АННОТАЦИЯ

Монография является первым в отечественном правоведе­нии общетеоретическим исследованием экономических и со­циальных прав человека, их европейских стандартов и юриди­ческого механизма имплементации этих стандартов в Украине.

В результате исследования генезиса представлений об эко­номических и социальных правах человека охарактеризованы их общетеоретические модели: классическая (либеральная) (когда такие права рассматриваются лишь как декларации, иде­алы, принципы, которые, однако, не могут быть непосредствен­но обеспечены государственно-юридическими институциями, в частности судебными), социалистическая (экономические и социальные права являются определяющими по отношению ко всем другим группам прав человека, которые как бы произво­дны от них) и универсальная (синтетическая) (все группы прав человека являются неделимыми, неотъемлемыми, равнознач­ными, взаимообусловленными и взаимозависимыми).

Сформулированы и обоснованы специфические особен­ности экономических и социальных прав человека. По-новому определяется общее понятие европейского стандарта прав че­ловека как позитивного международно-волевого проявления естественного права. Обозначены признаки стандартов эко­номических и социальных прав, предлагается классификация этих стандартов по различным критериям (с учетом положений Европейской социальной хартии (пересмотренной)), в частно­сти в зависимости от: действия по кругу лиц (действующие на всех субъектов, на определенный круг лиц); видовой специфи­ки адресатов стандартов (права индивидов, права семьи, права представителей трудящихся, права организаций трудящихся (в том числе профсоюзов); способа осуществления (индивидуаль­ные, коллективные); содержанию возможностей, закрепленных Хартией (права в сферах: занятости; труда; образования; охра­ны здоровья; социального обеспечения). Выявлены соотноше­ние и взаимосвязь таких стандартов в Европейском Союзе и в Совете Европы.

Охарактеризована квазисудебная природа деятельности Европейского комитета по социальным правам в рамках кон­трольных процедур, установленных Хартией; проанализирова­ны все его правоприменительные акты. Впервые определены и охарактеризованы принципы толкования этим Комитетом норм Хартии, а именно: эффективность, пропорциональность, авто­номность, свобода национального усмотрения, фундаменталь­ное единство всех групп прав человека.

В результате исследования требований и показателей над­лежащего использования в юридической практике Украины актов Европейского комитета по социальным правам как не­обходимой составляющей европейских стандартов рассматри­ваемых прав человека предложены пути оптимизации процесса внедрения таких стандартов в юридическую практику Украины. В связи с этим сформулирован ряд предложений по уточнению конституционных формулировок принципа недискриминации (равенства), а также прав на свободу объединения, на труд, на достаточный жизненный уровень.

SUMMARY

The actuality of the research, correlation to the relevant scien­tific programs and topics are presented in the introduction. Further­more, the object and the subject, the purpose and the main targets of the dissertation are defined. The characteristics of the ways and methods applied, the novelty and practical value are analyzed. The data on theoretic notions approbation and dissertation structure are laid out.

In the first Chapter “General theoretic characteristic of eco­nomic and social human rights and their European standards” general theoretic models of economic and social human rights, their notion and peculiarities are considered. The notion and features of the European standards of the rights are stated as well as classified.

In the subchapter 1.1. “General theoretic models of eco­nomic and social human rights” the study of the basic models of economic and social human rights under the scope of major law conceptions (natural and positivistic), which are applied for the in­terpretation and explanation of the legal nature of human rights in general are analyzed.

Based on the United Nations Organization (see - UN), CE con­ventional acts and the Court, the Committee and the Constitutional Court of Ukraine practice the major role of general human values (above all human dignity) as the foundation of the processes of uni­versalization and unification of human rights content is presented.

In subchapter 1.2. “Economic and social human rights: their notion and peculiarities” general ideas concerning the rights are laid out and their peculiarities are defined. On the bases of general approaches to the definition of the mentioned above rights analysis the conclusions are given. Economic rights provide opportunities to self-realization and earning ones living by taking part in produc­tion or production management. In its turn, social rights provide op­portunities to receiving means of subsistence and other social care means from the social sources (including governmental) through social dependency (alimony).

