itemized the

relevant provisions of the Universal Declaration of Human

Rights. Over 150 States have ratified the abovementioned

Covenants. That gives us the reason to indicate their

provisions as universal. The situation is similar to the

number of States Parties established with other documents

on the universal basic human rights such as the Convention

on the Elimination of All Forms of Racial Discrimination

(CERD) (adopted 1966, entry into force: 1969), the

Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) (entry into force:

1981), the United Nations Convention Against Torture (CAT)

(adopted 1984, entry into force: 1984), the Convention on

the Rights of the Child (CRC) (adopted 1989, entry into

force: 1989), the International Convention on the

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Protection of the Rights of All Migrant Workers and Members

of their Families (ICRMW) (adopted 1990, entry into force:

2003) etc. Thus, the provisions of these universal

instruments are binding on States that have ratified them.

The rules of law set out in those documents are universal

and constitute a part of the universal conception of human

rights.

However we should consider a sufficient number of

declarations and reservations made by the States upon

ratification of the abovementioned documents regarding

inability to respect certain obligations in connection with

the contradictions of national constitutions and

legislation. For instance, while ratifying the Convention

on the Rights of the Child, France made a reservation that

the Article 6 cannot be interpreted as constituting any

obstacle to the implementation of the provisions of French

legislation relating to the voluntary interruption of

pregnancy. A large number of reservations were made by the

USA. Many experts indicate that having ratified universal

human treaties, the United States nevertheless does not

assume the majority of obligations originating from those

documents. The European Court of Human Rights (ECtHR) whose

jurisdiction was recognized by all Member States of the

Council of Europe including Ukraine solves this problem in

a radical way. While handling cases the Court delivered a

decision that all declarations made by the Member States

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are reservations that have no legal effect (contradict with

the purpose and the subject).

Another issue is related to the problem of recognition

and implementation of the universal human rights standards

by the States that are not parties to certain universal

treaty. Taking into account the practice of the non-member

States these documents cannot be considered as universal

(e.g. – the USA refused for a long time to ratify the

International Covenant on Economic, Social and Cultural

Rights).

It is worth considering that the Universal Declaration

was adopted by the General Assembly on 10 December 1948 by

a vote of 48 in favour, 0 against, with 8 abstentions

(Byelorussian SSR, Czechoslovakia, Poland, Ukrainian SSR,

USSR, as well as Yugoslavia, South Africa and Saudi Arabia)

Charles Malik of Lebanon – one of the drafters of the

UDHR – characterized the content of the Declaration as

follows: “The Declaration is a complex product of all

cultures and nations that have united their wisdom and

views. The Atlantic World gave priority to civil and

political rights; similarly the Soviet bloc countries gave

priority to economic, social and cultural rights; Latin

American countries dedicated themselves to the rule of law;

the Scandinavians emphasized the gender equality; India and

China supported non-discrimination, especially for

oppressed, underdeveloped and vulnerable humans, they were

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also interested in the right to education; those with

predominantly religious outlook were willing to protect

religious freedoms”3.

The central Soviet newspaper “The Pravda” dated

December 12-13 1948 published the article with the address

of the famous Soviet lawyer and statesman Andrey J.

Vyshinskiy at the UN General Assembly session concerning

draft of the UDHR. In his address Mr. Vyshinskiy stated:

“As it could be expected the Anglo-American majority

adopted the Universal Declaration of Human Rights,

rejecting all suggestions of the Soviet Union…It is an

obvious example of the fact, that the Declaration will be

used to cover the pattern of human rights violations and

inhuman living conditions for millions of ordinary people

in the Western countries”4.

