Protection of human rights in conditions of forced displacement: European standards and constitutional jurisdiction of Ukraine
Chairman of the Constitutional Court of Ukraine Stanislav Shevchuk and judges of the Constitutional Court of Ukraine Mykhailo Hultai and Oleh Pervomaiskyi together with international experts during the international conference: "Protection of human rights in conditions of forced displacement: European standards and constitutional jurisdiction of Ukraine" discussed issues of protection of the rights of internally displaced persons, analysed European standards of protection of the rights of internally displaced persons, the main challenges and recommendations of the Council of Europe on the situation in Ukraine.
The event was organised by the Constitutional Court of Ukraine and the Council of Europe Project “Internal Displacement in Ukraine: Building Solutions”.
Chairman of the Constitutional Court of Ukraine Stanislav Shevchuk opened the conference and noted that during the difficult time for the country, the Constitutional Court of Ukraine does not remain aside from acute social problems and clearly expresses its position, in particular regarding the annexation of the Crimea. In support of this, Chairman of the Constitutional Court of Ukraine referred to the Decision № 2-rp/2014 dated March 14, 2014, by which the Court had declared as non-conforming to the Constitution of Ukraine (unconstitutional) the Resolution of the Verkhovna Rada of the Autonomous Republic of Crimea "On conducting all-Crimean referendum" dated March 6, 2014 No.1702-6/14, as well the Decision of the Court № 3-rp/2014 dated March 20, 2014, which declared as non-conforming to the Constitution of Ukraine (unconstitutional), the Resolution of the Verkhovna Rada of the Autonomous Republic of Crimea “On the Declaration of Independence of the Autonomous Republic of Crimea and the City of Sevastopol” dated March 11, 2014.
Stanislav Shevchuk emphasised that responsibility for creating conditions in which the rights of internally displaced persons would be protected on an equal footing with the rights of all citizens, but on the basis of the special needs arising from the sudden move, relies on the state. In his opinion, the strategic priorities of the state policy on internally displaced persons should be aimed at addressing the main systemic problems related to internally displaced migration, the implementation of long-term decisions on the integration of internally displaced persons, and improving the legislation in the field of guaranteeing the rights of internally displaced persons.
"Although today Ukrainian legislation and administrative case law are incomplete with international standards for the protection of the rights of persons who have suffered from conflict, the rules of international law regulating relations with the participation of internally displaced persons have been partially implemented in the national legislation", said Stanislav Shevchuk.
In his speech, the Chairman of the Constitutional Court of Ukraine also drew attention to the new institute of human rights protection in the Constitutional Court of Ukraine. Thus, the recently instituted constitutional complaint institute will be able to protect their rights violated at the level of the law, in particular internally displaced persons and other persons who have been affected by the conflict. In addition, the Constitutional Court of Ukraine formulated the principle of "friendly attitude" to international law, stressed Stanislav Shevchuk. According to him, the fundamental rights and freedoms enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms and the Constitution of Ukraine have a common legal nature. The Constitution of Ukraine has the highest legal force, said the Chairman of the Constitutional Court of Ukraine, but the issues should be resolved in the light of international legal acts and the established case-law of the European Court of Human Rights.
The subject of today's discussion and increased interest in such categories as constitutional values and the rights of internally displaced people is a prerequisite for our fruitful discussion, noted Stanislav Shevchuk. Finally, the Chairman of the Constitutional Court expressed his gratitude to the Council of Europe for practical assistance and the consistent position in support of Ukraine, as well as for giving the opportunity to hear the views of colleagues from those countries who faced similar problems.
Deputy Head of Independent Human Rights Bodies Division of the Council of Europe Lilja Gretarsdottir stressed that, unfortunately, Ukraine is not the first country to face the problems of protecting the rights of internally displaced persons. "For many years, the Council of Europe has been developing international standards, in particular, in this area, so we are ready to provide Ukraine with support on problematic issues", the expert noted.
