Elena Tonkacheva: There are two ways to move towards institution of ombudsman in Belarus

The concept of creating a position of ombudsman in Belarus, suggested by the former Attorney General Gregory Vasilevich, under thorough discussion can become the basis for adoption a respective law.

This was reported to the EuroBelarus Information Service by Elena Tonkacheva, the head of the Legal Transformation Centre “Lawtrend”.

She recalled that the discussion of the issue with the introduction of ombudsman-institution to Belarus has been run for 20 years already: “The first theses about the necessity to introduce this position were put forward as far back as the reform of the judicial sphere was introduced in 1994”.

“Besides, the problem of introducing ombudsman-institution was also discussed during the so-called “Makei liberalization” alongside with the question of introducing moratorium on death penalty”, - noted the head of Lawtrend.

The demand to create an ombudsman position was also mentioned in the recommendations of the universal periodic review drawn up under the active participation of the Belarusan human rights organizations. “And Belarusan human rights activists keep on insisting that such position should exist as a national means of human rights protection”, - said Elena Tonkacheva.

Nevertheless, Belarus has no such post to this day. “We witnessed at least three projects of that kind in different life periods. All of them didn’t reach the level of active discussion at the Parliament, and, consequently, were not adopted, - stated the human rights defender. – Whereas such institution exist in nearly every country within CIS”.

Strange offer from the Office of the Administration of the President

For now there are two ways of moving towards the introduction of the ombudsman’s position in Belarus.

“The first one was set by the National Centre of Legislation and Legal Research of the Republic of Belarus (NCLLR), that wrote a very formal letter, suggesting a discussion about the necessity to introduce the position of ombudsman”, - told Elena Tonkacheva.

“We gave a clear answer to this suggestion: until the content of the law concept is suggested, we are not going to discuss the necessity of such post”, - highlighted the lawyer.

There were two reasons why the organization reacted in this way: “First, we find it impossible to start negotiations about any institutions for human rights defence. And secondly, Belarusan human rights organizations have already done everything possible to persuade the state that the position of ombudsman is necessary”.

Project from the academic environment

The concept of ombudsman-institution was also suggested by Gregory Vasilevich, the former Head of the Constitutional Court and former Attorney General of the Republic of Belarus, in March 2013.

Elena Tonkacheva also finds it important to conduct real public discussion of the document that was basically suggested by the academic community, among the representatives of which Gregory Vasilevich can be found: “The concept of the law is, basically, the deposited scientific report open to public society. And we believe that can become the basis for adoption a respective law under thorough discussion and the presence of the political will”.

The head of Lawtrend highlighted, that the suggestion made by Gregory Vasilevich has enough contents according to which the discussion of the possible draft law as well as the reasoned critics can be led. “Up to now no such suggestion was made”, - she noted.

“I find it optimistic that the concept basically shares the stance of the Belarusan human rights organizations about the integrity of the ombudsman’s position, the presence of professionals, possibility to work with private appeals, possibility to enter the closed institutions without obstruction. It coincides with my understanding of how the institution of that kind should be organized”, - said Elena Tonkacheva.

Who should appoint the ombudsman?

However, a number of suggestions introduced in the concept of Gregory Vasilevich are doubtful: “Thus, I’m not sure that the trust in ombudsman will be high enough, if carried out by the President, as suggested by Vasilevich. It would be great to discuss it”, - believes the head of Lawtrend.

Besides, the concept allows for the cooperation with the national and international human rights groups. “Considering that the experience of the last 20 years shows that cooperation of the state bodies with public associations is weak or simulated, then such cooperation and proper regulations should be in-built in the position of ombudsman from the beginning, - assumes Elena Tonkacheva. – It is important for the civil society not to be excluded from this process”.

Would “those in power” be good defence from the despotism of the state?

One more controversial thesis of the project suggested by Gregory Vasilevich is that his concept presupposes the formation of the team from those who used to hold government employment. “On the one hand, such approach can be easily justified: these people have working experience and certain approved capacities, - the head of the “Lawtrend” agrees.

“But on the other hand, the work of the ombudsman’s team is a specific activity. And I can hardly imagine that from all the former civil servants there will be enough people with the proper understanding of what human rights are and what are the mechanisms to protect them”,  - supposed the expert.

She believes that the team should be made up of the people who “are able to abstract from the previous experience and practice (which is a hard thing to do) and get involved in real investigation into the situation; people, who won’t be constrained in their judgments and assessments, but rather be critical towards the system that reigns in the country today”.

“I hardly imagine that a person who has been involved in prosecutor’s work for 20 years would start looking upon the actions of similar institutions contrariwise”, - declared Elena Tonkacheva.