Some thoughts on the Human Rights Ombudsperson
The Authorised Human Rights Representative of the Verkhovna Rada of Ukraine (the Human Rights Ombudsperson), Nina Karpachova has announced her resignation due to her election as State Deputy of the Verkhovna Rada. The end of Nina Ivanivnas tenure and awaited appointment of the person who will replace her prompt reflection on the mission, principles and means of activity of the first Human Rights Ombudsperson, on the functions and powers of this post which is of importance for the protection of human rights, and also call for some assessment of the activities of Ukraines first Human Rights Ombudsperson. Undoubtedly these issues will be analyzed in detail and it is likely that Nina Karpachova will herself wish to draw some conclusions and express her opinion on this subject. For now I would offer my thoughts, based on personal observations.
The Human Rights Ombudsperson is empowered to exercise parliamentary control over the observance of constitutional human rights and f fundamental freedoms. The law to this effect, passed in December 1997, was based on the model of a “weak” Ombudsperson who does not consider the kind of appeals which are reviewed by courts, and terminates consideration already commenced if the party involved lodges a civil law suit, application or complaint with the court. The law envisages a fairly wide mandate for the Human Rights Ombudsperson who has the right to receive any information, including that which is classified and see any documents; to visit unimpeded any state institutions or bodies of local self-government, enterprises and organizations, including any “closed” institutions, and to question any individuals held there; to be present at sessions of any state authorities, courts at all levels; to ask to see officials and civil servants in order to receive explanations, to demand from them assistance in checking the activities of institutions, enterprises and organizations under their control; to approach the court with an appeal defending human rights and freedoms; to inspect the situation with observance of human rights and freedoms by state bodies including those carrying out investigative operations. All structure approached by the Human Rights Ombudsperson are bound to cooperate and provide all necessary assistance, in particular by ensuring access to all documents and other materials, by providing information and also giving explanations as to the actual, and the legal grounds for their actions and decisions. Interference by any state authorities or bodies of local self-government in the activity of the Ombudsperson is prohibited, and the latter is not obliged to give any explanations on as to the substance of any cases either presently being investigated or on their completion. Having completed examination of a complaint, the Ombudsperson sends a submission to the relevant body on eliminating the violations of rights and freedoms found, this requiring enforcement within a month. However the law stipulates no liability for violations of the Ombudspersons mandate nor for failure to comply with his/her submission.
This institution for defending human rights, new to Ukraine, is thus based on the high moral standing of the Ombudsperson whose decisions and suggestions should be listened to by the authorities and the public.
However, since in Ukraine neither the authorities nor society have too much respect for human rights, the Ombudspersons job was not always easy. Having begun without any financing and without premises, the Secretariat of the Ombudsperson was immediately inundated with vast numbers of complaints all of which it was in fact simply impossible to cope with. However, being animated, energetic and concerned, Karpachova gradually succeeded in creating a workable human rights structure. This is evidenced, for example, by the enormous different between the first and second annual reports. If the first was to a large extent of an academic nature, the second was the report of an active and productive human rights institution.
From 1999 – 2003 Karpachova took an active role in a number of high-profile cases, often against the wishes of the highest echelons of power, and achieved notable results. Flaccid legislation notwithstanding, she was able to force state bodies to reckon with her opinion and her assessments. She intervened in some instances of heated conflict, such as those around the events of 9 March 2001, and pointed to violations of human rights whatever the political circumstances. Her submissions to the Constitutional Court were not numerous, however all involved wide-scale human rights violations,. When the first 5-year tenure ended, her election to a second term in May 2003 was by no means straightforward since the Presidential circles wanted to see a more amenable and malleable person in that position. However there were virtually none willing to take on an extremely difficult job, and Nina Ivanivna continued for another term.
