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II. HOW THE COMMISSIONER FOR HUMAN RIGHTS EXERCISES PARLIAMENTARY CONTROL TO BRING UKRAINE’S LEGISLATION INTO CONFORMITY WITH INTERNATIONAL HUMAN RIGHTS STANDARDS

Ukraine is a party to six universal UN conventions on human rights. For these conventions special treaty bodies have been set up, to which the states parties’ are bound to submit regular reports on their efforts to implement the provisions of the international instruments. The convention bodies, elected from among the states parties, review the reports, evaluate how effectively the commitments have been met, and offer their recommendations.

These recommendations draw the attention of the states parties to the convention provisions they failed to comply with. Through the UN Economic and Social Council the reports and the recommendations of the convention body are forwarded to the UN General Assembly and published. The states parties are duty-bound to rectify the violated convention provisions. If the states parties ignore the recommendations, they are subjected to severe criticism in the UN bodies, specifically in the General Assembly.

As a party to these universal conventions, Ukraine has to submit its reports to the following:

Committee on the Elimination of Racial Discrimination (International Convention on the Elimination of All Forms of Racial Discrimination);

Committee on Economic, Social and Cultural Rights (International Covenant on Economic, Social and Cultural Rights);

Human Rights Committee (International Covenant on Civil and Political Rights);

Committee on Elimination of Discrimination Against Women (Convention on the Elimination of All Forms of Discrimination Against Women);

Committee Against Torture (UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment);

Committee on the Rights of the Child ( Convention on the Rights of the Child).

According to Article 19 of the Law of Ukraine On the Ukrainian Parliament Commissioner for Human Rights, the Commissioner takes part in drafting the human rights reports that are submitted to the convention bodies. In the period from 1994 to 1999 Ukraine submitted to the respective UN Committees the following periodical reports:

· to the Committee on the Rights of the Child the fourth report was submitted in 1994 and reviewed in 1995; in 1999 the fifth report was submitted;

· to the Committee on Economic, Social and Cultural Rights the third report was submitted in 1994 and reviewed in 1995; in September 1999 the fourth report was submitted;

· to the Committee Against Torture the third report was submitted in 1996 and reviewed in April 1997; the next report had to be submitted in June 2000;

· to the Committee on the Elimination of Racial Discrimination the joint thirteenths and fourteenth reports were submitted in 1997 and reviewed in 1998; the next joint fifteenth and sixteenth reports had to be submitted in early 2001 (by agreement with the Committee);

· to the Committee on the Rights of the Child the first periodical report was submitted in 1994 and reviewed in 1995; the next report was submitted in January 1999;

· to the Committee on Elimination of Discrimination Against Women the third report was submitted in 1994 and reviewed in June 1995; the joint fourth and fifth reports were submitted in January 1999.

In conformity with the Regulation on the Ministry of Foreign Affairs of Ukraine, endorsed by Presidential Decree of April 3, 1999, the Ministry of Foreign Affairs exercises general supervision over Ukraine’s performance of international treaties, prepares and submits periodical reports to the treaty bodies in good time, offers recommendations as to the conformity of the reports’ texts with the requirements of these bodies, drafts within its competence individual chapters of the said reports, and as part of Ukraine’s delegation stands up for the interests of the state during the review of the reports at the sessions of the treaty bodies.

After the adoption of the Ukrainian Constitution the international treaty bodies reviewed two periodical reports of Ukraine, and after the election of the Commissioner, four periodical reports were prepared. However, the Ministry of Foreign Affairs, in violation of Article 19 of the Law On the Ukrainian Parliament Commissioner for Human Rights, did not involve the Commissioner in the preparation of the reports. Therefore, the Commissioner was compelled to address the Prime Minister who, on July 15, 1998, ordered the Ministry of Foreign Affairs to comply with the binding condition of involving the Commissioner in the preparation of the periodical reports to the international treaty bodies.

