The European ideal and reality of justice

This year the international community will mark the 60th anniversary of the Universal Declaration of Human Rights, a kind of internal legal code that has had a tangible impact on the development of the legal system. It forms the basis of the Constitution of Ukraine, which guarantees the civil rights and liberties of our citizens. After joining the Council of Europe in 1995, Ukraine undertook to protect democratic values.

Another important international legal instrument in Ukraine is the Convention for the Protection of Human Rights and Fundamental Freedoms that was adopted more than half a century ago. However, these documents will be worth much if our citizens cannot protect their rights. The numerous claims that Ukrainians have submitted to the European Court are proof that our country still has many problems in its struggle to build a state ruled by law. People ask for assistance from this court after failing to find justice in Ukraine. In 2007, the European Court handed down 104 rulings on cases that originated from Ukraine.

Do these figures demonstrate that we have learned to protect our rights better? What does Ukraine need to do in order to become a state ruled by law? Below The Day’s experts offer their answers and commentaries.

Semen GLUZMAN, head of the Ukrainian-American Bureau for Human Rights in Kyiv:

Ukrainians will learn to defend their rights after they stop letting the government abuse them. This doesn’t mean that one ought to turn to the Ukrainian-American Bureau for Human Rights or any other human rights organization in cases where salaries have not been paid or an innocent person has been convicted. In my opinion, protecting one’s rights means demanding true justice, and demanding that the prosecutor’s office monitor observance of the law instead of politics. It means demanding that the police protect citizens’ rights instead of serving as an obedient tool of the government. As for civic organizations, I don’t think they can substitute for the judicial authorities.

Under the Soviets people were denied the right to elect their government. Today the situation is different: we have the right to make a choice, to elect not only the president but, more importantly, the local authorities, so one has to treat this issue very seriously. We need judicial reform for our courts to actually protect citizens’ rights and prevent judges from committing crimes with impunity (I am talking about bribes). Interestingly, in lawsuits judges take bribes from both sides, so it is the “highest bidder” who wins the case, although the losing side is never reimbursed. In addition, our courts must serve our citizens, but in our country they are still in fact continuing to serve the state. Changing this situation involves a lot of factors, specifically upgrading law schools, because there are many institutions of higher education that produce lawyers who are not professionally trained enough. Judicial reform is a very complicated process, so by adopting a legislative act you cannot expect a hundred percent positive result. Judicial reform should start with each of us — for example, with the election campaign that must be treated with the utmost sense of responsibility.

Andrii DIACHENKO, lawyer:

In Ukraine people can protect their rights within the limits of existing legislation, but if the institute of jurisprudence is paralyzed, people are often unprotected. There is a state corporation in Ukraine that functions like the prosecutor’s office. It not only serves the interests of the government. Even worse, it creates conditions that facilitate corruption. Corruption exists in law enforcement and judicial bodies from top to bottom. Under such conditions, it is very difficult for a person who doesn’t have enough money or influential contacts to obtain justice. It is not easy for an ordinary citizen to refer a case to a court of law because the procedures for filing claims are very complicated. Also, there are so many discrepancies in the current legislation that even professional lawyers sometimes find it difficult to determine the jurisdiction of a case: is it to be handled by the Administrative or the Economic Court?

Therefore, in order to change this situation it is necessary to institute legal responsibility for abuse of office on the part of law enforcement and the judicial authorities. For example, a higher court overturns several court rulings. In this case, the competence of the judge who overruled them must be called into question. What we have now is practically complete impunity for the judicial authorities; these officials break the law and get away with this. If they were made legally liable, including criminal prosecution, there would be considerably fewer cases of deliberately unlawful rulings. It is precisely because we do not have an effective judicial system that a number of Ukrainians refer their cases to the European Court of Human Rights, where it is considerably easier to win a case than in Ukraine.

Andrii OSIPOV, chairman of the Parliamentary Committee to Counteract Corruption and Organized Crime:

The situation in Ukraine is such that human rights are violated, and very often victims do not offer any resistance. I believe that Ukraine will become a state ruled by law only after legal punishment becomes unavoidable for everyone without exception, including judges and prosecutors. For example, if a judge or a prosecutor knows that accepting a bribe guarantees a term in prison, s/he will think twice before breaking the law. As it is, a judge in Ukraine who is arrested on charges of corruption (there have been cases where such officials have been arrested for bribery) bribes the judge handling the case, who lets him or her off scot-free. I think that any law can be truly effective only when the people who violate it are given real punishments.

