Natisni vsebino

The Ombudsman and a country's human rights record (specifics in the countries in transition)

15.06.1999 18:00
Category: papers



SEMINAR "OMBUDSMAN AND THE LAW OF THE EUROPEAN UNION"
Ljubljana, Slovenia, 6 - 8 June, 1999

 

THE OMBUDSMAN AND A COUNTRY'S HUMAN RIGHTS RECORD (specifics in the countries in transition)
Ivan Bizjak, Ombudsman of the Republic of Slovenia

 In the following brief presentation I would like to draw attention to three points:

    * the specific situation of the countries in transition,
    * the scope and methods of an ombudsman’s work (i.e.what an ombudsman can do  to improve the human rights (HR)situation in his own country and how),
    * some examples of our activities in this field.

As starting point of my deliberation I would like to use two things:

    * principles of the Accession Partnerships (AP)
    * opinion of the Commission on the application and report on progress

The accession partnerships have been designed to help prepare Central European applicant countries to fully meet the criteria set by the Copenhagen European Council for membership:

    * stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
    * the existence of a functioning market economy andthe capacity to cope with competitive pressure and market forces withinthe Union;
    * the ability to take on the obligations ofmembership, including adherence to the aims of the political, economicand monetary union.

As far as the first principle is concerned, the institution of theombudsman can contribute to the stability of the rule of law and thestrict protection of HR and minorities.

In the initial opinion on the aplication for membership of the EU andthe regular report on the progress towards accession, the main emphasesand concerns of the Commission are evident. In the case of Slovenia, itis clear that the ombudsman shares the concerns of the Commission.

Distinguishing features the ombudsman’s role in a country in transition

There are some special circumstances which influence the work of theombudsman in a country and which must build up and strengthen thedemocratic institutions and behaviour of state bodies. The lack ofdemocratic experience in the past imposes many additional tasks. All ofthem are closely connected with the earlier quoted conditions formembership in the EU.

In this period of transition in Slovenia, a fundamental transformationis still in progress, encompassing radical changes to legislation, thestructure of authority and the practice of state bodies. As thedemocratic changes were taking place, it appeared that thiswide-ranging task could be carried out within a short amount of time.It is becoming increasingly clear, however, that this is atime-consuming and complicated process. Approaching the European Uniondemands enforcement of common European standards, which on the one handcould be helpful when searching for the most appropriate solutions, andon the other represents new challenges. Transitional circumstances arecharacterised by an unstable and, given the frequent changes, notentirely consistent legal order, and also a range of state bodies soinundated with applications that they take a very long time to reachdecisions and are sometimes rendered ineffective. To this we have toadd the huge expectations of people who had hoped for rapid change forthe better and for errors committed in the past to be rectified. All ofthis is taking place at a slow rate, while at the same time many peopleare encountering problems that were previously unknown, especiallyunemployment and the ensuing social hardships.

In transitional circumstances the role of the ombudsman is even moreimportant than in countries enjoying a long democratic tradition. Theombudsman can have an important impact on the way the transformationproceeds in all three areas mentioned. Regarding legislation, theombudsman plays a vital role in drawing attention to inappropriate andoutdated regulations. This is all the more important becausegovernments and parliaments give priority to regulations concerningeconomic and general political issues, while regulations essential tothe exercise and safeguarding of human rights are often neglected. Theadoption of numerous new regulations itself can also cause problems forindividuals. Even the most thorough legislator cannot envisage allsituations that life may bring. Conflicts and loopholes are a given inthe newly adopted laws, which state bodies generally resolve to thedetriment of the individual. It is possible for the ombudsman topropose a change to the law, but, more importantly, he may also demanda constitutional court ruling on the constitutionality of a law, or hemay lodge a constitutional complaint on behalf of the person affected.Through appropriate use of these possibilities the ombudsman is in aposition to significantly accelerate the harmonisation of the laws withthe constitution and with international legal acts, and theiradaptation to real-life situations.

The advice, opinions and proposals of the ombudsman can also be veryimportant concerning the adaptation of the structures and institutionsof a country to the standards of a state governed by the rule of law.The problems that emerge from complaints made by individuals can formthe basis upon which shortcomings in the functioning of state bodiesare established. Organisational changes can be proposed in placeswhere, for instance, the existing organisation prevents the effectiveexercise of the right of appeal, and also appropriate strengthening andorganisational changes where procedures are unreasonably long.

In the restored democracies, the role of the ombudsman is especiallyimportant concerning changing the practice of the state bodies, inparticular in regard to their relationship with the citizen. The merefact that someone is watching over these bodies urges them to actproperly. The role here is a preventive one, and is particularlyimportant in the workings of the repressive bodies. Of equal importanceof course is the role of the ombudsman in changing the relationshipbetween the administrative bodies of the state and the citizens whoturn to them in order to exercise their rights and defend theirinterests. The principle of the state as all-powerful remains stronglyrooted in the minds of administrative officials. The ombudsman can helpestablish the principle that the state exists to serve the citizens,not the other way around. The ombudsman can also play an important rolein the prevention of corruption within state bodies. By acquainting thedecision-makers with the concrete problems of the people, the ombudsmancan significantly contribute to the (trans)formation of the policies,which will adequately distribute the burden of making changes in theeconomic system.

