MISSION REPORT 1.4 TERMS OF REFERENCE FOR … project is funded by the European Union MISSION REPORT 1.4 ... European Neighbourhood Instrument Twinning project No. EuropeAid/137673/DD/ACT/UA

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This project is funded by the European Union

MISSION REPORT 1.4

TERMS OF REFERENCE FOR THE ACTIVITY:

1.4. P CARRYING OUT A ROUND TABLE TO DISCUSS RECOMMENDATIONS

REGARDING CHANGES TO THE LEGAL FRAMEWORK GOVERNING THE

ACTIVITIES OF THE OMBUDSPERSON ROJECT INFORMATION 1.1.Twinning Number: UA/47b

1.2.Title: Implementation of the best European practices with the aim of strengthening the

institutional capacity of the Apparatus of the Ukrainian Parliament Commissioner for

Human Rights to protect human rights and freedoms (Apparatus)

1.3.Beneficiary Country: Ukraine

1.4.Member States: Lithuania/Austria

1 ACTIVITY INFORMATION.

2.1. Activity No and Title: 1.4. Carrying out a round table to discuss recommendations

regarding changes to the legal framework governing the activities of the Ombudsperson

2.2. Start date: 2017-08-01 and end date of the Activity: 2017-09-30 2.3. Experts of the Activity:

Experts:

1. Ms. Jurgita Paužaitė-Kulvinskienė (key expert); Law Institute of Lithuania; 2017.09.25-29.

2. Ms. Salvija Kavalne, Law Institute of Lithuania; 2017.09.25-29.

3. Ms. Audronė Gedmintaitė; Supreme Administrative Court of Lithuania (via Law Institute

of Lithuania) – 2017.09.25-29.

4. Mr. Gintaras Kryževičius; Supreme Administrative Court of Lithuania (via Law Institute

of Lithuania); 2017.09.25-29.

5. Mr. Tomas Davulis; Vilnius University; 2017.09.25-29.

6. Mr. Hannes Tretter; Ludwig Boltzmann Institute of Human Rights; 2017.09.25-29.

2.4. Tasks and description of the Activity:

I. Carrying out a round table to discuss recommendations regarding changes to the

legal framework governing the activities of the Ombudsperson

The RTA in close cooperation with the key expert and designated members of the Ukrainian

Ombudsperson office will organize a round table to discuss the existing regulatory and legal

framework governing the activities of the Ombudsperson, experts' findings, best European

and international experience and expert recommendations in that field and the need for

possible changes.

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Planned duration of the round table: 2 day event. On the first day of the round table experts

will present their findings and recommendations for the representatives of the Ukrainian

Ombudsperson office, members of the Advisory Council under the Commissioner for Human

Rights and members of the Expert Groups established by the Advisory Council. On the

second day of the round table experts will discuss their findings and recommendations with

representatives of the relevant Parliamentary Committees responsible for human rights,

representatives from various governmental institutions like the Ministry of Justice,

representatives of civil society and media, representatives of other European and international

projects carrying out various activities in the human rights and justice area such as the EU

Project “Support to Justice Sector Reforms in Ukraine”, international donor agencies active

in the Ukraine, etc. Participants at the round table event will include the RTA, the Key expert

and other STEs. A detailed list of invitees’ fort both days will be prepared in cooperation

with the Ombudsperson’s office. During the discussion, the minutes will be kept and

delivered to the pool of experts for the final drafting of amendments to organisational legal

acts regulating activities of the Apparatus.

3. ACTIVITY RESULTS

3.1. Results achieved: Round table discussions regarding the recommendations on proposed

changes to the legal framework governing the activities of the Ombudsperson were

organised.

3.2. Documents delivered: Agendas of the round table; list of participants; minutes (till

October 10, 2017).

Annex 1:

Agenda of Discussion of 27 September 2017. Presentation of the Recommendations

regarding Changes to the Legal Framework governing the Activities of the Ombudsperson.

Agenda of Round table of 28 September 2017. Strengthening the Ukrainian Ombudsperson

Institution: Recommendations regarding Changes to the Legal Framework Governing the

Activities of the Ombudsperson.

Annex 2: Speeches regarding the Recommendations on Proposed Changes to the Legal

Framework governing the Activities of the Ombudsperson

Annex 3: Presentation slides.

Annex 4:

Minutes of 27 September 2017. Discussion. Presentation of the Recommendations

regarding Changes to the Legal Framework governing the Activities of the

Ombudsperson.

Minutes of 28 September 2017. Round table. Strengthening the Ukrainian

Ombudsperson Institution: Recommendations regarding Changes to the Legal

Framework Governing the Activities of the Ombudsperson.

Annex 5: Summarized Contributions and Feedback received regarding the

Recommendations aimed at Bringing the National Regulatory and Legal Framework in

accordance with the Best EU Practices in the Human Rights Area.

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Annex 6: Revised version of Recommendations aimed at Bringing the National

Regulatory and Legal Framework in accordance with the Best EU Practices in the

Human Rights Area, as presented in Activity 1.3.

Date: 3.11.2017

Expert: Jurgita Paužaitė-Kulvinskienė

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ANNEX 1 Agendas

(1) Agenda of the Discussion, 27 September 2017.

Presentation of the Recommendations regarding Changes to the Legal Framework

governing the Activities of the Ombudsperson.

European Neighbourhood Instrument

Twinning project No. EuropeAid/137673/DD/ACT/UA

Implementation of the best European practices with the aim of strengthening the institutional capacity

of the Apparatus of the Ukrainian Parliament Commissioner for Human Rights to protect human

rights and freedoms (Apparatus)

PRESENTATION OF THE RECOMMENDATIONS REGARDING CHANGES TO THE

LEGAL FRAMEWORK GOVERNING THE ACTIVITIES OF THE OMBUDSPERSON

Discussion

27 September 2017

Secretariat of the Ukrainian Parliament Commissioner for Human Rights, 4th floor

21/8 Instytutska Street, Kyiv, Ukraine

Agenda

Hour Topics, speakers

10.00 – 10.15 Welcome address

Ms. Olena Smirnova - BC Project Leader, Deputy Head of Apparatus of the

Commissioner for Human Rights

Ms. Aušra Rauličkytė - Resident Twinning Adviser

10.15 -11.30 Presentation of recommendations aimed at bringing national regulatory and legal

framework in accordance with best EU practices in the human rights area

Recommendations on the role of the Ombudsperson as a promoter of good

administration

Ms. Jurgita Paužaitė-Kulvinskienė, Director of the Law Institute of Lithuania

Recommendations on legal status of the Ombudsperson (appointment, immunity,

social guarantees, dismissal)

Ms. Audronė Gedmintaitė, Director of the Court Practice Department of the Supreme

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Administrative Court of Lithuania

Recommendations on effective implementation of the mandate: strengthening

administrative procedure and participation in legislative process

Ms. Salvija Kavalnė, Senior Specialist of the Law Institute of Lithuania

Recommendations on mandate of the Ombudsperson vis-à-vis Judiciary

Mr. Gintaras Kryževičius, President of the Supreme Administrative Court of Lithuania

Recommendations on mandate of the Ombudsperson in the sphere of

antidiscrimination

Mr. Tomas Davulis, Professor, Dean of the Faculty of Law of the Vilnius University

Recommendations on special mandate of Ombudsperson regarding freedom of

information and right to data protection

Mr. Hannes Tretter, Director of the Ludwig Boltzmann Institute of Human Rights

11.30 – 12.30

Discussion

12.30 – 13.00 Closing remarks

Ms. Olena Smirnova, BC Project Leader, Deputy Head of Apparatus of the


Ms. Jurgita Paužaitė-Kulvinskienė , Director of the Law Institute of Lithuania

Ms. Aušra Rauličkytė, Resident Twinning Adviser

13.00– 13.30

Buffet

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(2) Agenda of the Round table, 28 September 2017.

Strengthening the Ukrainian Ombudsperson Institution: Recommendations regarding

Changes to the Legal Framework Governing the Activities of the Ombudsperson.

European Neighbourhood Instrument


Implementation of the best European practices with the aim of strengthening the institutional capacity

of the Apparatus of the Ukrainian Parliament Commissioner for Human Rights to protect human

rights and freedoms (Apparatus)

STRENGTHENING THE UKRAINIAN OMBUDSPERSON INSTITUTION:

RECOMMENDATIONS REGARDING CHANGES TO THE LEGAL FRAMEWORK

GOVERNING THE ACTIVITIES OF THE OMBUDSPERSON

Round table

28 September 2017

Secretariat of the Ukrainian Parliament Commissioner for Human Rights, 4th floor

21/8 Instytutska Street, Kyiv, Ukraine

Agenda



Ms. Valeriya Lutkovska, Ukrainian Parliament Commissioner for Human Rights

H.E. Hugues Mingarelli, Ambassador, Head of the Delegation of the European Union to

Ukraine

Mr. Hryhoriy Nemyria, Chairperson of the Committee on Human Rights, National

Minorities and International Relations of the Parliament of Ukraine (TBC)

Mr. Augustinas Normantas, Seimas Ombudsman, Head of the Seimas Ombudsmen's

Office of the Republic of Lithuania

10.30 -12.00 Presentation of recommendations aimed at bringing national regulatory and legal

framework in accordance with best EU practices in the human rights area


administration


Recommendations on legal status of the Ombudsperson (appointment, immunity,

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social guarantees, dismissal)









antidiscrimination





12.00 –12.30

Coffee break

12.30 – 13.00 Synergy of recommendations

Ms. Svitlana Kolyshko, Human Rights Team Lead, Project Coordinator, UNDP project

“Strengthening Capacities of the Office of the Ombudsperson”

Mr. Graham Sutton, Data Protection Expert of the Council of Europe, Joint Programme

between the EU and the Council of Europe “Strengthening the implementation of

European human rights standards in Ukraine”

Mr. Oleksandr Pavlichenko, Chairman of the Ukrainian Helsinki Human Rights Union

13.00 – 14.00

Discussion

14.00– 14.15 Closing remarks




14.15 – 15.00

Buffet

Simultaneous interpretation will be provided.

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ANNEX 2 Speeches


EU Twinning Project No. UA/47b

„Implementation of the best European practices with the aim of strengthening the


Human Rights to protect human rights and freedoms (Apparatus)“

SPEECHES REGARDING THE RECOMMENDATIONS ON PROPOSED

CHANGES TO THE LEGAL FRAMEWORK GOVERNING THE ACTIVITIES OF

THE OMBUDSPERSON

Experts:

1. Ms. Jurgita Paužaitė-Kulvinskienė (key expert); Law Institute of Lithuania;

2017.09.25-29.


3. Ms. Audronė Gedmintaitė; Supreme Administrative Court of Lithuania (via Law

Institute of Lithuania) – 2017.09.25-29.

4. Mr. Gintaras Kryževičius; Supreme Administrative Court of Lithuania (via Law

Institute of Lithuania); 2017.09.25-29.



Kyiv, October, 2017

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Recommendations on the Legal Status of the Commissioner

Dr. Audronė Gedmintaitė

Head of the Judicial Research Department

The Supreme Administrative Court of Lithuania (via Law Institute of Lithuania)

Dear Colleagues,

As you can see from the reports distributed today a great deal of progress has been achieved

in order for the Commissioner to perform his duties with independence, flexibility and

efficiency. Indeed, generally, the existing legal framework on the legal status of the

Commissioner is in compliance with European and international standards. The status of the

Commissioner is constitutionally defined and the legal framework offers key guarantees of

independence to the Commissioner. Having said that, more can be and needs to be done.

First of all, I shall map for you the recommendations I intend to cover. We propose that the

current legal regulation shall be further improved, particularly with regard to the more

effective appointment and dismissal procedures and stronger legal underpinning of

guarantees to the staff of the institution. I am going to explore each of these questions in turn.

My choice of this route results in essence from the established non-conformities of national

law with European standards. I shall also address the issues raised by the Office during our

meetings. We are grateful for the excellent cooperation with the staff, who were available for

discussions and from whom we learnt a great deal. To say the least – theory is, as usual, less

informative than practice.

I.

The smooth functioning of the institution requires that the Commissioner is appointed on the

grounds of merit, competence and experience in the sphere of human rights protection. The

Law of the Commissioner grants rather wide opportunities to stand as a candidate and

sufficiently clear steps of appointment procedure. Nevertheless, there are few aspects call for

the improvement.

First, the Law of the Commissioner lacks consistency in terms of what is assumed to be

candidate’s good reputation. Even though it is established that the candidate shall possess

high moral qualities, at the same time the law does not prevent a person with previous

corruption record to stand as a candidate. Choosing a candidate from among persons that

offer every requisite of independence, competence and merit shall be a decisive factor.

Therefore, it is recommended to amend Article 5 of the Law of the Commissioner and to

establish that only persons of good reputation and proof of no previous corruption may be

nominated as candidates to the post of the Commissioner.

It is also recommended to improve the current legal regulation by providing greater

transparency in the nomination process. While there is no limit as to the number of

candidates, it is not quite clear how the Chairman of Parliament or deputies reach out for the

names of the best candidates. In our opinion, the civil society could be of help here. There is

a number of ways to enhance the participation of civil society, which can be proposed having

regard to the international practice (The Chairman may publicly call for nominations and set a time-limit

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for their submission; It can be established that the representatives of the civil society should be invited to

participate in the selection procedure for the purposes of identifying persons and making recommendations;

One can discuss a step further such as to establish that at least one or two candidates shall be proposed

according to the received applications from the public call). Regardless which particular form is

chosen, the goal here is the same – to enhance the transparency at the selection procedure

inasmuch as possible.

While discussing the recommendations on the appointment procedure, very recent changes to

the laws shall not be overlooked. Currently, the Rules of Procedure of the Verkhovna Rada

set out that the appointment of the Commissioner shall be adopted by an open vote.

Nevertheless, the Law of the Commissioner has not been updated and it remains that the

decision on the appointment of the Commissioner shall be adopted by secret voting. This

manifest lack of consistency does nothing for legal certainty and brings no closer to the

appointment of the new Head of the Institution. Under these circumstances, it is, without a

doubt, recommended to amend the legal regulation in order to remove confusing provisions,

which are set out in two legal acts both in force.

In order to bring the national law closer to the international standards, legal rules regarding

the number of votes required in the Parliament for a decision on appointment to be adopted

shall be revised. The legal provisions laying down that the Commissioner is appointed by a

simple majority of votes in the Parliament are not in line with the prevailing international

standards.

II.

In discussing the legal status of the Commissioner, termination of the duties is also a key

question. The existing legal grounds for termination and dismissal of the Commissioner lack

precision. Special attention shall be given to the grounds which set out that the authority of

the Commissioner ends where verdict of guilty of a court is adopted, and that the

Commissioner is dismissed if he breaks the oath. In the context of international practice, the

wording of these grounds is too open. These phrases do not exclude minor offences and

constitute catch-all clauses. Accordingly, it is recommended to draft amendments to replace

the terms with a more qualified wording and to clarify that only serious misconduct provides

a legal basis to dismiss the Commissioner.

In order to strengthen the total independence of the Commissioner, it is also proposed making

the procedure of dismissal of the Commissioner more difficult. First, it is recommended to

establish an increased majority to dismiss the Commissioner as provided for under

international standards. Second, in order to guarantee transparency in the process of the

dismissal of the Commissioner, it is also recommended providing for procedure that involves

judiciary. Judiciary could be entitled to give an opinion on whether the Commissioner no

longer fulfils the conditions required for the performance of his duties or is guilty of serious

misconduct. Meanwhile, the final decision remains in the hands of the Parliament.

III.

The guarantees for the Commissioner do not end here and the report we are presenting today

suggests further possible amendments, in terms of immunity, social guarantees and proper

financing of the Institution. Without going into too much detail due to the limited time we

have today, there is an important point to be made. Current legislation needs amendments not

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only with regard to the guarantees of the Commissioner but also the personnel of the

Institution. Two brief aspects merit further consideration:

- It is suggested establishing in the law that the functional immunity is applied not only

to the Commissioner but also to the personnel of the Institution;

- Moreover, it is recommended to amend the wording of the existing legal regulation in

a way that empowers the personnel. In this regard, the functions of the Secretariat

shall be spelled out in a sufficiently precise manner in order to exclude the wrongful

interpretation that it is only the Commissioner in his personal capacity, who is entitled

to perform the functions of the Institution, and not the personnel.

This is my last question. As I hope my route today has shown and underlined, the

independence of the Commissioner is not a privilege but a guarantee that complaints of

maladministration made by public authorities will be investigated by an independent and

impartial institution.

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The Mandate of the Commissioner vis-à-vis Judiciary

Gintaras Kryževičius

President of the Supreme Administrative Court of Lithuania

(via Law Institute of Lithuania)

Normative Control

1. Section XII of the Constitution (“Constitutional Court”) provides for the

Commissioner a direct access to the Constitutional Court. He can apply to the

Constitutional Court not only regarding the issues of constitutionality of laws and

other legal acts. He is also entitled to request from the Constitutional Court the

official interpretation of the relevant provisions of the Constitution; this right is

particularly important to promote the progressive human rights standards – to set the

guidelines for the future legislation and to improve the existing practices by clarifying

the constitutional standards.

2. The legal regulation does not lay down any general criteria for cases when the

constitutional submission shall be made and the Commissioner in this regard enjoys a

wide margin of appreciation. There are also no legal provisions linking the legal

remedy at issue with the procedures of monitoring of human rights protection or

investigations based on individual complaints. In this regard, the following

recommendations for the improvement of the existing legislation can be made.

3. First, the limitation on the Commissioner’s right to apply to the Constitutional Court

is not explicitly provided in the text of the Constitution of Ukraine. Nevertheless, two

options shall be considered. The Constitution can be interpreted in the practice of

the Constitutional Court by restricting the power of the Commissioner to apply to the

Constitutional Court only to the issues falling within the competence of the

Commissioner. This limitation could be also set out in the Law on the

Constitutional Court of Ukraine or in the Law of the Commissioner.

4. Second, the existing legal regulation does not provide for any precise time limit for

the settlement of the constitutional justice cases by the Constitutional Court. More

precisely, there is no time limit for the announcement of final acts of the Court

(judgments and conclusions). This can create preconditions for the Court to continue

the practice of unforeseeable announcement of final acts when these acts can be

announced even a few years after the closure of the proceedings. To address this

problem it could be proposed to establish a general time limit for the

announcement of the final acts of the Constitutional Court of Ukraine in the

proceedings.

5. Third, no order of priority for hearing the cases is established in the Constitutional

Court. Article 75(3) of the new Law on the Constitutional Court of Ukraine

provides one month time limit for proceedings in certain most important cases (conclusions on constitutionality of draft amendments to the Constitution, requests of

the President regarding specific acts of the Cabinet of Ministers and the cases referred

by the Senate or Grand Chamber of the Court). It can be seen as a basis for certain

prioritisation of hearings, but it does not include the submissions of the

Commissioner or the cases involving systemic problems of human rights

protection. Thus, it may also be recommended to supplement the new Law on the

Constitutional Court (or, as an alternative, the Regulations of the Court) with special

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provisions regarding the priority of hearings and to include cases of systemic

problems of human rights protection, which are submitted by the Commissioner.

6. Normative control can be considered as a key task to the Commissioner and there is a

number of positive developments over the past years on this matter. It allows stepping

back a little from the ongoing individual complaints and thus solving legal issues in a

systematic and broader way. Under these circumstances, in setting the future

direction, it is proposed that the Commissioner should strengthen the dialogue

not only with the Constitutional Court but also with administrative courts, which

are entrusted with normative control of general legal acts.

7. Currently, the Commissioner is entitled to apply to administrative courts in order to

challenge normative (regulatory) legal acts if there is an interest of the person

concerned in bringing proceedings. This is a model of so-called concrete judicial

review of regulatory acts. However, the current legal regulation does not allow

for an abstract judicial review of regulatory acts and does not confer a right to

initiate this type of review on the Commissioner. Under these circumstances, it is

recommended to establish that the Commissioner shall have a direct right to take

action in order to challenge regulatory legal acts before administrative courts.

However, the Commissioner’s right to challenge regulatory legal acts before

administrative courts shall be limited to the issues falling directly into the competence

of the institution.

Defence of Public Interest

8. As far as main principles relating to the Commissioner’s ability to initiate proceedings

before a court are concerned, it is also proposed that the Commissioner could be

entitled to apply to courts specifically in the cases regarding the defence of public

interest. The objective of this proposal, together with a proposal regarding the review

of regulatory acts, is to establish a complete legal framework for entitling the

Commissioner to act independently, where revealed irregularities are considered to be

of a systemic character.

9. In determining the extent for the Commissioner’s right to apply to courts for

defending public interest, one should ensure that the legal remedy of this kind is not

duplicated by the duties of other state authorities. Therefore, the legal regulation

shall establish a right and not a duty of the Commissioner to apply to courts in

order to defend public interest where particular matter falls into the field of the

competence of other state authorities and they are capable to defend the public

interest efficiently on their own initiative. In no case the Commissioner shall

replace administrative authorities, on which the duty to defend public interest is

placed by law. Therefore, having established that certain legal proceedings are in

progress and there is no pressing need to intervene as a third person into litigation, the

Commissioner shall refuse to undertake remedies for the defence of public interest.

10. The other possible area of activity regarding the defence of public interest is initiation

of collective proceedings when the implementation of strategic goals regarding

human rights protection clearly requires so.

11. If the Commissioner opts to reinforce an active role in judicial matters, the possibility

to appear as amicus curiae shall be formalized in the Law. The expertise knowledge

of the Commissioner is in particularly relevant in cases regarding the defence of

public interest. The right to defend public interest, which is also conferred on the

courts, could be implemented more efficiently if the Commissioner is entitled to

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intervene into the undergoing proceedings regarding the defence of public interest and

to provide opinion regarding the matters under consideration.

Legal Representation of Vulnerable Groups before Courts

12. Currently, the Commissioner invests a lot in helping vulnerable people in order for

them to access legal and judicial remedies. Nevertheless, it is proposed to revise this

role for the following reasons. The Commissioner cannot act in isolation but it

should also not replace the prosecutors, legal representatives or providers of

state legal aid. Having regard to the fact that the state legal aid scheme is in place,

there is no rationale for the Commissioner to act as a representative of the

disadvantaged members of the society. Seeking to enhance the effectiveness of the

Institution, it is recommended to remove an overlapping between Ukrainian legal

aid system and Commissioner’s jurisdiction.

Limited Intervention into Judicial Proceedings

13. Ukraine undergoes significant judicial reform and this includes improving the

functioning of competent bodies, which are entitled to assess the actions of judges or

their inaction. Under these circumstances, it is essential that the Commissioner’s

activities must be focused on the monitoring of the judiciary and the supervisory role

shall be eventually withdrawn.

14. It is a well-established international standard in Europe that the ombudspersons are

prevented from intervening into judicial proceedings and, above all, questioning the

soundness of court decisions. In a majority of cases in Europe, the ombudspersons are

not authorized to initiate proceedings regarding the judicial role of courts. The

existing legal regulation shall be revised to prevent any possibilities for interference

into independence of judiciary. It means that the Commissioner could be given the

power to make general recommendations about the functioning of the courts (as

regards administration and management of the courts). Meanwhile, the power to

interfere into individual proceedings shall be excluded or strictly limited. To this

end, it is recommended to amend the legal provisions of the Law of the

Commissioner. In this regard, excluding the right of the Commissioner to submit

information for a disciplinary proceedings regarding the actions of judges of the

Supreme Court of Ukraine and higher specialized courts on the basis of the Law

№ 192-VIII of 12.02.20151 was a positive amendment.

15. Regarding the procedural rights conferred on the Commissioner, which permit the

Commissioner to intervene into any judicial proceedings, two approaches can be

taken to address the issue:

1. Restrictive approach concerning the supervision of judiciary shall mean a

withdrawal of legal norms, which establish essentially unlimited possibility to

intervene in any judicial proceedings.

2. A less stringent approach would be to amend the legislation accordingly to

enable the Commissioner to act within the sphere of judicial activities only in

cases that raise issues affecting human rights and freedoms from a viewpoint

of functioning of the courts or procedural law. In the latter case, it would be

appropriate to establish a legal regulation that limits the Commissioner’s

mandate to the supervision of judicial proceedings of undue delay or evident

1 У Законі України "Про Вищу раду юстиції". Online Access: http://zakon2.rada.gov.ua/laws/show/192-

19/paran470#n470.

http://zakon2.rada.gov.ua/laws/show/22/98-%D0%B2%D1%80

http://zakon2.rada.gov.ua/laws/show/192-19/paran470#n470


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abuse of authority. This option is suggested bearing in mind the peculiarities

of the initial model of the ombudsperson’s institution opted as suitable to

Ukraine and having regard to the undergoing transitional period leading to

completion of judicial reforms.

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Recommendations on the Special Mandate of the Commissioner

concerning the Right to Data Protection and Freedom of Information

Hannes Tretter

STE and Junior Project Leader

A. Looking for a proper solution – status quo or separate bodies?

1. The Ukrainian Parliament Commissioner for Human Rights has been explicitly entrusted

with the control over the observance of legislation on protection of personal data by Art

22 of the Law on Personal Data Protection. Parliamentary control over the observance of

the right to access to public information was explicitly made a competence of the

Commissioner by Art 3 of the Law on Access to Public Information.

2. The task of a data protection supervisor is not specifically focussed on the proper

functioning of public administration and the judiciary; it is meant to deal with one

specific aspect of modern life that is the automated processing of personal data wherever

it applies, be it in the public or private sector. The means and procedures for executing the

task of data protection supervision will therefore vary considerably from those used to

safeguard good governance, particularly also concerning the way how infringements are

to be prevented and/or sanctioned.

3. Hence, in Ukraine the idea has been discussed repeatedly, whether the Commissioner’s

functions targeted at promoting good administration should not be separated from the

function of supervising data processing which has the purpose of safeguarding adherence

to the right to data protection in all sectors, regardless of whether processing is taking

place in the public or in the private sector.

4. European examples show that the special tasks of a data protection supervisory authority

– sometimes combined with the function of supervising “access to public information” –

are entrusted to special institutions, which are not established as parliamentarian control

organs but independent administrative bodies. In European Union law, a precise concept

of their tasks and powers and consequently for their organisation has only recently been

developed in Chapter VI of the General Data Protection Regulation which will come into

force by May 25th

2018. These developments show that the trend goes towards

establishing specialised organs because of the complexity of the problems involved in the

protection of the individual against the dangers of electronic data processing.

5. Under these circumstances, it is recommended to extract the tasks of a data protection

supervisory authority from the present amount of tasks of the Parliamentary

Commissioner for Human Rights and to establish a new independent data protection

authority, guided by Chapter VI of the EU General Data Protection Regulation.

6. The realization of this recommendation would require the following changes in the legal

framework of Ukraine:

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a. Establishing the data protection supervisory authority as an independent authority

within the executive state power under the Ukrainian Constitution.

b. Alteration of Art 22 para 1/1 and Art 23 of the Law on Protection of Personal Data

and, consequently, of all provisions of the Law where the Commissioner is

mentioned as competent authority.

7. Should the recommendation to establish a new independent data protection authority be

taken into consideration, also the competence to supervise access to information should

be attributed in a new way. The task to take care of access to public information is

sometimes combined with the function of a data protection supervisory authority. This is

evidently a workable solution, taken on by several states in Europe and overseas.

Therefore, if a new and specialized independent institution is created for the purpose of

acting as data protection supervisory authority, it is also recommended to entrust it with

the state control over the observance of the right to access to public information.

B. What should be changed in the Ukrainian legal framework on data protection?

8. The rules of European data protection law are presently spelt out in new forms, although

upholding the well-established principles: In the EU the new General Data Protection

Regulation will come into force on May 25th

of 2018, in the Council of Europe the

modernisation of the Convention 108 has been finalised and awaits adoption. One of the

goals mentioned in the EU-Ukraine Association Agreement is to bring data protection to

adequacy level when compared to the highest European and international standards.

9. The adaptation of the EU data protection regime will make it necessary to revise the

Ukrainian legal framework. Apart from possibly establishing a new data protection

authority it will be necessary to bring the substance of data protection law in line with the

new EU data protection regime. Therefore, it is recommended to draft a new Law on the

Protection of Personal Data. This would mean, in particular, to:

a. revise definitions, e.g. the definition of “personal data”;

b. join the provisions on the “subjects of relations connected to personal data” (Art

2 and 4) with the definitions in Art 2;

c. abolish the concept of “classified information” (Art 5): under European data

protection standards all personal data are protected; they may be used only if, in a

concrete case, an overriding legal interest in their use can be proved;

d. abolish rules on a special access procedure for third parties (Art 16) – an

unimpeded and free access to personal data for authorities within their mandate

(Art 19 para 4) does also not comply with European data protection standards;

e. find a better structure for presenting the preconditions for processing in

compliance with the law;

f. bring the “rights of the data subjects” (Art 8) up to the latest standard, concerning

terminology and content (e.g. concerning the “right to information” or the “right

to object” and “the right to have data deleted”);

g. list the special obligations of controllers;

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h. the topic of certification (Art 42 and 43 GDPR) is not yet dealt with in the

Ukrainian Law;

i. the relationship between controller and processor should be regulated more

extensively – at present there is only Art 4 para 4 and 5;

j. transborder data flow: provisions are missing on how a controller of personal data

can provide “relevant guarantees of non-interference in private and family life of

the personal data subject” in case of transborder data flow – contractual clauses

and binding corporate rules should be mentioned and defined;

k. the Law on Protection of Data does not contain any provisions on what is an

infringement which triggers fines.

C. What should be changed in the Law on Access to Public Information?

10. The right of access to information and/or official documents held by public authorities is

recognised all over Europe as a self-standing right aimed at reinforcing transparency in

the conduct of public affairs (see Art 10 ECHR, Art 11 and 42 EU FRC, Art 19 ICCPR,

Regulation (EC) No. 1049/2001, CoE Convention on Access to Official Documents

2009). States recognize that genuine advocacy of improved public administration and

fight against corruption must entail transparency in the work of public authorities. The

right to seek and receive information is also seen as an essential element of the right to

freedom of expression, which encompasses the general right of the public to have access

to information of public interest, the right of individuals to seek information that may

affect their individual rights, and the right of the media to inform the public.

11. In Ukraine, the right of access to information is regulated by the Law on Access to Public

Information (in the following the “Law”). It should be updated bringing it closer to

European and international standards. Below, certain areas within the ambit of the Law

are discussed in more detail offering recommendations as to possible improvements:

Commissioner’s tasks in relation to the right to access to public documents

12. Under Art 17 para 1 of the Law, parliamentary control over the observance of human

rights to access to information is carried out by the Commissioner. Under current legal

regulation it is rather difficult to describe how the Commissioner’s powers in the field of

access to public information relate to the competence of other state institutions, moreover,

it was suggested to remove certain powers, which are now assigned to the Commissioner.

