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Practical impact of ombudsman's recommendations - legislation and policy

15.12.1999 17:32
Category: papers


REGIONAL MEETING ON INDEPENDENT NATIONAL HUMAN RIGHTS PROTECTION INSTITUTIONS
(INCLUDING OMBUDSMAN INSTITUTIONS)
Budapest, 13-14 December 1999

Opening Intervention for Working Session 2:
PRACTICAL IMPACT OF OMBUDSMAN’S RECOMMENDATIONS - LEGISLATION AND POLICY
Jernej Rovšek, Deputy Ombudsman

What is the impact of an Ombudsman’s activities? Does he deal only with individual cases, or do these cases also help him to influence other issues connected with violations of human rights, legislation, the work of state bodies, and national politics?

In recent years we have been witnessing the establishment of many new Ombudsman institutions, especially in countries in transition. This applies not only to Europe but to the whole world. The institution of the Ombudsman is developing differently in each country. Its position, competence and role depend on the particular features of the constitutional system, the level of economic and social development, the legal culture, and culture generally in an individual country. Regardless of these differences, however, the work of Ombudsmen has some common characteristics with regard to the effectiveness of their recommendations. Of course, I am limiting myself to the classic parliamentary Ombudsman established at national level.

A fundamental task for an Ombudsman is to deal with complaints addressed to him by individuals or groups within civil society. Based on these complaints, he proposes the redressing of established violations of human rights and other deficiencies in the work of state bodies. The Ombudsman has no executive competences and his recommendations are not legally binding. His proposals and recommendations are based on the persuasiveness and strength of the legal and other arguments.

One basic task for an Ombudsman is to try to redress the damage or injustice suffered by the individual who has approached him, after establishing such damage, injustice or irregularity by carrying out his own investigations. Because his recommendations are not legally binding, it is very difficult for an Ombudsman to achieve full compensation for the injustice done, or to place an individual in the same position he was in prior to the violation. Moreover, an Ombudsman cannot abolish the numerous violations and irregularities in the country, for his task is not to replace the work of state bodies, especially the work of judicial and administrative bodies. Nevertheless, the irregularities he establishes in an individual case can also have an impact on other individuals who find themselves in a similar position, on the work of state bodies, on legislation, and even on political directions. These options, as well as a number of special means he has at his disposal, are listed and organised by content below.

1. Preventive impacts when dealing with individual cases. When an Ombudsman, after carrying out his investigations, establishes a violation and proposes that it be redressed, he not only helps the affected individual but also contributes to the fact that the same or any other national authority will no longer make such or similar mistakes. An Ombudsman's recommendations achieve a preventive impact mainly through the spreading of information on the contents of his recommendations. This can be done by directly informing superior authorities, by providing information to the public, and through his recommendations to parliament.

Based on the practice of the Slovenian Ombudsman, I can assert that in many cases a preventive impact can be achieved even after enquiries within state bodies have been carried out, for they also include our opinion on the ways authorities should act or take into consideration the rights of an individual. In individual cases we have established that, after our recommendations were received, the official within the state body notified the authorities within his structure, by means of a circular letter, of the ways in which our recommendations and proposals could be taken into account.

2. One special aspect of the preventive impact of an Ombudsman’s recommendations is the influence on the work of administrative and other state bodies. By revealing irregularities the Ombudsman can make a contribution to improving management within state bodies, urge an awareness that these bodies should serve an individual and not vice versa, and encourage practice along these lines. Such impacts of an Ombudsman’s work make an important contribution towards reforming public administration, for it is precisely the Ombudsman who is best acquainted with the deficiencies in the system of the work of the national administration. The Ombudsman’s role cannot be replaced because he is independent in relation to the executive authorities which he supervises. In this regard we can say that an Ombudsman is an extended arm of parliament for supervising national executive authorities. Parliament does not usually even have proper expert qualifications, nor is it prepared to supervise all structures of executive authority. The supervision of parliament is usually limited only to the constitutional forms of direct supervision of the government and individual ministries.

3. While dealing with individual cases an Ombudsman also establishes deficiencies in legislation and other regulations. This applies especially to countries in transition which are simultaneously faced with elements of the new and old legislation. Many regulations have not yet been harmonised with the Constitution or between themselves. Moreover, the numerous and rapid changes to regulations place an individual in an uncertain position. In such cases, state bodies tend to interpret the fuzzy regulations to the detriment of the individual.

The role of an Ombudsman in establishing and also proposing changes to regulations is especially important in countries in transition. In many cases the problem faced by an individual is not connected with irregularities in procedure or with an unwillingness on the part of state bodies to respect his legitimate rights; indeed, the problem lies in the regulations themselves, which inadequately regulate the opportunities for an individual to exercise his rights.

This opens up an important question as to whether an Ombudsman should have the competence to propose changes to regulations to legislators or the government. In most countries the Ombudsman is not legally authorised to propose laws to parliament. My opinion is that this is a good thing, for an Ombudsman should not be directly involved in the work of parliament or other legislative bodies. It is also not his primary responsibility to take care of legislation.

