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III. SECURING CONSTITUTIONAL RIGHT TO APPEAL TO THE UKRAINIAN 
PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS

3.1.1. PECULIARITIES OF THE CONSIDERATION OF APPEALS TO THE COMMISSIONER FOR HUMAN RIGHTS

The Ukrainian Constitution proclaims that human rights and freedoms and their guarantees determine the essence and orientation of the state’s activity. The main duty of the state is to affirm and ensure human rights and freedoms.

What is important in this connection are not only the legislatively secured human and civic rights and freedoms, but also the introduction of effective methods of legal protection of such rights and freedoms in case they are violated.

At the legislative level the introduction of such human rights protection mechanisms is stipulated in a series of constitutional provisions, the most important of them being the one set out in Article 55 that guarantees everyone the right of appeal to national courts, the Ukrainian Parliament Commissioner for Human Rights, and, after exhausting all domestic legal remedies, to relevant international judicial institutions or to relevant bodies of international organizations of which Ukraine is a member or participant. Thereby the groundwork for an effective national system of protection of human rights and freedoms is formed and the operation of respective human rights protection mechanisms both at the national and international levels is ensured procedurally.

It goes without saying that an independent judicial system is among the most important links in the national system of human rights protection. The right to judicial protection is of a universal nature, because under Article 124 of the Ukrainian Constitution the jurisdiction of the courts extends to all legal relations that arise in the state.

But at the same time the presence of independent courts – a necessary and basic element within the system of human rights protection in any democratic society based on the principle of the rule of law and separation of powers – is not always sufficient to ensure strict compliance with human rights and freedoms at the national level.

Therefore the Constitution provides for the right to use extrajudicial methods of protection of rights and freedoms, of which appeals to the Ukrainian Parliament Commissioner for Human Rights is one of the key methods. Among the subjects of the national system of human rights protection the Office of the Commissioner for Human Rights plays an important role primarily because of its status, range of powers, and methods of work in considering the appeals of citizens.

When a citizen exercises his right of appeal to the Commissioner he does it free of charge, i.e. by one of the forms of legal assistance guaranteed under Article 59 of the Ukrainian Constitution. Besides, unlike an appeal to, say, a court of law, the procedure of appeal is not encumbered by superfluous formalities; it is flexible, transparent, relatively prompt and, what is important, aimed above everything else at protecting the interests of people. It simplifies the process of appeal and makes this institution an attractive instrument for rectifying violated rights.

Another important element in the consideration of appeals is the application of the principle of subsidiarity. The activity of the Commissioner supplements the existing methods of protecting constitutional rights and freedoms, without repealing them or occasioning the review of the competence of state bodies that ensure the protection and restoration of violated rights and freedoms. Putting it otherwise, the intervention of the Commissioner is restricted in those cases when the appellant has not yet availed himself of the national methods of protection, primarily judicial. The exercise of this principle is stipulated in the Law On the Ukrainian Parliament Commissioner for Human Rights by which the Commissioner does not consider appeals that are under examination of courts and terminates the already commenced consideration of appeals, if the appellant filed an action, application or complaint with a court of law.

When filing an appeal with the Commissioner for Human Rights, a person may be sure that his decision will in no way endanger him or have negative consequences because of disclosure of information contained in the appeal. For this purpose respective procedures have been set out to guarantee confidentiality of information as well as confidentiality of the appellant’s particulars from the moment the complaint is received and, when possible, until the end of its consideration. Of course, compliance with confidentiality does not apply to cases when the appellant desires otherwise.

The purpose of appealing to the Commissioner for Human Rights is to restore through all accessible legal methods the human rights and freedoms that were violated by bodies of state authority, bodies of local self-government and their officials and officers. But the number of restored individual rights alone cannot serve as a criterion for judging the efficiency of the Commissioner Office’s work. In the majority of cases the Commissioner renders assistance in the form of skilled legal counseling and advice on the application of alternative methods of protection in each definite case and explains the legal issues implied. This type of legal assistance is something to which other constitutional bodies pay little attention.

