Natisni vsebino

Effectiveness of an Ombudsman Institution

15.11.1999 17:36
Category: speeches


FIFTH UNDP INTERNATIONAL WORKSHOP ON OMBUDSMEN AND HUMAN RIGHTS INSTITUTIONS
Almaty, 15-17 November, 1999

EFFECTIVENESS OF AN OMBUDSMAN INSTITUTION
Ivan Bizjak, Ombudsman of Slovenia

 

During a discussion of the role and the effectiveness of theombudsman, one of my colleagues suggested rather picturesquely that,while the ombudsman cannot turn hell into heaven, he can at least makelife in hell more bearable. Assessing the effectiveness of anindividual ombudsman is often like the analogy of the half-full glass:the pessimist (or malicious observer) will only see that a goodproportion of the contents is missing, while the optimist (orwell-intentioned observer) will be happy to see that the glass is halffull. The effectiveness of an ombudsman depends partly on his activity,and to a considerable extent also on circumstances in the environmentin which he works.

Questioning the effectiveness of the work of the ombudsman isparticularly topical when a decision is being made to establish a newinstitution of this type. The ombudsman is not one of the traditionalbranches of authority, or one of the organs of the publicadministration without which the state cannot function. For this reasonit is difficult, in a country which does not yet have an ombudsman, toimagine the role of such an institution and its influence. Since therole of the ombudsman is often reduced to merely dealing(independently) with complaints, I shall present at the outset somepoints which represent various aspects of the institution of ombudsmanin a democratic country governed by the rule of law:

* Despite the modest tools at its disposal, theinstitution of ombudsman has a considerable influence on thesafeguarding of human rights, good administration, policy-making andthe prevention of corruption. This role is especially important intransition conditions.

* The ombudsman influences the bringinginto effect of a more user-friendly public administration.

* Through research and reviews hecontributes to the prevention of human rights violations and to theremoval of the consequences of such violations.

* Through proposals for formulating andchanging policy he contributes to the removal of deficiencies in thefunctioning of the state and thus the reasons for social conflicts.

* Because of the larger number ofdeficiencies in the normative and institutional work of the mechanismof the state in transition conditions and in conditions following theestablishment of a new state, the role of the ombudsman is moreimportant in such cases than in traditional democratic countries, sinceit contributes to the strengthening of democracy and the modernisationof state institutions.

Given the planned scope of this paper I do not intend to go into allthese points in greater detail. I should immediately say, however, thatfor the effective realisation of the role outlined above, it isnecessary to provide powers suitable for the institution and asufficiently broad jurisdiction. Restrictiveness in the definition ofthe ombudsman’s mandate is not a good thing. Worries about giving theombudsman too-sweeping powers are unfounded, since the ombudsman doesnot make binding rulings, while the more successful his activities thebetter it is for the country and in particular for its citizens.

The effectiveness of the work of an ombudsman is hard to measure. Hisrole combines various types of function: intervention, dealing withcomplaints, identifying and removing irregularities (which includesremoving their consequences and reparation for them), supervision ofthe work of state bodies (preventive role) and proposing measures toimprove the situation and the functioning of the state. Some functionsare of a reactive nature, while the ombudsman’s proactive, preventivefunction is likewise important. Neither should we overlook the moregeneral role of ‘social seismograph’ which is reflected in assessmentsof the respecting of human rights and the rule of law, and in thedrawing of attention to broader, systemic problems deriving from thetreatment of specific complaints or the more general treatment ofimportant issues.

This raises a fundamental question: is the ultimate range of this typeof institution merely the uncovering and rectifying of specific errorsin the work of the bodies which fall within its jurisdiction, or doesits existence have in fact other implications for the functioning ofthe state? One of the essential roles of the ombudsman is thealternative, out-of-court settlement of conflicts. However theinvestigation of individual cases leads to more general findings onwhich the ombudsman’s recommendations, opinions, proposals andcriticisms are based. The ombudsman’s work does not extend to changingthe situation directly, in the form of binding rulings, but it can havean effective indirect influence.

I believe that given the specific nature of the conditions relating tothe relationship between the individual and the state in transition andconditions where an independent state is establishing itself, this moregeneral role of the ombudsman also has a special importance in theseconditions.


Factors influencing effectiveness

The effectiveness of the influence of the ombudsman depends on numerousfactors. I only intend to analyse a few of these factors (the positionof the institution, level of democracy and rule of law of the country,economic development) and their influence.

