Natisni vsebino

Ombudsman's speech at the Annual Report 1997 presentation in the National Assembly

15.03.1999 16:40
Category: work and news, speeches


 Mr Speaker, Ladies and Gentlemen,

Everything comes to those who wait, I might say at the outset, and in this way express my satisfaction that the National Assembly is finally today to discuss my report for 1997. At the same time I would like to take the opportunity to thank you for yesterday’s decision to discuss this point today, so that I will be able, I expect, to deal with it all in one go, which probably would not have been possible yesterday.

At this moment, I have no hesitation in saying, I am more familiar with the report for 1998, which we are currently in the process of completing and putting into print. Of course the fact that it is the 1997 report that we are discussing does not make it any the less topical, especially because of the regrettable fact which I would emphasise right at the beginning: the key problems to which I draw attention in this report for 1997 were unfortunately not resolved last year. I naturally expect that you will not be offended if I freshen up some of the facts from the 1997 report with data of a more recent date.

This is the third report of the Human Rights Ombudsman. Some of the problems we deal with in these reports are relatively constant. This fact is also shown by this report and you, I am sure, are well aware of it. This raises the following question: what can we infer from the fact that the key problems which affect the respecting of human rights in our country are not being addressed? This raises a question which is becoming increasingly serious: is not this too, this attitude to the problems important for the respecting of human rights, actually a form of the systematic violation of those same rights? For all these reasons we have become almost reluctant to draw attention to certain problems, though this of course does not mean that we shall cease to do so, and I believe that today’s discussion here, with your help, will nevertheless contribute to getting some things moving. Especially with regard to those problems which are most obstinate.

Another point I need to make right at the beginning concerns the resolutions made by the National Assembly during the discussion of my first two reports. These have unfortunately not been implemented, at least not in their entirety. If we look at the entire range of problems which we encounter in our work, we can divide them into two parts. The first could be called ‘systemic problems’, in other words those problems where it depends on the actual functioning of the state, on its regulation, whether it is possible to help the individual who appeals to me. The second group are specific problems: irregularities and inadequacies in the operation of individual state bodies and other bodies under our jurisdiction, arbitrary treatment, overstepping of authority and so forth.

In this latter group, I can immediately say, we are successful, and state bodies are cooperating with us with a good degree of commitment. But at the same time this means, to make myself perfectly clear, that in the case of systemic problems, which I will illustrate in more detail later on, there is no such responsiveness and committed tackling of the problems. Decision-makers show a great deal of understanding for our proposals; there is no question of ministries disputing whether our assessments hold good. However this understanding, this verbally expressed willingness to tackle problems, and these good intentions sadly do not produce results. For this reason the situation is not actually one which I can commend very highly.

In the annual report for 1997 we have tried to present as concisely as possible (so that the report is not boring and does not involve too much reading) a review of the respecting of certain human rights guaranteed by the constitution and by international conventions and to highlight those which are most threatened, or those where most problems arise. I expect that you will also use this assessment in your work, so that those observations which we have made here will then also be taken into account and the problems overcome.

I would like to continue with a presentation primarily of the systemic problems I have mentioned. I intend to devote less attention to the presentation of inadequacies and irregularities of a specific, individual nature. Another reason for the review of such cases is so that this will be taken into account in the regulation of individual areas. In this connection I should mention that we have decided to use, for certain distinct areas, the possibility of preparing special reports which are to be dealt with by the responsible working bodies of the National Assembly so that in this way, within the framework of their responsibilities or functions with regard to monitoring the situation in the area that they cover, they will also have a review of the situation from our point of view. Thus a review of the concrete problems which face us.

In the report for 1997 we draw attention to certain key factors which show that we cannot be completely satisfied with what has been achieved in the area of respecting human rights and guaranteeing legal security in our country. Most worrying of all is the fact is that has been necessary to draw attention to certain serious problems for the third time. These factors, if I list them very briefly, though I do not doubt that you have read the report, are the following.