I rather think that the many successful cases where the Ombudsperson defended human rights were to a large extent linked with her personal qualities. When she seeks justice for those who have suffered from the authorities, she can be unstoppable. And it is of no concern who the necessary decision depends on, be it the President, a minister, or any other official, she is far from prone to standing in awe of authority. And she managed to find ways through brick walls, where others would have given up. In this sense, I feel, it would be difficult to imagine a better candidate than Karpachova for the Kuchma years.
From the end of 2004, the views of the Ombudsperson and of the majority of human rights organizations regarding the political processes in the country began to diverge, and in some issues became even diametrically opposed. For example, in her third report (in July 2005), Karpachova claimed that there had been no change for the better as regards freedom of speech and that there were numerous cases of political repression. It would be difficult to agree with such an assessment. It gradually became ever more evident that Nina Karpachova had adopted the position of one of the political factions, losing therefore impartiality and independence, and that she was increasingly involved in promoting her self. This became clear to all when she took part in the 2006 elections. Her standing for election aroused serious and widespread criticism from some, while being supported by others, depending on political likes and dislikes. I must admit that I am personally sorry that Nina Karpachova chose political activities instead of human rights work since this only weakens the human rights community which has lost one of its strongest leaders. And my attitude here would not have been in any way different had she chosen a political faction of any different shade. It would have been better had she remained the Human Rights Ombudsperson, and avoided politics, since it is impossible to combine political and human rights activities. Nonetheless we must respect her personal choice.
It should be noted that the activities of both Karpachova and her secretariat were constantly criticized with many considering their work inadequate and unsatisfactory. In my view a lot of this criticism is undeserved. It is easy to criticize any human rights institution since in the Ukrainian context, whatever the successes achieved by human rights activists, violations still remain on a large scale and widespread. It is especially easy to criticize what has not been done, and one can always find ammunition on this front. Taking the work of Karpachova and her secretariat as a whole, I would say, one can call it successful Nina Karpachova, despite difficulties, problems and mistakes, did help a large number of people and managed to teach both the authorities and society to treat the office of Human Rights Ombudsperson with respect. In my opinion, respect for human rights in Ukraine during Karpachovas tenure rose. It is important now to not lose what has been achieved and to continue to strengthen the influence and effectiveness of the office of Human Rights Ombudsperson.
In my opinion, the mandate of the Human Rights Ombudsperson needs to be extended for the following reasons. Contemporary ideas about parliamentary control envisage the creation of separate institutions specializing in overseeing the observance of particular key rights or groups of interdependent rights. For example, European documents on personal data protection foresee the establishment of a separate parliamentary institution for safeguarding the right to information privacy, with this leading to the appearance in some European countries of the office of Personal Data Protection Ombudsperson. Laws on access to information have provisions for a body of independent parliamentary monitoring of observance of the right t of access to information, and so forth. This should result in the appointment of several Ombudspersons concentrating on access to information, childrens rights, the rights of ethnic minorities, etc. In our circumstances it would not seem appropriate to create a range of separate institutions. More sensible would be to create corresponding sections within the Secretariat of the Ombudsperson and assign the Ombudsperson the appropriate mandate in accordance with European norms. There should, for example, be a department on observance of the right to information and of personal data protection, which would be responsible for looking into alleged violations of these rights, and which would each year present an overview of the situation regarding the safeguarding of the said rights. Another department would be concerned with issues around privacy of communications and would consider complaints about the unlawful actions (inaction) of state bodies intercepting information from communications channels in the course of investigative operations, with their annual report giving details about the number of interceptions, statistics on the grounds, periods of time, results of the interception (the number of criminal cases launched, under what articles of the Criminal Code, etc), infringements, forced blocking of technical means, and with a breakdown into the state bodies which intercepted information, and so forth. The Law on the Human Rights Ombudsperson would thus need the corresponding amendments and modifications.
