Human rights in new version of Ukrainian Constitution

Will the reforms in Ukraine result in the Constitution as the Fundamental Law, not a declarative document?

The data from a recent poll: only 10% of respondents are aware of the Government’s plans to amend the Constitution, 47% heard something about it while 42% know nothing. Only 5% of respondents know exactly what changes in the Constitution are being prepared. These are the disappointing findings of the sociological survey conducted by the Ilko Kucheriv Democratic Initiatives Foundation and the Kyiv International Institute of Sociology. Yet sadder fact is that more than half of respondents (50.4%) have not read the Constitution at all. Meanwhile, draft new version of the Constitution should have contained a fundamental provision stipulating that the society shall control the state.

“We do not have society. We have the subjects, the unfortunate whom we should take care of… The new version of the Constitution preserves our current or even yesterday’s vision about how the state should function,” says human rights activist and Executive Director of the Ukrainian Helsinki Human Rights Union Arkadiy Bushchenko. Another problem is that “society does not trust the state,” Bushchenko says. So what do the lawmakers prepare for us? And what a new version of the Constitution could be?

Separating dogs from fleas

As for the draft Fundamental Law, elaborated by the Constitutional Commission, the experts continue to debate on the rights to be enshrined in the Constitution. Should there be the socio-economic rights, put simply, the right to free education, health care, decent pension, which cannot be guaranteed with the current holes in the budget? Or should there be the social and political rights, when you can freely say what you want (freedom of speech), what you think (freedom of expression), or, for example, when you can freely exercise your voting rights?

“Our Constitution stipulates a human life as the highest value. However, it is clear that the purpose of the Constitution is the free civil society, the free people who invest in themselves, who try to change something. This includes freedom of business, economic freedom, and certainly political freedom,” says Vsevolod Rechytsky, the Candidate of Legal Sciences, Associate Professor at the Yaroslav the Wise National Law Academy of Ukraine (Kharkiv), constitutional law expert of the Kharkiv Human Rights Group.

By the way, there were discussions at the beginning of 2013 whether the Constitution should abandon the social rights, to be exact, whether it should be honestly admitted that these rights cannot be provided in Ukraine. “There were some radical proposals, for example, to get rid of these rights at all and to guarantee purely political and personal rights,” the expert recalls, adding that those proposals were not approved. “Although now it is clear that Ukraine will not have the budget opportunities to meet the requirements stipulated in the form of socio-economic rights as a gift from the state over ten years. We have already experienced this…” Rechytsky said. According to him, if we retain the social rights as they are stipulated now, it will be a simple maintenance of the illusion.

Volodymyr Yavorsky, the human rights activist, the member of the board of the Ukrainian Helsinki Human Rights Union, has the opposite view. He argues that the new version of the Constitution should have the separate section on civil and political rights, the separate section on socio-economic rights and yet separate section on human duties. In fact, these are three different institutions regulated in different ways. Yavorsky explains that there is quite a clear criterion for the lawfulness of human rights restrictions when it comes to civil and political rights. The restriction can be set by the law, it must pursue some legitimate aim, be necessary for a democratic society. However, the draft Constitution has no defined criteria for restricting the human rights.

Another approach is applied regarding the socio-economic rights, in particular, the principle of “limited financial capacities of the state.” “An important fact is that the socio-economic rights should not be reduced. The state sets them in a certain scope and cannot fall back. The socio-economic rights have some fundamental things which cannot be given up by the state. For example, the right to an adequate standard of living, i.e. the freedom from hunger. So, if a person living in the ATO area is starving today because the Government has blocked all the conditions for normal operation there, the state is responsible for the situation in this area and is obliged to settle it,” Yavorsky emphasizes.

Right to property: fata morgana for Ukrainians or reality?

Another controversial point in the draft Constitution, according to Yavorsky, concerns the right to property. On the one hand, we are talking about the sort of an idealized vision of this right. On the other hand, if we look at the practice of the European Court of Human Rights (ECHR), we will see that it does not require a strict observance. The European Convention on Human Rights clearly states that a person may be deprived of property in the public interest.

