SEMINAR ON THE PROPOSAL TO CREATE A COUNCIL OF EUROPE COMMISSIONER FOR HUMAN RIGHTS
Strasbourg, 30 May 1997
THE ROLE AND EXPERIENCE OF AN OMBUDSMAN IN A NEW DEMOCRACY
Ivan Bizjak, Ombudsman of Slovenia
To begin with let me express my thanks to the organisers of the seminar for the opportunity to set out some thoughts on the role of the ombudsman in the new democracies and to relate one or two experiences from my work. For the most part I intend to limit my comments to the experience of the ombudsman in Slovenia. But I will also be looking at those aspects of the role of the ombudsman and of the experience I have gained in my work that are relevant to the topic we are discussing today.
The ombudsman institutions in the new democracies of Central and Eastern Europe
The first ombudsman in any of the former communist countries was actually established in Poland in 1988, before the fall of the Berlin Wall. In Slovenia this new institution was envisaged in the constitution which we adopted in the year we gained independence - 1991. Today we can see institutions of this nature functioning in Hungary, Poland, Lithuania, Croatia, Slovenia and in the federation of Bosnia-Herzegovina. According to the information I have available, all the groundwork has been laid for a similar institution to begin work in Russia; and given the size of that country and of its population it will be an enormous challenge to demonstrate the effectiveness of the concept of an ombudsman. There is a long list of countries in Central and Eastern Europe where an institution of this nature is in the process of being established or where other forms of nonjudicial protection of human rights are operating. I am referring to the various human rights commissions and offices, which in some places deal not only with promoting human rights but also with uncovering and redressing violations.
The extraordinary advance in the concept of the ombudsman in this region should come as no surprise. Human rights were a guiding principle and a central issue of the democratic changes in this part of Europe. Yet the people in these countries are now encountering many additional problems, inherited from the past and resulting from the extraordinary pace of change. And so every serious-thinking politician had to support the founding of institutions of this type, which are intended to resolve the problems of ordinary people on the one hand, and help the state to strengthen its democracy and the institutions underpinning the rule of law on the other. I firmly believe that this example will soon be followed by those countries that at the moment are still hesitating.
Circumstances affecting the role of the ombudsman in countries concerned
In the restored democracies of Central and Eastern Europe a fundamental transformation is still in progress, encompassing radical changes to legislation, the structure of authority and the practice of state bodies. As the democratic changes were taking place, it appeared that this wide-ranging task could be carried through in a short space of time. It is becoming increasingly clear, however, that this is a time-consuming and complicated process. It is an especially difficult and lengthy process to change the way people think, but it is something that is necessary in order to change the practice of state bodies and their officials. Furthermore, in Slovenia, and in certain other countries that have emerged out of the collapse of communism, there is also a need to fully establish the new state as an international subject, and to resolve numerous issues raised by the fact of independence. I am thinking in particular about the regulation of the questions of status of people from what was formerly a single country, and similar problems.
This is just a rough outline of the processes that are still going on in Slovenia and in other countries in the region. The result of this situation is an unstable and, given the frequent changes, not entirely consistent legal order, as well as a range of state bodies that are inundated with applications to the extent that they take an extraordinary length of time to reach decisions and are sometimes rendered ineffective. To this we have to add the huge expectations of people who had hoped for rapid change for the better, and for errors committed in the past to be put right. All of this is only happening slowly. While at the same time many people are encountering problems that were previously unknown, especially unemployment and the resultant social hardships.
Special features of the role of an ombudsman
In the circumstances that I have described, the role of the ombudsman is even more important than in countries enjoying a long democratic tradition. The ombudsman can have an important impact on the way the transformation proceeds in all three areas mentioned i.e. at changes of legislation, structure of authority and the practice of state bodies.
In the area of legislation the ombudsman plays a vital role in drawing attention to inappropriate and outdated regulations. All the more so because governments and parliaments give priority to dealing with regulations concerning economic and general political issues, while regulations that are essential for the exercise and safeguarding of human rights are often left aside. And the adoption of numerous new regulations itself can cause problems for individuals. Even the most thorough legislator cannot envisage all situations that life may bring. Some individuals are finding themselves in impossible situations. Sometimes it is enough merely to propose a less rigid interpretation of a regulation, but often the situation can only be resolved by appropriate amendment. Conflicts and loopholes also occur with the newly adopted laws, which the state bodies generally resolve to the detriment of the individual. In addition to the possibility of proposing a statutory amendment to parliament, the government or the relevant ministry, another important option which the ombudsman in Slovenia has is that he may demand a ruling by the constitutional court on the constitutionality of a law. The ombudsman may also lodge a constitutional complaint on behalf of the person affected. Through appropriate use of these possibilities the ombudsman is in a position to significantly accelerate the harmonisation of the laws with the constitution and with international legal acts, and their adaptation to real-life situations.
A great help in this regard are the ratified international legal acts and the jurisprudence of those bodies charged with supervising their implementation. The work of the ombudsman is founded on constitutionally guaranteed human rights and freedoms. Under the provisions of our constitution, these rights are exercised directly pursuant to the constitution. Particularly important for my work is that the ratified international legal acts in Slovenia are incorporated into domestic law. Thus the European Convention on Human Rights, for instance, can be applied directly. This provides the possibility of directly invoking the jurisprudence of the bodies established on the basis of this convention. The same applies for other ratified conventions, such as the Council of Europe Convention on the Prevention of Torture or the United Nations Convention on the Rights of the Child.
