The Ombudsperson’s Most Specific Human Rights Perspective
The following is an attempt to analyze why the recently published Special Report by Ukraine’s Human Rights Ombudsperson seems so infinitely far removed from the human rights situation civic human rights organizations confront on a day-to-day basis.
A long time in the pipeline
In discussing what the Special Report is and is not, we should first consider what the Ukrainian public has every right to expect from the Ombudsperson.
According to Article 18 of the Law on the Human Rights Ombudsperson (the full title is the Verkhovna Rada’s Authorized Human Rights Representative), during the first quarter of every year the Ombudsperson shall present an annual report on the human rights situation in Ukraine, outlining how human and civil rights are being observed by state authorities, bodies of local self-government, civic organizations, institutions, etc, and their officials and functionaries whose action or inaction have infringed human rights and civil liberties, as well as identifying failings in legislation. The annual report should refer to specific violations which the Ombudsperson took measures over, and conclusions and recommendations aimed at improving the situation with regard to securing human and citizens’ rights and freedoms.
The current Ombudsperson has, despite an extraordinary and unlawful period as Member of Parliament during 7 months of 2006, been in office for all but two and a half months since April1998. Over ten years she has produced three reports which can thus only very loosely be called "annual". The last of these was published in 2005. This is in clear breach of the law and therefore of her solemn oath.
It should be mentioned that since 2005 Ukrainian civic human rights organizations have produced four annual reports – "Human Rights in Ukraine", covering the years from 2004 to 2007, with the last being published in July 2008. Despite considerably less power to demand information and far fewer resources, these reports provide a detailed account of violations during the year in question, analysis of legislative and other problems, .of any positive initiatives and recommendations on eliminating the abuse identified. They are available to the public in both Ukrainian and English on the websites of the Ukrainian Helsinki Human Rights Union (www.helsinki.org.ua) and the Kharkiv Human Rights Protection Group (www.khpg.org).
The "Special Report" (2008)
The attractively presented book produced to coincide with the sixtieth anniversary of the Universal Declaration of Human Rights has the title: "Special Report of the Human Rights Ombudsperson: "Ukraine’s Observance of International Human Rights Standards".
The Special Report constitutes only about a quarter of the book, with the rest being UN documents, as well as the Memorandum of Understanding between the United Nations Office in Ukraine and the Ombudsperson. This Memorandum is stressed in the Special Report, although there is no mention of the fact tat it was signed for one year up to 10 December 2008. In the light of this, we will also be focusing on how the following items were addressed during this period:
"(4) cooperation on raising public awareness in re issues of racism, xenophobia, neo-Nazism and anti-Semitism, raising tolerance and respect towards various social groups, including migrants, ethnic and religious minorities;
(5) Cooperation on preparation of the publications of the recommendations/comments of the UN human rights monitoring bodies vis-a-vis state reports of Ukraine;"
Of especial interest is (5) since the Report ends with upbeat words about how, in accordance with the Memorandum, publication will be continued. No publications at all emerged during the year of the agreement, despite the clear recommendations by a number of UN Committees and the urgent need for the public to know what the Ukrainian authorities are doing (or not) to fulfil their international commitments. The Ombudsperson in fact mentions this in the course of the Special Report and criticizes the lack of such publications. She makes no mention of her own most immediate commitment which has clearly not been met.
Clarification of genre
The Ombudsperson describes the Special Report as a "unique work", and presumably she has more in mind than merely the lack of many other reports. It is truly difficult, however, to gauge her audience. The publication is only available in Ukrainian, despite the Secretariat’s ample finding, more than sufficient to finance translation into English and Russian, two of the UN’s languages. This unfortunately makes it of limited availability to UN bodies.
It is, most regrettably, of even more restricted use and interest to those who have no problem with reading Ukrainian and those most concerned about the human rights situation in Ukraine: the Ukrainian public.
Ukrainians can, admittedly, learn something about the recommendations of UN Committees regarding Ukraine’s fulfilment of its commitments. This is of rather limited value, since the Ombudsperson often cites such recommendations in order to assure the reader that the Committee’s conclusions coincide with her own. As I will show in more detail below, the Special Report frequently glosses over precisely those specific recommendations which demand response and accountability.
It remains, therefore, baffling who the Special Report is aimed at, unless we unkindly assume a contingent of people who like the look of the book, or want copies on hand of the UN documents. There is virtually no outline of actual abuses and very little idea of what people approach the Human Rights Ombudsperson for. There is no detailed analysis at all, with the information given being confined to snippets about the UN Committee’s recommendations, statements which are obviously from the Government’s periodic reports which the Ombudsperson proudly repeats that she has played a direct role in. For the sake of balance, not provided by the Special Report, it should be mentioned that a number of the statements from the periodic reports so blithely quoted have been challenged, with evidence, by human rights organizations in their alternative reports to various UN Committees (http://www.helsinki.org.ua/en/index.php?r=a2b).
A lot of the information of this type in the Special Report itemizes international agreements which Ukraine has either joined or ratified. In fact, in the concluding paragraphs we read:
"The Human Rights Ombudsperson considers that international human rights standards needed in Ukraine must be broadened by joining a number of universal international and European conventions on human rights, as well as by removing reservations from conventions which Ukraine has already ratified".