The practical value of economic and social human rights can be determined by their factual realization. Hence, the peculiarities of the rights, which precondition the realization, have been analyzed. It has been pointed out that the State positive efforts, which demand considerable financial expenses and depend on the economic situa­tion of the State, are required for the rights realization. The obliga­tion of the State to provide economic and social rights is usually less formalized and defined in comparison to obligation of the State to provide civil and political rights, which results in adopting of the mainly evaluating definitions of the basic notions while securing these particular rights.

In subchapter 1.3. “European standards of economic and social human rights: definition, features, classification” general theoretic analysis of the basic notion, reflecting essential phenom­enon concerning international protection of human rights, which is “European standards of economic and social human rights” has been researched. Specification of the aforesaid notion definition and its features on the basis of existing international legal acts and scientif­ic research generalization is provided. Economic and social human rights standards corresponding to ESC (r) have received the new classification in accordance to such criteria: legal action on subjects, mode of realization, substance of opportunities, secured in ESC (r).

The second Chapter “The standards of economic and social human rights secured in Council of Europe acts and their inter­pretation by its special bodies” brings into light the principles and normative requirements to national legal relationship regulation in the sphere of gaining the means of subsistence and the abovemen­tioned norms interpretation by CE special bodies.

In subchapter 2.1. “Economic and social rights under the Convention for the Protection of Human rights and Freedoms and their protection by the European Court on Human Rights” careful characteristics of the Convention, its Protocols, the Court precedents, including the number of its decisions against Ukraine, is given. Despite the fact that the Convention deals with civil and political rights, this document as well as the Court practice reflects the principle of universality, unity, interdependency and equivalency of human rights and freedoms including economic and social rights. The Court practice, which is characterized as historical and dynam­ic, reflects the values of the European community such as the State obligation to fulfill specific positive efforts and similar approach to legal protection of all human rights. In conclusion the finding on the possibility of the Convention protection of economic and social hu­man rights is presented.

In subchapter 2.2. “European Social Charter (revised): gen­eral characteristic” the international treaty on human rights, which is now compulsory for Ukraine, has been analyzed. Hence, ESC (r) was ratified by the Law of Ukraine “On ratification of European Social Charter (revised)” adopted on September 14, 2006 the human rights system stated in the ESC (r) is laid out and classified.

The peculiarities of the control mechanism under the ESC (r), which is presented in the form of two different procedures (national reports monitoring and collective complaints examination) has been researched. Special emphasis is made on the features of the Com­mittee functioning as a quasijudicial body. Further development and efficiency improvement of control procedures under ESC (r) are highlighted.

In subchapter 2.3. “Economic and social human rights stan­dards in European Union and Council of Europe: correlation and relationship” the state of these rights securing and their legal status within EU (under the EU Charter of fundamental human rights in particular) have been analyzed. Having joined the Convention and adopting precedent practice of the Court, EU, however, has not le­gally incorporated ESC (r) in its legal system. Nevertheless, taking into consideration the principle of human rights universality, it is suggested to define the decisive role of ESC (r) in filling economic and social human rights (under the EU Charter of fundamental hu­man rights) with their precise meaning.

The principle of avoiding of text dubbing of EU and CE legal systems provisions has been characterized. On its basis it has been concluded that the interpretation and development of economic and social human rights (under the EU Charter of fundamental human rights) should be provided through the factual reception of the ESC (r) application practice of the Committee.

In subchapter 2.4. “The peculiarities of European Social Charter (revised) interpretation principles (based on the Eu­ropean Committee on Social Rights practice)” for the first time the system of principles of the Committee’s interpretation activity is pointed out.

