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RULES
OF PROCEDURE FOR THE OMBUDSPERSON PREAMBLE The
Ombudsperson, Pursuant
to the authority given to him/her under UNMIK Regulation No. 2000/38 of
30 June 2000, On the Establishment of the Ombudsperson Institution in
kosovo, Section 10, and, Recalling: - United
Nations Security Council Resolution 1244 (1999) of 10 June 1999, in particular
para. 11; Report of the Secretary-General on the United Nations Interim
Administration Mission in kosovo
of 12 July 1999 (S/1999/779), in particular para. 89-90; - Decision
305 of 1 July 1999 of the OSCE (PC.DEC/305), in particular para. 4; and
Report of the Secretary-General on the United Nations Interim Administration
Mission in kosovo of 23 December 1999 (S/1999/1250), in particular para.
83, Adopts
the present Rules of Procedure: INTRODUCTORY
PROVISIONS The
right to complain to the Ombudsperson regarding violations of human rights
and abuses of authority is guaranteed to all persons, irrespective of
background, citizenship, ethnicity, nationality, gender, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth, age, sexual orientation,
place of residence, legal incapacity, detention, relationship with any
administrative authority or any other status. All services offered by
the Ombudsperson Institution are free. Definitions: The
terms hereby enumerated shall be understood as having the following meaning: 1.
Applicant: Any individual, group of individuals, registered or not registered
nongovernmental organisation, or entity who/which claims that her/his/its
rights have been violated or alleges to be a victim of an abuse of authority. 2.
Application: A completed form that states a complaint of a human rights
violation or an abuse of authority to which the Ombudsperson will respond. 3.
Provisional Registration: The process of numerically listing applications
received by the Ombudsperson. 4.
Registration: The process of numerically listing applications that have
been verified as admissible by the Ombudsperson. 5.
Respondent Party: Any person or entity as defined by the Regulation against
whom an application has been filed with the Ombudsperson or whom the Ombudsperson
identifies ex officio as having had a possible role in the alleged
violation or abuse. 6.
Parties: The Applicant(s) and the Respondent Party/Parties. 7.
Other Authority: Any authority/entity/group other than the Respondent
Party, which during the investigation, appears to be in any way involved
in a case before the Ombudsperson. 8.
Representative: Any person authorised by the Applicant or by law to represent
her/him throughout the procedures before the Ombudsperson. Rule
1 1.
Applicants will fill out an application form provided by the Ombudsperson
Institution with the assistance of an Ombudsperson Institution officer.
The application form must be dated and signed by the Applicant and/or
her/his Representative. 2.
Legal representation through a lawyer is not needed. 3.
An application should contain the following information: a) full name, age, gender, ethnicity, occupation, marital status and citizenship of Applicant, and/or full name and registration information, if registered, of any Applicant(s) that is/are an organisation or entity; b)
home and/or work address of the Applicant, and the correspondence address,
if different; c)
full name, occupation and contact address of the Representative of the
Applicant, if any; d)
full name/title and contact address of the alleged Respondent Party or
Parties if known by the Applicant. If not, sufficient other information
to identify the Respondent Party or Parties; e)
full name of the officer of the Ombudsperson Institution assisting the
Applicant; f)
a statement of the alleged facts, including date of incident; g)
a statement of the alleged human rights violation or alleged abuse of
authority; h)
a statement of what the Applicant wants to achieve in that specific case; i)
a list of the documents attached to the application, or in case
they are not in the Applicants' possession, information as to where necessary
documents can be found; j)
an indication as to whether a similar complaint has been submitted
to any domestic authority, any body of the Interim Civil Administration,
or any international body and the outcome of such proceedings; and k)
a general preliminary comment by the officer assisting the Applicant on
the case including a provisional classification of the alleged human rights
violation(s). 4.
An authorisation of the Representative shall be attached if the
Applicant files the complaint through a Representative or if the Applicant
chooses to be represented during any stage of the procedures before the
Ombudsperson. 5.
The application form may be filed in any of the languages used
in the region or in English. All conclusions or assessments of the application
will be available in English, Albanian and Serbian and another language,
if the Ombudsperson so decides. 6.