A striking proof of existing antagonisms in the

approaches to the content of human values in different

countries of the world is the statement of the Iranian

representative to the United Nations, Said Rajaie-

Khorassani, as in 1982 he articulated the position of his

country regarding the Universal Declaration of Human

3Address of Ambassador Charles H. Malik, former President, UnitedNations General Assembly and former Chairman, Human Rights Commission,United Nations, at the opening plenary session of the Conference ofNon-Governmental Organizations in Observance of the 25th Anniversary ofthe Universal Declaration of Human Rights, UN Headquarters, New York,10 December 1973.4CССР И ПРИНЯТИЕ ВСЕОБЩЕЙ ДЕКЛАРАЦИИ ПРАВ ЧЕЛОВЕКА // http://www.hrights.ru/text/b11/Chapter5.htm

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Rights, by saying that the UDHR was "a secular

understanding of the Judeo-Christian tradition", which

could not be implemented by Muslims without violating the

Islamic law. Islamic Republic of Iran condemns torture;

nevertheless it considers that corporal punishment and

death penalty are not categorized as torture if they are

applied on the basis of Islam and according to the decision

of the Islamic court.

Application of death penalty to the persons less than

18 years of age in the USA is not considered as violation

of universal right to life. The US publishes every year

reports on human rights practices in almost every country

of the world but concerning their own country the United

States practically never provided any written information

on human rights practices.

Since the establishment of the UNO Ukraine was actively

involved in promoting respect for human rights. Thus,

Dmytro Z. Manuilsky - the head of Ukrainian delegation at

the UN Conference on International Organization in San

Francisco was the Chairman of the First Committee, which

elaborated the Preamble and Chapter 1 (Purposes and

Principles) of the United Nations Charter.5 Moreover the

renowned Ukrainian expert in international law - Volodymyr

M. Koretskyi was a member and the First Deputy of the

Chairperson of the UN Commission on Human Rights in 1947-5 Кулеба Д.І. Участь України в міжнародних організаціях. Правова теоріяі практика/ Київ:Промені. – 2007. - с.168

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1949 and played a key role in drafting the Article 1 of the

UDHR (“All human beings are born free and equal in dignity

and rights. They are endowed with reason and conscience and

should act towards one another in a spirit of

brotherhood”.6). Ukraine was also quick to ratify universal

documents on human rights protection: the International

Covenants were ratified in 1973, the CERD – 1969, the CEDAW

– 1981, the CAT – 1987, the CRC – 1989.

Nevertheless the real implementation of the

abovementioned universal human rights standards in Ukraine

at the Soviet times cannot be indicated as successful.

Disregard for human rights in the USSR can be explained by

the Soviet concept of human rights, whereas Soviet law

declared that State is the source of human rights. Unlike

Western theories where it is the individual who is the

beneficiary of human rights which are to be asserted

against the government"7.

Since independence the situation in the sphere of human

rights protection has changed dramatically. For instance,

the Ukrainian Parliament Commissioner for Human Rights (the

Ombudsman of Ukraine) Nina I. Karpachova declares

constantly that the UDHR laid the foundations for the

6 Онищук М. Проблеми забезпечення прав людини в Україні: від Загальної декларації прав людини до сьогодення.// Право України. – 2009. - № 4. –с. 30.7 Lambelet Doriane. The Contradiction Between Soviet and American HumanRights Doctrine: Reconciliation Through Perestroika and Pragmatism.- 7Boston University International Law Journal. 1989. p. 61-62.

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development of human rights standards system and although

its provisions at the time of adoption were not legally

binding, they are universal for all countries8.

24.2 The relation between universality and cultural

diversity

Thus, taking into account the abovementioned examples

it is possible to support the representatives of the

cultural relativism. They maintain the position that

different traditions and cultures influence in a different

way value key points and the understanding of the universal

values content – the human life to be one of them. On the

other hand this means that different countries of the world

conduct different human rights policies and practices.

Those examples and the history of adoption of

international human rights instruments indicate that in

spite of their democratic features they comprise different

wordings and interpretations concerning their political,

social and economic content. Therefore the universality of

the rights set out in basic human rights documents would

depend on the specific features of the State concerned

(even for the States that had ratified them). And the

rights and liberties set out in the universal documents

would be implemented in every State in the appropriate

historical form.8 Карпачова Н. Міжнародні стандарти у галузі прав і свобод людини та проблеми їх реалізації в Україні// Право України.- 2009. - №4. - С.4.

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In this case it is mandatory to prove the legal binding

force as international custom for such rules of law. The

current international law recognizes that due to general

State practice, opinio juris concerning the UDHR content,

the latter has acquired the character of international

custom, regardless of its initial declaratory character.

