21.05.2000 | A.Prima, Kharkov

Land and freedom


Thinking about the prospects of development of such social institute as human rights, one must analyze the problems of the legislation. State laws are a juridical guarantor of realizing rights and freedoms of citizens. The historical experience of democratic legislation on the territory of the former Russian Empire is negligible since it counts only 46 years (from 1864 to 1917), whereas in Western Europe such legislation started in 1215 (the Magna Charta).

Legislation produces two types of laws. The first type adequately reflects the existing relations and serves to ensure the protection of individuals. Such laws are obeyed voluntarily by the vast majority of the law-abiding population, because to obey the law serves one. s interests. This kind of laws is protected by the state (which defines the violation of such laws as crime), church (which calls it sin) and morals (which call it evil).

A law of another kind does not serve interests of individuals. it serves the interests of a state and is obeyed by individuals in such a measure which can be achieved by the state control. Such, for example, are custom rules.

The modern stage of legislation in out state is difficult because our state has a little experience in creating democratic laws and has no state ideology (without which any state cannot function), and our people is not accustomed and willing to obey the laws of the government which they dislike.

The legislation affects human rights, especially the most important one.

One of drafts of the Constitution of Ukraine contained a statement that the private property is the main guarantor of freedom. Unfortunately, this statement did not enter the operating Constitution. Although Part 5, Article 41. The right of private property is inviolable., at the first glance, satisfies the world democratic standards, its implementation is lagging behind. Especially, it is true concerning the most important phenomenon. the right of private property for land. The world juridical practice developed a fundamental concept that to be a proprietor is to own, to use and to manage the property. As to the property for land, the Ukrainian citizens cannot manage land since they have no right to alienate land plots (to sell, to gift and to mortgage). The Land Code of Ukraine declares:. Citizens acquire the property right for land plots in cases of purchasing, receiving a gift and exchange. (Part 2, Article 6). However, the operation of this Article is suspended, thus the right of property is truncated.

One can understand fears of the legislative power, if they give to citizens the right to sell land. There were historical precedents. For example, during the first half of this century the land in Palestine was purchased from local sheiks by American Jews and later became the property of Israel.

This does not threaten Ukraine. The Constitution of Ukraine reads that land, bowels of the earth, atmospheric air, water and other natural resources situated on, under and above the territory of Ukraine, national resources of her continental shelf and maritime economic zone are objects of the property right of the Ukrainian people (Part 1, Article 13); the Ukrainian law. On property. stipulates the same (Part 1, Article1); the Land Code of Ukraine stipulates that all the land of Ukraine is owned by the state, except the land passed to the collective or private property (Part 1, Article 4). There arises the question: who owns the land. people or state?

What is stipulated by the Constitution is difficult to change. According to Article 156, Part 1, the first part of the Constitution of Ukraine may be changed, if the proposition of change is presented to the Supreme Rada by the President of Ukraine or by two thirds of the Constitutional composition of the Supreme Rada and later adopted by at least two thirds of the Constitutional composition of the Supreme Rada and confirmed by the all-Ukrainian referendum appointed by the President of Ukraine.

So, after all, the owner of the land is the Ukrainian people, and it is the prerogative of the people to solve finally the question of the property for land, one of the main human rights.

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