Ombudsman and the Law of the European Union
The Seminar on Ombudsman and The Law of the European Union has been co-organised by the European Ombudsman Mr. Jacob SĂ¶derman and the institution of Varuh človekovih pravic (The Human Rights Ombudsman) of the Republic of Slovenia. The aim of the seminar was to promote the knowledge of the European Community law within the ombudsman institutions and similar bodies in the respective states which have applied to join the European Union. The invitation to participate has been sent to the Ombudsman institutions or similar bodies in Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, and Slovenia. In Bulgaria and Slovakia the speakers of the respective parliaments have been informed about the seminar and invited to send the observers.
The topics of the seminar were the experiences of the European Ombudsman from the point of view of the Community law and the legal framework of the European union, presentation of the work and case law of the Court of Justice and its impact on the domestic law of the member countries, the question of the Maastricht and Amsterdam treaties and their impact on the rights of European citizens and how these rights should be protected, and some specific aspects of an OmbudsmanÂ´s work in candidates countries (e.g. problems of transition, the role of an Ombudsman in the harmonisation of legislation).
The main idea was that Ombudsman and similar institutions in candidate countries can and have to play an important role in the harmonisation process. We can recall one of the well known Copenhagen principles that poses one of the conditions for EU membership, namely “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”. We as ombudsmen can contribute to the achievement of this aims in our countries.
I would like to use this opportunity to thank to Mrs. Eliana Nikolaou, Commissioner for Administration (Ombudsman) of the Republic of Cyprus, who prepared, together with Mr. Ian Harden and some other participants, conclusions of the Seminar. Thanks also to all the participants that presented written contributions, collected in this publication. I hope it will be useful and advantageous and will encourage the work of Ombudsman institutions and their further development.Â
Ombudsman of the Republic of Slovenia
When the Maastricht Treaty on European Union entered into force in November 1993, every national of a Member State became, in addition, a citizen of the Union.
The provisions concerning Union citizenship are contained in the Treaty establishing the European Community. Hence they are part of Community law.
Following the re-numbering introduced by the Amsterdam Treaty, the relevant provisions are now Articles 17 to 22 of the EC Treaty.
Article 17 reads as follows:
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
1. The special rights of European citizenshipÂ
Articles 18 - 21 EC set out a number of special rights of European citizens.
Article 18 provides that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.
Article 19 provides that citizens who are resident in a Member State other than that of which they are a national, shall possess the right to vote and stand as a candidate in elections to the European Parliament, as well as in municipal elections.
Article 20 confers on every citizen in the territory of a third country, in which the Member State of which he is a national is not represented, an entitlement to protection by diplomatic and consular authorities of any Member State, on the same conditions as the nationals of that State.
Article 21 provides for citizens to have the right to petition the European Parliament and to complain to the Ombudsman, in accordance with Articles 194 and 195 of the Treaty respectively.
The Amsterdam Treaty added a new paragraph to Article 21. This provides that every citizen of the Union may write to a Community institution in any official language and have an answer in the same language. The same provision applies when a citizen writes to the Ombudsman.
The final Article of the part of the EC Treaty dealing with citizenship is Article 22, which requires the Commission to report on the application of the citizenship provisions every three years. It also empowers the Council to adopt provisions to strengthen or add to the rights of citizenship and to recommend the new provisions to the Member States for adoption in accordance with their respective constitutional requirements.
2. The significance of Union citizenshipÂ
The European Community was first established over 40 years ago as the European Economic Community. Its structure and institutions at that time were largely intergovernmental and technocratic. The Court of Justice soon took the initiative to change the situation, by deciding that the subjects of the Community legal order include not only Member States, but also their nationals. The Court has also defined the Treaties as the constitutional charter of a Community which is based on the rule of law and insisted that fundamental rights are an integral part of Community law.
By establishing Union citizenship, the Maastricht Treaty built on the Court’s achievements in securing the rights of the individual. Citizenship represents a commitment to give full effect to the principles on which the European Union is founded: liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.
In the field of political rights, as well as conferring on citizens the right to vote and stand as a candidate in local and European elections, the Maastricht Treaty gave “constitutional” status to the right to petition the European Parliament. Previously, the right of petition had existed only in the rules of the Parliament. According to Article 194 any citizen of the Union and any natural or legal person residing or having its registered office in a Member State may petition the European Parliament “on a matter which comes within the Community's fields of activity and which affects him, her or it directly."
The Maastricht Treaty also created the office of European Ombudsman, in order to enhance relations between citizens and the Community administration. The European Ombudsman’s task is to deal with maladministration and to help secure the position of citizens by promoting good administrative practices. Any citizen of the Union may complain to the Ombudsman about maladministration in the activities of Community institutions or bodies, with the exception of the Court of Justice and Court of First Instance acting in their judicial role. Complaints may also be made by any natural or legal person residing or having its registered office in a Member State.
3. Citizens and the administrationÂ
When the European Ombudsman investigates whether there is maladministration, the first and most essential task is to establish whether the Community institution or body has acted lawfully. It can never be good administration to fail to act in accordance with the law. In this context, I would like to recommend to you the Council of Europe’s handbook entitled “The Administration and You”, published in 1996 which contains an excellent summary of the main principles of administrative law. Of course, the European Ombudsman is always mindful of the fact that the highest authority on the meaning and interpretation of Community law is the Court of Justice, which often makes reference in its judgements to the principles of good administration.
In many States, the principles of good administration are set out explicitly in a code. The contents of such a code normally include at least some of the following: the giving of reasons for decisions; fair procedures and the rights of defence; avoidance of discrimination; taking into account all relevant considerations and excluding irrelevant ones; maintaining adequate records; avoiding unnecessary delay; providing information in a clear and understandable form; giving correct advice; applying established rules and procedures; if a decision is unfavourable, providing information about the possibilities of review; acting consistently; acknowledging and replying to letters; transferring letters to the competent service; apologising for errors; having a proper system for dealing with complaints.
In the case of the Community administration, there are numerous sets of rules applying to specific areas of administration, but no general code. My view is that a Code of good administrative behaviour would have benefits both for the administration and for citizens, provided that its provisions were sufficiently concrete and precise. By informing officials of the service they should provide it would enhance the quality of administration and help to maintain consistency between different institutions and agencies. For citizens, a code would have the additional advantage of making more transparent and concrete the service which they are entitled to expect. For these reasons, I began an own-initiative inquiry in November 1998 into the matter and have produced a first draft of a possible such Code, which is available here today. I would be glad to hear your views on the draft.
4. Remedies for citizens at national levelÂ
Although I am convinced that the adoption and publication of a code of good administrative behaviour would enhance relations between citizens and the Community institutions and bodies, it must be remembered that Community law and policies are administered largely by authorities at national, regional and local levels in the Member States.
Take, for example, the right to move and reside freely in the territory of the Union. This is a right of citizenship (Article 18) and is one of the Union’s main achievements for citizens. There appears, however, to be a real concern among citizens that free movement of persons is not a reality. The increasing number of complaints to the European Ombudsman about such problems seems to confirm this view.
The problems most frequently raised range from the existence of border controls, the difficulties encountered when moving to another Member State and exercising an economic activity there, to problems concerning the issuing of residence permits for students, retired and non-working persons, and discrimination on the basis of nationality. Since these problems directly affect fundamental social rights, they appear to be a source of confusion and disappointment among citizens.
These obstacles to free movement often result from the incorrect or incomplete application of Community law by national, regional and local administrations.
In the negotiations leading up the Maastricht Treaty, the Spanish government made a proposal for a European Ombudsman to promote and supervise the application of the European citizens' rights at all levels of administration in the Union. As this was not accepted by all Member States at the time, the Danish government put forward a proposal for an Ombudsman whose primary task would be to supervise the activities of Community institutions and bodies.