Indeed, nowadays few people would doubt that at least

major provisions of the UDHR are considered to be

universally recognized principles and rules of

international law and certain State obligations in the

sphere of fundamental human rights protection constitute

erga omnes.

Consequently it is the customary law to provide

obligations for those States that are not the parties to

the universal documents regarding human rights standards.

In that case the States that didn’t ratify even basic

international covenants or conventions on human rights

could be engaged by the international obligations according

to customary law. Accordingly universal character of

customary law turns it into the indispensable source of

human rights law.

In general the globalization of the modern world

entails (with some exceptions) the universal character of

those human values that substantiate the social

transformation of the society. The values that define the

democratization, liberalization of the world acquire the

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universal sense. Those values are freedom, equality,

justice, tolerance, natural human rights etc.

Recognition of these values at the national level,

development of international legal standards and their

implementation into the domestic law of the majority of

States are the demonstration of universality that at the

same time co-exists with cultural and national diversity.

According to Prof. Vsevolod V. Mytsyk, prominent Ukrainian

legal scholar, the abovementioned notion gives some experts

the reason to affirm the relative universality of the

fundamental human rights9.

Since the declaration of its independence in August

1991, Ukraine determined membership in the United Nations

as one of its foreign policy priorities. Ukraine firmly

adheres to the purposes and principles of the UN Charter,

substantially contributing to the Organization's activity

in fields of maintenance of international peace and

security, disarmament, economic and social development,

protection of human rights, strengthening of international

law etc. Nowadays Ukraine takes active part in the UN

activities in the sphere of human rights protection.

Ukraine’s election to the newly established Human Rights

Council in 2006 and its re-election in 2008 testified to

the high international authority as well as universally

recognized contribution and potential of our nation in the9 Мицик В.В. Права людини у міжнародному праві. Міжнародно-правовімеханізми захисту. Підручник - Київ:Промені. – 2010.- C. 53

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field of human rights. Observing its obligations concerning

human rights protection as UN Member State, Ukraine

achieved much progress in the bringing its legislation to

conformity with international rules and standards,

reinforcement of legal remedies at the national level,

reforming of court system, strengthening the role of human

rights organizations, raising of the legal culture.

24.3 Universalism and regionalism in Europe

Analyzing mechanisms of human rights protection,

existing in the world, one can draw a conclusion that

nowadays the most efficient are the regional mechanisms of

human rights protection. It is easier to establish new

common criteria in the framework of regional mechanisms due

to the common traditions and cultures.

Concerning this issue the authors would like to support

the position of the well-known Russian Prof. Stanislav V.

Chernichenko. Prof. Chernichenko noted that universal

standards can get in line with regional standards but in

the field of legal practice it is that regional standards

make more progress than the universal10.

The International Covenant on Civil and Political

Rights adopted 1966 and the European Convention for the

10 Черниченко С.В. Права человека как отрасль современногомеждународного права. Классификация основных прав человека// Лекція/Електронний ресурс/ Режим доступу:http://www.terralegis.org/terra/lek/lek_12.html

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Protection of Human Rights and Fundamental Freedoms adopted

1950, the American Convention on Human Rights adopted 1969

and the African Charter on Human and Peoples' Rights

adopted 1981 protect one group of human rights – civil and

political rights. However, the availability of the Human

Rights Committee of interpretations of the Covenant, this

mechanisms is less effective than European regional

mechanism which differs from other regional mechanisms.

The decisions of the European Court of Human Rights are

legal binding for case parties, its interpretations are

significant source for all contracting parties of the

Convention. Those features characterize the European

Convention as effective, legally binding and “live” rule of

law. Delivering during the last years thousand of

judgments, the European Court of Human Rights (ECtHR) made

a precise interpretation for every right provided for by

the Convention and its Protocols according to current

trends and realities that prevail in the Council of Europe

Member States.