13. This, in particular, relates to the Commissioner’s right to draw up a protocol in cases of

breach of the right to access to public information. Protocols might result in

administrative sanctions according to Art 188-40 of the Code of Administrative Offenses.

This structure leads to an unusual mix of supervising and sanctioning power. Therefore,

and first, the Commissioner should have the power to issue recommendations on the

improvement of situation in the area of access to public information and, second, in case

the recommendations are not fulfilled, the Commissioner should have the power to issue

administrative sanctions. Accordingly, it is suggested that the right of the Commissioner

to issue administrative protocols is removed from the Law.

Structure of the Ukrainian Law on Access to Public Information

14. The structure of the Law could be improved. The Law starts with general provisions

(Section I), then regulates procedure of access to public information (Section II),

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while many definitions, beneficiaries and the scope of the law are contained only in

Section III. This makes it hard to use and understand the Law why it should be re-

structured.

15. It is recommended that the law starts by defining its purpose, principles, beneficiaries

and scope of its application. Then the definitions should be presented. A special

section could also be dedicated to the exceptions (when institutions may refuse access

to a document: information with restricted access, like confidential/secret information,

information on private issues which are covered by the right to privacy or data

protection, etc. Later on, the law should continue with rules on submitting and

processing applications to access to public documents and appeal procedure.

Reuse of public information

16. The Law is very brief about the reuse of public information. Possible additions as to

the legality of the reuse as well as issues on personal data protection which might

demand for amendments of the Law could take into account the European Directive

on Reuse of Public Sector Information (2013/37/EU). Necessary amendments could

be incorporated as a separate section in the Law.

Means of providing access to information

17. During the meetings, the representatives of the Commissioner mentioned that not all

state institutions and bodies, especially in regions, have their own webpages. This is

not in line with European trends, where having a webpage is often seen as a duty of

state institutions. Having constantly updated webpages enable citizens to exercise

their right to access to public information more properly and efficiently.

18. Under these circumstances, it is recommended to supplement Art 5 of the Law by

establishing a duty of state and municipal institutions and other bodies to have and

regularly update their webpages. In addition, a separate legal act or an adapted Art 15

of the Law could formulate the requirements for such webpages.

Time limit for consideration of requests for information

19. According to Art 20 of the Law, the information processor shall give a response to the

request for information no later than in the very short time of five working days from

the date of the receipt of the request, while comparable EU law allows 15 working

days, in exceptional cases twice as much. Thus, the Law should be amended in order

to establish more reasonable time limits to handle requests for information.

20. In order to reduce the number of access to information requests, a separate provision

may state that in case the requested information is published online, a simple

reference to it will be provided by the requested institution.

Costs of the provision of information

21. Art 21 of the Law states that information upon request is provided free of charge.

However, if the reply to the request for information involves making copies of

documents in volume more than 10 pages, the requester shall reimburse the actual

costs of copying and printing. It should be noted that such provision does not provide

any possibility to refuse the repeated requests from the same subject and allows to

receiving much more pages by submitting separate requests.

Limitations to access to information because of abuses of the right

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22. In order to avoiding abuses of the right by submitting repeated requests, it is

suggested to include in the Law a provision recommending to use the internet and

other electronic resources to get the relevant information if available.

23. Art 22 of the Law should be supplemented to allow authorities to decline to process

requests that are frivolous or vexatious or when it is impossible to clearly identify the

person submitting request.

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ANNEX 3 Presentation Slides

(1) Ombudsperson as a Promoter of Good Administration and Complaint Handling

Procedure. Dr. Jurgita Paužaitė-Kulvinskienė, Director of Law Institute of Lithuania

Dr. Jurgita Paužaitė-Kulvinskienė

Director of Law Institute of Lithuania

Ombudsperson as a Promoter of Good Administration and Complaint Handling Procedure

How does the movementof Ombudspersonpromote the right to the good administration?

▪ 1. International Developments

▪ 2. Practices across Europe

▪ 3. Hybridization of functions of ombudsperson.

▪ 4. Proposals

CONTENT

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International Developments

• The principle of good administration recently have been codified by Article 41 of the Charter of Fundamental Rights of the European Union and defines more detailed criteria in this context.

• In some countries this provision is either formulated positively as “good administration” (Czech Republic, Latvia, Slovenia), “fair administration” (Greece) or “sound administration” (Estonia, Ireland), or negatively as “maladministration” or “bureaucracy” (Lithuania).

• The European Ombudsman applies this provision within the scope of his area of discretion and classifies the rejected behaviour as “maladministration”.

Practices across Europe:The first ombudsperson generation

• The first ombudsperson generation is connected with legality or rule of law model.

• Ombudsperson of this generation can control and assess whether bodies within their competence exercise their functions in compliance with the law.

• This model has its root in the 19th century

• Lars Augustin Mannerheim the first Swedish justitieombudsman.

The second ombudsman generation

• It is connected with the concept of good administration and was de facto created in Denmark after the Second World War.

• The Danish Parliamentary Ombudsperson has become one of the most extensively copied ombudsperson models

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The third generation of ombudspersons

• These generation is connected with regime changes and the transition to democracy in Southern Europe, in Eastern Europe and other non-democratic regimes around the world.

• The outset of this ombudsperson generation can be placed at the end of the 1970s when ombudspersons were established in Portugal and in Spain.

• This wave continued in the 1990s after the fall of the communist regimes in Eastern Europe

“Hybridisation” of functions of ombudsperson.

•When the ombudspersons accept different functions or roles, this is often described as a hybridisation of ombudspersons.

Proposal Nr. 1

▪ Supplement the legal provisions of the Law of the Commissioner,which describe the purposes of the parliamentary controlexercised by the Commissioner, and to include the additionalpurpose in Article 3: “8) to promote and protect a person’s right togood public administration thereby contributing to securinghuman rights and freedoms and to supervise fulfilment by stateauthorities of their duty to properly serve the people”

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Proposal Nr. 2

• Incorporate the right to goodadministration into nationallegislation, stating at least aminimum standard, based ondefinition in Article 41 of theCharter of Fundamental Rightsof the European Union.

Proposal Nr. 3

•Adopt a Code of Good Administrative Behaviour, which provides guidance on practical steps towards greater effectiveness, transparency and accountability of the state authorities.

Mandate in handling individual complains

▪ The mandate of the Ombudsperson in the administrative procedure in handling individual complaints is commonly described as falling within the procedural autonomy of national state.

▪ Within the existing legal framework, in choosing the legal tools for protection of human rights the Commissioner has been given flexibility and informality.

▪ The legal framework is quite ambiguous in terms of what exactly happens after the Commissioner has decided to open the case on human rights violations and how it correlates with other powers of the Commissioner.

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Proposal for handling individual complaints Nr. 1

• To simplify and harmonise legal rules for investigation of individual complaints.

• Principal legal rules of administrative procedure shall be established in the Law of the Commissioner. Meanwhile, the rules of procedure set out in other laws shall be considered as special legislation (lex specialis) vis-à-vis the Law of the Commissioner only where particular reference is made in this Law.

• It is also recommended to exclude the Commissioner’s activities from the scope of the Code of Administrative Offences and the Law on the Citizens’ Appeals.


▪ For reasons of efficiency, it is also recommended to clarify the content and the scope of the provisions on investigation of individual complaints. Supplementing the legal regulation with the legal provisions concerning:

▪ A) the formal steps of submission of complaint and their requirements,

▪ B) extending the grounds for refusal to investigate particular complaints,

▪ C) setting out appropriate time limits to investigate complaints,

▪ D) developing good practice on the duty to state reasons are few measures, which could enhance the overall effectiveness of complaint handling.


• Types of acts adopted by the Commissioner shall be revised. • The general rule – as a final act of investigation with a non-legally binding

character. This characteristic (nature of recommendation) shall be established explicitly in the law.

• It is suggested to include in to the Law of Commissioner a special duty conferred on the public authority to inform the Commissioner about the measures taken to remedy the situation in due time.

• The special rule - regarding to the executive powers given to the Commissioner in special areas of law, it is recommended to foresee in the Law on Data Protection, the Law on Access to Public Information and the Law on Equal Opportunities the second type of final acts of the Commissioner following the investigation of individual complaints, i.e. legally binding administrative acts imposing legal

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“As we mark the 60th anniversary of the Treaties of Rome, it is time for a united Europe of 27 to shape a vision for its future” J. C. Juncker

We have an obligation to shape a vision for the harmonious mandate of Ombudsman person in Ukraine.

Team of TwinningOmbudsman in Ukraine.

Thank you for your attention.

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(2) The Recommendations on the Legal Status of the Commissioner. Dr. Audronė

Gedmintaitė, Head of the Judicial Research Department, The Supreme Administrative

Court of Lithuania

The Recommendations on theLegal Status of the Commissioner

Dr. Audronė Gedmintaitė

Head of the Judicial Research Department

The Supreme Administrative Court of Lithuania

Map of the Recommendations

I. Appointment Procedure

Nomination, Participation of Civil Society, Voting

I. Termination of the Office

Grounds for Dismissal, Voting Procedure

I. Empowering the Personnel of the Commissioner

II. Presenting Activity Statements

Appointment Procedure – Nomination

(1) It is recommended to establish thatonly persons of good reputation andproof of no previous corruption may benominated as candidates to the post ofthe Commissioner.

• As provided for under Article 5(2) of the Law, thecandidate shall possess high moral qualities.

• Article 5(5) of the Law sets out that a person, whohas been given an administrative punishment forcorruption during the last year, shall not beappointed as a Commissioner.

(2) It is recommended to enhance theparticipation of civil society innomination process.

• The Chairman may publicly call for nominationsand set a time-limit for their submission.

• It can be established that the representatives ofthe civil society should be invited to participate inthe selection procedure for the purposes ofidentifying persons and making recommendations.

• One can discuss a step further such as to establishthat at least one or two candidates shall beproposed according to the received applicationsfrom the public call.

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Appointment Procedure – Voting (1)

It is recommended to amend the legal regulation, interms of voting procedure, in order to removeconfusing and inconsistent provisions, which are setout in the Law of the Commissioner and the Rules ofProcedure of Verkhovna Rada.

Secret versus Open voting:

• Article 208(7) of the Rules of Procedure of theVerkhovna Rada of Ukraine sets out that theappointment of the Commissioner shall beadopted by the Verkhovna Rada by an open vote(Верховна Рада України; Закон від 13.07.2017 №2136-VIII).

• As provided for under Article 5(1) of the Law of theCommissioner, the decision on the appointment ofthe Commissioner shall be adopted by secretvoting.

Appointment Procedure – Voting (2)

It is recommended to revise the legal framework related to the number of votesrequired in the Parliament for a decision on appointment to be adopted.

• As noted in the PACE Recommendation 1615 (2003), for any institution of ombudsman to operateeffectively, appointment procedure should require a qualified majority of votes sufficiently largeas to imply support from parties outside government (7.3.).

• This approach is also supported by the Venice Commission. The election by the increased majorityin the parliament certainly strengthens the ombudsman’s impartiality, independence andlegitimacy. It also means that the person chosen is supported by a large part of society. In return,the appointment of the ombudsman by a simple majority of members of parliament is seen asinadequate.

Termination of the Duties (1)

It is recommended to replace the catch-all phrases with a more qualified wordingand to clarify that only serious misconduct provides a legal basis for the cessationof the duties.

• Article 9(1)(2) of the Law of the Commissioner sets out that the authority of theCommissioner ends where verdict of guilty of a court is adopted.

• Article 9(2)(1) of the Law of the Commissioner establishes that the Commissioneris dismissed if he breaks the oath.

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Termination of the Duties (2)

It is recommended to establish an increased majority to dismiss the Commissioner. The majority ofvotes required for termination should be preferably higher than the majority required forappointment. In order to guarantee transparency in the process of the dismissal of theCommissioner, a procedure for dismissal should also involve judiciary for giving an opinion onwhether the Commissioner no longer fulfils the conditions required for the performance of hisduties or is guilty of serious misconduct.

• The PACE Recommendation 1615 (2003) states that the procedures for dismissal must betransparent (as with the appointment) and carried out by a qualified majority of votes (7.3). Italso sets out that the grounds for dismissal are incapacity or serious ethical misconduct (7.5).

• Similarly, the Venice Commission states that there must be established an increased majority todismiss the ombudsman. The qualified majority required for termination should be at least equalto (and preferably higher than) the qualified majority required for election.

• In order to guarantee transparency in the process of the dismissal of the ombudsperson, it is alsorecommended by the Venice Commission to provide for a public procedure, inter alia procedurethat involves judiciary: „[t]he ombudsperson whose dismissal is envisaged, must be heard inpublic prior to the vote on the dismissal. A prior consultation of the Constitutional Court could beenvisaged“.

Immunity, Social Guarantees, Financing

“B. As regards immunity and social guarantees:

2.6. establish that after the Commissioner has ceased to hold office,he shall continue to enjoy immunity in respect of acts performed byhim in his official capacity, including words spoken or written. It isalso recommended to establish in the law that the functionalimmunity is applied not only to the Commissioner but also to thepersonnel of the Institution;2.7. establish in the Law of the Commissioner that in terms ofremuneration, allowances and pension, the Commissioner has thesame rank as a judge at the Constitutional Court or other high rankofficial of the state.

E. As regards organisational framework:

2.14. the law should explicitly stipulate, as a general principle, thatthe budgetary allocation should be adequate to the need to ensurefull, independent and effective discharge of the tasks of theInstitution. For these reasons, it is recommended that the legalprovisions of the Law of the Commissioner establish that theGovernment shall include the Commissioner’s draft proposal into thedraft budget submitted to the Parliament without any changes. TheCommissioner should also be demanding the right to be consultedwhen the final decision is made on the annual funding by thelegislator;

2.15. it might also be appropriate to consider additional safeguardssuch as the principle that the budget for the Commissioner could bereduced in relation to the previous financial year only by a percentagenot greater than the percentage the budget of the Parliament,President and Government is reduced;2.16. the budget of the Institution should include both the Stateallotments and other funding that ensure the independence of theInstitution and the proper fulfilment of its tasks. All the incomes andexpenses should correspond to the tasks and activities of theinstitution based on the legislation and should be assessed in theirstrategic and /or annual plans;2.17. it is recommended that the amendments to the Law of theCommissioner introduce legal provisions for the activities of thedeputy of the Commissioner and the right of the Commissioner toestablish the regional units. It is also recommended to amend thewording of the existing legal regulation and to spell out thefunctions of the Secretariat in a sufficiently precise manner as tofully empower it. Nevertheless, the right to define the scope andoperating principles of the regional set-up should be maintained forthe Commissioner. Such legal provisions provide a legal basis foradequate financing of the personnel and the premises in regions aswell as give clarity about the expenses for them. It is also expedientto separate the expenses for the representatives as well as for thedeputy and regional units in the budget plan of the Commissioner,which is produced for the Parliament decision. The expenses for theboard of advisers and experts service should be provided from thebudget too.”

Accountability: Presenting Activity Statements

• It is recommended to revise the current legal regulation in order to confer onthe Commissioner the right to be heard, participate in the debates before theParliament and to present its findings and recommendations. It shall beestablished that during the debate on the annual report at the session of theParliament, the Commissioner may personally present a summary of thereport and ensuing conclusions.

• It is also recommended to extend the scope of annual reports and includeinformation of a general and operational nature of the Institution itself inorder to raise the awareness of the purpose and tasks of the Commissioner,enhance the confidence in their activities and promote protection of humanrights and freedoms. Should this prove necessary, a briefer and user-friendlyversion of report shall be prepared.

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(3) Recommendations on Effective Implementation of the Mandate: Strengthening

Administrative Procedure and Participation in Legislative Process. Assoc. prof.

Dr. Salvija Kavalnė, Law Institute of Lithuania

Assoc. prof. Dr. Salvija Kavalnė

Law Institute of Lithuania

Recommendations on Effective Implementation of the Mandate: Strengthening Administrative Procedure and Participation in

Legislative Process

Key ideas

• First, the Commissionercan and SHOULD play animportant role inadvising the Parliamentwith respect to bringingnational legislation andnational practices in linewith their human rightsobligations.

• Second, the vision of theCommissioner‘s office -to provide effectivemechanisms foridentifying majorsystematic issues, inother words, to move toa more proactive focus inrelation to systemicchanges.

THE PARIS PRINCIPLES (UN General Assembly):

•Ombudsperson’s institution should have theresponsibility to:

• “submit to the government and Parliament onadvisory basis <...> through the exercise of its powersto hear a matter <...> concerning the promotion andprotection of human rights” and

• “to promote and ensure the harmonization of nationallegislation, regulations and practices with theinternational human rights instruments to which theState is a party, and their effective implementation“.

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Recommendation:

The Law of the Commissioner should be improved by establishing the Commissioner’s right to timely initiate the adoption or revision of laws, with the purpose of ensuring the human rights and freedoms.

What does it mean “timely” ?

Venice Commission (26 October 2015):• “It is positive also, in view of the specialized expertise

of the Ombudsman, that the Institution may exercise its right to legislative initiative any time “when in the course of the exercise of their jurisdiction it deems necessary”, without being under the obligation to wait for the annual report to make use of this right,as in previous drafts.

• This will undoubtedly help the Institution to more timely act to respond to new needs in society and, more generally, to more effectively fulfil its mandate.”

Participation in Legislative Process

General task:

Ombudspersons -responsible for theobservation of human rights - have the general task of advising the legislator and the government in the field of implementation of human rights.

How to achieve it?

Through the use of the rights:

• to participate in parliamentary sessions and all meetings, where matters of human rights are discussed;

• to initiate the adoption or revision of laws with the purpose of ensuring the human rights anytime when it deems necessary.

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(4) The Mandate of the Commissioner vis-à-vis Judiciary. Gintaras Kryževičius,


Gintaras Kryževičius


Section XII of the Constitution (“Constitutional Court”)

provides for the Commissioner a direct access to the

Constitutional Court.

The Commissioner can apply to the Constitutional Court

regarding the issues of constitutionality of laws and other legal

acts.

The Commissioner is also entitled to request from the

Constitutional Court the official interpretation of the relevant

provisions of the Constitution; this right is particularly

important to promote the progressive human rights standards,

i.e. to set the guidelines for the future legislation and to improve

the existing practices by clarifying the constitutional standards.

Normative Control

The legal regulation does not lay down any general criteria for

cases when the constitutional submission shall be made.

There are also no legal provisions linking the legal remedy at

issue with the procedures of monitoring of human rights

protection or investigations based on individual complaints.

In this regard, the following recommendations for the

improvement of the existing legislation can be made.

Normative Control

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First, having regard to the fact that the limitation on the

Commissioner’s right to apply to the Constitutional Court is not

explicitly provided in the text of the Constitution of Ukraine,

two options shall be considered.

The Constitution can be interpreted in the practice of the

Constitutional Court by restricting the power of the

Commissioner to apply to the Constitutional Court only to

the issues falling within the competence of the

Commissioner.

This limitation must be set out in the Law on the

Constitutional Court of Ukraine, or in the Law of the

Commissioner.

Normative Control

Second, the existing legal regulation does not provide for any

precise time limit for the announcement of final acts of the

Court (judgments and conclusions). In order to prevent

unjustifiable delay the proposal is to establish a general time

limit for the announcement of the final acts of the

Constitutional Court of Ukraine in the proceedings.

Normative Control

Third, the Law on the Constitutional Court of Ukraine provides

one month time limit for proceedings in certain most important

cases (conclusions on constitutionality of draft amendments to

the Constitution, requests of the President regarding specific

acts of the Cabinet of Ministers and the cases referred by the

Senate or Grand Chamber of the Court). It can be seen as a basis

for certain prioritization of hearings, but currently it does not

include the submissions of the Commissioner or the cases

involving systemic problems of human rights protection.

It may be recommended to supplement the Law on the

Constitutional Court (or, as an alternative, the Regulations of

the Court) with special provisions regarding the priority of

hearings and to include cases of systemic problems of

human rights protection, which are submitted by the

Commissioner.

Normative Control

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The further proposition is that the Commissioner should

strengthen the dialogue not only with the Constitutional

Court but also with administrative courts, which are

entrusted with normative control of general legal acts.

The current legal regulation does not allow for an abstract

judicial review of regulatory acts and does not confer a right to

initiate this type of review on the Commissioner. Under these

circumstances, it is recommended establishing that the

Commissioner shall have a direct right to take action in

order to challenge regulatory legal acts before

administrative courts.

Normative Control – Administrative Courts

As far as main principles relating to the Commissioner’s ability

to initiate proceedings before a court are concerned, it is also

proposed that the Commissioner could be entrusted to apply

to courts specifically in the cases regarding the defence of

public interest.


The legal regulation shall establish a right and not a duty of

the Commissioner to apply to courts in order to defend public

interest where particular matter falls into the field of the

competence of other state authorities and they are capable to

defend the public interest efficiently on their own initiative. In

no case the Commissioner shall replace administrative

authorities, on which the duty to defend public interest is placed

by law.


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The other possible area of activity regarding the defence of

public interest is initiation of collective proceedings when there

is a clear need for strategic action in the sphere of human rights

protection.


The right to defend public interest, which is also conferred on

the courts, could be implemented more efficiently if the

Commissioner is entitled to intervene into the undergoing

proceedings regarding the defence of public interest and to

provide opinion regarding the matters under consideration.


Having regard to the fact that the state legal aid scheme is in

place, there is no rationale for the Commissioner to act as a

representative of the disadvantaged members of the society.

Seeking to enhance the effectiveness of the Institution‘s

activities, it is recommended to remove an overlapping

between Ukrainian legal aid system and Commissioner’s

jurisdiction.

Legal Representation of Vulnerable Groups before Courts

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The Commissioner could be given the power to make

general recommendations about the functioning of the

courts (as regards administration and management of the

courts). Meanwhile, the power to interfere into individual

proceedings shall be excluded or strictly limited. To this end,

it is recommended to amend the legal provisions of the Law of

the Commissioner.

Limited Intervention into Judicial Proceedings

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(5) Harmonisation of Equality Laws. Tomas Davulis, Professor, Dean of the Faculty of

Law of the Vilnius University

Harmonisation of Equality Laws

Tomas Davulis

1. Double coverage of different laws on equality

• Definition of the problem – two laws (2005 Gender equality and 2013 General Non-discrimination law) with incoherent sets of competences of the Ombudsperson

• Possible solutions:• Integration of 2005 Gender equality law into 2013 General Non-

discrimination law

• To reconcile both lawd

• Pros and cons

• Proposal: one law

2. Inclusion of the equality-related mandate into the system of competences of Ombudsperson

• Definition of the problem: different laws – different competences –different procedures – different practices – different outcomes

• Types of competences (types of actions):• Tribunal type (invest cases of dicrimination etc.)

• Promotion type competences (good practices, awareness raising, development of knowledge on equality, legal advise and assitance to victims)

• Combination of both

• Common set of (overlapping) competences (accountability, reporting, assisting to the victims..) – the Law on Ombudsperson

• Set of equality (or gender) specific competences – the Equality law

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3. Problems of practical implementation

• Investigation of individual complaints• Own rules?

• Specific type of responsibility?

• Procedure to start (initiate) the complaint – the rules adopted by the Ombudsman

• The principle of discretional involvement of Ombudsperson

• Regional dimension – structure adopted by the Ombudsperson

• Administrative procedures – competences – investigations – fines – the clear relation to administrative (and criminal) law is urgently needed

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(6) Recommendations on the rights to data protection and access to information.

Prof. Hannes Tretter, Ludwig Boltzmann Institute of Human Rights (BIM),

Vienna/Austria


RECOMMENDATIONS ON THERIGHTS TO DATA PROTECTION AND ACCESS TO INFORMATION

Prof. Hannes TRETTERLudwig Boltzmann Institute of Human Rights (BIM), Vienna/Austria

Commissioner’s mandate regarding right to data protection and freedom of information (I)

• Commissioner is entrusted by Art 22 LPDP with the control over the observance of the right to the protection of personal data.

• Right to access to public information is also under Commissioner’s competence (Art 3 LAPI), in form of a mix between supervision and execution of the law including sanctioning. However, means and procedures of supervision differs from those of authorities.

• Task of a data protection supervisor is not focussed on lawful and proper functioning of public administration and judiciary, it shall deal with all threats for fundamental rights of people arising from the automated processing of their personal data in the public or private sector, what needs utmost specialisation.


Commissioner’s mandate regarding right to data protection and freedom of information (II)

• Hence, the idea has been discussed whether the Commissioner’s genuine functions shouldn’t be separated from any functions regarding data protection.

• There are many European examples where data protection supervision, often combined with supervising access to public information, are entrusted to special organs, not established as parliamentarian but independent administrative control bodies.

• A concept of tasks, powers and organisation can be found in the General Data Protection Regulation (into force May 25th 2018).

• It is recommended to establish a separate supervising institution on right to data protection and freedom of information.


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Recommendation for a new legal framework for data protection and access to information

• European data protection standards are formulated in the new EU General Data Protection Regulation and in the amended CoEConvention 108 on data protection which awaits adoption soon.

• One goal of the EU-Ukraine Association Agreement is to bring data protection to adequacy of European standards.

• Therefore, it is recommended to draft a new Law on Data Personal Protection that brings competences, substance and procedures in line with these standards.

• Additionally, it is recommended to set into force a new Law on Access to Public Information based on Chapter VI of the new EU General Data Protection Regulation.


Proposed changes in the legal frameworkof personal data protection (I)

• A new Law on Personal Data Protection shall, inter alia:

revise definitions, e.g. the term personal data, and adaptcorrespondig provisions,

abolish the concept of classified information because under European data protection standards all personal data are protected,

abolish rules on a special access procedure for third parties since an unimpeded and free access to personal data for authorities within their mandate does not comply with European data protection standards,

find a better structure for presenting the preconditions for processing in compliance with the law;


Proposed changes in the legal frameworkof personal data protection (II)

bring rights of the data subjects in line with European standards,

list the special obligations of controllers,

include the possibility for enterprises to get data protection certifications,

regulate the relationship between controller and processor more extensively,

define what is an infringement which triggers fines,

define contractual clauses and binding rules on transborder data flow, since provisions are missing on how a controller of personal data can provide “relevant guarantees of non-interference in private and family life of the personal data subject”.


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Proposed changes in the legal frameworkof freedom of information (I)

• A new Law on Access to Public Information shall, inter alia: Commissioner’s right to draw up protocols in cases of breach of

the right to access to public information might result in admini-strative sanctions what leads to an unusual mix of supervising and sanctioning power. It is suggested to remove this right from the Law.

The quite unsystematic structure of the Law should be improved by defining its purpose, principles, beneficiaries and scope of its application, followed by a special section about the exceptionswhere other interests (i.a. secret information, private issues) are overriding.

Possible additions as to the legality of reuse of personal data shall take into account the European Directive on Reuse of Public Sector Information.


Proposed changes in the legal frameworkof freedom of information (II)

Having constantly updated webpages enable citizens to exercise their right to access to public information more properly and efficiently. Having a webpage is often seen as a duty of state institutions and would correspond European trends.

The time limit for responses to requests for information should be extended significantly according to EU law. In case the requested information is published online, a simple reference to it in the response would be sufficient.

Limitations to access to information because of abuses of the right (e.g. if they are frivolous or vexatious) should be possible. In case of arbitrarily repeated requests, reference should be given to the internet if it contains relevant information.


43

ANNEX 4 Minutes


EU Twinning Project No. UA/47b „Implementation of the best European practices with

the aim of strengthening the institutional capacity of the Apparatus of the Ukrainian

Parliament Commissioner for Human Rights to protect human rights and freedoms

(Apparatus)“

MINUTES

Discussion

PRESENTATION OF THE RECOMMENDATIONS REGARDING CHANGES TO

THE LEGAL FRAMEWORK GOVERNING THE ACTIVITIES OF THE

OMBUDSPERSON

Date: 27.09.2017

SUBJECT ACTIVITY 1.4

PARTICIPANTS Ms. Jurgita Paužaitė-Kulvinskienė, Director of the Law Institute of Lithuania

Ms. Audronė Gedmintaitė, Director of the Court Practice Department of the

Supreme Administrative Court of Lithuania


Mr. Gintaras Kryževičius, President of the Supreme Administrative Court of

Lithuania

Mr. Tomas Davulis, Professor, Dean of the Faculty of Law of the Vilnius

University

Mr. Hannes Tretter, Director of the Ludwig Boltzmann Institute of Human

Rights




Representatives of the Ukrainian Ombudsperson office, members of the

Advisory Council under the Commissioner for Human Rights and members of

the Expert Groups established by the Advisory Council

APOLOGIES

DISTRIBUTION

LIST

TOPIC Discussion “PRESENTATION OF THE

RECOMMENDATIONS REGARDING CHANGES TO THE LEGAL

Responsible/date

27 Sep 2017

44

FRAMEWORK GOVERNING THE ACTIVITIES OF THE

OMBUDSPERSON”

Agenda






10.15 -11.30 Presentation of recommendations aimed at bringing national regulatory and

legal framework in accordance with best EU practices in the human rights

area


administration


Recommendations on legal status of the Ombudsperson (appointment,

immunity, social guarantees, dismissal)








Lithuania


antidiscrimination


University

Recommendations on special mandate of Ombudsperson regarding freedom

of information and right to data protection


Rights

Representatives of the Ukrainian Ombudsperson office, members of the Advisory

Council under the Commissioner for Human Rights and members of the Expert

Groups established by the Advisory Council (34 persons overall)

11.30 – 12.30

Discussion

12.30 – 13.00 Closing remarks

45





13.00– 13.30

Buffet

1. WELCOME ADDRESS

Ms. Olena Smirnova welcomed the participants of the roundtable discussion, thanked

experts for their input and developed recommendations.

Ms. Aušra Rauličkytė welcomed the participants, presented project experts, thanked experts

and Ukrainian colleagues for their contribution and briefed about the activity.

2. PRESENTATION OF RECOMMENDATIONS AIMED AT BRINGING

NATIONAL REGULATORY AND LEGAL FRAMEWORK IN

ACCORDANCE WITH BEST EU PRACTICES IN THE HUMAN RIGHTS

AREA


administration


Recommendations on legal status of the Ombudsperson (appointment, immunity, social

guarantees, dismissal)









antidiscrimination





3. DISCUSSION

46

Ms. Olena Smirnova, BC Project Leader, Deputy Head of Apparatus of the Commissioner

for Human Rights:

Developed recommendations and findings reflect existing problems in the Ombudsman’s

Office and in the society overall.