Position of the institution: since the ombudsman does not have formalpower in the form of binding rulings, compulsory remedies, andfinancial resources, it is that much more important that theinstitution be given an appropriately high position in the structure ofthe state. This is where it derives its informal power from. It isimportant that the institution of ombudsman is grounded in theconstitution as one of the supreme institutions of the state. Of keyimportance for its independent operation are legal provisions on anappropriate method of financing, on the method of appointing anombudsman, and on restricted possibilities for dismissing him.

Naturally the position of the institution is also influenced by itsmethod of work, particularly in the initial period. On this dependsgeneral public awareness of the institution, the public’s trust in it,and respect for it from those in authority.

Level of democracy of the country and level of respect for the rule oflaw: the ombudsman can work effectively in the environment of ademocratic country governed by the rule of law. Such a country is ofcourse an ideal, and the resemblance of the actual state of affairs tothis ideal will vary from country to country. Of key importance is asufficient level of responsibility from those elected to power. This isreflected in the fact that the pressure of elections mean that they areprepared to take into account proposals and criticisms. A preconditionfor the work of the ombudsman are established and functioningmechanisms of a state based on the rule of law. The ombudsman cansupervise their functioning and contribute to improving them, but hecannot establish them. On the other hand, provided that there is anappropriate level of responsibility among those in authority, in caseswhere the functioning of the rule of law is weak (because of transitionconditions or when a new state is being established), the ombudsman cancontribute a great deal to the more rapid addressing of key problems(modernisation of legislation, transformation of public administration,improvement of the practice of state bodies). If however those inauthority can blithely and without electoral consequences ignoreproposals and criticisms, the ombudsman cannot be effective.

Economic development of the country: particularly where the exercisingof social rights and the guaranteeing of ‘a life worthy of humandignity’ are concerned, it is impossible to avoid the economic strengthof a country. This applies both to the addressing of individual casesand the proposing of systemic solutions (legislation or social policy).Even the international legal acts regulating social rights are too alarge extent programmatic in nature (example: the European SocialCharter). Allocating resources is a policy matter, but nevertheless theombudsman can draw attention to phenomena and problems which mean aclear violation of the human rights of certain categories of thepopulation, and contribute to the prevention of conflicts and togreater social cohesion. Of course, if the resources available aremodest, his possibilities are relatively limited.


Methods and mechanisms of influence

The series of instruments available to the ombudsman for exerting an influence is relatively modest.


* The investigation of an individual case of analleged deficiency, and the taking of measures (proposals, opinions,recommendations, interventions, criticisms) when irregularities andviolations are identified are designed for the addressing of concretecases. They do however encourage responsible behaviour, since those inauthority know that someone is supervising them. The effect of thistype of work on the prevention of arbitrary, unlawful and incorrectbehaviour is difficult to quantify.

* Recommendations (including proposals,opinions and criticisms) form a special kind of judicature which bodiescan take into account when exercising their functions, in formulatingregulations and policies (including the allocation of resources).

* Supervision - inspections ofindividual institutions (prisons, hospitals, police detention premises)mean a preventive influence. Examination of records and on-site visits(inspection measures) have a similar effect.

* Reports are a synthesis of the abovemechanisms. The publication of these reports and their discussion inparliament means that findings from individual cases, syntheticfindings on the state of affairs in individual areas and on the work ofspecific bodies, and findings resulting from the supervisory activitiesundertaken, are subject to critical judgement. They represent thepossibility of giving warnings of a systemic nature. They are addressedto parliament, which can use them in a broad variety of ways inexercising its functions.

Some ombudsmen try to establish codes of conduct which bind publicservants and which enable easier judgement of the correctness ofproceedings in individual cases. Such codes have been introduced inIreland, the United Kingdom, Quebec, the European Union and Hong Kong,often largely at the insistence of ombudsmen.

The role and influence of the ombudsman on the respecting offundamental human rights can be highlighted in the case of peopledeprived of their liberty. The rule of the ombudsman is a dual one: heidentifies violations of rights in concrete cases, works to removeviolations and repair the consequences, and at the same time fulfils apreventive function. The institution of ombudsman can be an effectivedomestic mechanism for the prevention of torture and of inhuman anddegrading treatment or punishment. The ombudsman functionscontinuously, contributes to the putting into practice ofrecommendations, and establishes the state of affairs in this field -one of the ways of doing this is by investigating allegedirregularities. Through his opinions, proposals and recommendations hecan contribute to improving regulations and practice in relation topersons deprived of their liberty, who are undoubtedly in aparticularly sensitive situation.


Indicators of effectiveness

As I have said, there are no precise criteria for assessing theeffectiveness of the work of an ombudsman. We can however define a fewindicators which facilitate an indirect assessment of the effectivenessof the ombudsman’s work. Effectiveness can be estimated by establishingthe following indicators.


