1. ПОСИЛЕННЯ ПОТЕНЦІАЛУ ІНСТИТУЦІЇ УКРАЇНСЬКОГО ОМБУДСМЕНА:
СЕМІНАР
ПОСИЛЕННЯ ПОТЕНЦІАЛУ ІНСТИТУЦІЇ УКРАЇНСЬКОГО ОМБУДСМЕНА:
НОВІ МЕТОДОЛОГІЇ ТА ПРАКТИКИ ПРОВЕДЕННЯ МОНІТОРИНГУ ДОТРИМАННЯ ПРАВ ЛЮДИНИ
STRENGTHENING THE UKRAINIAN OMBUDSPERSON INSTITUTION: RECOMMENDATIONS REGARDING METHODOLOGIES AND PROCEDURES TO CARRY OUT A MONITORING OF THE OBSERVANCE OF HUMAN RIGHTS
EU Twinning Ombudsman

2. Recommendations on Special Reports and Participation in
Law Making Procedure UA
Elena Masnevaitė
Kyiv, April 18th 2018
This project is funded by the European Union

3. Contents
Current legal basis for adoption of systemic recommendations and participation in law making procedure
Status quo – shortcomings of current practice
Criterions for adoption of systemic recommendations
Monitoring of cases for efficient adoption of systemic recommendations
Assessment of selected cases for efficient adoption of systemic recommendations
Procedure for adoption of special reports
Additional requirements when adopting a special report in the framework of National Preventive Mechanism
Structure of special reports
Appropriate participation in law making procedure
This project is funded by the European Union

4. Framework
According to the 1974 definition by the International Bar Association, there are three characteristic types of empowerment for the Ombudsperson: investigation, recommendation, and reporting. In case of the Commissioner all these classical instruments are in place, available and used appropriately
The Ukrainian legislator gives tools to the Commissioner not only to report on human rights violations to the Parliament of Ukraine but also to provide recommendations and proposals for elimination of human rights and freedoms abuses, so the Parliament has in-depth information on the situation in this field to exercise the changes observing of the rule of law in the country
This project is funded by the European Union

5. Current legal basis for adoption of systemic recommendations and participation in law making procedure
The Constitution of Ukraine and the Law on the Commissioner – rights and duties of the Commissioner in the field of adoption of special and annual reports and the right of legislative initiative
Annual reports (Article 18 paras one and two of the Law):
the Law stipulates that during the first quarter of every year, the Commissioner shall present to the Verkhovna Rada of Ukraine an annual report on the situation with the observance and protection of human and citizens’ rights and freedoms in Ukraine by bodies of state power, bodies of local self- government, associations of citizens, enterprises, institutions, organizations, irrespective of their forms of ownership, their officials and officers, whose acts (acts of inaction) resulted in a violation of human and citizens’ rights and freedoms, and on the shortcomings discovered in legislation on human and citizens’ rights and freedoms
This project is funded by the European Union

6. Current legal basis for adoption of systemic recommendations and participation in law making procedure
according to the Law, an annual report should refer to cases of violation of human and citizens' rights and freedoms, in relation to which the Commissioner has undertaken necessary measures, results of the inspections conducted within the period of one year, conclusions and recommendations aimed at improving the situation with regard to securing human and citizens' rights and freedoms
This project is funded by the European Union

7. Current legal basis for adoption of systemic recommendations and participation in law making procedure
Special reports (Article 18 para three and Article 19-1 para eight of the Law):
special reports are presented by the Commissioner to the Verkhovna Rada of Ukraine, if necessary, on separate issues regarding the observance of human and citizens’ rights and freedoms in Ukraine
special reports as well are presented on the state of affairs in relation to prevention of torture and other cruel, inhuman or degrading treatment or punishment, i. e. within the framework of the National Preventive Mechanism, which is created under the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
the latter should be published in the media and sent to the President of Ukraine, the Verkhovna Rada of Ukraine and the Cabinet of Ministers of Ukraine
This project is funded by the European Union

8. Current legal basis for adoption of systemic recommendations and participation in law making procedure
Law making procedure (Article 93 para one of the Constitution and Article 13 subpara 3-1 of the Law):
the Law grants the right for the Commissioner to make in due course proposals for improvement of legislation of Ukraine in the sphere of protection of human and citizens’ rights and freedoms
the Commissioner is not granted the right of direct legislative initiative
the Commissioner may approach the relevant agencies with proposals for legislative initiative, for amending legal provisions or for issuing other legal acts concerning human rights and freedoms contained in annual and special reports, acts of submission, and other documents
This project is funded by the European Union

9. Status quo – shortcomings of current practice
There is an internally accepted tradition of the Commissioner institution to adopt respective systemic recommendations not exclusively in annual and special reports, but in acts of submission and other documents (e. g., “припис”, “письмо”) as well
Recommendation 1: Such practice should be reconsidered for the following reasons:
annual and special reports are documents of a distinct nature, purpose and importance
the Law on the Commissioner sets out the special procedure of presenting and approving the annual and special reports
annual and special reports are the main form of interaction between the Commissioner and the Verkhovna Rada of Ukraine
This project is funded by the European Union

10. Status quo – shortcomings of current practice
systemic recommendations adopted by the Commissioner and presented in annual and special reports are of general nature, relevant to all citizens and authorized residents of Ukraine or at least to a large group of them
some documents (e. g., “припис”, “письмо”) containing systemic recommendations are prepared and signed by the Representatives of the Commissioner or other officials
lack of uniform requirements in terms of execution of documents containing systemic recommendations
lack of uniform conditions in terms of liability applied when addressees of systemic fail to implement them
This project is funded by the European Union