What and how – the scope and methods of the ombudsman’s work

These are some key areas of the ombudsman’s activity evident in the preceding paragraphs.

The activities of the ombudsman generally stem from complaints. Eventhrough complaints, however, it is possible to identify many humanrights issues. Additionally, the investigation of our initiative and,in our case, the power to (here I quote the Slovenian Ombudsman Act)“deal with more general issues relevant to the protection of humanrights and fundamental freedoms and legal security of the citizens”make it possible to point out any human rights violation or problem inthe assertion of ones rights and legal interests.

In addition, inspections of prisons or other detention facilities workto improve their safeguarding and can contribute to the strictobservance of the human rights of the most vulnerable categories ofpeople.

The annual report is one of the most potent resources available to theombudsman. However, it is not easy to attract the appropriate publicresponse to the problems and proposals stated in the report. It isnecessary to co-operate very closely with the members of parliament andthe parliamentary committees in order to acquaint them with theexisting issues. In this regard I proposed to all parliamentary groupsto present them with the annual report before the parliamentary debate.Half of them accepted this proposal and I presume that the debate wasmore well-founded after the explanation provided. After the debate onmy annual report (in addition to some very kind words of support forthe institution and a positive assessment of its achievements) theNational Assembly adopted some concrete points of resolution urging thegovernment to take the necessary measures to resolve the problemsrevealed in the reports.

I also find special reports to be quite useful. In this year I havesubmitted two special reports to the parliament: on the treatment ofpeople in custody (February 1999) and on the treatment of people withmental disorders (January 1999). Earlier I published a much moredetailed special report on some other specific problems. Experienceshows that such reports attract a very high level of public attention.

Another possibility to effectively influence legislation is the requestfor constitutional review, which the ombudsman in our country can lodgewith the constitutional court. Recently we successfully challenged theregulation on notary rates; in this way we also succeeded earlier inchanging the Penal Procedure Act.

Some examples of the ombudsman’s influence in the area of human rights

Some of our activities and achievements will be presented in thenext session. In this presentation I would like to cover only a fewinteresting fields in which the activities of the ombudsman can be ofparticular significance.

Concerning legislation, our most recent annual report lists someeighteen laws and regulations which should be adopted in order toimprove the protection of rights of individuals and legal security inthe country. Some of them are also listed in the national accessionprogram. We finally succeeded in our request to prepare the bill whichregulates the legal status of a large group of people from other formerYugoslav republics who do not enjoy proper legal status.

It is the general opinion that our public administration needssubstantive reform. This is also one of the findings in theCommission’s report on Slovenia. In my daily work, especially in myannual reports, I give many suggestions aimed at improvements in theorganisation of Slovenian public administration. In the 1998 AR wededicated a special chapter to this matter. A feature which stillremains part of the human rights situation in Slovenia is theunreasonable length of time needed to make a ruling on numerous courtand administrative procedures. Ruling on rights, obligations andlegally protected interests far exceeds legal deadlines in manyadministrative procedures, while the legal protection of rights andappeals rulings requires a disproportionate amount of time. It lasted arather long time and much effort was required to put this question onthe agenda. It is no wonder that problems of this type are reflected inthe Commission report on progress, especially “slowness of the judicialprocess” and delays in some administrative procedures(denationalisation, citizenship). In 1999, the National Assembly alsoadopted some very concrete decisions aimed at speeding up appealsprocedures with tax authority.

Another interesting parliamentary move which reflects the work of theombudsman was the National Assembly decision to support the humanrights ombudsman’s recommendation that the country should establish amaintenance fund to provide for those children for whom the partyliable for maintenance payments fails to pay maintenance. Anotherdecision (not yet implemented) reads that for protection of children’srights it would make sense to introduce appropriate forms ofrepresentation and advocacy for children. The parliament supported theopinion of the ombudsman that there was a need for reorganised legalaid for persons unable to pay high lawyer’s fees, especially incomplaints claims for maintenance or for the division of property afterdivorce, in labour disputes and in exercising the rights deriving frommedical and pension insurance. An appropriate bill has already beendrafted.

For certain reasons the following decision is interesting:

“The National Assembly finds that the resolutions passed at the 7thsession of the National Assembly on 19 November 1997, on the occasionof the reading of the first and second regular annual reports of thehuman rights ombudsman for 1995 and 1996 respectively, have not beenput completely into effect. Therefore, with regard to the excessiveslowness in addressing certain systemic problems and the consequentlack of improvement regarding the protection of certain human rights,it advises the government of the Republic of Slovenia to take action assoon as possible in certain areas and to prepare a plan of measures forremoving the causes of violations of human rights and fundamentalfreedoms”. This is evidence that sometimes even the decisions of theparliament remain unaccomplished.

Conclusion

There is no doubt that an ombudsman can and must have some impact onimprovements in legislation, structure and procedures of publicadministration and practice of authorities. In the accession processthe ombudsman’s activities go hand in hand with the expectation thatthe country will fulfil the human rights part of the political criteriafor EU membership.


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