Besides, concentrating on restoring an infringed right of a definite person and on resolving an individual case, the Commissioner for Human Rights, when confronted with facts of extensive and systematic violations of human rights and freedoms, actively facilitates their elimination by introducing respective recommendations to review a law or amend the practice of its application that caused such violations. Receiving appeals from all regions of Ukraine, the Commissioner for Human Rights has the unique opportunity to make an all-round analysis of the appeals according to the nature and scope of the violated rights, to identify the bodies of state authority infringing these rights, to analyze their reasons, and to effect corresponding measures to have them eliminated or prevented. Such information is extremely important for the Commissioner in monitoring compliance with human rights and freedoms in Ukraine. Its results are then used as the groundwork for annual and special reports of the Commissioner.

The appeals are a distinctive reflection of how human and civic rights and freedoms are complied with in society. They are live links directly uniting civil society, which is now just evolving in the country, with those citizens whose rights have been infringed. As a rule, these people belong to the most socially unprotected part of the population.

A case in point is the appeal of 32 workers of the sugar refinery in Dobrovelychkivka in Kirovograd oblast:

“Such a lot of things have caused us pain and come to a boil that we don’t even know where to begin. Our refinery is not an old enterprise; it began operating in 1986. Ever since hryvnias appeared in our state, we have not received wages a single time. Neither are we supplied with gas long since. For three winters in a row our homes were unheated, we have only cold water, and not every day for that matter, while electricity is being switched off three to four times a day.

“The local school is under the threat of closure (owing to the lack of heating), the kindergarten was closed down and offered for sale. When it’s cold, the children are always ill, but there’s no money even to buy medicines. It looks like the entire township will resettle into dugouts or caves (there you can build a fire at least) or, putting it more precisely, we’ll become homeless tramps.

“However much you work, you’re not getting any money anyway. Interestingly, our accountants, engineers and technical personnel do not suffer from wage arrears. And their pay is much larger than ours.

“There is one question we would like to ask of our esteemed Parliament: ‘What do we need laws for, if they are not executed?’

“But do they understand us there, ‘on the top’? And does really anyone care about some 2,000 wretched people?”

Since the outset of work of the Commissioner for Human Rights there have been quite a few such letters. People seek protection of their rights with the Commissioner as the last instance, the last hope. And the Commissioner tries not to leave any complaint without a response. This is required by the oath the Commissioner took before Parliament: “I solemnly swear to honestly and dutifully protect human and citizens’ rights and freedoms, conscientiously perform my duties, abide by the Constitution and laws of Ukraine and be guided by justice and personal conscience … act in an independent, unbiased manner in the interests of the person and citizen.”

The substance of the oath speaks of the place and role of the Commissioner for Human Rights within the system of national bodies of protection of human rights and freedoms and of the distinctive nature of the Commissioner’s paramount constitutional task – to ensure that everyone effectively exercises his constitutional right of appeal to the Commissioner.

Ever since the Office of the Commissioner for Human Rights was established, the response to appeals has been a priority area of activity.

In the period from April 15 to December 31, 1998, the Commissioner received 8,369 written appeals from Ukrainian citizens, foreigners and stateless persons, of which 172 were collective petitions bearing the signatures of 6,690 Ukrainian citizens. In 1998 the Commissioner was addressed in writing by a total of 14,887 people, including 18 foreigners and three stateless persons (see Table 3.1).

Table 3.1. Appeals to the Commissioner in 1998 (April 14-December 31) and in 1999

Within this period the number of appeals tended to increase. In the first three months (April, May, June) of 1998 the Commissioner received 1,102, while in October the number was 1089, in November 1,370, and in December 2,731.

