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The ombudsman and the consolidation of democracy: Achievements and perspectives on the basis of the experience of the Ombudsman of Slovenia

15.05.2000 17:25
Category: papers


THE OMBUDSMAN INSTITUTION IN EUROPE AND THE CHALLENGE OF THE CONSOLIDATION OF DEMOCRACY
FIRST ROUND TABLE OF THE STABILITY PACT FOR SOUTH EASTERN EUROPE
Athens, 12-13 May, 2000

THE OMBUDSMAN AND THE CONSOLIDATION OF DEMOCRACY: ACHIEVEMENTS AND PERSPECTIVES ON THE BASIS OF THE EXPERIENCE OF THE OMBUDSMAN OF SLOVENIA
Jernej Rovšek, Deputy Ombudsman

1. It has been six years since the work of the Human Rights Ombudsman in the Republic of Slovenia began. This year is the last in the first term of office of the first ombudsman and his team. This calls for an assessment of the work of the ombudsman in Slovenia as a country in transition to a democratic system with the rule of law.

The human rights ombudsman became part of the constitutional system of the Republic of Slovenia with the adoption of the new Constitution in 1991, following the country's declaration of independence in 1990. According to Article 159 of the Constitution, the Human Rights 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 the same article provides the legal basis for the founding of special ombudsmen for individual spheres of interest. Accordingly, in September 1993 the Human Rights Ombudsman Act was adopted following a regular legislative procedure involving three readings of the act. The first human rights ombudsman to be appointed was Mr Ivan Bizjak, in September 1994, while the institution of the ombudsman officially started its activities on 1 January 1995.

2. Both the representatives of all three branches of state authority (legislative, executive and judicial) and the public, maintain that the ombudsman's work has been successful. On receipt of the last report a few weeks ago, the President of Slovenia stated that the institution had won widespread recognition and had justified the reasons for its foundation. Particularly appreciative of the Ombudsman was the last reading of the 1998 report in the National Assembly, when the ombudsman's work was positively assessed both by the deputies of the ruling parties as well as the opposition parties. Similarly, the ombudsman's work has received positive responses from the media and the general public. For this reason, I will try to present here certain elements which have contributed to the success of the ombudsman's work, particularly in view of the transitional conditions in the country.

According to the experiences of other countries, the period of transition is of crucial importance for the public acceptance of the ombudsman, since in many countries in a similar situation the ombudsman failed to win recognition and was excluded from the national mainstream of events. One of the elements which contributed to the success of the Human Rights Ombudsman in Slovenia was undoubtedly the tradition and experiences of its forerunner, the Council for the Protection of Human Rights and Fundamental Freedoms, which was active from 1988 to 1994. More will be said on this subject later on. Another element which has, in my opinion, contributed to the assertion of the institution in the state is the use of domestic resources, both in terms of personnel and funding. Particularly in small transition countries, the public is extremely sensitive about imported "formulae" and individuals offering quick solutions to a variety of problems without a real knowledge of the national situation. In the recent past, and in Slovenia too, there have been cases of institutions "implanted" in the state in terms of organisation, personnel and funding, which have invariably failed. People simply have not accepted them as their own.

But the lion's share of the institution's success has undoubtedly been contributed by the individual office-holders and their work. The first human rights ombudsman, Mr Bizjak was a public political figure before his appointment to the position of ombudsman, which undoubtedly made the institution more recognisable and opened the door to the media and the public. But the work itself was also successful in the sense that no professional or political mistake has been made which might have compromised the reputation of the institution. The success and recognition of an institution are built up gradually and persistently and can rapidly be compromised through careless or unprofessional decisions. No such mistake has been made by the Slovene ombudsman and for this reason the institution enjoys considerable respect, which is also reflected in public opinion polls.

3. As stated above, the institution of the ombudsman was built on the experiences of the Council for the Protection of Human Rights and Fundamental Freedoms. The work of the Council can be divided into three periods. In the first period, from 1988 to 1990, it 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 (second period). 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 assembly. 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. Thus I can conclude that the ombudsman in Slovenia did not begin from nothing, and that he was in effect continuing the tradition and experience of the Council, especially in dealing with individual cases.