There is a clear need to strengthen the mandate of the Ombudsperson.

I personally like the idea of establishing a Code of Good Governance. These principles can

serve as a tool to point institutions at the existing problems.

The softhand approach is a challenge for Ukraine so far. We need to accustom the society to

the principles of democratic governance.

Yesterday, when commenting and presenting our remarks on the developed recommendations

we stressed on the need to adjust the Law “On Commissioner” with the Law “On State

Service”.

We really like the recommendations regarding the judicial system. Formally, we have the

right to represent interests, but in practice it takes the shape of acting as lawyers, which

presumes quitting or distracting from our primary activities and acting as lawyers. This

contradicts the constitution of Ukraine. At the same time, an interested person has the right to

apply to court and well probably that the court will decide against the Commissioner.

Ms. Olena Chorna, Head of the unit for children's rights:

Different readings of the law On equality and discrimination presuppose a collision and

further problems.

Regarding sanctions. When it comes to discrimination, it requires more time and resources to

identify whether there was discrimination, or not (if compare with other spheres, such as

access to public information or others, where it is more obvious).

We do not agree with linking of the recommendation to the draft law 35.01. OMB office will

be flooded with appeals and will not be able to cope with the flow. We agree with imposing

sanctions at some stage (it’s better to skip this role, but still can be applicable if necessary at

some point of time), but not in connection to 35.01.

Regarding provision of individual assistance to the victims of discrimination: the question

arises who will determine whether a person is a victim of discrimination or not? We cannot

simultaneously act as representatives in court and provide advisory opinions. This issue has

to be further discussed in order to find more effective solutions.

Mr. Tomas Davulis, Professor, Dean of the Faculty of Law of the Vilnius University:

Thank you for your question.

35.01: as I understood from our visits, administrative approach is required from your side; the

question is whether it should be of an administrative type. I wouldn’t like that it were in the

framework of the Code of Administrative Offences, rather there should be a system within

the general mandate of the Commissioner so that you could give a recommendation and, in

case the recommendation is not implemented, you could impose a sanction of an

administrative or financial type.

Of course, these protocols do not lead anywhere. But it would be good that your institution

has a “heavy” hand. I am against the Code of Administrative Offences; this is definitely not

47

the way you should chose to follow. If the violator doesn’t give information or doesn’t let

you into the premises, yes - in such cases the Code of Administrative Offences helps.

When you say that the Office will be overloaded with appeals and you think that the situation

will get worse after the adoption of this legislation, then, of course, we should also bear this

in mind and see if this particular method is applicable. And well may be that special norms

are to be introduced into the legislation.

The problem of individual assistance to victims of discrimination (outlined in the 1996

directive). It says about sex, race, ethnicity - stricto sensu. But usually it’s expanded to all

other signs.

The directive says: only when there is a consideration of complaint on discrimination, and

only if the victim is already in a court or in another authority. Only then you have to take the

role of adviser providing legal assistance (an advice or consultation, but not advocacy). This

means that you give advice on how to protect the rights, but don’t go into defending the

rights. It is necessary to outline these wording because the European Commission will not let

through the legislation without these words.

Amicus curiae is all right: you are asked to give your opinion, you give it. But this is a

different thing.

Mr. Gintaras Kryževičius, President of the Supreme Administrative Court of Lithuania:

Are legal entities the subject under your Code of Administrative Offenses? No. Therefore, we

were suggesting it when debating on changing the order of punishment, including as an

economic sanction. It will then give you a tool to prosecute legal entities under your law.

Because now it is the director (or relevant person) who bears the responsibility. And this

measure presupposes an exclusion from the register of legal entities. The arsenal of measures

is different.

Ms. Olena Chorna, Head of the unit for children's rights:

Actually, we do have measures to ensure liability of legal entities (both criminal and

administrative liability). This is for information violations. Other laws establish sanctions –

combating against trafficking in human beings (there is a liability of the carrier).

Regarding victims and legal aid: we do not provide legal assistance at all.

There is a system of providing primary and secondary assistance. There is a special

institution responsible for providing primary assistance. It is necessary to think about it,

maybe there is no need to assign this to the Ombudsman's office.

Meeting with Ms. Iryna Kushnir, Representative of the Commissioner for drafting of

constitutional appeals and observance of the right to access to public information:

Thank you for your work and recommendations. We will rely on your recommendations in

our further struggle to separate from the punitive function.

I have a question regarding the legislative part.

There is a problem: we can develop a draft law. But we do not know what will happen in the

voting room after the adoption of amendments on the spot. Well probably that the text will be

completely changed. We will be against it. We can defend our position in court, but there are

no deadlines.


48

If we talk about good practice, then the Constitutional Court must adhere to the practice of

the courts of the European Union. It should follow the law, but there are life cases when it is

impossible. The Constitutional Court of Lithuania stipulated 30 day to consider the case and

proclaim the decision for the courts of general jurisdiction and administrative courts. Such

order should be established that procedural term does not interfere with justice. The

Constitutional Court must adhere to reasonable terms. These are temporary problems in the

Constitutional court.


The Lithuanian constitutional court found a principle of responsible management which

could be a model. There are no such proposals that could ensure that the Parliament will pass

such a law.

But there are various precautionary measures to prevent the parliament from changing the

essence: one of them is to send the draft for examination after the second reading.

Other countries face such problems as well. The decision to send the draft for examination

before the last reading; belief that all institutions in Ukraine work based on the principle of

serving people; and engage in educational work – is all taht can be done at this point.

You also have punitive measures. If the law is adopted in the opposite sense, you have the

right to appeal.

Ms. Iryna Kushnir, Representative of the Commissioner for drafting of constitutional

appeals and observance of the right to access to public information:

I would like to outline our aspirations: to introduce into the law the abuse of the right of

access to public information.

Mr. Hannes Tretter, Director of the Ludwig Boltzmann Institute of Human Rights:

This is on the agenda of many authorities. Very often, administrative bodies receive requests

on access to public information matters that could be considered as violation of the law. They

need certain march. If someone is applying 20 times a week, the question is if it is a tactic to

irritate or it is a matter of personal interest. It’s very difficult to find proper criteria, but I

think there are some examples of criteria we can provide and of how they can be included

into Ukrainian law.

Maybe it could be considered to include also a possibility for a remedy; any protective

instrument for the Commissioner to reject applies. Maybe there should be some kind of legal

remedy for the possibility to reject applies, but at the same time we should warn against any

abuse or misuse of this instrument.

Ms. Lyubov Zhuravska, Unit for Compliance with Procedural Legislation:

Thank you for your work and recommendations. Regarding the existing in Ukraine problem

of total violation of reasonable deadlines: courts are violating the deadlines, people are

waiting for years for consideration, especially in criminal cases. We cannot stand aside. Do

you have such a deadline compliance problem? How the Ombudsman should act?


In many EU countries any intervention in the process is totally unacceptable. If the cases are

not considered in time and if it is the fault of a particular judge, internal tools of disciplinary

punishment are applied. There is a commission on ethics, a disciplinary court and self-

49

government. Regular checks take place. The Chairman has the right to initiate a disciplinary

punishment procedure.

Another way is a common system: marking cases in red. If a case is not considered for a

period of more than six months, the mechanism for finding out the reasons begins. Often

there are objective reasons. But it’s about internal control, inside the system. In Lithuania,

courts are generally not overloaded.

There is a mechanism for bringing action against the State to a court, because the judicial

system is part of the State structure. A citizen can apply to the Lithuanian system, request

compensation for damage from the State.

Such cases were after the termination of criminal cases, which were conducted for several

years. And we conferred big sums, according to the principles established by the human

rights court.

Ms Svitlana Kryvda, Department of personal data protection:

Thank you for your recommendations. I have a question regarding personal data protection.

The law On personal data protection requires changes, we do our best but, unfortunately, not

all depends on the Commissioner, especially regarding introducing changes or adopting the

law.

Regarding atypical function of control. In order to perform these control functions with

maximum efficiency, it is necessary to create an independent body that would perform the

function of protecting personal data more deeply. The same applies to your recommendation

regarding certification. Such powers should be assigned to bodies that have relevant

specialists.

If it is a separate independent body, it will be reasonable to give powers to bring to justice

without applying to the court, by imposing sanctions against the offender. It is necessary to

add a case in which the punishment for violation of personal data protection can be applied.

The new body will have an authority of applying sanctions to this body without bringing the

case to the court.

Mr. Hannes Tretter, Director of the Ludwig Boltzmann Institute of Human Rights:

Thank you. We are glad we have similar points of view. I totally agree with you that the new

separate body needs decisive power to decide important issues and have the mandate to

impose sanctions in case of violation of law.

Regarding certification of enterprises I would recommend to develop a special code of

conduct and make it public. There should be a mandate and a duty to take procedures to issue

licenses for those enterprises that fulfil the criteria. Regarding the mandate to sanction I

would like to give an example from Austrian experience: in the past we had a quite

independent data protection commission with the powers to sanction enterprises when there

was a violation of data protection law. This body had the mandate to decide if the law

violation took place. But after amendment of the Austrian constitution, this power was

excluded from data protection commission and delegated to a new separate administrative

organ.

In the very beginning many of administrative judges didn't have enough technological

knowledges of the process to decide if there was a violation or not. Situation improved after

education process for administrative judges was launched. I’m very much in favour of a

separate body in charge of access to public information and data protection and that such

body has powers to imply sanctions, but of course afterwards there should be a remedy to

independent courts.

50


for Human Rights:

I would like to thank everyone for their participation. We were able to give our comments

and ask questions and we very much welcome suggestions and new ideas. The work will go

on and we have the opportunity to make proposals. In the future, a draft law will be

developed. Let me express our gratitude to project experts. Your support is very important,

we appreciate it.


Let me thank the staff of the Ombudsman's Office and the representatives of civil society for

their support and cooperation. We have a long way to go ahead, but we already have a certain

framework and the basis. Thank you all. We are here, please get in touch, we will be grateful

for your criticism, and comments.

Ms. Aušra Rauličkytė, RTA:

Thank you dear colleagues. We look forward to continue our discussions during the second

part of the roundtable which will take place tomorrow.

51


EU Twinning Project No. UA/47b „Implementation of the best European practices with

the aim of strengthening the institutional capacity of the Apparatus of the Ukrainian

Parliament Commissioner for Human Rights to protect human rights and freedoms

(Apparatus)“

MINUTES

Round table

STRENGTHENING THE UKRAINIAN OMBUDSPERSON INSTITUTION:

RECOMMENDATIONS REGARDING CHANGES TO THE LEGAL FRAMEWORK

GOVERNING THE ACTIVITIES OF THE OMBUDSPERSON

Date: 28.09.2017

SUBJECT ACTIVITY 1.4

PARTICIPANTS Ms. Jurgita Paužaitė-Kulvinskienė, Director of the Law Institute of Lithuania





Lithuania


University


Rights




Representatives of the relevant Parliamentary Committees responsible for

human rights, government institutions, civil society and media, representatives

of other European and international projects carrying out various activities in

the human rights and justice area, international donor agencies active in

Ukraine, etc

APOLOGIES

DISTRIBUTION

LIST

TOPIC Round table “STRENGTHENING THE UKRAINIAN

OMBUDSPERSON INSTITUTION: RECOMMENDATIONS

Responsible/date

28 Sep 2017

52

REGARDING CHANGES TO THE LEGAL FRAMEWORK

GOVERNING THE ACTIVITIES OF THE OMBUDSPERSON”

Agenda



Ms. Valeriya Lutkovska, Ukrainian Parliament Commissioner for Human Rights

H.E. Hugues Mingarelli, Ambassador, Head of the Delegation of the European

Union to Ukraine

Mr. Hryhoriy Nemyria, Chairperson of the Committee on Human Rights,

National Minorities and International Relations of the Parliament of Ukraine

(TBC)

Mr. Augustinas Normantas, Seimas Ombudsman, Head of the Seimas

Ombudsmen's Office of the Republic of Lithuania

10.30 -12.00 Presentation of recommendations aimed at bringing national regulatory and

legal framework in accordance with best EU practices in the human rights

area


administration


Recommendations on legal status of the Ombudsperson (appointment,

immunity, social guarantees, dismissal)








Lithuania


antidiscrimination


University

Recommendations on special mandate of Ombudsperson regarding freedom

of information and right to data protection


Rights

12.00 –12.30

Coffee break

12.30 – 13.00 Synergy of recommendations

Ms. Svitlana Kolyshko, Human Rights Team Lead, Project Coordinator, UNDP

53

project “Strengthening Capacities of the Office of the Ombudsperson”

Mr. Graham Sutton, Data Protection Expert of the Council of Europe, Joint

Programme between the EU and the Council of Europe “Strengthening the

implementation of European human rights standards in Ukraine”

Mr. Oleksandr Pavlichenko, Chairman of the Ukrainian Helsinki Human Rights

Union

13.00 – 14.00

Discussion

14.00– 14.15 Closing remarks




14.15 – 15.00

Buffet

1. WELCOME ADDRESS

Ms. Valeriya Lutkovska, Ukrainian Parliament Commissioner for Human Rights, welcomed

the

The participants of the roundtable discussion, thanked experts for their input and developed

recommendations.

Developed recommendations are interesting. For me, this is the decisive stage of the project.

This roundtable brought together European experts, representatives of the Secretariat, civil

society and state authorities. My goal is to bring the Office as close as possible to the

European standards.

I express my gratitude to Mr. Hugues Mingarelli, for the support of the EUD and the

opportunity to implement this Twinning project. Let me thank our experts and everyone who

contributed to this work.

H.E. Hugues Mingarelli, Ambassador, Head of the Delegation of the European Union to

Ukraine

Many thanks for your contribution to the promotion of human rights, freedoms, the rule of

law and human values. It is extremely important for us to focus on promotion of human rights

and freedoms and to share with you, your successor and your team our experience in

protection of freedom and human rights. And we are very glad that you have been able to

benefit from the experience of experts of the two EU states – Lithuania and Austria. We don’t

want to teach, we don’t want to lecture, we can, thanks to our experts, share our experience

with you. The main goal of this project is to analyse the weaknesses and shortcomings of the

current legal framework and formulate recommendations.

We would like to give a specific recommendation when it comes to the role of

Ombudsperson as a promotor of good administration. It is important for us because we are

deeply involved in assisting Ukraine in this area, by providing support through multiple EU

programs and supporting reform of civil service. It is important for us to improve the work of

Ombudsperson by applying principles of good administration, and improve situation in data

protection, antidiscrimination and access to public information.

54

We hope that recommendations will be properly analysed, involving international

organisations and the civil society.

We will be following the selection process very closely. Any external pressure on the Office

of the Parliament Commissioner for Human Rights is unacceptable.

You can count on our support for the implementation of recommendations of our experts and

we hope that they are useful for the Ombudsperson and promoting human rights in Ukraine.

Thank you for taking care of the recommendation.

Mr Augustinas Normantas, MS Project Leader, Seimas Ombudsman, Head of the Seimas

Ombudsmen’s Office of the Republic of Lithuania:

I hope the roundtable will be an excellent opportunity to discuss the issues with the

representatives of parliament and government institutions. I’m looking forward to discussion

and hearing your comments and critics.

I believe this platform is perfect for establishing dialog.

2. PRESENTATION OF RECOMMENDATIONS AIMED AT BRINGING

NATIONAL REGULATORY AND LEGAL FRAMEWORK IN

ACCORDANCE WITH BEST EU PRACTICES IN THE HUMAN RIGHTS

AREA


administration


Recommendations on legal status of the Ombudsperson (appointment, immunity, social

guarantees, dismissal)









antidiscrimination





3. SYNERGY OF RECOMMENDATIONS


“Strengthening Capacities of the Office of the Ombudsperson”

55

The recommendations deeply and accurately reflect the issues we discussed during our

meetings and while communicating with project experts.

The Ombudsman Office is a very open institution; no other government institution has passed

so many assessments as this Office went through. I am confident that the recommendations

will be properly implemented.

UNDP Project has been supporting the Office for a long time. Developed recommendations

will serve us as guidelines in a certain way. You have saved us financial resources, human

resources and time. The results of the performed work are solid expert recommendations.

Information commissioner. We support the creation of an information commissioner

institution. The time has come, there is a basis for it and there is an understanding of the

problem. Everything is ready; you need to implement this recommendation.

Protocols. The function of administering protocols conflicts with the very nature of the

institution and weakens it.

Procedures. We support the recommendations regarding the procedure of the election and

dismissal of the Ombudsperson.

Regional offices. We are very glad to see the recommendation regarding the regional

presence. Expansion of the office to the regions, taking into account the scale of the country

and regional specifics, is very important. It’s impossible to decide everything from the central

level. It should be legitimized, so that the Office could appeal to the allocation of financial

support for its activities. At present, the situation is volatile and the Office depends on

allocations of state funding.

Antidiscrimination law. We support recommendations issued under anti-discriminatory

powers. The existence of two laws creates additional confusion.

Interaction. We support the recommendation on the interaction between the office and the

parliament. It is unacceptable that Ombudsman’s reports are ignored. It makes no sense then

to have a parliamentary control tool if it is not used at all.

We see many prospects for interaction with the project and the Office. The 50 pages of the

report are extremely useful for us. We see that you support us; that you listen to our opinions

and cooperated with us.


for Human Rights:

Thanks, Ms. Svitlana. We are pleased that the developed recommendations are in line with

the position of the UNDP. Let me now give the floor to Mr. Graham Sutton, a well-known

expert on personal data protection.

Mr. Graham Sutton, Data Protection Expert of the Council of Europe, Joint Programme

between the EU and the Council of Europe “Strengthening the implementation of European

human rights standards in Ukraine”

56

Thank you. I shall be very brief. I just want to outline the role of the CoE in helping develop

data protection law in Ukraine and mention what the CoE sees as the main elements in the

way forward.

To my knowledge, the CoE has been involved with data protection in Ukraine from as long

ago as 2006 when CoE experts commented on the draft for a brand new data protection law.

Subsequently, following adoption of the law in 2010, on a number of occasions, CoE experts

have offered further comments in order to help improve compliance of the law with

international DP standards, including, in particular, CoE DP instruments – that is to say,

currently the 1981 DP Convention and its Additional Protocol.

Most recently, CoE experts have been involved in assessing proposals for amending the DP

Law contained in a paper produced by the Ombudsperson’s office in 2015 called “Concept of

Improvement of Legislation on Personal Data Protection”. They have also made further,

wider-ranging proposals for amending the Law. This work has been carried out against the

background of the CoE’s proposals for modernizing its data protection instruments, which

have been developed in parallel with, and are fully in line with, the EU’s proposals for

reforming its own legislative framework on data protection –the General Data Protection

Regulation and the separate Directive on data protection in the law enforcement sector - on

which the twinning report focuses. The data protection substance of the modernised

Convention is complete, and the revised Convention is awaiting final agreement.

In its work over the years with Ukraine, the concern of the CoE has been to ensure that the

Ukrainian Data Protection Law fully meets the widely accepted international standards for

data protection. At present, there are certain shortcomings, especially having regard to the

developments that have been taking place over the last few years within both the EU and the

CoE.

The title of this part of the round table is “synergy of recommendations”. I take it that this

means that the idea is to see whether the CoE’s proposals are in accordance with those

emanating from the twinning project. Accordingly, I just want to compare the key ideas

formulated by the CoE for amending the Ukrainian Law on Protection of Personal Data

against the recommendations made in the report of the twinning project. CoE experts have

identified many points of substance, some of more significance than others, where it would

be desirable to amend the Law. Overall they tend to be more detailed than those set out in the

twinning report. However, I think it fair to say that, from the point of view of synergy, they

are broadly consistent with those raised in the report. For me, three stand out.

First, as the twinning report recommends, the CoE thinks it would be sensible for there to be

a new data protection law. Of course, this is a procedural matter rather than a point of data

protection substance, but, given the extent of the amendments that would be necessary to

bring the law fully up to date, it seems to make sense, in order to simplify the process, to start

with a clean sheet. In particular, it would provide the opportunity to revise the structure of the

Law. For example, as the CoE have suggested, by bringing forward Article 11 which deals

with general grounds for processing, and placing it in front of Article 7 which deals with the

processing of sensitive data.

Second, the CoE strongly supports the twinning report’s recommendation that a new, free-

standing body should be created and given responsibility for overseeing the data protection

law instead of the Ombudsperson. This model, with the relevant responsibility entrusted to a

free-standing body, is now well-established throughout Europe. It is difficult to think of

examples where the supervision of data protection is not entrusted to bodies whose work

focuses exclusively on data protection – albeit sometimes combined with freedom of

information.

Third, the CoE would stress, perhaps more strongly than the twinning report does, the

desirability of removing personal data from the concept of “confidential data” which is found

57

within the Ukrainian laws dealing with information. As the twinning report says, this adds

nothing to the protection which is given to personal data, and, as seen from an outside

perspective, having regard to other laws, such as the Law on Information and the Law on

Access to Public Information, it seems to complicate matters unnecessarily.

Other suggestions which the CoE experts have made include

• Clarifying certain of the definitions in Article 2 of the Law, although the

specific proposals differ from those in the twinning report.

• Including in Article 6 a statement of the data protection principles as they are

set out in the CoE data protection Convention and other European legal instruments. Europe.

• Clarifying the relationship between controllers and processors, which the

twinning report also identifies as a matter needing attention.

• Clarifying the relationship with Article 6 of the Law, which deals with general

requirements concerning processing of personal data, of certain other provisions of the Law

which deal with specific processing activities – notably Articles 10 which deals with use of

personal data, 12 which deals with collection, 13 which deals with accumulation and storage,

14 which deals with dissemination and 15 which deals with destruction. At the very least it

should be made clear that these provisions are “without prejudice to Article 6”. The twinning

report also identifies this as an issue but suggests a rather different solution, which involves

including most of these provisions in Article 2 dealing with definitions.

• Improving the provisions dealing with individuals’ rights in Article 8 which is

again a matter dealt with in the twinning report, although the specific suggestions are not

identical.

• Modifying the system regulating the arrangements for controllers to notify the

Commissioner of the processing that they do under Article 9 of the Law. The twinning report

identifies this as an issue but suggests that the time may not yet be right for dealing with it.

• Improving the arrangements for the provision of information to individuals by

controllers under Article 21 of the Law. Like the twinning report (which mistakenly refers to

Article 22(3)) the CoE believe that these provisions are disproportionately broad, and that

there is scope for at least partial amalgamation with Article 8, which deals with individuals’

rights.

• Improving the regulation of transfers of personal data to third countries which

the twinning report also mentions.

CoE experts’ comments also cover a number of other matters including

• The need to clarify the supervisory authority’s powers.

• The introduction of arrangements relating to data protection officers.

• The need to improve the derogations from certain of the Law’s provisions.

In the time available I have not been able to make a comprehensive and detailed comparison

between the recommendations in the twinning report and those made by CoE experts.

However, I hope that I have been able to show that there is a considerable amount of

consistency of thinking about what needs to be done to bring the Ukrainian data protection

law more closely into line with the European legal instruments.


for Human Rights:

Thank you, Mr. Suttonn, for your comments. We believe that thanks to joined efforts the new

law will meet the international standards.

I will now give the floor to Mr. Arkadiy Bushchenko, Executive Director of the Ukrainian

Helsinki Human Rights Union.

58

Mr. Arkadiy Bushchenko, Executive Director of the Ukrainian Helsinki Human Rights

Union:

I am grateful to the experts for a very rich in content report.

Now it is a transition period, our organization and many others are opposing politicization of

the process.

This report will be useful to candidates who will be able to read and evaluate their

capabilities.

Now I would like to share my opinion on how much your report corresponds to my view of

the Ombudsman institution.

In my opinion, the Ombudsman institution should have a greater moral and ideological power

than formal punitive and administrative powers.

Some functions are atypical for Ombudsman institution, for example, drawing up

administrative protocols. A tough model makes the office more similar to the state authority

than to a human rights defender.

I am a supporter of focusing on some kind of strategic issues, systemic problems and long-

term strategies to overcome these problems.

Massive amount of complaints distracts Ombudsman from focusing and working on systemic

issues.

There are some recommendations that direct the office to a strategic approach of solving

problems. For example, the recommendation to deprive Ombudsman of the right and duty of

representation. The office is not a law firm or a center for provision of free legal aid. This

function distracts resources, places Office in a rather inadequate position, when it takes one

side in a certain process.

The main tool of Ombudsman’s influence on litigation should be the instrument of amicus

curiae.

This can lead to a new level and bring the private unknown case to a new light and give it an

important value. Having sufficient resources, this would be a very powerful tool to give an

opportunity to influence the situation.

I have some concerns regarding recommendation related to granting the right of legislative

initiative because of possible conflict of interest. The Ombudsman must continue criticizing

the authorities, and not feel involved. This will restrict its effectiveness, possibilities and

freedom. I foresee a lot of logistical problems here. It will be necessary to increase this office

by several times, so that it could take part in all parliamentary activities. And this will turn

the Ombudsman institution into a parliamentarian.

The same precautions in relation to granting the right to actio popularis, the ability to file

lawsuits in public interest. It is possible, but it seems to me that it is necessary to think over

certain restrictions for this, because Ukraine and Lithuania can recall the situation related to

the prosecutor's office, which interfered with any administrative activity. I do not want to put

human rights into the place of abstract legality and create an instrument for general

supervision. It is necessary to think about certain restrictions on this. The instrument of

general supervision has proved its ineffectiveness in Soviet times. Changing names will not

add efficiency. I do not mind it, but there should be some limitations and justification.

It is desirable to identify specific circumstances before giving it the right of actio popularis, in

order not to give institution the functions that are not peculiar to it.

59

Thank you for the discussion and for your attention.


for Human Rights:

We see that the views of civil society organizations and international partners mainly

coincide. It is a good sign that we are heading in the right direction.

4. DISCUSSION

Mr. Yevhen Zakharov, co-chairman of the Kharkiv Human Rights Group:

Point 2.4. Could you please specify what you mean? It concerns the appointment of an

Ombudsperson and the revision of the number of votes. Does it mean to increase to two

thirds?

Ms. Aušra Rauličkytė, Resident Twinning Adviser:

For the purpose of appointment - yes. For dismissal – even more.

Mr. Tomas Davulis, Professor, Dean of the Faculty of Law of the Vilnius University:

I have a question. I tried to pay attention to individual protection of rights in my report.

Svitlana, Arkadiy, how do you see the opportunity to improve individual protection? What

are the ways to make it more effective?


Union:

I understand the cynicism of my position on the strategic role of the Ombudsman. But we live

in conditions of limited resources. It is necessary to have an explanation and some kind of

clear policy on how to choose cases (To limit the actio popularis).

I am against an uncertain position, when Ombudsman subjectively chooses the case.

Assessment of the strategic nature of the case and the need to intervene is a very delicate

issue.


This is due to the fact that we are talking about systematic violations. A separate example can

serve as an example of a strategic problem.

For example, there is a problem in Lithuania: poor maintenance of convicts. This kind of

violation of human rights is registered systematically. But the Ombudsman himself has no

other mechanism except for giving recommendations. In this case, seeing a systematic

violation, Ombudsman could intervene and express his/her position regarding this case,

pointing out on a systematic nature of the issue. In their turn the courts would listen and

adhere to the position of Ombudsman.


Union:

I supported that the Ombudsman could, as an amicus curiae, intervene in any case, helping

others (when the case is initiated by other institution, not the Ombudsman).

But actio popularis, when the Ombudsman has no one behind - it's a different story. There

must be some restrictions.

Certain categories of persons do not have the opportunity to receive assistance. Competent

amicus curiae can be more effective than the representation. In general it should be solved on

60

a systematic level by creating a system of free legal aid, but not by transferring it to the

Ombudsman. The Ombudsman should rather raise the problem that people who need such

help do not receive it.


Through this the Ombudsman sees a systemic problem, but not a concrete person.

Commissioner comes to the court with the authority to indicate the court on the existence of

the systemic problem and take action.

Mr. Augustinas Normantas, MS Project Leader, Seimas Ombudsman, Head of the Seimas


Let me describe our practice: we implement two functions – (1) consider specific complaints,

solving the problems of concrete people; (2) solve systemic problems. In fact, these issues

have to be raised and it would be good if our recommendations were heard in the courts,

since we are doing common work.


“Strengthening Capacities of the Office of the Ombudsperson”:

I would like to support Augustinas. And I also agree with Arkadiy that the interference into

the Court on a specific case is dangerous. On the other hand, it is impossible to form a

systemic problem without considering individual cases.

Mr. Augustinas Normantas, MS Project Leader, Seimas Ombudsman, Head of the Seimas


We chose the other way: the Ombudsman decides how to help a person. We notice that

human rights are violated. We ask to solve the problem and supervise the case. If the problem

is solved, we do not file a complaint. In 50% of cases problems are eliminated at this stage.


for Human Rights:

We are acting in terms of amicus curiae. We have no right to interfere in the process, we

cannot change the decision of the court, but if we are present at a session and see that the

judge has ignored the requirements, of certain articles, we have the right to apply to the

Supreme council of justice. We report the problem and suggest coming to an understanding

of the issue.

Mr. Yevhen Zakharov, co-chairman of the Kharkiv Human Rights Group:

I would like to thank experts for their work. I support the majority of recommendations.

Still, there are some doubts regarding the provisions related to protection of public interests.

There is one problem: I always assess the law by how advanced it is in comparison to

persons’ consciousness.

The law can be two steps ahead, but society is not ready for it. It will not work in our reality –

recommendations of Council of Europe.

To be more convincing it was decided to create a NPM inside the Office.

Suggestions: whether an Ombudsman can interfere with the judiciary. No. The Ombudsman

should not take any side.

61

I would leave an opportunity for the Ombudsman, when the case already passed two

instances and if he/she sees that significant violations of human rights occurred, appeal to the

cassation body, and let them to decide.

One more amendment to the law is missing: a more clear statement that the Ombudsman’s

Office is a human rights organization. I would like to see more norms and emphasis on

cooperation with human rights organizations in the law.

I support the creation of regional representatives.

I also think that responsibility of state bodies for refusing to cooperate with an authorized

person should be strengthened more. Such norm could be introduced into the law.

The powers of moral condemnation must be strengthened as well. It would be timely, taking

into account the context in Ukraine.


for Human Elena:

Yesterday we had an internal discussion and we all agreed that establishing a Code of Good

Governance is an interesting recommendation. A moral assessment of the actions could be

given based on its principles.

Mr Vytautas Valentinavičius, Communications Lead, Seimas Ombudsmen's Office of the

Republic of Lithuania:

Are there any provisions in law providing to come up with special report based on the ground

of systematic problem found in complaints?


for Human Rights:

Our law provides that the Commissioner prepares not only the annual report, but also special

reports, for example on NMP report. But we have one problem: the Parliament ignores it. The

only parliamentarian who reads our reports is the Parliamentary Committee for Human

Rights.