Despite these requirements of the law, the government, again without the involvement of the Commissioner, prepared and submitted to the international treaty bodies in 1999 periodical reports on Ukraine’s compliance with the UN Convention on the Rights of the Child and the UN Convention on the Elimination of Discrimination Against Women. The same happened with the reports on compliance with the international covenants on human rights. In this connection the Commissioner drew the attention of the Minister of Foreign Affairs to the further inadmissibility of breaching the provisions of the Law On the Ukrainian Parliament Commissioner for Human Rights and the order of the Prime Minister.

Ukraine’s periodical reports are thoroughly studied by the international convention bodies and the remarks they draw at the UN General Assembly shape world opinion about a country’s status of democracy and compliance with international human rights standards. These reports should objectively reflect how Ukraine honors its international law commitments, and the remarks of the treaty bodies should be taken into account in the country’s legislative, executive and judicial practices.

The reports that were prepared in the manner mentioned above did not properly analyze human rights violations as the Commissioner for Human Rights monitored them. International treaty bodies could judge such reports as Ukraine’s attempts to conceal the violations. Exactly such a conclusion was confirmed in the remarks that followed.

In response to Ukraine’s thirteenth and fourteenth report to the Committee on the Elimination of Racial Discrimination the latter concluded on March 18, 1999 that, judging from the information coming from Ukraine, there were cases of the police brutally treating representatives of the Romany people, especially those residing in Transcarpathia. Such actions violated Item 1a of Article 2 of the International Convention on the Elimination of Racial Discrimination. The Committee also pointed out that the representatives of the deported people who were returning to Ukraine experienced difficulties in exercising their economic, social and cultural rights, in education in particular.

In this connection the UN Committee recommended that Ukraine continue effecting necessary measures to restore the rights of the deported ethnic minorities, the Crimean Tatars included; pay compensations due them; resolve as quickly as possible the issue of citizenship of the deportees; and provide wherever possible education and instruction in the languages of the ethnic minorities.

As evidenced by material currently under the examination of the Commissioner for Human Rights, all these violations persist to the present day. The relevant bodies of state authority are ignoring the recommendations of the UN Committee. In the opinion of the Commissioner such an attitude is among the reasons why the violations persist and Ukraine continues to infringe the international standards secured in the International Convention on the Elimination of Racial Discrimination.

The UN Committee also drew Ukraine’s attention to the fact that the reports did not take into account the concluding remarks on the previous report as to the lack of a general assessment of the degree of compliance with the Convention in the country; lack of information about the legislation that was adopted to punish racial discrimination; lack of information about submitted complaints and sentences passed in compliance with Article 66 of the Criminal Code of Ukraine on punishing acts of racial discrimination; and lack of demographic indicators on different ethnic groups residing in Ukraine. The UN Committee remarked that the report of Ukraine was drafted not in conformity with the general guiding principles of reports submission accepted by the Committee (A/53/18 items 140-157).

To rectify the situation, the UN Committee recommended that Ukraine: ensure the dissemination of the International Convention on the Elimination of Racial Discrimination in the languages of the ethnic minorities; publish and spread Ukraine’s report of the Committee’s concluding remarks in the languages used in Ukraine; analyze and improve on the work of employees of law-enforcement bodies to ensure the proper discharge of their duty to respect and protect the rights of all persons regardless of their race, color of skin, racial, national or ethnic origin; provide information about the Commissioner’s examination of cases related to the application of the Convention; and provide information about complaints against racial discrimination filed with courts and the results of judicial examination.

More than a year has passed since the Committee’s concluding remarks were adopted, but they have not been complied with or published to this day.