Handling the applications from the alleged victims of

human rights violations, the Court not only takes

individual measures but also obliges the state-violators to

take general measures. Moreover, although the Convention

provides the State Parties with freedom to choose those

measures, the case-law of the ECtHR indicates that the

Court insists on amending national legislation and

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improving the domestic remedies. Over the past few years

the European Court of Human Rights has developed a new

procedure known as the pilot-judgment procedure as a means

of dealing with large groups of identical cases that derive

from the same underlying problem. The pilot judgment is

therefore intended to help the national authorities to

eliminate the systemic or structural problem highlighted by

the Court as giving rise to repetitive cases. In doing this

it also assists the Committee of Ministers in its role of

ensuring that each judgment of the Court is properly

executed by the respondent State11.

Representative in this matter is the case Y.M. Ivanov

v. Ukraine12. Handling hundreds of identical cases in

respect of Ukraine, the Court ruled that the problems of

functioning of the judicial authority in Ukraine are

complex, large-scale and that Ukraine must introduce in its

legal system, at the latest within one year from the

Court’s judgment becoming final, an effective remedy which

secured adequate and sufficient redress for the non-

11 The Pilot-Judgment Procedure. Information note issued by the Registrar. // http://www.echr.coe.int/NR/rdonlyres/DF4E8456-77B3-4E67-8944-B908143A7E2C/0/Information_Note_on_the_PJP_for_Website.pdf#xml=http://www.search.coe.int/texis/search/pdfhi.txt?query=pilot&pr=Internet_D&prox=page&rorder=500&rprox=750&rdfreq=500&rwfreq=500&rlead=500&rdepth=250&sufs=1&order=r&mode=&opts=&cq=&sr=&id=4a51065d8212 European Court of Human Rights. Information Note no. 123 on the Court’s Case-Law – October 2009.- Strasbourg: Council of Europe, 2010. - p. 27.

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enforcement or delayed enforcement of domestic judgments

and complied with the key criteria set in the Court’s case-

law. Ukraine was also required to grant redress, including

by unilateral remedial offers or friendly settlements where

possible, to all current applicants in such cases whose

applications were communicated to the Government. In the

event that no redress was granted, the Court would resume

its examination of all similar pending applications.

Pending the adoption of the above measures, the Court would

adjourn for the same one-year period the proceedings in all

Ukrainian cases lodged after the delivery of the present

judgment and concerning solely the non-enforcement or

delayed enforcement of domestic judgments13. The delivering

of such judgments by the ECtHR indicates that the Court

tries to solve the structural and general problems in the

national legislation and case-law of the Member States

influencing in active way the implementation of the

appropriate European standards at the national level.

The question arises if there is a possibility to create

similar mechanisms of human rights protection at the

universal level. We would evaluate it as more rhetorical

question and it could not receive positive answer. The

former UN Commission of Human Rights at the time of the

UDHR drafting consisted of representatives drawn from13 Анна Юдковская, адвокат, к.ю.н.: Первое пилотное решение против Украины.- Режим доступу до тексту: http://hrlawyers.khpg.org/index.php?id=1256562896

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different philosophic, ideological and religious

traditions, representatives of different countries from all

continents, legal systems, political landscapes.

Nevertheless the international community succeeded in

reaching compromise on common traditions but their content

stayed undefined.

Thus, introducing at the universal level minimal

standards, arising from the values that are inherent to all

mankind, those are given, usually, general, abstract

definitions. That, in turn, leaves the States capable to

fill the wording with the relevant content that corresponds

to the culture and traditions of the country or region.

The European region has the most effective and

authoritative regional human rights protection system,

which consists of the mechanisms and procedures for the

protection of human rights implemented on the continent.

Human rights are a cross-cutting issue for all major

European institutions: the Council of Europe, the European

Union and the Organization for Security and Cooperation in

Europe. However, the position, given to the human rights in

the work of these organizations is different.

Thus, until the Lisbon Treaty came into force,

allocating the EU Charter of fundamental rights with legal

compulsion, the EU’s own human rights protection system did

not exist. As an exception fragmentary aspects and

individual mechanisms to protect certain rights can be

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considered, mostly - the group of socio-economic rights of

EU citizens. The ensuring of socio-economic rights was

necessary for the realization of freedom of free movement.