It would be desirable to increase the role of the Human Rights Ombudsperson and the significance of his/her decisions. The Law would need to allow for the following powers:
to issue formal warnings to public officials responsible for human rights infringements;
to call for the abolition of acts which allow for human rights abuses;
to approach the bodies which public officials responsible for human rights infringements are subordinate to with a call to bring proceedings against them under current labour legislation;
to call for the dismissal of individuals who have repeatedly or flagrantly violated human rights and fundamental freedoms;
to declare, with information released to the mass media, public censure of those public officials, as well as of public officials who have not responded appropriately to appeals from the Human Rights Ombudsperson.
It would also be advisable to allow the Human Rights Ombudsperson to express his/her opinion regarding court rulings in the following way: by approaching the legally stipulated authority with a recommendation to check court rulings which have taken effect where there is evidence to suggest that in the course of the court deliberation significant human rights violations took place which could have influenced the judgment made.
The powers of the Human Rights Ombudsperson, set out in the Law on the same, should also be supplemented by the right of legislative initiative, so that s/he could submit for parliaments consideration drafts of legislative acts suggesting amendments to current legislation or additions to it in the interests of safeguarding human rights and fundamental freedoms.
It would also be necessary to increase guarantees of the Human Rights Ombudspersons work through the following:
1 by stipulating the obligation of state bodies and their officials to review recommendations from the Ombudsperson and to provide a response in writing as to measures taking to reinstate the violated rights or providing reasons why the recommendations have not been heeded;
2 by introducing a norm stating that the recommendations of the Ombudsperson, made on the basis of consideration of complaints, are not subject to appeal within the framework of the national law enforcement system;
3 to allow for administrative (and, in cases foreseen by the Criminal Code, criminal) liability of public officials for ignoring formal requests from the Human Rights Ombudsperson to be given material, documents, information or explanations, or about their implementation of recommendations.
Creating an electronic archive of complaints, and description of the actions taken by the Secretariat with respect to these complaints, would seem an important step towards increasing efficiency of work on the complaints reaching the Human Rights Ombudsperson. The development of an internal network within the structure would make it possible within the space of a few minutes to obtain information from any computer in the network about the content and stage of review of any complaint. The system of communication with the public also needs improvement which could be achieved by daily updates of the website of the Human Rights Ombudsperson, regular publication of a bulletin describing and analyzing violations of human rights violations, and fundamental freedoms, as well as television programs on Ukrainian Television Channel 1 with direct contact between the Human Rights Ombudsperson and the viewers.
In my view, one of the main ways of improving human rights protection is through cooperation between the Human Rights Ombudsperson and human rights organizations (HRO). At present there is too little of this. The Ombudsperson is a representative of civic society who defends human rights and freedoms first and foremost from the state, and consultation with HRO would be entirely natural. The legislative basis for such cooperation can be found in Article 10 § 3 of the Law on the Human Rights Ombudsperson which states: “In order to provide consultative support, carry out research, as well as to study suggestions for improving protection of human rights and civil liberties, a consultative council shall be created attached to the office of the Human Rights Ombudsperson. This council, which may function on a voluntary basis) shall be made up of people with experience of working in the area of protection of human rights and civil liberties,”. However this basis is extremely vague and it would therefore be desirable to introduce amendments to the said Law which clearly and specifically regulate the procedure of interaction between the Human Rights Ombudsperson and human rights organizations. .
If one compares the functions and the mandate of the Human Rights Ombudsperson and HRO and considers the work they do, it is entirely possible to consider the Ombudsperson and his/her structure as just such an HRO, only acting on behalf of the state, and to view their activities from this position. An article should be added to the Law defining the Human Rights Ombudsperson and his/her mission as follows: “The Authorised Human Rights Representative of the Verkhovna Rada is the highest public official whose activities are aimed at affirming and defending human rights and fundamental freedoms, as well as at public monitoring over the how these rights and freedoms are observed by state bodies and officials. The Mission of the Authorised Human Rights Representative is to organize an autonomous system of nongovernmental bodies exercising supervision over the guaranteeing of human rights and fundamental freedoms and management of this system”.
