Yevhen Zakharov: The Work of the Human Rights Ombudsperson must become transparent and palpable
Yevhen Zakharov, one of the leaders of the human rights movement, co-Chair of the Kharkiv Human Rights Protection Group and himself a candidate for this post is convinced that the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine (the Human Rights Ombudsperson) is capable of stopping the lawlessness of the authorities in relation to ordinary Ukrainians. He spoke of this in an exclusive interview for www.rupor.info.
Yevhen Yefimovych, why is the work of the Human Rights Ombudsperson in Ukraine ineffective?
One needs to first note that the law passed in 1997 was extremely limp and imperfect. It effectively introduced the model of a “weak Human Rights Ombudsperson” who has no impact on court rulings. I mean that if a person lodged an appeal with the court and then turned to the Ombudsperson, the latter is bound by law to suspend the legal proceedings into the case.
Is the existing law really so “impotent”?
It certainly is. According to the same law, s/he has fairly wide powers, yet in actual fact these were copied from the powers of general supervision of the prosecutors office and the law on the latter. However there is no liability envisaged in law for the implementation by state bodies and bodies of local self-government of the Ombudspersons submissions, nor for refusing to cooperate with him or her. In terms of the norms of the Law, there is no liability.
What was the thinking behind such a law?
Because the law is limp, it can work well only if the Ombudsperson is a strong person with huge authority. That was what they counted on.
A number of years have passed since then and undoubtedly the law requires amendment. I believe that in todays conditions it is entirely out of date and needs to be done differently, to be entirely rewritten. Within the framework of the present law, it is not so easy to achieve real results.
What do you have in mind in speaking of amendments?
This regards the court. One could allow for the right of the Ombudsperson to approach legally established institutions asking for a check to be carried out of court rulings, after they have entered into force following consideration at two levels – the first and then appeal courts. This would be if there was evidence that during the court procedure, there had been human rights violations which had had an impact on the ruling itself. Im speaking here not only of procedural infringements, there are such, unfortunately in almost any case at present. I mean specifically human rights violations as such.
It would be helpful if you could provide an example.
In one Poltava penal colony a young man has been imprisoned now for seven years after being convicted of murder. His sentence was ten or eleven years. They beat a confession out of him. In court he tried to say that he had not killed anyone and that he had been beaten in the SIZO [pre-trial detention centre]. The Judge paid no attention to this and wrote the standard phrase in such situations: “in order to evade liability, the defendant said that …” and so on. And then, after seven years it turned out that somebody else was the murderer, that there is a real culprit. You see? Of course this man can himself after seven years write to the Supreme Court in its supervisory capacity asking for a review of the sentence passed down in view of the circumstances. Yet hes been inside for seven years! Who will help him do it? There are no resources for that. And he could write such a letter, write defending his own interests. Yet the law does not allow for this even though there is a clear violation of human rights – punishment without being guilty of the crime.
How in such a situation could one exert influence on officials?
The Law needs to give the Ombudsperson the power to issue formal warnings to public officials responsible for human rights infringements, and to call for the abolition of acts which allow for human rights abuses. For example s/he could entirely stop the scandalous acts on tariffs (substantial increases recently in housing and communal services – translator]. The law needs to provide such a right. In addition, the draft law which we drew up ten years ago had a very strong norm allowing for the suspension for a period of three days of decisions by any body of power except the Supreme Court.
And how would you anticipate influencing the actions of any given official?
The Human Rights Ombudsperson must have the right 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, and call for the dismissal of individuals who have repeatedly or flagrantly violated human rights and fundamental freedoms. The Ombudsperson would be obliged 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 her/his appeals. This means that to increase the role of the Ombudsperson, new powers must be added.
Would it be sufficient for this person to have only controlling powers?
Not entirely. The Ombudsperson must have the right of legislative initiative, which at present is lacking. In order to be able to independently submit for parliaments review draft laws proposing changes to current legislation or making additions in the interests of human rights.
How do you see a mechanism imposing responsibility for adhering to decisions by the Ombudsperson?
I think that the law needs to stipulate the obligation of state bodies and their officials to review within a month recommendations put forward by 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. One also needs to set down liability for systematically ignoring requests from the Ombudsperson for material or information.
Are there such cases now?
Of course. Nina Ivanivna Karpachova constantly complains that this person or that has not replied. Despite her persistence, she is still ignored. In her second report there is a separate breakdown with regard to this – who ignored her, and who didnt. Who responded to her submissions, and how.
And is that the end of the matter?
