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17.05.2004

Draft of the Law of Ukraine On the status of the Human Rights Ombudsperson

   

A draft

Chapter 1. General

Article 1. People’s Rights Protector is the superior independentpublic officer whose activity is directed to the confirmation andprotection of human rights and liberties, as well as the publiccontrol of implementation of the latter and their guarantee by state agencies and officials of Ukraine.

Article 2. The powers of People’s Rights Protector and organizationalprinciple of his activity are determined by the Constitution ofUkraine and by the present law, besides they are guaranteed by othernormative acts of Ukraine.

In the proper order and in the framework of his competence People’sRights Protector’s activity is governed by principles and norms ofthe international right and by international agreements concerninghuman rights and liberties which are operable in Ukraine.

Article 3. In his activity People’s Rights Protector guarantees humanrights and liberties independent of a person’s race, sex,citizenship, ethnic or social origin, estate or other status,position, occupation, living place, language, religion, political andother views.

Article 4. People’s Rights Protector is an independent institution,hence any illegal intrusion of agencies of state orself-administration, state officials, mass media, public andpolitical organizations (movements) or their representatives intohis activity with the aim to influence his resolutions areprohibited.

Article 5. People’s Rights Protector’s activity is open for publicinspection.

Article 6. People’s Rights Protector organizes and heads theautonomous system of nongovernmental bodies for the control ofguarantees of human rights and liberties, which includes the NationalBureau for human rights and liberties, People’s Rights Protector’srepresentatives in the autonomous republic of Crimea, in regions, inthe cities of Kyiv and Sebastopol.

Chapter 2. Election of People’s Rights Protector

Article 7. People’s Rights Protector is elected from one or severalcandidates with the previous recommendation of the Association ofnational human rights protecting organizations of Ukraine; thecandidate must be a citizen of Ukraine, fully competent, not youngerthan 30, possessing high morals, experienced in the protection ofhuman rights and liberties.

Article 8. People’s Rights Protector is elected for the term of sixyears. No one shall be selected for more than two terms.

Article 9. On the basis of the recommendations mentioned in Article 8People’s Rights Protector is elected by the Supreme Soviet ofUkraine, after putting out his candidature by the majority ofdeputies’ fractions by simple majority of votes (from the number ofdeputies determined by the Constitution) by secret voting.

A deputies’ fraction may put out one or several candidatures to thispost.

Article 10. In case of non-election of People’s Rights Protector, themajority of deputies’ fractions during a month from the previouselection repeatedly puts out a candidature to the post of People’sRights Protector.

The repeated voting is done according to the procedure determined byArticle 9 of this law.

Article 11. People’s Rights Protector while entering his positiontakes an oath of such a sense: ’Entering the position of People’sRights Protector, I swear before the people of Ukraine to fulfill myduties honestly and industriously for in man, his rights andliberties, I esteem the greatest public value, and I promise by usingall my powers in the framework of the Constitution and laws ofUkraine and following my own consciousness to intrepidly stand onguard of human rights and liberties’.

The oath shall be taken by the speaker of the Parliament at theplenary conference of the latter.

Article 12. The powers of People’s Rights Protector start on the dayof taking the oath and end at the moment of taking the oath by hissuccessor.

Article 13. People’s Rights Protector has the right to be a member ofthe Parliament of Ukraine and teach or do scientific research in thetime free of his principal duties.

Article 14. People’s Rights Protector has the right of inviolabilityof person to the same extent as a member of the Parliament.

Article 15. The powers of People’s Rights Protector may be stoppedbefore the appointed time in the following cases:

1) People’s Rights Protector’s voluntary resignation;

2) People’s Rights Protector’s death;

3) when People’s Rights Protector for a considerable time (six monthson end) was unable to fulfill his duties owing to ill health ordisability or exhaustion;

4) after a court’s verdict against People’s Rights Protector cameinto a fact.

Article 16. On having completed his duties, People’s Rights Protectorhas the right to return to the position which he had occupied beforehis election or, if it is impossible, to an equivalent position whichsuits him.

Chapter 3. People’s Rights Protector’s powers

Article 17. People’s Rights Protector considers complaints ofphysical and juridical persons concerning the violation orinsufficient observation of human rights and liberties caused byactivity (or inactivity) of any state agencies and officers.