According to her, the Council of Europe closely follows developments in Ukraine, in particular regarding the observance of the rights of internally displaced persons to access justice, to participate in elections. In the context of the protection of the rights and freedoms of the internally displaced persons, Lilja Gretarsdottir noted that the institute of constitutional complaint introduced in Ukraine is an important step forward in improving the national mechanism for the protection of human rights.
In her opening address, Deputy Head of the Office of the Council of Europe in Ukraine Olena Lytvynenko dwelt upon the goals and implementation of the main directions of the Project, as well as strengthening cooperation with the Constitutional Court of Ukraine. The Council of Europe Project “Internal Displacement In Ukraine: Building Solutions” is being implemented within the framework of the Council of Europe Action Plan for Ukraine for 2018-2021 with the aim of enhancing the capacity of internally displaced persons, displaced professionals, institutions and organisations as well as other key partners to influence to improve the system of protection of human rights and access to justice in Ukraine in accordance with the standards of the Council of Europe", she noted.
In the opinion of Deputy Head of the Office of the Council of Europe in Ukraine, holding this international conference is extremely important since the event brought together two key aspects - constitutional jurisdiction and European values. The Council of Europe supports not only implementation but, first and foremost, realisation of the basic principles, emphasized Olena Lytvynenko. Therefore, the institute of constitutional complaint, in her opinion, is an important achievement for Ukraine as it should strengthen national mechanisms for the protection of human rights, in particular, the rights of internally displaced persons.
The speaker expressed the hope that the event, gathered by leading national and international experts, would help to outline the issues, analyse the Council of Europe standards, and will provide an opportunity to develop recommendations that will be the basis for improving the protection of the rights of internally displaced persons at the national level. At the same time, Olena Lytvynenko emphasised, that cooperation with the Constitutional Court of Ukraine in the field of protection of the rights of internally displaced persons is one of the priorities for the Council of Europe.
Within the framework of the first session "European standards for the protection of the rights of internally displaced persons and other victims of conflict" speeches were delivered by lecturer in Public Law at the University of Cyprus, Department of Law, member of the Committee of the Council of Europe against torture Costas Paraskeva, Professor of Public International Law at the University of Nottingham School of Law of the United Kingdom Marko Milanovic, Minister of Justice and Administration of Canton Sarajevo of Bosnia and Herzegovina Mario Nenadic and his colleague from the Ministry for Human Rights and Refugees Nermina Džepar-Ganibegović.
During the conference the publication on "Protection of Internally displaced persons in accordance with the European Convention on Human Rights and other Council of Europe standards" was presented which includes, in particular, an overview of the Standards of the Committee of Ministers of the Council of Europe and the Parliamentary Assembly of the Council of Europe, the European Court of Human Rights case-law of violations that have resulted from forced displacement. "Unlike refugees protected under the 1951 Geneva Convention on the Status of Refugees, the internally displaced persons is not protected by any international legally binding instrument and their fundamental rights are not guaranteed at the international level by any separate instrument," the publication notes.
According to the PACE calculations, in the beginning of 2014, about 2.5-2.8 million Europeans were internally displaced persons in 11 of the 47 member states of the Council of Europe, in particular, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Cyprus, Georgia, Turkey, noted Costas Paraskeva. Approximately 1.6 million internally displaced persons have been registered in Ukraine by the Ministry of Social Policy through the annexation of the Crimea and the beginning of the armed conflict in the East of Ukraine in April 2014.
The PACE has adopted a number of recommendations and resolutions on issues related to internally displaced persons. In 2006, the Committee of Ministers of the Council of Europe adopted a Recommendation, which agreed on a list of 13 recommendations on internally displaced persons, based on the UN Guiding Principles and highlighted the obligations of the member states of the Council of Europe.
Costas Paraskeva also analysed the case-law of the European Court of Human Rights in the context of forced displacement, in particular, in the cases of "Loizidou v. Turkey", "Cyprus v. Turkey", "Aziz v. Cyprus".
