Essential elements in developing high quality recommendations based on individual appeals: structure and reasoning of the recommendations Jurgita Paužaitė-Kulvinskienė Kiev 07.04.2019

Content I. Structuring and clarity of recommendations II. Fair proceeding and fact finding III. Reasoning of the recommendations III. 1 Examiantion of the evidence III. 2 Interpretation of the law III. 2.1 Application of law and methods of reasoning (argumentation) III. 2.2 Contradictions of legal norms III. 2.3 Legislative omission

Every complaint is different and deals with differing issues. Article 15 paragraph 3 of the Law on the Ukrainian Parliament Commissioner for Human Rights Every complaint is different and deals with differing issues.

A high quality decision and recommendation is one which achieves: I. The acceptance both by the individual complainant and the public body addressed, as well as the whole society. II. The procedure of drafting and adoption of recommendations must be clear, transparent, and must satisfy the standards (requirements) of a “fair procedure” during the investigation of complaints. III. The content of recommendations must be perceived as a result of a correct application of legal rules and a proper evaluation of facts.

One group of recommendations concerns the procedural guarantees for individuals whose rights have been violated. The Ombudsperson must organise and conduct the proceedings: actively, accurately, within a reasonable time and impartial.

The second group of recommendations relies on the finding of a proper solution and reasoning of the solution. The recommendation of the Ombudsperson is not only aimed to resolve a given individual appeal, but, at the same to, to promote the respect for the principle of good administration, which may prevent the emergence of other conflicts and legal disputes and to ensure a social harmony.

It is recommended to establish the uniform model structure of recommendation: Introductory part Descriptive part Reasoning part Conclusions Recommendations (if any)

Introductory part - background to an investigation and complaint: Information provided by the complainant and Arguments provided by the relevant institution

Descriptive part - the “procedural history” of the dispute Fact finding and Analysis of the situation

Reasoning part - analysis of facts and application of law Assessment of facts and Interpretation of law

Conclusions part Recommendation

Interpretation and application of legal rules Interpretation of the law – Application of the law – Contradictions of legal norms – Legislative Omission

Interpretation of the law: Because the interpretation of the law is an integral part of the legal argumentation, the main methods of the law interpretation must be used in the usual praxis investigating the complaints by the Ombudsperson. The linguistic method for interpreting law is not unique or universal and each rule of law can be analyzed in other aspects - systematic, the aim of a legal norm (the law) and the intention of the legislator, logical, historical, etc

Application of the law: The scope of the reasons for a decision depends directly on the complexity of the complain. If the complain is not complicated, there is no possibility of alternative solutions, there are no major problems of law interpretation or fact-finding, and the legal issue addressed does not have a systemic significance, it simply is not necessary to write expanded motives. Conversely, when a question has a systemic significance when it comes to solving complex issues of law and fact, to rely on the right to principles and values, it is necessary to write expanded motives. In discussing the solution to the dialogue method, the Ombudsman discusses all "for" and "against" arguments in the reasoned decision. This is done both in terms of the factual aspect and the applicable legal norms, legal principles and other sources of law. A conclusion must be made and indicate why it gives priority to one or the other arguments.

Contradictions of legal norms: For the the solving of the contradictions between legal norms must be applied: hierarchy rule; chronological rule; special rule of priority rule; priority rule for the latest precedent; priority rule for the higher precedent.

Legislative omissions: It is recommendet to solve the legal gaps with the help of the general principles of law and apply them for effective protection of human right by Ombudsperson.

Questions? Jurgita Paužaitė-Kulvinskienė 07.04.2019