Memorandum About drafting a law on making amendments and additions to the Chapter II of the current Constitution of Ukraine prepared by the Working Group of the Constitutional Commission as of the 15 of July 2015.
01.08.15 | Vsevolod Rechytskyi
Information about the author: Vsevolod Rechytskyi is a constitutional expert of Kharkiv Human Rights Protection Group, a representative of Ukrainian Helsinki Human Rights Union (UHHRU) and Kharkiv Human Rights Protection Group (KHPG) in the Constitutional Commission.
The Working Group on rights, freedoms and duties of man and citizen in two months had 36 protocol sessions. The Working Group included: ALEKSEEV Igor Sergiyovich, BAIMURATOV Mikhailo Oleksandrovich, BATANOV Oleksandr Vasilyovich, BUROMENSKIY Mikhailo Vsevolodovich, BOUTKEVYCH Volodymyr Grygorovich, VASILENKO Volodymyr Andriyovich, VOLKOV Oleksandr Fedorovich, GOLOVATIY Sergiy Petrovich, KOZYUBRA Mikola Ivanovich, KRAVCHUK Volodymyr Mikolayovich, KUZNETSOVA Nataliya Semenivna, MARTSELYAK Oleg Volodymyrovich, MELESHEVYCH Andriy Anatoliyovich, NIMCHENKO Vasil Ivanovich, RECHYTSKYI Vsevolod Volodymyrovich, SYROYID Oksana Ivanivna, YUSHCHENKO Andriy Fedorovich.
In addition, the Working Group was assisted by the international observers: ARUTYUNYAN Armen Shurayevich, Robert BOER, VLASYUK Iryna Valentynivna, Alan DELCAMP, Christos JAKOMOPULOS, KOZLOV Andriy Georgiyovich, PISKUN Oleksandr Illych, Hanna SUKHOTSKA, Hannes SCHREIBER.
The Working Group was led by V. Boutkevych. The most active members of the Working Group were V. Boutkevych, O. Volkov, A. Meleshevych, V. Rechitskiy, M. Buromenskiy, O. Martselyak, V. Kravchuk. No more than 2-3 sessions of the group were attended by such members as S. Golovatiy, M. Kozyubra, V. Nimchenko. V. Yushchenko, O. Syroyid, N. Kuznetsova, V. Vasilenko were never present. Instead there has been the active participation of public representatives (Natalia Petrova should be especially distinguished), Council of Churches of Ukraine and youth activists.
The Group worked in open way at Kyiv-Mohyla Academy with the representatives of the media, foreign observers, the representatives of human rights community, etc. The Working Group has also made a work visit to the western regions of Ukraine, where in Rivne, Ivano-Frankivsk, Lviv and Uzhgorod were held the round table discussions with the representatives of law universities, lawyers, representatives of the state executive bodies, court, prosecution, the lawyer union, the student community etc. Round table discussions were held in the working way of discussions and debates of the normative material produced by the Working Group, that should be specially emphasized in view of the practice of simulating the socially useful activity that is common in Ukraine. Subsequently the participants of the discussions and meetings have sent by e-mail to the secretary of the Working Group O. Panteleeva a significant amount of additional materials and legislative texts. In general, both organizational and purely professional contribution to the activity of the Working Group from the part of its Chairman Professor Volodymyr Boutkevych is hard to overestimate. The personal performance, the transparency in the work and openness to criticism from the part of that person deserve the highest rating.
Formally, the work of the Group was started in the second half of May and formally finished on 15 of July 2015, after which the project document was officially closed for amendments and additions. Without exception, all Working Group meetings were recorded on digital media. In the presence of foreign experts all sessions (debate, critical speeches etc.) have been translated in English in synchronous mode.