4. In spite of the possibility given by the foremention article of the constitution no special obudsmen have been appointed in Slovenia. However several proposals have been made recently for the establishing of special ombudsmen for more specific areas of interest. It is our opinion that these proposals reflect also the success of the Human Rights Ombudsman. Despite the existing government offices for the protection of special categories of the population, such as women, the disabled, youth and minorities, it has been proposed that special ombudsmen be appointed for these areas. We maintain that the insistence on the initial founding of a single and powerful institution of a national ombudsman for all areas of activities and administration both at the national and local level has been proven correct. Nevertheless, the National Assembly of Slovenia has already given its support to some of the initiatives for the founding of special ombudsmen, such as for the protection of children's rights, information, and healthcare. This signifies that, sooner or later, special ombudsmen will indeed be established and for this reason we decided that there should be co-ordinated development in accordance with the constitutional and legal system of the country. The splitting of the institution of the ombudsman into several smaller and specialised institutions would cause several problems, such as the possible conflicts of jurisdiction. For this reason in the United Kingdom the Cabinet office in the recent report proposed that public sector ombudsmen should be integrated into a single commission. This issue is discussed in a special chapter in the report for the year 1999. Several organisational possibilities have been proposed for the founding of special ombudsmen, ranging from the establishing of independent institutions to the incorporation into the existing institution of the national ombudsman. This is possible either if the ombudsman assumes the role of a special ombudsman for a specific area of interest or if one of the deputies of the ombudsman is appointed to a special area. It is our assessment that for a small country such as Slovenia, it is better to incorporate special ombudsmen into the existing institution, particularly since the expected number of complaints does not justify the founding of separate offices.

5. The law gives the human rights 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 governance. 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.

The possibility of invoking the principles of justice and good governance enable the ombudsman to assert broader principles of justice which are not defined in legislation. The experiences of the Slovenian ombudsman show that in order to assert these values broadly, state bodies themselves should adopt them first. This would at the same time create a platform for the ombudsman's work. For several years the Slovenian ombudsman have been recommending in his reports to the state bodies the adoption of codes of good conduct in dealing with individuals within their competence.

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. It seems to me important to draw your 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.

The 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.

With regard to the work of the Slovene ombudsman, several methods must be mentioned which have improved the accessibility of the institution. For this purpose, a free telephone line was introduced from which the public can obtain basic information on the options for filing a complaint and basic legal advice regarding their specific case, on the basis of which the possibility for filing a complaint is assessed. Other opportunities available to the public include regular visits to individual towns, which are announced in the local media. During these visits, the ombudsman and his deputies spend one, two, or three days B depending on public interest B in conversation with the interested parties. In this way, and by means of frequent appearances in the media, the understanding of the role of the institution was improved and this is also reflected in complaints received. An ever lower number of complaints fall outside the ombudsman's jurisdiction while a growing number of complaints facilitate an investigation into the inadequate work of state bodies. Nevertheless, a very low number of complaints relate to some areas which to our knowledge are deficient. This is especially true in the areas of healthcare and access to public information.

6. On the basis of the experience of the Slovene ombudsman and some other ombudsmen in new democracies it is possible to draw together some certain characteristics common to ombudsmen in the countries of Central and Eastern Europe.

The first finding relates to the relatively large number of applications and the great expectations which the public has of the Ombudsman. 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.

The second feature is to some degree incomplete, unsuitable or 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.

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. The attitude of state bodies to individuals is generally poor and 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.

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.

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.

7. I can conclude that the institution of the human rights ombudsman in Slovenia has been implemented very effectively and its work has contributed to the improvement of conditions and the functioning of democracy and the rule of law in the country. In the conditions of transition, the functioning of such an institution is a matter of particular sensitivity and significance. It not only contributes to the improvement of the work of the state administration but also to the eradication of inadequacies in the legal system. This can be done by drawing public attention to inconsistencies in the legislation, proposals for changes in laws and other regulations, and by means of proposals for an assessment of the constitutionality of laws and regulations. In these conditions, the ombudsman can also contribute to the general improvement of the functioning of the state administration and its reform which would lead to meeting the needs of the public as its clients. In addition, this corresponds with the adjustment of the state administration to the requirements arising from Slovenia's future membership in the European Union. It is my opinion that in Slovenia all the various elements which contributed to the successful commencement and recognition of this institution have been ideally combined. This proves that the institution of the ombudsman is extremely flexible since it can adjust to different state systems and different developmental levels of democracy and the rule of law. Naturally, the main conclusion remains that the institution can only be successful in a country which is democratic and where human rights and the basic principles of the rule of law are respected.


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