The UN Committee Against Torture reviewed Ukraine’s report on compliance with the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on April 29-May 1, 1997. In its concluding remarks the Committee expressed concern about the following: numerous reports by NGOs of cases of torture during pretrial investigations; the state does not have independent bodies to investigate complaints against torture, prevent torture, and ensure inevitable liability of persons guilty of torture; lack in criminal legislation of a definition of torture and other cruel, inhuman or degrading treatment or punishment as a criminal offense, thereby making the provisions of Article 28 of the Ukrainian Constitution declarative; torture and beatings of recruits in the armed forces; inhuman conditions in pretrial detention centers and prisons, which degrade dignity, cause suffering and are detrimental to health; obstacles restricting the access of lawyers to defendants; Ukraine’s failure to recognize the provisions of Article 20 of the Convention on the Committee’s acceptance of individual complaints; absence in the report of the number of persons in pretrial detention centers, number of complaints against torture, number of persons brought to account for torture, information about compensation for the victims of torture and their rehabilitation; and the lack of a national body for monitoring execution of the Convention.

Judging from citizens’ complaints and the Commissioner’s investigations, these remarks hold true as far as Ukraine’s practices of law application are concerned. The Office of the Commissioner for Human Rights has been effecting measures within its competence to monitor compliance with the provisions of the Convention. The UN Committee pointed out that Ukraine could deal more successfully with this problem by drafting and enacting regulatory enactments of direct effect, making it thus possible to implement the rules of the Convention and the respective rules of the Ukrainian Constitution. The Commissioner is carrying on work with MPs to include in the new Criminal Code a new set of offense – torture and the definition of “torture,” as well as respective articles to the new Code of Criminal Procedure – protection of the detained and accused at all stages of proceedings; judicial control that would exclude the application of torture at all stages of criminal proceedings; and legislative bans prohibiting interrogation of detained or arrested persons without the presence of counsel. These rules are envisioned in the recommendations of the UN Committee Against Torture.

What also merit attention are the UN Committee’s recommendations to:

· extend judicial and public control over the actions of law-enforcement bodies;

· establish a system of independent agencies that would expeditiously and effectively handle complaints against torture;

· promote greater public awareness concerning the principal provisions of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment through the mass media;

· make investigators and employees of penitentiary institutions embrace the practical study of the rules and standards of the UN Convention;

· reduce the 18-months period of keeping the accused in custody;

· lift Ukraine’s reservations relative to Article 20 of the Convention and adopt a statement in conformity with articles 21 and 22 of the Convention on the right of the UN Committee Against Torture to consider the appeals by states parties on violations of the Convention in Ukraine and similar appeals by persons under Ukraine’s jurisdiction;

· bring the conditions at the pretrial detention establishments into conformity with international standards, reform the penitentiary system, and improve the conditions of custody of inmates;

· secure legislatively the procedure for making good damages, set out the procedure for specifying the amounts and terms of such compensation, compensation for moral damages included; and

· abide consistently by the moratorium on capital punishment.

Although more than two years elapsed since the UN Committee Against Torture adopted the concluding recommendations, they have neither been complied with nor published to this day.

On January 29, 1996 the UN Committee on the Elimination of Discrimination Against Women reviewed Ukraine’s third periodical report and made its concluding remarks. The Committee was particularly concerned about the excessive stereotyping of the role of men and women in Ukraine’s cultural and public life as well as in employment. Women have assumed all the duties related to home, family and children, thus restricting their public role. Hence the negligible number of women holding leading offices in Parliament, government and businesses. The legal safeguards of motherhood are excessively protective, denying women the opportunity to integrate in a market economy. As a result, their involvement in economic life has declined and to date they account for 80-90% of the unemployed. The UN Committee pointed out that Ukraine does not have in place a clearly defined policy concerning the status of women and there are no effective mechanisms to deal with gender issues. Besides, the UN Committee is seriously alarmed by the demographic situation in Ukraine caused by the poor health of its citizenry in general and of women in particular. It was proposed to remove the difference in the marriageable age, making it equal –18 years – for both men and women.

