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I. THE HISTORICAL AND LEGAL ASPECTS OF EVOLVEMENT OF HUMAN RIGHTS IN THE WORLD AND IN UKRAINE

3. The Ukrainian Parliament Commissioner for Human Rights – the Ukrainian Model of Ombudsman

The historical experience of other countries was taken very much into consideration when the ombudsman institution was introduced in Ukraine. Under Article 101 of the Ukrainian Constitution the establishment of the new body – the Ukrainian Parliament Commissioner for Human Rights – is intended for parliamentary control over the observance of constitutional human and citizens’ rights and freedoms. Article 55 of the Constitution proclaims the right of everyone to appeal to the Commissioner for Human Rights for the protection of his rights. The inclusion of this provision in the article of the Constitution, which provides for the basic legal mechanisms of protection of human rights and freedoms, speaks of the constitutional importance of the Commissioner in the control over compliance with human rights and freedoms. The office of Commissioner for Human Rights is an integral element of the constitutional system of protection of human and citizens’ rights, which includes primarily the courts, the Ukrainian Parliament Commissioner for Human Rights, and international judicial and other bodies, of which Ukraine is a member or participant.

When the Ukrainian model of the Commissioner for Human Rights was devised, allowance was made for the prevalent national and legal traditions, the system of state power, as well as the expertise of the ombudsmen elsewhere, specifically in the Scandinavian nations and in the countries that embarked on the road of reform – Poland, Hungary and Russia.

The Ukrainian Constitution and its derivative Law On the Ukrainian Parliament Commissioner for Human Rights of December 23, 1997 provided for creating a “strong” model of ombudsman, which is characterized by the following attributes:

§ high constitutional status of the Commissioner for Human Rights, as secured in articles 88, 85 and 101 of the Ukrainian Constitution;

§ independence of the Commissioner from any body of state authority or local self-government and their officials;

§ broad jurisdiction of the Commissioner that extends to bodies of state authority, including courts, as well as to bodies of local self-government and their officials;

§ ample powers for inquiries and inspections, including on his own volition, and for constant monitoring of compliance with human rights and freedoms;

§ right to initiate petitions that are binding for review, along with recommendations on rectifying the detected violations of human rights and freedoms by bodies of state authority, local self-government, NGOs, enterprises, and institutions regardless of their form of ownership, as well as their officers and officials;

§ opportunity of everyone to appeal directly to the Commissioner;

§ flexible and informal procedure and freedom of action in inspection of cases.

The Ukrainian Parliament Commissioner for Human Rights is a classical example of a parliamentary ombudsman, since he is elected by Parliament (Article 5 of the relevant Law) by secret ballot, thereby ensuring the high status and legitimacy of the office as well as guaranteeing his independence from all branches of state authority, the legislature included. Notably, the Commissioner’s term of office does not coincide with the term of legislature of the Ukrainian Parliament (Article 5 of the Law).

Both the Constitution and the Law stipulate the introduction of a single model of Commissioner for Human Rights. Judging from experience, such a model is the best possible additional guarantee for the high status of this office in a country that is in transition. The Law also provides for the Commissioner’s right to appoint his representatives by territorial or functional characteristics within the limits of funds allocated by Parliament.

Besides, the Commissioner is vested with additional guarantees of independence – bodies of state authority, bodies of local self-government, NGOs, enterprises, institutions and organizations irrespective of their forms of ownership as well as their officials are prohibited from interfering in the activity of the Commissioner, including the prohibition from demanding from the Commissioner any explanations about the essence of the cases under his current or future scrutiny (Article 20 of the Law).

The powers of the Commissioner may not be terminated or restricted in the event of expiry of the legislature of Parliament or its dissolution (self-dissolution), declaration of martial law or state of emergency in the country or in its specific localities (Article 4 of the Law).

The Law also clearly defines the restricted range of reasons by which the Commissioner’s authority may be terminated or when he may be dismissed from office (Article 9 of the Law).

During the discharge of his official duties the Commissioner may not be held criminally liable, given administrative punishment by judicial procedure, detained, arrested, searched or be subjected to personal examination without the consent of Parliament. No one except the Procurator General of Ukraine may initiate criminal proceedings against the Commissioner (Article 20 of the Law).

Financial self-sufficiency is an important guarantee of independence in the Commissioner’s discharge of his duties. The operation of the Commissioner’s office is funded from the state budget every year. After drafting the institution’s budget, the Commissioner submits it for the approval of Parliament (Article 12 of the Law).

