Natisni vsebino

The role of the ombudsman in the day-to-day enjoyment of human rights

15.04.2002 17:03
Category: papers



The Human Rights Ombudsman protects the individual in his or hercontacts with state bodies, local government bodies and statutoryauthorities, and supervises the work of these bodies. He offersprotection to the individual by investigating his or her complaints andproposing the rectification of irregularities if he finds that thecomplaint is justified. In other words he offers protection in thesense of ensuring just and correct procedure on the part of theauthorities in relation to the individual. This protection covers theareas of decision-making by the authorities and the personal contact ofthe individual with state bodies. The Ombudsman does not have the powerto take legally binding decisions and so does not exercise authoritythrough them. He does not issue individual acts in the form of orders,judgements, resolutions or decrees. The Human Rights Ombudsman is anadditional form of extrajudicial protection of the rights ofindividuals.

Since the institution of Ombudsman was founded for the purpose ofprotecting human rights and fundamental freedoms in relation to statebodies, local government bodies and statutory authorities it istherefore important that the Ombudsman should be accessible to everyonewho needs his help.

The Ombudsman’s task is to prevent and identify violations of humanrights and other irregularities and to rectify their consequences.

He does this at two levels. The first level is dealing with individualreports of alleged violations of the human rights of an individual; thesecond level is work of a systemic, promotional and preventive nature.The first means rectifying violations which have occurred; the secondmeans the prevention of future violations. Or if we define theviolation of human rights as a social disease and compare the work ofthe Human Rights Ombudsman to that of a doctor: on the one hand theOmbudsman offers treatment for a specific disease, while on the otherhe carries out preventive work and creates conditions that ensure thatthis disease will spread as little as possible. The two levelsfrequently interweave.

1.      First level: dealing with petitions

As a rule, in order to begin the procedure with the Ombudsmanapplications are submitted in writing, however we also acceptapplications via telephone. Applicants can submit applications duringpersonal discussions. Indeed some applications stem from talks heldwith detained persons during inspections of prisons and detentioncentres.

The Ombudsman ’s procedure is not formal and is free for clients. Theapplication should contain the facts and enclose evidence that isimportant for instigating the procedure, and should state what legalmeans were used in the specific case.

The reception office is open at all times during the working day(between 8 a.m. and 4 p.m.) for clients to submit applications and totalk to our duty staff, who can provide information. Discussions areheld by prior appointment with the Ombudsman, his deputies andadvisers. Soon after the institution began operations we set up a freetelephone number for explanations, advice and information onapplications submitted and it also possible to submit applications tothe Ombudsman via e-mail on the Internet home page. During visits toregional centres (work away from the office) the Ombudsman also holdsdiscussions with applicants and accepts applications in this way, too.

Some applications are incomplete, lacking all the facts important for adescription of the problem, or they do not enclose the necessarydocumentation. Depending on the type of deficiency we requestsupplementary material from the applicant, or we address an enquiry tothe relevant body if it is shown clearly enough what procedure and whatbody is involved. In some applications we establish that it does notfall within the remit of the Ombudsman or that conditions are notfulfilled for it to be dealt with. In such cases we respond to theapplicant with advice as to where they might turn, if otherpossibilities are available or if there are legal remedies that can beused before the Ombudsman can deal with the matter. The applicationsthat do not fall within the Ombudsman ’s jurisdiction are often thoseinvolving disputes between individuals which cannot be resolved otherthan by agreement or through the courts.

In order to obtain an explanation of all the circumstances inconnection with an application being dealt with, we generally obtainthe view of the other side. For this reason we conduct enquiries at theofficial body to which the application relates. As a rule we approachthe competent body in writing, with a short summary of the claimedinjustice or a description of the problem and request more detailedinformation. Sometimes, for example in confirming the lengthiness of aprocedure, we already give an opinion at this stage, on the assumptionthat the applicants claims are entirely true. At the same time we set adeadline for a response, depending on the urgency and complexity of thematter. This deadline is no longer than 30 days. Sometimes where timeis critical or in view of the nature of the problem we conductenquiries by telephone. In some cases, where the official body avoidsresponding to our questions, we look into the complete files on thecase to which the application  relates. We invite the head or arepresentative of the body for talks, if it is necessary to clear upquestions of a broader nature. In cases where detainees or prisonerscomplain about inappropriate procedures of the institution ’smanagement or about unsuitable living conditions, we conduct talks withthe management at the same time as visiting the detainee or prisoner.