"The application of the European Convention on Human Rights in disputed territories is not a unique situation for Ukraine", noted Marko Milanovic in his report. As an example, he remarked that Georgia and South Ossetia/Abkhazia, Serbia/Kosovo, Iraq, Syria, Colombia had faced similar issues. According to him, the first cases of the ECHR related to the loss of control were based on a rebuttable presumption of jurisdiction (for example, Northern Cyprus), that is, there is no control, and therefore no obligations. This approach was changed in the case of "Ilascu and Others v. Moldova and Russia", confirmed in "Catan and Others v. Moldova and Russia", "Mozer v. the Republic of Moldova and Russia". In particular, in the case of "Ilascu and Others v. Moldova and Russia", the Court, on the basis of all the materials available to it, acknowledged that the Government of Moldova, the only legitimate Government of the Republic of Moldova under international law, did not exercise power over a part of its territory. However, even in the absence of actual control over the Transnistria region, Moldova still has a positive obligation under Article 1 of the Convention to take diplomatic, economic, judicial or other measures that it is in a position to do and which are in accordance with international law in order to ensure the applicants are guaranteed Convention of Law.
During the event, the consequences of the war in Bosnia and Herzegovina (1992-1995) were also analysed. Representatives of this country noted irreparable demographic losses. "The bloodshed ended when the warring parties signed Dayton Peace Agreements," said Mario Nenadic. It was noted that the whole set of measures consisted of two units: the first one for the settlement of military issues aimed at demining the territories, providing a truce; the second is the settlement of civil issues, in particular, the resolution of the problem of internally displaced persons, refugees, the provision of human rights, the restoration of infrastructure, and the provision of humanitarian assistance.
Provision of the necessary conditions for the mass return of the population to the places of previous residence was entrusted to the authorities of Bosnia and Herzegovina. Also in Bosnia and Herzegovina, a property commission was set up to deal with compensations and the restoration of destroyed property, but in practice, unfortunately, this did not resolve real problems.
During the second session, the issue of national protection of human rights was discussed in conditions of forced displacement. In particular, the participants got acquainted with the experience of Montenegro, Croatia and Ukraine. For example, judge of the Constitutional Court of Montenegro, former President of the Constitutional Court of Montenegro, Desanka Lopičić and judge of the Constitutional Court of Croatia Mato Arlovic, raised the issue of the protection of internally displaced persons through the mechanism of the constitutional complaint, in particular, the issue of the protection of property rights.
In the process of reviewing legislation in order to bring it into line with international standards in the field of human rights protection, Montenegro has adopted a number of legislative changes, and the executive power has adopted specific action plans and strategic documents, some of which relate to the protection of internally displaced persons. According to a judge of the Constitutional Court of Montenegro, this process continues, with the goal of achieving international standards in all spheres of the functioning of the legal system.
The issue of protecting property in conditions of internal movement has been raised by judge of the Constitutional Court of Croatia Mato Arlovic. Thus, armed conflicts, natural or man-made disasters will inevitably result in the forced displacement of a large number of people, and, as a result, the forced abandonment of both movable and immovable property and the loss of buildings. In the context of violent conflict and the destruction of property, violation of the right to own property and the right to private housing is an ordinary thing.
A judge of the Constitutional Court of Croatia also informed the Presidents that, with the adoption of the Croatian Law on Property, a person was entitled to a return of property or just material compensation from the state in the context of the forced abandonment of property. In addition, it provides for the possibility of temporary use of property without the right to dispose of it or its sale. Mato Arlovic has highlighted a large number of cases concerning property rights in the ECHR and stressed that each country should establish its own system of protection of citizens. "The European Court of Human Rights was not created to correct every mistake at the national level", he added.
During the international conference, the judge of the Constitutional Court of Ukraine Mykhailo Hultai disclosed in detail the aspects of incorporating European human rights standards when implementing the constitutional justice system of Ukraine. Judge of the Constitutional Court of Ukraine analysed the problems and perspectives of protecting the rights of internally displaced persons through the institute of constitutional complaint. He began his speech with Spanish wisdom: "When prisons are empty, when grass grows on the steps of the courts, it means that the state is skilfully managed".
The judge stressed that, having undergone a difficult path of formation and establishment, the Constitutional Court of Ukraine is part of the third decade of its activity with the constant desire to strengthen public trust in a single body of constitutional jurisdiction, which ensures the supremacy of the Fundamental Law and the protection of constitutional rights and freedoms. According to him, the constitutional protection also applies to internally displaced persons and other persons who have been affected by the conflict within the jurisdiction of Ukraine.