Subsequently there have been voices raised calling for the European Ombudsman’s mandate to be broadened, along the lines of the original Spanish proposal. Personally I continue believe in the principle of subsidiarity.
As regards judicial remedies, the Court of Justice invented and implemented the principle of subsidiarity before the word itself was ever heard in debates about the Union. From the time of its decision in van Gend en Loos(1), the Court progressively developed the principle that national courts must uphold the rights that individuals enjoy under Community law. In particular, national courts should protect such rights vis-a-vis the public authorities of the Member States, through the application of directly effective provisions of Community law and indirectly through the award of damages, according to the principle established in the Francovich case(2).
Since Community law is law in the Member States, its application by the national authorities can be also supervised by national ombudsmen. For this reason, I have promoted a liaison network linking all the national ombudsman’s offices. Liaison network seminars to inform about Community law have been held every year since 1996 and the next will take place in Paris in September this year. The Catalonian ombudsman, Antonio Canellas, organized in Barcelona in October 1997 a similar seminar for the regional ombudsmen and regional petition committees to promote the knowledge of Community law on that level. We publish a regular "Liaison letter", to inform about significant new case law from the Court of Justice and Community law cases dealt with by national offices. The European Ombudsman’s website has links to the websites of national ombudsmen and similar bodies and further development of cooperation through the website is in the pipeline. The liaison network also allows the national offices to address queries about Community law to the European Ombudsman, who normally forwards the query to the competent Community Institution for an opinion.
5. A new Treaty article to inform citizens of their remediesÂ
In a society governed by the rule of law, the courts are naturally the main protection for the rights of individuals. The ombudsman is a non judicial institution, something extra, who helps citizens when they have difficulties with the administration. At the moment, however, there is no provision in the Treaties which informs European citizens of the vital role played by national courts in ensuring respect for Community law.
In my view, successful cooperation between national ombudsmen and the European Ombudsman is a better way to promote the rights of European citizens that to widen the jurisdiction of the European Ombudsman beyond the Maastricht boundaries. However, I also believe that the opportunity should be taken at the next Inter-Governmental Conference to include a new article in the Treaty which informs the citizens about all the means of redress available to them if their Community law rights are not respected.
As well as the role of the courts, a citizens’ right to complain to the Commission about infringements of Community law by a Member State should be included in the Treaty. This might give a basis for a thorough reform of the often secretive procedures used by the Commission in such cases.
Furthermore, national and regional ombudsmen and similar bodies such as parliamentary petitions committees should also be mentioned in the Treaty as having a responsibility to help citizens in case of conflicts with the administration involving Community law, including human rights issues. Each Member State should have an obligation to ensure that its legal order includes an effective non-judicial body to which the citizens may apply for this purpose.
Accession to the European Union produces a number of legal problems for the acceding States. It implies the entry into force, almost over night, of an enormous amount of legal rules, some written, others to be deduced from the jurisprudence of the Court of Justice of the European Communities, the ECJ. It also implies an acceptance of the fact that these rules supersede the operation of other rules of the State concerned. The extent to which this happens may be difficult to ascertain due to the fact that Community law may be interpreted in a way different from that in the acceding State and thus new to the civil servants and Judges of that State.
I intend to raise two sets of questions arising out of these facts. First, I shall recall certain aspects of the relation between Community law and what I prefer to call other internal or national law of the Member States.
The use of this expression calls for two comments. Firstly, I refer to other internal law in order to stress the fact that Community law is an integral part of the legal system of each Member State and can thus be described as the common internal law of the Member States. This is the case even if some conceive Community law as an external restraint on their previously unlimited discretion or as a strange and irritating element causing disorder in an otherwise coherent legal system. In this context it might be useful to recall the mechanisms by which one tries to ensure that Community law is appropriately applied in the Member States as well as consequences of infringement of Community law by Member States.
Secondly, it must be borne in mind that Community law is essentially applied by the administrations and courts of the Member States. It is an essential feature of the system that Community law they apply Community law effectively, fully and correctly. The control of the application by the Commission can never be complete. The system is thus based on the loyal cooperation of the national authorities. It also presupposes that individuals and economic operators are in the position to invoke Community law before national authorities and to subject the decisions of those authorities to control by the national courts in order to ascertain the compatibility of the acts of the authorities with Community law. The national courts may request the Court of Justice to express itself on the validity and interpretation of Community acts.
In the second part of my presentation, I am going to discuss a limited number of aspects of interpretation of Community rules by the Court of Justice. On one hand, I am going to describe some general rules of interpretation of the Court. On the other hand, I shall discuss certain terms of particular importance for good administration. In doing so I am fully aware of the fact that requirements of good administration may well extend beyond what follows from strictly legal obligations. What I have to say may therefore not suffice to meet those requirements. On the other hand, even if compliance with legal requirements is not always sufficient in order to reach the level of good administration, compliance seems to be a necessary requirement in order to characterise administrative measures as good. The approach by the Court of Justice to those concepts may therefore be of some use.
There is an obvious link between the two parts of my intervention. The approach of the Court of Justice to interpretation may be relevant in order to avoid conflicts with Community law. It is thus important that the national authorities controlling the legality of acts of the administration are aware of that approach. This may enable them to prohibit infringement of obligations under the EC Treaty. Equally important is the individuals and economic operators may benefit from their rights under Community law. In that respect the offices you represent play a crucial role.
Obligations on national authoritiesÂ
After these introductory remarks I come to the first substantive part of my presentation.
Community law imposes a number of obligations on national authorities. Some of these are substantive, others procedural. The Court of Justice has formulated many of these duties as concerning duties of the courts of the Member States. However, there is no doubt, that a number of these duties also concern the public authorities of the Member States.
At this stage it may be sufficient to mention some of the substantive obligations(1).
Community law obliges national authorities to avoid breaches of Community law. It is thus their duty, among other things, not to discriminate on the grounds of nationality and to observe the prohibition against protectionism. These two elements are specific examples of the duty not to restrict the fundamental freedoms guaranteed by Community law.
There is a duty to interpret and apply national legislation, as far as possible, in accordance with Community law and a duty not to interfere with rights granted under Community law. The duty to interpret national law in accordance with Community law poses several problems for acceding States. The most obvious one lies in the fact that if an acceding State adapts its legislation to Community law before accession - which in itself may be highly desirable in certain cases - it is under no obligation stemming from Community law to interpret that legislation in conformity with the interpretations of the ECJ until accession takes effect. However, if it does not interpret the legislation in such a manner it may find itself obliged to change the interpretation upon accession. Such a result seems strange and could be avoided by conform interpretation from the outset. The courts of an acceding State are, however, disadvantaged as they may not request the ECJ to give a preliminary ruling on the Community law issue before the national court..
A similar problem of interpretation poses itself in respect of any legislation enacted before accession. Such legislation, too, must upon accession be interpreted in conformity with Community law to the extent possible.
The duty to avoid conflicts with Community law also implies a duty to ensure complete implementation of directives and other rules as well as eventual supplementary measures necessary to render them efficient. It further implies a duty not to apply any rule of national law if the result would be contrary to a rule of Community law and a duty in certain cases to raise points of Community law even if the parties have not raised the point. In addition, there is a duty to act on behalf of the Community if the need for urgent action to pursue a Community objective is clear enough(2). There is a duty, in certain cases, to take positive steps to promote a clearly-established Community policy, There is a duty to protect Community funds against fraud. Lastly, there is a duty to supplement Community measures if necessary to make them fully effective.
Community law also affects the administrative procedures in the Member States(3). This is evident in cases in which the major executive part of the administration of Community rules is entrusted to the national authorities but in which the Commission exerts a leading function. The Common Agricultural Policy may serve as an example of such a case. The same principles apply, however, in respect of all administration of Community law. In addition, it may have a tendency to spill over into other administration.