It should be mentioned that the Committee in its activity provides ESC (r) norms interpretation on the basis of the following principles: effectiveness, proportionality, autonomy, freedom of national discre­tion, fundamental unity of human rights. In order to specify the quali­ties of the principles, each of them has been characterized on the basis of Committees Decisions and Conclusions. It has been stated that in the process of Committees interpretation of ESC (r) norms, the ap­plication of the fundamental unity of human rights principle is crucial and decisive. It can be proved by the Committees active application of the Court approaches and practices in human rights protection under ESC (r). Furthermore, the Committee protects particular human rights of “the first generation” applying certain ESC (r) provisions.

In Chapter III “The problems of the European standards of economic and social human rights implementation into legal practice of Ukraine” the legal remedies of the standards securing, problems of the ESC (r) implementation into national legal practice as well as the role of the Constitutional Court of Ukraine in their securing are analyzed.

In subchapter 3.1. “The implementation of the European Social Charter (revised) into legal practice of Ukraine: its prob­lems and prospects” it is stated that the ESC (r) as an inevitable part of the legal mechanism of economic and social human rights se­curing is supposed to be applied taking into consideration the Com­mittee practice and its interpretation of the Treaty.

Contemporary state of the European standards of economic and social human rights implementation in the currant legislation of Ukraine is examined. In spite of the formal conformity of the Con­stitution of Ukraine to ECS (r) provisions, it is necessary to amend a range of articles of the Constitution of Ukraine (art. 24, 43, 47, 127) as well as certain Laws of Ukraine. The foundation to these amend­ments is being laid by certain ESC (r) provisions interpreted in the Committee practice context.

The urgency of taking into consideration by governmental bod­ies (the Ministry of Labor and Social Policy of Ukraine) the Com­mittee’s principles including the national legislation and practice gradual transition to the ECS (r) requirements (within reporting pro­cedure compulsory to Ukraine) has been stated.

In subchapter 3.2. “The Constitutional Court of Ukraine role in economic and social rights of individual and citizen se­curing” the practice of securing and protection of the rights by the Constitutional Court of Ukraine has been scrutinized. The possi­bility of ESC (r) application as an argument for substantiation of corresponding Constitutional Court of Ukraine decisions has been researched.

According to the research results the conclusions were made:

1. The understanding of the human rights nature in general is correlated with the choice between two main conceptions: natural and positivistic. In each of them economic and social rights has been separated and specified. In the process of aforementioned rights his­toric development three major general theoretic models have been derived. The models serve as an instrument for economic and so­cial human rights nature definition as well as correlation with other groups of human rights and above all with civil and political rights of the human. To such models can be attributed:

A) Classic (liberal) model. According to which economic and so­cial rights cannot be considered as legal rights, but are seen merely as declarations, ideals, principles, “general public rights” (in their political sense). They cannot be secured immediately by the State bodies includ­ing judiciary contrary to the “classic” rights - civil and political. Such model is usually immanent to natural conception of human rights.

B) Socialistic model. Economic and social human rights are de­terminative to the other groups of rights. Civil and political rights derive from them. A paternalistic State grants the rights to citizens by means of its legal acts. Such model is usually immanent to posi­tivistic conception of human rights.

C) Universal (synthetic) model. All human rights are indivis­ible, inalienable, universal, correlated and interdependent. This model, implemented on the highest international level, represents an official UN position. Most States participation in international trea­ties on human rights shows the tendency to the transition from two aforementioned models to the synthetic one.

2. Economic and social rights are characterized by certain pecu­liarities in comparison to other groups of human rights. Such rights cover social and economic sphere of existence. They consist of the opportunities to self-realization and earning ones living, by taking part in production or production management or receiving means of subsistence and other social care means from the social sourc­es through social dependency (alimony). To secure such rights the State positive efforts, which demand considerable financial expens­es affordable to the State, are required. The obligation of the State to provide economic and social rights is usually less formalized and defined in comparison to obligation of the State to provide civil and political rights. This results in adopting of the mostly “mild (soft)”, recommending, evaluating definitions of the basic notions (i.e. “de­cent standard of living”, “fair working conditions”, “adequate and affordable housing” etc.) while securing these particular rights. Se­curing of the mentioned above rights is the main function of the Social State.