The aim of practical efforts of the Working Group
The purpose of processing of Chapter II of the current Constitution of Ukraine is to bring it in line with the more precise documents such as the Universal Declaration of Human Rights of 1948, European Convention for Protection of Human Rights and Fundamental Freedoms of 1950, The Charter of Fundamental Rights of the European Union of 2000, relevant to the protection of human rights and liberties case-laws of ECHR, a number of recommendations of the Commission of Council of Europe "Democracy through Law" ("Venice Commission), " etc. As useful methodological developments of the past the Working Group has used such documents as “Final Proposal” of the Working Group on Human Rights of the Constitutional Assembly of Ukraine on making amendments to the Chapter II of the Constitution of Ukraine in 2013, “Preliminary proposals of the Working Group of the Constitutional Assembly in Ukraine of the rights, freedoms and duties of man and citizen” of 2013, preliminary written proposals of individual members of the Working Group and consultants such as V. Boutkevych, S. Golovatiy, M. Kozyubra, O. Martselyak, V. Nimchenko, O. Syroyid, V. Rechitskiy, A. Kozlov.
In the agreement with all members of the Working Group professor V. Boutkevych has decided to change the title of Chapter II of the current Constitution of Ukraine from "Human and citizen’s rights, freedoms and duties" to "Human Rights". Furthermore, by common agreement it was decided to form the structure of the revised Chapter II on human rights on the layout of human rights in the Charter of Fundamental Rights of the European Union of 2000. As a result, there was developed the following sequence (the titles are temporary and conditional) of the updated constitutional articles:
1. Article 21. Human dignity
2. Article 22. The right to the free development of personality
3. Article 23. The right to life
4. Article 24. Prohibition of torture
5. Article 25. Prohibition of slavery and forced labor
6. Article 26. The right to liberty and personal Inviolability
7. Article 27. The right to respect for private and family right
8. Article 28. The right to marriage
9. Article 29. The children’s rights
10. Article 30. The freedom of thought, conscience and religion
11. Article 31. The freedom of expression
12. Article 32. The freedom of assembly and association
13. Article 33. The right to participate in managing the state affairs
14. Article 34. The right to education
15. Article 35. The right to property
16. Article 36. On cultural heritage
17. Article 37. The right to dwelling
18. Article 38. The right to the adequate standard of living
19. Article 39. On citizenship
20. Article 40. The right to asylum
21. Article 41. Equal constitutional rights and equality before the law
22. Article 42. Prohibition of discrimination
23. Article 43. Equal rights for women and men
24. Article 44. The right to social protection
25. Article 45. The right to professional activity and the right to work
26. Article 46. The right to strike
27. Article 47. The right to business
28. Article 48. The protection of consumer rights
29. Article 49. The right to health care
30. Article 50. The right to a safe environment
31. Article 51. The right to appeal
32. Article 52. The freedom of movement and residence
33. Article 53. The Inalienability and inviolability of human rights
34. Article 54. The right to a fair trial
35. Article 55. Presumption of innocence
36. Article 56. Non-execution of the criminal rulings and orders
37. Article 57. The right not to be re-sentenced
38. Article 58. Refusal to testify concerning themselves. The rights of the convicted persons.
39. Article 59. Compensation for damages at state expense
40. Article 60. The right to know his or her rights and duties
41. Article 61. Irreversibility in the time of laws
42. Article 62. The right to legal assistance
43. Article 63. The unlimited rights and freedoms
44. Article 64. The defense of the Fatherland
45. Article 65. The obligation of everyone not to cause harm
46. Article 66. The obligation to pay taxes
47. Article 67. Strict observance of the Constitution and laws
48. Article 68. Prohibition of abuse of law
The novels (the completely new articles) in this list were the articles about human dignity and the right to a fair trial. As regulatory proposals which were included as a necessary addition to the main text the representative from UHHRU and KhPG has formulated and proposed two new constitutional rights: the right to proper governance and the right to access to public information.
Specific textual changes
As for the specific textual changes, they are reduced mainly to the following. Article 21 of the current Constitution from the article about the equality of all people “in their dignity and rights” has turned into a big article consisting of three parts, each of which was devoted exclusively to human dignity. In particular, it referred to the impact of human dignity on the determination of the subjective constitutional rights, and that “each person has the right to recognition of its uniqueness, value and significance for itself and for society”. This approach has reflected the well-known Hegelian idea of a constant struggle of every conscious individual for recognition and prestige.