Community law may presuppose a right of access to information, a right to be heard, a duty of diligence for instance in the collection and dissemination of information needed for the decision-making as well as a duty to give reasons.
In order for these duties to be effective there is a need to ensure that they can be effectively invoked. This can be done both at the national level and at the Community level. Ultimately, it is for the Court of Justice to define the obligations of Member States under Community law. This is done directly in infringement cases and indirectly by preliminary rulings.
It is common knowledge that infringement cases are brought against a Member State either under Article 226 by the Commission or, which is rare, under Article 227 by another Member State. The outcome of an infringement case is a statement by the Court that the Member State has, or has not, infringed its obligations. It follows from the Treaty itself that the Member State concerned is under an obligation to remedy the situation. If the Member State does not take the necessary measures to comply with the judgment the Commission may lay down a time-limit within which this must be done. If appropriate measures are not taken within that time-limit the Commission may bring the Member State before the Court specifying the lump sum or penalty payment to be paid by the Member State.
Certain comments on infringements may be of interest with regard to the activities of the national ombudsmen’s offices.
Firstly, a great many infringement cases concern the absence of a timely and correct transposition of Community Directives. Not knowing exactly to what extent such cases may occupy the Ombudsmen’s offices I shall not dwell on that aspect of these cases. What is more important for the present purposes is that a Member State may also infringe its obligations by not applying or not applying correctly Community law even if such issues more often arise in the context of preliminary rulings. It is thus conceivable that not only an established practice by the administration but also an individual administrative act could form the basis of an infringement case should the Commission deem it sufficiently important to bring such a case.
Secondly, an infringement may be caused by a great variety of national bodies. I shall make no attempt to define those bodies. The only comment I wish to make is that all those bodies are not necessarily within the scope of control exercised by the national Ombudsmen’s offices. Whether there is such a control is irrelevant from the point of view of Community law under which one normally assesses the global conduct on part of the Member State.
Thirdly, the case law of the Court of Justice represents only the top of the iceberg of infringements. The vast majority of alleged infringements are settled in discussions between the Member States and the Commission. It is not infrequent that Member States have doubts about the interpretation by the Commission of the extent of their obligations. Nevertheless, in order to avoid proceedings they align themselves with that interpretation even if under protest.
Fourthly, this, as well as other circumstances indicate that infringement procedures are still conceived, and I hope will continue to be conceived, as embarrassing by Member States. This is also demonstrated by the fact that Member States often try to prolong the proceedings before the Court in order to remedy the situation that has caused the Commission to bring the case. If the Member State manages to do this the Commission often withdraws its case.
There is, however, reason for some concern in respect of the efficiency of infringement procedures. By the end of 1996 there were 98 cases in which the Member State concerned had not complied with a judgment by the Court. It may thus be useful to have a look at the second stage of infringements.
The measures taken by a Member State is even more intense should the Commission consider bringing a second action proposing a fine or a penalty payment. This seems to have an almost magic effect. What previously has been held to be impossible is suddenly accomplished at a commendable speed. As a consequence of this none of the cases for a fine or penalty payment so far brought before the Court has been pursued to judgment. The possibility to bring such a case has thus served its purpose in a very efficient way.
A breach of Community law may also trigger a liability of a Member State towards individuals. If the provision in question is intended to confer rights on individuals, if the breach is sufficient grave (sufficement caracteriseĂ©) and if there is a causal link between the damage and the breach.
The reason why I have described these rather basic facts at some length lies in the internal effects of the introduction of an infringement case. My previous experience from the Finnish civil service suggests that ministers and senior civil servants do not particularly appreciate such cases being brought. A judgment by the ECJ to the fact that the legislation of Member State or its application is contrary to Community law often has a similar effect on the administration as a request for explanation from the authorities made by the Ombudsman’s office. The introduction of a case for fines has an even greater effect. The civil servant deemed responsible may suddenly find that his or her career may take a new and not entirely satisfactory direction.
The normal manner by which a private party can verify whether a national measure meets the requirements of Community law is by bringing an action against the authorities concerned before the national courts. The national court may, and in certain cases must, make a reference for a preliminary ruling to the Court of Justice. Concerning those I shall make only a few comments.
Firstly, the system presupposes that individuals and economic operators can challenge a decision by the administration at any level before the national courts. Any court or tribunal of a Member State may then request the ECJ to give a preliminary ruling on the interpretation or validity of a Community act. The Court has consolidated the criteria for the interpretation of the expression “court or tribunal” in case C-54/96 Dorsch Consult. It stated that “In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent...”. Even if all these requirements need not be met simultaneously it would seem that the Ombudsmen’s offices fall short of those requirements. This, of course, makes it difficult for those offices to assess whether a complaint based on the non-observance, by administrative authorities, of community law requirements is founded or not.
Secondly, the Court of Justice does not rule, in a preliminary ruling, on the compatibility of national measures with Community law. At least it does not do so directly. The Court may state, in the operative part of its judgment that Community law precludes a national rule or administrative practise of a certain kind or, more frequently, that a rule of Community law is to be interpreted in a certain way, leaving to the national court to draw the conclusions of that interpretation for the case before it.
Such an interpretation by the Court of Justice is, nevertheless, binding on the requesting court as well as on other courts and on the administrations of the Member States. However, any court may put a new question before the Court of Justice in order to verify the exact understanding of the interpretation or, indeed, in order to seek a different interpretation.
All this leads to the conclusion than an acceding State may be well advised to introduce procedures in order to avoid conflicts with Community law and to rectify eventual errors in that respect. This may necessitate procedures for control of the compatibility of new legislation with Community law, education of civil servants not only before accession but on a continuous basis, a verification of access to justice by individuals and economic operators invoking rights under Community law as well as other measures. Community law does not provide an answer to the question how all this should be done. Indeed, that depends on the structure and functioning of the administration of each State. Even if that is the case it seems obvious that the Ombudsmen’s offices has to play an important role in that respect not least when it comes to ensuring the rights of individuals and economic operators.
Interpretation of Community lawÂ
I come now to the second part of my presentation concerning the way in which the Court of Justice interprets rules of Community law. The purpose of this part of my speech is to enable you better to predict whether a national measure may be seen as not corresponding to the requirements of Community law.
Having said that I hasten to recall the difficulties inherent in all discussions concerning interpretation. Even if one can establish a number of methods of interpretation no one has so far managed to state which method will be used in a specific context. Nevertheless, it may be noted that the Court systematically interprets exceptions from basic rules restrictively. This applies, for instance, to exceptions to the four fundamental freedoms under Community law, the free movement of goods, services, persons and capital. It applies equally to transitional arrangements negotiated by acceding States.
The methods of interpretation used by the ECJ are those known to all courts: textual interpretation, historical interpretation, contextual interpretation and teleological interpretation. The balance between these methods is, however, somewhat different from that known form other courts.
When the text of a provision is clear and compelling and is apparently meant to cover a situation such as the one in question a textual interpretation is sufficient. A particular problem arises, however, out of the fact that Community legislation is enacted in eleven different language versions which are far from always identical. If that is the case the Court turns, as it did in case C-72/95 Kraajieveld, to the general purpose and economy of the instrument. If one version of the legislation is more specific than the others and these are not in conflict with it, that version may be the basis of an interpretation. If the other versions indicate that one version is incorrect, will be set aside.
However, if the instrument in question is not intended to cover that situation, the Court may depart from the text. This was done in case 28-30/62 Da Costa, in which the Court did interpret the present Article 234 stating that there is no obligation for a court of last instance to request a preliminary ruling where the Court has already given an interpretation in a previous case.
Concepts of Community law may be interpreted differently from the corresponding concepts of national law. Thus even if a term in the trade mark directive was taken from the Benelux law on trade marks, that concept was not interpreted in accordance with the Benelux trademark law.