3. Any human right (including economic and social) is consid­ered first of all to be a natural one. The positive (as usual through in­ternational legal act) demonstration of the natural right is considered to be its standard. Therefore, the European standard of economic and social human right can be considered as an opportunity of the person to satisfy the needs in economic and social spheres of exis­tence, secured by a corresponding regional international treaty. This standard is meant to be the landmark for the consequent national legal practice. The range of the mentioned opportunities is specified in the process of the conventional acts interpretation by specialized international institutions. As the features of such standards can be taken their “model” type, assessment of the minimal requirements, its positive legitimacy, the pluralism of institutional mechanisms of their implementation and protection, sufficient freedom of national discretion in standards application.

4. Economic and social human rights standards corresponding to the ESC (r) can be classified in accordance to such criteria: legal action on subjects: a) covering all the subjects (i.e. “each person”, “everyone”), b) covering certain subjects (for instance the elderly, the disabled): according to the kind of the addressees: a) the rights of an individual, b) the rights of the family, c) the rights of the employees representatives, d) the rights of the employees organizations includ­ing trade unions, e) the rights of the employers, f) the rights of the employers organizations; according to the mode of realization: a) in­dividual, b) collective; according to the substance of opportunities, secured in the ESC (r): a) the rights in the sphere of employment and work, b) education, c) healthcare, d) social security and protection.

5. Complex characteristics of the Convention, its Protocols, the Court precedents revealed the possibility of certain economic and social rights protection under the Convention, which secures aforesaid rights directly (in particular, the prohibition of forced la­bor, property right protection, the right to education, freedom of as­sociations) and indirectly (social guarantees of the right to fair trial, the right to family life, the right to civil rights and duties protection, freedom of speech in connection with the civil service).

6. The main aim of the ESC (r) legal order concerning econom­ic and social human rights lies in the CE States achievement of the conditions under which the principles and rights of the ESC (r) can be effectively exercised through respective policy fulfillment by all national and international means. For this reason the ESC (r) control mechanism was established. Under this mechanism the Committee exercises a legal assessment of the conformity of national situations with the ESC (r). In particular the Committee fulfills the monitoring procedure based on national reports (adopts Conclusions) and the collective complaints procedure (adopts Decisions).

7. The analysis of the corresponding ESC (r) norms, the Rules of the Committee and its legal practice allows to arrive at the conclu­sion about quasijudicial nature of the Committee’s activity. Hence, the Committee, headed by the President, acts collectively and ex­amines the cases at its sessions. The Members of the Committee are independent and impartial, before taking up their duties make the solemn declaration. The monitoring procedure based on nation­al reports and, especially, the collective complaints procedure are grounded on the principles of the procedures public nature, equality and competitiveness of the parties. The Decisions of the Committee are presented in the judicial form and consist of description, motiva­tion and conclusion parts and can be accompanied by the opinions.

The acts of the Committee cannot be appealed and have certain characteristics of the precedent. The legal positions, which are set forth in the Conclusions and the Decisions, have an effect on all State Parties. Furthermore, the implementation of the positions is fulfilled by the Committee through the monitoring procedure, which also covers the judicial practice of the States. The Committee’s ex­perience in law-applying, which is exploited and modified dynami­cally, makes it possible to provide the legal protection under ESC (r). Nevertheless, the Committee cannot be regarded as “solely” judicial body as its Decisions and Conclusions cannot be taken as formal compulsory legal acts in its classical (normative) meaning. However, control mechanism of their execution (“the follow-up”) as well as compulsion (at least political) makes the avoidance of the Committees acts fulfilment extremely difficult. Moreover, the Com­mittee recognises gradual transition of the situation in the field of the corresponding economic or social human right into conformity to the ESC (r) requirements.

8. The Committee in its activity provides the interpretation of the ESC (r) norms on the basis of the following principles: effec­tiveness, proportionality, autonomy, freedom of national discretion, fundamental unity of human rights.

