The power of hu­man rights:

The ap­point­ment of a new om­budswoman re­vealed that the law on this rep­re­sen­ta­tive fig­ure needs to be changed to pro­tect the post from po­lit­i­cal in­flu­ence

The Ukrainian Week - - CONTENTS - Hanna Chabarai

The ap­point­ment of a new om­budswoman re­veals nec­es­sary changes to pro­tect the post from po­lit­i­cal in­flu­ence

Ukraine had its new om­budswoman ap­pointed on March 16. Fol­low­ing par­lia­ment's vote for the can­di­dacy of ex-Min­is­ter of So­cial Pol­icy and Peo­ple's Front MP Li­ud­myla Denysova, pas­sions around her ap­point­ment have died down a bit, although the is­sues raised re­main un­re­solved. They in­clude the open vot­ing pro­ce­dure that MPs en­tered into the Law on Par­lia­men­tary Reg­u­la­tions (although the Law on the Om­buds­man for Hu­man Rights en­vis­ages a se­cret elec­tion), miss­ing the dead­line for the ap­point­ment, which, by law, was sup­posed to take place no later than June 6, 2017, and not in­volv­ing the pub­lic in the nom­i­na­tion process. This large num­ber of vi­o­la­tions caused a great deal of con­cern among hu­man rights ac­tivists. From the out­set, they stated that the ap­point­ment of the om­buds­man should be in line with the Paris Prin­ci­ples, i.e. with the in­volve­ment of rep­re­sen­ta­tives from civil so­ci­ety. The same com­plaints were heard from in­ter­na­tional part­ners, such as the UN, OSCE, Free­dom House and Amnesty In­ter­na­tional. The press ser­vice of the pres­i­dent promised that he would fix the er­ror of the open vote, but he did not and a cor­re­spond­ing bill from MPs was re­jected. Ukraini­ans ended up with an om­budswoman with no spe­cific hu­man rights ex­pe­ri­ence and an un­re­solved leg­isla­tive con­flict.

Hu­man rights ac­tivists pro­pose two ways to rem­edy the sit­u­a­tion: to chal­lenge the ap­point­ment of the om­budswoman in the Con­sti­tu­tional Court and make changes to the leg­is­la­tion so that the next bal­lot in five years fol­lows all the rules. These two pro­cesses can oc­cur si­mul­ta­ne­ously. For ex­am­ple, the pres­i­dent, om­budswoman and at least 45 MPs can make a con­sti­tu­tional ap­peal. Ac­tivists have put their hope in the lat­ter, call­ing on MPs to ap­peal to the Con­sti­tu­tional Court re­gard­ing the un­con­sti­tu­tion­al­ity of the om­budswoman’s elec­tion. Mykhailo Kamenev, ex­ec­u­tive di­rec­tor of the NGO Hu­man Rights Ini­tia­tive, notes that the CCU (Con­sti­tu­tional Court of Ukraine) could can­cel both the ap­point­ment of Denysova and the law con­tain­ing the open vot­ing rule on grounds of pro­ce­dural vi­o­la­tions, as re­cently hap­pened with the 2012 Ki­valov-Kolesnichenko lan­guage law.

The re­sult of this de­ci­sion may be the launch of a new pro­ce­dure to elect the om­buds­man. "If the court says that no vi­o­la­tions oc­curred and ex­plains why, we will con­tinue to live with this om­budswoman, this pro­ce­dure and the un­der­stand­ing that it is pos­si­ble to vote for laws in such a way," says Kamenev. The Con­sti­tu­tional Court can refuse to open pro­ceed­ings, for ex­am­ple, be­cause of a "lack of due le­gal jus­ti­fi­ca­tion" – word­ing that, ac­cord­ing to the ex­pert, is of­ten seen in the CCU’s de­ci­sions. Now, he says, the CCU has a sig­nif­i­cant credit of trust, which gives rise to hope that pro­ceed­ings will be opened. Ac­cord­ing to him, the main task will be to con­vince the Con­sti­tu­tional Court that chang­ing the pro­ce­dure for elect­ing the om­buds­man from a se­cret to an open bal­lot is a vi­o­la­tion of one of the fun­da­men­tal prin­ci­ples of the in­sti­tute's func­tion­ing – its in­de­pen­dence. They will be armed with com­ments from Par­lia­ment's Main Le­gal Depart­ment re­gard­ing the Law on the Con­sti­tu­tional Court, which was used to change the pro­ce­dure in the first place. The re­marks point out that the Law on Par­lia­men­tary Reg­u­la­tions is not in ac­cor­dance with what the Law on the Om­buds­man states about this pro­ce­dure, while open vot­ing threat­ens the in­de­pen­dence and po­lit­i­cal im­par­tial­ity of the om­buds­man.

