On the Results of the Study Visit to Croatia

Twinning Project

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

REPORT

on the results of the study visit to Croatia

Activity 2.3.2.

A study visit with a view to exchanging experience as regards use of instruments for human rights restoration, in the spheres of personal data protection, access to public information and prevention of all forms of discrimination in particular, by the EU member states’ ombudsmen

Zagreb 5-9 February 2018

Participants of the study visit:

TatianaKoksharova, TamilaVegera, KaterinaScherbakova, OlenaKoshman, AndriyGonchak, OleksandraOstapenko, ArtūrasNariauskas, NatalyaTimonina, VolodymyrShurduk, TetianaZakopaylo

1. General part

During the study visit to the Republic of Croatia, which was held in the framework of Twinning Project № UA/47b "Implementation of the best European practices with the aim of strengthening the institutional capasity of the Apparatus of the Ukrainian Parliament Commissioner for human rights to protect human rights and freedoms"we got acquainted with the activity of the ombudsmen of the Republic of Croatia and other institutions, engaged in human rights protection in Croatia

In particular, in the course of the study visit the following institutions were visited:

• The office of the Ombudsman (an introduction to the structure, authority and activities of its five departments);
• The office of the Ombudsman for persons with disabilities (familiarization with competences and activities);
• The office of the Ombudsman for the rights of the child (familiarization with competences and activities);
• The office of the Ombudsman for gender equality (familiarization with competences and activities);
• The Croatian Agency for personal data protection (familiarization with competences, procedure of monitoring and complaints handling in the field of personal data protection, reform of the legislation);
• The Information Commissioner (familiarization with competences and activities);
• The government office for human rights and rights of national minorities (familiarization with competences and activities, in particular in the field of rights of national minorities, collection and publication of data about hate crimes, coordination in the areas ofcombating human trafficking, integration of foreigners, anti-discrimination and human rights policies);
• The Ministry of Justice (familiarization with the system of justice, penitentiary system, activities in the areas of prosecution for war crimes, support for victims and witnesses, free legal aid);
• The State Department of housing (familiarization with the activities, experiences and results of the housing programme for returnees, refugees and former tenancy rights holders);
• Poryn reception center (familiarization with the structure, organization and activities of the registration centre for the reception of asylum seekers, as well as with the procedure for asylum);
• The House of human rights (familiarization with the activities of the House of human rights and the major NGOs in the field of antidiscrimination, in particular the Centre for peace studies, B.a.b.e., GONG, Documenta).

In the Republic of Croatia, unlike in Ukraine, there are four ombudsmen – the so-called "General" or "constitutional" Ombudsman dealing with the general issues of human rights protection, and three specialized "non-constitutional" ombudsmen. The later Institutions are established by special laws. In particular, the Ombudsman for persons with disabilities, the Ombudsman for children and the Ombudsman for gender equality. It should be noted that both general and specialized ombudsmen are elected by the Croatian Parliament for the period of 8 years, are politically independent and have obligations to report annually to the Parliament. However, if the Parliament does not adopt this report, the ombudsmen can prematurely be dismissed from the post.

In order to devide competencies and cooperate effectively all these ombudsmen of Croatia signed a cooperation Agreement. It also regulates the transfer of cases where their investigation falls under the competence of another or several ombudsmen.

Ombudsmen of Croatia within their competence issue acts of the so-called "soft law" (recommendations, regulations, explanations), which are not legally binding. At the same time, the vast majority of them is carried out by the recipients (from 60 to 90 percent or more), proving the credibility of the human rights institutions in the country.

2. Evaluation and results

The report sets out the most interesting, according to the participants, ways to increase effectiveness of the Ukrainian Ombudsman in accordance with the best practices of human rights protection using the new knowledge and experience obtained in the course of the visit.

2.1. The National preventive mechanism (hereinafter – NPM)

With the aim of preventing torture and other cruel, inhuman, degrading treatment or punishment NPM activities in Croatia since 2012 are carried out by the Ombudsman of the Republic of Croatia. The activity of one of departments of Ombudsman Office is devoted exclusively to the activities of NPM, which includes regular and unannounced visits to institutions where persons deprived of liberty are kept or can be kept, such as prisons, psychiatric institutions, police stations and other institutions. The NPM employees visit geriatric, psychoneurological boarding houses, psychiatric hospitals; examine complaints of persons held in “places of detention”.

During the visits the representatives of NPM department have free access to information about organization or institution, on the treatment of the convicts and have the right to communicate with such persons without supervision of the administration of the institutions and/or third parties.

According to the results of the visit, the Ombudsman provides recommendations and warnings to competent authorities and agencies to improve treatment of persons deprived of liberty and conditions in which they are kept. Moreover, the Ombudsman provides his/her suggestions and comments to laws, draft laws and other normative-legal acts in this sphere, with the aim of ensuring protection of persons deprived of liberty from torture and other cruel, inhuman or degrading treatment and punishment.