The Applicant or her/his Representative shall inform the Ombudsperson
of any changes of address or any circumstances relevant to the application. Rule
2 The
Ombudsperson may conduct investigations on her/his own initiative on receiving
information indicating that human rights violations or abuses of authority
may have occurred. When deciding whether to open such an ex officio
investigation, the Ombudsperson may consider information from any source. Rule3 1.
The Ombudsperson shall provisionally register all applications received. 2.
The Ombudsperson shall notify the Applicant of receipt of the Application
as soon as possible. Rule
4 1.
Upon receipt of each application, the Applicant or the Representative
will be asked whether she/he would like her/his/their names to be kept
confidential. 2.
The Ombudsperson Institution staff members who have access to confidential
or classified information are bound not to disclose it to public or authorities. 3.
All documents collected during the investigation of cases where discretion
is required,
shall be registered as classified, either upon request by the Applicant
or on the Ombudsperson's own initiative. 4.
All classified documents shall be kept in a specially designated secured
location. 5.
Access to classified documents shall be limited to the investigators who
are directly assigned to deal with the respective case and the Director
for Investigations. Access of other staff to such documents may only take
place when authorised by the Ombudsperson. Rule
5 1.
The Ombudsperson shall verify the admissibility of the application. 2.
The Ombudsperson shall not consider applications admissible if the application: a.
does not fall under the jurisdiction of Ombudsperson in accordance with
the provisions of Section 3 of Regulation No. 2000/38 of 30 June 2000; b.
is manifestly ill-founded or constitutes an abuse of the right of petition; c.
has not been brought before the competent authorities in Kosovo and there
are reasonable grounds to believe that such authority would provide an
effective remedy; d.
is filed by an administrative or other authority and concerns facts under
the jurisdiction of that same authority. 3.
The Ombudsperson may, at her/his discretion, waive any of the conditions
listed above, with the exception of condition 2a. 4.
In order to verify the admissibility of an application, the Ombudsperson
may conduct any necessary interviews or research. Rule
6 1.
Once admissibility is verified, the Ombudsperson will open an investigation
of the case. 2.
Following this decision, the case will be registered. Rule
7 1. When
the Ombudsperson finds an application to be inadmissible, she/he shall
inform the Applicant of the basis for that decision. When appropriate,
the Ombudsperson shall also inform the Applicant of any possibilities
to file a new or renewed application, for example, on the provision of
new information, such as the exhaustion of other remedies or other means
of redress falling outside the jurisdiction of the Ombudsperson. 2. If
it has been decided that the application is admissible, the Ombudsperson
shall notify the Applicant. Rule
8 When
the Ombudsperson decides to conduct investigations by her/his own initiative,
she/he makes a written decision including the grounds for that decision
and this shall be registered as the basis for conducting investigations. Rule
9 1.
The Ombudsperson may discontinue an investigation of a case if any of
the circumstances provided in Rule 5 are present. 2.
The Ombudsperson may discontinue an investigation if the Applicant so
requests. 3.
If the Ombudsperson decides to discontinue an investigation, she/he will
notify the Applicant of this decision and its basis. In such cases the
Ombudsperson will strike the case from the list of pending cases. 4.
The Ombudsperson shall inform the Applicant of the possibility of having
the case reopened if the grounds for the decision to strike the case
do no longer exist and/or new facts are presented to the Ombudsperson
that justify renewing an investigations of the case. Rule
10 1.
The Ombudsperson may inform the Respondent Party/Parties as soon as possible
of the application and invite the Party/Parties to submit written information,
observations and/or envisaged solutions. The Respondent Party/Parties
may also be required to submit specific documents. 2.
The Ombudsperson sets the time limit within which the Respondent Party/Parties
shall comply with requests of the Ombudsperson. 3.
Should the Respondent Party/Parties fail to respond, the Ombudsperson
may pursue the investigation on the basis of other information available. 4.
In special circumstances, the Ombudsperson may decide to initiate investigations
in a case without seeking information and/or observations and/or envisaged
solutions from the Respondent Party/Parties. Rule
11 1.
If investigations suggest that any authority other than the Respondent
Party /Parties are in any way involved in a case, the Ombudsperson may
contact the respective authority at any time during the investigations. 2.