Hy­po­thet­i­cally, the ap­point­ment of Denysova could be the sub­ject of a con­sti­tu­tional com­plaint – a new in­stru­ment in Ukrainian leg­is­la­tion, through which any cit­i­zen may ap­peal against a law to the Con­sti­tu­tional Court. How­ever, it is nec­es­sary to get through courts of the first and sec­ond in­stance, as well as the Supreme Court, first. In ad­di­tion, says Kamenev, the com­plaint must be filed by the per­son whose rights were vi­o­lated. "In this process, it may be as­sumed that the rights of for­mer Om­budswoman Va­le­ria Lutkovska could have been vi­o­lated, as she lost her po­si­tion as a re­sult of these de­ci­sions. But I doubt that she will take such a step,” the ex­pert says. In his opin­ion, Lutkovska does not need to strug­gle for the post, as this would only lead to rep­u­ta­tional losses.

Kamenev in­sists that there is al­ready an agree­ment with MPs who are pre­pared to ap­peal to the Con­sti­tu­tional Court. Mustafa Nayem (Petro Poroshenko Bloc fac­tion) con­firmed that a sub­mis­sion was be­ing pre­pared dur­ing a brief­ing in par­lia­ment on April 18. "We will be­gin col­lect­ing sig­na­tures dur­ing the next ple­nary week. A sub­mis­sion is cur­rently be­ing pre­pared. I hope we will find 45 col­leagues in par­lia­ment who will join us with an ap­peal to the Con­sti­tu­tional Court. Once again, I want to em­pha­sise that this is not a war against in­di­vid­u­als – it's a war for an in­sti­tu­tion that should be in­de­pen­dent and not sub­ject to any po­lit­i­cal force," said the MP.

Even if the con­flict with the elec­tion pro­ce­dure is set aside, the leg­is­la­tion on the om­buds­man needs to be changed due to sev­eral of its out­dated stan­dards. To do this, there is no need to wait for a de­ci­sion from the Con­sti­tu­tional Court. Hu­man rights ac­tivists are con­vinced


that it is bet­ter to do it right now, dur­ing the in­ter-elec­tion pe­riod. Ac­cord­ing to Te­tiana Pe­chonchyk, chair of the Hu­man Rights In­for­ma­tion Cen­tre, strength­en­ing the in­de­pen­dence of the om­buds­man in­sti­tu­tion is the rec­om­men­da­tion of the UN Uni­ver­sal Pe­ri­odic Re­view, the largest mon­i­tor­ing mech­a­nism for hu­man rights. "The Gov­ern­ment of Ukraine ac­cepted this rec­om­men­da­tion, com­mit­ting it­self to strength­en­ing the in­de­pen­dence of the om­buds­man in­sti­tu­tion over the next four years," said Pe­chonchyk. In ad­di­tion, the hu­man rights com­mu­nity is de­mand­ing such changes. "We have wit­nessed that the process of elect­ing the cur­rent om­buds­man was ac­com­pa­nied by many po­lit­i­cal in­flu­ences that un­der­mine the in­de­pen­dence and cred­i­bil­ity of this of­fice, so we be­lieve that it is nec­es­sary to make changes to the law," said the ac­tivist.

In her opin­ion, four key changes are needed: a de­crease in the age limit, se­cret vot­ing, a trans­par­ent con­test and the in­volve­ment of the pub­lic in the se­lec­tion com­mis­sion. "The cur­rent law has an age limit: only a per­son who has turned 40 may be­come the om­buds­man. How­ever, you can even be­come pres­i­dent at 35. This is an ar­ti­fi­cial re­quire­ment in the law and we be­lieve that the age cap should be re­duced," she says. The se­cret bal­lot, as has al­ready been men­tioned, en­sures the in­de­pen­dence of the in­sti­tu­tion. "We be­lieve that a trans­par­ent and open se­lec­tion stage with clear cri­te­ria and pro­ce­dures should be in­tro­duced to which in­ter­ested can­di­dates from the hu­man rights field could ap­ply," said the hu­man rights ac­tivist. Ac­cord­ing to the cur­rent leg­is­la­tion, can­di­dates are nom­i­nated by the par­lia­men­tary speaker or a quar­ter of MPs. "We be­lieve that rep­re­sen­ta­tives of the pub­lic, more specif­i­cally na­tional and in­ter­na­tional hu­man rights or­gan­i­sa­tions, should be in­volved in the se­lec­tion com­mit­tee. They should take part in the se­lec­tion process, con­duct in­ter­views and elab­o­rate clear cri­te­ria in or­der to rec­om­mend truly strong and in­de­pen­dent can­di­dates to par­lia­ment as a re­sult of this com­pet­i­tive pro­ce­dure," said Pe­chonchyk.