People’s Rights Protector considers complaints concerning theviolation of human rights and liberties which are guaranteed by theConstitution of Ukraine, legal acts of Ukraine and internationalagreements operable in Ukraine.

Article 18. Forms and methods of considering complaints aredetermined by People’s Rights Protector himself. He has powers:

a) to start a public investigation according to the complaint;

b) to direct the complaint to a competent state agency or officer forits solution;

c) to start other actions permitted by this law.

People’s Rights Protector has the duty to start the publicinvestigation of the complaint if the handler of the complaint has noother legal mechanisms to protect his rights and liberties.

Article 19. People’s Rights Protector does not start the publicinvestigation and does not consider complaints about actions andresolutions lying in the competence of the Parliament of Ukraine,President of Ukraine, Constitutional Court of Ukraine and actsalready decided upon by the Supreme Court of Ukraine except the caseswhen it is legally permissible to turn to international (European)agencies for the protection of human rights and liberties.

Article 20. People’s Rights Protector shall consider the complaintswithin his competence handed by members of the Parliament, thePresident of Ukraine, All-Ukrainian human rights protectingorganizations and People’s Rights Protector’s representatives in theregions and the cities of Kyiv and Sebastopol.

Article 21. A complaint to People’s Rights Protector is handed inwriting, in an arbitrary form and must include the data on theperson who hands the complaint, the subject of the complaint, thename of the state agency or officer whose activity (or inactivity) iscomplained about.

Article 22. The complaint is handed to People’s Rights Protector notlater than one year after the moment when the complainer learnedabout the abuse and not later than three years since the day ofviolation of rights and liberties. If a complaint is handed later,then People’s Rights Protector may consider it if he himself finds itnecessary.

Article 23. People’s Rights Protector accepts complaints forconsideration if he believes that his personal efforts will lead torestore the abused human rights and liberties, will help to preventillegal activity of state bodies and officers or put a stop to suchactivity.

Article 24. No tax is imposed for handing a complaint to People’sRights Protector.

Article 25. People’s Rights Protector may start a publicinvestigation by his own initiative, having learned from mass mediaor other sources about the cases of substantial abuse of human rightsand liberties as well as for protecting rights and liberties of thementally retarded, old, handicapped, adolescents, and other personswho are unable themselves to use the legal ways for protecting theirrights and liberties.

Article 26. People’s Rights Protector may start a publicinvestigation for checking legality, as well as objectivity andjustice in activity (or inactivity) of state agencies,self-administrating bodies and officials of the both as to observingby them human rights and liberties.

Article 27. While considering handed in complaints or starting apublic investigation by his own initiative People’s Rights Protectorhas the following powers:

a) require from state agencies, self-administrating organizations,establishments, enterprises, organizations, citizens’ unions, andtheir officials any documents or information needed for finding thetruth concerning the investigation, as well as to interrogateresponsible officials about the questions within the investigation;unclosing to People’s Rights Protector any information containingstate secrets or other secrets guarded by the law is done in theorder determined by the respective law;

b) to visit any state agencies, self-administrating organizations andestablishments without any restrictions, having the aim of checkingnecessary data, meetings with needed people or perusing service filesand other documentation;

c) to visit court conferences and other meetings of any stateagencies and self-administrating organizations and have access to thememos of meetings including the right to copy necessary documents;

d) to summon or visit officials of state agencies andself-administrating bodies, as well as other citizens and to takefrom them oral or written explanations which are needed for theinvestigation connected with the guarantee of human rights andliberties;

e) to send, if necessary, needed officials and specialists on errandsfor taking revisions of financial and economic activities, as well asconducting needed expertise within the proper part of the budget ofthe National Bureau;

f) to start a public investigation in cases of abusing human rightsand liberties, as well as send requests for the fulfillment ofseparate tasks by Procurator’s office, Ministry of Internal Affairsand Security Service of Ukraine.

Article 28. The term of resolving of complaints received fromphysical persons by People’s Rights Protector shall not exceed threemonths.

Article 29. Having finished considering a complaint, People’s RightsProtector takes a decision which is sent to the person (agency) whichhanded in the complaint, to the person whose rights or liberties wereabused, to the official who is responsible for the violation of humanrights and liberties and to the head of the latter for taking upnecessary measures.