The legal system in the country is not complete and stable. State bodies operate inefficiently and often even unlawfully. Who do I have in mind when I mention inefficient work? To a large extent the various inspectorates. And what do I mean by unlawful work? The breaching of legal deadlines, which happens on a large scale, for which reason no-one gets particularly excited about it. Blatant irregularities, and those that we have identified, are being rectified much too slowly. The problem clearly lies in the determining of priority tasks, since it is impossible to believe that those responsible are not capable of resolving frequently quite simple problems. The informing of the public about the government’s intentions, about the state’s intentions in regulating specific areas, is inadequate. Coordination among departments to tackle problems takes too long. A glaringly obvious fact is that somehow we are able solve even more demanding problems provided they are in the jurisdiction of a single ministry; it is however sometimes extremely difficult to bring to a conclusion a relatively simple problem which involves two or more ministries.

The attitude of the state to the individual is often unsuitable, whether it involves abstract treatment in the sense of regulations, or concrete treatment over the counter at state offices or in other contacts which public servants have with individuals. There is insufficient care for certain categories of the population bearing the greatest burdens of the economic transformation. In many areas there are still no effective complaints mechanisms. I do not think that I need to specially stress the fact that the existence of the Human Rights Ombudsman does not mean that complaints mechanisms are unnecessary - we need not just formal legal remedies but also the possibility of informal complaints in every social subsystem. These have not yet been developed in Slovenia to a level we can be satisfied with and, as you can see, we draw particular attention to this problem in the areas of health care and health insurance.

In general we could cite as one of the key factors the fact that there is an insufficient sense of the proper regulation of the work of state bodies and other bodies, from the normative level, where we see that even rulings by the Constitutional Court on the unconstitutionality of individual regulations and the deadlines set for their harmonisation fail to be observed, to entirely concrete aspects of the work of individual bodies.

Following on from these general factors we can then look at the state of affairs in the field of the respecting of human rights and legal security in Slovenia. An unreasonable length of time is still being taken for decisions on many legal and administrative procedures. There is no improvement of the situation - quite the opposite: in some areas the number of unresolved cases is increasing. The smaller growth in unresolved cases in Slovene courts last year - smaller growth, but no decrease in the backlog - does not indicate an improvement of the situation. Of the urgently necessary new laws and amendments to existing laws important for the protection of human rights only a few have been passed. Thus the exercising of certain rights, and the protection of others, is either made impossible or made significantly more difficult. Above all we find that practically all problems in the area of the exercising of human rights are the result of state maladministration. Serious efforts at improvement can only be seen in a few areas and results are hardly to be seen anywhere. The poor response of the government, and in part of the National Assembly, means that the warnings of the ombudsman which require the solution of the known systemic problems of human rights in Slovenia are also ineffective. It seems that we are devoting too little attention to these issues, while recently we have found that attempts are being made to make the situation appear better than it is, for example by placing too much emphasis on the few courts which function effectively when the real issue is that of backlogs in courts. This of course is no solution to these problems. On the contrary, the creation of a false impression reduces commitment to their solution, and thus to improvement.

Attention is also drawn to problems in the work of the courts and the administration by other countries, although I do not wish to use this as an argument to corroborate my claims, since I feel that there enough of these arguments in the concrete cases presented in these reports. The European Commission has cited certain similar findings. The problems of the court system have also been found in the report of the US State Department.

Let us first look more concretely at the problems of inadequacies in the area of legislation. In many areas legislation is incomplete or out of date, not adapted to applicable legal foundations (from the constitution to international conventions), and not adapted to the actual state of affairs in society. The passing of the necessary laws is taking to long and not even harmonisation with the constitution has been achieved. I would like to draw attention to the fact, which to some might seem of marginal importance, that the use of regulations from the former Socialist Federal Republic of Yugoslavia is becoming increasingly troublesome, even if the regulation in question is not explicitly unsuitable. We have received quite a number of applications in which individuals are offended by the reference to federal official gazettes in the citing of the law governing general administrative procedure, and I believe that eight years after independence it is high time we stood on our own two feet as regards this type of legislation.

