“Human Rights and National Security: the Role of the Body of Constitutional Jurisdiction”
International Conference on the occasion of the Constitution Day of Ukraine
The International Scientific and Practical Conference “Human Rights and National Security: the Role of the Body of Constitutional Jurisdiction” took place at the Taras Shevchenko National University of Kyiv. The event was attended by the Chairman and Judges of the Constitutional Court of Ukraine, former Judges of the Constitutional Court of Ukraine, representatives of state authorities and the judiciary of Ukraine, the Presidents and Judges of foreign bodies of constitutional jurisdiction, diplomatic representations accredited in Ukraine and international organisations, as well as domestic and foreign scholars.
The event was organised by the Constitutional Court of Ukraine in cooperation with the National Academy of Legal Sciences of Ukraine, Taras Shevchenko National University of Kyiv, with the support of the OSCE Project Co-ordinator in Ukraine.
The International Conference was inaugurated by the Chairman of the Constitutional Court of Ukraine Natalia Shaptala. She congratulated the guests on a great holiday – the Constitution Day of Ukraine. “This is the holiday of all Ukrainians living both in Ukraine and abroad”, she noted. The Chairman of the Court stressed that the Constitution of Ukraine, having overcome the difficult path of formation and development, has become the main guarantor, reliable guardian of the state, the guarantor of independence and unity of the Ukrainian people.
The Representative of the President of Ukraine at the Constitutional Court of Ukraine Fedir Venislavskyi read out the congratulatory address of the President of Ukraine Volodymyr Zelenskyy.
“On a national scale, the right to national security is the same as the right of a person. It is impossible to claim the priority of individual rights before the state, without requiring the priority of the right of the nation to the international community. The legal basis of Ukraine's national security is the most important acts of our state – the Constitution of Ukraine and the laws of Ukraine adopted on its basis…
It is for the Judges of the Constitutional Court of Ukraine to assume high responsibility in defending the rule of law, preserving the constitutional rights and freedoms of citizens, so that every Ukrainian would feel protected in his/her country...
Such events contribute to the exchange of ideas, combine our efforts in the noble cause of the establishment of constitutional principles and values”, was noted in the greetings from the President of Ukraine.
OSCE Project Co-ordinator in Ukraine Henrik Villadsen highlighted that after the war, the constitutional protection was entrusted to independent constitutional courts. He added, that today we are living in a different, turbulent world, in which the value of democracy and human dignity were endangered.
Henrik Villadsen noted that security and human rights are interlinked and are the cornerstone of the OSCE's comprehensive security. “The International Conference is taking place against the backdrop of the troublesome events in the OSCE region, in particular, the constitutional values in Ukraine are threatened”, the speaker stressed. In this context, he welcomed the Decision of the Constitutional Court of Ukraine in the case upon the constitutional complaint of Viktor Hlushchenko regarding the appeal against the decision to extend the term of detention in the court of first instance and the Decision of the Constitutional Court of Ukraine in the case related to e-declaration of anti-corruption activists.
The speaker also emphasised the importance of conducting such events in order to build a constructive dialogue, in particular, in order to overcome the public distrust of the constitutional control body in Ukraine.
Deputy Secretary of the National Security and Defence Council of Ukraine Oleksandr Lytvynenko thanked the organisers for an extremely relevant event. He noted that national security is not about an individual but about the whole community. However, he added, it is important to adhere to the constitutional balance between human rights and high national ideals. “The task of the Constitutional Court of Ukraine is to ensure a balance between state interests and human rights”, highlighted the speaker.
Rector of the Taras Shevchenko National University of Kyiv Leonid Huberskyi noted that the adoption of the Constitution of Ukraine in 1996 was a landmark event. “The human and citizen’s rights declared in the Fundamental Law of Ukraine have become a benchmark for Ukraine”, he added. The Constitutional Court of Ukraine plays a key role in the process of protecting human rights. “The constitutional control body of the country protects not only the rights of an individual, but of the entire society”, highlighted the Rector.
Leonid Huberskyi expressed hope that the important scientific ideas and approaches presented at the international conference will contribute to the protection of human rights in Ukraine.
After the solemn opening of the international conference, a ceremony of signing the Agreement on Cooperation between the Constitutional Court of Ukraine and Taras Shevchenko National University of Kyiv was held. The document was signed by the Chairman of the Constitutional Court of Ukraine Natalia Shaptala and the Rector of the Taras Shevchenko National University of Kyiv Leonid Huberskyi.
The first session of the conference was devoted to the national security policy and human rights protection. Participants of this session discussed the actual challenges of protecting human rights and freedoms in the context of ensuring national security, as well as expressed their views on the balance of human rights, on the one hand, and the state on the other.