The provisions of the Law regarding the Secretariat and representatives of the Human Rights Ombudsperson (Articles 10, 11) need to be expanded and clarified. I would suggest that, in the European Tradition, changing the name “Secretariat” to “National Office for the defence of human rights and fundamental freedoms” and to specify that this is an independent structure of Ukrainian civic society. The Ombudsperson should appoint representatives in the regions, for the cities of Kyiv and Sevastopol, and the Autonomous Republic of the Crimea from people living in the given area, with experience of human rights activity and with high public standing. A norm should be added to the Law, stipulating that these representatives work on a permanent basis, cooperating with human rights organizations, assessing the situation with regard to observance of rights and freedoms in that area, uncovering violations of human rights and freedoms, and informing the Ombudsperson about them, and in specific cases submitting complaints to the Ombudsperson about such violations.
Cooperation between the Ombudsperson and HRO should be organized in the following areas:
– defence of human rights in specific instances, the creation of a complex of highlighted complaints;
– providing information about human rights;
– analysis of legislation and draft laws, court and administrative practice to determine their compliance with the Constitution and international standards on human rights, the preparation of constitutional submissions;
– preparation of reports on the situation with regard to human rights;
Let us consider these issues in more detail.
Defence of human rights in specific instances, the creation of a complex of highlighted complaints;
Due to the fact that the Human Rights Ombudsperson receives a huge number of complaints which her office is simply not able to analyze and consider in good time and comprehensively, HRO could act as a kind of filter which could identify from the vast numbers of complaints those that really do deal with violations of human rights and which the Ombudsperson should consider in accordance with his/her mandate. This kind of preliminary review of complaints could be organized at first as a pilot project in those regions where the Ombudspersons representative offices are opened, and it would be specifically these offices that residents of the area would send their complaints for the Ombudsperson. In my opinion, it would be expedient to establish such representative offices at first in those regions with well-known and authoritative human rights organizations which could work in direct contact with the Ombudspersons representatives. It would be these organizations who would make a preliminary assessment of complaints. This experience could then be gradually extended into all regions of the country.
In addition, the Ombudsperson and his/her representatives could consider appeals regarding rights violations in specific cases directly from the HRO. The Law at first glance does not appear to allow for such a possibility. However we should consider two circumstances. Firstly, in the wording of Article 17 § 1 of the Law which states that the Ombudsperson “shall receive and consider appeals from citizens of Ukraine, foreign nationals, stateless individuals or persons acting in their interests”, there is no indication that “persons acting in their interests” have to be individuals Secondly, Article 17 § 2 states that the Ombudsperson receives and considers appeals in accordance with the Law of Ukraine “On citizens appeals”, Article 16 of which allows for appeals from “organizations which carry out human rights activities”. HRO can thus initiate appeals to the Ombudsperson regarding violations of rights and freedoms in specific cases. It would though be better to directly indicate human rights organizations among those entitled to address appeals to the Human Rights Ombudsperson.
It would seem advisable to create a complex of highlighted complaints, i.e. identify the criteria according to which HRO could address appeals to the Ombudsperson to consider the corresponding violations. In my view, such a list of criteria should be as follows:
a) a manifestly gross violation of a right guaranteed by the Constitution;
b) a high degree of violence against an individual as a result of a violation;
c) flagrant injustice having arisen as the consequence of a violation;
d) actions or decisions or state bodies are posing serious threat to human rights in the future;
e) the violations are incompatible with the level of freedom typical for a post-totalitarian society.
The final criterion is somewhat vague and subjective, and requires explanation. There are a lot of human rights violations characteristic of countries going through a transitional period from totalitarianism to democracy, albeit manifesting themselves to differing degrees: police brutality; the lack of openness of the authorities, violations of electoral rights, manipulation of public opinion via the mass media, poverty among the elderly and so forth. Then there are atypical violations which are serious and dangerous because they reflect an encroachment by the authorities on peoples liberty and carry with them the threat of a return to totalitarianism; Such violations include political persecution linked with the use of violence or with accusations of involvement in criminal activities; violent disappearances; imprisonment of journalists in connection with their professional activities; violations of the rights of minorities involving the violence; the use of executions as a form of punishment; the use of enforcement agencies, especially, the security service, for political purposes, and others. At the present time some of these violations are already impossible in Ukraine, while the likelihood of others has decreased, however these do unfortunately still take place as, for example, the illegal deportation of 11 Uzbeks in February of this year.