To the Article 22 of the current Constitution was added a meaningful statement that legal persons also have basic rights laid out in Chapter II of the Constitution of Ukraine, unless it is contrary to the nature of the relevant right. In turn, Article 24 of the current Constitution prohibiting discrimination has been brought into fuller compliance with the European standards of understanding of the subjective rights. In the draft of the amendments it includes more specifically named features on which the restrictions are not permitted. Unfortunately, such features as gender identity, place of residence or sexual orientation were not reflected in the updated text of the regulations. These features are placed in an alternative version of the article on the prohibition of the discrimination and will be offered on behalf of the representative of UHHRU and KhPG as an official addition.
For the first time the Article 40 of the draft from the Working Group included the prohibition of collective expulsion of foreigners. In addition, the working group has introduced a statement that “no one may be expelled or extradited to a state in which the death penalty is not abolished or there is a real danger that a person may be subjected to torture or other kinds of the treatment or punishment that is inhuman or denigrates the human dignity”.
The Working Group has formulated and introduced to the draft text the full right to freedom and personal inviolability. The total volume of this right has almost tripled. The changes have also occurred to the period provided by the Constitution for temporary arrest or detention of a person without a court sanction (from 72 to 48 hours). On the other hand, among the possible grounds for arrest or detention has appeared a new ground: “preventing the commission of terrorist acts on reasonable suspicion”. Unfortunately, the prohibition of arrest (detention) on the neglect of duty has been reflected only in the alternative version of this article, proposed by the representative from KhPG and UHHRU. This model of the article later also joined the addition. Also in the addition was included a proposal to consolidate the individual’s right to anonymity as a user of the Internet and other similar networks, provided that the person is not breaking the law.
The freedom of expression in the project of amendments was developed by the Working Group in an almost mirror accordance with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. Thus the working group came to the conclusion about the necessity to remove from the list of possible sites for state licensing the cinema enterprises. On the other hand the Working Group has agreed by a majority of votes to add one more (compared to the ones consolidated in the current Constitution of Ukraine) ground for the imposition of lawful restrictions on the implementation of freedom of expression.
Unfortunately, at the same time the Working Group refused to consolidate in the draft text of the changes the statement from the Charter of Fundamental Rights of the European Union of 2000, that freedom of expression in the fields of literature, art and science is free of constraints. This proposal found a place only in the additional (alternative) version of the article on freedom of speech, proposed by the representative of KhPG and UHHRU.
The freedom of thought, conscience and religion (Article 32 of the draft) was presented by the Working Group almost in the full compliance with the requirements of the European Convention on Human Rights and Fundamental Freedoms of 1950. On the other hand, the thesis of the current Constitution that everyone has the right “to profess or not to profess any religion” was not supported by the majority of the Working Group and consequently was not adequately reflected in the draft. Similarly, the Working Group has rejected the demand of the civic activists to add to the draft the norms about the right of military personnel (mostly privates) to refuse to participate in military worship, if it contradicts their personal beliefs. According to the Working Group, such right can be easily derived by systematic interpretation of the Chapter II of the Constitution on rights and freedoms. The statement proposed by the activists was later reflected in the draft of the amendments to the article on freedom of conscience from the representative of KhPG and UHHRU and was later included in the official addition.
As for the article on the freedom of assembly and association (Article 32 of the draft), it was enriched with the novel banning the formation of the parties that profess Nazi, fascist or communist ideology. In the wording of the representative of KhPG and UHHRU this requirement was formulated wider: “The formation of political parties and other public associations in Ukraine is free, except for those which in their programs or activities profess Nazi, fascist or communist ideology or any other totalitarian ideology that denies democracy or which in their activities do not follow the democratic principles”.