When we have gathered all the necessary information, we decide on howto proceed. Sometimes the response from the official body signifies aresolving of the applicant ’s problem, for example information on thecontinuation and conclusion of a procedure which the applicant believesis being unjustifiably delayed. In such cases we can conclude theprocedure, and invite the applicant to contact us again if the bodydoes not follow up on its own assurances of continuing the procedure.In other cases where the application is justified, we continue dealingwith issues in dispute until an appropriate resolution is achieved.

In dealing with applications we are aware that for the applicant themost important thing is that we resolve their problem. This is ourguiding principle in deciding on the use of the most appropriatemeasure from among those for which we are empowered. So in cases wherea procedure is excessively lengthy without good reason, we canintervene with the body to speed up the matter, particularly if thereasonable or legal deadline for giving a decision has been exceededand if it does not involve breaking the order in which matters arebeing dealt with. We may also propose to the body that the problem beresolved through some settlement, if the applicant also agrees withthis. If the injustice can longer be eliminated, we propose to the bodythat it apologise to the applicant for the injustice committed. In allstages of whatever procedure we can offer official bodiesrecommendations for resolving a problem, an opinion from the aspect ofrespecting human rights and fundamental freedoms, proposals forimproving their dealings with clients and proposals for compensatingclients. If we establish that a given problem is exclusively the resultof inappropriate regulations, we can recommend the amendment of suchregulations. If such a regulation governs an important issue regardingprotection of human rights and fundamental freedoms, and our proposalfor amendments of a regulation has not been accommodated, we can lodgean application for a ruling on constitutionality and legality at theConstitutional Court. We can also lodge constitutional complaints atthe Constitutional Court.

With the aim of being more accessible to people living in remote areaswe have introduced work away from the Ombudsman’s office as a regularform of work. In this way we have increased the opportunities formembers of the public to talk to the Ombudsman or his deputies. Thisform of work makes it possible for us to cover the entire territory ofthe country, since given the nature of the institution of Ombudsman itis not possible for us to establish organisational units in othertowns. Judging by the response from the individuals who come and talkto us, we are able to say that this form of work has proved veryinteresting to members of the public. They are particularly satisfiedthat they no longer need to come to Ljubljana in order to talk to theOmbudsman, thus saving time and money.

Previous experiences show that visits of cities and towns around thecountry meet with a wide response of people living in that particularcity or town.  Work away from the office has several effects.First is the fact that individuals who live a long way from Ljubljanaget the chance to have a personal conversation with the ombudsman inwhich they can explain their problem in detail. The second is that somedifficulties relating to the inappropriate work of state bodies andlocal bodies in the place visited can be overcome by means of directintervention during the visit itself. The visits also have a preventiveinfluence on the work of state and local bodies in the places visited.Visits have important impact in introducing jurisdiction of theombudsman to the people.

Figures show that on these visits two thirds of conversations withpetitioners relate to advice and help on how to solve a problem. Manyof those who come to talk to us are people who have already lodged apetition with the Ombudsman and wish to explain their petition in moredetail or merely want information on how it is being dealt with. Evenmore are individuals who have not yet lodged their petition. Many ofthem merely want advice, and many conversations end with a new petitionto be dealt with by the Ombudsman. During these visits a pressconference is also held, at which the content of the problems we havedealt with is presented.

Another special form of work away from the office which I shouldmention are visits to prisons, psychiatric clinics and other premiseshousing persons deprived of their liberty, and to institutions wherethe inmates’ freedom of movement is restricted. The purpose of thesevisits is to inspect premises and familiarise ourselves with livingconditions. The Ombudsman also has the right to hold private andunsupervised conversations with persons held in such premises andinstitutions.