Interpretation based on the legislative history of a provision does not play a predominant role in the Court. As far as the EC Treaty is concerned that follows from the fact that no preparatory works have been published. The Court does, however, in some cases pay attention to the legislative history using materials concerning the discussions in preparatory committees, in the Council or in the European Parliament.
Contextual interpretation is of a considerable importance. As far as the EC Treaty is concerned one may mention that the Court has referred to the fact that Article 31, former Article 37, on adjustment of State monopolies appears in the Chapter on elimination of quantitative restrictions on the free movement of goods.
Teleological interpretation is of a considerable importance. As far as the Treaty is concerned the objectives are set out in the preamble and the introductory Articles. The Court has also drawn quite far reaching consequences of the purposes of Article 10, former Article 5 on loyal cooperation. The Court may thus arrive at a result promoting the objective for which a rule was introduced where the text allows such an interpretation. It may also resort to such an interpretation in order to avoid an undesirable result.
Where the Court is faced with a gap in Community law it may resort to general principles of law often based on the common legal heritage of the Member States. This has been the case when the Court deduced the principle of liability in damages of Member States as well as when establishing the fundamental rights and freedoms. In that regard it may be added that the Court today refers to judgments of the Strasbourg Court on Human Rights even if it does not formally apply the Convention on Human Rights and Fundamental Freedoms.
Among the general principles of Community law elaborated by the Court one may mention the requirement of judicial control, the right to be heard, the principles of non bis in idem and nulla poena sine lege, the prohibition against retroactivity, the protection of legitimate expectations and , probably most frequently resorted to the principle of proportionality. As far as that is concerned the Court asks itself whether the objective of a measure legitimate, whether the measure is apt to lead to the result sought and whether the result could have been achieved by a less far reaching means.
Ian Harden, Head of Secretariat, Office of the European Ombudsman: The Amsterdam Treaty and the national ombudsmen
The Treaty of Amsterdam came into force on 1 May 1999. One of its most important innovations is the objective that the European Union should become an “area of freedom, security and justice” (hereafter abbreviated to “AFSJ”). The decision to hold a special European Council in Tampere in October 1999 underlines the political importance attached to the AFSJ objective by the governments of Member States.
This paper explores the implications of the AFSJ for national ombudsmen and similar bodies, particularly in States that have applied to join the Union. Section 1 outlines the nature of the AFSJ provisions and explains how they fit into the structure of the Treaties. Section 2 considers the plans for implementation of the AFSJ. Section 3 examines the links between AFSJ and citizenship of the Union. The fourth and final section deals with AFSJ and enlargement of the Union.
1. AFSJ and the structure of the TreatiesÂ
The objectives of the European Union are set out in Article 2 of the Treaty on European Union (TEU). One of the objectives established by the original TEU - the Maastricht Treaty - was “to develop close co-operation on justice and home affairs”. The Amsterdam Treaty replaced that objective with the following:
to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
As is well-known, the Maastricht Treaty established the European Union on the basis of two intergovernmental “pillars” - a common foreign and security policy (“the second pillar” and co-operation in justice and home affairs (“the third pillar”) - alongside the first - (European Community) - pillar. The justice and home affairs objective corresponded to the provisions of the Maastricht third pillar.
The Amsterdam Treaty maintains the “pillar” structure of the Union. However, it changes the allocation of policy areas between pillars and introduces cross-pillar developments. Thus the AFSJ provisions are to be found partly in the Community pillar and partly in a revised third pillar (Title VI TEU: “Provisions on police and judicial co-operation in criminal matters”). Within the Community pillar, most, but not all, of the relevant provisions are included in a new Title IV of the Treaty establishing the European Community (ECT). The new Title (“Visas, asylum, immigration and other policies related to free movement of persons”) includes matters that were previously contained in the Maastricht third pillar.
The Amsterdam Treaty brings the Schengen acquis into the framework of the European Union.(1) The Schengen agreements of 1985 and 1990 have resulted in the removal of border controls between the participating Member States, co-operation between police, customs and judicial authorities and a common information system. The acquis includes not only the 1985 and 1990 agreements, but also decisions of the Schengen Executive Committee and of organs upon which the Executive Committee has conferred decision-making powers.
Schengen began in 1985 with only five Member States, eight others subsequently joined, whilst the UK and Ireland remain outside. The Treaty of Amsterdam allows further developments of this kind within the framework of the Union, by providing the possibility for a majority of Member States to engage in closer co-operation between themselves.(2) The idea is to ensure that deeper integration can take place, even if a minority of Member States does not wish to participate. Special provision is made for such “flexible integration” if it will enable the Union to develop more rapidly into an area of freedom, security and justice.(3) Similarly, Article 34 (2) (d) TEU provides for third pillar conventions, once adopted by at least half of the Member States to enter into force for those Member States.
An important feature of AFSJ is that, except for the incorporation of the Schengen acquis, the relevant Treaty provisions contain few substantive rules. Instead the Treaty mostly creates powers - and in some cases also duties - to make rules in the future.(4) The programmatic nature of the AFSJ provisions makes it essential for all those whose work it affects, including national ombudsmen and similar bodies to update regularly their knowledge of the relevant implementing measures.
In December 1998, the Council adopted jointly with the Commission an Action Plan for implementation of the AFSJ.(5) The next section of the paper highlights some of the actions envisaged by the Plan, in order to illustrate the potential far-reaching significance of the AFSJ.
2. AFSJ actions envisaged by 1 May 2001 and 1 May 2004Â
The Action Plan adopted by the Council jointly with the Commission lists measures that are planned to be adopted within two years and within five years of the entry into force of the Amsterdam Treaty. It is published in the Official Journal.(6) The following is a selection, in summary form, of certain important elements of the Plan.
2.1 Asylum, external borders and immigration
In the field of asylum, external borders and immigration, measures to be taken within two years include:
implementation of Eurodac (a computerised system for comparing fingerprints of asylum-seekers);
adoption of minimum standards on procedures in Member States for granting or withdrawing refugee status;
definition of minimum standards on the reception of asylum seekers;
definition of the rules on a uniform;
drawing up a regulation on countries:
whose nationals are exempt from any visa requirement in the Member States,
whose nationals are subject to a visa requirement in the Member States of the European Union;
Measures to be taken within five years include:
adoption of minimum standards with respect to the qualification of nationals of third countries as refugees;
defining minimum standards for subsidiary protection to persons in need of international protection;
preparation of rules on the conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purposes of family reunion;
determination of the conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.
2.2 Police and customs co-operation
According to the Action Plan, measures to be taken within two years include;
extending the powers of Europol(7) and focusing its work on operational co-operation;
consideration of arrangements for cross-border operations by law enforcement agencies of Member States;
development and expansion of operational co-operation between law enforcement services and strengthening of technical police co-operation;
in the field of customs law enforcement co-operation, the implementation of the Customs Information System and the Naples II Convention(8);
2.3 Judicial co-operation in criminal matters
Measures to be taken within two years include:
Implementation and further development of the European judicial network(9);
Finalisation and implementation of the Convention on Mutual Assistance in Criminal Matters as well as an additional Protocol to the Convention;
Implementation in law and practice of the two existing conventions on extradition between Member States;
Cross-border co-operation between the competent ministries and judicial or equivalent authorities of the Member States;
Initiation of a process with a view to facilitating mutual recognition of decisions and enforcement of judgements in criminal matters;
Consideration of the arrangements under which judicial or equivalent authorities from one Member State may operate in the territory of another Member State;
In certain defined fields, approximation of the Member States' rules on criminal matters.
2.4 Judicial co-operation in civil matters
The Action Plan links judicial co-operation in civil matters to the creation of a “European judicial area.” The idea is to simplify and facilitate the judicial environment for citizens, with the objective of improving legal certainty and equal access to justice, as well as removing possible obstacles to the exercise of rights in the single market, particularly the right of free movement.