Article 30. If a violation of human rights and liberties occurred,People’s Rights Protector has the following rights:

1) to point at errors made by officials, to warn them, to propose toremove the violations, to pass the materials concerning the guilty tosuperior agencies for taking up necessary measures;

2) to suggest to the heads of the Ministries, agencies, state bodies,law enforcing bodies, self-administrating bodies, enterprises andorganizations, independent of the form of property, that the acts (oractivities) of the officials that violate human rights and libertiesshould be cancelled (or stopped);

3) to suspend up to ten days obviously illegal actions of officials(except those mentioned in Article 19), in case if these actions maysubstantially harm human rights and liberties, immediately informingtheir superiors about the taken measures;

4) to request the superiors to punish the officials guilty of abusinghuman rights and liberties according to the operable laws on laborand similar acts (People’s Rights Protector’s resolution in this casedemands that the above-mentioned superiors reacted and informedPeople’s Rights Protector about the measures taken within ten days);

5) to put a request on disemployment of the officials who are guiltyof repeated or rude violation of human rights and liberties;

6) to denounce publicly (using the mass-media) the officials who areguilty of abusing human rights and liberties, as well as to theirsuperiors who disregarded People’s Rights Protector’s appeal and didnot apply proper measures relative to the guilty;

7) to direct, if necessary, the request to the Procurator, in whichafter having described the fact of disregarding People’s RightsProtector’s recommendations or repeated violations of human rightsand liberties, to request application of the measures listed in theUkrainian law ’On Procurator’s office’

8) to prosecute in court the cases of abusing human rights andliberties, when they are violated by activity of state agencies,self-administrating bodies and their officials, as well as toparticipate in the trial;

9) to send to Procurator’s offices and other law enforcing bodies anymaterials found during the investigation, which impose criminal,administrative and other juridical responsibility, for taking upmeasures stipulated by Ukrainian laws;

10) to turn to the instances stipulated by this law withrecommendations about reconsidering court decisions, if there aredata that during the trial substantial violations of human rights andliberties occurred, which affected the court’s ruling that camealready to the legal effect.

Article 31. A body or an official after having received the People’sRights Protector ruling based on the result of the publicinvestigation shall consider People’s Rights Protector’srecommendations within a month and inform him about the measuresagainst the violation of human rights and liberties or explainwhy his recommendations were not accepted.

Article 32. People’s Rights Protector’s recommendations taken by himafter considering a complaint and conducting the public investigationcannot be appealed against in the framework of the national legalsystem, though they may be considered at the plenary meeting of theParliament and in Parliamentary Commissions.

Article 33. According to the results of investigating complaints orconducting investigations by his own initiative or analyzing othersources dealing with the abuse of human rights and liberties,People’s Rights Protector has the right:

1) to direct to state agencies, self-administrating bodies and theirofficials his estimations and conclusions of general kind intended atsupporting real protection of human rights and liberties andperfecting the procedures for their support;

2) to hand requests to the Constitutional Court of Ukraine toinitiate checking how separate legal acts of Ukraine correspond tothe Constitution and to international agreement on human rights andliberties officially recognized by Ukraine;3) to direct requests to the Ukrainian Parliament as to the authenticinterpretation by laws or their separate clauses;

4) to hand to the Supreme Court of Ukraine well-grounded propositionson the adoption of rulings and resolutions intended at theinterpretation of juridical clauses which raise doubts or substantialdifferences in verdicts and rulings of courts;

5) to direct to state agencies, self-administrating bodies and theirofficials appeals as to the status and proper implementations of theirpowers with respect to human rights and liberties, as well aspropositions to take proper measures in this connection;

6) to direct to state agencies, self-administrating bodies and theirofficials on the state and local levels his propositions about somechanges of conventional criteria that are implemented in thefulfillment of separate legal acts and their clauses.

Article 34. People’s Rights Protector has the right of thelegislative initiative, he can suggest for consideration of theParliament drafts of legal acts for the replacement or completion oflaws in the interests of supporting human rights and liberties.

