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29.03.2007

The Constitutional Court to rule over the Law on the Human Rights Ombudsperson

   

A constitutional submission from 48 State Deputies from Nasha Ukraina and BYuT [Bloc of Yulia Tymoshenko] was registered in the Constitutional Court on 27 March. The State Deputies are asking for an interpretation of Articles 7 and 8 of the Law on the Human Rights Ombudsperson.

They believe that an official interpretation from the Constitutional Court is needed to answer the following important questions:

  1. Does the legal wording of the oath sworn by the Human Rights Ombudsperson (Article 7 § 1 of the Law) imply a ban on his or her standing for election as President of Ukraine, State Deputy, deputy of local councils, as well as any other elected office?
  2. Does the ban set out in Article 8 § 2 of the Law on the Human Rights Ombudsperson holding representative mandate also mean the prohibition on carrying out legally envisaged activities directly leading to becoming elected?
  3. Does the participation of the Human Rights Ombudsperson as a candidate or any other legally envisaged participant in the electoral process and election campaign for presidential, parliamentary or local elections constitute a violation of Article 7 § 1 and Article 8 § 2 of the Law on the Human Rights Ombudsperson?

The following is a summary of the basic legal grounds for the submission.

  1. The need for an interpretation of Article 7 § 1 and Article 8 § 2 of the Law on the Human Rights Ombudsperson is prompted from the legal point of view by Human Rights Ombudsperson Nina Karpachova’s participation in the parliamentary election campaign in 2006.
  2. On the one hand, Nina Karpachova swore to “adhere to the Constitution and laws of Ukraine and to be guided by justice and her own conscience, and to “ be impartial and independent in acting in the interests of the individual and citizen “. On the other, she was directly and actively involved in the election campaign in 2006 occupying a prominent position (second on the candidate list for the Party of the Regions. In our view, having demonstrated to Ukrainian society her overt political leanings, the Human Rights Ombudsperson thus infringed Article 7 § 1 of the Law on the Human Rights Ombudsperson containing the normative text of the Ombudsperson’s oath. Later, having been elected State Deputy from the Party of the Regions, Nina Karpachova did not resign from office as Human Rights Ombudsperson, thus infringing Article 8 § 1 of the Law which states: ““The Human Rights Ombudsperson may not hold a representative’s mandate or occupy any other paid or unpaid office in state bodies of power. Paragraph 2, furthermore, clearly states that s/he may not be a member of any political party.”
  3. All of this, in our view, unequivocally demonstrates that the normative content (the legal objective) of the special law prohibits the Human Rights Ombudsperson from engaging in political activities whether in a professional or voluntary capacity.
  4. While the law does not formally stipulate that the Human Rights Ombudsperson may not take part in election campaigns or other political activities, which are not encompassed by the specific activities on the basis of representative mandate, in the given case the Ukrainian Ombudsperson Nina Karpachova consciously encroached upon the legitimate objective and legal aim of the given Law.
  5. We believe that the Law guaranteeing that the office of Human Rights Ombudsperson shall not be politicized must be understood in a broader sense than to simply imply the ban on combining this office with representative mandate.
  6. We are convinced that the ban in the Law on holding representative office means that the Human Rights Ombudsperson has no legal right to engage in any activity aimed at being elected to such office in the near future. Participation in an election campaign clearly demonstrates a person’s political leanings. We would also stress that the fact that Nina Karpachova held second place, after the leader, on the candidate list of that party, shows that the image, authority and force of the office of Ukrainian Human Rights Ombudsperson was consciously used to serve the interests of a specific political faction.
  7. The authors of the submission cite examples of international practice in favour of the position that a Human Rights Ombudsperson not only must not hold elected office, but must also not be engaged in political activities.

 

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