The removal of discrepancies between individual laws and the rectification of inadequacies in new laws which only appear when they are implemented is another area where progress is slow. Even the process of adapting legislation to the standards of the European Union will, in our opinion, bring new practical problems in the introduction of new regulations. Practically every law which in any way encroaches on the rights of the individual brings some problems on its implementation. Loopholes and legal vacuums appear, as do discrepancies with other laws. This is not of course anything dramatic, or something which in itself would deserve formidable criticism. It is however worthy of criticism if new proposals are not swiftly made, i.e. if a law is not amended in such a way as to rectify these problems. The fact is, the legislative procedure does not only mean passing new laws but adapting them and fixing them into the overall legal system. At the moment, as I have mentioned, even cases of unconstitutionality identified by the Constitutional Court are frequently not resolved within the deadline set. It goes without saying that these unconstitutionalities affect people’s interests, for otherwise they would not initiate constitutionality proceedings.

To put matters on a concrete footing I mention some areas which need new legislative regulation in order for the effective protection of rights to be possible or to improve the position of the individual. Right at the outset I pose the question of the regulation of conditions and procedures for admissible encroachments on human rights and the establishing of foundations for effective supervision in the implementation of such encroachments by the intelligence and security services. This is mentioned in the report you have in front of you, but I feel it this is a particularly topical issue.

Secondly, I draw special attention to the law governing the fund for the payment of compensation for war damage, for the reason that only this law will enable the exercising of rights already acknowledged to individuals. You know that the law on the victims of war violence and the law on the redressing of wrongs grant certain rights. You know that the procedure under the law on the redressing of wrongs leads to the issuing of legal acts which directly and concretely grant individuals the right to compensation, but that this document is of no use to the individual since this other law does not exist. I lay special stress on this because it leads to an absurd situation where the state actually places the right of the individual behind glass. It grants him the right but he is unable to exercise it. This is something which should not be allowed to happen, especially in cases such as these, where most of the people involved are older citizens, all of whom are actually and justifiably concerned about whether they will live to see the acknowledgement of what in their opinion is due to them, and which has already been acknowledged in this house.

We also emphasise the need to pass as soon as possible a law regulating the referral and detention of persons with mental disorders, the protection of their rights, and their treatment. The new law on the implementation of criminal sanctions has not yet been passed. The regulation of the exercising of the right to asylum, which is guaranteed by international laws, is unsuitable. It will be necessary to pass the new law, which I know has already been prepared in draft form. Especially important is the law governing the regulation of the status of persons from the other republics of the former Yugoslavia who had permanent residence in Slovenia at the time of independence. This is the only way to solve a problem to which we have already drawn attention in our reports, and to which, once again, other countries have drawn our attention: the regulation of the status of a specific number - estimates vary - of people who live in Slovenia. I would furthermore mention the just-published decision of the Constitutional Court which finds that Article 81 of the Law on Foreigners is unconstitutional, which means that even from this point of view, given the six-month deadline that has been imposed, this is probably the only way to resolve the discrepancy.

In the area of economic/social conditions the Labour Relations Act is of fundamental importance and it is to be welcomed that you have begun its reading. I hope that it will be passed as soon as possible. It will also be necessary to regulate more clearly and in more detail the procedures for exercising many social rights. Procedures for granting subsidies and certain other forms of state assistance are unclear and do not include mechanisms for the equal protection of the rights of all parties entitled to assistance. We are sticking solidly to our demand that free legal aid be organised for specific categories and specific procedures. The proposal for the setting-up of an alimony fund has met with support in this house and I hope that along with the decision to regulate this area in this way, actual regulation will take place as soon as possible.

It will be necessary to realise the payment of compensation to victims of violent criminal offences, which is stated or stipulated even in the currently valid law on criminal procedure, and to consider whether it would be appropriate to ratify or sign the corresponding international conventions first. We need to improve the normative regulation of complaints mechanisms in the area of health. And finally, though this is by no means the end of the list, the national housing programme should provide more realistic possibilities for the acquisition of social housing.