Ms. Jurgita Paužaitė-Kulvinskienė, Director of the Law Institute of Lithuania:

The moral function - the principles of good administration. This is a document based on a

case law, with clear principles the state institutions should follow. With time such Code could

evolve into a new law under administrative law or public administration. It would be a soft

law Code to rely upon once you receive a complaint.

It has already been stated that many of the recommendations of the Ombudsman are not

implemented. There is an article saying that there is a responsibility for non-fulfilment. But it

does not work. Our proposal is to introduce an executive act. Sanctions do not always have to

be financial.

Taking the second step is only admissible in critical situations. In our understanding,

Ombudsman should be a classic organ, but perhaps in your situation it needs to be given a

hybrid function.

62

Ms. Larisa Nadtochiy, chief consultant, Secretariat of the Committee on Human Rights,

National Minorities and Interethnic Relations:

Civil society greatly influences the decision-making process in Ukraine. But, unfortunately,

the law does not reflect the role of public organizations in taking part in the election of the

Commissioner. Our Committee receives numerous complaints, but we have no influence on

the decision-making process.

Could you please give examples of positive European practices, which can help us in the

election of the Commissioner.

Ms. Jurgita Paužaitė-Kulvinskienė, Director of the Law Institute of Lithuania:

This is an important, but political issue. We looked at it as experts basing on the simple logic

of law. There are different options for solving this issue. Ms. Audronė Gedmintaitė, Director

of the Court Practice Department of the Supreme Administrative Court of Lithuania, will give

you the details.


Administrative Court of Lithuania:

There is a number of ways to enhance the participation of civil society. It is recommended

considering the following options. There are 3 examples in the international practice:

- The Chairman may publicly call for nominations and set a time-limit for their

submission.

- It can be established that the representatives of the civil society should be

invited to participate in the selection procedure for the purposes of identifying persons and

making recommendations.

- One can discuss a step further such as to establish that at least one or two

candidates shall be proposed according to the received applications from the public call.

63

ANNEX 5 Summarized Contributions and Feedback






SUMMARIZED CONTRIBUTIONS AND FEEDBACK

RECEIVED REGARDING THE RECOMMENDATIONS AIMED AT BRINGING

THE NATIONAL REGULATORY AND LEGAL FRAMEWORK IN ACCORDANCE

WITH THE BEST EU PRACTICES IN THE HUMAN RIGHTS AREA

Experts:


2017.09.25-29.








Kyiv, October, 2017

64

General remarks

1. The great majority of the proposals and recommendations were very welcomed by the

stakeholders and acknowledged as being capable to strengthen the legal status of the

Commissioner’s Office or make their activities more efficient. The most appreciated

recommendations, as the representatives of the Commissioner have noted, are the

ones, which, in general, correspond to and reflect on the practical concerns that were

voiced during the regular meetings with the Office. Indeed, the agreement on the

recommendations is a result of close cooperation with the representatives of the

Commissioner who were available for discussions and exchanges of information and

experiences at all times. In addition, a revised version of recommendations is adopted

taking account of the comments expressed by the stakeholders with a view to finding

the most appropriate way to reconcile the application of national law and its legal

peculiarities with the standards of European legal order.

1. The Role of the Commissioner in Promoting Good Administration

2. During the presentation of the recommendations, it was emphasized that all proposals

prepared by the experts are reflecting on the legal framework concerning the

administrative procedural law in Ukraine and addressing the existing problems at the

Commissioner’s Office in implementing the mandate. A specific recommendation on

the role of the Ombudsperson as a promotor of good administration was noted. The

role of the Commissioner as a promoter of good administration has a direct link with

the development of legal norms of administrative procedure. The procedural rights

and rules of the investigation of individual complaints are a precondition for a clear

need to strengthen the mandate of the Commissioner. Having regard to different laws,

in particular the Code of Administrative Offences, the Law on the Citizens’ Appeals,

the Code of Administrative Judicial Procedure of Ukraine and other, the macro

changes on administrative procedure could be a fundamental challenge for the

improvement and reformation of the public sector in Ukraine. One of the micro

changes, which could be achieved in the middle-term and which is related only with

the activities and mandate of the Commissioner, is the adoption of internal regulation

“soft law” concerning the Code of Good Governance (Good Administrative

Behaviour). The preparation of the Code of Good Governance could cover the

principles that serve as tools to direct the public authorities to the existing problems.

In implementing the Code of Good Governance, the Commissioner could achieve

better public awareness of the principles of democratic governance and in turn better

protection of human rights in Ukraine.

2. The Legal Status of the Commissioner

3. As a general matter, all the stakeholders were fully supportive on the proposed

expansion of guarantees regarding the appointment and dismissal procedure, as well

as empowering the personnel of the Institution. At the outset, it was confirmed that

the proposals, if they were implemented, do contribute to strengthening the legal

status of the Commissioner and the Apparatus. Nevertheless, further clarification of

certain aspects was requested.

4. First and foremost, it was noted that the relation between the Law of the

Commissioner and the Law on Civil Service regarding the status of the Secretariat’s

personnel shall not be overlooked. It was pointed out that the Law on Civil Service

does not provide for any exceptions in terms of its application scope and as a rule this

law is applied to all members of the Secretariat of the Commissioner. The legal norms

65

of the Law on Civil Service imply that the Head of the Secretariat of the

Commissioner shall be a civil servant. Moreover, it is for the Head of the Secretariat

to hire all members of the personnel. Under these circumstances, concerns were raised

as to the independence of the Institution since the staffing policy in fact becomes a

matter of the executive power. It was also noted that currently, the matters related to

the personnel remain in the hands of the Commissioner since the Office benefits from

the transitional provisions of the Law on Civil Service.

5. Second, clarifications were asked with regard to the proposals on the appointment

procedure, as to what majority is required to adopt a decision at the Parliament. In this

regard, it was also noted that the proposals on the voting procedure could be more

specific, i.e. few suggestions on the proportion expressing the majority of votes shall

be presented.

The recommendations propose to revise the existing legal regulation, which sets out

that the Commissioner is appointed by simple majority of voices in the Parliament

and bring it closer to the international recommendations, which, in turn, set out that a

decision on the appointment shall be adopted by a qualified majority. Nevertheless,

this proposal was considered by the stakeholders as unlikely to be realistic due to the

peculiarities of political environment in Ukraine.

In response to the raised doubts, the experts noted that the qualified majority of votes

is required by the prevailing international guidelines. As noted in the PACE

Recommendation 1615 (2003), for any institution of ombudsman to operate

effectively, appointment procedure should require a qualified majority of votes

sufficiently large as to imply support from parties outside government (7.3.). This

approach is also supported by the Venice Commission. The election by the increased

majority in the parliament certainly strengthens the ombudsman’s impartiality,

independence and legitimacy. It also means that the person chosen is supported by a

large part of society. In return, the appointment of the ombudsman by a simple

majority of members of parliament is seen as inadequate.

In addition to this, other findings and recommendations of international organisations

on the same matter shall be born in mind. In this regard, the NISA2 report of 2015

(p. 114) sets out that ‘the procedure for the Ombudsman’s appointment could be

reviewed to make sure that it is supported by both the coalition and opposition in the

legislature’. Similarly, the NISA report of 2011 (p. 118) notes that having regard to

the fact that the Ombudsman is elected by the absolute, not qualified majority of votes

of the MPs, such a procedure for appointment strengthens the risk of appointing to the

Ombudsman’s post the person loyal to the ruling coalition in the Parliament.

6. Third, as regards the organisational aspects of the Institution, the experts were asked

to clarify whether the suggestion to introduce the position of the deputy of the

Commissioner is in line with the current organisational structure, which consists of

representatives to the Commissioner and Secretariat. The experts were asked to

explain the role of the deputy within the current organisational framework. It was also

pointed out that the existing system consisting of representatives poses no major

organisational difficulties. Meanwhile, in the cases where the Commissioner is not

present the authorisation to perform the functions of the Commissioner is delegated to

other members of the Office. After brief but fruitful discussion, it was agreed to

2 Transparency International Report on National Integrity System Assessment Ukraine.

66

amend the text of the recommendations and abandon the idea regarding the deputy

position.

7. Fourth point raised during the discussions concerned the proposals on how to make

the appointment procedure more efficient. This was pointed out to be of particular

importance having regard to the fact that the new Head of the Office has not been

appointed yet. The experts noted that there are no universal measures to speed up the

appointment procedure. Nevertheless, it was again pointed out that enhancing the

participation of the civil society in the nomination process may be of help here. As

provided for under Report 1.3., the following options may be considered: the

Chairman may publicly call for nominations and set a time-limit for their submission;

it can be established that the representatives of the civil society should be invited to

participate in the selection procedure for the purposes of identifying persons and

making recommendations. One can discuss a step further such as to establish that at

least one or two candidates shall be proposed according to the received applications

from the public call. Regardless which particular form is chosen, the goal here is the

same – to enhance the transparency at the selection procedure inasmuch as possible.

8. Finally, the proposals regarding the financing of the Institution were discussed. It was

agreed that the measures proposed by the experts aim to ensure adequate financing to

the Institution in as much as possible. Nevertheless, as accurately noted by the

representatives of the Commissioner, implementing the suggestions on the matter is

closely related to the functions delegated to the Parliament and the Executive

exclusively. Therefore, having regard to the peculiarities of legal tradition in the

country, the implementation of the suggestions may constitute a legislative burden

disproportionate to its overall impact. Therefore, the experts consequently considered

that the recommendation should be revised accordingly.

3. The Review of Administrative Actions

9. During the discussions, it was agreed that there is a need for a specific type of the

decisions of the Commissioner, i.e. administrative acts that are capable to impose

sanctions. The representatives of the Office who are responsible for the protection of

human rights in the field of equality and discrimination indicated further possible

problems in case the above-mentioned type of acts are to be adopted. For instance, the

alleged discrimination cases require more time and resources to identify whether there

was discrimination, or not (comparing them to the cases in other areas, such as the

access to public information or others, where a possible violation is more obvious). It

can happen that the Office of the Commissioner will be flooded with appeals and it

will lack resources to cope with the flow. Finally, the discussion was closed with a

proposal that the imposition of sanctions and penal functions conferred on the

Commissioner could achieve a positive impact only in exceptional cases in the

spheres of equality and anti-discrimination.

10. Indeed, the implementation of administrative acts that impose sanctions on the public

or private institutions, which have violated the rights of the individuals concerned, can

be ordered only as an ultima ratio measure. It should only be used as a last step of the

administrative procedure for investigating individual complaints. One should note that

the sanctions should be applied only within the mandate of the Commissioner

concerning the atypical control functions in the sphere of data protection, access to

public information or protection of equal rights and anti-discrimination. Nevertheless,

the basic rule and the main act for implementing the general mandate of the

Commissioner in all areas shall be a recommendation (pododnia). If the

67

recommendations are not implemented and the real restoration of the violated rights

of the individuals concerned could not be achieved by recommendations, the

Commissioner shall have a competence to impose a sanction of an administrative or

financial type, which is based on the administrative act (pripis). This second type of

the acts adopted by the Commissioner – administrative acts imposing sanctions – shall

be regarded as a “heavy” hand of the Commissioner and confers on the Commissioner

the power to apply the liability to the responsible person directly, i.e. without applying

to the court. At the same time, the administrative acts imposing sanctions have a

compensational function where the Code of Administrative Offences is not applied

and the protocols on the administrative liability are not to be drawn. The latter

activities of the Commissioner is not in line with the nature of the Ombudsman’s

Office.

11. Another important question raised during the discussions was the coherence between

the implementation of the mandate of the Commissioner and the Code of

Administrative Offences. The participants of the discussions noted that the Code of

Administrative Offences could definitely not be used as a measure capable of

preventing violations of human rights or means of redress. From the perspective of the

legal functions, the Code of Administrative Offences has a purpose of proactive

implementation and provides an effective legal reaction, in terms of time, to the

alleged infringer, for example where the individual concerned does not provide

information/documentation or does not allow the representatives of the public

authority enter the premises. In such cases, the state authority must have simple and

effective measures. In addition to this, according to the actual text of the Code of

Administrative Offences, the public or private legal entities/enterprises are not subject

to liability under this law. Therefore, creating a unique type of the Commissioner’s

acts, i.e. administrative acts imposing sanctions, will also allow the prosecution of

legal entities themselves instead of the heads of the legal entities, who are currently

regarded responsible for the violations of human rights.

4. The Relations of the Commissioner with the Parliament

12. While presenting the main findings and recommendations regarding strengthening the

Commissioner’s relationships with the Parliament, the aspect of acting timely any

time when it is needed was stressed. Based on that, the stakeholders discussed the

recommendation to amend the Law of the Commissioner by expressly introducing

that the Commissioner shall have the right to propose to the Parliament to adopt or

revise the legislation with the purpose of ensuring the human rights and freedoms and

promoting and protecting the right to good public administration. This right shall be

implemented any time when in the course of the exercise of the Commissioner’s

jurisdiction it deems necessary. Regarding this recommendation, the personnel of the

Commissioner’s Office raised concern that they can develop a draft law with relevant

amendments, but they do not know what will happen in the voting room after the

adoption of amendments on the spot. They were concerned that there is a probability

that after the first good initiative of the Commissioner the text will be completely

changed in the Parliament and in such a case the Commissioner cannot accept the

responsibility for that text of the draft. In response to the raised doubts, the experts

noted that indeed it is impossible to ensure that the Parliament will pass exactly such a

law, as proposed by the Commissioner. Nevertheless, one should note various

precautionary measures aimed at preventing the Parliament from changing the essence

of the draft laws. One of them is, for example, to send the draft law for examination

after the second reading. The experts also noted that other countries face similar

68

problems. In this regard, the best possible solution seems to be to send the draft law

for examination before the last reading. Experts also expressed the importance of the

basic principle that all institutions in Ukraine should work based on the principle of

serving people. The best possible way to achieve it is to engage in educational work.

In addition to this, the experts stressed that if, despite all efforts, the Parliament adopts

the law, which does not correspond to the initial essential idea of the Commissioner,

there are certain “punitive” measures. In this regard, one should note the following

instruments such as to make the fact public and to use the right to apply to the

Constitutional Court with regard to the conformity of the laws with the Constitution

of Ukraine or to initiate the normative control procedure before administrative courts

where appropriate.

13. The other concern raised by participants of the discussion was related to the lack of

real communication from the Parliament’s side. Participants explained that the

Parliament, with the exception of the Parliamentary Committee for Human Rights,

tends to ignore the reports of the Commissioner. Ms. Svitlana Kolyshko, Member of

Human Rights Team Lead, Project Coordinator, UNDP project “Strengthening

Capacities of the Office of the Ombudsperson” additionally pointed out that they

support the recommendation on the interaction between the Office and the Parliament.

The remarks were made that it is unacceptable that the Commissioner’s reports are

ignored and that it makes no sense then to have a parliamentary control tool if it is not

used at all. Thus, the experts and the participants agreed that the Commissioner

should serve as a privileged interface between international human rights standards

and domestic legal norms.

5. The Mandate of the Commissioner vis-à-vis Judiciary

14. While presenting the recommendations regarding the relation between the activities of

the Commissioner and administration of justice, it was emphasized by the experts that

the national legal regulation shall be revised in order to prevent the Commissioner

from intervening into judicial proceedings and, above all, questioning the soundness

of court decisions. In this context, the representatives of the Office and other

stakeholders were eager to find out how the principle of good administration of justice

is implemented in Lithuania and whether the Ombudsperson here has a role to play.

By the same token, it was explained that in Ukraine, the proceedings, in particular

criminal, are unduly lengthy and miscarriages of justice remain a relevant issue. It

was also noted that under these circumstances, it is difficult to accept that the

Commissioner shall stand back and abandon its monitoring functions in the sphere of

administration of justice. It was proposed by the stakeholders that the Commissioner

shall have a right to make a cassation complaint as a last resort where both instances

of courts fail to protect human rights.

In response to these concerns, the experts noted that in line with the best practices in

Europe the Ombudspersons usually have no supervisory role towards judiciary. The

issues concerning unjustified and excessively long duration of the proceedings are

dealt by few essential measures. The correction of possible errors is entrusted to the

judicial system itself consisting of courts of lower, higher and final instances. In

addition to this, the functioning of judiciary, including disciplinary proceedings, is

supervised by autonomous institutions such as the Judicial Council or similar, which

are entitled to assess the actions of judges or their inaction. Moreover, according to

the prevailing practice in Europe, the sanction for a breach by courts of their

obligation to adjudicate on the cases before it within a reasonable time is an action for

69

damages. Such an action is considered to constitute an effective and sufficient

remedy.

15. The discussions on the matter have also considered the role of the Commissioner in

defending public interest before courts. Representatives of the society expressed

doubts whether the Commissioner should be made responsible for abstract control of

legality of regulatory acts or should be entitled to submit actio popularis. Instead,

acting as amicus curiae in individual cases was preferred and considered sufficient.

Nevertheless, if the suggestions regarding the abstract control of norms and defence

of public interest were accepted, it was pointed out that one should think about setting

out the limitations and criteria for the exercise of these procedural rights by the

Commissioner. In addition to this, the stakeholders noted that the concept of public

interest is necessarily a broad one. Therefore, there might be some confusion with

regard to the circumstances where the Commissioner is expected to act in order to

defend the public interest. Continuing the debate on the remarks received, the experts

highlighted the benefits of collective claims or claims association. It was emphasized

that measures of this kind, once successfully implemented, put direct and indirect

pressure on the executive to improve the situation in the sphere of human rights

protection.

16. Meanwhile, the proposal to limit the Commissioner’s role in the sphere of legal

representation was accepted as feasible and realistic. As pointed out by the

representatives of the Commissioner, currently, in practice, the personnel of the

Commissioner rarely act as representatives of individuals concerned before the courts.

On the one hand, this is also due to the contradictory within legal framework which

establishes that only advocates are entitled to represent individuals concerned before

courts. On the other hand, it is a well-established practice that the defence of

individual legal interests first of all is the responsibility of the person concerned.

6. The Mandate of the Commissioner in the Sphere of Antidiscrimination

17. The discussions and the feedback from the representatives of the Office indicated

clear support for the experts’ proposal to merge two acts, namely the Law on

Ensuring Equal Rights and Opportunities of Women and Men of 2005 and the general

Law on Principles of Prevention and Combating Discrimination of 2013, as today

they create a collision and may impede the execution of the Office competences in the

area of equal treatment. The single law governing the general foundations of the non-

discrimination, including the competences of the Office and other stakeholders and

covering all grounds of prohibited discrimination alongside with more specific

provisions with relation to single grounds such as gender or ethnic origin, would

provide for significant help in pursuing the antidiscrimination mandate of the

Commissioner.

18. The further discussions have revealed that there is a slight mistrust or the lack of

understanding of the proposed competence to provide individual assistance to victims

of discrimination in pursuing their complaints about discrimination. In expert’s

opinion, even today the Office is entrusted with this mission as it accepts the

complaints and advises the citizens. This function of the Equality Body is provided

both by the Directive 2006/54 and the Directive 2000/43 and therefore cannot be

ignored in the course of harmonisation process. However, the said competence has to

be differentiated from another type of involvement of the Commissioner – the right to

initiate proceedings before the court in the name of the individual or the right to

provide legal aid in presenting individual’s legal interests before courts. Indeed, as it

70

was rightly pointed out by the representatives of the Office, the latter competences

seem to be better excluded from the mandate of the Commissioner. The reasons

advocating for this statement are as follows: 1) due to complexity of competences

and it’s territorial range of activities, the Office clearly lacks adequate resources; 2)

the Office would probably face the danger of being accused of selectivity or inaction

when not effectively addressing all individual claims; 3) the Office would duplicate

the work of institutions of primary and secondary state-guaranteed legal aid and

possibly would interfere with the services usually provided by the NGO’s.

19. The recommendations concerning the sanction related competence and the legislative

proposal No 3501 seemed to cause more debates. The proposal aims to give the right

to Office to investigate the discrimination cases and to draft protocols in accordance

with the Code of Administrative Offences in cases of the breach of Equality

legislation. The expert shares the view that this is not the primary task and function of

the Office to operate at micro level by investigating the individual complaints in the

framework of the Code of Administrative Offences. The work of the Office shall be

focused on eliminating structural problems and changing the overall perception of the

discriminatory behaviour. To this end, the policy oriented measures, legislative

initiatives, public awareness raising campaigns, promotion of good practices may

have a more positive effect. However, the possession of tribunal-type or inspection-

type competences still can have added value because of their potential use in highly

profiled cases of an obvious or gross violations of equality principles. The procedure

offered by the Code of Administrative Offences (if the legislative proposal No 3501

will be adopted) does not seem to be convenient and adapted to the needs of the

Office and the specificity of the mandate. Therefore, the experts were proposing that

the Commissioner would have a right to issue a legally binding administrative act

imposing economic sanctions, which subsequently could be appealed directly to the

court. In both cases, just as any other controlling or inspection institution of the State,

the Office will be granted certain autonomy and discretion to react or not to react to

individual complaints submitted by the citizens. In order to cope with the possible

flow of the complaints, as proposed by the experts, the internal regulations on the

investigation procedures within the Office shall be drafted.

7. The Mandate of the Commissioner regarding Freedom of Information and the

Right to Data Protection

20. During the presentation of the recommendations, the Member State Short-term Expert

mentioned and explained – additionally to his written recommendations – that the

topics of access to public information and protection of personal data are of special

importance for civil society and the media:

a. Access to information because it is of crucial importance and a pre-condition in a

democratic society, in order to being able to use freedom of opinion and speech in

a comprehensive and effective way.

b. Data protection because of increasing threats for privacy whenever personal data

have been processed and are misused; to detect whether and how personal data are

misused by authorities or private companies, not only proper legal investigations

are needed but also utmost specialised experts in IT-technologies.

21. Since the right to information very often is interfering into the rights to privacy and

data protection, proper criteria shall be developed in order to find the right balance

between both rights, and to identify the respective overriding individual or public

interest.

71

22. At the discussions, one participant asked how misuses of the right to information

could be rejected. The expert referred to his recommendations on necessary

limitations. Any authority with decisive power may reject those applications, and do

have a certain margin of appreciation to do so within the boundaries of the legal

provisions.

23. In the course of the discussion the question was raised how the relationship between a

new body and the courts with regard to decisive power should be designed. According

to the current Law on Personal Data Protection and the Law on Access to Public

Information, people may lodge complaints with the Commissioner or courts. The

expert emphasised that there should be better a clear structure of decisive

competences and procedures in order to guarantee “effective judicial remedies” in

accordance with Articles 6 and 13 ECHR and the respective case-law of the ECtHR.

Although parallel competences between supervising bodies with certain decisive

powers are common in some states, the Expert recommended strongly to choose the

prevailing model of successive competences. Namely, to assign a full and exclusive

first instance competence to the envisaged new organ responsible for data protection

and access to information issues, and to introduce an appellate jurisdiction before

independent courts which have to decide on all remedies taken against the first

instance body. This is a model which is favoured by the CJEU (see the recent Case C-

73/16, Puskar v. Slovak Republic, ECLI:EU:C:2017:725).

______________

72

ANNEX 6 Revised Version of Recommendations






REVISED VERSION OF RECOMMENDATIONS

AIMED AT BRINGING THE NATIONAL REGULATORY AND LEGAL

FRAMEWORK IN ACCORDANCE WITH THE BEST EU PRACTICES IN THE

HUMAN RIGHTS AREA, AS PRESENTED IN ACTIVITY 1.3.

Experts:


2017.09.25-29.








Kyiv, October, 2017

73

Introduction ............................................................................................................................ 75

1. The Commissioner as a Promoter of Good Administration .......................................... 77

2. The Legal Status and Organisational Framework ......................................................... 80

2.1. Appointment ................................................................................................................. 80

2.1.2. Nomination of Candidates ..................................................................................... 80

2.1.1. Appointment Procedure ......................................................................................... 81

2.1.3. The Length and Number of Terms ......................................................................... 83

2.1.4. Acting Commissioner ............................................................................................ 83

2.2. Immunity ....................................................................................................................... 83

2.3. Social Guarantees.......................................................................................................... 84

2.4. Accountability: Presenting Activity Statements ........................................................... 85

2.5. Cessation of the Duties ................................................................................................. 85

2.6. Administration of the Institution ................................................................................... 87

3. The Mandate of the Commissioner .................................................................................. 90

3.1. Review of Administrative Actions ................................................................................ 90

3.1.1. Administrative Procedure for Handling Individual Complaints ............................ 90

3.1.2. Expanding Commissioner’s Mandate: Mediation ................................................. 93

3.2. Relations of the Commissioner with the Parliament..................................................... 95

3.3. The Mandate of the Commissioner vis-à-vis Judiciary ................................................ 98

3.3.1. Normative Control ................................................................................................. 98

3.3.2. Defence of Public Interest .................................................................................... 101

3.3.3. Legal Representation of Vulnerable Groups before Courts ................................. 102

3.3.4. Intervention into Judicial Proceedings ................................................................. 104

3.4. Mandate of the Commissioner in Particular Areas of Law......................................... 107

3.4.1. The Mandate of the Ombudspersons in the Sphere of Antidiscrimination .......... 107

3.4.2. The Special Mandate of the Commissioner regarding Freedom of Information and

the Right to Data Protection ........................................................................................... 111

Key Recommendations and Proposals ............................................................................... 120

PROPOSAL NUMBER 1 – Promotion of the Right to Good Administration ........... 120

PROPOSAL NUMBER 2 – Strengthening the Independence ..................................... 120

PROPOSAL NUMBER 3 – Enhancing Efficiency of Complaint Handling Procedure

............................................................................................................................................ 122

PROPOSAL NUMBER 4 – Promoting Sound Public Administration via Mediation

............................................................................................................................................ 123

PROPOSAL NUMBER 5 – Strengthening the Relationship with the Legislator ...... 123

74

PROPOSAL NUMBER 6 – Access to Justice................................................................ 123

PROPOSAL NUMBER 7 – Limitations to the Commissioner’s Role in Legal

Representation.................................................................................................................. 125

PROPOSAL NUMBER 8 – Limited Intervention into Judicial Proceedings ............ 125

PROPOSAL NUMBER 9 – Harmonisation of Equality Laws .................................... 126

PROPOSAL NUMBER 10 – Data Protection and Access to Public Information ..... 126

75

Introduction

1. Drafting recommendations aimed at bringing the national regulatory and legal

framework in accordance with the best EU practices in the human rights area responds

to the general aim of strengthening the institutional capacity of the Apparatus of the

Ukrainian Parliament Commissioner for Human Rights (hereafter the Commissioner)

to protect human rights and freedoms. The following recommendations and proposals

seek to address the legal issues encountered by the Commissioner’s institution and

provide advice and guidance in the form of particular suggestions on how to amend

the existing legal regulation in order to bring it more closely in line with European

standards.

2. This report essentially reflects general legal concerns and recommends to establish or

further strengthen, as the case may be, a coherent and comprehensive framework for

the legal regulation of the Commissioner’s activities. In so doing, the analysis took

into account the specific context of national circumstances, in particular the

undergoing institutional reforms, and had special regard to the guiding principles in

the human rights area promoted by the European legal order.

3. A list of recommendations presented in the report not only highlights the importance

of ensuring the efficient functioning of the Commissioner’s Apparatus but, above all,

insists that the Commissioner plays an essential role in ensuring the accountability

and the right to a transparent, just and effective public administration. It is hoped that

the national authorities concerned, civil society organisations and other stakeholders

take all necessary and appropriate steps, be it legislative, administrative or judicial, to

ensure that the role of the Commissioner is carried out with a special regard to the

right to good administration as a fundamental human right.

4. The report is structured in a thematic manner in order to facilitate access to the

particular questions addressed by the experts. It proceeds in the following manner.

Part I begins with particular recommendations regarding the Commissioner’s

functions in promoting the right to good administration. Part II places proposals to the

specific aspects of legal status of the Commissioner, such as the appointment

procedure, immunity, social guarantees, accountability, and dismissal. In Part III the

focus then shifts to the mandate of the Commissioner in the context of administrative

procedures carried out in handling individual complaints. The analysis proceeds to the

institutional relationships vis-à-vis parliament and courts. In particular, Part III also

includes analysis of the mandate of the Commissioner in the spheres of

antidiscrimination, data protection and access to public information and proposes

necessary steps to be taken in order to bring the legal regulation into compliance with

EU standards. The analysis then concludes with a list of key recommendations and

proposals on how to improve the existing legal regulation.

5. Each proposal presented in this Report relates to the analysis of existing regulatory

and legal framework governing the activities of the Commissioner and the

information gathered following the fruitful debates with the representatives of the

Apparatus as well as other meetings held with the public institutions and civil society

organisations. Therefore, in order to have a full understanding of the

recommendations prepared, it is suggested to get familiar with the text and

conclusions presented in Report 1.1. Analytical Analysis on the Existing Regulatory

and Legal Framework governing the Activities of the Ombudsperson and Report 1.2.

76

Comparative Analysis of National and European Legislation concerning the Activities

of the Ombudsperson.

6. This study is also intended to serve as a source of reference and inspiration for

carrying out a round table to discuss recommendations regarding particular changes to

the legal framework governing the activities of the Commissioner (Activity 1.4.) and

drafting amendments to the organisational legal acts regulating activities of the

Commissioner (Activity 1.5.). It should, however, not prevent relevant stakeholders

from developing and adding new facets to the proposed improvements to the existing

legal framework, if there is a good reason to do so. The proposals made in this

document are by no means exhaustive. Nor are they intended to determine the only

way forward to strengthen the Apparatus of the Commissioner.

77

1. The Commissioner as a Promoter of Good Administration

7. As provided for under Articles 1 and 3 and a number of other legal provisions set out

in the Law of the Commissioner, the principal function of the Ukrainian

Commissioner is observing and protecting the constitutional human and citizens’

rights and freedoms, responding to the violations of human rights in various spheres

of public law, and participating in the development of human rights policy.

8. At least currently, there are no legal provisions expressly including the improvement

and promotion of the right to good administration.

9. On the level of the Council of Europe, the Recommendation 1615 (2003) advises the

Member States to establish a fundamental right to good administration as well as a

particular code of good administrative behaviour. The legal embodiment of such

standards makes new demands on the control carried out by the ombudspersons.

Comparative examples also confirm that in Europe applying and developing the

norms of good administration is a part of the ombudspersons’ control and educational

functions.