“Today, the Constitutional Court of Ukraine has offered discourse on rather sharp and complex subjects, in particular in terms of practice of their resolution. This conference is international, since the issue of national security protection is relevant for bodies of constitutional jurisdiction of many states, especially those who have, in one form or another, been subjected to external military intervention”, mentioned the Chairman of the Constitutional Court of Ukraine Natalia Shaptala.
The Chairman of the Constitutional Court of Ukraine noted that the complexity of the problem lies in the fact that human rights and national security as objects of legal protection form a certain antinomy – a contradictory unity. It can be said, that as to the content of modern constitutions, they possess equivalent, but divergent subjects of protection by the constitutional court and other state authorities.
Emphasising that human rights are one of the foundations of constitutionalism as such, Natalia Shaptala noted, “The Constitution, in the modern sense, exists precisely in order that the basic human possibilities for the normal existence and normal self-realisation, whose violator most often acts as their own state as an all-encompassing, a dominant system of government, were provided”.
The Chairman of the Court noted that Section II of the Constitution of Ukraine contains a number of articles, which, while proclaiming one or another of the constitutional rights of a person and a citizen, contain simultaneous reservations regarding the cases when the exercise of these rights may be subject to restrictions in the public interest. According to her, the corresponding constitutional wording raises a difficult task before the Constitutional Court of Ukraine, which is called to control the adequacy of the legislator's definition of the sphere of protection of national interests, which specific measures of such protection have been stipulated, while the constitutional rights were limited and the necessary constitutional rights were observed".
Natalia Shaptala informed that the Constitutional Court of Ukraine is already considering a number of cases, within which it is planned to find the balance in the practical terms. “An unbalanced decision in favour of a state institution may result in an additional blow to citizens' life rights. At the same time, ignoring an important aspect in protecting national security will have direct or indirect systemic violations of human and citizen rights”, highlighted Natalia Shaptala.
The President of the National Academy of Legal Sciences of Ukraine Oleksandr Petryshyn presented a report on human rights in the context of challenges of the XXI century. He, in particular, noted that the subject of the event is extremely relevant. In Oleksandr Petryshyn’s opinion, a balanced, scientifically-based approach is needed to address the issues raised. The serious challenges in the context of human rights and national security today are crucial not only for Ukraine, but also for the whole world.
In his speech, the President of the National Academy of Legal Sciences of Ukraine also stated that, first, when it comes to human rights, we are talking about the space of freedom. In his opinion, there is no need to discuss human rights, since all people are equal, and neglect of human rights is the main problem of the XXI century. “There is no constitution where human rights are not ensured and there is no division of state power”, Oleksandr Petryshyn was convinced.
Representative of the Ukrainian Parliament Commissioner for Human Rights on Partnership with Civil Society Institutions Andrii Mamalyha analysed the observance of the constitutional rights and freedoms of internally displaced persons and persons residing in the temporarily occupied territory.
In his report, the speaker noted that the highest values that determine the content and direction of the state, is the person, his/her rights and freedoms. He dwelt in detail on the main aspects of ensuring the rights and freedoms of internally displaced persons and persons residing in the temporarily occupied territory.
Representative of the Ukrainian Parliament Commissioner for Human Rights on Partnership with Civil Society Institutions noted that the social rights, in particular internally displaced persons and persons residing in the temporarily occupied territory, should be respected by the state. In addition, he cited the quantitative indicators of the cases reviewed, which addressed the social rights of such persons, and emphasised that most court decisions are not currently being enforced.
Andrii Mamalyha also informed that the Ukrainian Parliament Commissioner for Human Rights has submitted to the Verkhovna Rada of Ukraine the annual report of the Commissioner on observance of human rights and freedoms in Ukraine in 2018.
Director of the Institute of State and Law named after V.M. Koretsky of the National Academy of Sciences of Yurii Shemshuchenko presented a report on “Social State and Social Strategy in Ukraine at the Current Stage”. He emphasised the human and citizen’s rights and freedoms are enshrined in the Constitution of Ukraine. The speaker also described the key features of the social state and emphasised the key aspects of the emergence of a social state.
In the speaker’s opinion, in order to realise the sovereignty of Ukraine, it is necessary to strengthen and protect human rights.
According to him, the achievement of the balance between the establishment of human rights and the provision of national security is directly related to the priorities of state policy, both in historical terms and in the context of modern challenges.
Viktor Kolisnyk noted that bodies of constitutional jurisdiction of some European states repeatedly turned to the historical context, in particular, officially recognised the inappropriate state policy of repression and persecution. As an example, he cited a number of decisions, in particular, the Decision of the Constitutional Court of the Czech Republic dated December 21, 1993, as well as the Decision of the Constitutional Court of the Republic of Lithuania dated March 18, 2014.
“The constitutional justice in Ukraine also faces the problem of “overcoming the past”, stated Viktor Kolisnyk. To support his message, the Judge brought a number of cases to the Constitutional Court of Ukraine with a historical implication and mentioned the legal positions of the Constitutional Court, formed in the relevant decisions.
