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Establishing of ombudsman offices in the Central and Eastern European countries... (September 1998)

19.09.1998 18:10
Category: speeches


SEMINAR ON THE INSTITUTION OF THE OMBUDSMAN
Tallinn, 18 - 19 September, 1998

ESTABLISHING OF OMBUDSMAN OFFICES IN THE CENTRAL AND EASTERN EUROPEAN COUNTRIES (THE EXAMPLE OF SLOVENIA)
Jernej Rovšek, Deputy Ombudsman

I begin my presentation by describing the foundation of the institution of ombudsman in the Republic of Slovenia, its characteristics and experience gained through work done to date. In the second section I shall attempt to present certain characteristics common to ombudsmen in the countries of Central and Eastern Europe and the issues which relate to them. In this section I shall also touch on the draft of the Legal Chancellor Act.

1. Origins and experience of the Slovene ombudsman

The institution of Human Rights Ombudsman (hereinafter: ombudsman) was introduced into Slovenia's constitutional system with the passing of the new constitution in December 1991. The ombudsman is defined by just one article, Article 159, which stipulates that an ombudsman shall be established by law to protect the fundamental rights of individuals in matters relating to state bodies, local government bodies and statutory authorities. The second paragraph of this article states that special ombudsmen can also be established by law for individual areas (to date no special ombudsmen have been appointed).

When evaluating the origins of the first Slovene ombudsman we cannot overlook the role of the office's predecessor, the Council of Human Rights and Fundamental Freedoms (hereinafter: the Council). The Council was founded in 1988, at a time when consciousness of the role and importance of the protection of human rights was increasing in Slovenia. This was still the time of the old Yugoslav regime. Throughout its existence the Council operated as a collective body. Its members were eminent individuals, university professors, artists, journalists, priests and others, who carried out this work on a non-professional basis. The work of the Council can be divided into three periods. In the first period, from 1988 to 1990, it operated within the framework of the mass organisation of the time, the "Socialist Alliance". The mandate holder in the structure of Council members was its president Professor Ljubo Bavcon, a criminal law specialist at the University of Ljubljana. During this period the Council operated for the most part by means of public statements on general and current issues relating to human rights violations in Slovenia and Yugoslavia. In 1990 republican assembly passed a special law on the Council which added to its general functions in the area of the protection of human rights the necessary legal powers to deal with individual cases. These were powers relating to access to all information held by state bodies - the kind of powers that ombudsmen have. The law also stipulated that the president and (at his proposal) the members be elected by the republican assembly. At that time the Council became independent and also physically moved into premises in the parliament building. In its final period of operation, until the end of 1994 when it was replaced by the ombudsman, the Council gave increasing emphasis to the treatment of individual complaints. In this period it dealt with approximately 300 written complaints annually, and around 1000 telephone inquiries and requests for legal aid. This is not a great number, but it should be remembered that at that time the Council only had two professional staff. As secretary of the Council I myself undertook specialist work for the Council as a collective body and dealt with individual complaints in cooperation with the president and certain members. Thus I can conclude that the ombudsman did not begin from nothing, and that he was in effect continuing the rich tradition of the Council, especially in dealing with individual cases.

The first discussions on passing a law on a human rights ombudsman took place within the framework of the Council. Among the fundamental questions cleared up at this time were: whether to establish one or several ombudsman, whether to have a collective or an individual body, the extent of his powers in relation to various bodies, etc. On this basis, and on the basis of some professional consultations and knowledge I had gathered at ombudsmen meetings, I prepared the text for the first reading and gave it to a member of parliament, the then president of the human rights committee, who officially launched it into the legislative procedure. The law went through the normal three-phase legislative procedure without any particular difficulties and was passed in September 1993. Some members proposed making the ombudsman more directly dependent on parliament, especially with regard to his early dismissal, while others proposed limiting his powers of supervising the armed forces, but these proposals were not accepted and the original concept of the law was preserved for the most part.

Mr Ivan Bizjak was elected the first Slovene ombudsman in September 1994, with 61 votes from the total 90 members of the National Assembly. Three deputies were appointed by the National Assembly in December 1994 at his proposal. The ombudsman office officially commenced work on 1 January 1995.

The law gives the ombudsman all powers characteristic of ombudsmen. He has access to all information and documents, regardless of their level of confidentiality, and access to all premises of state bodies. He may call state officials to discussions and may also summon anyone as a witness. Failure to respect the demands of the ombudsman is an offence under the law. The ombudsman may carry out inspection visits to prisons, military barracks and other institutions where freedom of movement is restricted. He may hold face-to-face conversations with prisoners and receive mail from them without checks or supervision.