The absence of human rights protection system in the

European Union over a long period had been explained by its

economic development goals, with the protection of human

rights being a minor aspect. At the same time, Ukraine is

not an EU member state or a candidate, therefore the

protection of human rights in the EU may be available only

to citizens of Ukraine as citizens of third countries who

legally reside in the EU. However, the rights of the

citizens of non-EU Member States - are significantly

limited in comparison with the rights of the EU citizens.

Important role is attached to the human rights issue by

the OSCE, which determines the human rights protection as

an integral component of the new European security system

in the XXI century. The human rights protection sphere had

its development in the 1990s with the adoption of the Paris

Charter for a New Europe. The Charter proclaimed the common

values of European home: human rights and basic freedoms,

democracy and rule of law, economic freedom, social

justice, clean environment. However, the problem of

security in Europe remains the main goal of the

Organization. Therefore, taking into account the primary

focus of the Organization, we should note that its

functioning mechanisms have no significant impact on the

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development of regional human rights standards or on

forcing the member States to implement the already

established ones. Ukraine, being a member of this

Organization since 1992, actively participates in the

discussion of current issues of European security, stands

for the improvement of institutions and mechanisms of the

OSCE, strengthening the role of the Helsinki forum in

European security sphere, enhancing preventive and

peacemaking potential of the OSCE. One of the initiatives

of the Organization is the monitoring of democratic

elections in Member States, including many years of such

work in Ukraine.

Within the Commonwealth of Independent States (the

CIS), in which Ukraine also participates, one can indicate

the adoption of the Commonwealth of Independent States

Convention on the rights and basic freedoms in 1995.

However, the latter has not ever acquired any importance.

Moreover, the refusal to ratify it was one of the

requirements of the Council of Europe, which had been put

forward to Ukraine when joining the Organization14.

14 OPINION No. 190 (1995) on the application by Ukraine for membership of the Council of Europe, paragraph 12 iii: “…pending further research on the compatibility of the two legal instruments, not to sign the Commonwealth of Independent States (CIS) Convention on Human Rights andother relevant CIS documents, given the fact that individual applications submitted under this convention might render impossible the effective use of the right to individual application under Article 25 of the European Convention on Human Rights…”// http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta95/EOPI190.htm

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Thus, the foundation of European human rights system

has been developed within the frameworks of the Council of

Europe due to the creation of effective mechanisms. The

basic principle of the Council of Europe since its

foundation in 1949 to the present day is the protection of

pluralistic democracy, the rule of law and human rights.

The protection of human rights is not only one of the three

basic principles of the Organization, but also an important

direction for development. Always, since it’s founding, the

Council of Europe has been defending the opinion that human

rights are universal, indivisible and are the basis of any

democratic society.

Supporting and developing universal principles, the

Council of Europe is one of the examples of powerful,

influential and effective regional formations. However,

regional and national standards must operate in harmony

with universal, detailing and developing the latter. In

1946, Winston Churchill declared that "firm goal of the

Europeans should be building and strengthening the United

Nations. Within the framework and under the leadership of

which we must revive a common European family, the first

practical step to which should be the Council of Europe.

Council of Europe will implement the idea of United Nations

... "15.

15 Заблоцька Л.Г., Федорова А.Л., Шинкаренко Т.І., Політико-правові аспекти діяльності Ради Європи. – К., 2007. – 224 с.

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Further to the foregoing, it should be noted that

according to the majority of Ukrainian experts,

universalism and regionalism can only give the best results

when coexisting together in the modern understanding of law

and rights, intersecting and preserving its nature at the

same time. Today it is obvious that the Council of Europe

does not only details and develops the universal principles

and standards, but also sets its own, European, which are

then implemented at the universal level. E.g. if the

International Covenant on Civil and Political Rights was

adopted in 1966, and its entry into force dates from the

year 1976, the Convention on Human Rights and Fundamental

Freedoms of 1950 entered into force already in 1953, and

from 1954 to 1959 the European Commission on Human Rights

and the European Court of Human Rights became operational.

The European Social Charter of the Council of Europe,

adopted in 1961, and the European Cultural Convention of

1954 also outstripped the universal document on the same

issues - the International Covenant on Social, economic and

cultural rights (dated 1966, entered into force in 1976).