According to Viktor Kolisnyk, security issues are just as relevant and important as most other constitutional values. “By choosing between security and freedom, the constitutional jurisdiction bodies must adhere to certain decisive approaches”, the Judge emphasised.
Viktor Kolisnyk noted that in the case of limiting the constitutional right by the legislator in the event stipulated by the Constitution it is necessary to find out whether this restriction does not result in the loss of the real content of such a right. According to the judge of the Constitutional Court of Ukraine, if the restriction of the constitutional right is permissible, then it must be carried out with a legitimate aim, be conditional by this aim, have not only superfluous but only minimal necessary character. The assessment of historical events, if any, should occur in the light of the principles of a law-based state.
During the second session, issues related to the current challenges and problems of human rights protection in the context of ensuring national security were discussed.
The session was chaired by the President of the National Academy of Legal Sciences of Ukraine Oleksandr Petryshyn.
Congratulating the Ukrainian people on the Constitution Day of Ukraine, the speaker expressed gratitude for the hospitality and invitation to take part in this important event. He emphasised that the constitution is the basis of each state, in which the fundamental rights and freedoms of citizens are enshrined, and the role of the constitutional court is to guarantee them.
Engin Yildirim cited a number of decisions adopted by the Constitutional Court of the Republic of Turkey and noted that the constitutional jurisdiction body plays an active role in protecting violated rights, in particular during a state of emergency. “Even during a state of emergency citizens have the right to submit individual complaints to the Constitutional Court”, the speaker stressed.
Speaking about the peculiarities of the cases brought before the Constitutional Court of the Republic of Turkey, Engin Yildirim noted that individual complaints are initially processed by the Court in accordance with a standard procedure, and then thoroughly analysed by the Court.
Director of Scientific Research Institute of Informatics and Law of the National Academy of Legal Sciences of Ukraine Volodymyr Pylypchuk drew attention to the problems of the formation of the national security law and the system of military justice in the context of protecting the constitutional rights and human security.
Recalling the constitutional night of 1996, the scholar congratulated the participants of this historic event, who directly participated in the adoption of the Constitution of Ukraine.
The speaker stressed the main threats to the constitutional human rights and freedoms in the area of ensuring national and international security of Ukraine. In particular, he noted, this is a problem of information security, stratification of the population, the crisis of the modern system of international security, the use of information weapons, etc.
The scholar also informed about the historical stages of the formation of legal support in the field of national security and defence, since the years of independence of the country and to date; the system of military justice of Ukraine; proposals on the formation of a modern model of military justice. In addition, he focused on the draft laws on the development of the security and defence sectors of Ukraine.
Judge of the Constitutional Court of the Republic of Croatia Andrej Abramović presented a report on „Fiat Iustitia, Pereat Mundus“, in which he analysed in detail the two cases that were brought before the Court. These cases concerned the violated constitutional rights of a police officer and a judge of the Supreme Court. The Constitutional Court of the Republic of Croatia in its decisions concluded that the rights to a fair trial had been violated.
President of the Constitutional Court of the Republic of Lithuania, Acting President of the Association of Constitutional Justice of the Countries of the Baltic and Black Sea Regions (BBCJ) Dainius Žalimas presented the report entitled “Balancing National Security and Human Rights: Current Regional Challenges”. He noted that one of the challenges to national security, which was considered by the Constitutional Court of the Republic of Lithuania, was corruption. “Corruption is a social phenomenon that undermines the trust of a person to the state”, the speaker stressed.
One more threat to national security, according to the President of the Constitutional Court of the Republic of Lithuania, is misinformation. “Freedom of information should be protected, because it is a fundamental, underlying freedom that is incompatible with misinformation”, the speaker stressed. He noted that the state should take effective measures against dissemination of misinformation, in particular fake and war calls that harm the constitutional democracy.
Dainius Žalimas also emphasised the extraordinary responsibility of the constitutional courts on the above-mentioned issues and emphasised that it is the constitutional courts with the power to interpret the constitution at a specific time in specific circumstances.
Member of the European Commission for Democracy through Law (Venice Commission), President of the Constitutional Court of the Republic of Moldova (2011-2017) Alexandru Tănase presented a report on international standards of irremovability of judges.
The speaker drew attention to the opinion of the Consultative Council of European Judges, the approaches of the European Court of Human Rights and the principles enshrined in the European Charter on the Status of Judges, in particular as regards their independence.
Alexandru Tănase paid special attention to the role of the presidents of the courts, noting that the leaders decide organisational issues and should enjoy the same guarantees as other judges. “The administration of justice must be democratic, and the principle of irremovability of judges is a guarantee of their independence”, he concluded.