In the period from January 1 to December 31, 1999, the Commissioner received 16,019 appeals from Ukrainian citizens, foreigners and stateless persons, of which 348 were collective petitions bearing the signatures of 12,935 Ukrainian citizens. Thus the Commissioner received in 1999 written appeals from 28,606 persons, of which 48 were foreigners and seven stateless persons (see Table 3.1). On the average 1,300 appeals arrived every month, which was by one-third more than in 1998. The Commissioner believes that the reason behind the increase was the citizens’ higher awareness about the work of the institution; also, in the year of the presidential elections sociopolitical activity reigned much stronger.

The largest number of appeals arrived from Kyiv (878 in 1998, 1,598 in 1999), Donetsk oblast (651 and 1,744 respectively), Dnipropetrovsk oblast (566 and 1,053), Luhansk oblast (362 and 1,402), Kharkiv oblast (433 and 778), Odessa oblast (430 and 639), and Lviv oblast (391 and 668, see Table 3.2)

Table 3.2. Number of written appeals to the Commissioner for Human Rights by regions in 1998 (April 14-December 31) – 1999

Difficulties in the evolvement of the Office of the Commissioner for Human Rights. With such a large inflow of appeals right from the first days of the institution’s existence, there arose an urgent need in personnel, financial and logistical support, without which the Commissioner’s Office was unable to abide by its constitutional duties, in particular in responding to the appeals of citizens.

Regrettably, the central bodies of state authority, bound that they were under the Law On the Ukrainian Parliament Commissioner for Human Rights to ensure proper conditions of work for the newly established institution, did not provide the legally required support, especially during the most difficult initial period. This was especially true with regard to budgetary allocations and assignment of premises.

The Commissioner’s Office began its work in two little rooms in the building of Parliament; one of the rooms, 12 square meters in size, was used by seven to eight employees who processed the appeals and worked late into the night with practically no days off. All those employed in the Secretariat throughout 1998 did not receive any pay (except in November and December), performing their functions actually on a voluntary basis. The Commissioner for Human Rights worked under the same conditions.

Lack of funding made it impossible for the Commissioner to engage the necessary specialists, primarily lawyers, for examining the appeals and to provide the employees with computers, office equipment, paper, envelopes and stationery. Mailing the responses was a permanent problem, since it, too, required certain funds.

Parallel with these developments work was going on in setting up a legal framework for the operation of the Secretariat: formulating its status, conditions of pay, procedure for selecting personnel, material and technical support, and the like.

For all the difficulties, which at times seriously impeded the activity of the institution and delayed the consideration of appeals, the Office of the Commissioner tried to ensure a proper level of its functions as stipulated by the Ukrainian Constitution.

Under the Law On the Ukrainian Parliament Commissioner for Human Rights only appeals in writing are subject to consideration. But given the definite conditions that prevailed, the Commissioner adopted the decision to provide verbal counseling. For this purpose a “telephone of trust” was set up in the department of appeals. Citizens could also communicate with the Commissioner directly through a personal telephone line. In 1998 the Commissioner and the Secretariat’s employees provided counseling during more than 11,000 telephone calls, while in 1999 such calls grew to 15,000.

Since its first day of operation the Office of the Commissioner began receiving citizens by personal appointment, although such a procedure is not provided for in the Law On the Ukrainian Parliament Commissioner for Human Rights. Every day for almost two years, until January 2000, the employees of the Secretariat were meeting people from all over the country in the building of Parliament on 4 Shovkovychna Street and, occasionally, outside in the street by instruction of the Commissioner. The latter also arranged daily appointments with appellants with the most complicated cases in a little office that was previously used in her capacity of Member of Parliament.

Personal appointments gave citizens the opportunity to receive more detailed information about their infringed rights and freedoms. In some cases, after additional explanations, appeals were written right on the spot. In the period from April to December 1998 the Office of the Commissioner was visited by 3,676 citizens by personal appointment, in particular 425 persons were received during on-site inspections in the regions, which became possible after funds were allocated. In 1999 the number of citizens appealing by personal appointments increased to 7,553, including 2,430 who were received in the regions.