In its work, NPM cooperates with a Subcommittee of the United Nations for the prevention of torture and other cruel, inhuman or degrading treatment and punishment.

Actually functions of NPM department are the same in Croatia as in Ukraine. However, in contrast to the model of the Croatian NPM, the model of the national preventive mechanism in Ukraine operates in the format "Ombudsman +", which provides for conduction of monitoring visits to places of detention by employees of the Secretariat of the Ukrainian Parliament Commissioner for human rights and its regional offices together with civil society activists, opening up the possibility for more involvement of public representatives in the processes of compliance with the protection of human rights in places of detention. Another significant difference of the NPM in Croatia and Ukraine is that monitoring visits are held in Ukraine without warning and without agreeing the dates of visits with the heads of agencies and relevant ministries, allowing to see a more real picture regarding the conditions of detention in the institutions and to identify problems of people detention.

It should also be noted that given the fact that in Croatia the protection of human rights is carried out in parallel by four ombudsmen in accordance with their competence, NPM visits to specialised institutions (e.g., containing minors, persons with disabilities and the like) should be agreed with the relevant Ombudsman.

The Ombudsman of the Republic of Croatia prepares special reports on NPM (in particular, the special reports were prepared in 2013, 2016 and 2017) which, compared with the general annual report of the Ombudsman of the Republic of Croatia, in more detail explores issues of human rights and freedoms of persons in places of detention.

2.2. Educational activities of the Ombudsman of the Republic of Croatia

In July 2012 a new Law on the Ombudsman of the Republic of Croatia was adopted. According to this Law, the mandate of the Office of the Ombudsman of the Republic of Croatia was significantly expanded in the field of human rights advocacy, awareness raising, research, institutional cooperation with specialised ombudsmen and civil society representatives.

Under this law, the Ombudsman of the Republic of Croatia systematically organizes events in the capital and regions of the country aimed at awareness raising in the field of human rights. The topics of the activities depend on public demand.

The office also publishes periodic and special reports of the Ombudsman of the Republic of Croatia, educational materials, brochures and booklets. They are all freely available on the official website of the Ombudsman.

On the basis of the information, obtained during the study visit, we can conclude that the educational activities of the Offices of the Ombudsmen of the Republic of Croatia and the Secretariat of the Ukrainian Parliament Commissioner for human rights have the same nature, format and purpose.

2.3. Activities of the Ombudsman for persons with disabilities

In 2008, the Republic of Croatia ratified the UN Convention on the rights of persons with disabilities. With the aim of improving the condition of ensuring the rights of persons with disabilities, in 2008 the Government of the Republic of Croatia with support of civil society established the institution Ombudsman for persons with disabilities. According to the legislation of the Republic of Croatia, Ombudsman for persons with disabilities is elected by the Government of the Republic of Croatia for a period of 8 years and is an independent state institution, accountable to Parliament.

The office of the Ombudsman for persons with disabilities has a broad mandate that includes the following functions: investigation of complaints of persons with disabilities and children with developmental disorders on all issues and in all areas of the state organs and private enterprises; monitoring of compliance with normative acts and regulations, which are legally binding, with international documents in the sphere of protection of the rights of persons with disabilities, primarily the UN Convention on the rights of persons with disabilities.

In the framework of its activities the Ombudsman for persons with disabilities has the right to attend any institution, organization, facility (including places of detention), where persons with disabilities (social welfare institutions, foster families and family homes, educational institutions, medical rehabilitation centres, medical institutions and the like) to monitor observance of their rights; to issue proposals and recommendations to government and local authorities and legal entities for ensuring the rights of people with disabilities; to undertake educational activities (in particular, according to representatives of the office educational activities, conducted by the office for the employers who work in the open labour market had a positive effect, with the aim of raising awareness about employment of persons with disabilities and arrangement of the workplace for them); to propose changes in legislation to improve the rights of persons with disabilities. However, contrary to the Ukrainian Parliament Commissioner for human rights, the Ombudsman for persons with disabilities of the Republic of Croatia cannot apply to the court for the protection of the rights of persons with disabilities.

The activities of the Ombudsman for persons with disabilities are covered in the annual report, which is submitted to the Croatian Parliament, and special reports.

According to statistics, there are 517 thousand persons with disabilities in the Republic of Croatia, accounting for 12.3% of the total population (total population – about 4.2 million people).

For comparison, in Ukraine the number of persons with disabilities is about 6% of the population, at the beginning of 2017, the figure was 2 thousand 600 people.

Each year the office of the Ombudsman for persons with disabilities receives about 1.5 thousand applications from people with disabilities. Problems, which persons with disabilities communicate to the Ombudsman for persons with disabilities of the Republic of Croatia are similar to those faced by the Ukrainian citizens. In particular, it is a question of discrimination against persons with disabilities, which primarily manifests itself in the absence of reasonable accommodation, inadequate budget financing of services for persons with disabilities, the long-term nature and the quality of the examination process, issues of adequate social protection, labour and employment, pension insurance, health and education, housing and the like.

