Tkach I. S.
Yaroslav The Wise National Law University, Ukraine

Social rights: problems of theory and practice

In modern society we can see the transformation of the legal system in Ukraine especially in the aspect of finding out the systemic nature of social rights. The term «social rights» means a set of constitutional rights of individuals which give an opportunity to receive from the state certain material goods under particular conditions. In this definition we should pay attention to the fact that constitutional rights only make it possible to claim for certain benefits and then only under specific circumstances. Unfortunately, the state can not always provide the social rights of individuals. Hence the issue of ensuring and guaranteeing social rights becomes a very pressing and topical problem of nowadays.

In order to solve it we must pay attention to the definition of the social, legal state. Such state should provide decent living conditions for all, the realization of interests of every citizen and a socially-oriented market economy. The conclusion is that the word "provide" is used in the future tense that indicates the uncertainty of the term "creation". Really some articles of the Constitution of Ukraine, which include certain social guarantees, need additional interpretation. Most of these articles mention that the state only "creates conditions for ..." Here the question arises, what will happen when the state is unable to create the conditions for social rights which are fixed in the Constitution of Ukraine. So, everyone has the right to health protection, medical care and medical insurance (Article 49 of the Constitution). However, this article suggests that the government should create conditions for effective and accessible health care for all citizens. But the problem is that it is difficult to determine how many years Ukraine will need in order to create these conditions.

As far as judicial protection of social rights is concerned, it is rather complicated because there is a lack of a particular defendant (this right often does not create for anyone direct duties). It follows that economic, social and cultural rights are only the standards according to which our state should strive. Some examples of resolving this problem in European countries are: Switzerland Supreme Court does not provide judicial protection and the right to nominate a constitutional complaint against the social and economic rights (because there is no specific defendant). The Constitutional Court of Austria holds the same position.

The Constitution of our country has only declared social rights, which unfortunately are poorly protected due to the lack of appropriate methods, ways and measures for their effective support. To solve this problem, we propose to adhere to the principle of proportionality between social protection and financial capabilities of the state during making laws in social sphere. Applying this principle the body of constitutional justice still has the right to recognize as constitutional such law that temporarily or permanently will restrict the content and scope of social rights of people established by the Constitution and laws of Ukraine (of the considerations that the state does not have enough financial resources for its implementation). The Constitutional Court of Ukraine pays attention on this in their practice in Decision of 8 October 2008, the number 20-rp/2008 in the cause of insurance benefits. The Court pointed out that the types and size of social services and benefits to victims that are carried out by the Fund for Social Insurance against accidents at work and occupational diseases in Ukraine have to be set by the state in view of its financial capabilities.

Thus, our government should try to ensure social justice, availability of the general good and equal starting opportunities and a fair trial. Changing the mechanism of charging certain social benefits and assistance is constitutionally permissible up to the limits of guarantee the essence of the right to social protection. So, only in such conditions we will reach the level of advanced and developed countries with the leading economy and decent human and civil rights.

References:

1. Constitution of Ukraine.

2. Aoife Nolan, Rory O'Connell and Colin Harvey “Budgets and the Promotion of Economic and Social Rights”.

3. http://en.wikipedia.org/wiki/The_Social_Contract.

4. Elisabeth Reichert “Social Work and Human Rights”.