Were I to wish to state now which of these regulations are of a key nature, which must at all costs be passed this year, this would apply to almost all of them. And only if this happens this year will be able to say, this time next year, that something really significant had been done this year in the area of the normative regulation of human rights.

The second set of problems is the work of state bodies. The main problem in this field, which also represents a clear violation of the rights of many people, are the unreasonably lengthy procedures in the courts and in the administration. A further problem in administrative procedures is the breaching of legal deadlines. In the work of state bodies cases naturally arise of arbitrariness, overstepping of authority, incorrect treatment and violation of the principles of good administration. These however do not represent a mass or systematic phenomenon either in terms of their number or seriousness. They do however require serious discussion and constant efforts to improve the situation.

As regards backlogs, I would like here to illustrate first of all these backlogs in the area of court procedures with some concrete examples - recent ones, so that no-one will say that this is a situation which we have long put behind us. In general I can say that the progress of many procedures at various courts is such that it represents a violation of the constitutionally guaranteed right to legal protection. In the past year, i.e. after the date of the report that we are dealing with, awareness of the seriousness of this problem has increased. We are familiar with the formulation of certain solutions designed to improve the situation, though a tangible improvement has yet to come about. The total number of unsettled cases, despite all the attention the matter has received and despite your resolution, actually increased in 1998. The largest backlogs are to be found in most county courts, in labour and social courts, in the administrative court and in the administrative department of the supreme court. Unfortunately, then, in both types of specialised court which were founded, I assume, at least partly so that cases in their jurisdiction would be dealt with more efficiently. Some examples, as promised:

At the end of last year the administrative department of the supreme court was dealing with actions brought in 1995. Priority suits first. In 1998 they dealt with approximately 400 cases from 1995. That’s right, 1995! After almost four years 900 cases remain unheard. In August 1998 the criminal department of the supreme court had 423 unsettled requests for the protection of legality. The average period for settlement is 2 years. Later the situation even worsened somewhat. Despite the fact that these are priority and urgent cases. The administrative court has a roughly three-year backlog, or a backlog which corresponds to three years’ worth of cases. The labour and social court in Ljubljana predicts a period of 2 years for the commencement of treatment of priority cases concerning the termination of employment. This does not mean that the situation at other labour courts is better, but this is a concrete piece of data. At the same court, actions arising from social disputes from 1995 are now being heard. At Piran County Court it will be some years before the 4 case judges are able to remove the backlogs. Ljubljana County Court takes a year and a half to issue an enforcement order. The enforcement department of Maribor County Court had around 25 thousand unresolved enforcement matters pending at the end of last year. Enforcement matters are also important, since the individual who has won a suit is not helped by a piece of paper saying that he is entitled to something. It is important that the decision of the court is also enforced. It is important so that we have the actual feeling of a country governed by the rule of law. It is also important for the respecting of the dignity of the courts, which must also implement their decisions in practice. At Koper County Court, for example, we have discovered that a civil case from 1994 will come onto the agenda in a year and three months’ time, and something similar applies to a non-contentious matter from 1995. So much for the illustration of the state of affairs.

Statistics can sometimes even show a better picture. A better picture because of those courts which are up to date in their work. Thank goodness these exist too, although unfortunately what really matters for each individual is the functioning of the court which he has to turn to.

Some further data with regard to backlogs in administrative procedures: we know that in the majority of procedures a legal deadline of two months applies to decisions, while in denationalisation procedures the legal deadline is one year from the completion of the application. It is a matter for concern that clear legal provisions are being breached and that the passing years are not bringing improvements which would prove that those responsible are at least trying to observe the applicable laws. Some examples: appeal rulings at the Ministry of the Environment and Physical Planning take more than two years. The tax administration takes more than two years to resolve appeals which by law do not delay the enforcing of the ruling. The Ministry of Labour, the Family and Social Affairs takes significantly longer to resolve appeals in various procedures than is stipulated by law. No significant progress is to be noted in the implementation of the law on denationalisation. There are numerous cases where a ruling has still not been made on applications which were complete in 1992. Some social services centres procedures are unreasonably lengthy, which is particularly unacceptable since they involve issues which affect the rights of children.