The Ombudsperson may decide to qualify the respective authority as Respondent
Party/Parties and to follow the procedure provided above. Rule
12 1.
The Ombudsperson may inform the Applicant of the submission of the Respondent
Party/Parties and may give the Applicant the opportunity to reply to the
issues raised by the former. 2.
The Ombudsperson may require the Applicant to reply within a time limit
set by the Ombudsperson. 3.
Should the Applicant fail to reply, the Ombudsperson may pursue the investigations.
However, a failure to respond may be considered as a loss of interest
and it may justify the termination of the investigation. Rule
13 1.
At any time during the investigations, the Ombudsperson may interview
witnesses. 2.
If civil servants refuse or are prevented from being interviewed
the Ombudsperson may ask for explanatory letters and may address the issue
hierarchically. 3.
All persons and entities subject to the jurisdiction of the Ombudsperson
are required to provide the Ombudsperson with preferential assistance.
The staff acting on behalf of the Ombudsperson shall benefit of the same
preferential assistance. 4.
The Ombudsperson may ask for assistance from the police and KFOR if it
is necessary to secure an investigation or to protect Applicants, witnesses
or any other person/entity in any way involved in the investigations by
the Ombudsperson, including the Ombudsperson and the staff of the Institution. 5.
If preferential assistance is denied the Ombudsperson may notify the highest
authority with jurisdiction over the matter. Rule
14 1. At
any time during the investigations the Ombudsperson may ask individuals,
governmental authorities or private entities to co-operate by providing
relevant information, files and documents including those classified as
secret or confidential. They shall provide all the information and assistance
requested by the Ombudsperson. 2. In
order to ensure that her/his access to documents is not hindered, the
Ombudsperson may effectuate routine inspections to any authority under
her/his jurisdiction. 3.
All authorities under the jurisdiction of the Ombudsperson shall permit
the Ombudsperson access to their premises, allowing her/him to move within
the premises without restriction to acquire documents, interview witnesses
or carry out any other activities necessary to the investigation. 4.
The Ombudsperson may require copies of any of the above mentioned documents
be provided by the relevant authority or agency. 5.
If civil servants refuse or are prevented from providing the above mentioned
information, documents or files, the Ombudsperson may ask for an explanatory
letter and may address the issue hierarchically. 6.
If the Special Representative of the Secretary General exercises his power
to refuse the release of a document or a file, as provided by Section
4.7 of Regulation No. 2000/38, the Ombudsperson may draw such inferences
as she/he sees fit from the refusal and address such refusal in her/his
special or annual report. 7.
If requested, the Ombudsperson and/or her/his staff shall undertake a
duty of discretion with regard to the classified information or documents.
The duty of discretion shall continue after the person concerned leaves
office or ceases employment with the Institution. 8.
The Ombudsperson may at any time enter and inspect any place where people
are deprived from their liberty or where freedom of movement is restricted
(e.g. detention centre, police lock-up, house arrest, psychiatric or other
hospital). 9.
The Ombudsperson may interview in private persons deprived of their liberty
and take part in any meeting or hearing involving such persons. Rule
15 The
Ombudsperson may at any stage during an investigation be assisted by any
person deemed necessary, such as the Applicant, the Respondent Party/Parties
and/or their Representatives, interpreters and legal, forensic, financial
or other experts. Rule
16 1.
At any time during an investigation the Ombudsperson may recommend that
the respondent Party/Parties or any other authority adopt an interim measure
she/he deems necessary for the immediate protection of the rights and
freedoms of the Applicant or for the safety of the Applicant and witnesses. 2.
During an investigation the Ombudsperson may recommend the respondent
Party/Parties to suspend the execution of an administrative or disciplinary
decision if such an execution may result in irreparable prejudice for
the rights of the Applicant. 3.
The Ombudsperson may ask the responsible authorities to implement the
requested interim measure and sets the time limit within the respondent
Part/Parties shall comply with requests of the Ombudsperson. 4.