One of the illustrative examples of successful

development of problematic human rights standards within

the Council of Europe is the adoption in 1990-s the

following documents on the protection of rights of national

minorities: in 1992 - Charter for Regional or Minority

Languages, in 1995 - the Framework Convention for the

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Protection of National Minorities, which was the first ever

legally binding multilateral document that dealt with the

rights of minorities. Within the UN there was no consensus

on minority rights, which had been reflected in Resolution

217 (III) of 1948, which adopted the Universal Declaration

of Human Rights. Its certain part determined that the UN

could not remain indifferent to the fate of minorities;

however, given the impossibility of developing a unified

decision on this complex issue, which had specific aspects

in each country, and taking into account the universality

of the Declaration, it was decided not to include special

provisions concerning minorities into the Declaration. The

UN Commission on Human Rights and its Sub-Commission on

Prevention of Discrimination and Protection of Minority

Rights, Ad Hoc Working Group and other relevant bodies for

decades of work have achieved that the Article 27 on the

rights of minority be included into the Covenant on

Economic, Social and Cultural Rights as well as the

adoption of the Declaration on rights of persons belonging

to national, ethnic, religious and linguistic minorities in

1992.

Protection of the rights of minorities is extremely

relevant issue in Ukraine, since our State has turned out

to be the only former Soviet State to recognize the

deportation of the Crimean Tatar people as crime and

declared its repatriation to Ukraine. However, despite

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political statements, five-year programs etc., the process

of repatriation is taking place in the absence of special

legislation that would have been called to address the

issue of return, resettlement, land allotment, most social

problems, language issues, education, guarantee the

preservation and development of the Crimean Tatar people,

etc.. It’s only in 2009 that the OSCE High Commissioner on

National Minorities and the President of the EU Committee

of Regions expressed their recommendations regarding the

necessity of adopting special laws, which though have not

been considered yet16. However, fulfilling its obligations

imposed by the Council of Europe, Ukraine has ratified all

the listed above major documents of the Council of Europe

on the issue. Although, according to the Constitution of

Ukraine, the ratified international treaties constitute the

part of national legislation, the problem with their

implementation and use remains, along with the problem of

adoption of special legislation to protect the rights of

national minorities in Ukraine.

Thus, it is clear that within the regional unions it is

easier to find compromise solutions in any field, including

the human rights, and implement them. Successful

implementation of the system of preventive visits of

16 Джемілєв М. Проблеми і перспективи стабільності в Криму. Доповідь голови Меджлісу кримськотатарського народу в Європарламенті, Брюссель, 17 березня 2010 року // Кримськотатарське питання. Журнал про проблеми кримськотатарського народу в Україні. - 2010.- № 1.- С.15-16

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independent experts to control the standards of the

European Convention for the Prevention of Torture in the

penitentiary institutions has given an impetus for the

adoption of additional protocols to the UN Convention

against Torture.

However, despite the prohibition of torture is the

basic instrument on human rights, particularly in Article 5

of the Universal Declaration of Human Rights, Article 7 of

the International Covenant on Civil and Political Rights,

Article 3 of the European Convention on Human Rights, the

scaled violations of the right in Ukraine are evidenced in

the dozens of decisions of the European Court of Human

Rights and reports of international and national human

rights organizations. Inhuman conditions of holding in

custody, torturing of the arrestees and prisoners,

beatings, lack of access to medical services, spread of

infections and diseases in prisons are, unfortunately, the

common practice in Ukraine. Ukrainian investigators, courts

and prosecutors still use the Criminal Procedure Code of

Ukraine dated 1960 in their work. Designed for the needs of

the Soviet repressive system, overloaded with numerous

later changes, the Code complicates justice and creates

conditions for human rights violations.

According to the results of the sociological

monitoring, carried out by Kharkiv Human Rights Group in

2009, 18% of respondents believe that the use of unlawful

25

violence in the work of law enforcement representatives is

a very common, and 31% of respondents considered this

practice rather widespread, whereas 30,1% of law

enforcement representatives agree that violence against

arrestees is one of the methods of disclosure and

investigation of crimes. Estimated number of people, beaten

during arrest is about 600 000 per year (including

information for 2009). Number of persons who suffered from

prolonged holding in places unsuitable for that (corridors,

offices, cars) reached 300 000 in 2009. Further

strengthening of control of legality of arrest and

processing order in 2005 led to spreading the practice of

processing arrestees (who can not then get out of the law

enforcement department) as invited, delivered, visitors.