Hitherto, judicial co-operation in civil matters has largely taken the form of conventions. Following the entry into force of the Amsterdam Treaty, the Commission has adopted proposals for a Regulation and a Directive which are intended to replace two conventions drawn up in 1997 and 1998, but not yet in force(10).
The proposed Regulation concerns jurisdiction, recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for joint children. It lays down rules on parental responsibility of both spouses in case of divorce or separation, thus facilitating the rapid and automatic recognition among Member States of judgements given in another Member State.
The proposed Directive concerns service of judicial and extrajudicial documents in civil and commercial matters. Its main objective is to avoid delays and confusion in the transmission of legal and other documents between Member States.
According to the Action Plan, other measures to be taken within two years include:
drawing up a legal instrument on the law applicable to non-contractual obligations;
examination of the possibility of extending the concept of the European judicial network in criminal matters to embrace civil proceedings.
Measures to be taken within five years include:
identifying the rules on civil procedure having cross-border implications which it is urgent to approximate for the purpose of facilitating access to justice for the citizens of Europe and examining additional measures to improve compatibility of civil procedures (for example, rules on security for litigation costs and on granting of legal aid);
improving and simplifying co-operation between courts in the taking of evidence;
examination of the possibility of drawing up:
a legal instrument on the law applicable to divorce:
models for non-judicial solutions to disputes with particular reference to transnational family conflicts. In this context, the possibility of mediation as a means of solving family conflicts should be examined;
a legal instrument on international jurisdiction, applicable law, recognition and enforcement of judgements relating to matrimonial property regimes and those relating to succession;
examination of the possibility of approximating certain areas of civil law.
3. AFSJ and citizenship of the UnionÂ
The Action Plan not only deals with implementation, but also clarifies the links between the AFSJ objective and the citizenship of the Union, which was established as part of Community law by the Maastricht Treaty (Articles 17-22 ECT).
As amended by the Amsterdam Treaty, Article 17 ECT reads as follows:
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
The first and most obvious link between citizenship and AFSJ is that “freedom” in the context of the AFSJ refers primarily to the free movement of people, which is one of most important rights of Union citizenship, guaranteed by Article 18 ECT.
The second link is that the constitutional principles on which the Union is founded are also central to the concept of citizenship. The Maastricht Treaty confirmed the principle, already established by the case-law of the Court of Justice(11), that fundamental rights are an integral part of Community law:
The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. (Article 6 (2) TEU)
The Amsterdam Treaty adds a statement of the other fundamental constitutional principles of the Union:
The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. (Article 6 (1) TEU).
The Action Plan refers to the general approach and philosophy of the AFSJ, in which “freedom” “security” and “justice” are inseparable, since “freedom loses much of its meaning if it cannot be enjoyed in a secure environment and with the full backing of a system of justice in which all Union citizens and residents can have confidence.” This analysis points to the close connection between the concepts of “freedom” and “justice” in the AFSJ and the principles of “liberty” and the “rule of law” in Article 6 (1) TEU.
Moreover, the Action Plan acknowledges that freedom must be complemented by the full range of fundamental human rights, including protection from any form of discrimination as foreseen by Article 12 ECT (discrimination on grounds of nationality) and the new Article 13 ECT (discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation).
In this context, it is worth noting the initiative of the current German Presidency to establish a "European Charter of Fundamental Rights", including fundamental rights and freedoms as guaranteed by the European Convention on Human Rights, the special rights of citizens of the Union as well as economic and social rights, as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers(12).
4. AFSJ and the enlargement processÂ
According to the Action Plan, “the countries applying for membership of the European Union are well aware that Justice and Home Affairs will have a special significance for their applications”. This special significance has two aspects.
The first aspect concerns the need for effective and reliable administration. For example, the development of the AFSJ involves the abolition of controls at the internal borders of the Union. This means that any Member State responsible for controls at frontiers with a third country is the guarantor not only of its own security, but also of the security of all the other Member States of the Union. Any State which is to participate in the AFSJ must therefore demonstrate that its administrative systems are effective and reliable for this purpose.
The second aspect concerns respect for the fundamental constitutional principles of the Union, listed in Article 6 (1) TEU: liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. As noted above, the AFSJ Action Plan acknowledges that freedom must be complemented by the full range of fundamental human rights. This acknowledgement is appropriate, since the AFSJ includes areas in which violations of fundamental rights are particularly liable to occur in practice (e.g. asylum, immigration, repression of crime).
The Amsterdam Treaty for the first time makes respect for fundamental constitutional principles an explicit Treaty condition for membership of the Union:
Any European State which respects the principles set out in Article 6 (1) may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. (Article 49 TEU).
Preparation for membership of the Union therefore involves not only establishing or maintaining effective and reliable administrative systems for AFSJ, but also at the same time ensuring respect for fundamental rights.
The Amsterdam Treaty also creates for the first time a procedure for suspending certain of the rights of a Member State in the case of a “serious and persistent breach” of the Article 6 (1) principles(13).
Ombudsmen can play an important role in helping build and sustain the administrative capacity needed to implement the acquis communautaire in all fields, including AFSJ.
Furthermore, although not explicitly mentioned in the Treaty, the views of national ombudsmen with responsibility for human rights issues will surely be accorded considerable importance in the procedure for admission of new Member States and – should it ever be used – the Article 7 TEU procedure for suspension of a Member State’s rights.
Joseph Sammut, Ombudsman, Malta: A Proper procedure for the enforcement of fundamental human rights in Malta
Malta shares with other countries participating in this seminar the aspiration to become a full member of the European Union possibly at its first enlargement. However, the island has certain characteristics different from those of most other candidate countries, except perhaps for Cyprus - another Mediterranean island.
Malta has had a relatively long relationship with the European Union. An association agreement was entered into with the Community in 1970 intended to lead to eventual full membership. Application for full membership was filed in July 1990. The government now is engaged in the screening process leading to negotiations for membership.
Besides its very small territory and population, other characteristic features of Malta include a democratic environment of long standing, a mature system of laws, an independent judiciary and a proper procedure for enforcement of law.
The provision of an adequate procedure for the enforcement of fundamental rights calls into play legal principles which are themselves of fundamental importance. This is the subject matter which I intend to deal with here today.
Human Rights Provisions
The full and effective protection of fundamental human rights goes far beyond the mere statement of the rights enshrined in a formal document. The document itself, important as it may be however, tends to remain a barren paper unless certain conditions are satisfied leading to its proper implementation.
In Malta fundamental human rights are adequately and manifestly proclaimed and provided for. Indeed the first such declaration dates back to 1814; this declaration, however, was not implemented in law. The first time that declared rights were made legally enforceable in Malta was in the 1961 pre-Independence Constitution. They were then carried over to the 1964 Constitution when Malta became independent. Those declared rights substantially reflect the declared rights contained in the European Convention on Human Rights and Fundamental Freedoms. They have survived, in slightly modified form, up to the present day.
Malta is also a member of the European Convention on Human Rights, and in May 1987 adhered to the right of individual petition to the Strasbourg organs provided for in that Convention. The rights provided for in the Convention were enacted into Maltese law. This provided legislatively not only for the implementation of the fundamental human rights enunciated in the Convention, but also parallel procedures to the already available constitutional remedies for the enforcement of these rights; namely,
the right to take the complaint on an individual basis to the Strasbourg organs, and
the enforcibility of any Strasbourg decision in relation to Malta by the Maltese Constitutional Court.
I shall now refer to the procedures available for the enforcement of fundamental rights, and in particular, the limitations of such procedures.
It is perhaps important to appreciate before I delve directly into the question of specific procedures for the protection of human rights, that very often if not always, these rights find their manifestation and are explicit in the ordinary law of the land. It is therefore often the case that were a fundamental right has been violated by the State, a number of concomitant violations can be seen to be also taking place which may not be seen to be of so fundamental a character.