The law guarantees independence both to the institution as a whole and to those holding functions within it. A two-thirds majority is required for both the appointment and the dismissal of the ombudsman, where the reasons for dismissal are stated in the law. Parliament cannot dismiss the ombudsman simply because it is not satisfied with his work. He also enjoys professional immunity. The independence of the ombudsman is further guaranteed by the manner in which the office is financed, since the share of budget funds is proposed directly by parliament and not by the government.

The law on the ombudsman stipulates that the ombudsman bases his proposals on the provisions of the Constitution and international legal acts on human rights and fundamental freedoms. He may appeal in his interventions to the principles of equity and good administration. The law does not specify national laws or other regulations as the basis for his intervention, since these can conflict with the constitution or international legal acts. In practice we often quote in our recommendations case-law from the European Court of Human Rights in Strasbourg.

In relation to the judiciary the ombudsman can only intervene in the event of the unjustified protracting of a procedure or clear abuse of authority. For this seminar it seems to me important to draw attention to the powers the ombudsman has in relation to the constitutional court. He is authorised to propose the initiation of the procedure to assess the constitutionality of laws or other regulations. This means that the constitutional court has to judge his proposal by its content and legal interest is not determined as it is for other proposers. The second option is the individual constitutional complaint, which the ombudsman can lodge with the consent of the affected party in cases where human rights or freedoms are violated. Both of these powers are defined by the law on the constitutional court and not by the ombudsman act.

Two interesting features of the Slovene ombudsman's methods of work are the free phoneline and the visits to major towns. These visits are announced in advance in the local media and give everyone the opportunity to have a discussion with the ombudsman or one of his deputies.

 should also mention some critical observations made about the ombudsman act. The law determines the investigation procedure in great detail and very formally. This procedure is supposed to commence with a formal document ordering the start of the investigation and with other formal phases of the investigation procedure. This part of the law, which I prepared mainly on the basis of the practice used by the Parliamentary ombudsman of the United Kingdom, is used very seldom, since in the great majority of cases we use an informal shortened procedure.

The Slovene ombudsman received 2,352 written complaints in 1995, 2,513 in 1996 and 2,886 in 1997. Comparisons show that the number of complaints per inhabitant is several times higher than in countries with a longer ombudsman tradition. The Slovene ombudsman receives approximately 14 complaints per 10,000 inhabitants, while the Nordic ombudsmen receive on average 5 complaints per 10,000 inhabitants.

On the basis of complaints dealt with in the first years, the main problems lie in:

    * inappropriate, incomplete and outdated laws and other regulations;
    * length of procedures in courts and with administrative bodies;
    * inappropriate attitude of state bodies to individuals;
    * lack of care for certain special groups of citizens most affected by economic transformation (unemployment, social and housing problems);
    * absence of effective complaint mechanisms in many areas;
    * insufficient notification of public of government intentions.

2. Characteristics of the work of ombudsmen in the countries of central and eastern Europe

The world is witnessing the rapid development of the institution of ombudsman, particularly in countries in transition around the world. A great many different types of ombudsman exist, although I shall concentrate only on the 'classic' national parliamentary ombudsman. The institution of ombudsman has developed differently in every country, depending on the constitutional and political regulation and also on economic, social and cultural differences in individual countries. Despite these differences certain common characteristics exist which define the classic parliamentary ombudsman. First among these is independence, followed by credibility, accessibility, effectiveness and impartiality. Independence as the basic characteristic of the classic ombudsman has been stressed on numerous occasions by the president of the International Ombudsman Institute (IOI) Mr Marten Oosting, who has also been the ombudsman of the Netherlands for many years. Independence is also a fundamental criterion for membership of the IOI.

Below I describe some common features of the work of ombudsmen in the countries of Central and Eastern Europe. I rely here on the annual reports that are available, particularly those of the Slovene and Polish ombudsmen. It is interesting that both give a very similar assessment of the conditions in which they have been working. I have also taken into account the report of the Conference Central and Eastern European Ombudsmen held in Budapest on 21 and 22 November 1996.

The first finding relates to the relatively large number of applications and the great expectations which the public has of the ombudsman. In relation to this the Polish ombudsman Mr Tadeusz Zielinski (the second mandate holder) states in his report for 1995 that the great trust that citizens have in the ombudsman is not matched by their knowledge about the power of the institution, especially with regard to individual cases. Many individuals expect the ombudsman to resolve their housing, employment or other social problems or to influence the work of legislative, executive and judicial bodies. Mr Zielinski states that many are unaware that he only has a limited possibility of intervening in the system of the tripartite division of power. He cannot intervene in the legislative branch, influence government policy, replace state bodies or intervene in the decisions of independent courts.

