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According to the Constitution the State of Ukraine determined
human rights and freedoms to be its main value, and it defines the contents
and direction for the State's activity. But it would be impossible to
do without consideration of human achievements in juridical sphere. Influence
of International legislation in general and Convention of human rights
protection in particular caused amazing progress in law-consciousness
of people and law-writing activity.
In 1987 volunteer foundation of UN for technical cooperation on human
rights was founded. It allowed involving additional costs to strengthen
infrastructure and system of information on national and regional levels.
In 1988 (40 years from ratification of Common declaration) Assembly General
started the world campaign on human rights. In 1990 Assembly general decided
to create World convention on human rights (the first Assembly took place
in Teheran in 1968).
These four decisions became remarkable signposts in development of international
legislation database on human rights, it favored expansion of international
agreements ratified by Ukraine, including the Convention mentioned above.
The goal to join the European Community - is to ensure new opportunities
for democratic transformations for the State as a whole and its organs
of power.
Article 9 of the Constitution says: if Verkhovna Rada of Ukraine ratifies
International agreements, then these agreements become a part of national
legislation of Ukraine. And signing international agreements that contradict
the Constitution can be signed only after necessary changes are made to
the Constitution. So, in Ukraine along with national legislation we have
a part of international legislation that is obligatory in Ukraine. Practical
usage of international legislation demands high level of professional
qualification of judges of Ukraine. And it is a big problem on the present
stage of development of our State.
Dnipropetrovsk regional justice department and Dnipropetrovsk regional
branch of National Bureau on adherence to Convention on protection of
human rights and main freedoms together with NGO conducted monitoring
among judges of the region on their knowledge about international norms
on human rights and their introduction in every day practice in court.
The survey took place in August-September 2000 and 157 judges participated
(65% from the total amount of judges of the region). Considering work
experience of judges their number in groups was: under 5 years - 24%,
under 10 years - 34%, under 20 years - 27%, over 20 years - 15%.
Unfortunately, there are no concrete cases involving straight norms of
the Convention. The problem is that law-consciousness of the judge is
under the influence of different factors, but first of all under the dominating
law ideology, which is not homogenous. Court practice of higher courts
plays an important role in these processes. And psychological attitude
of the judge to the juridical norm and his actions in fulfillment of international
legislation depends on it, too.
I am impressed by the attitude of Dnipropetrovsk judges to death penalty.
On December 29th 1999 the constitutional Court of Ukraine decided that
death penalty as a way of criminal punishment is unconstitutional. 58%
of the surveyed judges are for the death penalty, so the problem of law-consciousness
of judges in Ukraine does exist and cannot remain beyond our attention.
Most of the judges (89%) are informed about norms of Convention on protection
of human rights and main freedoms. 54% were informed about other international
norms that rely other obligations of Ukraine in the world community. 39%
said that the State partially provides judges with necessary normative
materials that relate to human rights protection. In this question the
big part is played by NGO that cooperate with regional departments and
conduct seminars on international legislation. Because rights and freedoms
must be guaranteed by the society, one of the guarantees is professional
competency of people who ensure this for all members of society.
So the government must take care of the judges and supply them with necessary
literature, make sure that the judge has a chance to attend seminars and
improve his professional level. It also must take care of material-technical
base for courts and judges. Its current low level does not stimulate establishment
of professional court power.
And the current system of general courts is far from being perfect and
not all stages of the proceeding can be called stages of human rights
protection.
Today there is a mechanism that ensures fulfillment of articles of the
Constitution of Ukraine, European Convention on human rights - The Constitutional
Court. Besides, every regional department of justice has branches of National
Bureau on adherence to Convention on protection of human rights and main
freedoms. Their job is to ensure fulfillment of the norms of convention,
inform people about their rights, and gather proof for violation of human
rights (76% of judges supported their activity). I think there is sense
to conduct joint seminars of NGO and regional branches, organize colloquiums
for judges, and invite representatives of international human rights organizations,
independent experts, and famous attorneys. Because only through cooperation
of governmental and non-governmental structures we can achieve effective
protection of human rights. Thus, judges think that independent court
is impossible without independent experts and advocacy (93% and 82%)
Such approach to the problem conforms to general principles of the Constitution
of Ukraine and international legislation as well. We can agree with development
of new principles when hearing the case in the court - principles that
would promote introduction of norms from international legislation. For
example, explanation to national legislation that must relate to the Convention.
We must consider these principles when ratifying new laws on judicial
system, expertise, advocacy, and new procession codex, when introducing
administrative justice.
As we see from the monitoring, judges inadequately evaluate their role
in ensuring protection of human rights. Only 2% said that the court must
explain citizens the procedure of application to international courts.
92% of judges are sure that court does not have to do it, and first of
all departments of justice and advocacies must provide such information.
And it does not correspond with their belief that court plays significant
role in the government.
One fact makes me worry: 29% of judges think that they have a right for
court mistake. But the law prohibits the judge to make decisions if there
is a minnow suspect that the decision can be unlawful.
But still thankfully to world examples of juridical activity we can see
some changes in our post-totalitarian society. More and more citizens
realize that human rights, life, health, dignity and security are the
most social value.
The Constitution of Ukraine of 1996 foresees creation of new court system
that would fully conform to European standards, international responsibilities
of Ukraine and would create conditions for real protection of rights.
New to Ukraine and very important for national system of human rights
protection will become institute of appellation courts. Because precisely
this institution is considered to be the effective mean for human rights
protection in most countries-members of European Council.
Ratification of the new law about judicial system, which specified and
added real sense to the articles of the Constitution - is a necessary
and progressive step that will allow solution to wide range of questions
related to fulfillment of internal governmental functions and international
responsibilities of Ukraine.
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