Inadequate arsenal of protection

On the eve of Human Rights Day on 10 December Roman Romanov, Director of the Rule of Law Programme for the International Renaissance Foundation talked about progress and obstacles to affirming human rights values

How, in your view, does the human rights situation in Ukraine compare with that of our closest neighbours?

We’re accustomed to priding ourselves that we’re the most democratic. If you assess the situation from the point of view of fundamental freedoms, then we have achieved a certain level of freedom and democracy acceptable for a post-Soviet society. If, however, you look at the exercising of particular rights, then I wouldn’t say that we show considerable progress compared with our neighbours, for example, Russia.

Without a doubt the situation with freedom of expression or peaceful gatherings is significantly better in Ukraine. Yet the right to a fair trial is better guaranteed in Russia. There they have trial by jury whereas we have provisions regarding this written into the Constitution, but nobody has even thought of implementing such a model. They have magistrates, and the percentages of court rulings enforced is much higher than here. Moldova has managed to carry out several systemic reforms which we have only been talking about recently. For example, a national preventive mechanism against torture has been created in that country, they’ve introduced a model which is considered progressive. A reform is taking place in Moldova of the Prosecutor’s Office, whereas here that issue is still only being discussed with great difficulty.  In Bulgaria, Lithuania and Georgia systems of legal aid have been created while here that’s terra incognita.

… Mechanisms for protecting rights are not yet developed, and there are too few of them. In the western legal system people can use a much greater arsenal of means than in Ukraine. For example, defence of constitutional rights at present is fairly restricted because possibility of making a direct submission is extremely limited. The idea that the Human Rights Ombudsperson could be such a go-between and at the same time filter has not gained credence since there have only, unfortunately, been isolated cases when the Ombudsperson has fulfilled this function.  One needs to think about how to make protection of constitutional rights through legal means accessible to people without go-betweens who in my opinion do not carry out this role entirely adequately.

I think that the biggest problems in human rights protection are linked with the fact that people don’t really believe that they themselves are capable of doing a lot. In fact the potential of our civic society is much greater than can presently be seen and felt.

The traditional question: what is to be done?

I think that the greatest hopes are connected with the influence of civic society, as well as of our international partners who see only one way towards any integration in structures attractive to Ukraine, that being via legal reforms, the affirmation of the rule of law and observance of human rights. There is no other way. Therefore any person who speaks of European integration should bear in mind that this is 1) judicial reform; 2) new criminal procedure legislation which moves totally away from the inquisition model of criminal proceedings and should safeguard equal rights to all parties; 3) reform of the Prosecutor’s Office which can no longer continue to be based on Soviet surveillance and 4) effective law enforcement bodies accountable to society.

            However a fair number of politicians are used to speaking about European integration in Strasbourg or Brussels, and then return to Kyiv and issue direct instructions as to what a judge should do, how the Prosecutor should act, etc.  It’s convenient, quick, sometimes effective, but a dead end from the point of Ukraine’s future prospects.

Is there a thread you can pull which will set the process in motion?

No, it doesn’t work like that. You can speak of evolution, in the first instance of society. Swift decisions carry one prospect – a folding of any democratic transformations in the country and coming to power of authoritarian figures. It is not so long since we moved from such a system and I don’t believe that the majority of Ukrainians greatly want to return to it. Although I understand that the lack of effective governance over many years is creating a certain public demand.

            I believe we need not authoritarian methods, but consistent State policy. It needs to be based on democratic traditions and on certain procedures with the participation of members of the public, not simply on arbitrary decisions, albeit of very intelligent people. Usually professionals make less mistakes than amateurs but their mistakes carry a much higher price. It’s better therefore to have decisions which may be mistaken, but are joint – of both professionals and amateurs (I mean all citizens of our country).

            A lot is said about the lack of legal awareness of members of the public. Is this not the source of ills?

I’m more bothered by the level of legal culture of those people in power. It is absolutely unacceptable that the President should see fit to dissolve a court which is examining a case in which he is effectively a party. It is absolutely unacceptable when the Head of the Government publicly states that a law which has come into effect will not be adhered to. The Supreme Court can consider itself allowed to refute conclusions confirmed by a judgment of the European Court of Human Rights, while parliament deems it possible to change provisions of the Constitution in an unconstitutional manner. These are things which give the public signals that the legal system in the country can be disregarded, overridden.

So much time and effort has been spent on discussing issues linked with the right to a fair trial and prevention of torture. Why is no progress visible?

This is a typical situation in Ukraine where everybody is “for”, nobody against, but nothing happens. There is no progress on a number of issues. There are huge systemic problems which cannot be resolved swiftly, yet in order to be resolved there needs to be a strong wish and the agreement of many institutions and people who want change in the country. Unfortunately it all happens differently here, political competition takes over and private interests prevail.

Here, if anyone takes on commitments before the Council of Europe or our other international partners, it seems like it’s a question of personal responsibility of a particularly public official or State body.

The right to a fair trial cannot be viewed out of the context of judicial reform which all support but which is goodness knows where. The same applies to prevention of torture. That is, international commitments are made, for example, Ukraine ratified the Optional Protocol to the UN Convention against Torture, the Ombudsperson, the Ministry of Justice and Verkhovna Rada are all for its implementation. However the creation of a national preventive mechanism against torture has not even begun and no model has been stipulated. There is no draft law in parliament which would help to resolve this problem.

Most regrettably such issues which should be of interest to State institutions constantly remain outside the area of priorities. This is, I believe, the greatest problem: the activities of State bodies and State policy itself are not subordinated to the exercise of human rights.

Is there a critical mass of people in the country who accept and understand human rights?

What is a critical mass in this instance? The people who went out in 1968 onto Red Square in Moscow in protest against Soviet forces going into Czechoslovakia were to some degree a critical mass from the point of view of the historical process. Now we know those people and value their civic position. Yet they were not a critical mass capable of influencing decisions when the tanks went into Prague. Defence of human rights is not like the military battles of past times where numerical advantage was the guarantor of success. Here individuals can break down a system based on coercion and violence. We see the same thing now. The increased activeness of people prepared to defend their civic rights is, from the historical point of view, impressive.  There is, after all, development in this area. It is unsystematic, chaotic, for many remaining unnoticed, however I believe that it is a vector aimed forward.

The interview was conducted by Nina Klymovska  (very slightly abridged)