How Are Decisions of UNO Committees Executed in Ukraine?

The Preamble of the UN Charter states that "reaffirming faith in fundamental human rights, in dignity and worth of the human person, in the equal rights of men and women and of nations large and small" is one of the Organization's objectives. Aiming at realization of this task, a wide network of the human rights institutions is found calling to guarantee the human rights observance by the countries.   These institutions include the UN Human Rights Committee, the UN Committee on Economic, Social and Cultural Rights, the UN Committee on the Elimination of All Forms of Racial Discrimination, the UN Committee on the Elimination of Discrimination against Women, the UN Committee against Torture, the UN Committee on the Rights of the Child, the UN Committee on the Rights of the Disabled people, and the UN Committee on the Rights of the Migrant Workers. These Committees have been established on the grounds of the respective convention or optional protocol thereto and are classified as Convention Agencies.

Ukraine as a state-participant of International Conventions in the sphere of human rights is a member-state of all above mentioned Convention Agencies. In accordance with Part 4 Article 55 of the Constitution of Ukraine "Each citizen of Ukraine, after application of national domestic remedies, is liable to claim his rights and freedoms in the International Courts of Justice or to corresponding international organizations, Ukraine being its member or participant".

The majority of the Committees have the same procedure for considering individual complaints against specific state-participant. The respective Convention Agency considers the individual complaint only after all national mechanisms of legal protection have been exhausted.

Despite numerous efforts of the community of nations in elaboration of the mechanism of control over states' execution of the assumed obligations on human rights, a binding nature of resolutions of UN Committees on individual complaints remains unclear. There are three groups of experts having different views on legal nature of decisions made by these international agencies.

The first group supposes that UN Committees belong to "quasi-judicial" rather than judicial bodies, thus, the states are not obliged to execute their decisions. In practice, Ukraine implements the position of those experts, and Ukrainian human rights defenders have faced these obstacles many times. "I have represented the applicant in one of these cases. We have filed a motion for the judgement revision with the Supreme Specialized Court.  However, the Court resolved that the UN Committee on Human Rights is not a judicial body and thus, our legislation does not require any judgement revisions on the grounds of the Committees' decisions" – Executive Director of the UHHRU, Arkady Buscheko shares his experience.  

The second group has the opposite opinion (pacta sunt servanta), according to which the states that ratified the International Convention and optional protocol thereto provide the Convention Agency with the range of monitoring authorities concerning certain state which, by recognizing the jurisdiction of the international agency, is obliged to execute its decisions on the individual complaints.

And finally, the third group is represented by the radical wing believing that the state is not only obliged to implement the decision of UN Committees but has to debate execution of such decisions in the UN Security Council as well, with possible sanctions arising therefrom.

The views of the scientists are different on this issue, in particular, O. Rudneva concludes that decisions of the Convention Agencies are compulsory for execution, however implementation by the states of these decisions lies solely in domestic political competence, whereas legal nature of these agencies is deprived of "the standards that would clearly and exhaustively point to the requirements applicable to the process of execution by the states of the Committees' decisions”.

І. Zubar and O. Kucher state that decisions of the Convention Agencies are not effective enough as they resolve the "general remarks" and "general recommendations" containing ethical rather than ultimate obligation of states to implement the reports of UN Committees. However, advisory nature of decisions is supposed to attract attention of the Community of Nations to severe violations of human rights and creates the basis for political leverage on administrative authority of the state that has violated the International Conventions.

In opinion of V. Kartashkina, the main violations of the human rights and freedoms are caused to a large extent by the lack of political will of the UN member-states in establishment of the cross functional remedy for human rights infringements with eligible powers and authority. Therefore, in order to enhance efficiency of UN Committees' decisions, it is necessary to reform the relevant Convention Agencies vesting them with the right to accept statutory decisions.

Thus, execution by the states of the UN Committees' decisions depends solely on the political will of the governance. Civilized states are concerned about their image, which is why they defer to every decision of the corresponding Committee, restore violated rights of the claimant and modify domestic legislation.

International Conventions ratified by the Supreme Council are a part of domestic legislation of Ukraine, thereupon they are classified as standards of direct application. "And yet, the decisions of the UN Committees made on Ukraine's implementation of provisions of mentioned documents… is more likely the means of moral rather than juridical pressure on the governance" – Oleksandra Delemenchuk states, the director of International Programs of the Civil Liberties Centre.

The case of "Viktor Shchitka vs. Ukraine" can be set as the patent example. In 2000, the citizen V. Shchitka was found guilty of intentional homicide combined with rape, robbery of personal effects and illegal offensive weapons bearing and was sentenced to life imprisonment with confiscation of property. In 2011, the UN Human Rights Committee adjudged the infringement by Ukraine of a number of provisions of the International Covenant on Civil and Political Rights: torture (Article 7 of the Covenant), right to protection (Article 3g Article 14 of the Covenant), right to examination of witnesses (Article 3e Article 14 of the Covenant), minimal guaranteed deficiency of fair trial (Item 1 Article 14 of the Covenant). The Committee adopted a decision on necessity of fact-finding inquiry on application of tortures, judicial revision of the criminal case and recovery of damages to Shchitka V.V. However, the Supreme Specialized Court of Ukraine (SSCU) dismissed the Shchitka's case on the ground that remarks of the UN Human Rights Committee are not the decision of the judicial body. Besides, the Public Prosecutor's Office dismissed the application of V. Schitka on verification of the facts infringing the above mentioned provisions of the Covenant and stated that the Committee's conclusions were not confirmed in the course of examination.

Guided by the same considerations, SSCU proceeded on the case of "Oleksandr Butovenko vs. Ukraine". The UN Human Rights Committee recognized the infringement according to Article 7 (torture application) Item 3 Article 2 (absence of torture investigation and abusive treatment), Item 1 Article 9 (arbitrary imprisonment), Item 1 Article 14 and 4 from 7 subitems of Item 3 Article 14 of the Covenant.

As to the cases of V. Schitka and O. Butovenko, SSCU proceeded from the effective CPC that did not regard the decisions of the international extra judicial (quasi-judicial) agencies as the grounds for revision of the judgements made. The other case concerns the European System of Human Rights Protection as the judgements of the Human Rights European Court have a binding nature and are not subject to appeal. Consequently, claimants from Ukraine mainly rely upon the regional mechanisms, especially since the European Human Rights Convention duplicates the majority of the rights and freedoms contained in the respective UN Conventions.

Summing up, a conclusion can be drawn about the lack of efficient mechanism of UN Committees' decisions enforcement in Ukraine, which often causes the actual defiance of decisions made by these international agencies. 

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