From April 14 to December 31, 1999 the total number of citizens who addressed the Commissioner in writing, verbally or by personal appointment amounted to more than 29,500, while throughout the entire year it exceeded 51,000.

All appeals were first examined and classified in respective departments of the Secretariat. The systematization and analysis of the appeals was based on a classification system used by the Secretariat of Parliament. Written and verbal appeals were analyzed predominantly by the sectoral principle and areas of activity of specific state bodies. At the initial stage such an approach made it possible to identify the range of problematic issues that were arising in the exercise of the citizens’ rights and freedoms and to single out the priority areas of work of the Commissioner’s Office.

The analysis of the appeals to the Commissioner in 1998 (see Table 3.3) showed that the most frequent infringements of rights (54.7%) were related to compliance with legality and law and order, reconsideration and execution of court decisions, etc. Most of the appellants complained against the employees of law enforcement bodies, primarily the militia, for unlawful apprehension, application of legally prohibited methods of obtaining evidence, and violation of rights to counsel. A substantial part of the appeals concerned violations of procedural terms of considering civil and criminal cases by courts. Citizens complained that courts were considering cases for months and sometimes for years, thereby undermining the people’s trust in the judicial system and the efficiency of its operation. Frequently the reason of such delays was the absence of defendants and witnesses from court. However, courts did not always look into the real reasons of absence and raise the question of responsibility for contempt of court.

Table 3.3. Analysis of issues raised in the appeals to the Commissioner for Human Rights in 1998 *

* The appeals can refer to several issues of human rights violations

A considerable part of the appeals (15.9%) concerned issues of the social protection, specifically assignment and raise of pensions, identification of social status of citizens, provision of vehicles for invalids, placement in social care institutions, provision of material assistance, and assignment of subsidies.

Among the topical issues in 1998 were dismissals from jobs, restoration of employment, wages, and unemployment, on which 1,321 appeals were focused, or 13.1% of all petitions.

6.5% of the appeals concerned provision of housing and municipal services. People complained about inadequate housing conditions, reduction of housing construction, the bad work of the municipal economy, unjustified switch-offs of electricity, and their inability to pay for rent and utilities.

Citizens were also concerned about the recovery of their savings and bank deposits, health care, environmental safety, the activity of central and local bodies of authority and administration, etc.

At the same time the experience gained by the Commissioner for Human Rights in 1998 proved that the introduced classification of appeals did not fully accord with the distinctive nature of the complaints. A different classification was needed with allowance for the specific mandate of the Commissioner for Human Rights; more flexible indicators had to been introduced for recording and classifying both the types of infringed rights and the bodies of state authority and local self-government against which the appellants complained. In compliance with the requirements of the Ukrainian Constitution, the Convention for the Protection of Human Rights and Fundamental Freedoms, and the international covenants on human rights a new classification of appeals to the Commissioner for Human Rights was designed and introduced by which, along with the existing classification, the appeals filed in 1999 were analyzed. Henceforth the appeals were analyzed on fundamentally new principles in accordance with the existing international standards on human rights protection.

Of the appeals addressed to the Commissioner in 1999 over a half (8,891 or 55.5%) concerned infringements of civic rights (see Table 3.4), above all complaints about violation of rights to fair judicial protection, unlawful actions of employees of law enforcement bodies, failure to execute court decisions in good time, violations of the right to acquire Ukrainian citizenship, as well as violations of the right to residence permits (analyzed in greater detail in the respective chapters of the Report).

Table 3.4. Analysis of infringed rights in the written appeals to the Commissioner for Human Rights in 1999

Economic rights (3,204 or 20%) held second place as to the number of appeals. In the first place they concerned the right to work, wage arrears, unlawful layoffs, protection against unemployment, etc. While in 1998 appeals against the infringement of these rights amounted to 1,081 (12.9%), in 1999 there were 2,586 such appeals, or 16.1% of the total. Much less in number now are appeals concerning recovery of savings and violations of proprietary rights, in particular rights to ownership in land (almost 7%).

