Updated, May 2018
On 15 March 2018, Ukraine’s Verkhovna Rada appointed a new Ombudsperson. Lyudmila Denisova, suggested by the Party “People’s Front” was elected through an open vote. This appointment, overdue for almost a year, is certainly an important step towards entrenching democracy further in the country. However, the process of this election raises doubts about the Verkhovna Rada’s respect for relevant laws and international practices.
There are two laws which are relevant to this election. The Ombudsman Law, which specifies a secret ballot, and the Law on the Rules and Procedures of Ukraine’s Verkhovna Rada, which requires open voting. After the appointment of Ms Denisova, the draft law suggesting amending the Rules and Procedures of Verkhovna Rada and (re)-establishing a secret voting was dropped from Parliament’s agenda, meaning that the collision is still in place.
On the appointment day, the issue of conflicting legislation was raised by the deputy Hryhoriy Nemyria from the All-Ukrainian Union “Fatherland”) party. The Chairman of the Verkhovna Rada, Andriy Parubiy („People’s Front”), justified the open voting by referring to the ‘Committee on questions related to the Rules and Procedures and organisational work of Parliament’.
This Committee favoured the open ballot mentioning the argumentation of the Constitutional Court in a decision on secret ballot voting for elections of the Chairman of Parliament, which was found unconstitutional as it contradicts the “openness” of the Parliament. Furthermore, the requirement for open voting is not specifically mentioned in the Constitution. The Constitution states that Parliament’s work is regulated by the Constitution and the Rules and Procedures of Parliament.
Yet, a closer look at the Court’s decision reveals that the merits of the complaint filed with the Court were more about vote counting based on either the constitutionally set number or the actual presence of deputies. It is also debatable whether the Court would apply the same reasoning when assessing the voting procedure for an independent National Human Rights Institution such as the Ombudsman and considering a still present party control culture in Ukraine, where members of the parliament follow the party leader’s decision.
The practice of secret voting for Ombudsman candidates applied until March 2018 and was not considered unconstitutional or challenged before the Constitutional Court, despite not being explicitly mentioned in the Constitution
The argumentation above suggests a far-reaching conclusion, namely, that for the Verkhovna Rada in case of collision of the Rules and Procedures with other laws, the Rules and Procedures will prevail.
More on the role and election of Ukraine’s Ombudsperson in DRI Legal News, Issue 3.
 See the Resolution of the Verkhovna Rada of Ukraine “On Appointing L.L.Denisova the Verkhovna Rada of Ukraine’s Commissioner for Human Rights” of 15 March 2018 no. 2344-VIII, available in Ukrainian <http://zakon3.rada.gov.ua/laws/show/2344-19> (4.04.2018).
 See the transcript of the XVII Meeting of the Verkhovna Rada of Ukraine on 15 March 2018 available in Ukrainian <http://iportal.rada.gov.ua/meeting/stenogr/show/6746.html> (4.04.2018).
 See the Clarification (in analyzing the practice of applying provisions of the Rules of Procedure of the Verkhovna Rada of Ukraine in response to the letter by Head of the Verkhovna Rada Andrii Parubii of 27 February 2018 no. 01/04-99(41335); available in Ukrainian <http://reglament.rada.gov.ua/news/dijaln_komit/rozzyasnennya/73616.html> (4.04.2018).
 See the Judgment of the Constitutional Court of Ukraine of 11 July 2012 no. 15-рп/2012 in the case on electing Head of the Verkhovna Rada of Ukraine; available in Ukrainian <http://zakon3.rada.gov.ua/laws/show/v015p710-12> (4.04.2018).
Photocourtesy: Père Ubu/Flickr