Noticeably problematic for the Working Group was developing a new version of article on the right to peacefully enjoy their property (possessions). The Working Group has refused to add to their draft the norm that the forced seizure of property was possible only as an exception and its full compensation should not be at balance, but at market prices. Furthermore, the Working Group did not support the proposal of its member and a judge of the Supreme Court of Ukraine, O. Volkov, that the laws governing the forced seizure of property should be decided by no less than two thirds of the parliament of Ukraine. The members of the Working Group didn’t want to limit the norm on the possibility of judicial confiscation of the property acquired not only illegally, but also legally, which was stipulated by the Constitution of Ukraine and its criminal law. As it is known, the laws of the Western European countries provide for the seizure of property only if those objects were acquired in illegal (criminal) way. Therefore such kind of proposal, including the aforementioned proposal of judge O. Volkov, ended up in the alternative version of the Article from the representative of KhPG and UHHRU and was classified as an official addition.
The Working Group has greatly expanded the edition of the individual right to business. As an important warranty of this right the Working Group has recorded a statement that “foreign investor is guaranteed the export of profit and invested capital”. As a significant improvement of the situation with legal guarantees of entrepreneurship should be considered a novel of the Working Group, under which everyone has “the right to business without having to obtain the approval of the government and the local authorities, unless otherwise provided by law”. On the other hand, the Working Group did not support the proposal of the representative of KhPG and UHHRU to consolidate in the draft of the article the statement that “the state supports and protects <…> the freedom of contract, guarantees the free movement of persons, goods, services and capital “. This novel (also supported by prominent representatives of the scientific community of Ukraine) joined the official addition as an alternative version of the third part of the article on the freedom of business.
Improving the right to strike, the members of the Working Group by a majority of votes of those present rejected the proposal of civic activists to add to the draft of changes the right of “every person” to strike (in fact, the right to an individual strike) and the right of workers to take part in solidarity strikes. They also did not support the activist’s proposal for the legalization of strikes with the political reasons or demands. All these novels potentially possible and not devoid of significance have passed to the official addition. Meanwhile, Ukraine has long been in a situation when the strike is used by people to exercise the political pressure on the government. In such circumstances the Ukrainian political strike has become the alleged national substitute for the people’s right to democratic uprising. In particular, the political nationwide strike was declared during the Orange Revolution by the candidate for President of Ukraine V. Yushchenko on behalf of the Committee for National Salvation.
Quite dramatic was the Working Group’s development of a new edition of the constitutional right to education. The Working Group by a majority of those present has refused to add to the draft the norm that mandatory education should address only "incomplete secondary education" (9 years). Meanwhile the President of the Academy of Pedagogical Sciences of Ukraine and former Education Minister of Ukraine V. Kremen at one time urged the Working Group on Human Rights of the Constitutional Assembly of Ukraine to make only the incomplete secondary education mandatory.
In addition, the Working Group has refused to add to its draft the norm that in Ukraine the academic freedom is recognized and guaranteed, which would be followed with the right of the universities to the organizational, material and financial autonomy. Strange as it may seem, but the prohibition of the possibility of imposing restrictions on the scope of the professional use of freedom of speech - literature, art and science was strongly opposed by none other than the Academy of Higher School of Ukraine. Such regulatory defined prohibition was outlined only in an alternative version of the draft of that article by the representative of KhPG and UHHRU and entered into the official addition.
As for the right to health care, in the project of the Working Group it became much more “modest” in comparison with the current Constitution of Ukraine. According to the draft of the amendments of the Working Group the free medical assistance from now on will be available only in emergency situations and in minimal scale. The rest of the possibilities should be absorbed by insurance medicine (public and private). Therefore the proposals from the representative of KhPG and UHHRU included the following (as the third part of the following article): “Anyone who needs the examination or treatment but is unable to pay its cost or purchase an insurance policy has the right to preferential credit or other assistance from the state or local authorities. The guaranteed minimum of free medical services received at expense of state or local authorities is established by law “.
In turn, the right to marry and found a family in the version proposed by the Working Group is no longer tied to the existing constitutional definition of marriage as the union of a woman and a man. Instead the Working Group has proposed and included in the draft the norm that “the right to marry and found a family is guaranteed by the law”.