Compliance with social rights remained a topical issue in 1999 when 2,627 appeals or 16.4% of the total were addressed to the Commissioner. They centered on infringed rights to housing, assignment, review and delays of pension disbursement, provision of vehicles for invalids, placement in social care institutions, provision of material assistance, and assignment of subsidies. Appeals on infringed rights to housing alone amounted to 865 (5.4%).

Applicants react very acutely when their personal constitutional rights are violated, such as the right to respect of dignity and inviolability of the person, freedom from illegal apprehension and arrest, and non-interference in personal and family life. Such appeals numbered 769 or 4.8%. Their analysis showed that typical human rights violations were torture, beatings and other unauthorized methods of influence, primarily by the militia, from the moment of apprehension to placement in pretrial isolation wards. There were also complaints against the actions of employees of the bodies of pretrial investigation who did not perform their official duties in good faith.

In 1999 the appeals concerning the exercise by citizens of their political rights and freedoms tended to grow in as much as it concerned their rights to freedom of speech, personal philosophy and religion, free elections, and establishment of associations and trade unions. Such appeals numbered 368 (2.3%) against the 46 (0.5%) in 1998. To a certain extent this was occasioned by the presidential elections held that year.

The introduction of a new system of classification of appeals made it possible to analyze more precisely the social status of the appellants. For instance, in 1998 pensioners filed 4,229 appeals or 26.4% of the total; workers and employees of different sectors of the national economy filed 1,554 or 9.7%; invalids of labor – 881 or 5.5%; war invalids – 651 or 4.0%, unemployed – 397 or 2.5%. From people in custody the Commissioner received 1,371 appeals or 8.6%.

During their preliminary process of the appeals their acceptability for consideration was identified in accordance with the Commissioner’s competence as well as the criteria of their unacceptability (see Table 3.5). According to Article 2 of the Law On the Ukrainian Parliament Commissioner for Human Rights, the Commissioner considers only those appeals that concern facts of violations of civic and human rights by bodies of state authority and local self-government and their officials and officers. Therefore, appeals filed on behalf or in the interests of legal entities are not considered as well as appeals complaining against legal relations between natural persons and legal entities, and the like.

Table 3.5. Criteria of unacceptability of appeals to the Commissioner for Human Rights

The next requirement concerns the period for considering appeals. Subject to considerations are only appeals filed within a year from the date the violations of human rights and freedom were revealed. In exceptional cases the period can be prolonged by the Commissioner, but not for more than two years. This provision of the law actually embodies the principle underlying the period of limitation, thus enabling the Commissioner to concentrate more attention on urgent appeals that reflect the current needs of society.

Besides, following from the principle of subsidiarity, the Commissioner does not consider appeals that are under the review of courts, and terminates their consideration if the person concerned filed a claim, plea or complaint with a court.

The analysis of the appeals in 1998 showed that 2,444 of them were recognized as acceptable by their formal attributes, and in 1999 the figure was 4,744 or about 30% of the total received by the Commissioner (see Table 3.6).

Table 3.6. Analysis of the preliminary examination of appeals addressed to the Commissioner for Human Rights in 1998 (April 14-December 31) – 1999

After preliminary examination the next important step was to determine the measures that had to be taken to restore the infringed rights of the citizens. Article 17 of the Law On the Ukrainian Parliament Commissioner for Human Rights clearly governs the actions the Commissioner may take:

▪ initiates an investigation into the case of violation of human and civic rights and freedoms;

▪ explains what measures the appellant should effect;

▪ refers the appeal to the body within whose competence it is to consider the case and controls the consideration of this appeal.

Detailed information about the consideration of appeals recognized acceptable and the effected measures are presented in Table 3.7.

Table 3.7. Analysis of appeals accepted for consideration in compliance with Items 1-3, Article 17 of the Law of Ukraine On the Ukrainian Parliament Commissioner for Human Rights in 1998 (April 14-December 31) – 1999

Translated by Anatole Bilenko

SECOND PART

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