Natisni vsebino

Country report - Republic of Slovenia

22.05.1998 18:15
Category: papers



INTERNATIONAL CONFERENCE ON ESTABLISHING NATIONAL COMMISSION FOR
PROTECTION OF HUMAN RIGHTS AND AN OMBUDSMAN
Addis Ababa, 18 - 22 May, 1998

 

COUNTRY REPORT
The Human Rights Ombudsman of Slovenia

A. Legal or constitutional basis

1. Where the provisions to be found defining the tasks andorganisational structure of the I.O.? In the constitution of the law?Is this perceived as a disadvantage (e.g. with respect toindependence)? Should the constitution or the law go into details?

After the gaining of independence, the Slovenian Parliament adopted thefirst Constitution of the Republic of Slovenia in December 1991. It isbased on the principles of a state governed by the rule of law,parliamentary democracy, and the respect for human rights andfundamental freedoms. The Constitution grants protection to the humanrights and fundamental freedoms of all persons on the territory of theRepublic of Slovenia.

In the Slovenian legal system, the Ombudsman is an entirely newinstitution for the protection of constitutionality and legality, andis determined as a constitutional category. The founding texts are TheConstitution of the Republic of Slovenia, The Human Rights OmbudsmanAct and The Rules of Procedure of the Human Rights Ombudsman. Accordingto Article 159 of the Slovenian Constitution, "the Human RightsOmbudsman shall be established by law to protect human rights andfundamental freedoms against the state bodies, local self-governmentbodies, and bodies entrusted with public authorities". According to thesame article, special ombudsmen may be appointed for individual fieldsof citizens' rights. The Slovenian Parliament has so far decided toestablish only one national parliamentary Ombudsman of generaljurisdiction.

The Law on the Ombudsman (Human Rights Ombudsman) was passed inDecember 1993 following the regular three parliamentary readings. Thelaw was proposed directly by a deputy, not through the government. Thelaw modelled the duties and authorities of the ombudsman on a classicalScandinavian type of ombudsman, combining it with some provisions ofthe legislation in those European countries, which recently establishedsuch institutions (e.g. Netherlands, Spain).

The Human Rights Ombudsman Institution was established and began towork on January 1, 1995, although the first Slovenian Human RightsOmbudsman, Mr. Ivan Bizjak, was elected already on September 29, 1994.The Human Rights Ombudsman is a single-headed institution.

The Human Rights Ombudsman Act does not require any specificqualifications for the Ombudsman. The only condition which has to befulfilled is that a candidate for Ombudsman must be a citizen of theRepublic of Slovenia.

Concerning the question if the constitution or the law should go intodetails it should firstly be stressed that the fact that theinstitution of the Ombudsman is constitutionally based constitutes animportant advantage for the work and position of the Ombudsman. It isnot necessary for the constitution to go into details, on the otherhand it is important that the jurisdiction and the competences of theOmbudsman are well described and determined in the law.

2. Who has the power of appointment of the I.O.? Where is this power tobe found and what is the procedure laid down? If appointment is not bythe Parliament, is that a disadvantage? If the I.O. does not report tothe Parliament, is that seen as a disadvantage/weakness in the system?

The Ombudsman, according to the Human Rights Ombudsman Law, is electedby the Parliament by a two-thirds majority of M.P.s upon nomination bythe President of the Republic, for the term of six years and may bere-elected only once. The appointment by the Parliament is importantand it is also good if quite a large majory is needed for appointment.The possibility to report to the Parliament is to be seen as anadvantage.

B. Independence and impartiality

3. In what way is the independance of the I.O. secured? Are theseguarantees found to be sufficient? What are the minimum requirements toguarantee impartiality? (e.g. finance, independent, staff a.o.)

According to article 4 of the Human Rights Ombudsman Act in Slovenia,the Ombudsman shall be autonomous and perform his functionsindependently. The Office of the Ombudsman is an independent state bodyfunded from the national budget. The level of funding is set by theNational Assembly on the proposal of the ombudsman and not by thegovernment as is the case with other budget recipients. This is animportant aspect of independence.

