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28 May, 2018  ▪  Hanna Chabarai

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

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.

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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.

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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.

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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.

Translated by Jonathan Reilly

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