The human rights activist also claims that the draft Constitution contains contradictory provisions. “For example, one provision stipulates the absolute inviolability of the right to property while another one says something like ‘but we still may take away something from you’,” says the expert and recommends lawmakers to address this.

The forfeiture of property is also a matter of argument. Ukraine still has the institution of forfeiture, which no longer exists in any of the European countries.

Discrimination issue

Another sensitive topic for lawmakers is the prohibition of discrimination… and the place of the church in the draft Constitution. Vsevolod Rechytsky notes that Ukraine has somehow radical attitude towards the prohibition of discrimination, particularly, regarding the definition of marriage. The removal of the term “marriage” from the draft law would be a reasonable compromise, the expert says, as it too insignificant for the Constitution.

The next compromise as of now is the reduction in the number of grounds for the prohibition of discrimination, i.e. the failure to include such delicate features as sexual orientation and gender identity. The Coalition for Combating Discrimination opposes such an attitude noting that discrimination on any grounds, not just on the list of “preferred items”, should be banned.

In addition, the new version, according to Rechytsky, is more religiously oriented than the effective Constitution.

Where should we seek for protection?

In the opinion of the constitutional experts, the current draft Constitution lacks sufficient human rights protection mechanisms. “The draft provides for an opportunity not only to introduce the position of the Human Rights Commissioner but also to set up the independent authorities to protect a particular right. The mechanisms of human rights protection could be set out in a separate article. As for me, it would be useful and rather promising. There are many fields which could have specialized ombudspersons and independent specialized committees, but, unfortunately, we do not have such a system,” Volodymyr Yavorsky says.

The number of complaints about the human rights violations submitted to the Secretariat of the Ukrainian Parliament Commissioner for Human Rights of Ukraine increased by 50% over the past year, Head of the Secretariat Bohdan Kryklyvenko notes. All the European experts, the colleagues from Strasbourg and Brussels, had a clear vision that the effective Constitution did not allow creating new mechanisms for the protection of human rights in Ukraine.

If we talk about access to information, protection of personal data, combating discrimination, a significant part of the changes concerned granting additional powers to the Commissioner’s office, Kryklyvenko says. “Ukraine and Poland have approximately the same size of population. However, Poland has a separate inspectorate for personal data protection, which employs about 150 people. Does the Ukrainian Commissioner for Human Rights have the same opportunity? Perhaps, yes, but we are talking about the future, the five-, ten-year term… So the Constitution should more clearly define the institutions obliged to protect the particular field or stipulate the opportunity for establishing such institutions,” the Head of the Secretariat says.

Do laws have wax noses?

Human rights activist Arkadiy Bushchenko draws attention to another potential danger: section “Human Rights” is considered by the Parliament and will be considered separately… from the other sections of the Constitution. “The President or the political establishment views the Constitution as … the set of unrelated provisions. However, the Constitution is an integral whole! Meanwhile, the Parliament would each time consider one or another aspect, not considering them in conjunction.” The expert cites the example of Section “Justice” and “the right to a fair trial” enshrined in the other section. “They are absolutely linked. However, the parliamentarians will consider them separately. The independence and fairness of the trial is provided to the extent the right to a fair trial is provided,” the human rights activist emphasizes.

Bushchenko mentions another dangerous aspect of legislation: all our problems are tried to be settled in an authoritarian way. “If we are dissatisfied with the judges, we understand that we should monitor the independence of judges, we should set up some kind of a body that will monitor the judges. Then we should set up a body to monitor those who monitor the judges. Afterward, we should set up a body that will monitor the foregoing one… However, nobody views this section as a section for monitoring the authorities,” Bushchenko comments. The experts are also concerned by the fact that the international provisions are “embedded” into many of the articles of the new version of the Constitution “without an adequate understanding of the realities of the present-day Ukraine.”