Ombudspersons European-wide have multiple functions, and although one of them is

to provide redress for aggrieved citizens, they are now also given the task to provide

an independent critical appraisal of the quality of administration and a stimulus

towards improvement. This is also true in countries where the ombudspersons, which

are traditionally perceived as being of the third generation, i.e. human rights

ombudsmen, now are applying the concept of good administration that has an effect

beyond the individual complaints.

Therefore, in addition to investigating individual complaints the Ombudsperson’s

offices European-wide are increasingly focused on working proactively with the

public sector to improve public administration by promoting the principle of good

administration. Good administration could be understood as transparent, fair, all-

inclusive and representative process of decision-making and how these decisions are

implemented by the administration.

10. There is no single European standard as to how to incorporate the promotion of the

right to good administration in the legislative framework of the Ombudsperson’s

status and functions, but the idea that the work of the ombudsperson shall cover the

promotion of the right to good administration is encouraged at the European level:

e.g. in various Venice Commission’s recommendations it was emphasized that “The

scope of powers of the ombudspersons should not cover only outright violations of

rights but also of the principles of good administration”3.

On the level of the Council of Europe, it is not merely stated that “the work of the

ombudsman shall include the promotion of the right to good administration” but the

Member States are also advised by the Recommendation 1615 (2003) to establish a

fundamental right to good administration as well as a separate code for good

administration:

“In general, the work of the Commissioner is built around the protection of human

rights and freedoms. There are strong indications in Europe that the work of the

ombudsman shall include the promotion of the right to good administration: The

3 The Venice Commission, Compilation on the Ombudsman Institution, 2011, p. 20.

78

Assembly notes that the European Ombudsman benefits from the inclusion in Article

41 of the Charter of Fundamental Rights of the European Union of a right to good

administration. The Assembly believes that incorporation of such a right into national

legislation could also be of great value, for similar reasons to adoption of a Code of

Good Administrative Behaviour: indeed the Code would elaborate for practical

implementation the detailed standards implicit in the basic right.”4

11. Hence, the ombudspersons of all generations are moving towards the explicit task to

enhance the quality of the administration on the basis of what good administration

requires. On the one hand, they need to explain what the citizen can reasonably expect

from a good administration, and on the other hand, what the administration should do

to act in accordance with good administration and match the citizen’s expectations.

They can do this in a range of ways such as undertaking major investigations of

systemic issues and developing resource materials for use by the public sector, such

us, for example, “Guidelines of good administrative behaviour”.

12. In a jurisdiction where the government is committed to the idea of good

administration and furthers it, the Ombudsperson institution can be a valuable tool for

promoting and improving good administration as its key function is to recommend

changes in administrative practices and rules following the investigation of

maladministration.

13. In addition, today, the ombudspersons need to make clear what principle(s) of good

administration requires. The adoption of the codes of good administrative behaviour

where there is none could be an important step in the right direction. The European

Code of Good Administrative Behaviour of the European Ombudsman5 could also be

a source of inspiration for implementing the principle of good administration in

national legal order due to its significant relevance in defining the minimum

requirements of good administration.

14. Therefore, based on the findings presented in Report 1.1. Analytical Analysis on the

Existing Regulatory and Legal Framework governing the Activities of the

Ombudsperson and Report 1.2. Comparative Analysis of National and European

Legislation concerning the Activities of the Ombudsperson, it is recommended to

enhance the awareness of the right to good administration via legislative

changes.

15. Four recommendations could be made in order to include the promotion of the right to

good administration into the scope of the powers of the Commissioner:

First, to amend the Law of the Commissioner including promotion of the right to

good administration as one of the functions of the Commissioner next to the

promotion and protection of the human rights. This could be done, for example, by

amending Article 3 of the Law, which describes the purposes of the parliamentary

control exercised by the Commissioner, and including an additional purpose such as

“3. 8) to promote and protect a person’s right to good public administration thereby

contributing to securing human rights and freedoms and to supervise fulfilment by

state authorities of their duty to properly serve the people”.

Second, to incorporate the right to good administration into national legislation. This

can be done in two ways:

4 The PACE Recommendation 1615 (2003) The institution of Ombudsman, Report, Doc. 9878, 2003, p. 9.

5 https://www.ombudsman.europa.eu/en/resources/code.faces#/page/1

https://www.ombudsman.europa.eu/en/resources/code.faces#/page/1

79

a) incorporating this right into the national act regulating administrative procedure if

such act would be adopted (currently, in Ukraine, there is no general up-to-date

Administrative Procedural Code, regulating administrative procedures in public

administration, inter alia, procedural rules for relationships between administrative

authorities and individuals. All these procedures are regulated by different separated

procedural norms; meanwhile, the Law on the Citizens’ Appeals needs a complete

redrafting); or

b) incorporating the right to good administration into the Law of the Commissioner,

either by including a general chapter with the definitions at the beginning of the Law

or by including a new Article on good administration (for example, 31), stating at least

minimum standard, based on the definition in Article 41 of the Charter of

Fundamental Rights of the European Union6, for example:

“Right to good administration”

“1. Every person has the right to have his or her affairs handled impartially, fairly and

within a reasonable time by the institutions, bodies, offices and agencies of Ukraine.

2. This right includes:

a. the right of every person to be heard, before any individual measure which would

affect him or her adversely is taken;

b. the right of every person to have access to his or her file, while respecting the

legitimate interests of confidentiality and of professional and business secrecy;

c. the obligation of the administration to give reasons for its decisions.

Third, to adopt a Code of Good Administrative Behaviour, which provides guidance

on practical steps towards greater effectiveness, transparency and accountability of

the state authorities. Such Code would help Ukrainian citizens to know what

administrative standards they are entitled to expect from the Ukrainian institutions. It

also would serve as a useful guide for civil servants in their relations with the public.

By making the principle of good administration more concrete, the Code would help

to encourage the highest standards of administration. The Ombudsperson could later

on make appropriate references to the Code during the inquiries, as well as in doing

the proactive work to promote good administration.

Fourth, regarding the Commissioner’s right to initiate an abstract judicial review of

regulatory acts when promoting good administration and related recommendation, to

establish that the Commissioner shall have a direct right to take action in order to

challenge regulatory legal acts before administrative courts, for further details please

read below in Part 3.3. The Mandate of the Commissioner vis-à-vis Judiciary, 3.3.1.

Normative Control.

6 This Code has already provided inspiration for certain similar texts in Member States of the European Union,

candidate states and third countries.

80

2. The Legal Status and Organisational Framework

16. The smooth functioning of the institution requires that the Commissioner is appointed

on the grounds of merit and documented administrative and managerial

skills, as well as competence and experience relevant to human rights protection, good

public administration and that he performs his duties with complete independence and

flexibility as to the organisation of the internal functioning of the institution.

17. Generally, the existing legal framework is in compliance with European and

international standards. The Law of the Commissioner provides for all major elements

of the Commissioner’s activities that are aimed at ensuring effectiveness,

independence, and impartiality of the Institution. The legal framework offers every

formal requisite guarantee of independence to the Commissioner. His status is

constitutionally defined and further strengthened by legal regulation that establishes

that the Commissioner is separate and independent from state or other public

authorities. Having said that, the current legal regulation shall be further

improved, particularly with regard to the more effective appointment procedure,

stronger legal underpinning of independence in terms of dismissal procedure and

guarantees after expiry of the term of office, as well as enhancing the public

confidence in the institution itself.

2.1. Appointment

18. To the extent that the national legal orders provide for the appointment or election of

state officials by political organs, special precautions are needed to guarantee that in

such appointment or election procedures the merit of the person is decisive, not

political or similar considerations. In assessing the legal framework of Ukraine, it was

established that the appointment procedure remains weak on account of the factors

such as unfavourable political environment, prolonged appointment procedures and,

in particular, insufficient involvement of civil society.

2.1.2. Nomination of Candidates

19. The Law of the Commissioner grants rather wide opportunities to stand as a candidate

in the procedure for the Commissioner’s appointment. The Commissioner shall be

chosen from among persons, who are citizens of Ukraine and who have been residing

in Ukraine for the last five years and who have attained the age of 40 on the day of

election. In addition to this, candidates shall have good command of state language,

high moral qualities, and experience in human rights protection (Article 5(2) of the

Law of the Commissioner). This procedure generally allows for a fair appointment

process. In particular, the fact that the legal regulation sets no strict criteria and

provides in essence wide access to stand as a candidate is much welcomed. There are

nevertheless few aspects that raise concerns and call for the improvement.

20. First, the Law of the Commissioner lacks consistency in terms of what is assumed to

be qualities of good repute. As provided for under Article 5(2) of the Law, the

candidate shall possess high moral qualities. At the same time, Article 5(5) sets out

that a person, who has been given an administrative punishment for corruption during

the last year, shall not be appointed as a Commissioner. This would seem to suggest

that a person involved in corruption in a sufficiently recent period of time still stands

a chance to be considered as a person of good repute. Whereas it is for the Parliament

to appoint the Commissioner, choosing a candidate from among persons that offer

every requisite of independence, competence and merit of the person shall be a

81

decisive factor. Therefore, it is recommended to amend Article 5 of the Law of the

Commissioner and to establish that only persons of good repute and experience and

proof of no previous corruption may be nominated as candidates to the post of the

Commissioner.

21. Second, as a result of comparative researched, it is also recommended to improve the

current legal regulation by adhering to the examples of good practice, which are

aimed at providing greater transparency in the nomination process, including how

candidates are selected. As described by the Law of the Commissioner, currently

candidates may be nominated by the Chairman of Parliament or one-fourth of

Deputies7. The concern has been that, while in the matter of appointment there is no

limit as to the number of candidates, it is not quite clear how the Chairman of

Parliament or deputies reach out for the names of the best candidates. In this regard,

more active involvement of the civil society in nominating the candidates could

benefit for increasing the transparency and enhancing public confidence in the

Institution.

22. It is not proposed here to interfere with the discretion of the Chairman or deputies in

making their choice. Having in mind the close constitutional relation of the

ombudspersons to the Parliament in so-called traditional models, it is indeed for the

Parliament to appoint the Commissioner at the beginning of his mandate and for the

duration thereof. Nevertheless, it is strongly believed that in Ukraine the selection

procedures could be improved if the civil society gets an opportunity to propose

certain candidates.

23. There is a number of ways to enhance the participation of civil society. It is

recommended considering the following options:

- The Chairman may publicly call for nominations and set a time-limit for their

submission.

- It can be established that the representatives of the civil society should be invited

to participate in the selection procedure for the purposes of identifying persons

and making recommendations.

- One can discuss a step further such as to establish that at least one or two

candidates shall be proposed according to the received applications from the

public call.

Regardless which particular form is chosen, the goal here is the same – to enhance the

transparency at the selection procedure inasmuch as possible.

2.1.1. Appointment Procedure

24. To begin with, it must be noted that, very recently, on 13 July 2017 the appointment

procedure has been changed. Currently, Article 208(7) of the Rules of Procedure of

the Verkhovna Rada of Ukraine8 sets out that the appointment of the Commissioner

7 There is some legal uncertainty as to the subjects who are actually entitled to nominate candidates by legal

acts. Even though Article 6 of the Law of the Commissioner sets out that the candidates may be nominated by

the Chairman of the Parliament and one fourth of the Deputies, at the same time Article 208 of the Rules of

Procedure of the Verkhovna Rada of Ukraine lays down that it is only the Chairman of the Parliament who

nominates the candidates to the position of the Commissioner. For consistency reasons, the recommendations

prepared and the previous reports take an approach that the right of nomination is conferred on both the

Chairman of the Parliament and the Deputies of the Parliament. 8 Верховна Рада України; Закон від 13.07.2017 № 2136-VIII.

82

shall be adopted by the Verkhovna Rada by an open vote by a majority of the votes9.

Nevertheless, to our knowledge and information available on the official data base of

legal acts of Ukraine, the Law of the Commissioner has not been updated and, as

provided for under Article 5(1) of the Law of the Commissioner, the decision on the

appointment of the Commissioner shall be adopted by secret voting10

. This manifest

distortion of the coherence of the legal framework does nothing for legal certainty and

brings no closer to the appointment of the new Head of the Institution. Under these

circumstances, it is, first of all, recommended to amend the legal regulation, in terms

of voting procedure, in order to remove confusing, incoherent and inconsistent

provisions, which are set out in two legal acts both in force.

25. The legal regulation regarding the voting for the candidates, who are nominated to the

post of the Commissioner, should provide stronger guarantees for the independence of

the institution. Respectively, it is recommended revising the legal framework related

to the number of votes required in the Parliament for a decision on appointment to be

adopted. The legal provisions laying down that the Commissioner is appointed by a

simple majority of votes in the Parliament are not in line with the international

standards in the field.

It should be noted that the qualified majority of votes is required by the prevailing

international guidelines. As noted in the PACE Recommendation 1615 (2003), for

any institution of ombudsman to operate effectively, appointment procedure should

require a qualified majority of votes sufficiently large as to imply support from parties

outside government (7.3.). This approach is also supported by the Venice

Commission. The election by the increased majority in the parliament certainly

strengthens the ombudsman’s impartiality, independence and legitimacy. It also

means that the person chosen is supported by a large part of society. In return, the

appointment of the ombudsman by a simple majority of members of parliament is

seen as inadequate.

Accordingly, a qualified majority (2/3 or 3/5 of votes cast) in Parliament for the

appointment of the ombudsperson is considered appropriate11

. Nevertheless, under

certain circumstances it is suggested by the Venice Commission that the election of

the candidate by a 2/3 majority is a better solution than a 3/5 majority12

.

Anti-blocking measures can be introduced, like nominations of new candidates by

neutral bodies, following several unsuccessful votes in Parliament.

9 „Стаття 208. Порядок призначення на посаду та звільнення з посади Уповноваженого Верховної Ради

України з прав людини

7. Рішення про призначення на посаду та звільнення з посади Уповноваженого Верховної Ради України з

прав людини приймається Верховною Радою відкритим голосуванням більшістю голосів народних

депутатів від конституційного складу Верховної Ради.“. Online access:

<http://zakon2.rada.gov.ua/laws/show/2136-19/page3>. 10

“Стаття 5. Вимоги до кандидата на посаду Уповноваженого та призначення на посаду

Уповноваженого

Уповноважений призначається на посаду і звільняється з посади Верховною Радою України таємним

голосуванням шляхом подання бюлетенів.” 11

CDL-AD(2004)041 - Joint Opinion on the Draft Law on the Ombudsman of Serbia by the Venice

Commission, the Commissioner for Human Rights and the Directorate General of Human Rights of the Council

of Europe.(Strasbourg, 6 December 2004), §§8.1,11 12

CDL-AD(2015)035 - Joint Opinion of the Venice Commission and the Directorate General of Human Rights

and Rule of Law (DGI) of the Council of Europe on the Draft Amendments to the Law on the Human Rights

Defender of the Republic of Armenia, adopted by the Venice Commission at its 104th Plenary Session (Venice,

23-24 October 2015); §12.

http://zakon2.rada.gov.ua/laws/show/2136-19/page3

83

26. Last but not least, it is considered that the appointment procedure is not efficient in

terms of time. Even though, the existing legal regulation sets out certain time-limits

for conducting the appointment it still allows a protracted procedure. Thus, legal

notions aimed at terminating the interim situation as soon as possible shall be

established. For example, it could be set out that the election procedure for the

Commissioner shall start not later than six months prior to the expiration of the term

of office of the actual Commissioner or other solutions aimed at preventing the

possibility that appointment of new Commissioner will be delayed for tactical reasons

should be worked out.

2.1.3. The Length and Number of Terms

27. The Law of the Commissioner states that the term of the Commissioner is five years

commencing from the day of taking the oath. The Law does not set out any

restrictions regarding the re-election nor provide that the Commissioner is eligible for

subsequent term or terms.

28. Under these circumstances, it is suggested considering whether establishing legal

regulation providing for a longer term of office (7–8 years) combined with a non-

renewable mandate could benefit the Institution. It should be pointed out that this

proposal remains optional since international bodies observe distinct trends and do not

fix the duration of the term of office of ombudspersons. The discretion in choosing

the right model for the national legal order is retained and acknowledged by

international bodies. However, it is believed that the exclusion of re-election prevents

a risk that the person holding the post is compromised by considerations of future re-

election. The principle of a single term provides a safeguard contributing to the

ombudsman’s independence and precluding such risks.

29. Addressing the same objectives, in case the possibility of renewing the mandate is

preferred, for the sake of clarity, it is recommended establishing that the term of the

office of the Commissioner can be renewed once.

2.1.4. Acting Commissioner

30. It is commendable that during appointment procedure, which consists of multiple

stages, the Commissioner continues to carry out duties until a subsequent appointment

of new head of the Institution. This practice is preferred comparing to the solution,

applied in other countries, to confer the activities of the institution on the deputy.

Nevertheless, it should be pointed out that this practice stems from the systemic

interpretation of the legal provisions, which set out that the authority of the

Commissioner terminates when the newly-elected Commissioner takes the oath.

While this legal regulation, in principle, generate no difficulties in its application, in

order to ensure greater legal clarity and simplification, it is proposed that the law

established directly that, save in the event of the dismissal, the Commissioner shall

remain in office until his successor takes up his duties.

2.2. Immunity

31. The functional immunity is a guarantee of independence and shields against false

accusations and undue external influence. Certain remedies for the Commissioner

against these dangers are set out in Article 20(3) of the Law. However, the existing

legal provisions limit the scope of the immunity to the term of the office and do not

cover the period after the Commissioner ceases to hold office. In this regard, the

Ukrainian legislation falls short of international standards. In order to be in line with

84

applicable standards, it is recommended to establish that after the Commissioner has

ceased to hold office, he shall continue to enjoy immunity in respect of acts

performed by him in his official capacity, including words spoken or written.

32. The fact that the immunities have been provided in the public interest justifies the

power given to the parliament to waive the immunity where appropriate. In Ukraine,

the wording of Article 20(3) (The Commissioner shall enjoy the rights to immunity

during the entire period of tenure) establishes rules on inviolability of the

Commissioner in a sufficiently large scope. Therefore, in this regard, it is proposed

specifying what majority is required in the parliament to lift the immunity and

establish a requirement of votes to waive the immunity. Furthermore, the criteria for

lifting of such immunity should be specified and the decision should be reasoned. By

the same token, in accordance with the fundamental principle of respect for rights of

the defence, the person concerned must have an opportunity, before the decision

relating to him is adopted, to put forward his point of view on the correctness and

relevance of the facts and circumstances on the basis of which the decision is going to

be adopted.

33. While the immunities conferred on the Commissioner have a functional character, in

that they are intended to avoid any interference with the functioning and

independence of the Commissioner’s activities, the fact remains that they have not

been expressly accorded to the personnel of the Commissioner’s Apparatus. The fact

that the immunities have been granted to the Commissioner exclusively and not also

to its officials shall be remedied accordingly. Therefore, it is recommended to

establish in the law that the functional immunity is applied not only to the

Commissioner but also the staff of the Institution. The personnel of the Apparatus

should also enjoy immunity from legal proceedings in respect of words spoken or

written and acts performed by them in their official capacity. Similarly, the immunity

regarding the personnel should extend not only for acts performed during their time in

office but also after the staff ceases their employment. Meanwhile, the power to waive

the immunity shall be given to the Commissioner.

34. In order to enhance the independence of the institution, the legal regulation shall be

further developed by establishing functional immunity towards both the

Commissioner and the personnel. It is believed that addressing the issues of post term

functional immunity and special safeguards to the personnel of the Commissioner

could strengthen the institution and effectively combat its politicisation.

2.3. Social Guarantees

35. Underlining that the independence of the Commissioner secures taking up strong

actions where irregularities are established, it is therefore not a privilege for the

Commissioner but a guarantee of respect for human rights and fundamental freedoms,

allowing every person to have confidence in the Institution. In other words, social

guarantees are a part of assurance that complaints of maladministration made by

public authorities will be investigated by an independent and impartial person.

36. Currently, the Law of the Commissioner is silent on the rank of the Commissioner

vis-à-vis other state officials. This Law does not link the status of the Commissioner

to other high-level officials in terms of remuneration, allowances or pension. In order

to foster the consistency of the legal framework on the legal status of the

Commissioner, it is recommended that the Law of the Commissioner established that

85

in terms of remuneration, allowances and pension the Commissioner has the same

rank as a judge at the Constitutional Court or other high rank official of the state.

37. Further to the guarantees of the Commissioner, one should note that the Law of the

Commissioner provides the Commissioner with a possibility to return to previous or

equivalent job. Even though the guarantees designed to secure the status of the former

ombudsperson are not a wide spread practice, it is recommended preserving this legal

regulation as an aspect contributing to the independence of the Commissioner.

2.4. Accountability: Presenting Activity Statements

38. Presentation of annual reports to the parliament is one of several fundamental

principles for the operation of ombudsperson institution widely acknowledged by

international bodies and various countries in Europe. A lot of detailed information on

the assessment of the general situation of human rights protection is already made

available by the Commissioner and is published on a year-by-year basis.

Nevertheless, certain concerns were raised regarding the way of how the annual

reports are presented to the parliament and the fact that the annual reports do not

disclose sufficient information regarding the functioning of the Institution. In order to

address these issues and improve the current reporting it is proposed implementing the

following recommendations.

39. The first recommendation concerns in particular the Commissioner’s right to be

heard before the parliament. The current legal regulation should be revised in order to

confer on the Commissioner the right to be heard, participate in the debates before the

parliament and to present its findings and recommendations. It shall be established

that during the debate on the annual report at the session of the parliament, the

Commissioner may personally present a summary of the report and ensuing

conclusions. Presenting the annual report in person and making it public could also

serve as so-called soft sanctions, especially where particular public authorities fail to

implement legal requests.

40. Reporting is not an end in itself and the information to be included should be

determined by the needs of the society. The information disclosed should be relevant,

concise, understandable, and comprehensive. The annual reports are not only meant to

deliver relevant information to the parliament but are also a valuable source of

information to the members of the society. As such they should be prepared to the

highest standards and presented in a way that is also helpful and informative to the

individuals concerned. Therefore, it is also recommended to extend the scope of

annual reports and include information of a general and operational nature of the

Institution itself in order to raise the awareness of the purpose and tasks of the

Commissioner, enhance the confidence in their activities and promote protection of

human rights and freedoms. Should this prove necessary, a briefer and user-friendly

version of report shall be prepared. This, in turn, will ensure that the annual reports

are tailored to meet a legitimate and widespread practice in Europe, under which the

annual reports not only disclose the information on the general situation of human

rights violations but also provide certain data concerning the activities of the

ombudsperson’s office.

2.5. Cessation of the Duties

41. According to the principle of legal certainty, which is a fundamental part of the

European public law, the legislation must be clear and precise and its application

foreseeable by individuals. That requirement must be observed all the more strictly in

86

the case of an act liable to have consequences on the legal status of individuals in

order that those concerned may know precisely the extent of the obligations which it

imposes on them. In this context, legal grounds for termination and dismissal of the

Commissioner raise valid points of criticism. Indeed, the existing legal grounds for

termination and dismissal of the Commissioner lack precision, simplicity, and legal

clarity. In order to address these issues, it is recommended to improve the overall

quality of Article 9 of the Law of the Commissioner. Overly long paragraphs and

sentences, unnecessarily convoluted wording should be avoided.

In addition to this, as mentioned above, the most recent practice of legislation in

particular, which also concerns the dismissal procedures, deserves strong criticism.

According to Article 5(1) of the Law of the Commissioner, the Commissioner shall be

dismissed by the Verkhovna Rada of Ukraine by a secret ballot vote. Meanwhile, the

amendments of 13 July 2017 to the Rules of Procedure of the Verkhovna Rada of

Ukraine13

set out that the decision on the dismissal of the Commissioner shall be

adopted in an open vote by a majority of the votes. Needless to say, this is an atypical

situation creating serious legal uncertainty.

42. In amending the existing legal regulation, special attention shall be given to too vague

and open grounds for the cessation of the duties of the Commissioner, in particular

Article 9(1)(2), which sets out that the authority of the Commissioner ends where

verdict of guilty of a court is adopted, and Article 9(2)(1), which establishes that the

Commissioner is dismissed if he breaks the oath. These phrases do not exclude minor

offences and constitute catch-all clauses, which are not appropriate for the legal

relationships in question. It cannot be ruled out that such legal provisions could be

used to respond to the activities, which earn a disapproval of the individuals

concerned. The slightest risk of such influence is incompatible with the total

independence of the Commissioner. Accordingly, it is recommended that

amendments be drafted to replace the vague term of “violation of the oath” with a

more qualified wording and to clarify that only serious misconduct provides a legal

basis for the cessation of the duties.

Similarly, automatic termination of Commissioner’s tenure following “a verdict of

guilty”, irrespective of its nature and gravity, does not provide for adequate

guarantees against politicisation and should be further amended. In this context, it

should be noted that crimes may be not only grave bus also minor. They may be

committed not only intentionally but also due to negligence, they may be more or less

dangerous, they may cause especially severe consequences or the consequences,

which are not that severe. The commission of a crime in itself does not mean that a

person has alongside violated the Constitution, or breached the oath, or that the person

in his activity did not follow the Constitution, the interests of the state.

43. Turning to procedural issues, it is proposed making the dismissal of the

Commissioner more difficult by adopting legal rules, which guarantee that the

dismissal before the expiry of the term of office does not jeopardise the independence

and impartiality of the Institution. First, the current legal regulation should be

improved by complying with the relevant international recommendations. In this

regard, first, it is recommended to establish an increased majority to dismiss the

Commissioner. The majority of votes required for termination should be preferably

higher than the majority required for election. Second, in order to guarantee

transparency in the process of the dismissal of the Commissioner, it is also

13

Верховна Рада України; Закон від 13.07.2017 № 2136-VIII.

87

recommended providing for procedure that involves judiciary for giving an opinion

on whether the Commissioner no longer fulfils the conditions required for the

performance of his duties or is guilty of serious misconduct.

2.6. Administration of the Institution

44. National Human Rights Institutions (NHRIs) are often ineffective because they lack

resources14

. Control over their funding should be independent of the government of

the day. Governments and legislature should ensure that NHRIs receive adequate

funds to perform all the functions set out in their mandates. That is why the functions

of the Commissioner should be clearly set in the legislation, taking in mind that the

allotments from the state budget must correspond to the functions delegated from the

State to this institution. The legal provisions in the Law of the Commissioner and

other legal acts that include the institution’s funding as a separate item on the annual

budget are recognized as a positive aspect for the Commissioner‘s independence and

effectiveness.

45. Experience all over the world has shown15

that there is a danger that governments

may be tempted to influence the NHRI’s strategy and work through the amount of

annual funding they provide. Under these circumstances, supplementing the legal

provisions of the Law of the Commissioner by establishing a duty to the Government

to include the Commissioner‘s draft proposal into the entire draft budget submitted to

the Parliament without any changes shall be discussed. Nevertheless, in considering

the foregoing proposal, one should note that any suggestions to the budget planning is

closely related to the functions delegated to the Parliament and the Executive

exclusively. Therefore, the foregoing proposal shall be assessed having regard to the

peculiarities of legal tradition in the country. Therefore, the decisions on the necessity

of the measure of this kind remains in the hands of the stakeholders, who are best

placed to assess whether the implementation of the proposal may constitute a

legislative burden disproportionate to its overall impact.

In any way, the Commissioner should be demanding the right to be consulted when

the final decision is made on the annual funding by the legislator. The right to be

consulted ensures that the objectives of national human rights protection are duly

considered when decisions are made concerning the distribution of financial

resources. The Institution’s interest would otherwise be placed at a disadvantage with

regard to other social interests.16

46. It might also be appropriate to consider additional safeguards such as the principle

ensuring that any necessary budgetary restraints should not be applied to the

Ombudsman Institution in a disproportionate manner17

. In this regard, one may note a

principle that the budget for the Commissioner could be reduced in relation to the

previous financial year only by a percentage not greater than the percentage the

budget of the Parliament, President and Government is reduced.

14

Assessing the Effectiveness of National Human Rights Institutions, Office of the United Nations High

Commissioner for Human Rights (OHCHR), International Council on Human Rights Policy, 2005. 15

The European Commission on democracy through the law (Venice Commission), Compilation of Venice

Commission opinions concerning the ombudsman institution, Strasbourg, 2016. 16

National Human Rights institutions. An Introduction, Valentin Aichele, German institute for Human rights,

2010. 17

The European Commission on Democracy through the Law (Venice Commission), Compilation of Venice

Commission opinions concerning the ombudsman institution, Strasbourg, 2016

88

47. While discussing other aspects, which could ensure a better financial independence of

the Commissioner, it could be noted that the Institution could have appropriate value

from the planning process, which requires one to analyse both the internal and

external environment of the organization. Close attention should be given to the legal

requirements concerning any changes of the Institution‘s mandate and obligations.

The functions of the Commissioner, which are stipulated in the Law of the

Commissioner, in particular additional duties in the sphere of data protection and

access to public information, do not correspond to the Law of the Commissioner. This

leads to the non-conformity in the financing resources of the Institution too and shall

be remedied.

48. Turning to the question of organizational independence, it should be noted that the

appointment and dismissal of the personnel of the Secretariat, representatives and the

advisers of the Commissioner is carried out by the Commissioner and without the

interference of any authority. Nevertheless, the relation between the Law of the

Commissioner and the Law on Civil Service regarding the status of the Secretariat’s

personnel shall be adjusted and clarified. Acknowledging the objectives of sound civil

service and its transparent formation pursued by the Law on Civil Service, it is

similarly essential that the staffing policy remains within the discretion of the

Commissioner. The staff of the Commissioner shall not be seconded from the

Parliament or the Executive. Therefore, it may be proposed to reconcile the legal

rules laid down in the Law of the Commissioner and the Law on the Civil Service and

to establish that the Commissioner appoints, manages and dismisses the staff of the

Apparatus who will assist him in performance of his duties himself; meanwhile, the

procedures for hiring set out in the Law of the Civil Service shall be applied without

prejudice to the organizational independence of the Commissioner.

49. In addition, it is recommended to amend the wording of the existing legal regulation

in a way that empowers the Apparatus to carry out the functions of the Institution

effectively and fully. In this regard, the functions of the Secretariat shall be spelled

out in a sufficiently precise manner in order to exclude the wrongful interpretation

that it is only the Commissioner in his personal capacity, who is entitled to perform

the functions of the Institution, and not the personnel.

50. In addition to this, as it was mentioned above, the Commissioner is bound by the

allocations from the state budget. As it was found from the public information and

during the meetings with the staff of the Secretariat, the allocations cover the outlays

for the remuneration of the Commissioner, listed staff of the Secretariat including the

representatives of the Commissioner, as it is directly regulated by the Law of the

Commissioner. Meanwhile, the possibilities to involve the representatives of civil

society, as it is set in the Law of the Commissioner, are limited and depends mostly

on “ad hoc” contribution of external donors. The lack of such financing could suspend

the effectiveness of performing the Commissioner’s functions, e.g. the board of

advisers, which operates (as set in the Law “can also operate”) on a voluntary basis,

comes to a standstill.