I think it is better for an Ombudsman to indirectly propose changes to regulations, especially through his reports to parliament, where the deficiencies in legislation are analysed. Special reports have a wide impact both on the public and on parliament, and in individual cases have already encouraged the authorised proposers of laws to initiate adequate changes.

From the practice of the Slovenian Ombudsman I can state that after giving warnings for many years in our reports to the National Assembly, the government prepared, and the National Assembly passed, a special law on foreigners from the countries of the former Yugoslavia who found themselves without settled status in Slovenia (even if this unsettled status was their own fault).

The second question is whether the Ombudsman should propose changes to regulations at a lower level - that is, regulations issued by the executive authority. In my opinion this is where the Ombudsman has more freedom and can, without any restraint, also submit changes to secondary legislation in his proposals. If these proposals are not passed, he can repeat his proposal in a report submitted to parliament.

4. One special question is whether the Ombudsman should also use legal means to put forward his proposals. Ombudsmen from developed and democratic countries who have been in operation for a longer period of time mostly do not have the legal means to put forward their recommendations. The possibility for an Ombudsman to initiate special legal procedures in the courts is one characteristic of the newer type of Ombudsman who has appeared in recent years in countries in transition. In most cases we are talking about the possibility of filing proposals with the constitutional court, the administrative court, or any other high court in the country. For example, the Ombudsmen in Spain, Portugal, Poland, Slovenia and a number of other countries have the possibility of proposing the assessment of the constitutionality of regulations. In some countries, for example Bosnia-Herzegovina, the Ombudsman can act as a proposer to special courts for human rights. An Ombudsman does not generally interfere with the legal proceedings and work of the courts, so the role of an Ombudsman as a party in court proceedings can be disputable.

In Slovenia the Ombudsman has two possibilities of acting before the constitutional court. First, as an authorised proposer he can propose an assessment of the constitutionality of a law or some other regulation. This can be proposed at the initiative of the complainant or at his own initiative. His second possibility is a constitutional complaint against a violation of human rights guaranteed by the Constitution after regular legal means have already been exhausted. Constitutional complaints were included in the constitutional system on the basis of the 1991 Constitution, following the German model. In Slovenia we have decided that the Ombudsman will make use of this possibility only in specially justified cases, for we do not wish to become merely lawyers for complainants who can make use of this possibility on their own, or to become the addressees of a new legal instrument in cases when all other possibilities have already been exhausted in the courts.

It is most certain that countries in transition which are faced with legislation that is incomplete and does not conform have a greater need for an Ombudsman to be able to make use of the possibilities of appearing before the courts. But my opinion is that this should only be a last resort - i.e. when the Ombudsman has no other possibilities of establishing violations of human rights as defined in the Constitution or international human rights instruments. In the opposite case, the question of interference in the independence of the courts and in legal proceedings may arise. That is to say, the Ombudsman may in no way endanger the independent work of the judicial branch of authority.

5. Whether and to what extent an Ombudsman should also influence the formation of national economic and social policies is a very delicate question. Without any doubt, Ombudsmen everywhere, and especially in countries in transition, are faced with a large number of economic and social problems. We can say that a large majority of applicants have such problems. Since the implementation of economic and social reforms, numerous individuals have found themselves in a difficult social situation through no fault of their own. Here we are talking mainly about unemployment, housing and other social problems. Such cases are reported by all Ombudsmen in countries in transition. Let me mention only the reports by the Polish Ombudsman, who has addressed a large number of his recommendations precisely to these problems. Taking this into account, the report from the conference of Central and Eastern European Ombudsmen in Budapest (21-22 November 1996) has recommended that Ombudsmen should not form social policies, for poverty is a phenomenon which an Ombudsman cannot effectively influence.

It is very difficult to give a final answer to the question as to whether and in what way the Ombudsman should influence the drawing-up of national social policies. On the one hand we have the economic and social rights formulated within the UN Pact and the European Social Charter, the violation of which an Ombudsman can establish; on the other hand we have the formation of economic and social policies, which is the exclusive responsibility of government and parliament, and is, in the final analysis, a matter of politics. In putting forward proposals in this area, an Ombudsman would be criticised for trying to influence politics, which is not his task but a matter for the political parties (confirmed by elections). With proposals in this area an Ombudsman can easily find himself on the shaky ground of political decisions, which does not help his credibility or the reputation of political neutrality which he should enjoy. In this area every Ombudsman must steer a cautious path between both extremes. We can be certain he is well acquainted with the actual situation in the country and with the difficulties citizens and other complainants are facing (in many cases he is even better acquainted than the politicians). Therefore, by warning about shortcomings, he can influence those responsible for forming national social policy. But he must be careful to draw his arguments primarily from the principles of the Constitution and international human rights treaties in this area, and not to use political arguments.


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