The cases of not making entries into the police

departments’ logs are also growing. In 2009 45% of

respondents among the prisoners identified, that they have

been sent to the temporary insulators only after 3 or more

days from the date of arrest.17 The human rights defenders

also note the strengthening of the trend to move the facts

of illegal violence from the stage of arrest to the stage

of investigation, the blackmailing is getting more and more

widely used (approximately 400 000 persons per year).

17 Кобзин Д. Незаконное насилие в органах внутренних дел Украины: социологическое измерение//Дотримання прав людини в діяльності МВС // Харківська правозахисна група.- Харків: Права людини. – 2009.- с. 33-36

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The public response was triggered by the events in May

2010, linked to the death of student Ihor Indyla who was

killed in the district police department. According to the

law enforcement’s explanation, Mr. Indyla fell several

times and banged himself18. The demonstrations of protest

and demand to punish the guilty were held in Kiev and in 18

cities of Ukraine. The situation around the investigation

of this incident also drew attention of the rapporteurs of

the Monitoring Committee of the Council of Europe, who came

to visit Ukraine.

The authors believe that the demanding attention from

the Council of Europe and the world community to the

problems of tortures and inhumane treatment used by

Ukrainian authorities will help to overcome the complex

massive violations of one of the fundamental universal

human rights - the prohibition of torture.

Indeed, the support from international institutions in

translating the recognized global and regional standards

into the legislature of the States, which have recently

entered the path of democratization, seems particularly

important. Thus, Ukraine became independent in 1991 after

the collapse of the Soviet Union and stepped towards

building a legal democratic State that shares European

18 У Києві студент загинув у райвідділі міліції. Хлопцю проломили голову// Права людини в Україні. Інформаційний портал Харківської правозахисної групи// Режим доступу до тексту: http://www.khpg.org/index.php?id=1275002918

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values. Realizing that an important component of a

democratic State and democracy in general is the protection

of human rights, their consolidation and guaranteeing, the

1996 Constitution proclaimed the principle of priority of

rights and freedoms, and the human was recognized as the

highest social value. The Constitutional provisions

sometimes even textually repeat the provisions of the

fundamental international legal documents - the Universal

Declaration of Human Rights, the International Covenant on

Civil and Political Rights and Covenant on the Social,

Economic and Cultural Rights, the European Convention on

Human Rights and Fundamental Freedoms. The Council’s of

Europe experts on constitutional law have recognized the

Constitution of Ukraine as the most democratic of all the

new constitutions of Europe. Humanistic orientation of the

Constitution of Ukraine is not only based on the modern

concept of human rights, but also meets the generally

accepted international and European standards of human

rights, reflecting European values and commitments that

were taken during the accession to the Council of Europe.

24.4 Status of observance and protection of human

rights in Ukraine

Acquiring membership in this Pan - European

organization was one of the main targets in the process of

integration of independent Ukraine into the European

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political and legal area in the early 1990-ies. Since

Ukraine's accession to the Council of Europe on November 9,

1995 and entry into force of the European Convention of

Human Rights for Ukraine, the European Court delivered

hundreds of judgments against Ukraine, related to

violations of many provisions of the Convention, including:

the right to life, liberty and security of person, right to

free trial, failure to implement the decisions of the

national judicial institutions, freedom of expression,

right to an effective legal protection, right to protect

property; the violations of the ban of tortures, inhuman or

degrading treatment and punishment, etc. are systematically

detected.

As of today Ukraine has acceded all 4 basic documents

of the Council of Europe on human rights: in 1997 it

ratified the European Convention on Human Rights and

Fundamental Freedoms of 1950, the European Convention on

the Prevention of Torture and Inhuman or Degrading

Treatment or Punishment of 1987, in 1998 - the Framework

Convention for the Protection of National Minorities of

1995 and in 2006 – the European Social Charter (revised)

(entered into force for Ukraine on 01.02.2007).

