We have the opportunity to defend our rights
The new possibilities for defending human rights which have emerged with the coming into force of the Code of Administrative Justice and the Law of Ukraine “On enforcing the judgments and applying case law of the European Court of Human Rights” were the subject of discussion at a seminar held in Kyiv from 13-14 July. The seminar was organized by the Kharkiv Human Rights Protection Group with the support of the Democracy Fund of the US Embassy in Kyiv.
The Constitution of Ukraine states that “Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State” (Article 3). It stipulates that “Human and citizens rights and freedoms are protected by the court (Article 55). Two crucial legislative acts have recently been passed which set out an efficient mechanism for defending such rights.
The Code of Administrative Justice of Ukraine (CAJU) came into force in September 2005, while the Law of Ukraine “On enforcing the judgments and applying case law of the European Court of Human Rights” entered into effect in April 2006.
In the area of public legal relations CAJU is aimed at protecting the rights, freedoms and interests of both individuals and legal entities from violations committed by state authorities or bodies of local self-government, their officials or functionaries, as well as other parties involved in carrying out their official management functions.. Code also makes it possible to lodge complaints against the illegal actions (in action) of the above-mentioned authorities and their officials.
The above-mentioned Law declares the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights to be key sources of law in the national legal system and is aimed at implementing European standards on human rights into the Ukrainian legal system and administrative practice.
The seminar participants, representing 12 civic human rights organizations from different regions of Ukraine, discussed the opportunities presented by the CAJU and the Law “On enforcing the judgments and applying case law of the European Court of Human Rights”. They drew up plans for join actions to appeal against present normative legal acts which impinge on human rights, and also had training sessions on actual ways of applying the Code of Administrative Justice.
Valeriya Lutkovska, former Ukrainian Government representative at the European Court of Human Rights, pointed out the enormous importance for Ukraine of the implementation of the norm in Article 17 of the Law on enforcing the judgments and applying case law of the European Court of Human Rights, with this stating that Ukrainian “courts shall when considering cases apply the European Convention and the case law of the European Court as sources of law”. Ms Lutkovska believes that appeals to local courts on the basis of judgments of the European Court of Human Rights will enhance the legal culture of Ukrainian judges. Moreover the mandatory expert analysis established by the new Law of any draft normative acts to check their conformity with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as periodic monitoring of current legislation in accordance with the evolving case law of the European Court should bring Ukrainian legislation closer to European standards in the area of human rights.
“Ideally, if Ukrainian judges when handing down judgment apply the European Convention, then there will cease to be a need for our fellow citizens to approach the European Court”, Valeriya Lutkovska stressed.
However at the present time most judges and state officials (the future respondents) are not familiar with the case law of the European Court, and this problem can only be resolved through the joint efforts of human rights groups, the judiciary and interested state bodies.
The Co-Chair of KHPG, Yevhen Zakharov in his address noted that Article 8 of the Code of Administrative Justice contains a norm stating that the administrative “court shall apply the principle of the rule of law while taking into account the case law of the European Court of Human Rights”. A new project to be coordinated by the Kharkiv Human Rights Protection Group will be aimed at gaining experience in the practical implementation of the new opportunities for protecting human rights which these two progressive normative legal acts now having come into force present. Within the framework of this project representatives of human rights organizations will be sending state authorities and bodies of local self-government formal requests for information asking about the observance of human rights in various regions of Ukraine. In the event of an unlawful refusal to provide this information, court administrative suits will be lodged against the institutions which have thus infringed legislation. It is also planned to lodge complaints against certain normative acts which infringe the rights and legitimate interests of Ukrainian citizens.
As a result of annual monitoring of the situation with human rights and fundamental freedoms, the next nationwide report “Human rights in Ukraine – 2006” will be compiled, with the participation of all the non-governmental organizations taking part in the seminar.