Article 35. People’s Rights Protector not less frequently than once ayear and not later that one month before the end of the calendar yearhands the Parliament the report on his activity, in which he givesgeneral evaluations, conclusions and recommendations, concerningguarantees of human rights and liberties in Ukraine, together withhis propositions aimed at the improvement of the existing situation.People’s Rights Protector’s report must be distributed by audio andvisual means throughout Ukraine. The part of the report, whichcontains state secrets and other information, the secret character ofwhich is protected by law, shall be delivered at a closed plenarymeeting.

People’s Rights Protector has the right to direct to the Parliamentspecial reports devoted to separate questions of supporting humanrights and liberties. These reports shall be widely published innational mass media.

Article 36. State officials of all levels, as well as ofself-administrating bodies, enterprises, establishments,organizations of all kinds of properties, law enforcing bodies andcourts shall cooperate with People’s Rights Protector in the field ofsupporting human rights and liberties.

Article 37. By People’s Rights Protector’s request all officialsshall give him needed materials, documents, information, as well asexplanations about their juridical and other motives of their actionsand decisions for all-sided, full and objective investigation.

The materials, documents, information and explanations, requested byPeople’s Rights Protector, shall be given to him not later than twoweeks after the moment of mailing the request. In separate cases,with People’s Rights Protector’s agreement, this term may be doubled.

Article 38. Ignoring by officials People’s Rights Protector’srequests as to handing him materials, documents, information andexplanations is considered as an administrative felony or, ifstipulated by the criminal code, as a crime.

Chapter 4. National Bureau for protection of human rights andliberties, People’s Rights Protector’s local representatives

Article 39. In order to implement his rights People’s RightsProtector organizes a National Bureau for protection of human rightsand liberties, which is headed by People’s Rights Protector and is anautonomous structure of the civil society in Ukraine. He alsoappoints his representatives in the regions, the cities of Kyiv andSebastopol, in the autonomous republic of the Crimea (the latter mustbe confirmed by the Crimean Parliament).

Article 40. People’s Rights Protector appoints his deputy to whom hemay delegate all his powers except the right to take a final decisionin a case and to direct the annual report to the Parliament.

Article 41. As the Head of the National Bureau, People’s RightsProtector does the following:

- within the framework of the budget he determines the structure andthe staff of the Bureau;

- resolves the questions of employment, transfers and disemploymentof the Bureau agents according to the respective laws of Ukraine;

- develops the statute of the National Bureau;

- resolves other questions related to the Bureau’s work.

People’s Rights Protector issues orders as to the questionsconcerning the work of the Bureau.

Article 42. People’s Rights Protector’s local representatives areappointed from the people who live in the appropriate place, haveexperience in human rights protecting activity and possess a highpublic authority.

Article 43. People’s Rights Protector’s representatives work on thefull-time basis. They execute his orders and are responsible to him.People’s Rights Protector’s representatives cooperate with humanrights protecting organizations, evaluate the state of human rightsand liberties on their territory, find out abuses of human rights andliberties and report about them to People’s Rights Protector;sometimes they pass to him complaints of physical and juridicalpersons about violations of human rights and liberties.

Article 44. The work of local representatives does not endautomatically when People’s Rights Protector is replaced by hissuccessor, but they can be dismissed by him.

Article 45. People’s Rights Protector’s salary is paid as that forParliament Members. The expenditures for the National Bureau forprotection of human rights and liberties in Ukraine and for People’sRights Protectors local representatives are determined by a separateline in the state budget of Ukraine, and they may not be changedduring the budget year, except in the cases when this is done owingto inflation of the national money unit.

Article 46. Agents of the National Bureau and People’s RightsProtector’s local representatives must have IDs.

Article 47. An expert council made of persons that possessprofessional knowledge in the branch of the protection of humanrights and liberties is organized under People’s Rights Protector forgiving him consultations. The expert council works voluntarily andfree of charge. The personnel of the expert council is determined byPeople’s Rights Protector.

Article 48. While carrying out special investigations People’s RightsProtector may invite separate specialists on the contractual basis.

Chapter 5. Final clauses

Article 49. The National Bureau for protection of human rights andliberties in Ukraine is a juridical person that has its ownaccountant balance, bank account (including that for foreigncurrencies), the seal and blanks.

Article 50. Financial reports of the National Bureau are givenaccording to the legal procedure for nongovernmental nonprofitorganizations.

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