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Present essay is one of the attempts to analyze the problem
of reimbursement for moral damage to citizens as of mean of civil rights
protection in the vertical "government - human". It is an important
factor that up-brings social awareness in democracy and helps Ukraine
to move in the direction of creation of law-based government.
When we try to create a law-based government in Ukraine, we must realize
and accept several important truths that have already been "fixed"
in the sense of justice among citizens of democratic countries by the
beginning of the third millennium.
Social awareness can not be changed immediately. And what we lack in comparison
to other countries can not be changed in one moment. We need a long process
of development of human rights theory in democratic country of Ukraine.
And we need an even longer process before separate individuals and groups
in the society will understand essence and mechanisms how norms of democratic
and law-based government function in the country that recognized supremacy
of law.
Surveys conducted in Ukraine within last five years in the frameworks
of different researches show that less than a quarter of surveyed people
in Ukraine understand what democracy is, and only every tenth person relates
democracy to the conception of human rights.
If we do not define terminology it will be hard to expect equal understanding
and actions from a big mass of people who want to live better in their
European house and world community.
Principles of liberal democracy say that democracy is the limited power
of majority. Since rights and freedoms of separate individual, who is
different from majority, define frameworks of the majority's power [2;
4].
Not of less importance in understanding of conception of human rights
are the next two statements.
First: "Law-based government is such a government where there are
clear, stable and understandable to all people rules of game between an
individual and authorities.
It is a government where a person can clearly foresee how the authorities
will react on his behavior, because in such a government a clear law rules
this government, but not arbitrary officials and functionaries. [2]. The
reverse is also true - speaking about responsibilities of citizens - an
official can count that citizens will live according to the laws and that
is why an official will work and live, as a citizen, in a law-abiding
environment. From psychological point of view we are talking about mutual
expectations.
Second: conception of "human rights" relates to the sphere of
interaction "human -government", that is why we should speak
about "vertical interaction" of human rights [2].
When law conflicts appear in the sphere of governmental interaction with
a human it is hard to exaggerate the role of court power. Social role
of courts is to provide supremacy of law. French scholar Alexis de Taucville
defined social role of courts like this: "All governments have only
two ways to overcome resistance of citizens: material means that governments
possess and court decisions. The great aim of justice is to substitute
the idea of violence with the idea of justice in establishment of legal
obstacle between the government and the power that this government is
using". [Ç].
Thus, the aim of justice is to create an obstacle between the government
and its power that is frequently directed against citizens. We heard similar
opinion of American lawyers: court power plays the role of a protector,
a buffer between an omnipotent government and a weak (in sense of absence
of possibility to rely on repressive mechanism) citizen.
In subject books on Constitutional law this idea is formulated like this:
a conflict between a not law-abiding citizen and a government becomes
not the main problem of society. Not less important is the conflict between
a law-abiding citizen and a government, if it emerges in case of mistakes
or sometimes arbitrariness of the government. Court must protect a human
from a government when a law (recognized by the government) is on the
side of this human (marked by authors). [Ç].
The reality is this: on June 28th, 2000 in report of the Ombudsman on
human rights in Verkhovna Rada of Ukraine she said about systematic and
mass violation of all human rights. Consequently, it was said about violations
of rights by the government. Since April 1998 more than 100,000 people
appealed to Ombudsman, in more than 56% of cases it was about violation
of civil rights (other violations were about economical, social, personal
and political rights). 80% of people in Ukraine can not get competent
legal advice because of poverty.
The main amount of violations of human rights, registered in Ukraine,
was caused by officials of Ministry of Internal affairs, Ministry of Justice
and courts of general jurisdiction (especially delay in scheduling case
hearings). [4à].
The situation is critical, if not panic. In Ukraine we declare creation
of law-based government where citizens can always foresee consequences
for their behavior. But in reality we see total difference: mass violation
of rights by representatives of law-enforcement institutions who "systematically
and mass" violate "all rights" using the money of taxpayers.
Ministry of Justice that builds conception of justice for the entire country
is the abuser of human rights itself!
We should pay attention at the fact that courts of general jurisdiction
are on the list of human rights violators, even though the main violation
is delay in scheduling court hearings. What does it mean on practice?
It means that an ordinary citizen, whose rights were violated by the government,
will not be able to get timely protection from the court. The court does
not fulfill its social mission and does not up-bring society. But it must
up-bring. We know canons for pedagogy and moral. If a teacher who is responsible
to bring-up and teach does not conform to high standards because of his
moral qualities, then this teacher is more like a destroyer of morality,
than a teacher and a creator of humans and citizens.