And what would you expect? There is no liability for it. Even in the law on citizens appeals, there is liability written in for violating its norms, for not providing an answer within the month-long period. State authorities and bodies of local self-government therefore have reason for making sure that their answer is given within that time period. They simply lose bonuses if they dont respond.
What about the law enforcement agencies?
There is a similar situation in the law enforcement agencies. Its stated that they “must”, but no liability is set down.
If you are appointed to this post, will there be regional representatives of the Ombudsperson?
Definitely. The law allows for such representatives in the regions. Eight years have passed, and Nina Ivanivna does not have one regional representative.
How would you plan, if appointed, to attract the necessary candidates?
There is enormous potential for cooperation between the Human Rights Ombudsperson and the Third Sector. There are such civic organizations already, and they could help him or her. I envisage the following: representatives of the Ombudsperson in the regions who are officials must live in the given region. They must have experience of human rights work and high moral standing.
How independent will they be?
One could add the requirement that representatives work permanently and cooperate with the Third Sector, identifying violations and taking measures. If the latter do not have any effect, the problems must be passed to Kyiv, to the Ombudsperson. This is effectively a system of regional Ombudsperson. These norms need to be written into the law so that they work at the regional level just as the Human Rights Ombudsperson acts at the national level.
We know that abroad there is such a concept as “specialized Ombudsperson”. Will we have such in Ukraine?
I am absolutely convinced that there should be such specialized Ombudspersons, just as in other countries. If you take any country, youll see that there are several Ombudspersons.
Will they work according to areas of law?
Not, not areas of law. Its done different, with specific issues where there is a need for a specific person. If you look at world experience, there are Ombudspersons for minority rights, childrens rights. Sometimes its the rights of ethnic minorities, sometimes simply minority rights.
Are these allocated according to subjects of the law?
Not to all. For example, in Germany there is an Ombudsperson for the rights of military servicemen since they have universal conscription. There is also an Ombudsperson for personal data protection and access to information. In some countries the same person is responsible for both (Hungary), while in others there are different people. However I think its better that theres one person.
Which specialist area Ombudspersons would be most relevant for Ukraine?
For childrens rights, the rights of minorities and access to information and protection of personal data. Three specializations in total.
How could this be done from an organizational point of view?
It would not be sensible to create a separate office and separate authorities. It could be confined to several departments. All these people (and this is another point of disagreement between myself and Nina Ivanivna) must on principle be independent in their decisions, within the confines of their jurisdiction. One could add the regulation that if people do not agree with their decision, they can directly approach the Human Rights Ombudsperson or the court. Incidentally, it would be desirable to introduce such a norm that the decisions of the Ombudsperson could only be disputed in court.
What results do you envisage achieving through this?
The Ombudsperson must effectively organize an autonomous system of nongovernmental agencies for monitoring the activities of the authorities as far as human rights are concerned, and be in charge of this.
How can this be done?
One needs to set up an office of the Ombudsperson (which incidentally should be called, as it is in all countries, the National Bureau for the Protection of Human Rights and Fundamental Freedoms) so that this institution worked as a public, and not as a state body. This is, in principle, possible. It is necessary simply with one line in the Budget to establish that this “public organization” receives a grant from the state in accordance with the law which defines the limits of its competence. In this case, the institution of Human Rights Ombudsperson takes on an entirely different appearance. It would be quite different from its present form. A lot can be done also within the framework of the present law, but again via cooperation with civic organizations. Under Nina Karpachova, unfortunately, there was no such broad cooperation.
Would you plan to broaden the circle of those who can approach the Ombudsperson for help?
Yes, definitely. The Law states that it is not only individuals who can make applications. The word is “person” [“osoba” in Ukrainian, if not specifically stated, may be an individual or a legal entity – translator], while Karpachova herself considers that only individuals are meant by this. I however think that it is not only individuals, especially since the law on citizens appeals specifically names human rights organizations as those submitting such appeals.
Do you consider the present work of the given body to be satisfactory?
There are things that could be improved. In Karpachovas office at present there is a huge number of appeals. Filters need to be introduced. Human rights organizations could in fact be just such filters, working so to speak as the Ombudspersons “hands”. The present Ombudspersons office is also extremely chaotic, without even a computerized database of appeals which has long been installed in the Kharkiv Human Rights Protection Group. And have you seen the Ombudspersons website?
Yes. It doesnt create a brilliant impression.
Note also that in eight years the Ombudsperson has only presented three reports. And these should be submitted yearly. Nor is there any mention of the financial activity of the office in any of them. I therefore personally believe that the work of the Human Rights Ombudsperson must definitely become transparent and fully palpable.
Interview conducted by Dmytro Dobry, RUpor