Ordinary remedies would normally be available under the law for the protection of these rights. Take for example a case of an illegal arrest. An illegal arrest certainly violates the rights to freedom of the person both as protected in the Constitution and in the Convention. An illegal arrest, however, would also be in breach of a number of other provisions of the law, and also of the Criminal Code. A person illegally arrested could bring an habeas corpus application for his release without the necessity of resorting to the Constitutional or Conventional procedures. There is therefore an obvious duplication of remedies between the ordinary remedies and the Constitutional remedies.
This duplication may be imagined to be a strength of the system. Indeed, the point which I make is that multiplicity of remedies, rather than being of benefit, is very often of a disadvantage to a person who is seeking a quick remedy for the violation of his fundamental rights.
The Maltese Constitution gives an exclusive jurisdiction to the First Hall of the Civil Court to deliberate and decide on issues involving the breach of fundamental human rights, and on appeal to the Constitutional Court. The First Hall of the Civil Court is, in the Maltese system, the ordinary Court of contentions jurisdiction. It has jurisdiction over all issues barring those which are specifically reserved by law to some other court. It provides essentially two methods for raising such an issue:
by application; and by reference.
An application is the written document filed in the Court registry by which the injured party brings to the notice of the Court its grievances and prays for an appropriate remedy. The application is made in the First Hall of the Civil Court. It must contain the substance of the complaint, identify the rights allegedly breached and request for a remedy. The procedure adopted is purposely made by application in order to make it simpler for the aggrieved person to bring forward his case. The contents of the application are freer and less restricted than when proceedings are taken by the more formal writ. Also the costs upon filing in Court registry are lesser than in the case of a writ.
On filing of a Constitutional application in the registry, the Court registrar is bound to bring the application immediately to the notice of the judge to whom it is assigned for hearing. The judge has to appoint the application for hearing within eight days from its filing. This might give the impression of great alacrity in the treatment of such application and that is indeed how the law meant it to be dealt with. There may however be a number of adjournments after the first hearing and the law lays no limit as to the term within which the whole proceedings are to be brought to a close. In reality such applications do take, on an average, a shorter period to dispose of than other cases though there may be particular cases where the complicated issues raised, either of law or of fact, require a considerable lapse of time until a proper decision may be reached.
Proceedings by reference
The other manner in which an issue concerning the breach of fundamental human rights may be raised in the First Hall of the Civil Court is by order of reference. When such an issue is raised in any Court which is not the First Hall of the Civil Court, that Court is by law debarred from deciding the merits of the issue itself as jurisdiction is reserved to the First Hall. The Court may then refer the issue so raised to the First Hall of the Civil Court to be decided by it by making an order of reference. It may also dispose of the whole matter by deciding that the issue raised is frivolous and vexatious and stopping there. Where the matter is referred to the First Hall of the Civil Court, the referring Court must suspend proceedings and wait for the judgment of that Court and, eventually, if there is an appeal for the judgment of the Constitutional Court.
Appeal to the Constitutional Court
From decisions of the First Hall of the Civil Court on matters concerning the violation of fundamental human rights an appeal is allowed to the Constitutional Court. This appeal is to be made by application within eight working days from the judgment of the First Hall. Again the Constitutional Court is bound to fix the date for hearing within eight days from the filing of the appeal. As in the case of first instance proceedings there is no term laid down in the law within which the proceedings in front of the Constitutional Court have to be concluded. Getting a proper remedy to the breach of your fundamental rights may sometimes, though not generally, turn out to be quite a lengthy affair.
Until recently, the normal manner to appeal from judgments of the First Hall of the Civil Court was by a formal petition. Recent amendments have substituted the submission of a formal petition by application as the manner of filing an appeal. This change is important as it makes it easier for an aggrieved party to appeal from a judgment concerning the violation of his/her fundamental human rights. Maltese law requires that the appellant should give security of costs before his appeal is heard. Such costs may be considerable and a requirement to give security may effectively operate as a deterrent to an appeal. No such security is required in appeals concerning judgments dealing with the alleged breach of fundamental human rights.
Remedies under the Convention
Side by side with the remedy provided under the Constitution there is the remedy provided under the Convention. The same identical procedure is provided for in relation to alleged breaches of Convention rights as under the Constitution. The law specifically provides that a reference to a fundamental right in an application under either the Convention or the Constitution may be taken as a reference to the corresponding right under the other. In reality the application would cover both the alleged breach under the Constitution and under the Convention so that complaints and possible remedies are not duplicated and the whole matter is considered in one single proceeding. A person who still feels unsatisfied after the judgment of the Constitutional Court may then take his case to the European Court of Human Rights sitting in Strasbourg. The right of individual petition is acknowledged under Maltese law.
This description of the procedure available under Maltese law of the safeguard of fundamental human rights may give the impression that it is informal, speedy, and effective. A number of procedural problems however, may crop up making the obtaining of an effective remedy uncertain or problematic. Therefore, I now turn to consider these problems.
A. Contents of the application
The contents of an application, both in first instance and on appeal, are of an informal character. As long as applicant identifies the substance of his complaint and the breach alleged then the application is procedurally valid. The question of procedural nullity arising out of formal defects in the application may seriously obstruct the obtaining of an effective remedy, and in instances of appeal may be fatal to the party appealing. In order not to allow procedural problems to come in the way of an effective remedy the formal requirements of the application are reduced to their barest minimum and the Court is by law empowered to effect all amendments as may be necessary to the application.
Errors in the designation of the Court or other errors in the pleadings will not be fatal to the applicant and the Court will normally allow the necessary amendment. The inclination to allow such amendments has been considerably strengthened after the amendments in 1995 to the Code of Organization and Civil Procedure which took a more liberal view to the possibility of amending pleadings in ordinary procedures. In reality all that the law requires is that the application states "concisely and clearly the facts out of which the complaint arises" and "indicate the provision or provisions of the Constitution alleged to have been, to be or likely to be contravened".
B. Identification of the appropriate respondent
Another procedural problem which an applicant may face is the identification of the appropriate respondent in a human rights action. While in most cases this would be self-evident, there may be situations where the appropriate respondent to reply to the complaint may not be easily identified.
One such situation may arise out of complaints concerning fairness in the course of judicial proceedings. If the judges are made party to the action they plead immunity from such proceedings and will not be suited. The Minister of Justice and the Prime Minister would plead that they have no control over the judiciary and could not be a party to such proceedings. The Court Registrar would show complete disinterest claiming with considerable justification that he is in no way responsible for the matter complained of. Lastly, the other party involved in the suit would claim that, especially in cases of civil litigation, as a private citizen he could not be a proper respondent in such an action. In such a case it becomes a real problem to identify the person who should make a proper reply to such claims.
A solution evolved through case-law. As the State guarantees the full and effective observance and enforcement of fundamental rights, it is ultimately the State who should be the proper respondent in such actions, and where the particular official responsible may not be identified or is immune from suit, then the action should be directed against the Prime Minister in representation of the Government.
Another solution to remedy this problem has been an amendment to the Code of Organization and Civil Procedure. When it is difficult or impossible to identify the proper respondent then the applicant in cases of alleged breaches of fundamental rights, should cite as respondent the Attorney General in representation of the Government.
C. Exhaustion of ordinary remedies
A further procedural difficulty which a person alleging the violation of his fundamental rights faces in Court is the problem concerning the exhaustion of ordinary remedies. The Court has a discretion under the law to refuse to exercise its supervisory role in cases where it feels that the applicant had a remedy for his grievance under the ordinary law. The idea in the law is that recourse to the human rights remedy should be resorted to 'in extremis' where other remedies have failed. The purpose of this provision is to disencumber the Courts from unnecessary litigation in order to enable them to concentrate on the more meritorious applications. In reality it is often used as a procedural ploy to way lay the unwary applicant.