The authority of the Ukrainian Ombudsman is rather wide. Since the Law does not have a single exception when definite officials would be out the Commissioner’s jurisdiction, he may exercise control over the activity of all officials and officers of the bodies of state authority and local self-government, courts included. As independent institutions, courts owe obedience only to the law. Therefore, the Commissioner’s control over the activity of courts essentially does not concern court judgments, but rather violations of the terms of considering cases and failures to comply with procedural standards. The Commissioner’s jurisdiction also extends to other persons who in one way or another perform the functions of state authority.

The Commissioner conducts inquiries and investigations on the basis of petitions by Ukrainian citizens, foreigners, stateless persons and their representatives, MPs, and of his own volition. Under the Law such petitions should be submitted to the Commissioner throughout one year from the date the violations of human and citizens’ rights have been detected.

For the performance of his legally stipulated functions the Commissioner is vested with a broad range of rights, namely to:

§ be received, without any delay, by the President, Chairman of Parliament, Prime Minister, chairmen of the Constitutional, Supreme and higher specialized courts, the Procurator General, chairmen of other state bodies, bodies of local self-government, NGOs, enterprises, institutions, irrespective of their forms of ownership, as well as their officials and officers;

§ visit, without hindrance, any body of state authority, body of local self-government, enterprise, institution, organization, including penal institutions and psychiatric hospitals, interview the persons staying there, and obtain information about their custody and upkeep;

§ invite officials and officers, Ukrainian citizens, foreigners, and stateless persons to receive oral or written explanations with regard to cases under investigation;

§ read documents, classified ones included, at bodies of state authority, bodies of local self-government, NGOs, enterprises, institutions, organizations, bodies of prosecution, as well as cases filed in court;

§ attend sessions of courts of all instances, including in camera, provided consent is granted by the entity of law in whose interest the judicial proceedings have been ruled to be held in camera, personally or through his representative take part in judicial proceedings in cases and under procedure established by law, and also to appeal to courts for the protection of rights and freedoms of persons who cannot do this on their own owing to conditions of health or other reasons (Article 13 of the Law).

After investigating into a case, the Commissioner has the right to forward instruments of response to respective bodies for them to take appropriate measures within one month, if violations of human rights and freedoms were revealed during the investigation. The instruments of response are as follows:

§ appeals of the Commissioner which, in compliance with Article 15 of the Law On the Ukrainian Parliament Commissioner for Human Rights, are forwarded to bodies of state authority, bodies of local self-government, NGOs, enterprises, organizations, and institutions, irrespective of their forms of ownership, and to their officials and officers to rectify injustice or a defective administrative practice;

§ constitutional appeals of the Commissioner submitted to the Constitutional Court of Ukraine that has to rule whether a law or other legal act of Parliament, an act of the President or Cabinet of Ministers, or a legal act of the Autonomous Republic of Crimean conform to the Ukrainian Constitution (constitutionality); and to receive an official interpretation of the Ukrainian Constitution and Ukrainian laws in compliance with articles 13 and 15 of the Law On the Ukrainian Parliament Commissioner for Human Rights and articles 40 and 41 of the Law On the Constitutional Court of Ukraine;

§ appeal of the Commissioner to the Supreme Council of Justice – a special type of appeal stipulated in articles 30 and 38 of the Law On the Supreme Council of Justice on the dismissal of a judge from office or disciplinary action against judges of the Supreme Court and higher specialized courts.

Another mark of the Commissioner’s status is that he does not belong to any branch of state power, but is a body sui generis, i.e. unique (of its own kind). The exercise of his mandate in Ukraine under the current circumstances becomes the more complicated, because the Commissioner for Human Rights does not fit into the traditionally existing system of authority. Therefore, at the stage of the institution’s evolvement the Commissioner is inevitably seeking the best possible mechanisms of interaction with the administrative authority while simultaneously retaining his independent status.

The main principles of the Commissioner’s interaction with other bodies do not entail a review of the competence of state bodies that ensure the protection and restoration of violated human rights and freedoms. The Commissioner operates with the means and methods all his own, but the recommendatory nature of his appeals do not reduce his opportunity to exercise influence over the restoration of rights and freedoms which is possible, if the respective officials attain a high level of legal culture.

Apart from direct consideration of complaints on human rights violations, the Ukrainian ombudsman model also provides for monitoring compliance with protection of human and citizens’ rights and freedoms by bodies of state authority and local self-government, NGOs, enterprises, institutions and organizations irrespective of their forms of ownership, as well as their officials and officers who through their actions (omission) have violated these rights. The results of such monitoring and the comprehensive evaluation of the status of human rights compliance in the country are then presented to the Parliament as annual reports as prescribed by Item 17, Article 85 of the Ukrainian Constitution and Article 18 of the Law On the Ukrainian Parliament Commissioner for Human Rights. The reports also have to comment on the flaws the Commissioner detected in national legislation concerning human rights and freedoms, i.e. the Commissioner is actually vested with the binding duty to provide an expert opinion on legislation in this area.