* proportion of recommendations followed: in thecase of concrete recommendations the proportion is usually very high -over 90 per cent for most ombudsmen. A lower proportion than thiseither points to the weak position of the ombudsman or the particularlypoor functioning of the state;

* success of proposals to change regulations,organisation and the method of work of state bodies: such proposals areimportant for the fulfilment of the ombudsman’s role, while theirsuccess indicates the appropriateness of the ombudsman’s role. Thenumber of proposals of this type can differ from country to country.The number should be greater in worse-regulated countries. If this isnot the case, we may assume that the ombudsman is not carrying out hisrole to the full (except if he is not empowered to make such proposals);

* response to regular (annual) and special reports;parliamentary decisions based on them: reports are designed toillustrate problems in the areas which fall into the jurisdiction ofthe ombudsman, to provide a review of work that has been done, and topropose improvements in the state of affairs. Parliament, to which thereports are sent, can deal with them with varying degrees ofthoroughness. If it accepts the ombudsman’s assessments and proposalsand calls for their realisation, this is a sign of the suitability ofthe position and work of the ombudsman. We can establish thethoroughness of the treatment and the influence of this treatment onthe activity of parliament. The first aspect aims at establishing theinfluence of the report on politicians: the question is thereforewhether the treatment of the report has allowed those responsible fordecision-making an insight into deficiencies and irregularities whichparliament can rectify within the framework of its authority andfunctions. Another point, perhaps the main point, is the influence onsetting priorities in the legislative process. At the same time, athorough treatment can have an important influence on the execution ofparliament’s supervisory function in relation to the government.Another important criterion is the media response to reports;

* rating of the institution by the general public,which is also reflected in trends of individuals applying to theombudsman. This indicator is an indirect reflection of theeffectiveness of the ombudsman;

* media presence of the institution: the media isone of the key allies of every ombudsman. Through the media he can winpublic support for his efforts. Thus the presence of the ombudsman inthe media is an indicator of his strength. Of course this iscounter-productive if he appears in the media in a controversial role.

The indicators above enable a rough assessment of the effectiveness ofan ombudsman from the point of view of the outside observer. However,guaranteeing the maximum possible effectiveness also needs to be givensuitable attention within the ombudsman’s office. To this end it isimportant to examine constantly the following questions:

- how thoroughly do we deal with individual complaints?
- are we consistent and persistent in enforcing ‘measures’ (recommendations, opinions, proposals)?
- do we launch investigations at our own initiative with regard toblatant irregularities and deficiencies in relation to which we do notreceive complaints?

Every complaint can be dealt with in a number of ways. Even thoseworking in the ombudsman’s office can be subject to the classicbureaucrat’s disease which manifests itself in the bureaucrat’s viewingof every application or contact with the public as an unnecessaryburden. Such an approach must be constantly guarded against - by meansof appropriate organisation of the office, staff training and othermethods. The ombudsman’s office must function better than those statebodies it criticises. Achieving this goal is one of the constant tasksof every ombudsman.

Both in the enforcing of recommendations regarding individual cases andin proposals for the resolution of systemic questions, it is necessaryto achieve realisation or a well-grounded response explaining whyrealisation is not possible. The putting into effect of promisedsolutions must be monitored, since a mere promise does not solve theindividual’s problem. For this reason the ombudsman’s work does notconclude with the dispatching of the recommendation, but only when therecommendation is realised. Otherwise the ombudsman’s interventionsbecome increasingly frequently ignored and his influence is diminished.Dealing with cases on his own initiative is a precondition for aneffectively planned ombudsman institution. Of course this power must beused in the greatest possible number of cases where we do not receive acomplaint but where a serious breach of rights or deficiency isinvolved. Equally important is a frequent presence in the institutionswhich the ombudsman has the right to supervise (prisons, psychiatrichospitals, etc.), so that even those incapable of lodging a complaintor unable to do so can draw attention to problems and irregularities.


How to achieve efficiency

The above findings point to certain activities which can improve theeffectiveness of the ombudsman’s work. Some are linked to work withinthe ombudsman’s office, while activities connected with cooperationbetween different ombudsmen are also important.

Effectiveness depends to a considerable extent on the method of work.The method of processing complaints and carrying out inspections, formsof contact with plaintiffs, method of communicating with institutionswithin the ombudsman’s jurisdiction, and the method of communicatingwith the public are all important. Each of these would need specialtreatment. Comparing experiences can bring many new initiatives.

The effectiveness of the ombudsman can be judged from various points ofview. The ombudsman is in any case an important institution which canhelp improve the position of the individual in relation to the stateand the functioning of the state in relation to the individual. Incarrying out our role we never reach the goal. New steps are alwayspossible. Reflecting on our own activity and the example of others canhelp us.


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