51. According to the Law, the Commissioner has the right to appoint representatives. As

the provisions of the Law concerning the legal status of the representatives are set

separately from the provisions on the Secretariat, the Commissioner, supposedly, has

the possibility to separate the budget expenses for them. The representatives act in the

scope stipulated by the Commissioner’s regulations, which concern specialized

spheres of questions. Having the discretion to appoint the representatives, the

89

Commissioner could extend the organization of their activity to the regions where the

representatives of the Commissioner could manage the activities of the regional set-

up. This practice would also be in line with international recommendations18

.

According to the Paris Principles, the NHRI should be accessible for the population

especially to people who are exposed to human rights violations or non-fulfilment of

their rights (e.g., depending on the national, linguistic, religious or other minorities,

indigenous peoples, non-nationals and people with disabilities, as well as the very

poor, all NHRIs should ensure they can hear the concerns of such groups). Wide

access is especially important when NHRIs handle complaints. On the other hand,

they intend to enable quick and non-bureaucratic problem solving on site. In many

cases, the national ombudsman holds consultation days at those decentralised

offices19

. Ensuring the accessibility of the Commissioner, the possibility to see the

regional set-up under the structure of Secretariat should also be considered20

.

Under these circumstances, it is recommended that the amendments to the Law of

the Commissioner introduce the right of the Commissioner to establish the regional

units. Nevertheless, the right to define the scope and operating principles of the

regional set-up should be maintained for the Commissioner21

. Such legal provisions

provide a legal basis for adequate financing of the personnel and the premises in

regions as well as give clarity about the expenses for them22

.

It is also recommended to separate the expenses for the representatives as well as for

the regional units in the budget plan of the Commissioner, which is produced for the

Parliament decision. The expenses for the board of advisers and experts service

should be provided from the budget too.

18

The Venice Commission noted that unless specific conditions in certain regions, it would seem preferable in

Kazakhstan to organize regional or local offices manned by representatives of the national Ombudsman, with or

without being designated as Deputy ombudspersons. The European Commission on Democracy through the

Law (Venice Commission), Compilation of Venice Commission opinions concerning the ombudsman

institution, Strasbourg, 2016. 19

Ombudsman as Promotor of Good Governance, Kucsko-Stadlmayer, 2006. 20

Assessing the Effectiveness of National Human Rights Institutions, Office of the United Nations High

Commissioner for Human Rights (OHCHR), International Council on Human Rights Policy, 2005. 21

For example, the salary of the Ombudsman and his deputies is regulated by law - the Human rights

ombudsman act of the Republic of Slovenia. Ombudsman as Promotor of Good Governance, Kucsko-

Stadlmayer, 2006. 22

The Venice Commission stressed that in view of the particular significance of its financial resources for the

independence of the ombudsman Institution, it would be important to redraft the legal provisions in such a way

as to avoid any risk of undue cuts to the Ombudsman Institution’s budget through an extensive interpretation of

the clauses allowing its amendment. The European Commission on Democracy through the Law (Venice

commission), Compilation of Venice Commission opinions concerning the ombudsman institution, Strasbourg,

2016.

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3. The Mandate of the Commissioner

3.1. Review of Administrative Actions

3.1.1. Administrative Procedure for Handling Individual Complaints

52. The topic of the mandate of the Ombudsperson in the administrative procedure in

handling individual complaints is commonly described as falling within the

procedural autonomy of national state. However, the exclusive competence of

national legislators to create administrative procedural rules has been gradually

limited by the growing EU legislation and the jurisprudential development of the EU

general principal of good administration by the Court of Justice of the European

Union (the CJEU). This general principle of law was developed for the purpose of

respecting the procedural margin of discretion of the national states while at the same

time ensuring an effective implementation of EU law. The entry into force of the EU

Charter of Fundamental Rights has further reshaped the boundaries of national

procedural autonomy over a wide range of substantive fields. Article 41 of the EU

Charter of Fundamental Rights has introduced additional procedural safeguards, inter

alia, requiring an effective administrative procedure at each European institution and

every national institution implementing EU law, including the Ombudsperson.

1) Diversity of administrative procedural rules on investigation of individual complaints

53. It is true to say that in Ukraine, the legal regulation on the matter of the investigation

of individual complaints during the administrative procedures at the state institutions

is highly diverse. One should also note the peculiarity of the system of the

administrative procedures in Ukraine. In Ukraine, the main rules concerning the

investigation of the complaints are defined in different laws: in the Law of the

Commissioner, in the Code of Administrative Offences, in the Law on Citizens’

Appeals, in the Law on Data Protection, and other specialized laws. Having regard to

this, one should not wonder that the Commissioner does not have objective

possibilities to use unified (standard) procedure while ruling on the disputes in

different situations. The administrative rules on handling individual complaints are

distributed in various laws dealing with a particular sector of activities of the

Commissioner (the Law on Data Protection, the Law on Equal Opportunities, the Law

on Access to Public Information etc.). The administrative procedures and sanctions

applied to the public or private institution or civil servants of the public authorities are

codified in one legal act – the Code of Administrative Offences. However, the

provisions of the Code of Administrative Offences do not provide with sufficiently

detailed set of rules on how the procedures should be made. The rules on the

administrative procedure set out in the special legal regulation are not uniform. In this

respect, it should be noted that mainly every law provides different procedural steps,

different deadlines, different extent of the investigation sphere, different procedural

rights and duties for parties during the investigation procedure, different legal content

of the final decision etc. Thus, the Commissioner should take into account the length

of the period of the infringement, individual circumstances of the infringement,

whether the alleged infringer contributed to the investigation and disclosed all

relevant information. However, it is important to point out that the Law of the

Commissioner is completely silent on the matter how the choice among different

administrative procedures (investigations) shall be addressed.

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54. In order to harmonise different administrative procedures, it is recommended to set

out respective provisions (possibly a special chapter) in the Law of the Commissioner

and establish that the Law of the Commissioner shall be applied to all administrative

procedures and remedies concerning the protection of human rights and alleged

violations. Meanwhile, the provisions of the special laws concerning the

administrative procedures and measures should be applied only as an exception, when

the rule of the Law of the Commissioner explicitly directs to the application of this

special law. In addition to this, it shall be established that the Commissioner during

the investigation of individual complaints should not apply the rules of the Code of

the Administrative Offences and the Law on the Citizens’ Appeals.

2) Soft law guidelines and content of the principle of good administration in the investigation

of individual complaints

55. In most of European countries the national laws make an explicit reference to the

principle of good administration or good behaviour. This legal imperative is embodied

mostly in the Law on Public Administration (or Administrative Procedural Code) and

separately in the laws of the ombudspersons. Mostly the legal provisions make only a

general reference to the principle of good administration and the soft law (internal

law) provide specific rules how it should be applied or provide with the exact content

of this principle.

56. Currently, there are no internal legislation or soft law guidelines defined by the

Commissioner concerning the criteria to be followed when handling the complaints

based on the principle of good administration. In our view, the Commissioner shall

take a more active role and develop soft law guidelines based on the case-law

concerning the examination of complaints in accordance with the principle of good

administration. Even though these rules must be based on the relevant provisions of

the Law of the Commissioner, it can be maintained that the Commissioner is able to

indicate specifically in his internal rules (soft law) how those rules should be applied.

57. Even though the status of soft law is identified more as a complementary information

source to the binding rule but not as a unique source itself, in most of the cases, the

soft law guidelines are followed by implementing institution (executive public

authorities, judiciary (courts). Where administrative authorities tackle issues based on

soft law, the courts are willing to analyse them as well. This seems to be an accepted

practice in a number of European national courts, which develop their case-law based

on respective provisions of Article 41 of the EU Charter of Fundamental Rights.

58. One should note that the use of soft law is more frequent among administrative

authorities, which are intensively influenced by soft law approaches from

international organisations (primarily, the Council of Europe) and the European

Union. Therefore, it is recommended that different guidelines be adopted concerning

the national preventive mechanism or investigation of complaints in the area of data

protection or access to public information following similar approaches taken by the

Council of Europe or the European Commission. One of the main advantages of the

use of soft law by the ombudspersons is more detailed information regarding the

subject-matter. For instance, if there are no sources of soft law, administrative

authorities exercise their discretion on more abstract legal rules, which lack clarity in

many cases and, in turn, may create legal uncertainty.

3) Content and the scope of the provisions on investigation of individual complaints

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59. In order to enhance the efficiency of complaint hearing procedure, it is

recommended extending the provisions set out in Article 17(4) of the Law of the

Commissioner concerning the complaints within the jurisdiction of the Commissioner.

The activities of the President of the Republic Ukraine, members of the Verkhovna

Rada, the Prime Minister, the Government (as a collegial institution), the State

Controller and judges of the Constitutional Court and other courts, municipal councils

(as collegial institutions) shall be outside the Commissioner’s powers of investigation.

The legality and validity of procedural decisions of the prosecutors, pre-trial

investigation officials shall remain outside the Commissioner’s powers of

investigation. However, complaints about the actions of the above-mentioned

subjects, which violate the right to good administration, shall fall within the

investigative jurisdiction of the Commissioner. The Commissioner shall not

investigate complaints arising from the labour legal relations or soundness of court

decisions, judgements and rulings.

60. It is also recommended to include the provisions concerning the formal steps on

submission of complaints and requirements of complaints into Article 16 of the Law

of the Commissioner. Non-compliance with the form of the complaint or failure to

present the required particulars may not be grounds for refusing to investigate the

complaint, except for anonymous complaints and in cases where the investigation

may not be opened due to insufficiency of facts on the matter, while the complainant

fails to submit the facts on the request or in case the text of the complaint is illegible.

Anonymous complaints shall not be investigated unless the Commissioner decides

otherwise. It is also suggested that the legal regulation secures the time limit for filing

a complaint. The deadline in Article 17(2) for filing complaints is considered to be

appropriate (one year; two years). Complaints filed after the deadline shall not be

investigated unless the Commissioner decides otherwise. The provisions of Article

16(1)(3) of the Law of the Commissioner on filing complaints, including the

Commissioner’s right to open the investigation on his own initiative, are sufficient.

61. It is recommended to supplement Article 17(3)(3) of the Law of the Commissioner

and to set out more grounds for the refusal to investigate a complaint as well as to

foresee the deadline for the review of these grounds (during 7–14 working days). The

list of the grounds for the refusal to investigate could be extended for the following

cases: 1) the Commissioner comes to the conclusion that the complaint has no

substance; 2) the complaint is filed after the deadline; 3) the circumstances indicated

in the complaint are outside the Commissioner‘s investigative jurisdiction; 4) a

complaint relating to the matter has already been resolved or is pending in court; 5) a

procedural decision has been taken to open pre-trial investigation in relation to the

subject matter of the complaint; 6) the Commissioner comes to the conclusion on the

expediency of investigating the complaint in another institution or agency. Where a

decision is taken to refuse to investigate a complaint, grounds for refusal must be

specified. In the cases where the complaint falls outside the Commissioner’s remit,

refusal to investigate shall also indicate the institution or agency the complainant may

address on the matter. If the circumstances specified in this list are disclosed in the

course of complaint investigation the complaint investigation shall be discontinued.

62. It is recommended to set out appropriate time-limits (1–3 month) for complaint

investigation and for the prolongation of the complaint investigation (in case the

complexity of circumstances, abundance of information or continuity of actions

require). In general, according to the principle of good administration the complaints

shall be investigated within the shortest time possible.

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63. It is recommended to specify in the Law of the Commissioner the procedural scope

of investigation of complaint. The general principle of good administration should

oblige the Commissioner to investigate the circumstances specified in a complaint and

draw up a statement stating the circumstances disclosed and evidence collected in the

course of investigation as well as giving factual and legal evaluation with detailed

argumentation of the official’s activities. The statement may also be submitted to the

head of the institution, where the investigation has been conducted, and the official,

whose actions have been subjected to investigation, also, as necessary, to the head of

a superior institution or other institutions concerned.

64. It is recommended modifying Article 15(1) of the Law of the Commissioner by

clarifying the legal power of the final acts of the Commissioner and setting out

explicitly a non-binding (recommending) character of the Commissioner’s requests.

On the one hand, as provided for under Article 13 of the Law of the Commissioner,

the rights of the Commissioner shall provide imperative request to present relevant

information, documents and material. On the other hand, the final act after the

investigation carried out by the Commissioner, according to the European good

practise, has a quality of proposal (recommendation) with a non-legally binding

character and any coercive measures could not be applied in this case. However, it is

recommended to give more power for the proposal (recommendation) of the

Commissioner and to set out a special obligation for the institution following the

issues of a final proposal by the Commissioner. In every case, the institution and

agency or official, to whom this proposal (recommendation) is addressed, must

investigate the proposal (recommendation) of the Commissioner and inform the

Commissioner about the results of the investigation in appropriate time but not later

than 1–2 months after receiving the proposal (recommendation) of the Commissioner.

65. The special situation and the scope of the mandate of the Commissioner concerning

the violations of human rights in the area of data protection, access to public

information or equal opportunities shall also be taken into consideration. According to

the rules of lex specialis and having regard to the executive powers given to the

Commissioner in special areas of law, it could be recommended to foresee in the

Law on Data Protection, the Law on Access to Public Information and the Law on

Equal Opportunities the second type of final acts of the Commissioner following the

investigation of individual complaints – legally binding administrative acts imposing

legal sanctions. It is only these special areas where strengthening the power of the

request issued by the Commissioner in the indicated manner is appropriate. While

bringing to the attention the facts of negligence in office, non-compliance with laws

or other legal acts, violations of human rights and recommending to apply measures to

eliminate the violations of laws are important, efficient implementation of the legal

rules set out in the above-mentioned laws requires the Commissioner to play an active

role and, if necessary, to impose sanctions or obligations for the public authority. In

such cases, the request of the Commissioner would have a legally binding

characteristic of administrative act imposing economic sanctions, which subsequently

could be appealed directly to the court.

3.1.2. Expanding Commissioner’s Mandate: Mediation

66. Having analysed the Commissioner’s activities in the sphere of friendly dispute

resolution it was concluded that the informal activities of the Commissioner as a

mediator proved to be efficient.

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67. Especially valuable this instrument could be where the Ombudsperson is regarded as

trustworthy. Due to the increasing European trend to facilitate and encourage

mediation in all areas, it could be beneficial to review the existing legal regulation in

order to acknowledge expressly that such activities are compatible with the mandate

of the Commissioner.

68. Therefore, it is recommended to amend the Law of the Commissioner by expressly

introducing the right of the Commissioner to act as a mediator. For example, Article

13 of the Law of the Commissioner could be supplemented with a new Subparagraph

15, stating that the Commissioner has the right “to act as a mediator where it is seen

possible when trying to improve relations amongst the citizen, the administration and

public services and (or) trying to reach a friendly solution. The information gathered

through the mediation proceeding cannot be later used in the civil or administrative

cases in courts without express permission of the interested parties, except in cases of

public interest or where the publicity of the agreement reached through mediation is

necessary clause for its validity.”

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3.2. Relations of the Commissioner with the Parliament

69. Ombudsperson can play an important role in advising the Parliament with respect to

bringing national legislation and national practices in line with their human rights

obligations.

70. The Paris principles23

stipulate that ombudsperson’s institution should have the

responsibility to “submit to the government and Parliament on advisory basis through

the exercise of its powers to hear a matter concerning the promotion and protection of

human rights” and “to promote and ensure the harmonization of national legislation,

regulations and practices with the international human rights instruments to which the

State is a party, and their effective implementation“.

71. Highlighting in annual reports specific cases, which were investigated during the

reporting period, the Ombudsperson also informs the legislator of administrative

shortcomings and at the same time addresses issues in need of reform. The latter

could be partially done by proposing legislative amendments. Such proactive work is

best suited to bringing about systemic and lasting changes. Therefore, the vision of

the ombudsperson’s office should aim to provide effective mechanisms for identifying

major systematic issues, in other words, to move to a more proactive focus in relation

to systemic changes.

72. Having analysed the European and international framework, the conclusion was made

that it is widely acknowledged by international bodies and various countries in Europe

that the mandate of the ombudsperson includes the right to timely initiate the adoption

or revision of laws, with the purpose of ensuring the human rights and freedoms.

73. One of examples of the interaction between Parliament and the Commissioner is the

presentation of annual report of the Ombudsperson to the Parliament. Nevertheless,

the existing legal framework in Ukraine does not provide for a sturdier legal ground

and methodology as to how the Commissioner participates in the law-making process.

Therefore, it is recommended formalizing partially the possibilities of the

Commissioner to participate in the process of preparing draft law proposals and to the

ex ante impact assessments, which could contribute to strengthening the capacity of

the Commissioner in the relationship with the legislative bodies.

74. Therefore, the Law of the Commissioner should be improved by establishing the

Commissioner’s right to timely initiate the adoption or revision of laws, with the

purpose of ensuring the human rights and freedoms. Under these circumstances, it is

recommended that the Law of the Commissioner should be supplemented with legal

provisions aimed at establishing the Commissioner’s right to the legislative initiative.

75. The current legal regulation should be revised in order to confer on the Commissioner

the right to exercise his legislative initiative promptly when it is needed and not to

wait for the annual report. This position is also supported by Venice Commission: “It

is positive also, in view of the specialized expertise of the Ombudsman, that the

Institution may exercise its right to legislative initiative any time “when in the course

of the exercise of their jurisdiction it deems necessary”, without being under the

obligation to wait for the annual report to make use of this right, as in previous drafts.

23

http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx

http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx

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This will undoubtedly help the Institution to more timely act to respond to new needs

in society and, more generally, to more effectively fulfil its mandate.”24

76. The power to submit suggestions and proposals to the legislator is of great

significance for the ombudspersons’ effectiveness. It enables the ombudsperson to

reveal system errors observed at the level of complaints, which exceed the importance

of an individual case to a great extent (“systemic approach”).

The Venice Commission has emphasized on more than one occasion that it desirable

to have a legal framework, which allows the Ombudsperson to react not only to

individual violations but to the general patterns of action by various ways, including

right to initiate the adoption or revision of laws, with the purpose of ensuring the

human rights and freedoms, any time when it deems necessary25, 26

.

77. Given the fact that the Parliament is the legislator and having regard to the nature of

the ombudsperson as a parliamentary institution, recommendations for the amendment

of laws should also be directed to the Parliament. Having in mind the above-

mentioned recommendation to amend the Law of the Commissioner by

supplementing the Commissioner’s mandate with the promotion of the right to good

administration, it is also recommended to expressly introduce that “the

Commissioner shall have the right to propose to the Parliament to adopt or revise the

legislation with the purpose of ensuring human rights and freedoms and promoting

and protecting the right to good public administration at any time when in the course

of their duties they deem it necessary.”

78. Europe-wide those ombudspersons who are explicitly appointed to the observation of

human rights mostly also fulfil the general task of advising the legislator and the

government in the field of implementation of human rights (the Czech Republic,

Hungary, Latvia, Lithuania, Poland etc.). The aim of this is to guarantee the

implementation of human rights on the level of legislation and corresponding

provisions. In order to fulfil this function the ombudspersons are granted the right to

participate in parliamentary sessions and meetings, where matters of human rights are

discussed (Lithuania, Armenia, the Czech Republic, Estonia, Finland, Germany,

Hungary etc.).

The Law of the Commissioner expressly states that the Ukrainian Commissioner also

serves this purpose.

Consequentially, bearing in mind the conclusions that the Commissioner should also

act as a promoter of the principle of good administration, it is recommended to

authorize expressly the Commissioner when performing his duties to attend the

meetings of the Parliament, the Government and other state institutions. This right

shall be implemented when the issues under consideration are related to the activities

of the Commissioner in the areas of protection of human rights and good public

administration.

24

CDL-AD(2015)034 - Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and

Herzegovina, adopted by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015),

§33. 25

CDL-AD(2011)034 – Joint opinion on the protector of human rights and freedoms of Montenegro adopted by

the Venice Commission at its 88th Plenary Session (Venice, 14-15 October 2010), §11. 26

CDL(2001)083 - Consolidated Opinion On the Law on Ombudsman in the Republic of Azerbaijan

(Strasbourg, 7 September 2001), §§6, 7, 18 (see CDL(2001)PV 47, §6).

97

79. Following the above-mentioned recommendation to amend the Law of the

Commissioner by supplementing the Commissioner’s mandate with the promotion of

the right to good administration, the good administration principle should also be

included into the legal norms, clearly conferring on the Commissioner the right to

participate in parliamentary sessions and meetings, to attend the meetings at the

Government and other state institutions where matters of protection of human rights

and good public administration are discussed.

80. Certain rules regarding the Commissioner’s relationship with the Parliament are

already present in the Law of the Commissioner but they are widely scattered.

Therefore, in order to ensure a greater legal clarity and simplification and to

strengthen the capacity of the Commissioner in the relationship with the legislative

bodies, both recommendations could be implemented, for example, by introducing a

new special article stating a) that the Commissioner shall have the right to propose to

the Parliament to adopt or to revise the legislation with the purpose of ensuring human

rights and freedoms and promoting the principle of good administration at any time

when in the course of their duties they deem it necessary and b) that the

Commissioner has the right to participate in parliamentary sessions and meetings, to

attend the meetings at the Government and other state institutions where matters of

protection of human rights and good public administration are discussed.

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3.3. The Mandate of the Commissioner vis-à-vis Judiciary

3.3.1. Normative Control

81. Section XII of the Constitution (“Constitutional Court”) provides for the

Commissioner a direct access to the Constitutional Court.

Firstly, as provided for under Article 150(1)(1) of the Constitution and Articles 13(3)

and 15 of the Law of the Commissioner, the Commissioner has the right to apply to

the Constitutional Court with regard to conformity of the laws of Ukraine and other

legal acts issued by the Verkhovna Rada of Ukraine, acts issued by the President of

Ukraine, acts issued by the Cabinet of Ministers of Ukraine, and legal acts of the

Verkhovna Rada of the Autonomous Republic of Crimea concerning human and

citizens’ rights and freedoms with the Constitution of Ukraine. The Law of the

Commissioner establishes that to this end the Commissioner refers a constitutional

submission.

Second, the Commissioner is entitled to apply to the Constitutional Court of Ukraine

with regard to the official interpretation of the Constitution of Ukraine (see Article

150(1)(2) and 150(2) of the Constitution).

In this regard, the Commissioner holds a very strong position as the right to apply to

the Constitutional Court is also granted only to the following state institutions: the

President of Ukraine, no less than forty-five people’s deputies of Ukraine, the

Supreme Court of Ukraine, and the Verkhovna Rada of the Autonomous Republic of

Crimea.

82. The legal regulation does not lay down any general criteria for cases when the

constitutional submission shall be made and the Commissioner in this regard enjoys a

wide margin of appreciation. There are also no legal provisions linking the legal

remedy at issue with the procedures of monitoring of human rights protection or

investigations based on individual complaints. The absence of limitations related to

the competence or activities of the Commissioner may result in constitutional

submissions by the Commissioner on the issues that do not fall within its competence.

83. In addition to this, neither the Constitution, nor the Law on the Constitutional Court

(including the new privisions, which implemented the recent amendments related to

the Constitutional Court27

) provide any precise time limit for the settlement of the

constitutional justice cases by the Constitutional Court. Nor any order of priority for

hearing the cases is established. This sometimes can impede the effective settlement

of problematic human rights issues identified by the Commissioner. The current legal

framework also lacks certainty with regard to time limits for consideration of

constitutional submissions and, where unconstitutionality is found, revision of the

existing legal regulation. The legal uncertainty in this sphere may render the referrals

to the Constitutional Court inefficient.

84. Although there is no single European standard as to the status of the ombudspersons,

usually in states with constitutional jurisdiction, the ombudsperson is entitled to

appeal against laws before the constitutional court. This right of ombudsperson is

27

Про Конституційний Суд України Верховна Рада України; Закон від 13.07.2017 № 2136-VIII:

http://zakon3.rada.gov.ua/laws/show/2136-19/page; Проект Закону про Конституційний Суд України, 6427-

д від 07.06.2017, 6 сесія VIII скликання, website of the Verkhovna Rada of Ukraine:

http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=61971.

http://zakon3.rada.gov.ua/laws/show/2136-19/page

http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=61971

99

encouraged at the European level: in the PACE Resolution 1959 (2013) Strengthening

the institution of Ombudsman in Europe member states were once again encouraged

to establish a direct access for the ombudsperson to the Constitutional Court in order

to challenge the constitutionality of flawed legislation.

85. In this context, in general, the entitlement of the Commissioner to have a direct access

to the Constitutional Court is in line with the best European practices. The

Commissioner in Ukraine is granted even stronger position as he can apply to the

Constitutional Court not only regarding the issues of constitutionality of laws and

other legal acts. He is also entitled to request from the Constitutional Court the

official interpretation of the relevant provisions of the Constitution; this right is

particularly important to promote the progressive human rights standards as the matter

de lege ferenda, i.e. to set the guidelines for the future legislation and to improve the

existing practices by clarifying the constitutional standards.

86. However, there are certain flaws in the existing legal regulation that can be addressed

by the legislator or removed in practice, in order to make the use of the

Commissioner’s power to apply to the Constitutional Court more effective from the

standpoint of human rights protection. In this regard, the following recommendations

for the improvement of the existing legislation can be made.

87. First, as mentioned, the absence of limitations on the Commissioner’s right to apply

to the Constitutional Court may sometimes result in constitutional submissions by the

Commissioner on the issues that do not fall within their competence. This limitation

that the ombudspersons can apply to the Constitutional Court only on the matters

falling within their competence are either explicitly provided or established in practice

of majority of the European states. Although this kind of limitation is not explicitly

provided in the text of the Constitution of Ukraine, the Constitution can be interpreted

in the practice of the Constitutional Court by restricting the power of the

Commissioner to apply to the Constitutional Court only to the issues falling within the

competence of the Commissioner. It can also be set out in the Law on the

Constitutional Court of Ukraine, or in the Law of the Commissioner (the

aforementioned Articles 13(3) and 15).

88. Second, as mentioned, the existing legal regulation does not provide for any precise

time limit for the settlement of the constitutional justice cases by the Constitutional

Court. The new Law on the Constitutional Court of Ukraine provides some terms for

the decision on opening the proceedings (Article 61(4) – usually one month from the

appointment of the judge rapporteur) and the length of proceedings (Article 75(2) –

usually 6 months; Article 75(3) – one month for certain most important cases), but no

time limit for the announcement of final acts of the Court (judgments and

conclusions) is foreseen and that could create preconditions for the Court to continue

the practice of unforeseeable announcement of final acts when these acts can be

announced even a few years after the closure of the proceedings. Therefore, although

the establishment of this time limit is not typical for the majority of European states,

in order to establish the practice that the constitutional justice cases are settled without

undue delay, it could be proposed to establish a general time limit for the

announcement of the final acts of the Constitutional Court of Ukraine in the

proceedings.

89. Third, no order of priority for hearing the cases is established in the Constitutional

Court. That gives for the Court unlimited discretion to set its own order of hearing

that can be determined without any objective criteria. This can also result in undue

100

delays in consideration of cases. Although Article 75(3) of the new Law on the

Constitutional Court of Ukraine, which provides one month time limit for proceedings

in certain most important cases (conclusions on constitutionality of draft amendments

to the Constitution, requests of the President regarding specific acts of the Cabinet of

Ministers and the cases referred by the Senate or Grand Chamber of the Court), can be

seen as a basis for certain prioritisation of hearings, it does not necessarily include the

submissions of the Commissioner or the cases involving systemic problems of human

rights protection.

Therefore, it may also be recommended to supplement the new Law on the

Constitutional Court (or, as an alternative, the Regulations of the Court) with special

provisions regarding the priority of hearings, which can be harmonised with the

above-mentioned provisions of Article 75(3).

90. As was confirmed by the previous studies, challenging normative acts proves to be

very efficient in the Commissioner’s activities. Thus, normative control can be

considered as a key task to the Commissioner and a number of positive developments

over the past years on this matter is reassuring. It allows stepping back a little from

the ongoing individual complaints and thus solving legal issues in a systematic and

broader way. Under these circumstances, in setting the future direction, it is proposed

that the Commissioner should strengthen the dialogue not only with the Constitutional

Court but also with administrative courts, which are entrusted with normative control

of general legal acts.

91. Currently, the Commissioner is entitled to apply to administrative courts in order to

challenge normative (regulatory) legal acts if there is an interest of the person

concerned in bringing proceedings. According to Article 171(2) of the Code of

Administrative Judicial Procedure of Ukraine, the right to take action in order to

challenge a normative legal act shall apply to persons who are legitimately affected,

i.e. this act is applied to them or they are subject of the legal relationships, in which

this act will be applied28

. This is a model of so-called concrete judicial review of

regulatory acts. However, it does not seem to be justified to hold that the current legal

regulation allows for an abstract judicial review of regulatory acts and confers a right

to initiate this type of review on the Commissioner. Such an interpretation finds no

support in the wording of that provision29

. Nevertheless, there are no compelling

reasons, which would support a conclusion that the Commissioner’s right to apply to

courts shall be made depended on an individual complaint and adversely affected

legal interests of particular private parties.

92. Under these circumstances, it is recommended establishing that the Commissioner

shall have a direct right to take action in order to challenge regulatory legal acts

before administrative courts. Article 60(1) of the Code of Administrative Judicial

Procedure of Ukraine provides that the Commissioner shall apply to administrative

courts in accordance with the procedure established by law. To this end, in achieving

the harmonisation, Article 13 of the Law of the Commissioner could be supplemented

by a legal norm conferring the right to apply to administrative courts on the

Commissioner with regard to the legality of general rules. Similarly to the

applications to the Constitutional Court, the request to review the legality of certain

28

Право оскаржити нормативно-правовий акт мають особи, щодо яких його застосовано, а також особи,

які є суб’єктом правовідносин, у яких буде застосовано цей акт. 29

Even if such interpretation finds its background in the established case law, it still should be brought in line

with the wording of the law.

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regulatory legal acts raises similar main issue. The Commissioner’s right to challenge

regulatory legal acts before administrative courts shall be limited to the issues falling

directly into the competence of the institution.