Most regrettably, the Working Group has refused to include in the text of its draft two new rights, proposed by the representative of KhPG and UHHRU: the right to proper governance and the right to access to the public information. Meanwhile, as it follows from the content of those rights, they are relevant, fully European in spirit and content and are required by the current population of Ukraine. Two planned editions of the rights (included in the addition) are as follows:
The right to proper governance:
1. “Everyone has the right to impartial, competent and fair hearing within a reasonable time by the state authorities, local bodies of self-government and other governmental bodies. The implementation of this right involves at least:
1) The right of everyone to be accepted by an authorized person or the relevant competent authority and to express their opinion on their own case, to provide the documents and give arguments in their favor;
2) The right of everyone to defend their vision of the current situation and provide the explanations before a competent authority makes the decisions that could lead to the consequences which are unfavorable or adverse to the person;
3) The right of everyone to have access to their business-related documents, materials or official correspondence subject to the legal requirements for the protection of classified information;
4) The duty of state authorities, local authorities and other government bodies to explain in detail the reasons and motives for the decisions taken or the acts of law.
2. Everyone has the right to file individual or collective appeals, to personally appeal to the state authorities, local self-government and other government entities that are obliged to consider the petitions and to provide a substantiated reply within a reasonable time.
3. Everyone has the right to compensation from the state or local authorities for material and moral damage inflicted by the unlawful decisions, action or inaction of state authorities, local self-governments, their officials and officers during the exercise of their powers”.
The right to access to the public information.
1. “Everyone has the right to access to official documents and other information about the activities of state and local governments, other government entities. The implementation of this right provides an opportunity for filing an information request or obtaining the information in other ways, for the inquirer to choose.
2. The state authorities and local self-government bodies, their officials and officers and other government entities are obliged to provide the adequate data on their information requests and regularly publish the information about their activities.
3. The implementation of this right may be subject to the limitations which are provided by law and are necessary in a democratic society in the interests of national security, protection of the reputation or rights of other persons, for preventing the disclosure of the classified information or for maintaining the impartiality of the court provided that harm from disclosure of such information outweighs the public interest in obtaining it”.
Summing up, it should be noted that the Working Group has significantly approximated the conceptual apparatus – legal semantics and stylistics of the draft – to the European (and international) legal standards. At the same time it was surprisingly conservative if the situation should be measured on the scale of now existing general civilizational requirements. Indeed, as noted by community activists, in the project remained such ground for restrictions on implementing the rights and freedoms as the infamous argument of “morality”. Overall, the Working Group did not dare to reduce in its draft of the Chapter II the number of grounds for possible restrictions on the implementation of human rights and freedoms that were provided by the European (international) legislation on human rights in the first half of the XX century. . We will know in the near future whether these draft constitutional amendments, developed under the direction of prominent specialist Volodymyr Butkevych, survive Ukraine’s parliamentary procedure
Almost in the conclusion most of the Working Group decided to retain in the draft of amendments in the Chapter II the right of everyone “to a standard of living sufficient for himself or herself and his or her family” – this downright Fata Morgana of the national constitutionalism that at the same time showed the insuperability of the principle of economic redistribution in the conscience of the Ukrainian legal establishment. It seems that the adequate evaluation of this passion will be left to the descendants.
One way or another, but so far it can be stated that such indisputable values of organic constitutionalism as the right of the people to the democratic uprising; the right to arms to protect themselves and their families in case of mortal danger; the right to access to the public information; the freedom from the restrictions in the professional fields of literature, art and science; the academic freedom and autonomy of universities; the right to the proper governance; the right to political strike; the right to same-sex marriage; the right to freely accomplish their own destiny ended up outside of the constitutional drafting shell.
Should such a restrictive approach be considered strategic, far-reaching? It is hard to believe. Either way, human rights and freedoms are not artificially created by the “authorized” person; they grow up from the nature of thing. A serious Ukrainian pursuing in this direction can only be welcomed.
18 of July 2015