A conception of human dignity comes from a conception of humanity and
violation of human rights is a hard blow to human core. To negatively
influence on human dignity - to violate his rights - means to deprive
this human of the base and sense of his existence.
As a rule, citizens, whose rights were violated by the government, think
that their rights were violated knowingly and deliberately. And they have
grounds to think so. Officials are the part of the system. If the system
wants to get guaranteed results, it teaches its officials how to act.
The analysis of violations of human rights shows that citizens desperately
try to prove officials illegality of their action or inaction. Why do
not officials want to fulfill their responsibilities, demands of laws
and prefer to violate rights of citizens?
If they do it because of absence of knowledge - then it is one part of
the problem, in can be solved through special education for officials.
If illegal actions of the government in relation to a citizen is a part
of the system of relations "government - human", then we do
not even need comments about immorality and legality.
Such relations must not exist in democratic society.
What is the mechanism to "extract: illegal actions from socially
important (vertical) - relations between a government and a human?
Let's consult the Constitution of Ukraine.
The highest social values in Ukraine are supposed to be "human, his
life and health, honor and dignity, immunity and safety…", "…Human
rights and freedoms and their guarantees define content and direction
of the government's activity. The Government is responsible before a human
for its activity. Establishment and fulfillment of human rights and freedoms
are the main responsibility of the government. " (article 3).
Content of article 56 of the Constitutions of Ukraine gives us the answer
to a question about mechanisms of conflict resolution between a law-abiding
citizen and the government: "Everyone has the right to compensation,
at the expense of the State or bodies of local self-government, for material
and moral damages inflicted by unlawful decisions, actions or omission
of bodies of state power, bodies of local self-government, thei r officials
and officers during the exercise of their authority" [I].
Social wisdom in democratic countries was gradually accelerated with help
of wise court system "English legislation that foresees reimbursement
for moral (none-material) damage amazes with its mundane flexibility and
deep practical sense. When courts were dealing with such kind of cases,
they tried to meet claims of all victims in the account of guilty people.
Courts never missed such an opportunity. They as well met claims to officials,
who violated rights of ordinary people. Constant levying of money from
guilty people who violated rights and freedoms assisted England in creation
of an ideal for a citizen and servant for the Government. It also strengthened
respect to other's rights and other's individuality…" (bolded and
underlined by authors) [6].
Objection about lack of time for Ukraine to extensively (within a few
centuries) accelerate similar court practice, that up-brings society,
are logical. But they should not be an excuse to refuse from usage of
such wisdom.
Practice of European Court on human rights in Strasbourg is wisdom of
modern history of relations between the government and a human.
The court was making its decision in December 4th, 1995 in a suit "Rabych
vs. Austria". The member of the Commission offered to make a decision
about reimbursement for moral damage in a very big mount of money so that
it will stimulate people in the same situation to file similar suits.
Rabych filed a suit because of rude actions of policemen during the search
of his apartment. He was suspected in selling drugs and was detained for
three days: he had three bruises on the inside and outside part of his
arm. The court decided that a plaintiff had undoubted moral damage and
basing on principle of justice (article 5) made a decision about reimbursement
for moral damage to Rabych in the amount of 100,000 Austrian shillings.
[5].
According to words of Ombudsman on human rights, within 1998 and 1999
in Ukraine 285 workers of police were called to criminal responsibility.
In 2000 there were 200 criminal cases against those, who subjected people
to tortures.
However, it is not clear if material and moral damage were reimbursed
to victims of these cases and other cases where during illegal actions
of the government and its officials human dignity and honor were disgraced,
health was worsened and attempts to destroy the person took place.
In civil law there is a trinomial division of guilt, in criminal - four-linked.[6].
Governmental officials act on behalf of the Government. The government
declared and "fixed" by the main law - the constitution - human
honor and dignity is the highest value.
Governmental officials have necessary knowledge and skills (or must have
them), that is why when they hear cases about governmental violation of
human rights there can be no such thing as simple carelessness.
One can not "carelessly" torture a person or do it "neglectfully",
it can be done only knowingly (knowing and wanting to disgrace human dignity
and cause sufferings).
Our experience in cases on reimbursement for moral damage of the government
to a citizen shows that judges must make decision based on law solely.
However, organs of Treasury, other governmental departments, who participate
in these cases as the third person, solicit the judges to reduce the amount
of money for reimbursement for moral damage in material equivalent explaining
it with problems in budget financing. Courts of the first and second instances
frequently make their decision basing on the idea of governmental benefit,
not based on demands of justice. They do not consider criteria used for
determination of the amount of moral damage in cases of infringement on
life, health, honor and dignity as the most important values announced
by the government.