The principle of effectiveness implies that the Committee se­lects the interpretation of a certain ESC (r) norm that allows ensur­ing the highest level of the corresponding right protection.

The principle of proportionality is called to secure a reason­able balance between human rights under the ESC (r) on the one hand, and the interests and abilities of the society and the State on the other hand. The Committee controls the appropriateness of the State measures through checking out whether the State restrictions of the human rights correspond to the aim, which determines such a restriction.

The principle of autonomy assumes the Committees own inde­pendent interpretation of the ESC (r) notions based on generally rec­ognized principles of international law, various international legal acts and, in some cases, on certain national law common principles. The need of such interpretation arouses when a State, depending on its national legislation, implies its “own” meaning in ESC (r) norm, applied by the Committee.

The definition of the principle of freedom of national discre­tion can be specified as the way of the ESC (r) norms interpreta­tion taking into consideration delegated (by the ESC provisions) to the Member States freedom of discretion, concerning understanding and application of the ESC (r) provisions, ensuring proper condi­tions for human rights securing and protection as well as achieving the balance between the rights and the national interests.

The principle of fundamental unity of human rights, with respect to “second generation” rights peculiarities and historically formed ideas of their “secondary” nature and non-legality, is considered to be crucial and decisive. This can be proved by the Committee active application of the Court approaches and practices in human rights protection under the ESC (r). Furthermore, the Committee protects particular human rights of “the first generation” applying certain ESC (r) provisions. The application of the aforesaid principle in the process of the ESC (r) interpretation reveals the humanistic nature of any human right essence's interpretation on the basis of social­demand approach, according to which human rights release the op­portunities to satisfy human needs.

The abovementioned principles of interpretation not only inter­act, but also correlate with each other, which allow defining them as a system. They make considerable impact on generally applied by the Committee ways of interpretation (especially systematic, teleo­logical and evolutionary) as well as on meaningful coverage of the interpretation results.

9. The principle of respect to human rights, reflected in the EU Statutory acts as well as in the EU Charter of fundamental human rights, is one of the basic EU law principles. This can be proved by EU joining the Convention with its reception of the Court precedent practice. Despite the fact that the ESC (r) has been acclaimed as the source of the mentioned above Charter in the field of economic and social rights, the CE Treaty has not been legally incorporated in the EU legal system as well as the Committees precedent prac­tice. Nevertheless, taking into consideration the principle of human rights universality, it is suggested to define the decisive role of ESC (r) in filling economic and social human rights (under the EU Char­ter of fundamental human rights) with their precise meaning. Taking into consideration the EU desire to avoid text dubbing of EU and CE legal systems it has been assumed that the interpretation and development of economic and social human rights within the EU legal system should be provided through the factual reception of the Committees practice of ESC (r) application.

10. ESC (r) as an inevitable part of the legal mechanism of eco­nomic and social human rights securing is supposed to be applied taking into consideration the Committees practice and the interpre­tation of the Treaty. It is the implementation coverage that corre­sponds to the European practice and, first of all, to the Committees legal assessments concerning the European standards of economic and social rights effective introduction into national legislation, ju­dicial and administrative practices. This should be taken into con­sideration while solving the problematic issues connected with the ESC (r) implementation into national legal practice of Ukraine. Ac­cording to this, the possibility of the ESC (r) application as an argu­ment for substantiation of the corresponding Constitutional Court of Ukraine decisions has been stated. The necessity of taking into consideration the Committee’s interpretation and law-applying prin­ciples within the monitoring procedure compulsory for Ukraine has been pointed out.

11. In spite of the formal conformity of the Constitution of Ukraine to the ECS (r) provisions, it is necessary to amend a range of articles of the Constitution of Ukraine (art. 24, 43, 47, 127) as well as certain Laws of Ukraine (“On Trade Unions, Their Rights and Operation Guaranties”, “On Collective Agreements and Trea­ties”, “On Judiciary of Ukraine”, “On Organizations of Employers”) in accordance to the ESC (r) as a part of national legislation. The dissertation suggests corresponding specifications.