There are enough laws in Ukraine that protect citizens’ rights. Unfortunately, this protection exists only on paper. To change this situation, Ukrainians must change themselves and defend their rights in a constitutional manner, not by bribing law enforcement officials, as is often the case. After all, our judges do not stand in front of their courts with posters reading “No Bribe, No Admission!” If people stopped giving bribes, this phenomenon would gradually become extinct. Therefore, the construction of a state ruled by law should start with restructuring the mentality of each of us.

Kateryna LEVCHENKO, president of the La Strada-Ukraine International Women’s Rights Center and advisor to the Minister of Internal Affairs of Ukraine:

Unfortunately, our citizens lack a clear understanding of their rights and how these rights should be observed. On the other hand, the situation with institutions that are supposed to protect human rights remains complicated in Ukraine. Today this situation is such that the state appears to be the main violator of human rights, so citizens have to protect themselves from it, the very structure that should guarantee that citizens are protected. This problem is not a Ukrainian one per se; it exists in other countries, even in those that consider themselves to be true democracies. Hence, institutions exist everywhere in order to help people protect their rights. Among them are independent commissions, bureaus, various structures that monitor observance of human rights, and civic organizations. In Ukraine today it is very difficult to protect one’s rights according to the established legislative order. That is why human rights watchdog groups and organizations are joining the process.

I remember numerous cases where my rights were violated and I, an educated individual, could not protect all of them. I think there is no single recipe for Ukraine finally to turn into a state ruled by law. I believe that one of the most important steps to be taken in the direction of establishing a state ruled by law must be to adequately inform all Ukrainians about their human rights. This knowledge must be provided from childhood. Our children must realize that they too have rights and responsibilities, and that they must observe them unswervingly. There must also be political will on the part of the Ukrainian ruling elite, so that people in key political posts can demonstrate positive examples of observing human rights.

Yevhen ZAKHAROV, co-chairman of the Kharkiv Human Rights Protection Group:

In recent times, Ukrainians often protect their rights not through legal channels but corrupt ones, by bribing law enforcement and judicial bodies. However, a certain proportion of people file complaints with law enforcement agencies and this often produces positive results. If you look at court statistics, specifically cases involving unlawful acts or inactivity on the part of state executive bodies and their officials, their numbers have grown 30 times. Statistics also show that citizens win many cases. However, I believe that our legislation could be used considerably more effectively to protect human rights. For Ukraine to become a state ruled by law, it is necessary to convince our citizens to trust and respect courts of law and law enforcement agencies. Most importantly, there must be respect for the law on the part of every Ukrainian regardless of rank and position.

There are also a number of international instruments, including the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, and so on. However, these documents are the prototype of what should be, an ideal we have to achieve. In 1948 this international code of human rights was introduced into a declaration that has essentially influenced the development of the judicial system in a number of countries. But in the last while, values in the sphere of human rights have been frequently disregarded, and politicians most often opt for political expediency to the detriment of human rights. But there is a rule that says that a regime that violates human rights is doomed to failure.

Yulia MATVEIEVA, head of the experimental training lab at National University of Kyiv-Mohyla Academy (NAUKMA):

In my opinion, Ukrainians have started learning to protect their rights in the past couple of years. There enough constitutional mechanisms to protect human rights in Ukraine. Whether they are perfect is another matter. However, a number of factors influence people’s desire to defend their rights. Mentality comes first. Unlike American or Western European citizens, Ukrainians don’t rush to file complaints against a neighbor or inadequate service at a mall. Also, the successful protection of human rights is often impeded by the inadequate level of the public’s familiarity with legal culture. Another factor is the ineffectiveness (I would say corruption) of the performance of our judicial and law enforcement authorities, which give rise to distrust. For example, to this day people think that the main role of lawyers is to come to an understanding with the judge or prosecutor.