The UN Committee requested that Ukraine explain in the next report what it had in mind by “partial non-compliance” with the Convention provisions referred to in the third periodical report and how it intended to rectify it. Special emphasis was made on informing in the next report about performance of the obligations assumed at the Beijing Conference. The Committee also recommended that Ukraine provide precise information about violence against women, including rape, cases of husbands beating wives, cruel treatment of children, incest and other forms of physical and psychological pressure on women, and also about the measures that were effected to combat such violence. The Committee called on the Ukrainian Government to amend legislation that permits the operation of numerous sex services and the practice of hiring women for work abroad to be engaged in sexual exploitation. The Ukrainian Parliament added to the Criminal Code Article 1241, which establishes criminal liability for traffic in people, and a groundwork has been laid to rehabilitate the victims of such offenses. Besides, the UN Committee recommended to introduce obligatory study of human rights equality and publish Ukraine’s report along with its concluding remarks.

At the present time these recommendations of the UN Committee have been fulfilled only partially. Although the draft of the next report was published, the remarks of the UN Committee have not been made public. The monitoring conducted on this issue by the Commissioner shows that to this day society lacks any in-depth information about violence against women and what measures the government is effecting to combat it. Amendments to legislation on marriageable age have not yet been introduced, although the Family Code will include such a provision. Neither is there an effective mechanism to deal with gender problems. Practically nothing is being done to change the stereotype status of women in the family, in society, and in the administration of the state.

In the opinion of the Commissioner the lack of sufficient statistical support and educational programs in international human rights standards can serve as a general reason why the quality of the reports that Ukraine submits to the UN treaty bodies is inadequate.

The way Ukraine drafts its reports for the European Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also leaves much to be desired. In 1998 the European Committee visited Ukraine for an inspection and submitted a report to the Ukrainian Government. By its order of March 3, 1999 the Cabinet of Ministers of Ukraine appointed as its representative the Chairman of the State Department for the Enforcement of Penalties to draft a response of the Ukrainian Government to the report of the European Committee. However, the European Committee qualified the response as unsatisfactory and conducted a new inspection in July 1999. Yet another report on compliance with the rules of the European Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was submitted to the Ukrainian Government. Since the State Department for the Enforcement of Penalties did to cooperate with the Commissioner for Human Rights in drafting the reports, the Commissioner forwarded a respective letter to the Department to the effect that it was inadmissible not to involve the Commissioner in drafting human rights reports to international organizations as prescribed by Article 19 of the Law On the Ukrainian Parliament Commissioner for Human Rights. It goes without saying that cooperation between the Commissioner for Human Rights and the State Department for the Enforcement of Penalties has to facilitate the implementation of the Convention’s provisions and thereby spare Ukraine the visits of the European Committee inspectors as well as the negative opinions and according actions of the Council of Europe.

From all the foregoing observations and commentaries it can be concluded that in the course of parliamentary control over compliance with the protection of the rights of every person on the territory of Ukraine and within its jurisdiction the Office of the Commissioner for Human Rights has been exerting persistent efforts to bring Ukrainian legislation into conformity with international human rights standards and ensure their exercise in reality. At the same time the Commissioner for Human Rights believes that it is necessary to formulate a National Program on Adapting Ukrainian Legislation to the International Commitments in Human Rights and establish a special body to this end. The Commissioner also holds that the process of such an adaptation would be optimized by introducing amendments to Article 9 of the Ukrainian Constitution to bring into accord Ukrainian legislation with the generally recognized principles and rules of international law, to provide for the implementation of Ukraine’s commitments not only under the international treaties it has ratified but also with regard to other effective treaties, and to remove the inconsistencies that exist between national legislation and the provisions of international law by recognizing the priority of Ukraine’s international law obligations. It is also necessary to make up a list of universal and regional conventions that have to be ratified. The Commissioner also proposes to modify operative legislation to enforce more effectively the liability of officials for violating specific human rights and to publish Ukraine’s periodical reports to the convention bodies and the recommendations of the latter in the national language and in the languages of the country’s ethnic minorities. 

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