A broad categorization of the most common applications seeking remedy for violation of human rights according to the experience of Malta is as follows:
(i) Complaints by accused persons undergoing trial regarding the nature of their offence, the manner of their trial, and the duration of their detention.
(ii) Complaints regarding administrative action taken by Government authorities, such as issuing and revoking of licences and similar matters.
(iii) Complaints regarding the expropriation of property for a public purpose.
In nearly every type of case it is possible to envisage other remedies which could be resorted to besides the application for the violation of fundamental human rights. Therefore the exercise of jurisdiction becomes discretionary to the Court to be resorted to in those cases where the Courts really think merit their intervention.
In cases concerning administrative action the Code of Organization and Civil Procedure provides for the possibility of judicial review. This possibility is often used as a defence in a human rights action, the Government alleging that the applicant has a remedy under judicial review for the violation complained of. A plea that an applicant had not exhausted available remedies may cause unnecessary litigation and delay.
The expropriation of property by the Government is an issue by which the necessity of exhausting ordinary remedies is often a source of unnecessary delay. The law authorizing Government to take or expropriate property provides both for the circumstances in which the expropriation may be resorted to as well as the compensation to be paid. Before an application for violation of fundamental rights can be filed, the applicant must first use the channels through which the regularity of the expropriation is verified and the compensation due is assessed. This involves considerable delay in obtaining a fair remedy for what, after all, is seen as a violation of the fundamental right of the individual.
In reality it would be conducive to speedier justice if the question concerning the violation of fundamental rights could be taken together with the other issues involved in the complaint rather than treated separately. In effect the procedural requirements involved in litigation dampen the effectiveness of the remedy sought in defence of the fundamental rights of the individual. The problem with litigation is that it involves an inescapable element of formality in order to ensure a fair and a regular hearing to the parties. There is therefore some attendant inevitable delay, and the unavoidable risk that sometimes matters of form drown the substance of the issue. This is a point over which the procedure adopted by the Ombudsman in defence of the same rights has the edge.
Recourse to the Ombudsman and conclusion
A proper procedure for the enforcement of fundamental rights should be as informal as possible, concentrating on questions of substance and avoiding issues of procedure. It should also be inexpensive and easily accessible to the public at large. It has also to be reasonably swift, and above all to afford a fair hearing of the complaint brought forward.
In Malta the prerequisites for full and effective protection of fundamental human rights are all satisfied. The democratic environment is of long standing. The relevant laws, institutions and enforcement mechanisms are in place. The Court procedures tend towards the optimum requirements, yet unavoidable delay and procedural issues crop up as a corollary to the process of litigation.
In July 1995 the parliamentary Ombudsman arrived on the Maltese scene. Under Maltese law the Ombudsman is empowered to make the necessary recommendations where he finds that administrative action has caused a violation of fundamental rights. This relatively new institution provides a parallel and complementary process to that available under litigation. The process adopted by the Office is completely informal and untrammeled by 'nice' points of procedure. The remedy given by the Ombudsman is swift, inexpensive and expedient. The main drawback lies in that his decisions are advisory in nature and not necessarily binding. This does not make them any less effective, as invariably his advice is heeded and given effect.
The binding nature of a court judgment brings about with it attendant procedural problems as litigation is of its nature formal. Therefore, the Ombudsman institution affords an effective complementary mechanism for the defence of fundamental rights as it avoids the manifold pitfalls which the litigation process raises in the way of obtaining a satisfactory remedy.
Adam ZieliĂ±ski, Ombudsman, Poland: The Role of the Ombudsman in the Transformation Process from Totalitarian to Democratic System
The process of transforming the national political - economic system, as commenced from 1989 in Central and Eastern European countries, is linked with many particulars from various areas of life. The issue of human rights holds an exceptionally important place among them. A democratic state applying the rule of law is, after all, a state in which human rights are respected. This implies that a special role should be granted to the institution of ombudsman during the transformation process, since its foremost duty is to assist citizens in asserting their citizens' rights and freedoms.
At the moment the political and economic system is changed, yet the old legal system remains binding in the country. Discarding the former system in one legislative sweep would cause too many difficulties. It is therefore necessary to make changes in legislation and to move ahead towards the requirements of the new system as quickly as possible. In countries that are seeking membership of the European Union, the direction these changes follow must comply with the necessity to adapt to the standards that are in effect in the European Union. This includes areas that are implied by the Treaty of Amsterdam's description of the Union as an area of freedom, security and justice.
Changes in regulations concerning political freedoms and rights may be made the fastest. It is relatively easy to lift preventive censorship, declare freedom for political parties and democratise the electoral system. It is significantly more difficult to reconstruct regulations on private property, on privacy protection and consumer protection.
Ombudsmen do not, generally, have the right to initiate legislation. As a rule, they also do not directly participate in legislative activities. Indeed, some members of parliament would prefer it if the ombudsman did take an ongoing part in legislative works. That would mean, however, an increase to his or her co-responsibility for the contents of each law and, as a consequence, would encumber later criticism of laws once passed, since problems with legislation appear only once they are being applied or enforced. Moreover, being burdened with legislative tasks would distract the ombudsman from his or her other important tasks. That is why his or her direct participation in the legislation process is usually limited to cases in which such a participation is indeed necessary for the protection of citizens' freedoms and rights. The ombudsman should, however – and relatively often – speak out about possible flaws in the legislative corpus as it affects this area and indicate the areas where legislative initiatives must be taken by the appropriate organs. For example, the Polish Ombudsman made over 100 such interventions in 1998 to indicate i.a. the necessity to adapt domestic law to European standards for the protection of human rights.
In some countries, the ombudsman may affect the reconstruction of the legal system by submitting applications to the Constitutional Court or to another applicable court in order to declare legal provisions unconstitutional or contrary to international agreements or legislation of higher order. The Polish Ombudsman, who does possess such authority, exercised it to make 21 submissions to the Constitutional Tribunal in 1998 as well as – in the scope of local law – two complaints to the Supreme Administrative Court. Here, too, did the Ombudsman appeal on grounds that Polish law is not in conformity to European legal regulations.
Countries in which the transformation process is at the starting point find themselves, generally speaking, at a low economic level, though this is not always the case and differs by country. At first it was thought that the "iron hand of the market" will suffice for the economy to be reconstructed. Unfortunately, it turned out that whereas without a free market it is impossible to guarantee democracy and permanent development of a country, entirely giving up on the corrective role of the state in the economy is impossible. The gap between rich and poor is widening. The phenomenon of unemployment now exists. Many people are incapable of independently exercising their basic citizens' rights. Such people must be helped.
An efficient judicial system is a foundation of a country governed by the rule of law. The political and economic system transformation has caused a substantial increase in the demand for judicial services. The overall number of cases in courts cases have increased in all countries that have entered the road towards transformation. However, the courts were nor ready for their increased influence which resulted in prolongation of the time court proceedings and, therefore, in a less efficient judicial protection of citizens' rights. That helps to explain why EU documents draw notice to the need for countries aspiring to the EU to make significant progress in the area of justice and domestic affairs.
Introducing of many social reforms is necessary within the transformation process. There is little experience in their preparation and implementation in ways that will not cause unpredictable risks to citizens' interests. Three major reforms were introduced on the first of January, 1999: the reform of the country’s administrative division and the associated transfer of many central responsibilities downward to local self-government, the reform of social security system and of the health protection system. A fourth reform of educational system is under way. All of those reforms have been founded upon an appropriate assumption that the new systems should to a large extent be based on market mechanisms, while the protection of the poor should be implemented by providing them with assistance from public funds. Such an assumption does require, however, a properly working mechanisms of social assistance. If resources for such assistance are insufficient or if social assistance organs do not operate in a fair way, citizens' rights are likely to be infringed. Reforms also give rise to certain hazards if their details have not been elaborated in time.