I am emphasising all of this for two reasons: firstly, it is clear how important for the work of the ombudsman are the links with the Council of Europe and its bodies, especially an up-to-date and detailed knowledge of the jurisprudence of the bodies set up under the ECHR. And secondly, the possibility of directly applying the conventions and the case-law is extremely important in situations where the legal order in the country is not yet stable, when certain laws from previous eras are still valid, when new regulations are being introduced that contain numerous shortcomings, etc.
The warnings, opinions and proposals of the ombudsman can also be very important as far as the adaptation of the structures and institutions of a country to the standards of a state governed by the rule of law are concerned. The problems which emerge from complaints made by individuals can form the basis on which shortcomings in the functioning of state bodies can be established. Organisational changes can be proposed in places where, for instance, the existing organisation prevents the effective exercise of the right of appeal, as well as appropriate strengthening and organisational changes where procedures are unreasonably long.
In the restored democracies the role of the ombudsman is especially important as far as changing the practice of the state bodies is concerned, particularly as regards their relationship with the citizen. The mere fact that someone is watching over these bodies urges them to act properly. The role here is a preventive one, and it is particularly important in the workings of the repressive bodies (i.e. police and prisons authorities). In my work I am aware that my opinions are taken very seriously by these bodies. And of course equally important is the role of the ombudsman in changing the relationship between the administrative bodies of the state and the citizens who turn to them in order to exercise their rights and defend their interests. The principle of an all-powerful state remains strongly rooted in the minds of administrative officials. The ombudsman can help to establish the principle that the state exists to serve the citizens, not the other way round. And the ombudsman can also play an important role in the prevention of corruption within state bodies.
Experiences with people who turn to the ombudsman
Based on my day-to-day work involving complaints and from the direct contacts that I have had with people over the past two and a half years, I believe that in terms of today's discussion the following experiences are particularly relevant. People who in the past were unable or did not dare to complain have begun to make full use of this new opportunity. Of course, there are very different cases. Some people describe actual or supposed injustices committed decades ago. Others feel themselves to be utterly powerless and more than anything just want advice on what they should do and who they should turn to. Some realise that in their particular case it is too late to put things right, but it seems important to them to explain their problem to a high-ranked representative of the state. Many wish to check whether the decision made by a particular body was actually lawful. People with psychical and similar problems also turn to us, but I will not dwell on that. And, of course, we even get ordinary complaints that actually fall within our field of responsibility.
I would say that the culture of complaining is rather undeveloped. This is not strange given that in many fields there is no option to lodge a complaint, or if there is people are not aware of it. Of course, one of the tasks of the ombudsman is to establish the possibility for complaint in areas where it does not yet exist, and to make people aware of it. While some of our colleagues in West European countries jokingly say that the complaints industry is their fastest growing sector, the growth rate in the countries I am talking about could be even higher. Many of those who bring their problems to me say that they intend to turn to the European institutions (they mention various cities: Brussels, The Hague, Geneva and Strasbourg). Clearly sometimes this is just their way of applying pressure to get problems resolved effectively. But there are some who actually ask for the address of the European Commission or the European Court of Human Rights. We have even had quite a number of cases where people have demanded the address of the European Ombudsman. So if the idea for a Council of Europe Commissioner for Human Rights comes to fruition, he will certainly get plenty of post from Slovenia.
I want to emphasise the importance of making the public fully aware of the responsibilities of the ombudsman, of what he is able to do and what he has achieved. When these types of institution were set up people had inflated expectations as to what could be achieved. Many people would like the ombudsman simply to change the decisions passed by state bodies which they do not agree with. Special attention will need to be paid to this issue and it is something that will need to be addressed if and when a CHR is established.
The specific features that typify the work of the ombudsman in the new democracies call for the fundamental characteristics of this type of institution to be firmly planted: independence, credibility, flexibility and accessibility. For the individual, the ombudsman is of special interest because (and provided) the procedure is fast, informal and free.
The flexibility must be such that people can get advice and information on matters that are not within the ombudsman's direct field of responsibility. Of particular importance are explanations relating to legal remedies and possibilities for appeal available to the individual. Most important of all is the need to explore all avenues, even informal ones, to resolve a given problem, for resolving problems is the fundamental goal of the work of the ombudsman, and finding the path to that goal calls for ingenuity and inventiveness.
An institution gains credibility for operating in a way that inspires people's confidence. The responsiveness of the ombudsman must be quite different to that of the state bodies that we criticise. It is important to communicate in a non-bureaucratic manner, to respond quickly and fully in a language that can be understood. Anyone who turns to the ombudsman for help is already fed up with the bureaucratic hurdles put in their way by the state bodies, the excessive waiting, being sent from door to door and being addressed in bureaucratic language.
As far as accessibility is concerned, it is important that there is the possibility to speak personally with the people who have a complaint. Many people find it hard to express themselves in writing. Some people shy away from discussing their problems over the telephone; this is definitely the case in the new democracies. Therefore in my office we try to make it possible for everyone to speak personally to me or to one of my assistants or advisers, depending on what the problem involves. And, of course, we have set up a free phone number for callers.
In conclusion, it is clear that there will be no shortage of work for ombudsmen in the new democracies. Besides dealing with mistakes, arbitrary decisions and irregularities in the work of the state bodies, all of which could be covered by the term “maladministration”, from my experience I would say that more general problems concerning the exercise of and respect for human rights and the legal certainty of citizens will be current themes for some time to come. This is an area where ombudsmen can provide each other with help, particularly through exchanging experience. And it is an area in which the Council of Europe can play an important role - within the existing framework of opportunities or through some new option. Perhaps the one we are discussing today, the Finnish proposal.