Ratification of certain documents (19 international

agreements, including major papers in the field of human

rights protection, except the clear commitment to join the

European Social Charter) concluded the list of requirements

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for Ukraine's accession to the Council of Europe. Almost

similar requirements to ratify a number of key documents

have been put forward by the Council of Europe to all

States since late 1980-ies in order to include the existing

standards and values into national legislatures of the new

members of the Organization. During 15 years of membership

in the Council of Europe, Ukraine has revived the

democratic traditions, implemented into the national

legislature the basic legal portfolio of Europe. Having

accessed the membership in the Council of Europe, Ukraine

incurred itself to a number of commitments in the sphere of

reforming legislation on the basis of norms and standards

of the CE. The overwhelming number of those commitments is

already fulfilled. Ukraine has signed and ratified the 75

international legal documents of the Council of Europe;

other 20 conventions of the Council of Europe have been

signed but not yet ratified.

Still there is a number of provisions of national law,

which remain to be put in line with the standards of the

Council of Europe, in particular: the authority of

prosecutors, judicial reform, adopting the new Criminal

Procedure Code (the draft of which is under consideration

in the Parliament of Ukraine). The main directions of

cooperation between Ukraine and the Council of Europe, in

particular such as: human rights protection, judicial

reform, fighting corruption, social cohesion, are put into

30

the basis for the Council of Europe Action Plan for Ukraine

for 2008-2011, approved by the Committee of Ministers in

July 2008. The Action Plan is unprecedented for the content

and level of funding. Its budget is around 25 million Euro.

Thus, the implementation of regional European standards

not only contributes to further integration into European

political and legal space, but also promotes the adherence

of Ukraine to the universal human rights standards.

24.5 Conclusions

In general, Ukrainian legal science supports the

concept of the universality, indivisibility and

interdependence of human rights as the main principles of

the latter. Recognition by Ukraine of the universality and

world value of basic human rights and freedoms as the basis

for further development of the world derives from European

traditions, European philosophical views, which are closely

related to Ukrainian history.

How to ensure the overall human rights in the world,

which is characterized by such a cultural diversity19? The

answer is never simple and unequivocal. However, we must

agree that any culture does not replace all the

international achievements in the sphere of human rights

19 Ayton-Shenker Diana. The Challenge of Human Rights and Cultural Diversity. Published by the United Nations Department of Public Information DPI/1627/HR--March 1995 // http://www.un.org/rights/dpi1627e.htm.

31

protection, it can be a platform with human rights

integrated into it, supporting the commitment and respect

to the latter. Still, the international standards are to be

integrated into the national legal plane.

One can argue with the idea of whether the modern

concept of human rights is solely a product of Western

philosophical, religious and legal thought, which ignores

the peculiarities of other nations and cultures (mostly the

Judaic and Muslim views). Thus, Professor V. Mytsyk agrees

that "the idea of universality of human rights is

historically based on Western philosophical and political

views on the human world ..."20. Indeed, it has to be

acknowledged that the Western concept is more than any

other is aimed at protecting human dignity and human life.

However, it is obvious to most Ukrainian experts that the

idea of existence of universal human rights is mandatory

for all mankind. There are different cultures, traditions,

but for the decent existence a human being needs some

common conditions. Therefore, the universality of human

rights does not contradict the displays of cultural

relativism21.

Protection of human as the highest value is certainly

recognized in Ukraine, our Constitution is riddled with

20 Мицик В.В. Права людини у міжнародному праві. Міжнародно-правові механізми захисту. Підручник - Київ:Промені. – 2010.- C. 50. 21 Мицик В.В. Права людини у міжнародному праві. Міжнародно-правові механізми захисту. Підручник - Київ:Промені. – 2010.- C. 53.

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this value. If at the present stage of human development

international documents call on States to abandon the death

penalty and the States gradually eliminate it, at the same

time, Europe is already the first region free from the

death penalty. No wonder that Ukraine, as part of Europe

has fully shared European values, and returned to those

despite nearly a century of totalitarianism. Regional

European values do not contradict the universal, but

develop them. It is not also to forget that the most

effective legally binding mechanisms for the protection and

implementation of these values are created just at the

regional level, in particular – by European regional

institutions.

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