08.04.2014
Talking points on the Regional Ombudsman's activity in public interest
law sphere
Anna Demeneva, consultant to the Ombudsman of Sverdlovsk Region
Describing the process of formation of public interest law in Russia
it is important to start with the activity of NGOs in the middle
nineties (1990s) when the Russian Constitution was adopted and it was
necessary to bring all these social and political rights into practice
and to test them in real life.
Brining law suites against the state authorities was the only way to
adjust a new legal system to implementation of human rights in
practice because every social or political right requires a
correspondent obligation of the state. It can require the active role
of the state, for example, providing for the system of social
benefits, or the passive role of the state for example, to refrain
from the interfering to the freedom of association.
There was a certain distinction in the process of formation of public
interest law in Russia. If the starting point in the US was the
disbalance between individual and the strong corporations, Russia had
this disbalance between individual and the strong state as there were
no corporations those time.
The most effective activity of NGOs in public law sphere is the
challenging of the law provisions which restrict individual rights and
contradict to the federal laws, Constitution and international law
standards.
The main judicial obstacles in dealing with public interest cases are:
1. The class actions are not allowed by the russian legislation:
2. The continental law system is not flexible enough to operate
with the categories of public interest and balance of interests,
judges have rather narrow margin of appreciation to refer to the
public interest policies;
3. In practice there is a certain resistance from the national courts
to apply the international human rights standards.
There are some possibilities for the Regional Ombudsman to overcome
the mentioned obstacles.
1. The first role of the Ombudsman in dealing with public interest law
sphere is to IDENTIFY what the public interest is in every single
situation. What is the object of protection and how it will impact the
certain category of people? If there is a conflict, how to balance the
interests?
The main source of information here is a huge amount of written and
oral complaints from people to Ombudsman. Also we initiate monitorings
on certain topics by the ombudsman's initiative (it concerns for
example, conditions of detention)
2. Raising the public awareness on the issue is the second role of the
ombudsman
3. The third stage is to choose the strategy including but not limited
to litigation:
-to provide for LEGAL SUPPORT in public law interest cases when we
expect the positive impact to the massive human rights violation (or
example, in protecting disabled people's right to accessible
environment, in protecting rights to social benefit);
-to provide for WRITTEN OPINION of the Ombudsman for the court. We
consider this document as so called amicus curiae - third party
intervention to assist the court to obtain the relevant information in
the human rights context and interests balance. (Migrants cases,
freedom of expression cases, right to family life cases, guardianship
cases);
-to initiate a JOINT INVESTIGATION with other state agency -for
example getting many complaints from women about violation of their
right to maternity benefit by the employers the Ombudsman initiated
the investigation together with the prosecutor' s office and the
state social security fund. Another violations were established as a
structural problem -the rights were protected and the analytical
report with special recommendations to state bodies was prepared;
-ANNUAL AND SPECIAL REPORTS of the Ombudsman contain the analytical
information on the facts and the sources of human rights violations,
and the detailed recommendations to law implementors and legislative
bodies how to improve the practice and the law. The recommendations
include the international human rights provisions to apply.
The reports are sent to state bodies and agencies and they are
published in the regional newspaper and the web-site so it is open to
public.
-LOBBYING THE IMPROVEMENTS to the regional and federal law on public
interest issues is also a strategy to handle gaps in legislation. We
successfully initiated the improvements to the regional regulations
of the employment of disabled people, the regional health care
program, regional program of pro bono legal aid and others.
The main task of the Regional Ombudsman in the public interest law
sphere is the coordination and cooperation between all the actors who
are involved to the public interest law development - such as NGOs
doing strategic litigation cases, legal clinics, lawyers who take pro
bono cases and also the journalists to provide for the media coverage
of the cases and changes in social life.
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