93. This proposal is motivated by a set of reasons regarding in particular the systematic

approach to the proposed Commissioner’s role in promoting good administration and

the objectives to be reached in the sphere. First, the Commissioner has already a direct

access to the Constitution Court. It would be consistent to apply the same approach in

the sphere of legality of other regulatory acts. Second, having regard to the fact that

there is a system of state legal aid in place and the Commissioner shall be gradually

distancing himself from the role of being a legal representative, it is difficult to see

how the right to challenge regulatory legal acts would be efficiently implemented if

the legal regulation is not adjusted accordingly. Third, on a positive note, it should be

emphasized that under current legal regulation an administrative case concerning the

legality of regulatory acts shall be resolved within one month or, in exceptional cases,

within two months. Under these conditions, it would be regrettable if a remedy of this

kind remains under-utilised despite being very efficient in terms of time and its

effects.

3.3.2. Defence of Public Interest

94. As far as main principles relating to the Commissioner’s ability to initiate proceedings

before a court are concerned, it is also proposed that the Commissioner could be

entrusted to apply to courts specifically in the cases regarding the defence of public

interest (popularis actio). The objective of this proposal, together with a proposal

regarding the review of regulatory acts, is to establish a complete legal framework for

entitling the Commissioner to act independently, where revealed irregularities are

considered to be of a systemic character.

95. In determining the extent for the Commissioner’s right to apply to courts for

defending public interest, one should ensure that the legal remedy of this kind is not

duplicated by the duties of other state authorities. Therefore, the legal regulation shall

establish a right and not a duty of the Commissioner to apply to courts in order to

defend public interest where particular matter falls into the field of the competence of

other state authorities and they are capable to defend the public interest efficiently on

their own initiative. In no case the Commissioner shall replace administrative

authorities, on which the duty to defend public interest is placed by law. Therefore,

having established that certain legal proceedings are in progress and there is no

pressing need to intervene as a third person into litigation, the Commissioner shall

refuse to undertake remedies for the defence of public interest.

96. The other possible area of activity regarding the defence of public interest, which

could merit further consideration, is initiation of collective proceedings. It is also

worth noting that if the Commissioner opts to reinforce an active role in judicial

matters, the possibility to appear as amicus curiae shall be formalized accordingly in

the procedural law and the Law of the Commissioner. The expertise knowledge of the

Commissioner is in particularly relevant in cases regarding the defence of public

interest. Therefore, the right to defend public interest, which is also conferred on the

courts, could be implemented more efficiently if the Commissioner is entitled to

intervene into the undergoing proceedings regarding the defence of public interest and

to provide opinion regarding the matters under consideration.

102

97. In order to provide an adequate legal framework to implement the aims of the

ombudsperson institution, adopting legal provisions regarding the defence of public

interest before courts could contribute to enforcing human rights legislation

independently of individual complaints filed with the Commissioner. This, in turn,

could shift the Commissioner’s fragmented efforts in protecting individual interests to

cohesive and coordinated approach to implementation of strategic goals regarding

human rights protection.

3.3.3. Legal Representation of Vulnerable Groups before Courts

98. Currently, the Commissioner invests a lot in helping vulnerable people in order for

them to access legal and judicial remedies. Nevertheless, it is proposed to revise this

role for the following reasons. The Commissioner cannot act in isolation but it should

also not replace the prosecutors, legal representatives or providers of state legal aid.

Indeed, Ukraine has started to strengthen the legal aid service. Without a doubt, this

fact should reflect on the activities of the Commissioner.

99. The institutional framework of Ukrainian legal aid system consists of the Cabinet of

Ministers of Ukraine, the Ministry of Justice of Ukraine, the Coordination Centre for

Legal Aid Provision, Local Self-Government Authorities and subjects of free

secondary legal aid provision.

According to the data of 2016, the legal aid is accessible at:

- 1 Coordination Centre for Legal Aid Provision

- 548 Regional, Municipal or Local Legal Aid Centres

- 1 Legal Aid Call Centre

- 7 444 Movable Advisory Centres

- 1 371 Remote Consulting Points

Capacity of human resources consists of:

- 2 198 Legal aid system employees

- 5 062 Legal aid lawyers in the Registry

According to the Law on Free Legal Aid of the Republic of Ukraine every citizen of

Ukraine, a foreigner, a stateless person, including refugees, or other persons seeking

additional protection and certain categories of entities (Article 3) has the right to legal

aid.

The legal aid consists of primary legal aid and secondary legal aid (Article 2). Free

primary legal aid includes informing persons on their rights and freedoms, procedures

for their execution, their restoration in case of violation, and procedures for appealing

against decisions, actions or lack thereof by the state authorities, local self-

government authorities, and public officials. The right to free primary legal aid is

granted to all persons under the jurisdiction of Ukraine (Article 8). The providers of

free primary legal aid in Ukraine are executive authorities, local self-government

authorities, physical and legal entities of private legal practice, specialized

institutions. Executive authorities and local self-government authorities are obligated

to arrange personal reception of individuals by highly qualified employees providing

specific and clear interpretation of legal provisions and giving advice on human and

civil rights and freedoms, as well as their duties. Primary legal aid provider is obliged

to provide services within 30 calendar days from the day of receiving the application.

If the application only contains a query for respective legal information, such legal aid

shall be provided within 15 days of the date of receiving the application.

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Free secondary legal aid is a type of state guarantee that provides equal access to

justice for everyone (Article 13). Free secondary legal aid includes the following

types of legal services: 1) defence; 2) representation of the interests of persons in the

courts, other state agencies, self-government authorities, and versus other persons; 3)

drafting procedural documents. The right to secondary legal aid is conferred on

persons whose average monthly average income is lower than the two minimum

subsistence levels, disabled persons, orphaned children, internally displaced persons,

other vulnerable groups, persons against whom criminal procedure was initiated etc.

The providers of secondary legal aid in Ukraine are centres for granting free

secondary legal aid and lawyers included in the Registry of Lawyers that provide free

secondary legal aid.

For the provision of secondary legal aid, the Ministry of Justice has established

regional and local (regional, interregional, municipal, municipal regional,

interregional and regional municipal) centres for free secondary legal aid (Article 16).

The Centres are regional offices of the Coordination Centre of Free Legal Aid and are

established according to the needs of the corresponding administrative-territorial unit

and provision of access to the free secondary legal aid. According to Article 19 of the

Law on Free Legal Aid the Centre for free secondary legal aid shall take a decision

for the provision of legal aid within ten days from the day of receiving the application

for free secondary legal aid. The Centre for free secondary legal aid shall appoint the

defender immediately if the person concerned is detained.

In this context, it is interesting to point out the data of 2016 concerning legal aid

provision to suspected and accused persons in criminal proceedings, to detainees,

arrested and imprisoned individuals:

- 15 644 Cases of legal aid provision to detained criminal suspects

- 11 114 Cases of legal aid provision to persons under administrative detention or

arrest

- 50 475 Cases of defence by appointed legal aid lawyers

- 3 943 Legal aid provision to imprisoned persons

Statistics regarding legal aid provision in civil and administrative cases, as well as for

certain categories of victims and witnesses in criminal proceedings are as follows:

- 239 164 individuals who have been consulted at regional, municipal or local legal

aid Centres

- 34 126 individuals who received secondary legal aid

- 30 717 decisions to provide representation in court with appointment of lawyer

- 3 293 decisions to provide representation in court by jurists of Centres

- 6 699 persons referred to partner institutions and organizations for assistance

100. Having regard to the fact that the state legal aid scheme is in place, there is no

rationale for the Commissioner to act as a representative of the disadvantaged

members of the society. Seeking to reduce the workload of ombudsman institution

and enhancing effectiveness of its functioning, it is recommended to remove an

overlapping between Ukrainian legal aid system and Commissioner’s jurisdiction.

It is also recommended that the Commissioner exercised his authority in the sphere of

legal aid provision to the extent of abuse of power by and bureaucracy of officials or

other violations of human rights and freedoms. To this end, the legal framework

regarding the grounds of admissibility of the complaints, review criteria, grounds for

adopting particular kind of acts shall be improved.

104

101. If the Commissioner investigating particular complaint detects malpractice of legal

aid organizing and providing institutions in the field of legal aid provision, he may

give recommendations how to remedy the situation, escape malpractice and develop

good administrative practice at the particular institution and also provide added value

to the development of public administration in general. Working in such a manner the

Commissioner could focus on the main aim to protect a person’s right to good public

administration securing human rights and freedoms, to supervise fulfilment by state

authorities of their duty to properly serve the people.

Focusing on this issue, the main part of the Commissioner’s work should be devoted

for the monitoring and supervision of work of legal aid system institutions instead of

dealing with complaints or representing interests of applicants before courts. Legal

consultation and representation in court should be left to the relevant stakeholders in

the Ukraine legal aid system.

Performing his duty in such a way the Commissioner should monitor and make

assessment of accessibility to legal aid; should make assessment of actions or

inactions of officials of the institutions involved in the system of legal aid; should

analyse whether decisions on legal aid provision meet the requirements for

administrative acts; should analyse whether institutions taking decisions on legal aid

provision do not create unreasonable barriers to get legal aid, whether their request to

submit additional information or documents are reasoned, legally grounded and

motivated, whether the final decision has been taken after expiration of period for

submission of requested information or documents; should make assessment and

could control the legal aid quality assessment of actions or inactions of legal aid

organizing institutions; should make assessment whether institution makes decisions

in the framework of their mandate; should control whether the institutions involved in

the system of legal aid provide answers to the applicant in due time; should make

assessment whether the personnel of decisions making institution do not work in a

bureaucratic manner or do not misuse power or infringe the rights and freedoms of

applicant in other manner.

Conversely, when the circumstances indicated in the complaint are outside the

Commissioner’s investigative jurisdiction or the Commissioner concludes that the

investigation of the complaint in another institution or agency would be more suitable

or expedient, the complaints should not be investigated. The Commissioner shall

focus on the monitoring instead of direct review of the complaints.

3.3.4. Intervention into Judicial Proceedings

102. Strengthening the rule of law, Ukraine undergoes significant judicial reform and this

includes improving the functioning of competent bodies, which are entitled to assess

the actions of judges or their inaction. Under these circumstances, it is essential that

the Commissioner’s activities within judicial sphere enter into a transitional mode and

take certain measures to strengthen the monitoring and not the supervisory role.

103. It is a well-established international standard and practice in Europe that the

ombudspersons are prevented from intervening into judicial proceedings and, above

all, questioning the soundness of court decisions. In a majority of cases in Europe, the

ombudspersons are not authorized to initiate proceedings regarding the judicial role of

courts. Therefore, in most of the cases if judicial proceedings are in progress the

ombudspersons declare the complaint inadmissible or terminate its consideration.

Similarly, the ombudspersons do not qualify as public authorities for the purposes of

105

judicial review and their reports are not subject to any annulment procedures before

courts.

104. In relation to the legal regulation in Ukraine, it can be maintained that there is

considerable room to adapt to the international environment and reflect on the

development of equivalent human rights institutions’ mandate within the sphere of

justice since the existing legal regulation provides for extensive powers to intervene in

judicial proceedings. In this respect, reference should in particular be made to Article

13(10)(2) of the Law of the Commissioner, which essentially establishes that the

Commissioner is entitled to participate in any proceedings at any stage of the trial

irrespective of the fact whether particular proceedings were started upon the

Commissioner’s initiative. Moreover, as provided for under Article 13(10)(3) of the

Law, the Commissioner is authorised to initiate a review of judgments of courts at all

times. These procedural rights are not limited to bringing the proceedings but also

extends to monitoring of court activities. That is to attend sessions of higher

specialized courts of Ukraine (Article 13(2) of the Law) and court sessions of all

instances, including court sessions held behind closed doors, if legal person in whose

interest the judicial proceedings have been ruled to be held behind closed doors, has

given consent (Article 13(9) of the Law). Legal uncertainty how these rights are

implemented in practice is created by the legal provisions of the Law establishing that

the Commissioner shall not consider complaints on the same issues as already brought

before courts (Article 17(4) of the Law). Nevertheless, the current legal framework

formally does not limit the Commissioner’s mandate to the issues regarding human

rights protection.

105. Under these circumstances, the existing legal regulation shall be revised in order to

prevent any risks of legal uncertainty and to define the Commissioner’s competence

on the matter in line with the prevailing international practices in Europe. In general,

it would be preferable to give the Commissioner the power to make general

recommendations about the functioning of the courts (as regards administration and

management of the courts) and exclude or limit the power to interfere into individual

proceedings. To this end, it is recommended to amend the legal provisions of the

Law of the Commissioner, specifically Article 13(10)(2) and (3). In this context,

excluding the right of the Commissioner to submit information for a disciplinary

proceedings regarding the actions of judges of the Supreme Court of Ukraine and

higher specialized courts on the basis of the Law № 192-VIII of 12.02.201530

was a

positive amendment aimed at restoring the balance of powers among state authorities.

Regarding the procedural rights conferred on the Commissioner, which permit the

Commissioner to intervene into any judicial proceedings, two approaches can be

taken to address the issue:

1) Restrictive approach concerning the supervision of judiciary shall mean a

withdrawal of legal norms, which establish essentially unlimited possibility to

intervene in any judicial proceedings. By ensuring clear boundaries regarding the

relationship between the Commissioner and courts, this option would attain better

respect for the rule of law, including the balance of institutional powers and a full

compliance with international standards and prevailing European practices.

2) A less stringent approach would be to amend the legislation accordingly to enable

the Commissioner to act within the sphere of judicial activities only in cases that

30

У Законі України "Про Вищу раду юстиції". Online Access: http://zakon2.rada.gov.ua/laws/show/192-

19/paran470#n470.

http://zakon2.rada.gov.ua/laws/show/22/98-%D0%B2%D1%80



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raise issues affecting human rights and freedoms from a viewpoint of functioning

of the courts or procedural law. In the latter case, it would be appropriate to

establish a legal regulation that limits the Commissioner’s mandate to the

supervision of judicial proceedings of undue delay or evident abuse of authority.

This option is suggested bearing in mind the peculiarities of the initial model of the

ombudsperson’s institution opted as suitable to Ukraine and having regard to the

undergoing transitional period leading to completion of judicial reforms.

107

3.4. Mandate of the Commissioner in Particular Areas of Law

3.4.1. The Mandate of the Ombudspersons in the Sphere of Antidiscrimination

106. The mandate of the Commissioner in the field of gender equality is differently

stipulated in two laws, namely the Law on Ensuring Equal Rights and Opportunities

of Women and Men of 2005 and the Law on Principles of Prevention and Combating

Discrimination of 2013, which is aimed at banning discrimination on numerous

grounds (including sex). The latter piece of legislation (the Law on Principles of

Prevention and Combating Discrimination) is much more detailed with regard to the

powers of the Commissioner in the field of (gender) equality. The inconsistency of

both acts intended for combating sex discrimination shall be addressed eventually. It

is recommended considering two options:

1) to integrate the Law of 2005 on gender equality into the more general

antidiscrimination Law of 2013 and to provide a single set of Articles on the

mandate of the Commissioner instead of currently existing two articles in two

different acts (Article 9 of the Law of 2005 and Article 10 of the Law of 2013)31

;

or

2) to continue with the practice of application of double legislation of Anti-

Discrimination Act and a Gender Equality Act32

with an attempt to reconcile the

texts and competence provisions of both laws33

.

107. Having regard to the special character of the covered relationship and political and

social-legal importance, it is recommended that the provisions of the equality

legislation and not the Law of the Commissioner (see above) further contain the

provisions with relation to the equality-specific competences of the Commissioner.

108. If the approach to elaborate the Law on Principles of Prevention and Combating

Discrimination of 2013 in order to address the enhanced competences of the

Commissioner (see above) is taken, the following recommendations shall be

discussed:

1) the EU antidiscrimination directives require national equality body to have at

least the following competences (Article 20(2) of the Directive 2006/5434

):

a. to provide individual assistance to victims of discrimination in pursuing their

complaints about discrimination;

b. to conduct independent surveys concerning discrimination;

c. to publish independent reports and make recommendations on any issue

relating to such discrimination35

.

Even though there could be minor discrepancies as regards the language usage or

national practice, it is not certain that all competences are exactly defined by Article

31

As this is a case for Germany, Austria, Czech Republic, Hungary, Ireland, Poland, Romania, Slovakia,

Slovenia, Sweden, and the United Kingdom. 32

For example, Belgium, Bulgaria, Croatia, Denmark, Finland, Greece, Lithuania, Montenegro, the

Netherlands, Romania, and Serbia. 33

As this was done, for instance, in Lithuania by the legislative amendments of 8 November 2017, which,

instead of number of previous articles, introduced a short reference that the compliance of the Law on Equal

Opportunities for Men and Women is ensured by the Equal Opportunities Ombudsperson who acts in

accordance with the Law on Equal Opportunities. 34

Identically Article 13 of the Directive 2000/43 of 29 June 2000 implementing the principle of equal treatment

between persons irrespective of racial or ethnic origin. 35

The fourth type of competence related to the right of exchange available information with corresponding

European bodies such as any future European Institute for Gender Equality is not relevant here.

108

10 of the Law on Principles of Prevention and Combating Discrimination of 2013 or

by Article 9 of the Law on Ensuring Equal Rights and Opportunities of Women and

Men of 2005. It is strongly recommended to include in the mandate of the

Commissioner the duty to “provide individual assistance to victims of discrimination

in pursuing their complaints about discrimination” as it differs from the existing

competences to investigate the complaints or the right to give the opinion to the court.

It seems that the existing competence of monitoring and summarizing the results of

the application of the principle of equal treatment does not necessarily involve the

required competence “to conduct independent surveys concerning discrimination”,

which could be defined more individually or oriented towards specific subject matter

compared to the current provisions set out in Article 10(1)(3) and 10(1)(5) of the Law

of 2013. For the sake of clarity and full-compliance with EU-law, it is recommended

to follow the wording of Article 20 of the Directive 2006/54 and to simplify Article

10(1)(3) and 10(1)(5) of the Law of 2013.

2) The compilation of powers provided by Article 10 of the Law on Principles of

Prevention and Combating Discrimination of 2013 is not sufficiently clear as

regards the competences in the area of defence of rights. In accordance to those

provisions, the Commissioner:

a. provides findings in discrimination cases at the request of the court (“надає

висновки у справах про дискримінацію за зверненням суду”) (Article

10(1)(7) of the Law of 2013);

b. presents in person or via representative (“та особисто або через свого

представника”) the case to the court (“звертається до суду із заявами”)

in order to protect the public interest and in person or through a

representative involved in the trial in cases and order established by law

(Article 10(1)(2) of the Law of 2013);

c. considers individual or group complaints (“розглядає звернення”) (Article

10(1)(4) of the Law of 2013).

The draft Law No 3501 of 20 November 2015 focuses on the further extension of the

competences of the Commissioner and tries (at least partially) to solve the identified

problem. The suggested competences shall include:

- the right of the Commissioner to issue binding requirements (“видає

обов’язкові для виконання вимоги (приписи)”) (instructions) to eliminate

violations of equality legislation (Article 10(1)(6) of the draft Law), and

- the right to draw the protocols for the further imposition of administrative

sanctions (“складає протоколи про притягнення до адміністративної

відповідальності та направляє їх до суду”) (Article 10(1)(7) of the draft

Law).

If adopted, the Commissioner’s competence would become multi-layered:

- individual assistance to victims of discrimination in pursuing their

complaints about discrimination (required by the Directive – new

recommendation);

- the role of amicus curiae (current Article 10(1)(7) of the Law of 2013);

- the representation of protected groups (public interests) before courts (current

Article 10(1)(2) of the Law of 2013);

- the investigation of individual complaints (current Article 10(1)(4) of the

Law of 2013); which is (as proposed by the draft Law No 3501 of 20

109

November 2015) supported36

by a new right to issue binding requirements

and by the new right to draw administrative protocols.

It is recommended to proceed with the planed legislative changes as they create

strong and solid basis for tribunal-type equality body.

3) It is also recommended to create a minimal set of requirements for the

complaints procedure before the Commissioner. First, in the Law of 2013 the

legislator can regulate such issues as formal requirements of the complaint, time

limits, length of investigation, types of decisions. The binding requirements to the

third parties (novelty of the draft Law No 3501 of 20 November 2015) can be

also regulated in a more precise way as, if challenged by the other party, they can

end up in the litigation procedure. It is also recommended to include into the set

of the competences the Commissioner’s right to initiate the investigation of

alleged discrimination case on its own initiative.

4) The whole set of covered grounds of prohibited discrimination, the variety of

covered relationships, the number of inhabitants, the territory of the country and

the broad mandate of the Commissioner create doubts whether the broad

competences will always be accompanied by adequate human, organisational and

financial resources. The mandate of the Commissioner would be compromised in

political terms because of weak correlation between ambitious tasks and

competences of the Commissioner, on one side, and lack of resources, on the

other. The allowed margin of appreciation of the public institution is a matter of

legal culture of the given country. Therefore, it is advisable that Article 10 of the

Law of 2013 includes a general provision on the personal discretion of the

Commissioner. For example, the provision that “<…> the Commissioner shall

decide on the involvement of the Commissioner’s Office in the matter of <…>

independently by taking into regard the gravity of the violation, all circumstances

of the case, the accessibility of alternative means of defence of rights” seems to

be appropriate in order to eliminate the legal constraints and challenges of those

who may wish to challenge administrative decisions of the Commissioner. The

judicial control of the Commissioner’s decision would be provided by the

administrative law provisions.

5) The Law on Principles of Prevention and Combating Discrimination of 2013 does

not explicitly address the rules or internal procedures related to the

Commissioner’s principal competences, such as investigation of complaints,

exercise of the individual legal assistance or the role of amicus curiae, the

presentation in the court of protected groups. The more detailed competence or

some procedural particularities probably can be found within the legal framework

setting out rules for the exercise of the control over the observance of human and

civil rights and freedoms (if there are horizontal provisions within the Law of the

Commissioner). However, they could be not sustainable in the longer perspective

where the specificity of the matter increases and possible legal challenges of the

Commissioner’s competences arise. Therefore, it is recommended to include in

the Law of the Commissioner a provision that the Commissioner approves the

36

The supportive character would be more visible if the new Paragraphs would be placed as Paragraphs 5 and 6

instead of 6 and 7.

110

rules on investigation of individual complaints. The territorial, administrative

particularities shall be taken into account when drafting those rules.

111

3.4.2. The Special Mandate of the Commissioner regarding Freedom of Information and the

Right to Data Protection

109. The institution of the Ukrainian Parliament Commissioner for Human Rights is

established by the Law of Ukraine on the Ukrainian Parliament Commissioner for

Human Rights. The task of the Commissioner is defined in Article 1 of this law as the

permanent exercise of parliamentary control over the observance of constitutional

human and citizens' rights and freedoms and the protection of every individual's rights

on the territory of Ukraine and within its jurisdiction. This competence is a general

one, not limited to control in certain areas of state activities or concerning certain

topics; a very relevant limitation is, however, intrinsic in the nature of “parliamentary

control”, which would have to concentrate on state functions.

110. The amount of special tasks vested into the Commissioner, because of his status as an

independent authority, has been constantly enlarged by special laws and policies.

Control over the observance of legislation on protection of personal data has been

explicitly entrusted to the Commissioner by Article 22 of the Law on Personal Data

Protection. Parliamentary control37

over the observance of the right to access to public

information was explicitly made a competence of the Commissioner by Article 3 of

the Law on Access to Public Information. The following recommendations deal

exclusively with the present competences of the Commissioner in the sphere of data

protection and access to public information.

A. Recommendations concerning the Institutional Status of the Commissioner

111. The Commissioner is an independent institution established for the purpose of

exercising parliamentary control. This task is focused on supervising public

institutions with regard to their obeying human rights standards.

The task of a data protection supervisor is not specifically focussed on the proper

functioning of public administration (and the judiciary); it is meant to deal with one

specific aspect of modern life that is the automated processing of personal data

wherever it applies, be it in the public or private sector. The means and procedures for

executing the task of data protection supervision will therefore vary considerably

from those used to safeguard good governance, particularly also concerning the way

how infringements are to be prevented and/or sanctioned.

Hence, in Ukraine the idea has been discussed repeatedly, whether the

Commissioner’s functions targeted at promoting good administration should not be

separated from the function of supervising data processing which has the purpose of

safeguarding adherence to the right to data protection in all sectors, regardless of

whether processing is taking place in the public or in the private sector.

European examples show that the special tasks of a data protection supervisory

authority - sometimes combined with the function of supervising ‘access to public

information’ - are entrusted to special institutions, which are not established in close

connection with parliaments but rather as independent administrative bodies. It is true

that it took quite a long time to develop a standard for how to organise supervision in

37

Article 3(5) of the Law discerns between different kinds of control: parliamentary, civil and state control; the

Commissioner is in charge of parliamentary control.

112

the area of data protection.38

In European Union law, where the existence of such

bodies was obligatory since 1995, a precise concept of their tasks and powers and

consequently for their organisation has only recently been developed in Chapter VI of

the General Data Protection Regulation which will come into force by May 25th

2018.

These developments show that the trend goes towards establishing special

organizations, evidently because of the growing complexity of the problems involved

in the protection of the individual against the dangers of electronic data processing in

times of general and complete connectivity and concentration of operational power in

the hands of a few private ‘giants’.

112. Under these circumstances, it is recommended to extract the tasks of a data

protection supervisory authority from the present amount of tasks of the

Parliamentary Commissioner for Human Rights and establishing a new independent

data protection authority. As to the necessary tasks and powers the new model

contained in Chapter VI of the EU General Data Protection Regulation might be

useful as an example which would need, however, adaptation to the Ukrainian

situation.

Realization of this recommendation would require the following changes in the legal

framework of Ukraine:

- Alteration of Article 22 (1)(1) and Article 23 of the Law on Protection of Personal

Data and, consequentially, of all provisions of the Law where the Commissioner

is mentioned as competent authority (e.g. Article 2, Article 4(1), last indent,

Article 8 (2)(8), Article 9, Article 18(1), Article 20 etc);

- Establishing the data protection supervisory authority as an independent authority

within the executive state power under the Ukrainian Constitution.

113. Should the recommendation to establish a new independent data protection authority

be taken into serious consideration, it stands to reason that also the competence to

supervise access to information should be attributed in a new way. As is shown in the

reports 1.1 and 1.2, the task to take care of access to public information is sometimes

combined with the function of a data protection supervisory authority. This is

evidently a workable solution, taken on by several states in Europe and overseas.

Whether it is advantageous to have a separate institution for access to information or

whether it is better to join this task with the tasks of another independent institution,

for instance that of a data protection supervisory authority, will mainly depend:

- on the amount of cases, which have to be covered per year;

- on the legal way, in which such cases are to be dealt with according to national

law;

- and also on the amount of controversy, which these cases evoke in the society of a

country.

Statistics on the workload show that access to information would justify the creation

of a separate institution. On the other hand, from the point of view of the citizen, the

means for assuring observance of the right to access are fairly similar to those used

for enforcing data protection. Thus, it seems advantageous to entrust an institution

38

Convention 108 does not even mention the special institutions of ‘supervisory bodies’ – it took until 2001,

when the Additional Protocol to Convention 108 was adopted, to have such bodies recognized as essential for

providing efficient data protection.

113

with supervising access, which has great experience in administering these means, as

for instance a data protection supervisory authority. As concerns the controversial

nature of the topics of access to information on the one hand and data protection on

the other hand, it stands to reason that joining the tasks might favour public

acceptance of decisions as they will usually be well balanced after having had regard

to all foreseeable arguments pro and contra.

114. If a new and specialized independent institution is created for the purpose of acting as

data protection supervisory authority, it is also recommended to entrust it with the

task of control39

over the observance of the right to access to public information.

Realization of this recommendation would require the following changes in the legal

framework of Ukraine, i.e. the Law on Access to Public Information shall be revised

in terms of the following legal provisions:

- Article 3 entrusting the Commissioner with the “parliamentary control”;

- Article 11 containing a list of the parties involved;

- Article 16 about the exercise of the parliamentary control and Article 17

concerning the procedure;

- Chapter V on the procedures for appealing against information providers’

decisions, actions, or lack thereof, but only concerning the denomination of the

competent authority deciding about the appeal.

B. Recommendations concerning the Ukrainian Legal Framework for Data Protection

115. The rules of European data protection law are presently spelt out in new forms,

although upholding the well-established principles40

: In the European Union the new

General Data Protection Regulation will come into force on May 25th

of 2018, in the

Council of Europe the Modernisation of Convention 10841

has been finalised as

concerns the text and awaits adoption. One of the goals mentioned in the EU-Ukraine

Association Agreement is to bring data protection in the Ukraine to adequacy level

when compared to the highest European and international standards.

116. Adaptation to the updated form of European data protection standards will make it

necessary to revise the Ukrainian legal framework concerning data protection. Apart

from possibly establishing a new data protection authority it will also be necessary to

make adjustments in the substance of data protection law. The data protection legal

framework in Ukraine consists mainly of the Law of Ukraine on Protection of

Personal Data, from 2014, and of several decrees of the Ukrainian Parliament

Commissioner for Human Rights, for instance concerning mandatory notification for

high risk processing or concerning the exercise of control by the Commissioner over

the Observance of legislation on personal data protection.

117. If this legal framework shall be brought in line with the new EU Data Protection

Regime a complete overhaul of the existing data protection law seems advisable as it

would provide the opportunity to bring the structure and the terminology of the legal

provisions closer to the new EU data protection law. (There are concepts in the

39

This control could then no longer be denominated as “parliamentary” control – it would, perhaps rather be

part of what Article 3 of the Law on access to public information calls “state control”. 40

The GDPR does not deny or contradict the rules set up in the Directive 95/46/EC, but develops, enhances and

also clarifies the existing rules in the light of technological progress, data digitalisation and globalisation 41

The text is available in Council of Europe Document T-PD(2012)4Rev3_en. It seems well capable of again

bringing in line the standards within Coe-law and EU law

114

Ukrainian data protection law which are entirely foreign to EU data protection law,

such as “classified information” (Article 5 (2)), or “personal data access procedure by

third parties” (Article 16)).

118. Therefore, it is recommended to draft a new Law on the Protection of Personal

Data. This would mean in particular to:

1) revise the definitions; e.g. the definition of “personal data” is – at least in the

translation – Inadequate;

2) join the provisions on the “subjects of relations connected to personal data”

(Articles 2 and 4) with the definitions in Article 2:

- Article 10 (1) should also be added to the definitions;

- The same applies to Articles 12–15: the rules for collection, accumulation,

dissemination, disclosure etc. are the same as for “processing” as such;

- Rules on deletion (destruction, Article 15) of data are usually provided as a

special principle of data protection (which should altogether be contained in

Article 6) and also in provisions concerning the right of the data subjects to

have data deleted (that would be in Article 8).