Despite the improvement in the situation in the processing of citizenship applications, there are still backlogs and a final decision still has to be made on numerous extremely old applications, including some under Article 40 of the Law on Citizenship which were lodged in 1991. Decisions on permits for temporary and permanent residence in many cases take far longer than the legal deadline. The legal deadline is seriously overstepped in decisions on claims under the law on the redressing of wrongs. I have already mentioned that this generally involves older citizens, and thus such delays are particularly painful, and certainly not something the country should be proud of. Recently we have found that there is a danger that arbitrary ruling at the commission set up under the law on the redressing of wrongs could even lead to a violation of the principle of equality before the law. The length of time needed for decisions on rights deriving from the so-called war laws has in some cases led to explicit material deprivation. In the case of applications lodged simultaneously by persons with similar claims, one has been receiving monthly payments for some time while the other has so far received nothing at all. So much for examples.

Through suitable organisational approaches it is possible - I assert - to remove or at least alleviate backlogs in administrative procedures. To date we have only encountered one such case, in the processing of citizenship applications. Such an approach is necessary and especially sensible where backlogs are constant, which means that the number of settled cases roughly corresponds to the new intake. We are witnessing inadmissible reconciliations to an unlawful manner of operation.

As well as these difficulties in the actual work of the administration or of state bodies, just a few other observations, so as not to go on too long: various forms of social problems will still need to be the subject of special attention. Especially notable are cases of social exclusion because of long unemployment and cases of poverty. The position of children in families faced with such problems is particularly sensitive. These children clearly do not have the same basic opportunities as their contemporaries.

A few more sentences on issues relating to independence, which we are constantly highlighting in one way or another: in 1998, i.e. last year, seven years after independence, some important changes came about in this area, though the problems are not yet finally resolved. The law on military pensions was passed, though its implementation is causing or opening certain new problems. The government has passed decisions and criteria designed to resolve the problem of military housing - at the end of last year - but procedures in accordance with these decisions have not yet begun running. The Ministry of Internal Affairs has formulated a law on the regulation of the status of persons from other republics of the former Yugoslavia who had permanent residence in Slovenia at the time of independence, but it is not yet certain when it will be passed. I recommend that you nevertheless debate it within the deadline set by the Constitutional Court for the regulation of discrepancies between the law on foreigners and the constitution. A considerable part of the backlog has been dealt with but, as I have said, certain cases remain open.

The accelerated addressing of problems has clearly begun; I might flatter myself that we have contributed something to this through our constant observations. Now, however, we need to swiftly bring these cases to a close.

I shall skip over some other matters and to close simply say this: what can we do, or rather, in what direction, given the numerous problems mentioned, can we seek a solution? I say that the problems which drag on from year to year are not insoluble. All that is needed is to set suitable priorities, both in legislative activity and in the work of individual areas of public administration. An integrated strategy for the courts is clearly necessary. A resolution was passed here a year and a half ago stating the need to prepare a programme for the addressing of the problem of backlogs in the courts. Such a programme, in an integrated and written form, I have unfortunately not yet seen. It would surely be right to get this done, so that all those who can in their own way contribute to the improvement of the state of affairs are aware of what they have to do. On the other hand a reform of state administration, designed to resolve the problems mentioned in relation to this, is certainly necessary. Above all, we should not reconcile ourselves to an unlawful and poor state of affairs. The citizens who are oppressed by these problems deserve, I feel, the thorough discussion of their problems which is compressed into the ombudsman’s reports.

So much for my introduction. I expect a fruitful debate, and above all hope that it will contribute to the removal of those difficulties of which we are aware, difficulties which are faced by the citizens and other inhabitants of this country. Thank you very much for your attention.
 

    Ivan Bizjak, ombudsman


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