The second feature that needs to be mentioned is the incomplete, unsuitable and outdated legal order. Elements of new and old regulations mingle with each other and in individual areas this has led to regulations being changed countless times. Numerous legal vacuums also exist, which state bodies often fill to the detriment of individuals. Frequently state bodies themselves fail to contribute to the assertion of the rule of law since in unstable legal conditions they seek shortcuts in introducing new legal standards and institutions. Instead of annulling old regulations by legal procedure they request that they be ignored. This has been frequently reported on by both the first and second Polish ombudsmen.

The third circumstance is the general maladministration of state bodies. These are slowly adapting to the new conditions in which the protection of the rights of individuals rather than the interests of the state should take first place. There are frequent cases of lengthy procedures both in administrative and legal procedures. In Slovenia the length of court procedures is a particular problem. Some judges mistake independence for unaccountability. The attitude of state bodies to individuals is generally poor, but in many areas there are no effective complaints mechanisms. There is no real culture of complaining among the population, while many people doubt the effectiveness of complaints because of the bad experiences they had under the previous system. Thus in Slovenia we find that there are very few complaints about the work of the health service, although we know that there are many shortcomings. On the other hand the parliamentary ombudsman in the United Kingdom receives many more complaints in the health service side of his work than he does in the side of his work concerning general administration.

The fourth characteristic of countries in transition are the numerous social problems which are the result of economic and social reforms. Many individuals and groups are in a position from which there is no way out, especially the long-term unemployed and those who have lost hope of finding new employment. The report of the Budapest conference states in relation to this that the ombudsman does not elaborate social policy, and therefore poverty is a phenomenon which the ombudsman cannot effectively influence.

On this basis it is possible to conclude that the ombudsmen in the countries in transition deal more with systemic errors and irregularities in regulations than their colleagues in countries with a longer tradition of democracy. These are problems which derive from the legal system itself, i.e. from incomplete, unsuitable or outdated legislation, and less from errors in the procedures of state bodies (maladministration). Thus these problems cannot be resolved merely by intervening in an individual case, since as a rule they involve a more general problem which affects whole groups of individuals. Solving an individual case without changing the rules or regulations does not mean an effective doing away with the irregularity or the prevention of similar violations in the future. The work of the ombudsman in such conditions must there be more orientated towards changing regulations or passing new ones which generally regulate the problems of individual groups of citizens. The report of the Slovene ombudsman is full of criticisms of legislation and draws attention to the areas in which new regulations urgently need to be passed. Many proposals have now appeared in three annual reports in a row, since the government and parliament are giving priority to economic reforms, especially those relating to Slovenia's future membership of the European Union, and the attention devoted to regulations concerning human rights is diminishing.

Emphasising human rights is the next characteristic of ombudsmen in the countries in transition. In my opinion this is not a case of ombudsmen merely involving themselves in the protection of fundamental human rights and cases of violation of such rights, but an additional function which sits alongside the traditional supervision of the executive branch of authority. It is however typical of these ombudsmen that in their interventions they more frequently invoke directly the provisions on human rights from constitutions or international documents. Ombudsmen in countries with longer democratic traditions tend as a rule to invoke lower-level regulations. Only rarely do they cite international human rights conventions. In the area of human rights there is a great deal that the ombudsman can do through promotion and education, both of the national administration and of the general public.

The Buidapest Conference of Central and Eastern European Ombudsmen also stressed the possibility of the ombudsman proposing legislative amendments or innovations, noting however that in this he would have to remain consistently politically neutral. The responsibility for adopting legislation is the responsibility of parliament, within the framework of the constitution.

For this reason I feel that it is very important for the ombudsman to have the possibility of initiating the procedure for assessing the constitutionality or legality of regulations. In most cases this is the possibility of proposing to the constitutional court or other highest court in a country the establishing of unconstitutionality of a regulation. Some ombudsmen, in Poland for example, can also request from the highest courts an interpretation of ambiguous regulations. Such possibilities are typical of ombudsmen in the countries in transition. They are also held by the Spanish ombudsman, who was likewise established during a period of transition to democracy. In contrast to these, the parliamentary ombudsman in the United Kingdom for example does not criticise legislation or propose that parliament adopt or amend laws. He feels that this is solely a matter for members of parliament and political parties and that he would be encroaching on their area of responsibility if he were to propose changes to regulations. In the United Kingdom laws are traditionally only proposed by the government or members of parliament, to whom individuals or interest groups turn if they want changes to be made.