3) abolish the concept of “classified information” (Article 5): under European data

protection standards all personal data are protected; they may be used only if, in a

concrete case, an overriding legal interest in their use can be proved; what is an

overriding legal interest for using data is finally regulated in Article 7 of Directive

95/46, respectively in Article 6 GDPR, should be finally regulated in Article 11 of

the Ukrainian Law on the Protection of Personal Data;

4) abolish rules on a special access procedure for third parties (Article 16); Article

19(2) sounds as if it was thinkable that data are sold to third parties? That would

be blatantly illegal according to European data protection standards. An

unimpeded and free access to personal data for authorities within their mandate

(Article 19(4)) does also not comply with European data protection standards;

5) find a better structure for presenting the preconditions for processing in

compliance with the law:

- the principles (limit the present Article 6 to true principles and make it a new

Article 5 after abolishing “classified information”);

- then name the general legal bases of processing (Article 11 should be

changed to a new Article 6); include “disclosure” (Article 10(2) last

sentence), as this is only a special form of processing;

- then name the special legal bases for sensitive data in Article 7.

6) Bring the “rights of the data subjects” (Article 8) up to the latest standard,

concerning terminology and content (e.g. concerning the “right to information” or

the “right to object” and “the right to have data deleted”):

- introduce the new “right to data portability” into the Ukrainian legal

framework;

- Article 20 (rectification) should be fused with Article 8;

115

- Article 21 should be fused with the right to information in Article 8; the

notification obligations under Article 22 (3) seem unjustifiably broad – it

would at least need adding “unless he has this information already”;

- Concise and comprehensive rules are needed for the procedure of exercising

a data subject’s right vis à vis a controller especially also in the private

sector! (e.g. what is meant to be “postponement”? There should be an explicit

time limit for answering to a request; or: what is the necessary content of an

answer to a request for access by the data subject?)

7) List the special obligations of controllers42

:

At present:

- Article 9 (notification of processing to the DP authority): time may not be ripe yet

in Ukraine for exchanging this system in favour of “impact (self-) assessment” by

controllers; the notification system also takes risk into consideration;

- Article 24 contains elements of the controller’s obligation to provide data

security43

but also elements which relate to the existence of a data protection

officer. Both topics could be regulated in more detail and clarity.

In future:

- A clear and comprehensive statement about the accountability of the controller is

needed including responsibility for data security;

- the obligation to notify data breaches (Art. 43 and 44 GDPR) should be added;

- an obligation to have regard to data protection by design and by default (Article

25 GDPR) should be added;

- an explicit obligation for controllers and processors to cooperate with the data

protection authority might be useful (comparable to Article 31 GDPR).

8) the topic of certification (Article 42 and 43 GDPR) is not yet dealt with in the

Ukrainian Law;

9) the relationship between controller and processor should be regulated more

extensively – at present there is only Article 4 (4) and (5);

10) transborder data flow: provisions are missing on how a controller of personal data

can provide “relevant guarantees of non-interference in private and family life of

the personal data subject” in case of transborder data flow – contractual clauses

and binding corporate rules should be mentioned and defined;

11) The Law on Protection of Data does not contain any provisions on what is an

infringement which triggers fines. Having some provision in the Law on Citizens’

Appeals is not enough, as data protection infringements can be found by the

authority also outside a complaint and should then be nevertheless eligible for

fines.

42

The translation available in the Internet contains in Article 24 several references to the “possessors of data” -

is this just an error and is it meant to be “processor”? 43

Mentioning third parties in this context is unusual.

116

C. Recommendations concerning the Ukrainian Legal framework for Right of Access

to Information

119. The right of access to information and/or official documents held by public authorities

all over Europe is recognised as a self-standing right aimed at reinforcing

transparency in the conduct of public affairs. States recognize that genuine advocacy

of improved public administration and fight against corruption must entail

transparency in the work of public authorities. The right to seek and receive

information is also seen as an essential element of the right to freedom of expression,

which encompasses the general right of the public to have access to information of

public interest, the right of individuals to seek information concerning themselves that

may affect their individual rights and the right of the media to access information44

.

120. The right to seek information is expressly guaranteed by Article 10 of the ECHR,

Article 11 of the EU Charter of Fundamental Rights, Article 19 of the 1966

International Covenant on Civil and Political Rights, as well as Article 19 of the UN

Universal Declaration. The adoption in 2009 of the Council of Europe Convention on

Access to Official Documents45

(still ratified just by few states) confirms a continuous

evolution towards the recognition of the State’s obligation to provide access to public

information. Furthermore, in the EU context, Article 42 of the European Union’s

Charter of Fundamental Rights as well as Regulation (EC) No. 1049/2001 of the

European Parliament and of the Council of 30 May 2001 regarding public access to

European Parliament, Council and Commission documents guarantee to citizens a

right of access to documents held by the EU institutions.

121. In Ukraine, the right of access to information is regulated by the Law on Access to

Public Information. Welcoming the existence of a separate and detailed law, the

expert team, however, considers that the Law should be updated bringing it closer to

the standards of international instruments mentioned above as well as other standards

common to European states. Below, certain areas within the ambit of the Law are

discussed in more detail offering recommendations as to possible improvement.

1) Commissioner’s tasks in relation to supervision of the right to access public

documents

122. Under Article 17(1) of the Law on Access to Public Information (Control over the

access to public information) parliamentary control over the observance of human

rights to access to information is carried out by the Ukrainian Parliament

Commissioner for Human Rights, temporary investigating commissions of the

Verkhovna Rada of Ukraine, people’s deputies of Ukraine. Under Article 17(3) state

control over the provision of access to information by information processors is

carried out in accordance with the law.

123. As it was noted in the Report prepared under Activity 1.1 (Section III.4.2. The Right

to Access Public Information), under current legal regulation it is rather difficult to

describe how the Commissioner’s powers in the field of access to public information

relate to the competence of other state institutions, moreover, it was suggested

removing certain powers, which are now assigned to the Commissioner.

44

See, Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom

of opinion and expression to the General Assembly on the right to access information, published on 4 September

2013 (A/68/362) 45

https://rm.coe.int/1680084826

117

This in particular relates to the Commissioner’s right to draw up a protocol in cases of

breach of the right to access to public information. Later, this protocol might result in

administrative sanctions (Article 188-40 of the Code of Administrative Offenses of

Ukraine, establishing that failure to comply with legal requirements of the Ukrainian

Parliament Commissioner for Human Rights entails a penalty for officials and

entrepreneurs in the amount from 100 to 200 untaxed minimum incomes of citizens;

and Article 212-3 of the Code, which specifies fines for the violation of the right to

information). The question which was raised by the experts is why this right is

delegated to body exercising parliamentary control over the observance of the right to

access to public information. It was considered that it should better be removed from

the mandate of the Commissioner.

124. The experts suggest that a following approach should be taken. Firstly, according

to the model suggested by the experts (see Section 3.1. Review of Administrative

Actions of this Report), the Commissioner would firstly have a power to issue

recommendation on improvement of situation (подадня) in the area of access to

public information and, secondly, in case the recommendations are not fulfilled,

the Commissioner should have a power to issue administrative act with

administrative sanctions in it. Accordingly, it is suggested that the right of the

Commissioner to issue administrative protocol (Протокол про адміністративне

правопорушення) is removed and the rules on liability are established in the Law

on Access to Public Information.

2) Regarding structure of the Ukrainian Law on Access to Public Information

125. The structure of the Ukrainian Law on Access to Public Information could be

improved. The law starts with general provisions (Section I), then regulates procedure

of access to public information (Section II), while many definitions, beneficiaries and

the scope of the law are contained only in Section III. This makes it hard to use and

understand the law.

126. The Ukrainian Law on Access to Public Information should be re-structured. It is

recommended that the law started by defining its purpose, principles, defining

beneficiaries and scope of its application (listing institutions/bodies, to whom this law

applies). Then the definitions should be presented (document, applicant, publication

of document, etc.). A special section could also be dedicated to the exceptions (when

institutions may refuse access to a document – information with restricted access,

confidential, secret information, etc.) and treatment of sensitive documents. Later on,

the law should continue with rules on submitting and processing applications to

access to public documents and appeal procedure.

3) The reuse of public information

127. The Ukrainian Law on Access to Public Information is very brief about the reuse of

public information. However, during the meetings the representatives of the

Commissioner have identified, that it is common that information received is used for

other purposes from those to which the information was initially meant, causing

questions as to the legality of the reuse as well as issues on personal data protection. It

should be noted that guidelines for such amendment of the law could be found in

European Directive on Reuse of Public Sector Information (2013/37/EU)46

.

46

See also 2014/C 240/01 “Guidelines on recommended standard licences, datasets and charging for the re-use

of documents”. It should be noted that the Directive focuses on the economic aspects of re-use of information

118

128. Thus, it is recommended establishing a legislative framework for open data and

reuse of public sector information (mirroring the provisions of the European Directive

on Reuse of Public Sector Information). It could be incorporated as a separate section

in the Ukrainian Law on Access to Public Information.

4) Means of providing access to information

129. Article 5 of the Ukrainian Law on Access to Public Information (“Providing access to

information”) establishes that access to information is ensured by: (i) systematic and

prompt publication of information and (ii) provision of information on the requests for

information. As to proactive publication of information, the law states that this might

be done in official publications; on official web-sites in the internet; on the unified

state web-portal of open data; at the information stands; in any other way. During the

meetings, the representatives of the Commissioner have identified that not all state

institutions and bodies, especially in regions have their webpages.

This is not in line with general European trend, where having a webpage is often seen

as a duty of state institutions or bodies (for example, in Lithuania there is a special

law establishing such duty and listing requirements for such webpages47

). Having

constantly updated webpages enable citizens to exercise their right to access to public

information more properly and efficiently.

130. Under these circumstances, it is recommended to supplement Article 5 of the

Ukrainian Law on Access to Public Information by establishing a duty of state and

municipal institutions and other bodies to have and regularly update their webpage

(duty of active publishing of public information by the institutions). In addition, a

separate legal act could be drafted by the government setting the requirements for

such webpages (or amending the existing Article 15 of the Law).

131. In order to reduce the number of access to information requests for information that is

already available on the websites of public institutions, the Ukrainian Law on Access

to Public Information should be supplemented with the provision stating, that in case

the requested information is published online, only reference to it should be provided

by the requested institution.

5) Time limit for consideration of requests for information

132. In accordance with Article 20 of the Ukrainian Law on Access to Public Information,

the information processor shall give a response to the request for information no later

than in five working days from the date of the receipt of the request. This is a very

short time and it might be very problematic for institutions/bodies to respond so

promptly. In Lithuania, for example, the law allows 20 working days for an institution

to handle the request, while the EU regulation in this area48

allows 15 working days

for this purpose. In exceptional cases (in the event of an application relating to a very

long document or to a very large number of documents) the time limit may be

extended (plus 20 days in Lithuania, plus 15 days for EU institutions).

rather than on the access of citizens to information. It encourages to make as much information available for re-

use as possible. 47

(in Lithuanian) Dėl Bendrųjų reikalavimų valstybės ir savivaldybių institucijų ir įstaigų interneto svetainėms

aprašo patvirtinimo. Valstybės žinios, 2003-04-24, Nr. 38-1739 48

Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding

public access to European Parliament, Council and Commission documents, Article 7.

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133. Thus, the Ukrainian Law on Access to Public Information should be amended to

establish more reasonable time limits to handle requests for information.

6) Costs of the provision of information

134. The Article 21 of the Ukrainian Law on Access to Public Information states that

information upon request is provided free of charge. However, if the reply to the

request for information involves making copies of documents in volume more than 10

pages, requester shall reimburse the actual costs of copying and printing. It should be

noted that such provision does not provide any possibility to refuse the repeated

requests from the same subject and allows to receive much more pages by submitting

separate requests.

135. One should consider amending the Ukrainian Law on Access to Public Information to

limit the abuse of right by submitting repeated requests and thus avoiding payment for

printing/copying. In addition, it is suggested including in the law a provision stating

that as much as possible priority should be given to provision of information using

internet and electronic resources.

7) Limitations to access to information

136. The Ukrainian law does not provide the sufficient mechanisms to deal with frivolous

or vexatious requests, this also applies to the Commissioner’s Office. The

comparative analysis on dealing with this question in other states was performed in

the Report prepared under the Activity 2.1.3.

137. Article 22 of the Ukrainian Law on Access to Public Information should be

supplemented to allow authority to decline to process requests that are frivolous or

vexatious or when it is impossible to clearly identify the person submitting request.

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Key Recommendations and Proposals

As stated above, this report essentially reflects general legal concerns and recommends

establishing or further strengthening, as the case may be, a coherent and comprehensive

framework for the legal regulation of the Commissioner’s activities. The following

recommendations and proposals seek to address the legal issues encountered by the

Commissioner’s institution and provide advice and guidance in the form of particular

suggestions on how to amend the existing legal regulation to bring it more closely in line with

European standards. The proposals made in this document are by no means exhaustive. Nor

are they intended to determine the only way forward to strengthen the Apparatus of the

Commissioner. Therefore, the following recommendations and proposals are subject to

further revision if this proves necessary following the upcoming stakeholder consultations

and discussions.

PROPOSAL NUMBER 1 – Promotion of the Right to Good Administration

1. It is recommended to establish in the Law of the Commissioner that the promotion of the

right to good administration is one of the fundamental functions of the Commissioner. In

doing so, it is proposed to:

1.1. supplement the legal provisions of the Law of the Commissioner, which describe the

purposes of the parliamentary control exercised by the Commissioner, and to include

the additional purpose in Article 3: “8) to promote and protect a person’s right to

good public administration thereby contributing to securing human rights and

freedoms and to supervise fulfilment by state authorities of their duty to properly

serve the people”;

1.2. incorporate the right to good administration into national legislation, stating at least a

minimum standard, based on definition in Article 41 of the Charter of Fundamental

Rights of the European Union;

1.3. adopt a Code of Good Administrative Behaviour, which provides guidance on

practical steps towards greater effectiveness, transparency and accountability of the

state authorities.

PROPOSAL NUMBER 2 – Strengthening the Independence

2. Whereas the Commissioner must perform his duties with complete independence and in

order to dismiss any reasonable doubt as to the neutrality and the imperviousness of the

Institution to external factors, it is recommended to establish few measures, which could

prevent interference in the activities of the Commissioner and strengthen the legal status

of the Institution. Those guarantees of independence and impartiality require amending

certain rules, particularly as regards the appointment procedure, immunity, social

guarantees, accountability, and the grounds for dismissal, namely it is recommended to:

A. As regards appointment procedure:

2.1. establish that only persons of good repute and experience and proof of no previous

corruption may be nominated as candidates to the post of the Commissioner;

2.2. improve the current legal regulation by providing greater transparency in the

nomination process and enhancing the participation of civil society;

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2.3. amend the legal regulation, in terms of voting procedure, in order to remove confusing

and inconsistent provisions, which are set out in the Law of the Commissioner and the

Rules of Procedure of Verkhovna Rada;

2.4. revise the legal framework related to the number of votes required in the Parliament

for a decision on appointment to be adopted and amend it in such a way as to require

for the appointment of the Commissioner a qualified majority in the Parliament.

2.5. in order to ensure greater legal clarity and simplification, it is proposed to establish

directly that, save in the event of the dismissal, the Commissioner shall remain in

office until his successor takes up his duties by establishing it directly in the law.

B. As regards immunity and social guarantees:

2.6. establish that after the Commissioner has ceased to hold office, he shall continue to

enjoy immunity in respect of acts performed by him in his official capacity, including

words spoken or written. It is also recommended to establish in the law that the

functional immunity is applied not only to the Commissioner but also to the personnel

of the Institution;

2.7. establish in the Law of the Commissioner that in terms of remuneration, allowances

and pension, the Commissioner has the same rank as a judge at the Constitutional

Court or other high rank official of the state.

C. As regards accountability of the Institution:

2.8. revise the current legal regulation in order to confer on the Commissioner the right to

be heard, participate in the debates before the parliament and to present its findings

and recommendations. It shall be established that during the debate on the annual

report at the session of the parliament, the Commissioner may personally present a

summary of the report and ensuing conclusions;

2.9. extend the scope of annual reports and include information of a general and

operational nature of the Institution itself in order to raise the awareness of the

purpose and tasks of the Commissioner, enhance the confidence in their activities and

promote protection of human rights and freedoms. Should this prove necessary, a

briefer and user-friendly version of report shall be prepared.

D. As regards the dismissal procedure:

2.10. improve the overall quality of Article 9 of the Law of the Commissioner concerning

the grounds for dismissal. Overly long paragraphs should be avoided, in particular

legal uncertainty surrounding voting on dismissal procedures shall be removed;

2.11. draft amendments to replace the vague term of “violation of the oath” with a more

qualified wording and to clarify that only serious misconduct provides a legal basis

for the cessation of the duties;

2.12. draft amendments to replace automatic termination of Commissioner’s tenure

following “a verdict of guilty”, irrespective of its nature and gravity, with a more

qualified wording;

2.13. establish an increased majority to dismiss the Commissioner. The majority of votes

required for termination should be preferably higher than the majority required for

appointment. In order to guarantee transparency in the process of the dismissal of the

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Commissioner, a procedure for dismissal should also involve judiciary for giving an

opinion on whether the Commissioner no longer fulfils the conditions required for the

performance of his duties or is guilty of serious misconduct.

E. As regards organisational framework:

2.14. the law should stipulate, as a general principle, that the Commissioner shall have the

right to be consulted when the final decision is made on the annual funding by the

legislator. Where this proves necessary and feasible, it is recommended to consider

whether the status of the Commissioner could benefit from new legal provisions

establishing that the Government shall include the Commissioner’s draft proposal into

the draft budget submitted to the Parliament without changes. It is also expedient to

separate the expenses for the representatives as well as for the regional units in the

budget plan of the Commissioner, which is produced for the Parliament decision. The

expenses for the board of advisers and experts service should be provided from the

budget too;

2.15. it might also be appropriate to consider additional safeguards such as the principle that

the budget for the Commissioner could be reduced in relation to the previous financial

year only by a percentage not greater than the percentage the budget of the

Parliament, President and Government is reduced;

2.16. it is recommended that the amendments to the Law of the Commissioner introduce the

right of the Commissioner to establish the regional units. Nevertheless, the right to

define the scope and operating principles of the regional set-up should be maintained

for the Commissioner. Such legal provisions provide a legal basis for adequate

financing of the personnel and the premises in regions as well as give clarity about the

expenses for them.

2.17. it is also recommended to amend the wording of the existing legal regulation and to

spell out the functions of the Secretariat in a sufficiently precise manner as to fully

empower it.

2.18. it is proposed to establish that the Commissioner appoints, manages and dismisses the

staff of the Apparatus who will assist him in performance of his duties himself;

meanwhile, the procedures for hiring set out in the Law of the Civil Service shall be

applied without prejudice to the organizational independence of the Commissioner.

PROPOSAL NUMBER 3 – Enhancing Efficiency of Complaint Handling

Procedure

3. In order to simplify and harmonise legal rules for investigation of individual complaints,

it is necessary to revise the Law of the Commissioner and to clarify its relationship with

other laws. Principal legal rules of administrative procedure shall be established in the

Law of the Commissioner. Meanwhile, the rules of procedure set out in other laws shall

be considered as special legislation (lex specialis) vis-à-vis the Law of the Commissioner

only where particular reference is made in this Law. It is also recommended to exclude

the Commissioner’s activities from the scope of the Code of Administrative Offences

and the Law on the Citizens’ Appeals. Such clarification in the law would provide legal

certainty on the applications dealt by the Commissioner and would thereby improve the

compatibility of diverse procedural rules, which are currently scattered over several laws.

4. Greater harmonisation could be also achieved by developing procedural rules via soft

law. A soft law (internal law) that provides specific rules how this principle should be

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applied should be adopted. Adopting soft law measures with regard to the principle of

good administration only will facilitate application of the procedural safeguards in any

administrative procedure and decrease the likelihood of divergent approaches in different

laws, giving rise to regulatory uncertainty and inefficiency of handling individual

complaints.

5. For reasons of efficiency, it is also recommended to clarify the content and the scope of

the provisions on investigation of individual complaints. Supplementing the legal

regulation with the legal provisions concerning the formal steps of submission of

complaint and their requirements, extending the grounds for refusal to investigate

particular complaints, setting out appropriate time limits to investigate complaints,

developing good practice on the duty to state reasons are few measures, which could

enhance the overall effectiveness of complaint handling.

In addition to this, types of acts adopted by the Commissioner shall be revised. Under a

general rule, the Commissioner shall adopt a final act of investigation with a non-legally

binding character. For the sake of clarity, this characteristic (nature of recommendation)

shall be established explicitly in the law. Nevertheless, it is suggested that the power of

the Commissioner to issue acts on established violations of human rights was more

efficient if it was accompanied by a special duty conferred on the public authority to

inform the Commissioner about the measures taken to remedy the situation in due time.

Having regard to the executive powers given to the Commissioner in special areas of

law, it is recommended to foresee in the Law on Data Protection, the Law on Access to

Public Information and the Law on Equal Opportunities the second type of final acts of

the Commissioner following the investigation of individual complaints, i.e. legally

binding administrative acts imposing legal sanctions.

PROPOSAL NUMBER 4 – Promoting Sound Public Administration via

Mediation

6. Due to the increasing European trend to facilitate and encourage mediation in all areas, it

could be beneficial to review the existing legal regulation in order to acknowledge

expressly that such activities are compatible with the mandate of the Commissioner.

Therefore, it is recommended to amend the Law of the Commissioner by expressly

introducing the right of the Commissioner to act as a mediator.

PROPOSAL NUMBER 5 – Strengthening the Relationship with the Legislator

7. In order to expand the Commissioner’s functions regarding the right to good

administration and to confer on the Commissioner an effective right to legislative

initiative, the Commissioner should have the right to propose to the Parliament to adopt

or to revise the legislation with the purpose of ensuring human rights and freedoms and

promoting and protecting the right to good public administration at any time when in the

course of their duties they deem it necessary.

8. It is also recommended to amend the Law of the Commissioner by expressly introducing

the right of the Commissioner to participate in parliamentary sessions and meetings, the

meetings at the Government and other state institutions where matters of protection of

human rights and good public administration are discussed. In order to ensure a greater

legal clarity and simplification and to strengthen the capacity of the Commissioner in the

relationship with the legislative bodies, both recommendations could be implemented,

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for example, by inserting a new special article intended for establishing the

Commissioner’s concrete rights in the legislative area.

PROPOSAL NUMBER 6 – Access to Justice

A. Normative Control before the Constitutional Court

9. The absence of limitations on the Commissioner’s right to apply to the Constitutional

Court may sometimes result in constitutional submissions by the Commissioner on the

issues that do not fall within their competence. This limitation shall be either explicitly

provided or established in practice. Therefore, the Constitution can be interpreted in the

practice of the Constitutional Court by restricting the power of the Commissioner to

apply to the Constitutional Court only to the issues falling within the competence of the

Commissioner. It can also be set out in the Law on the Constitutional Court of Ukraine

(Article 52) or in the Law of the Commissioner (Articles 13(3) and 15).

10. The current legal framework lacks certainty with regard to time limits for consideration

of constitutional submissions. Under these circumstances, it is proposed to establish a

general time limit for the announcement of the final acts of the Constitutional Court of

Ukraine in the proceedings.

11. No order of priority for hearing the cases is established in the Constitutional Court. That

gives for the Court unlimited discretion to set its own order of hearing that can be

determined without any objective criteria. Therefore, it is also recommended to

supplement the Law on the Constitutional Court (or, as an alternative, the Regulations of

the Court) with special provisions regarding the priority of hearings.

B. Normative Control before Administrative Courts

12. Current legal framework relates the Commissioner’s right to apply to administrative

courts in order to challenge normative (regulatory) legal acts to the fact that application

is made by the subject of the legal relationships, in which this act will be applied.

Nevertheless, there are no compelling reasons, which would support a conclusion that the

Commissioner’s right to apply to administrative courts in order to challenge regulatory

acts shall be made depended on an individual complaint and adversely affected legal

interests of particular private parties. Therefore, it is recommended that the

Commissioner should have a direct right to take action in order to challenge regulatory

legal acts before administrative courts. Similarly to the applications to the Constitutional

Court, the request to review the legality of certain regulatory legal acts shall be limited to

the issues falling directly into the competence of the Commissioner.

C. Defence of Public Interest

13. It is proposed to consider establishing a legal regulation that would entrust the

Commissioner to apply to courts specifically in cases regarding the defence of public

interest (popularis actio). The objective of this proposal is to establish a legal

framework, which entitles the Commissioner to act independently. This would be

particularly relevant where revealed irregularities are considered to be of a systemic

character. In order to provide an adequate legal framework to implement the aims of the

ombudsperson institution, adopting legal provisions regarding the defence of public

interest before courts indeed could contribute to enforcing human rights legislation

independently of individual complaints filed with the Commissioner. This, in turn, could

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shift the Commissioner’s fragmented efforts in protecting individual interests to cohesive

and coordinated approach towards strategic goals on human rights protection.

PROPOSAL NUMBER 7 – Limitations to the Commissioner’s Role in Legal

Representation

14. Having regard to the fact that the state legal aid scheme is in place, there is no rationale

for the Commissioner to act as a legal representative of the disadvantaged members of

the society. Seeking to reduce the workload of the Commissioner’s institution and

enhancing effectiveness of its functioning, it is recommended to remove the overlapping

between Ukrainian legal aid system and Commissioner’s jurisdiction. Instead of dealing

with complaints or representing interests of applicants before courts, the main part of

Commissioner’s work should be devoted to the monitoring and supervision of work of

legal aid system institutions to the extent of their compliance with the right to good

administration and prevention of abuse of powers or bureaucracy.

PROPOSAL NUMBER 8 – Limited Intervention into Judicial Proceedings

15. The existing legal regulation shall be revised in order to prevent the Commissioner from

intervening into judicial proceedings and, above all, questioning the soundness of court

decisions. It is a well-established international standard and practice in Europe to limit

the ombudspersons activities in the sphere of judicial activities. In such cases, the

correction of possible errors is entrusted to the judicial system consisting of courts of

lower, higher and final instances. In addition to this, the functioning of judiciary,

including disciplinary proceedings, is supervised by autonomous institutions such as the

Judicial Council or similar, which are entitled to assess the actions of judges or their

inaction.

Thus, in general terms, it would be preferable for the Commissioner to retain the power

to make general recommendations about the functioning of the courts (as regards

administration and management of the courts) and exclude or limit the power to interfere

into individual proceedings. To this end, it is recommended to amend the legal

provisions of the Law of the Commissioner, specifically Article 13(10)(2) and (3). In this

respect, two approaches and accordingly two options may be considered:

A. Restrictive approach concerning the supervision of judiciary shall mean a withdrawal

of legal norms, which establish essentially unlimited possibility to intervene in any

judicial proceedings. By ensuring clear boundaries regarding the relationship

between the Commissioner and courts, this option would attain better respect for the

rule of law, including the balance of institutional powers and a full compliance with

international standards and prevailing European practices.

B. A less stringent approach would be to amend the legislation accordingly to enable the

Commissioner to act within the sphere of judicial activities only in cases that raise

issues affecting human rights and freedoms from a viewpoint of functioning of the

courts or procedural law. In the latter case, it would be appropriate to establish a legal

regulation that limits the Commissioner’s mandate to the supervision of judicial

proceedings of undue delay or evident abuse of authority. This option is suggested

bearing in mind the peculiarities of the initial model of the ombudsperson’s

institution opted as suitable to Ukraine and undergoing transitional period leading to

completion of judicial reforms.

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PROPOSAL NUMBER 9 – Harmonisation of Equality Laws

16. The mandate of the Commissioner in the field of gender equality is differently stipulated

in two laws, namely the Law on Ensuring Equal Rights and Opportunities of Women and

Men of 2005 and the Law on Principles of Prevention and Combating Discrimination of

2013, which is aimed at banning discrimination on numerous grounds (including sex). It

is therefore recommended to consider two options:

A. To integrate the Law of 2005 on gender equality into the more general

antidiscrimination Law of 2013 and to provide a single set of Articles on the mandate

of the Commissioner instead of currently existing two articles in two different acts

(Article 9 of the Law of 2005 and Article 10 of the Law of 2013); or

B. To continue with the practice of application of double legislation of Anti-

Discrimination Act and a Gender Equality Act with an attempt to reconcile the texts

and competence provisions of both laws.

17. Having regard to the special character of the covered relationship and political and

social-legal importance, it is recommended that the equality legislation and not the Law

of the Commissioner will further contain the provisions with relation to the equality-

specific competences of the Commissioner.

18. It is recommended proceeding with the planed legislative changes (the draft Law No

3501 of 20 November 2015) as they create strong and solid basis for tribunal-type

equality body. It is strongly recommended that the mandate of the Commissioner

included the duty to “provide individual assistance to victims of discrimination in

pursuing their complaints about discrimination” and competence “to conduct

independent surveys concerning discrimination”, as it is foreseen in the Directive

2006/54.

PROPOSAL NUMBER 10 – Data Protection and Access to Public Information

19. The means and procedures for executing the task of data protection supervision may vary

considerably from those used to safeguard good governance, particularly also concerning

the way how infringements are to be prevented and/or sanctioned. Therefore, it is

recommended to extract the tasks of a data protection supervisory authority from the

present amount of tasks of the Commissioner and establish a new independent data

protection authority. This body should also be entrusted with the task of control over the

observance of the right to access to public information. Joining the tasks might favour

public acceptance of decisions as they will usually be well balanced after having had

regard to all foreseeable arguments pro and contra.

20. Having regard to the updated form of European data protection standards, it is necessary

to revise the Ukrainian legal framework concerning data protection. It is recommended

to draft a new Law on the Protection of Personal Data, revising certain definitions and

paying attention in particular to the preconditions for processing in compliance with the

law, the rights of the data subjects and special obligations of controllers, the topic of

certification, the relationship between controller and processor, the transborder data flow,

the content of data protection infringements and other relevant legal aspects.

21. In the sphere of access to information, it is recommended that the Law on Access to

Public Information should be updated bringing it closer to the standards of international

instruments as well as other standards common to European states. First of all, overall

structure of the Ukrainian Law on Access to Public Information could be improved. The

legal rules concerning the reuse of public information, means of providing access to

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information, time limit for consideration of requests for information, costs of the

provision of information, and limitations to access to information shall be also revised.

Particular attention shall be paid to the Commissioner’s tasks in relation to the

supervision of the right to access public documents. It is recommended that the

Commissioner would firstly have a power to issue recommendation on improvement of

situation in the area of access to public information and, secondly, in case the

recommendations are not fulfilled, the Commissioner should have a power to issue

administrative act with administrative sanctions in it. Accordingly, it is suggested to

remove the right of the Commissioner to issue administrative protocol and to establish

the rules on liability in the Law on Access to Public Information.

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