Pretending to be poor the government manipulates by the social opinion
and makes court power dependent on the government's needs. Making "dependent"
decisions the court discredits itself, loses authority and power in society.
Poor (in material and spiritual meaning) citizens receive destructive
directive - to be poor like the Government means not to be responsible
before others!
Meanwhile, executed court decision about reimbursement for moral damage
- it is money or property, it is reality, that can prove the victim and
his community, and with help of mass media to entire society, that there
is a public price of human dignity. We should remember that "rights
are individual, not collective".
Court decisions evaluate moral suffering of an individual according to
the lowest rank as it is in practice of determining moral damage as a
tenth part, quarter of half of material damage, mentioned in the claim.
Does that mean that society refuses to accept values that are in its laws?
No, society understands what is court protection of such a value as human
dignity is one the ways out of the crisis of trust of citizens to their
government. We will repeat that "Constant levying of money from guilty
people who violated rights and freedoms assisted England in creation of
an ideal for a citizen and servant for the Government. It also strengthened
respect to other's rights and other's individuality".
Servants of Themis - are also members of society. It is hard to imagine
that all of them suffer split of personality. They understand the role
of just evaluation of moral damage when government disgraces human dignity.
And at the same time they have a power to make legal and just decision.
And they neglect their social responsibility.
Rather we are talking about existence of peculiar notional barrier that
leads to misunderstanding of the same event - disgrace of human dignity
that has different meanings to members of our society when it can mean
only one thing.
Psychological researches describe destructive consequences of such notional
misunderstanding. People do not understand the motives for each other's
behavior, people act without consideration of these motives, arrogate
false motives to each other. Increased affectivity is characteristic to
such misunderstanding (affect - strong emotional feelings that develop
in critical situations, and cause stereotypical way of "emergency"
resolution of the situation, for example, aggression. [7]).
Society should remember that a person, who faced situation when his human
dignity was disgraced once, has a specific experience: affective prints
caused by violation of socially important relations. Traumatic information
can be fully suppressed or replaced from the consciousness. But if a similar
situation happens again then affect is accumulated and can be expressed
in violent, uncontrollable behavior even when circumstances are insufficient
[7].
Psychologists and psychiatrists also describe so-called "induced
psychosis", i.e. such behavior can be characteristic not only for
one person but for whole social groups of people!
Who will be responsible for possible social explosions and possible sufferings
of big groups of people?
Obviously, Ukraine that joined European Council in 1995 was recognized
as equal among other European countries that announced policy of priority
of human rights and freedoms over the government. [9].
Thus, it is not a good tradition in our country yet to analyze in systematic
level events, which happen in society, instead they limit the process
to mere comments on the level of separate events and facts.
Scientific and practical discussions about methods of calculation for
moral damage tend to move to extreme. Some scholars offer to limit the
amount of money, which has to be reimbursed, to certain amounts (upper
and lower borders), others offer to consider peculiarities of sufferings
of some "ordinary person" (A. Erdelevskiy). But according to
the law "… real, but not "partial" or "prejudicial"
moral damage…" [6] must be reimbursed.
In Ukraine we already have significant and interesting experience in reimbursement
of moral damage, that comply to approaches of the World organization of
health protection and legislation of Ukraine to the conception of "health"
[10].
In the frameworks of informational battles for creation of certain social
opinion more and more articles appear in mass media where journalists
give wrong impression about this category of court cases about reimbursement
for moral damage. Governmental officials call such cases "popular"
or look at them like at the attempt to ravage the government! In some
publication the idea of reimbursement for moral damage is discredited
by lawyers (!) announcements that amount for reimbursement comes "from
nowhere" [11]
It seems like there is no general plan. General plan for development of
our society. As one of vice-presidents once said, "…we work in the
regime of ambulance…" It means that with such an announcement we
put diagnosis to some our disease?
The name for such disease can be, "Absence of general plan"
[12].
Society it a complication system, that is why there should be systematic
approach to its development.
That is why social opinion must be formed in a way so that everyone has
a common goal: to work out standards and ideals of a citizen, supremacy
of law, respect to each other's personality.
Therefore, when we talk about "common sense", we accept such
an approach only through the prism of interests and legal rights of certain
citizen, through the prism of interests of democratic country, but not
through the prism of fear of one certain judge who is afraid to intrude
into interests of a certain group of officials or one official!
Development and fulfillment in life of mechanisms for reimbursement for
moral damage to citizens, who suffered from illegal actions of the Government
and its officials, can be a part of the plan for development of the whole
society.
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