This approach would make it possible for the Human Rights Ombudsperson and his/her office when dealing with the general deluge of appeals to immediately identify those which indicate unequivocally grave violations, and which therefore in the first instance require the attention of the Human Rights Ombudsperson. In other cases HRO could help people who turned to them with complaints, and write appeals to the Human Rights Ombudsperson on their behalf.
Providing information about human rights
The Human Rights Ombudsperson and HRO could combine efforts on raising the level of knowledge of the authorities and society about human rights and on providing human rights education and awareness raising. In particular, I believe, society needs information about successful attempts to defend human rights. It would therefore be extremely useful to produce periodical publications describing such successful precedents in human rights defence both by the Human Rights Ombudsperson, and by HRO. Such publications would at the same time serve as valuable practical guidelines on applying mechanisms of human rights defence.
The Human Rights Ombudsperson and HRO could also cooperate fruitfully on spreading information about human rights in the form of a series of educational leaflets “Your rights”, approved by specialists and endorsed by the Human Rights Ombudsperson which would include provisions in legislation on human rights in the situations of conflict which are most often encountered. There could be leaflets on, for example: “Your rights during detention and arrest”; “Your right to defend your name and reputation”; “Your right to assistance on the birth of your child”; “Your right to a housing subsidy”; “Your right to land”; “Your rights if they cut off your power, heating, water or gas”, and so forth. The HRO could prepare short but substantial texts formulating these rights, which the Human Rights Ombudsperson and his/her office would approve. These leaflets would then be endorsed and carry the signature of the Human Rights Ombudsperson. The HRO could print these in large numbers and distribute them among the public at various public events, in educational institutions, enterprises and organizations.
It would be sensible to prepare, publish and distribute not only printed matter, but also audio, photographic and video materials on human rights. An extremely useful step would be to make a program “Your rights” on one of the national television channels where the Human Rights Ombudsperson and HRO would show the video materials prepared.
It is enormously important to develop human rights awareness among children and young people. As well as support for the usual forms of education, HRO could also, under the aegis of the Human Rights Ombudsperson, run competitions for the best work on human rights, drawing and photography competitions for schools, contests for students, special events to mark Human Rights Day, International Day of Solidarity with Political Prisoners, etc. Such public campaigns and actions would help raise awareness of human rights among the public.
No less important is providing information for professional groups on international mechanisms for protecting human rights. This include, for example, helping judges, lawyers, law enforcement officers to become familiar with European legal principles, norms and standards, in particular by using the European Court of Human Rights, standards of the European Committee against Torture and Ill-treatment, the European Union law, and others. Joint preparation by the Human Rights Ombudsperson and HRO of translations of digests of judgments of the European Court of Human Rights, the publication and distribution of the corresponding anthologies would be extremely beneficial in changing legal paradigms in the profession milieu.
Remaining as relevant as ever are specialized seminars on human rights for representatives of so-called “professions at risk” (personnel of internal affairs agencies and the security service, employees of penal institutions, lawyers, judges, prosecutors, military servicemen, doctors, journalists, trade union activists and social workers), representatives of the legislative and executive branches of power, connected with creating and enforcing legislation with impact on human rights. These seminars could be run jointly by the Human Rights Ombudsperson and HRO.