Operative legislation sets definite binding requirements to the substance of the Commissioner’s annual reports. According to Article 18 of the Law On the Ukrainian Parliament Commissioner for Human Rights, the annual report must refer to instances of violated rights in regard to which the Commissioner effected respective measures, to the results of investigations conducted throughout the year, as well as to the conclusions and recommendations on improving safeguards of human rights and freedoms.

Apart from annual reports, the Commissioner, when necessary, may submit to Parliament a special report on specific issues of compliance with human and citizens’ rights and freedoms.

On the basis of the annual and special reports the Parliament adopts a resolution. Annual and special reports, along with Parliament’s resolution, are put out in the official publications of Parliament.

Besides, the Commissioner is entitled under the law to take part in preparing reports on human rights which Ukraine submits to international organizations in compliance with the international treaties ratified by Parliament (Article 19 of the Law). This right extends the Commissioner’s legal opportunities to exercise control over Ukraine’s adherence to international legal obligations and also to influence the process of bringing Ukrainian legislation into conformity with the standards and principles of international law. All this promotes greater transparency of the information which the government submits to international convention bodies.

Notably, the efforts of the Commissioner for Human Rights are focused on yet another important exercise of parliamentary control – higher legal awareness of Ukraine’s population (Item 7, Article 3 of the Law). Only by changing the legal conscience and culture of society in general and its individual members in particular will it be possible to assert a new system of values based on the principles of democracy, rule of law and respect to human rights.

In exercising its functions, the office of the Commissioner for Human rights applies different techniques: issues regular information about the results of its activity through the printed mass media, radio and television, distributes information of an informative and legal nature, and counsels complainants on legal issues.

A lot of effort goes into spreading knowledge about international standards in human rights that are integral components of Ukrainian legislation. By promoting these standards, the Commissioner thereby lays the groundwork of a new legal conscience not only for average citizens, but also for the representatives of state authority and creates the preconditions for the extensive application of international law provisions in the national legal system.

Any model of the ombudsman institution is based on the high prestige of the ombudsman as an individual. A distinctive feature of the Ukrainian model is reflected, apart from everything else, in the Commissioner’s duty to be guided by the Ukrainian Constitution and laws as well as the laws of justice and personal conscience (Article 7 of the Law) while pursuing an independent and impartial activity in the interests of people and citizens. This is emphasized in the oath which the first Commissioner for Human Rights took on April 14, 1998. In practice it means that the Commissioner takes constant guidance from both the principles of the supremacy of law and the supremacy of human rights, at the same time offering a model of legal and moral behavior that would make better the laws in effect to date.

The Ukrainian ombudsman is vested with powers and competence similar to those of the majority of the world’s ombudsmen. However, some ombudsmen have broader powers. Earlier it was mentioned that Poland’s commissioner for civil rights protection may act as a public prosecutor in administrative and civil proceedings, while the ombudsman of Sweden can initiate criminal proceedings against any official, if there is a sound reason to do so. The Ukrainian Parliament Commissioner of Human Rights does not have such authority. But judging from the first years of the Commissioner’s work, there is a need to grant such powers. It is especially true when viewed against the vaguely defined status of the Commissioner in criminal and civil proceedings and his lack of the right to file a cessational appeal against court decisions when he believes that the law was transgressed during the consideration of a case.

By all the logic of the foregoing, the “strong” model of the Ukrainian ombudsman enshrined in the Law on the Commissioner for Human Rights has to be backed up by a series of procedural legal rules in respective codes and legislation.

In pursuance of the concluding provisions of the Law On the Ukrainian Parliament Commissioner for Human Rights the Cabinet of Ministers of Ukraine had to submit (by February 1, 1998) for the Parliament’s consideration proposals on bringing the country’s legislation and the government’s decision into conformity with the Law on the Commissioner as well as to have the ministries and other bodies of the executive review and annul their regulations that are inconsistent with this Law. But it was only after the Commissioner’s insistence that the government instructed the Ministry of Justice to draft the Law On Introducing Amendments and Additions to Some Legislative Acts of Ukraine in Connection with the Adoption of the Law On the Ukrainian Parliament Commissioner for Human Rights. The amendments and additions relate mostly to the procedural rules of operative legislation to entitle the Commissioner to defend human rights in civil, administrative and criminal proceedings as well as at penitentiary establishments. It is hoped that this issue will meet with the understanding and support by the MPs during the review of this Law, the provisions of which are aimed primarily at a more effective protection of human rights and freedoms in Ukraine. 

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