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.
3
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
24
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.
32
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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