The Slovene ombudsman, however, has so far only very rarely used the option of proposing an assessment of the constitutionality of regulations. We feel that this should first and foremost be proposed by those who are directly affected by such regulations. The ombudsman does not wish to be merely a mediator between affected individuals or interest groups and the constitutional court, or their unpaid lawyer. Although the ombudsman receives many applications for an assessment of the constitutionality of regulations he has decided to use this possibility only in particularly well-grounded cases where the individual or affected group cannot themselves provide professional legal aid, and when it is clearly a matter of a violation of fundamental human rights. The second option, that of lodging a constitutional complaint, has also rarely been used, for the same reasons and because we do not want the ombudsman to come to be seen as merely a new legal remedy when the individual has already used all regular legal remedies in the courts.

A further point is that questions of constitutionality and legality are frequently political and ideological issues. The text of a constitution is substantively open and enables various interpretations. Often the interpretation of a constitution depends on current historical, political, social and economic conditions in the country. We know, for example, that even the American Supreme Court or the European Court of Human Rights change, admittedly only rarely, their interpretations of the same text of a constitution or convention on human rights in the light of changed circumstances. This means that the issue of assessing the constitutionality or unconstitutionality of a regulation frequently depends on political and ideological circumstances and arguments. The constitutional court in Slovenia has lately passed a number of politically controversial decisions. Thus this year in Slovenia the appointment of new constitutional court judges has been a matter of the utmost political importance, since it could also change the ideological profile of this court.

I mention this in order to illustrate how the issue of proposing an assessment of the constitutionality and legality of a regulation is also a political and ideological issue, and therefore anyone tackling it embarks on the slippery terrain of political, ideological and frequently also populist debates and judgements. Those individuals, lobby groups or political parties who are not satisfied with a particular decision in parliament often propose to the ombudsman that he use his authority and powers to make specific proposals to the constitutional court. The Slovene ombudsman's office sometimes receives proposals from both conflicting interest groups. For example, in relation to the implementation of the law on denationalisation we have received proposals from dispossessed owners and also from tenants living in property that has been restored to its original owners who are also affected by the process of denationalisation. If we were to accept a proposal from one of these groups, we would appear in public as the advocates of a specific interest group, which would cause criticism in the other group, which can also have a different political background. In this way the ombudsman could be the subject of ideological and political debates, even in parliament, which is not good for his authority, credibility and independence. Such political debates can in my opinion severely damage the reputation of the ombudsman and make it more difficult for him to fulfil his basic function, i.e. the protection of individuals in relation to state bodies.

I further believe that parliament as a whole should be the ally of the ombudsman. Within the system of division of power, the ombudsman cannot be placed into any of the three traditional branches of power in a democratic system - legislative, executive, or judicial - since he is a sui generis body, like the court of auditors or the media. I nevertheless feel that he is closest to parliament, which appoints him and to which he is obliged to report on his work. I feel that he has to enjoy the trust of parliament as a whole and not just of individual political parties, if he is to have the necessary credibility among the public. Or, as the ombudsman of the European Union Mr Jacob Söderman stated at the 6th Meeting of European Ombudsmen in Jerusalem in September 1997, at the national level the institution of the classic ombudsman is founded for the purpose of supervising the administrative authority in the name of parliament and not to supervise the legislative work or other political activities of parliament itself.

From the above it is also possible to read indirectly my attitude to the draft law which is the subject of discussion at this seminar. My personal and professional opinion is that it is difficult to combine in one institution two such different functions as the supervision of the legislative activity of parliament and the supervision of the executive branch with regard to the violation of the rights of individuals. It is difficult to combine the two functions, since he cannot supervise effectively the legislative and executive branches of authority simultaneously. His basic function is undoubtedly the supervision of the executive branch, but in order to fulfil this function effectively he needs the support of the legislative branch of authority. Mr Tadeusz Zielinski draws attention in his report to the danger of the Polish commissioner, through his 'overactivity', violating the fundamental principles of the mutual control and balance of the three powers in a democratic syste: legislative, executiv and judicial.

I have mentioned some professional doubts with regard to combining the supervision of the legislative and executive branches of authority in the institution of ombudsman. The fundamental finding applies, however, that ombudsmen are developing in very different forms, that a universal model of ombudsman does not exist and that it is therefore possible to combine in such an institution various functions and responsibilities. Even in Central and Eastern Europe there are such cases.


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