Candidate for Ombudsperson holds consultations with human rights organizations
Valeria Lutkovska and Arkady Bushchenko, 23 April
BSuggestions from Ukrainian civic organizations to the new Human Rights Ombudsperson on the development of cooperation with civic organizations and improving the work of the institution
A common goal for civic human rights organizations and the Human Rights Ombudsperson is to promote the creation in Ukraine of a law-based state; to safeguard fundamental rights and freedoms and to develop civil society.
Human rights works believe that such an important state institution as the Human Rights Ombudsperson has not thus far been able to fulfil its constitutional possibilities with respect to impact on observance and defence of human rights in the country. Our concern for the future of this institution is one of the main reasons for our meeting on the eve of the vote on Tuesday for new Human Rights Ombudsperson (Valeria Lutkovska was elected Ombudsperson. She received 252 votes).
Human rights organizations have a large number of questions for the future Ukrainian Ombudsperson. We have no doubt who this will be.
There will not be enough time to thoroughly discuss all issues of interest for us. We would therefore like such meetings to become traditional in future. There would be an exchange of views between the human rights community and the Human Rights Ombudsperson.
At this first meeting we would like in the first instance to hear what Ms Lutkovska is planning to devote her attention to in her work and how she sees future cooperation with civic society.
We in turn would like to focus on immediate human rights issues which have not received sufficient attention in the past, specific mechanisms for our cooperation, on the failings which we see in the work of the office of the Human Rights Ombudsperson and what needs to be changed; the changes we would like to have made to current legislation, in particular to the Law on the Human Rights Ombudsperson.
These proposals have been drawn up as a result of discussion in the human rights community. We will give all that we do not have time to directly discuss at this meeting to Ms Lutkovska in written form.
1. Independence of the office of the Human Rights Ombudsperson
Our wishes: the Ombudsperson must be above politics, independent of those in power; impartial in resolving conflicts in accordance with the Paris Principles; follow open information policy and closely cooperation with human rights organizations.
2. Transformation of the institution of Human Rights Ombudsperson
Human rights organizations consider that the strategic priorities in the work of the Ombudsperson need to change. Emphasis needs to be moved from fighting violations to preventive measures, particularly to regular monitoring of the normative legal base to check their compliance with the Constitution, European Court of Human Rights case law in order to prevent the adoption of unconstitutional laws and subordinate legislation.
Is Ms Lutkovska planning in her work to transform the institution of Human Rights Ombudsperson, into:
a) a body which carries out independent investigations into complaints regarding human rights infringements, and does not simply send the complaints received on to the management of those state bodies whose activities people are complaining about?
b) a body which is an independent national mechanism for the prevention of torture in accordance with the Optional Protocol to the UN Convention against Torture ratified in 2006?
c) an anti-discrimination body which examines allegations of discrimination on different grounds; hate speech and hate crimes?
d) a body of independent parliamentary monitoring over implementation of the right of access to information and personal data protection?
We would also like to hear Ms Lutskovska’s vision regarding the possibility of using the right to constitutional submissions to the Constitutional Court, and particularly the impact by such means on the state of court proceedings; what ideas she has for changing the situation with the judiciary and how she plans to organize work with highly publicized cases which are indicators of systemic human rights violations.
3) Ways of developing effective cooperation between the Human Rights Ombudsperson and human rights organizations
a) a systemic approach should be initiated for involving representatives of civic organizations in events being held by the Ombudsperson, including not only conferences, roundtables, but also checks, investigations into high-profile cases, etc This should be included in all provisions, for example, about the Secretariat of the Human Rights Ombudsperson, examination of appeals, carrying out Ombudsperson’s proceedings and other normative acts.
b) The Law does not formally specify civic organizations as those able to make submissions regarding defence of people’s rights to the Ombudsperson. However going by the fact that current legislation gives the Human Rights Ombudsperson the right to initiate proceedings at her own initiate, we propose adding to the Regulations on Examination of Appeals to the Ombudsperson a special section on procedure for mandatory response to appeals which come from civic organizations.
In this case the possibility should also be envisaged of initiating an investigation by the Ombudsperson into cases of rights infringements. Such practice, for example, exists with regard to appeals by MPs to the Ombudsperson.
c) Article 10 of the Law contains a nom allowing scientific research to be carried out under the Ombudsperson in order to provide consultative support, as well as studies of proposals on improving the human and civil rights situation and create a consultative council (which can function on a voluntary basis) from people with expression of working in the field of human rights. The previous Ombudsperson did not create this.
We propose drawing up Provisions on a Consultative Council and creating it quickly with the involvement in it of active human rights workers.
3) Reform of the Secretariat of the Ombudsperson
The majority of human rights organizations in Ukraine consider the work of the Secretariat of the Ombudsperson, despite the fact that it has to examine up to 22 -25 thousand appeals a year, to be extremely ineffective, this leading in practice to most of the appeals seeking defence where there really has been a violation of human rights being ignored.
The Ombudsperson needs to immediately reform the Secretariat from a bureaucratic body aimed at physically processing appeals into a body which carries out comprehensive activities on monitoring problems of human rights protection and effective measures to reinstate the rights violated as per the applicants’ appeals.
Human rights organizations consider that a system of representatives of the Ombudsperson in accordance with Article 11 of the Law should be dominant.
Incidentally it is specifically via representatives of the Ombudsperson that systemic and constant cooperation between civic organizations and the office of the Ombudsperson could be developed.