An interim measure taken in accordance with para. 1 and 2 shall stay in
force until an investigation is concluded or until the Ombudsperson decides
on its termination. 5. The
Ombudsperson shall inform the Parties and other authorities of a recommendation
made under para. 1 and 2 and on the response of the authority to whom
the recommendation was addressed. Rule
17 1.
The Ombudsperson may at any stage during an investigation offer her/his
good offices, for example mediation and reconciliation, and place herself/himself
at the disposal of the Parties with a view to secure a friendly settlement
of the matter on the basis of respect for human rights as defined in the
internationally recognised standards. 2.
When a friendly settlement is reached, the obligation undertaken by the
Parties, the time limits for their fulfilment and any other circumstances
relevant for the case shall be included in a written agreement. 3.
The Ombudsperson shall terminate an investigation and close the case when
she/he is satisfied that the Parties fulfilled the commitments undertaken
in the written agreement as a part of the friendly settlement. 4.
The Ombudsperson may also offer her/his good offices with regard to cases
involving persons from Kosovo outside of its territory. Rule
18 Once
an investigation is concluded the Ombudsperson will issue a case-report
that includes the recommendations, if any. Rule
19 1.
If the Ombudsperson finds any of the violations or abuses of authority
derived from in Sections 1 and 3 of Regulation No. 2000/38, she/he shall
make recommendations to the Respondent Party/Parties about appropriate
measures to take, and shall specify a time limit for the fulfilment of
them. The limit may be extended if the Ombudsperson deems it necessary. 2.
The Ombudsperson may recommend to the competent authorities that disciplinary
or criminal proceedings be initiated against any person. 3.
If the Ombudsperson finds that any authority other than the Respondent
Party/Parties has indirectly contributed to a breach, she/he may recommend
that the respective authority adopt any appropriate measures deemed necessary. 4.
The Ombudsperson shall notify the Applicant on her/his recommendations
and on the response of the Respondent Party/Parties or of other authorities
involved. 5.
The Ombudsperson may make recommendations to amend the existing domestic
legislation or to adopt new legislation in order to ensure the compatibility
of the legal system with the recognised international human rights standards. Rule
20 1.
Once recommendations have been made by the Ombudsperson, if the administrative
authorities or officials concerned do not take appropriate measures within
a reasonable time, or if they do not provide the Ombudsperson with reasons
for not doing so that are acceptable to the Ombudsperson, the Ombudsperson
may draw the Special Representatives of the Secretary-General's attention
to the matter and may make a public statement thereon. 2.
Once the Ombudsperson has decided that the monitoring period is over,
either because
her/his recommendations were implemented or she/he took measures according
to para. 1, the case will be closed. Rule
21 1. The
Ombudsperson shall make public her/his case-reports, save in cases which
she/he considers to contain confidential information, or where the applicant
has expressly requested that her/his/its identity and the circumstances
of the complaint are not to be revealed. 2.
All case-reports and recommendations will be available in English, Albanian,
Serbian and another language, if the Ombudsperson so decides. Rule
22 1.
The Ombudsperson shall provide an annual report to the Special Representative
of the Secretary-General covering the activities during the complete year
starting 30 June. 2.
The annual report shall be submitted to the Special Representative of
the Secretary General no later than 30 November. 3.
The Ombudsperson may issue a special report whenever she/he deems it appropriate. 4.
The Ombudsperson shall make public the reports. 5.
Annual and special reports will be available in English, Albanian, Serbian
and another language, if the Ombudsperson so decides. Rule
23 1. The
Rules of Procedure are published in English, Albanian and Serbian.
The authentic version shall be the English language version. 2. The
Rules of Procedure and any amendments to it shall be translated into any
other language in use within the territory of Kosovo, if the Ombudsperson
deems it necessary. Rule
24 The
Ombudsperson may at any time amend the Rules of Procedures following consultation
with the Deputy Ombudspersons. Rule
25 The Rules of Procedure and any subsequent amendments shall be forwarded to the Special Representative of the Secretary General, Head of the OSCE Mission in Kosovo, as well as any relevant local institutions. They shall be accessible to the public. Rule
26 The
Rules of Procedure shall enter into force on 21 November 2000. Adopted
20 November 2000 following consultation with the Deputy Ombudspersons. Marek
Antoni Nowicki Ombudsperson |