The Head of the Department of Procedural Law of the Yuriy Fedkovych Chernivtsi National University Oksana Shcherbaniuk presented the report on “Human Rights and National Security: Problems of Ensuring by the Constitutional Court of Ukraine”.
The researcher noted that in recent years Ukraine faced acute problems related to the threat to the security of citizens, society and the state as a whole. Among them: the aggression on the part of the Russian Federation, the occupation of part of the territory of Ukraine, the general weakness of the political system, etc. Undoubtedly, the speaker emphasised that security cannot be ensured without an effective legal system and effective legal protection.
“Security was and remains one of the most important issues facing any society, any state, because without it there can be neither a state nor a person”, Oksana Shcherbaniuk highlighted.
The third sessions “The Role of Constitutional Jurisdiction in Ensuring Human Rights and National Security” was chaired by the Head of Constitutional Law Department of Taras Shevchenko National University of Kyiv Oleh Martseliak.
Professor of the University of Regensburg Rainer Arnold presented a report on “The Fundamental Right to Security. The German Perspective with Comparative Remarks”. He noted that security is extremely important both for politics and for law. According to him, the concept of “security” and the concept of “freedom” are interconnected. The Professor focused on one of the decisions of the Federal Constitutional Court of Germany, which states that the restriction of liberty is permissible, but must be legitimate, and in this case, it is in favour of the individual.
Rainer Arnold noted that the Federal Constitutional Court of Germany had developed the concept of specific security guarantees of the constitutional values in cases where there was a threat from the state or private individuals.
The speaker dwelt in detail on the types of security and stressed that the creation and maintenance of security is the task of the state. “The right to security is fundamental”, he stated.
President of the Constitutional Court of Montenegro Dragoljub Drašković presented a report entitled “The Role of the Constitutional Court of Montenegro in Creating a Constitutional Justice”. He described in detail the powers and activities of the constitutional control body of Montenegro and noted that in 2007 a new Constitution of Montenegro was adopted.
According to the speaker, the Constitution of Montenegro in 2007 separated the Constitutional Court from other branches of power and gave it new powers to consider constitutional complaints. “The introduction of a constitutional complaint institute is a new mechanism for the protection of human rights in Montenegro. A person who believes that his/her rights have not been protected by courts of general jurisdiction can protect their rights in the body of constitutional control”, the President of the Court emphasised.
International legal advisor, Minister of Justice of Georgia (2004-2005), President of the Constitutional Court of Georgia (2006-2016) George Papuashvili presented a report on “National Security and Restriction of Fundamental Rights: Examples from Georgian Constitutional Jurisprudence”.
The expert noted that the role of the Constitutional Court of Georgia is extremely important, as this court resolves the issues related to the protection of territorial integrity, democracy and sovereignty.
George Papuashvili informed colleagues in detail in respect of the decisions of the Constitutional Court of Georgia, dealing with issues of national security, as well as the legal positions set forth in the relevant decisions. In this context, George Papuashvili emphasised that the Constitutional Court should always find a balance between the interests of the state and the freedom of the individual. In his opinion, a clear division of powers between the state authorities contributes to the maintenance of constitutional values and the implementation of the norms of the Constitution.
Judge of the Constitutional Court of the Republic of Latvia Jānis Neimanis spoke on “The Role of Ordinary and Administrative Courts: Improving Better Protection of Fundamental Rights of Citizens”. According to him, comprehensive protection of the rights of a person is extremely important for national security. “If the rights and freedoms are not guaranteed, then the person does not feel his/her protection, and accordingly it will affect national security”, emphasised the Judge of the Constitutional Court of the Republic of Latvia.
Jānis Neimanis noted that in most European states, judges of general and administrative courts have the right to appeal to constitutional courts, so that the latter verify certain legal norms as to their constitutionality. Thus, the speaker emphasised, this ensures the uniform application of the rules of law and promotes the independence of judges.
Full Member of the National Academy of Legal Sciences of Ukraine Vasyl Kostytskyi presented a report on “Realism of the Constitutional Rights and Freedoms in Conditions of the Hybrid War: the Problem of Human-Centrism and Sociocentrism in Law”. “Today, the person is unprotected in front of a large body of information that is aggressive, discriminatory, destructive, manipulative, and is the subject of an information and hybrid war that covers not only the information sphere, but also economic, financial, and political”, he mentioned. Therefore, in the opinion of the speaker, it is necessary to consider security as an integrated concept, which includes different spheres of life. According to Vasyl Kostytskyi, there is a problem of the formation of a human living environment that would be safe, suitable for a decent existence, self-realisation and self-development. It is not only about the abstract rights of a person and a citizen but also about the reality of their guarantee and the mechanism for their implementation.
In addition, in the framework of the event, flowers were laid to a well-known Ukrainian historian, public and political figure Mykhailo Hrushevskyi’s monument, who was an ideologue and one of the authors of the Constitution of the Ukrainian People's Republic.