She added that the Hu­man Rights In­for­ma­tion Cen­tre is ready to work on ap­pro­pri­ate changes to the leg­is­la­tion and draw up a draft law. How­ever, there are doubts that the cur­rent par­lia­ment will strengthen the in­de­pen­dence of the om­buds­man in­sti­tu­tion.

Squab­bles re­gard­ing this po­si­tion broke out for good rea­son, as the in­sti­tute of om­buds­man be­came sig­nif­i­cantly stronger dur­ing Va­le­ria Lutkovska's term. A Na­tional Pre­ven­tive Mech­a­nism was in­tro­duced in Ukraine, which al­lows de­ten­tion fa­cil­i­ties – pris­ons, con­fine­ment cells, psy­chi­atric hos­pi­tals, etc. – to be in­spected with­out prior warn­ing. The Om­buds­man+ model pro­vides for the in­volve­ment of rep­re­sen­ta­tives of the pub­lic in this mon­i­tor­ing. The om­buds­man gained broad pow­ers on ac­cess to pub­lic in­for­ma­tion, per­sonal data pro­tec­tion and anti-dis­crim­i­na­tion. Con­tacts be­tween the of­fice of the om­buds­man and the hu­man rights com­mu­nity have been es­tab­lished. "For us, the in­sti­tu­tion of the om­buds­man is ba­si­cally a con­nect­ing link be­tween our or­gan­i­sa­tion, civil so­ci­ety and the au­thor­i­ties. In fact, it is per­haps the most im­por­tant chan­nel for bring­ing re­search and con­clu­sions about hu­man rights vi­o­la­tions to the au­thor­i­ties and de­mand­ing real steps from them: the adop­tion of laws, ces­sa­tion of hu­man rights vi­o­la­tions and so on," said Maria Guryeva, a spokesper­son for Amnesty In­ter­na­tional in Ukraine. "The om­buds­man of­fice is the key state in­sti­tu­tion for the pro­tec­tion of hu­man rights. If we take into ac­count the fact that hu­man rights al­ways con­cern re­la­tion­ships be­tween the au­thor­i­ties and cit­i­zens, this is one of the state bod­ies that has a very broad man­date to crit­i­cise ev­ery­thing that is hap­pen­ing in other gov­ern­ment bod­ies, point­ing out their mis­takes and rule vi­o­la­tions. Of course, such great re­spon­si­bil­ity re­quires that this per­son be suf­fi­ciently com­pe­tent, pro­fes­sional and in­de­pen­dent to be able to talk about rule vi­o­la­tions in the work of any gov­ern­ment au­thor­i­ties with au­thor­ity and im­par­tial­ity," ex­plains Te­tiana Pe­chonchyk.

The great­est sig­nif­i­cance of the om­buds­man in­sti­tu­tion in the cur­rent po­lit­i­cal con­fig­u­ra­tion lies pre­cisely in the Na­tional Pre­ven­tive Mech­a­nism, Kamenev says. "Most de­ten­tion fa­cil­i­ties – pre-trial cus­tody cen­tres, pris­ons, tem­po­rary hold­ing cells, etc. – are un­der the ju­ris­dic­tion of Min­is­ter of Jus­tice Pavlo Pe­trenko and Min­is­ter of In­ter­nal Af­fairs Arsen Avakov. There are cer­tain con­cerns when the om­buds­man be­longs to the same po­lit­i­cal force as the two key min­is­ters in the field of in­car­cer­a­tion," he stressed. In ad­di­tion, ac­cord­ing to the ex­pert, the om­buds­man can make state­ments that are taken much more se­ri­ously by the in­ter­na­tional com­mu­nity than those from the pub­lic and MPs. Be­cause the om­buds­man is by def­i­ni­tion an in­de­pen­dent body, this can be used in dif­fer­ent ways.

In ad­di­tion, om­budswoman Lutkovska took part in the Minsk talks on re­solv­ing the con­flict in the Don­bas and free­ing Ukrainian pris­on­ers from the oc­cu­pied ter­ri­to­ries, as well as vis­it­ing po­lit­i­cal pris­on­ers in the an­nexed Crimea as a re­sult of ne­go­ti­a­tions with her Rus­sian coun­ter­part. This is an­other ar­gu­ment in fa­vor of the fact that such a per­son should be po­lit­i­cally un­bi­ased. Ac­cord­ing to Kamenev, the in­sti­tu­tion of the om­buds­man is one of the few to have not changed since the Revo­lu­tion of Dig­nity and con­tin­u­ing to op­er­ate with the same per­son­nel. This in­di­cates the sta­bil­ity of this body, a cer­tain con­fi­dence in it and the need to de­fend its in­de­pen­dence.

Om­budswoman and the party. Li­ud­myla Denysova has some pow­er­ful po­lit­i­cal sup­port­ers from the force she rep­re­sents

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