The other important aspect of independence is the question of possibledismissal of the Ombudsman. The Ombudsman in Slovenia may be dismissedfrom his/her office on his own request or if he/she has been convictedof a criminal act and sentenced to imprisonment, or due to his/herpermanent loss of ability to perform the duties of his/her office. Theprocedure for removing the Ombudsman shall be started upon the motionmade by one-third of M.P.s. The Parliament shall remove the Ombudsmanfrom his office if two-thirds of the present M.P.s. have voted for theremoval.

Also very important is the immunity of the Ombudsman. According toArticle 20 of the Human Rights Ombudsman Act, the Ombudsman shall notbe held responsible for an opinion or recommendation given whileperforming his function. The Ombudsman shall not be held in custody incriminal proceedings instituted against him for having performed hisfunction, without the prior consent of the Parliament.

4. How is the impartiality of the I.O. in fact secured? How is hisfield of competence separated from those of other organs of control ofgovernment power like e.g. the courts and the HRC?

The Office of the Ombudsman is completely autonomous. The organisation,size of staff and all the other organizational questions are defined bythe Ombudsman himself (Rules of procedure and other acts). Theombudsman shall have an expert service and he shall appoint anddismiss, when necessary, his counsels, advisers and other employees inhis office. He shall appoint the secretary general, who shall managethe office.

The Ombudsman may appoint advisers and other experts in his service fora fixed period, from among employees of governmental bodies, who shallretain the right to return to their former posts or employment afterthe expiry of that period.

In Slovenia there is no Human Rights Commission. The ombudsman mainlycooperates with the Petition Committee of the Parliament and with theOffice of the President of the Republic.

C. Complaints regarding acts of government

5. If complaints to the I.O. concern acts of government, does that alsoinclude inaction of government organs and also acts/actions ofgovernment persons or civil servants? Is any (category of) governmentact(s) complainable or are there exceptions? (e.g. departments ofdefence, police, semi-government organs)?

The Ombudsman shall protect human rights and fundamental freedoms inmatters involving state bodies, local self-government bodies and bodiesentrusted with public authority. He may also investigate cases ofmaladministration of the above mentioned bodies. From the competence ofthe Ombudsman no body is specifically excluded. If complaints to theOmbudsman concern acts of government this also includes inaction ofgovernment organs and also acts or actions of government persons orcivil servants.The Ombudsman shall have the right to obtain anyinformation from state bodies, bodies of local self-government orbodies entrusted with public authority, irrespective of the level ofsecrecy and the respective bodies have to enable him to carry out theinvestigation.

6. Are there any restrictions because of the requirements? If so, arethese found to be inhibiting or in another way restrictive? Cancomplaints be lodged directly with the I.O. or not, and can the I.O.decide independently to entertain complaints?

According to Article 24 of the Human Rights Ombudsman Act the Ombudsmanin principle shall not interfere in the cases before a court or in anyother legal proceedings which are being conducted, except in case ofundue delay in the proceedings or evident abuse of authority.

The Ombudsman shall not begin proceedings if more than one year haselapsed from the last decision of a body, or the act in question,except where he assesses that the petitioner could not meet thedeadline for justifiable reasons or that the matter is of suchimportance that he should start proceedings despite the delay.

The mentioned restrictions are not found to be inhibiting or in anotherway restrictive because there are always possible exceptions. Accordingto Article 25 of the Human Rights Ombudsman Act the Ombudsman maycommunicate to each body his opinion, from the aspect of protection ofhuman rights and fundamental freedoms, on the case he is investigating,irrespective of the type or stage of proceedings which are beingconducted by the respective body.

Any person, who believes that their human rights or fundamentalfreedoms have been violated by an act or deed of state body, a body oflocal self-government or a body entrusted with public authority, maydirectly lodge a petition with the Ombudsman to start proceedings. Theprocedure is confidential. The Ombudsman may also institute theproceedings on his own initiative or the initiative of third party butwith the consent of the affected person. He may make suggestions andrecommendations, give opinions and critiques to these bodies, which arebound to consider them and respond within the deadline specified by theOmbudsman. All officials of the above mentioned bodies are bound torespond to the ombudsman's call, to cooperate in an investigation andto provide explanations. The Ombudsman may summon any witness or expertto talk about the matter he is dealing with and the summoned personmust respond to the summons.

The Ombudsman may enter any official premises of the abovementionedbodies; he may inspect prisons and other places of detention or otherinstitutions with restricted freedom and he shall be entitled to talkin private with persons in these institutions.

