Procedural rights of the Commissioner

THE MANDATE OF THE OMBUDSMAN OF UKRAINE IN JUDICIAL PROCEEDINGS

Article 55 of the Constitution of Ukraine envisages that human and citizens' rights and freedoms are protected by the court; the right of every individual to challenge in court the decisions, actions or acts of omission of central and local authorities, officials and officers is guaranteed; everyone has the right to appeal for the protection of his or her rights to the Ukrainian Parliament Commissioner for Human Rights.

         According to articles 124, 126 and 129 of the Constitution of Ukraine justice in Ukraine is administered exclusively by the courts; delegation of the functions of courts and exercise of these functions by other officials shall not be permitted; influencing judges in any manner is prohibited; while administering justice the judges are independent and subject solely to the law.

Procedural rights of the Ombudsman

Legal status of the Ombudsman, his or her rights and authorities are determined by the Law of Ukraine ʽOn the Ukrainian Parliament Commissioner for Human Rightsʼ (Law on the Ombudsman). This Law provides for that activity of the Commissioner supplements legal remedies for violation of constitutional human and citizens' rights and freedoms; it neither repeals them nor results in reviewing the competence of the authorities which ensure protection and restoration of violated rights and freedoms, in particular judges (article 4 of the Law). Considering the above-mentioned constitutional provisions the Law on the Ombudsman also determines that the Commissioner shall not consider petitions on issues which are under review in courts and shall terminate his or her proceedings that have been initiated if the person concerned has brought a suit (action), filed a petition or a complaint to the court (article 17 of the Law).

So, while addressing complaints to the Ombudsman with regard to trial, appeals against courts decisions, activities or acts of omission of judges, individuals should know that under the legislation in force the Ombudsman is not entitled to interfere with legal proceedings carried out by the courts and to assess and revise court decisions for their legality and validity, change or cancel them, bring judges to liability. The validity of court decisions shall be checked only in a manner prescribed by the procedural law. Any control other that under the procedural law over the examination of cases by judges is prohibited by the Constitution and the legislation of Ukraine in force.

 

Bringing judges to liability

According to the Constitution of Ukraine and the Law of Ukraine ʽOn the Judiciary and Status of Judgesʼ exceptionally the High Council of Justice and the High Judicial Qualifications Commission of Ukraine shall give an opinion on the actions or acts of omission of judges. Procedure for conducting a disciplinary proceeding, grounds and terms for brining judges to disciplinary liability are determined by the Law of Ukraine "On the Judiciary System and Status of Judges".

At the same time, article 13 of the Law on the Ombudsman defines a list of Ombudsman’s rights and authorities. Among them: the right to apply to a court so as to protect human and citizens' rights and freedoms of individuals who cannot do this on their own due to reasons of poor health or any other appropriate reasons; take part in the legal proceedings opened upon his or her suits (petitions, applications (acts of response), intervene in the proceedings, opened upon actions (petitions, applications) of other individuals, at any stage of the trial; initiate review of judicial decisions regardless of his or her participation in the proceedings.

The Ombudsman of Ukraine also has a right to attend sessions of the courts of all instances (personally or through a representative), including court sessions held behind closed doors if the person in whose interests the judicial proceedings were ruled to be held behind closed doors, has given his or her consent.

The rights of the Ombudsman of Ukraine in civil and administrative proceedings

There are the same provisions in articles 45 of the Civil Procedure Code of Ukraine and in  article 60 of the Code of Administrative Procedure of Ukraine which provide for that in the cases established by law, the Ombudsman of Ukraine may apply to the court for the protection of rights, freedoms and interests of other individuals or national or public interests and to participate in these proceedings. The Ombudsman shall provide the court with documents proving the presence of valid reasons which prevent these individuals from applying themselves to the court for the protection of their rights, freedoms and interests.

Thus, individuals may apply to the Commissioner for the protection of their rights and interests in general jurisdiction and administrative courts. Besides this request these individuals have to submit to the Commissioner relevant documents (originals or duly certified copies of these documents) confirming their inability to defend their interests in the court. Without these documents the Commissioner will not be allowed by the court to participate in the trial.

Circumstances preventing specific individuals from applying to the court on their own can be different. That is why the legislation in force does not provide for an exhaustive list of documents which shall be submitted to the Ombudsman (and further to the court) and will enable him or her to defend the rights and interests of the individuals concerned in the court. An individual who apply to the Ombudsman of Ukraine on this matter has to identify by himself (herself) and provide exactly those documents that, in his or her view, confirm the gravity of causes making it impossible for these individuals to defend interests in the court by their own. After receiving such documents and considering them the Ombudsman decides on whether he or she will apply to the court in the interests of the specific petitioner.

Protection of the rights, freedoms and interests of individuals in criminal proceedings

The Criminal Procedure Code of Ukraine does not provide a possibility of participation of the Ombudsman in criminal proceedings. In such circumstances, the Commissioner for Human Rights shall not perform the legal defense of participants in criminal proceedings, interfere with the pre-trial investigation or the criminal proceedings pending trial. In accordance with the provisions of the legislation in force mentioned above the Ombudsman only has the right to attend court hearings during the consideration of criminal proceedings for the purpose of monitoring the status of observance of the petitioners’ procedural rights by the court. According to the Criminal Procedure Code of Ukraine the defense of the rights of detainees, suspects, accused persons, victims and witnesses can be carried out exclusively by their lawyer.

Participation of the Ombudsman of Ukraine in commercial disputes and in cases of bringing petitioners to administrative responsibility  

According to the procedural legislation in force the Ombudsman shall not defend the rights and interests of individuals in the framework of a commercial dispute and in cases of bringing petitioners to administrative liability under the Code of Ukraine on Administrative Offences.

 

 

Taking into consideration all the above mentioned it should be emphasized that the Ombudsman of Ukraine may exercise only the defense of the petitioners’ rights and interests in civil and administrative proceedings and this authority is subject to confirmation by the petitioners of their inability to defend their interests in the courts by their own.

Follow-up (as of 21 September 2015)

In April 2014 the Ombudsman of Ukraine addressed the Committee of the Ukrainian Parliament for human rights, national minorities and interethnic relations with a proposal to support the draft law ʽOn amendments to some legislative acts in order to extend the scope of the grounds for review of court decisions in criminal proceedings by the Superior Specialized Criminal and Civil Court and / or the Supreme Court of Ukraineʼ.

The main objective of this bill is to establish a mechanism ensuring a review of judicial decisions in criminal matters if during their consideration violations of human rights and fundamental freedoms were committed as a result of non-compliance with the requirements of substantive or procedural law.

Such a mechanism is empowering the Ombudsman of Ukraine to apply to the Superior Specialized Criminal and Civil Court of Ukraine or the Supreme Court of Ukraine for review of sentences in criminal proceedings and rulings on the application of compulsory medical measures after their consideration under cassational procedure in cases and according to the procedure established by law.

If adopted this draft law will allow the application of an additional measure to implement the rule of law in criminal proceedings, ensure the right to a fair trial and the right to defense of convicted persons in the cases when their human rights and fundamental freedoms were violated during the pre-trial investigation and / or during the trial that entailed an incorrect application of the law of Ukraine on criminal liability. In other words, this bill will improve the mechanism of the exercise of human rights and fundamental freedoms enshrined in the European Convention on Human Rights by individuals