Which representatives there should be is a subject for discussion. The following is possible:
a) Regional representatives in the Crimea, the oblasts, Kyiv and Sevastopol;
b) Special (profile) representatives, for example,
A Representative of the Ombudsperson on Gender Equality and Countering Discrimination;
A Representative of the Ombudsperson on Children’s Rights;
A Representative of the Ombudsperson on Places of Confinement;
A Representative of the Ombudsperson on Military Service People, their families, veterans of military actions, children of the War;
A Representative of the Ombudsperson on International Human Rights Cooperation, on Countering Human Trafficking; as well as on Refugee Rights; Migration Issues and Defence of the Rights of Ukrainians abroad;
A Representative of the Ombudsperson on the Rights of the Disabled;
A Representative of the Ombudsperson on Freedom of Speech and Press; Freedom of Conscience; Contacts with Civic Associations, Religious Organizations;
A Representative of the Ombudsperson on the Rights of Nationalities and other Minorities;
c) Representatives on communication
A Representative of the Ombudsperson in the Constitutional Court;
A Representative of the Ombudsperson in the Verkhovna Rada;
A Representative of the Ombudsperson in the Cabinet of Ministers
The Secretariat of the Ombudsperson shall also have specialized subdivisions with the power to review the relevant categories of appeals which do not fall under the powers of the representatives, including:
1. Criminal - legal
2. Administrative - legal;
4 Permanent monitoring of implementation of international obligations which Ukraine took on in ratifying human rights documents.
4. Transparency of the Ombudsperson’s work
A system of transparency and accountability of the activity of the Ombudsperson to society should be formulated. Constant flow of information on the results of work through updating and reworking the official site; transforming it into a working body, a permanent source of legal information; a mechanism for communication and for citizens’ feedback.
At the present time we have a situation where only two Provisions approved by the Ombudsperson are on general access: the Provisions on the Secretariat of the Human Rights Ombudsperson and the Provisions on Representatives of the Human Rights Ombudsperson. Registration with the Ministry of Justice is not stipulated. There is no reference to the existence of other normative documents of the Ombudsperson which according to legislation should be public and generally available.
We therefore propose immediately drawing up, approving and publishing normative acts which should exist in the institution of the Ombudsperson (for example, on procedure for examining appeals; on proceedings, etc) so that the public can have access to them.
5. Changes to the Law on the Human Rights Ombudsperson
The issue of changes to the Law is complex and controversial and we suggest, for example, focusing on possible changes regarding:
- reform of the procedure for citizens’ appeals to the Ombudsperson;
- regulation of proceedings by the Ombudsperson in cases of rights violations;
- clearer regulation of the Ombudsperson’s powers in cases under examination by the courts, including possible appeals to the court;
- providing the Ombudsperson, as is the case in some other countries, with the right to take decisions resulting from review of appeals by members of the public regarding repeat review of civil and administrative cases by the court.
- providing the Human Rights Ombudsperson with the right of legislative initiative; and so forth.
6. Reform of procedure for appeals from members of the public to the Ombudsperson
Article 17 of the Law gives the Ombudsperson the right to accept and examine appeals from Ukrainian citizens; foreigners; stateless persons or people who are acting in their interests, but exclusively in accordance with the Law on Citizens’ Appeals. This norm narrows the rights provided by Article 55 of the Constitution which states that each person has the right to approach the Human Rights Ombudsperson in defence of their rights. That is, the Constitution makes no restriction on appeals. Furthermore, the Law on Citizens’ Appeals does not envisage procedure for making appeals by telephone, email or other contemporary forms of communication which in the case of the Ombudsperson and her range of powers, tasks and cases is extremely important.
With this Law there is thus an artificial restriction on the possibility of appeals seeming defence. In practice this also leads to the temptation to ignore appeals, using the grounds that are very broadly given the Ombudsperson by the current Law on Citizens’ Appeals and Article 17. It is specifically this procedure which elicits most complaints from members of the public and civic organizations about inaction or limited response by the Ombudsperson to citizens’ appeals.
Clear criteria for admitting statements and their form must therefore be drawn up.
Moreover the norms set out in Article 17 twists and distorts the significance of the institution of the Ombudsperson as a body which should independently oversee observance of human rights in the country, effectively equating an appeal to the Ombudsperson to appeals to any ordinary state body.
We therefore suggest that the new Ombudsperson in as short as possible a timeframe should make a legislative initiative proposing a change to Article 17 of the Law, bringing it into line with Article 55 of the Constitution and with the practice established throughout the world for making appeals to national ombudspersons.
Furthermore Article 17 of the Law completely fails to elaborate how and according to what procedure the Ombudsperson must examine appeals. There are no relevant Proceedings or generally available information. Most human rights organizations consider that this leads to the institution of the Ombudsperson lacking openness and to a large number of appeals to the Ombudsperson being ignored.
We therefore propose in the shortest timeframe possible to draw up Provisions on Appeals for defence to the Human Rights Ombudsperson which clearly set out the procedure for admitting appeals for examination or refusing to consider them; the procedure for review and for reacting to appeals accepted for examination. In the near future we also propose that the Ombudsperson put forward a legislative initiative to elaborate the content of examination of appeals in Article 17 of the Law.
7. Human rights education
Drawing up and implementing human rights education and awareness programmes together with civic organizations, higher educational institutions, scientific organizations, trade unions etc. Such human rights education should also play a preventive role warning about infringements committed.