The Ombudsman may submit to the Parliament and Government initiativesfor amending laws or other legal acts within their competence. He mayalso make suggestions to state bodies, institutions and organizationsentrusted with public authority, for improving their work and conductwith clients. He may also lodge a request with the Constitutional Courtfor the assessment of the constitutionality and legality of acts orother enactments. Besides, the Ombudsman may also lodge aconstitutional appeal relating to an individual matter he is dealingwith.

D. Investigation, report and recommendation

7. Is the I.O. in any way restricted as to the grounds on whichgovernment action is to be judged? Are they legal grounds ofeffectivity or good government?
When is a complaint considered well founded?
If the I.O. has full powers of investigation, are these thensupplemented by right of access to all government documents and theduty on the side of government authorities and civil servants of fullco-operation?

The Ombudsman shall have power over the state bodies, localself-government bodies and bodies entrusted with public authorities.There is no restriction concerning the question on which groundsgovernment action is to be judged. The law primarily gives theombudsman the authority to obtain information from the state and otherbodies that it monitors, irrespective of the level of secrecy, to carryout inquiries, and to invite witnesses to hearings as part there of. Itmay inspect any state body, facilities for people with restrictedpersonal freedom, and psychiatric and similar institutions at any time.An important power of the ombudsman is that he can lodge aconstitutional complaint against violations of human rights, inagreement with the affected party. He may also address a proposal tothe Constitutional Court to assess the constitutionality of regulationswithout the Constitutional Court having to establish his legal standingas is the case for other proposers.

The complaint is considered well founded when there is a violation ofhuman rights or fundamental freedoms, a violation of the constitution,legal acts or binding international documents, if there is undue delayin the court or some other legal proceedings and in the case of someother maladministration.

The Ombudsman has full powers of investigation including the right ofaccess to all government documents. According to Article 34 of theHuman Rights Ombudsman Act all state bodies are obliged to help theOmbudsman in conducting an investigation and render him adequateassistance upon his request. All officials and other employees of thestate bodies, local self-government bodies, and bodies entrusted withpublic authority must respond to the Ombudsman´s call to co-operate inan investigation and provide explanations. The president of theParliament, the Prime Minister, and every minister shall be bound togrant personal audience to the Ombudsman within 48 hours of his request.

8. To whom does the I.O. report?

After the investigation has been conducted, the Ombudsman drafts areport on his findings and communicats it to both parties concerned.They are both entitled to make their comments on the findings about theactual situation, or give proposals for completing the findings in thereport. In his final report, the Ombudsman states his assessment offacts and circumstances of each individual case and establishes whetheror not the human rights or fundamental freedoms have been violated inthat particular investigated matter, and how they have been violated;or, whether or not some other wrongs have been committed. Concurrently,the Ombudsman shall propose a way to redress the wrong established.Provided that the respective procedural regulations so allow, theOmbudsman may propose that the particular procedure in which aviolation has occurred or maladministration has taken place, should berepeated.

If this is not possible, the Ombudsman may propose that the respectivebody should compensate that particular individual for the damage thathe/she has suffered due to the violation or maladministration. TheOmbudsman may also propose that the respective body make apologies tothe aggrieved person for the maladministration. In his final report theOmbudsman may propose the instituting of disciplinary proceedingsagainst the responsible official of the respective body.The decisionsof the Ombudsman are not legally binding.

In accordance with Article 43 of Human Rights Ombudsman Act, theOmbudsman shall lay before the Parliament his annual and specialreports on his work. An annual report includes findings aboutrespecting human rights and fundamental freedoms, and on the legalsecurity of the citizens in the Republic of Slovenia. The Ombudsman hasto submit the annual report for the previous year not later thanSeptember 30 of the current year. He may also submit special reports tocompetent parliamentary bodies (committees) or directly to theParliament.

During the debate on the annual report at the session of theParliament, the Ombudsman may himself present a summary of the reportand ensuing conclusions. The general annual report of the Ombudsmanshall be promulgated. It is published as a special edition but also inthe Parliamentary gazette. In both forms it is widely distributed amongthe bodies and officials concerned and the general public. Anabbreviated English version is published as well and distributed to therespective representatives of other countries, internationalinstitutions and related institutions in other countries.


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