A large number of complaints to the Ombudsman for persons with disabilities (1/5) is dedicated to ensuring the right to an adequate standard of living as people with disabilities and their families due to lack of work or its adequate payment are often on the brink of poverty, which is also typical for Ukraine.

It should be noted that the Ombudsman for persons with disabilities of the Republic of Croatia (as well as the Ukrainian Parliament Commissioner for human rights) does not have any direct influence on the solution of problematic issues of guaranteeing the rights of persons with disabilities, the implementation of which is associated with insufficient budget funding.

Along with this, the competence of the Ombudsman for persons with disabilities of the Republic of Croatia is not identical to those of the Ukrainian Ombudsman. Namely, in accordance with the Law of the Republic of Croatia “On the Ombudsperson for persons with disabilities” public authorities, local and regional government, legal entities and physical persons are obliged to inform the Ombudsman for persons with disabilities on measures taken to fulfill his/her warnings, suggestions, or recommendations immediately or within 15 days.

If the above bodies and individuals do not provide information on the implementation of the recommendations of the Ombudsman within the prescribed period, he/she should notify the relevant supervisory authorities about this within 30 days. If the supervisory authority does not inform about the action taken within 8 days, the Ombudsman for persons with disabilities should report such violations to the government of the Republic of Croatia within 30 days.

The Law of the Republic of Croatia “On the Ombudsperson for persons with disabilities” establishes more clear rules for monitoring by the Ombudsman of institutions, organizations and agencies, where persons with disabilities work or live. Thus, after such inspection a report is prepared, which is sent to the authority supervising the visited institutions within 30 days, the supervising authority in its turn, within 30 days, and in some cases, and without delay, shall inform the Ombudsman on measures taken after the report. Otherwise (in case of failure to provide such information), the Ombudsman for persons with disabilities should notify the Government of the Republic of Croatia and the media.

According to representatives of the office of the Ombudsman for persons with disabilities, as a rule, all bodies and persons that received recommendations of the Ombudsman, where willing to fulfill them. This may be a sign of high awareness of such entities and the positive impact of the above legislative mechanisms to ensure the implementation of the recommendations of the Ombudsman that can be taken as a positive example for Ukrainian legislation.

2.4. Anti-discrimination

In the Republic of Croatia the functions of ensuring anti-discrimination are divided among a number of institutions. The Ombudsman of the Republic of Croatia (public defender) has the mandate of the Central body for gender equality from January 1, 2009, when the anti-discrimination act entered into force. In addition, as noted above, in the Republic of Croatia there are two specialized institutes in this area: Ombudsman for persons with disabilities and the Ombudsman for gender equality. Issues of discrimination against children are covered by the Ombudsman for children's rights.

It is worth noting that the anti-discrimination act of the Republic of Croatia prohibits discrimination on the basis of the set list, consisting of 17 grounds. On the contrary, the legislation of Ukraine (in particular, the Law of Ukraine “On principles of prevention and combating discrimination in Ukraine”) sets an open list of grounds under which discrimination is prohibited.

Thus it can maintained that Ukrainian legislation is more consistent with Article 14 of the Convention on the protection of human rights and fundamental freedoms, because it allows you to counteract discrimination on other grounds that are not defined in the Law.

In the office of the Ombudsman of Croatia (public defender) there is the anti-discrimination Department, which is preventing and combating discrimination on the grounds of race, ethnicity, colour, language, religion, political or other opinion, national or social origin, property, trade union membership, education, social status, age, health condition, genetic heritage, national identity.

It should be noted that contrary to the broad mandate of the Ukrainian Parliament Commissioner for human rights on participation in court cases on discrimination, the Ombudsman of Croatia can only participate in strategic litigation. Entry into such trials shall be initiated by the Ombudsman in the case of the consent of a person who believes that has been subjected to discrimination. There are special criteria to identify whether it is a strategic case, in particular, the case should be high-profile and such that will have influence on the resolution of similar cases in the future.

The Ombudsman for gender equality acts on the basis of the Act on gender equality, adopted in 2008 by the Croatian Parliament, according to which the Ombudsman performs his/her tasks independently and is combating discrimination on grounds of gender, sexual orientation and marital status.

The experience of the Ombudsman for gender equality in relation to monitoring compliance by employers with gender quotas, which are mandatory in Croatia since 2017, can be useful for Ukraine.

Regarding division competences of ombudsmen in this area, it should be noted that in case of receipt of complaints of discrimination on the basis of several grounds that fall within the competence of the various ombudsmen such complaints shall be handled jointly within the competence of each of the ombudsmen.

A characteristic feature of the mandate of the Ombudsman (people's defender), the Ombudsman for gender equality and Ombudsman for persons with disabilities, which would be useful for the Ombudsman of Ukraine, is the right to conduct mediation (on consent of the parties) between the offender and the victim of discrimination with the possibility to reach amicable settlement.