11. Status quo – shortcomings of current practice
The Commissioner participates in the lawmaking procedure ambiguously, i. e. the Apparatus of the Commissioner prepares draft laws (sometimes together with representatives of NGOs) and afterwards the Commissioner seeks political support through deputies of the Verkhovna Rada of Ukraine in order to launch a legislative initiative in the Verkhovna Rada
The current practice in Ukraine is not completely in line with the international standards set for ombudspersons in respect of its independence from political influence as the principle of openness and transparency in law making processes requires that the entities that have drafted the legal acts must be known
This project is funded by the European Union

12. Criterions for adoption of systemic recommendations
The Law provides such compulsory citerions:
adoption of annual reports, which usually contain systemic recommendations and suggestions for legislative reform
annual adoption of special reports in the framework of National Preventive Mechanism
Currently no other criteria are formally established to determine when special reports and systemic recommendations respectively should be adopted
Recommendation 2: Establish clear and permanent additional criterions for adoption of special reports and systemic recommendations repectively. This could be the cases of (if unsuitable practice affects a group of people):
inappropriate secondary regulations
legal gaps
inadequate application of legal regulation
This project is funded by the European Union

13. Monitoring of cases for efficient adoption of systemic recommendations
The decision on adopting of systemic recommendations in an annual or special report is currently not the result of special monitoring, but rather an individual decision of a specialist of the Apparatus of the Commissioner based on everyday work experience
Recommendation 3: In every respective department of the Apparatus of the Commissioner to carry out monitoring of individual cases on a permanent basis in order to single out cases which require issuing systemic recommendations
Recommendation 4: In every respective department of the Apparatus of the Commissioner to appoint a person in charge for this particular function to exercise
This project is funded by the European Union

14. Assessment of selected cases for efficient adoption of systemic recommendations
There are no concrete parameters defined and time-frame set for the assessment of the relevant on this subject material which is collected at the Secretariat of the Commissioner
Recommendation 5: In order to ensure prompt and relevant reaction to systemic violations of human rights and freedoms and achieve timely and efficient elimination of these violations it is recommended to carry out the assessment of the selected material on a quarterly basis
This project is funded by the European Union

15. Assessment of selected cases for efficient adoption of systemic recommendations
Recommendation 6: It is suggested to apply the following parameters when deciding on whether there is a necessity to initiate the adoption of systemic recommendations:
expediency
proportionality
effectiveness
clarity
systematicity
This project is funded by the European Union

16. Procedure for adoption of special reports
Adoption of a special report should go through some phases as preparation of each document has several stages, which include initiative, approval or dismissal of the initiative, planning, setting the deadline, doing the work and completion.
Recommendation 7: In order to ensure qualified process it is recommended to take the following steps when preparing a special report:
notification of necessity to adopt a special report (the Apparatus)
validation of the initiative (the Commissioner)
setting a deadline for preparation of a draft special report (the Commissioner)
distribution of tasks (the Apparatus)
This project is funded by the European Union

17. Procedure for adoption of special reports
setting a deadline for preparation of a preliminary draft special report (the Apparatus)
discussion of the preliminary draft special report, including final phrasing of systemic recommendations (the Apparatus)
refinement of the preliminary draft special report, if needed, and presentation of a final draft special report (the Apparatus)
familiarisation with the final draft report (the Commissioner)
in-depth discussion of the final draft special report in general meeting, including separate discussion of each systemic recommendation (the Commissioner)
refinement of the final draft special report, if needed, and adoption of a special report (the Apparatus and the Commissioner respectively)
This project is funded by the European Union

18. Additional requirements when adopting a special report in the framework of National Preventive Mechanism
The Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not set out any special requirements for reporting on the situation monitored in the defined field
Recommendation 8: It is recommended to adopt special reports in the framework of National Preventive Mechanism after the fulfillment of additional requirements, i. e. the assessment of the actual situation carried out after:
a thorough on-site examination of the situation of human rights and freedoms, analyzing risk factors, identifying problems and good practices, if needed
thematic inspections which shall be usually carried out upon receipt of a notice of possible violations
questionnaire checks which might be made in advance unannounced
This project is funded by the European Union

19. Structure of special reports
Such a document as a special report should be clear, concise enough, well structured and user friendly, its targets groups must be kept in mind as well
Recommendation 9: Uniform structure when adopting special reports is suggested to be as follows:
introduction
legal part
descriptive part
analytical part
conclusions
recommendations
This project is funded by the European Union

20. Structure of special reports
Recommendation 10: In case of adoption of a special report in the framework of the National Preventive Mechanism it is recommended to insert following additional sections:
explaining section clarifying the implementation of this Mechanism in Ukraine
monitoring section revealing which of the systemic recommendations from the previous special report were implemented and when
Recommendation 11: When adoping a special report because of inappropriate legal regulation or legal gaps it is suggested to annex the prepared draft law or sub-statutory law to it with the suggested legal reform
This project is funded by the European Union

21. Appropriate participation in law making procedure
The mandatory principles of an ombudsperson’s independence and neutrality presuppose the discussion of the Commissioner‘s right to legislative initiative basically in the light of adopting systemic recommendations on legislative shortcomings
Recommendation 12: The factor that the Commissioner is the original sponsor of a draft law should be disclosed to society (this could be done by annexing the prepared draft law to an annual or special report containing systemic recommendations corresponding with the suggested legal reform)
Recommendation 13: For visibility, openness and transparency reasons it is also suggested to publish the draft laws drawn up by the Commissioner on the official website of the institution
This project is funded by the European Union

22. Thank you for your attention!
EU Twinning Ombudsman