The speaker stressed that for Ukraine the issue of implementation and protection of the rights of internally displaced persons is of particular importance and urgency, which is intensified by the scale of the movement and the imperfection of normative regulation. The question of the legal status of internally displaced persons is not only an internal problem of the state itself, it is also the focus of the international community, as it creates real threats to human rights, protection of life and health, the inviolability and security of internally displaced persons. According to Mykhailo Hultai, it is constitutional justice in democratic countries that is an effective means of adapting national legal systems to European standards for the protection of human rights.
Article 9 of the Constitution of Ukraine stipulates the sub-constitutional status of the existing international treaties ratified by the parliament, stressed the judge of the Constitutional Court of Ukraine and the conclusion of international treaties that contradict the Constitution of Ukraine is possible only after the relevant amendments to the Constitution of Ukraine have been made. He stressed that the sectoral and procedural codes of Ukraine, as well as other laws, give the rules of the existing international treaties an advantage over the norms of the national legislation. In accordance with Article 17 of the Law of Ukraine "On the implementation of judgments and application of the European Court of Human Rights case-law", courts apply the Convention on the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights (i.e., all the jurisprudence of the ECHR and the European Commission on Human Rights) as a source of law.
Mykhailo Hultai emphasised that the case-law of the Constitutional Court of Ukraine testifies to the important role of the Convention and its interpretation by the European Court of Human Rights in its interpretation function and in the argumentation of its legal positions within the exercise of powers to verify constitutionality. According to him, today the Constitutional Court of Ukraine demonstrates active application of the provisions of the European Convention, and, most importantly, the principles and doctrines developed by the ECHR in interpreting the Convention. As an example, the judge of the Constitutional Court of Ukraine referred to the Decision in the case on judicial control over hospitalisation of disabled persons to psychiatric institution No. 2-rp/2016 dated June 1, 2016 and others.
Mykhailo Hultai paid special attention to the issue of legal protection of constitutional rights and freedoms, including internally displaced persons, through the institution of constitutional complaint. He informed the participants in detail about the constitutional complaints of citizens lodged with the Constitutional Court of Ukraine in connection with the conflict and forced displacement.
The number of appeals from internally displaced persons and those affected by the conflict to the Constitutional Court of Ukraine is not significant, the speaker noted. One of the reasons for this is the lack of opportunities for internally displaced persons, taking into account their actual situation, to comply with all the requirements put forward by the Law of Ukraine "On the Constitutional Court of Ukraine" to a constitutional complaint. That is, this does not indicate the perfection of the legal regulation of issues related to forced displacement, but proves that the legislation of Ukraine does not fully take into account the vulnerability of this group of the population.
Senior Project Officer of the Council of Europe Ganna Khrystova summed up all the discussions and stressed that the state's commitment to respect and protect human rights does not disappear in armed conflicts, even in the event of loss of control over part of its territory. Thus, the provisions of the international human rights treaties themselves do not exclude their application during armed conflicts, although they provide for the possibility of a state retreat from certain obligations during an emergency. Ganna Khrystova stressed that internally displaced persons is a particularly vulnerable group of people who have special needs and needs proper and adequate measures to protect them. The speaker highlighted the country's positive obligations regarding human rights in the context of internal displacement, outlined the national challenges and recommendations of the Council of Europe on the situation in Ukraine.
Lilja Gretarsdottir summed up the work of the conference and called the Council of Europe to work for the sake of justice, the rule of law, and human rights, which nevertheless "come into being" in the national courts, and therefore the "mandate" of the national courts is wide enough for protection of internally displaced persons. She noted the powerful human intellectual resource of Ukraine, underlining that Ukraine is today the "expert center" of Europe for human rights, and assured that the Council of Europe will continue to support Ukraine, but the question remains about the implementation of the rights of everyone.
A tour around the premises of the Constitutional Court of Ukraine was organised for the participants of the international conference.