2.      Second level: systemic changes

In the course of our work we have noted that some groups of thepopulation complain less than others. Some groups (e.g. children,students, Roma) only rarely seek help or protection from the HumanRights Ombudsman. The absence of complaints does not mean thatviolations do not occur among these groups; often it is quite theopposite. The reason probably lies elsewhere: too little informationabout their own rights, unfamiliarity with the system, lack of trust insociety, fear, etc. For the individual to be able to lodge a complaint,at least four conditions need to be met. These are:

1.      awareness of one’s own rights and the rights of others

2.      existence of formal paths of complaint

3.      absence of fear of negative consequences of complaining

4.      confidence in the system, that violations will be corrected.

These four conditions are essential but there is no doubt that other specific conditions exist.

Creating these conditions is the second, systemic area of the HumanRights Ombudsman’s work. In concrete terms this consists of activitiesinvolving the promotion of human rights, helping to improvelegislation, and direct communication with marginalised orunderprivileged groups.

For this reason we devote great attention to providing information, promotinghuman rights and ensuring transparency of operation. In order to ensurethe confidentiality of the cases dealt with by the Ombudsman we have tobe very careful not to reveal the identity of petitioners whenpublishing our descriptions of cases dealt with. Press conferences areheld in the office every month. We use them to present in more detail,for example, the annual report for the previous year, special reports,or concrete cases we are dealing with, or to draw attention toproblematic areas of wider importance. Additionally we talk about ourwork at the press conferences we hold during our work away from theoffice, during our numerous appearances on national, regional and localradio and television and in interviews with various sections of thepress. The media are of key importance for ensuring the recognisabilityof the institution of Human Rights Ombudsman and for providinginformation about its work and access to it. I have given a number ofinterviews and appeared on numerous national and regional televisionand radio programmes. Some of these programmes also accepted calls fromviewers/listeners. The Ombudsman also has regular columns in certainsections of the media.

We often find that laws are inadequate, or simply do not exist, or thatthere are no clearly defined paths of complaint. On such occasions wepropose amendments or changes. The Ombudsman can propose amendments tothe National Assembly and Government of laws and other legal acts whichfall under their jurisdiction. We can also submit to the ConstitutionalCourt, in relation to a specific case that we are dealing with, arequest to review the constitutionality or legality of regulations andgeneral acts promulgated for the execution of statutory authority. Wecan propose to state bodies, institutions and organisations withstatutory powers that they improve their method of operation and theirtreatment of clients. In relation to individual cases we may also,under conditions set down by statute, submit a constitutional complaintto the Constitutional Court.

 

               3. A typical week for the Ombudsman

Monday

9:00             Collegiate body of the Ombudsman Office: analyses of the work done inthe                     past week and examination of individual, delicate petitions

12:00           Discussion at Slovene Intelligence and Security Agency, control overtheir                     work

17:00            Concert at the Refugee Centre

 
Tuesday

9:00 – 12:00 Personal discussions with petitioners who asked for individual meeting
                    with  ombudsman

12:00          Government Office for Equal Opportunities: discussion over the bill
                   concernin equal opportunities

15:00          Advising Office for Women: discussion about the violence over women andin
                   families

16:00          Discussion about the problems of patients at the Psychiatric Clinic

 
Wednesday

9:00            Discussion with the representative of the UNHCR aboutproblems                 
                   of refugees in  Slovenia

10:00           Participation at the Conference “Europe, Slovenia and Roma”

13:00           Visitof the Leader of the Muslim community (Muftija) in Slovenia: discussion
                   about building the mosque

 
Thursday

Work away from the office in Maribor – three groups:
-        personal discussions with petitioners
-        discussion with the mayor
-        press conference

 
Friday
until 9:00   delivery of the column for the Slovene newspaper “Dnevnik”


9:00           Director of the Police: presentation of the research about police
                   knowledge     of  human rights


10:00         Minister ofLabour, Family and Social Affairs with his experts: cooperation,                         socialproblems, unemployment, refugees and similar



A contribution of Human Rights Ombudsman of the Republic of SloveniaMatjaž hanžek on the European Ombudsmen Conference in Vilnius, Lithuania,  5-6. April 2002




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