ПОСИЛЕННЯ ПОТЕНЦІАЛУ ІНСТИТУЦІЇ УКРАЇНСЬКОГО ОМБУДСМЕНА: СЕМІНАР ПОСИЛЕННЯ ПОТЕНЦІАЛУ ІНСТИТУЦІЇ УКРАЇНСЬКОГО ОМБУДСМЕНА: НОВІ МЕТОДОЛОГІЇ ТА ПРАКТИКИ ПРОВЕДЕННЯ МОНІТОРИНГУ ДОТРИМАННЯ ПРАВ ЛЮДИНИ STRENGTHENING THE UKRAINIAN OMBUDSPERSON INSTITUTION: RECOMMENDATIONS REGARDING METHODOLOGIES AND PROCEDURES TO CARRY OUT A MONITORING OF THE OBSERVANCE OF HUMAN RIGHTS EU Twinning Ombudsman

Assessment of the evidence Vigintas Višinskis Kyiv, April 18th 2018 This project is funded by the European Union

General Provisions of Evidence Assessment Process resulting in the identification of truth Essential part of proof collection Evidence-only data confirming or denying a single circumstance affecting the truthful outcome Principle of free asseassment No evidence treated as superior to other ECHR practice in asylum cases This project is funded by the European Union

F.G. v. Sweden and J.K. and Others v. Sweden (slide 1) Subsidiarity: ECHR is not substituting its views to those of national authorities. However, it must be satisfied that the assessment at the domestic level was adequate. Risk assessment and burden of proof: it is for the individual to submit reasons and evidence for his or her claim, but there is a shared duty to ascertain and evaluate all the relevant facts. This project is funded by the European Union

F.G. v. Sweden and J.K. and Others v. Sweden (slide 2) General and individual risks: the authorities assess the risks to a person. Past ill-treatment: would provide a strong indication for the possible ill- treatment in the future. In such circumstances, the burden of proof shifts to the State. Ex nunc assessment: the relevant point in time is that of the Court‘s consideration of the case. This project is funded by the European Union

Evidence assessment Based on comprehensive and objective analysis of all circumstances; Consists of determination of its tangibility, eligibility, credibility and sufficiency; Generally known facts; Inner credibility of evidence (completeness, concreteness and consistency of data). This project is funded by the European Union

Formulation of conclusions on evidence credibility (slide 1) Assessment of documentation: carried out within the context of other evidence used to determine and to prove a certain material fact; within other aspects of credibility assessment ; assessed on equal grounds with other evidence; a document shall not be treated as useless without explanation what objective evidence allowed to draw such conclusion. This project is funded by the European Union

Formulation of conclusions on evidence credibility (slide 2) Personal Testimony; facts and circumstances to be taken into account: Memory Psychological and health issues Age Education Culture, religion, beliefs Sexual orientation and sexual identity Sex Avoid presumptions and stereotypes Case decision shall take into consideration all evidence related to all aspects for each material fact. This project is funded by the European Union

The material facts may be accepted if: Personal testimonies are sufficiently comprehensive; Consistent; Match the information presented by other persons and witnesses; Match the concrete and generally accepted information; Credible within the context of individual and general circumstances; Supported by credible documents and other evidence (i.e. based on credibility and relevance of such documentation). This project is funded by the European Union

PRINCIPLES OF IMPLEMENTATION OF DECISIONS Rule of Law Principle of objectivity Proportionality Fairness Collegial assistance Efficiency Equality Transparency Personal responsibility This project is funded by the European Union

Implementation Upon formulation of decision the term of implementation shall be set. The contents of the decision should clearly state the legal actions towards the implementation of the decision. If during the implementation new evidence comes up, the executing officer shall decide on the need of delay or suspension of the implementation of the decision based on internal legal regulations. This project is funded by the European Union

Control of implementation of the decisions Internal control - verification of deadlines for decision appeals (if it is subject to appeal), examination of the form of the decision and its conformity to legal provisions and valid regulations, verification that executing officer is properly authorised for legal actions. External control - verification of officers authorised with the implementation of a passed decision and selection of means of information delivery (by mail, e-mail, personal delivery, courier service, etc.) This project is funded by the European Union

Thank you for your attention! EU Twinning Ombudsman