It is also true, however, that the situation in the human rights sphere in Ukraine has begun to improve. Proof of this is the increase in the number of cases referred to the courts. Having become disillusioned in the Ukrainian justice system, Ukrainians often turn for help to the European Court of Human Rights, where they win their cases against the Ukrainian state. The very fact that they can do this already means a lot. If you are really determined to defend your rights, you can. For Ukraine to become a rule-of-law country, changes have to start by establishing order in the activity of the higher bodies of state power, particularly in the Verkhovna Rada, which would allow for the completion of the process of constitutional reform and the continuation of reforms in the legal sphere and the court system.

Rinat MUKHAMEDZHANOV, co-chairman of the Dnipropetrovsk Oblast Human Rights Protection Center:

Everything depends on whose rights are being discussed. My impression is that defending the rights of ordinary Ukrainians is becoming increasingly difficult. Courts present the most depressing sight. If you win a case in a court of first instance, the ruling will be overturned by a court of appeals, so you could be walking around in circles until your dying day. If the other side has power or money, there is no way to win a case. The European Court is small consolation, but having your case adjudicated there is easier said than done. To cope with its red tape when filing a claim, you have to hire an experienced lawyer. There have been several cases in our oblast. I remember one case where the claimant succeeded in overcoming all obstacles and receiving a positive ruling. But then they “forgot” to summon him to the appellate hearing. The Ukrainian side tried to produce some kind of subpoena, but the European Court ruled in favor of that ordinary Ukrainian claimant and awarded him 2,000 euros for moral damages. All this was the result of that individual’s singular perseverance.

I believe that the real problem is the fact that anyone can become a judge. People pay to be accepted to law schools and to receive diplomas, and as often they pay to be appointed judges. I know of one case where a qualified lawyer could not work as a judge simply because he couldn’t afford the required sum. Furthermore, judges from the Soviet period have one fundamental shortcoming: it is in their blood, in their genes to submit to their bosses. There is supposed to be an attestation of judges, but it is carried out by the same judges, although I think that people who represent the general public, particularly members of human rights organization, should attend and have the right to speak.

In fact, a closer look at our constitution shows that, while the power belongs to the people, judges are appointed by the president and parliament, and these posts are life- tenure ones. In a normal European country the constitution is a mechanism designed to protect civil society from the arbitrary rule of bureaucrats and the state. In Ukraine it is the other way around. Our constitution actually asserts the rights of the bureaucracy and the state. It’s just that Ukrainians don’t give this any thought, so our constitution is written and rewritten not for the good of the people but the way the bureaucrats want it.

Valerii DANYLEVSKY, political scientist, Donetsk:

The Declaration of Human Rights, the Constitution of Ukraine — which has been hailed as one of the most professional and democratic — and other laws were adopted in our country after a difficult process, but they were all carefully prepared. Therefore, the main problem in Ukraine is not the lack of necessary laws but the implementation of those that already exist. The biggest problem is nonobservance of laws, regulations, and resolutions. This is a national problem that is closely connected with our Ukrainian — or even Slavic — mentality.

Therefore, it is possible to state that the Declaration of Human Rights remains declarative, on the level of a protocol of intentions, nothing more. It is not that Ukrainians are unable to protect their rights. The point is that their rights are ignored so often that it is not always possible to record all cases. We know how our citizens’ rights are ignored on all bureaucratic levels, ranging from housing to top-level executive authorities. It is especially difficult for our fellow citizens to seek justice from law enforcement agencies and the courts. In other words, the Ukrainian man in the street has nowhere to go to have his lawful rights and interests protected in today’s Ukraine. Those who have money have bigger rights and are always on the winning side.

It is true that Ukraine is still regarded as a progressive country compared to what’s happening in Russia, including the human rights issue. We look better than other post-Soviet republics in other respects, but we don’t have a state ruled by law compared to European countries. Add here the problem of skinheads, unsolved murder cases, the crime rate, and coal miners dying in pits with the owners of these mining companies getting off scot-free. All this is proof that our country is still in a transition phase in regard to these issues and partially in regard to human rights. This declaration is very important for us, but the sad fact remains that very little is being done in Ukraine to establish a state ruled by law and to implement the intentions outlined in this declaration.