Analysis of legislation and draft laws, court and administrative practice to determine their compliance with the Constitution and international standards on human rights, the preparation of constitutional submissions
In order to analyze legislation and practice from the point of view of their conformity with the Constitution and international agreements on human rights HRO and the office of the Human Rights Ombudsperson should jointly use methodology for monitoring human rights which envisages:
analysis of domestic legislation (the Constitution, laws, subordinate legislation) which is linked with the observance of these rights within the context of Ukraines international commitments;
analysis of application of the law in practice (decisions of administrative bodies, court rulings);
preparation of an analytical report containing suggestions for eliminating human rights violations;
Monitoring human rights and fundamental freedoms is impossible without receiving all the necessary information from state authorities and administrative bodies. At first one would need to make a preliminary diagnosis of the situation based on general previous experience, determine the issues for the study which the monitoring should provide answers to, and decide on the amount of information required. Then in parallel come the search for this information and an analysis of the compliance of legislation and application of the law in practice with international agreements. An overview of this report will make up the relevant part of an annual report on observance of human rights. It should be noted that a typical feature of the methodology of monitoring is specifically its orientation of public action needed to achieve an improvement in the human rights situation.
It would make sense to create working groups from representatives of HRO which specialize in investigating a particular right (or group of interrelated rights) together with representatives of the corresponding departments of the office of the Human Rights Ombudsperson. Carrying out monitoring as outlined above of this right on a yearly basis, these working groups would follow all changes in legislation and practice, and would be able to initiate amendments to legislation and other normative acts and influence practice. The annual analytical reports on the outcome of the monitoring could become an integral part of annual reports on the state of affairs with regards to human rights which will be discussed below. It would be useful at the same time to also prepare an annual overview of information resources regarding violations of the right in question.
One of the most important means of response to serious human rights violations is the possibility of constitutional submissions made by the Human Rights Ombudsperson to the Constitutional Court of Ukraine. Here too HRO could work in cooperation with the Ombudsperson by jointly preparing constitutional submissions regarding the non-compliance with the Constitution of this or that provision of Ukrainian laws, other legal acts, or submissions requesting an interpretation of the Constitution and laws of Ukraine. Constitutional submissions from the Human Rights Ombudsperson should per se be one of the results of his/her joint work in cooperation with HRO on monitoring human rights.
Preparation of reports on the situation with regard to human rights
For a comprehensive study of the human rights situation in the country human rights organizations generally use the form of an annual report on how human rights are being observed. The compilation of such reports is a traditional way of bringing information about human rights violations in the country to the attention both of the public within Ukraine and of the international community in order to improve the situation. The Human Rights Ombudsperson has published three general reports – in 2000, 2002 and 2005, and one special report on the rights of Ukrainians living abroad. Human rights organizations have published two reports on the human rights situation in Ukraine – for 2004 and 2005. Various Ukrainian HRO have also produced special reports on the state of affairs with regard to a specific right or group of interrelated rights – the right to protection against torture and ill-treatment, the right to liberty and security, the rights of the child and others. In 2005 human rights organizations prepared reports on the human rights situation at a regional level. The preparation of special reports on specific key rights, as well as annual reports on the entire range of rights (both for particular regions and for the country as a whole) remains extremely important and relevant. It would be expedient to work in this area together with the Human Rights Ombudsperson since the preparation of annual reports is one of the latters duties.
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It is of enormous significance just who will be elected Human Rights Ombudsperson. The human rights community of Ukraine is at the present time experienced and strong enough to put forward a candidate from their milieu and to present their demands regarding candidates. And the most important requirements to my mind are the following: the office of Human Rights Ombudsperson must not become the subject of political bargaining, and secondly candidates for this office must be discussed by civic organizations, in particular, by human rights organizations.
 9 March 2001 was the last day of confrontation between the mostly young activists of the organization “Ukraine without Kuchma”. Around a thousand activists were detained and/or beaten up by law enforcement officers, many targeted at stations, bus stops when heard speaking Ukrainian. The protest movement suffered a serious setback.
 The Ukrainian is clearer, since the term “osoba” [“person”] may be one individual, or a legal entity (translators note)