I would in no way deny that this is a vital component in improving human rights standards, however there are other equally important factors, and any document must be measured together with the mechanisms for implementing it, and the will to do so. It is disturbing that the Ombudsperson appears oblivious to these demands.
In any reporting we need to have some idea how to measure achievements and failures, and who we should turn to in order that the latter be rectified. None of this is at all clear from what the Ombudsperson calls a "unique work".
It can be difficult to recognize failings when there is no clear indication of time scales. In fact, the title about Ukraine’s observances of its international commitments does not specify what period of time is in question. Be that as it may, I suspect I am not the only person who expects a Special Report on this subject to tell me about the state of play at the present time. In the constant flitting back into history (and even 2001, or 2005 when the Ombudsperson’s last "Annual Report" was published is of largely academic interest in December 2008), it is easy to gain the impression that the Ombudsperson has been most active in all sorts of areas, such as item (4) of the Memorandum cited above. Take, for example, the sentence: "The issue of whether Ukraine’s legislation complies with international standards and the country’s international obligations is constantly raised in the reports of the Human Rights Ombudsperson". Now this may well be true of each individual report, but given how thin on the ground these are, the statement hardly bears scrutiny.
I am not suggesting that nothing has been done, but would have serious doubts as to whether enough has been achieved given the undoubted human and financial resources available to the Ombudsperson and her Secretariat.
One area entirely omitted in the Special Report is that of environmental rights. This is staggering given the enormity of some of the problems involved, as well as the fact that the Aarhus Convention Compliance Committee in June 2008 hammered Ukraine for its abysmal failure to implement this vital agreement.
One rather strange impression one has from reading this report is that its authors suffer from a fundamental misapprehension with regard to cause and effect. We read statements about submissions made by the Ombudsperson regarding, for example, ratification of the Optional Protocol to the Convention against Torture [OPCAT] and then – abracadabra! – upbeat noises about its almost immediately being ratified.
The Ombudsperson does not gloss over the fact that two years on, there are still effectively no national preventive mechanisms (which Ukraine committed itself to implement within a year of ratification) is brushed over. It is clearly implied however that all procrastination has been against her best efforts and that others are to blame. Since the Ombudsperson’s refusal to take on responsibility for this preventive mechanism has been one of the major sticking points, this presentation of facts would seem somewhat overly selective.
There are also extraordinary statements which are not selective with the truth, but downright creative, for example:
"At the initiative of the Human Rights Ombudsperson and under her direct supervision over the conditions of prisoners in penitentiary institutions, the Ukrainian government has carried out a comprehensive range of work on creating conditions which in general comply with European standards in the majority of institutions."
I can only sincerely recommend that Ms Karpachova and the reader examine another perspective on reality provided in Human Rights in Ukraine. The report on prisoners’ rights in 2007 can be found here: http://www.helsinki.org.ua/en/index.php?id=1217164189. This and Oleksandr Bukalov’s comprehensive studies of the penal system in previous years’ reports, should also be consulted to understand why the statement about what happened to the State Department for the Execution of Sentences [the Department] after being taken from the jurisdiction of the Ministry of Internal Affairs would seem deliberately misleading. As Oleksandr Bukalov demonstrates, Ukraine’s commitment on joining the Council of Europe in 1995 to transfer the Department to under the jurisdiction of the Ministry of Justice has still not been fulfilled.
Given item (4) of the Memorandum specifically addressing racism, xenophobia, neo-Nazism and anti-Semitism, the woolly and meaningless phrases in the parts of the Special Report dealing with this general area frankly defy belief. It is not that the statements are wrong, although Ms Karpachova would appear to be unfamiliar with the monitoring of the specialist on anti-Semitism and xenophobia Viacheslav Likachev who contradicts her statement regarding an increase in anti-Semitism.
Nonetheless, there are problems which are not being adequately addressed. This makes it especially distressing that the official Ukrainian representative on human rights, who actually has powers to effect change, is so unwilling to use them. She entirely glosses over the question raised by the UN Committee on the Elimination of Racial Discrimination (and by all of us) of why Article 161 of the Criminal Code is not being applied in order to combat discrimination and xenophobic behaviour. In fact she avoids any direct statements about what she and her Secretariat are doing, if anything, to fulfil her duty in this area.
The nearest she gets to action is the vague promise:
"Given the immediacy of these issues, the Ombudsperson will in the near future present the Verkhovna Rada with a Special Report on how the rights of ethnic minorities are being ensured in Ukraine on the basis of her own monitoring."
During the year’s Memorandum with the UN, despite item (4), virtually nothing was heard from the Ombudsperson on the subject. There have been no annual reports for three years now, the Special Report we have analyzed here raises far more questions (not to speak of eyebrows), than it answers, and the last thing on the author’s minds would seem to be suggesting specific measures and recommendations to improve the situation. While it would be cheering to believe in the efficacy and relevance of this purported near-future Special Report, the Ombudsperson’s ongoing demands that we "suspend our disbelief" are becoming ever more difficult to heed.
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