The privatisation of the economy generates problems. Until recently, Central and Eastern European countries used to have a strong state-run sector and highly centralised management of economy. With privatisation there comes a need to develop new methods to protect citizens' rights under free market conditions. It is especially important to adapt consumer protection principles and methods to combat monopolistic practices to the equivalent standards which are in effect within the European Union.
In countries where – like in Poland - there are no time limits when an ombudsman's office may be approached, citizens often seek help in compensating harm done to them during the communist period. This concerns mostly unfair sentences in criminal cases and the return of property unjustly taken away by the state during the communist era. Opportunities to reverse criminal convictions for most unjust sentences at the initiative of the wronged parties do exist. There remain, nevertheless, cases when the wronged party needs assistance of the Ombudsman. The situation regarding the return of confiscated property is more complex. For example, there is no single act that would make it possible to return property that was unfairly seized by the state to its former owners. The Ombudsman's office has several times appealed for passing such a act. So far, the return of property may occur only in cases when the law then in effect was violated.
Legal education has a significant meaning in the transformation process. A principle of a lawful state is that the law is to be strictly followed. Moreover, in such a country the citizens themselves should be at the first when it comes to protecting their own rights. Citizens can do so only when they know the law, both national and international.
That represents only the formal dimension of legal education. The material aspect is also important; this depends on the popularisation of a system of values that form the basis of the legal system in western democracies. There is not enough knowledge of international standards including European law among the society or civil servants. It sometimes occurs that they, for example, confuse the Council of Europe with the European Union, do not perceive differences in the legal precedence of specific documents of the European law, do not know what the "acquis communautaire" is, and do not know the rather complicated system of European organs. Given this situation, it is necessary to disseminate the knowledge of the European law. Those tasks are implemented by various organs and institutions. The Ombudsman must also play his part as well.
The Ombudsman's office has published, for example, the text of the European Convention on the Protection of Human Rights and Fundamental Freedoms in the for of a wall calendar and distributed it at no charge to schools, state organs, military units and other institutions. Financial aid has been given for the publishing of a two-volume Polish language collection of the pronouncements of European organs for the protection of human rights in Strasbourg. It has published a brochure containing advice to citizens on how to submit a complaint to the Human Rights Committee and to the European Human Rights Tribunal. It also plays a sponsor's role in various initiatives aimed at disseminating knowledge of international standards in the area human rights protection among the youth. Scientific conferences on that subject were also organised. In this regard, positive changes can be noticed.
And now one more issue – the necessity of a change in how civil servants of state administration should act. A totalitarian state is one that is unaccountable to its citizens whose interests are ignored and who are treated instrumentally. A democratic state must be kind to the citizen, account for his needs and defend human dignity. Meaningful changes will be necessary in this area also during the transformation period, especially since civil servants' negative or unfeeling tendencies are often quite strong.
As can be seen, the transformation period brings about many new challenges to public organs, including the ombudsman institutions. It is important that this period not be used to justify the violation of citizens' rights, or to maintain that only in the future will we be able to fully respect those rights.
Ivan Bizjak, Ombudsman, Slovenia: The ombudsman and a country’s human rights record (specifics in the countries in transition)
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 and the capacity to cope with competitive pressure and market forces within the Union;
the ability to take on the obligations of membership, including adherence to the aims of the political, economic and monetary union.
As far as the first principle is concerned, the institution of the ombudsman can contribute to the stability of the rule of law and the strict protection of HR and minorities.
In the initial opinion on the aplication for membership of the EU and the regular report on the progress towards accession, the main emphases and concerns of the Commission are evident. In the case of Slovenia, it is 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 the ombudsman in a country and which must build up and strengthen the democratic institutions and behaviour of state bodies. The lack of democratic experience in the past imposes many additional tasks. All of them are closely connected with the earlier quoted conditions for membership in the EU.
In this period of transition in Slovenia, 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 out within a short amount of time. It is becoming increasingly clear, however, that this is a time-consuming and complicated process. Approaching the European Union demands enforcement of common European standards, which on the one hand could be helpful when searching for the most appropriate solutions, and on the other represents new challenges. Transitional circumstances are characterised by an unstable and, given the frequent changes, not entirely consistent legal order, and also a range of state bodies so inundated with applications that they take a very long 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 rectified. All of this is taking place at a slow rate, while at the same time many people are encountering problems that were previously unknown, especially unemployment and the ensuing social hardships.
In transitional circumstances 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. Regarding legislation, the ombudsman plays a vital role in drawing attention to inappropriate and outdated regulations. This is all the more important because governments and parliaments give priority to regulations concerning economic and general political issues, while regulations essential to the exercise and safeguarding of human rights are often neglected. The adoption of numerous new regulations itself can also cause problems for individuals. Even the most thorough legislator cannot envisage all situations that life may bring. Conflicts and loopholes are a given in the newly adopted laws, which state bodies generally resolve to the detriment of the individual. It is possible for the ombudsman to propose a change to the law, but, more importantly, he may also demand a constitutional court ruling on the constitutionality of a law, or he may 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.
The advice, opinions and proposals of the ombudsman can also be very important concerning the adaptation of the structures and institutions of a country to the standards of a state governed by the rule of law. The problems that emerge from complaints made by individuals can form the basis upon which shortcomings in the functioning of state bodies are established. Organisational changes can be proposed in places where, for instance, the existing organisation prevents the effective exercise of the right of appeal, and also appropriate strengthening and organisational changes where procedures are unreasonably long.
In the restored democracies, the role of the ombudsman is especially important concerning changing the practice of the state bodies, in particular in regard to 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 is particularly important in the workings of the repressive bodies. Of equal importance of course 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 the state as all-powerful remains strongly rooted in the minds of administrative officials. The ombudsman can help establish the principle that the state exists to serve the citizens, not the other way around. The ombudsman can also play an important role in the prevention of corruption within state bodies. By acquainting the decision-makers with the concrete problems of the people, the ombudsman can significantly contribute to the (trans)formation of the policies, which will adequately distribute the burden of making changes in the economic 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. Even through complaints, however, it is possible to identify many human rights 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 human rights and fundamental freedoms and legal security of the citizens” make it possible to point out any human rights violation or problem in the assertion of ones rights and legal interests.
In addition, inspections of prisons or other detention facilities work to improve their safeguarding and can contribute to the strict observance of the human rights of the most vulnerable categories of people.
The annual report is one of the most potent resources available to the ombudsman. However, it is not easy to attract the appropriate public response to the problems and proposals stated in the report. It is necessary to co-operate very closely with the members of parliament and the parliamentary committees in order to acquaint them with the existing issues. In this regard I proposed to all parliamentary groups to present them with the annual report before the parliamentary debate. Half of them accepted this proposal and I presume that the debate was more well-founded after the explanation provided. After the debate on my annual report (in addition to some very kind words of support for the institution and a positive assessment of its achievements) the National Assembly adopted some concrete points of resolution urging the government to take the necessary measures to resolve the problems revealed in the reports.
I also find special reports to be quite useful. In this year I have submitted two special reports to the parliament: on the treatment of people in custody (February 1999) and on the treatment of people with mental disorders (January 1999). Earlier I published a much more detailed special report on some other specific problems. Experience shows that such reports attract a very high level of public attention.
Another possibility to effectively influence legislation is the request for constitutional review, which the ombudsman in our country can lodge with the constitutional court. Recently we successfully challenged the regulation on notary rates; in this way we also succeeded earlier in changing 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 the next session. In this presentation I would like to cover only a few interesting fields in which the activities of the ombudsman can be of particular significance.
Concerning legislation, our most recent annual report lists some eighteen laws and regulations which should be adopted in order to improve the protection of rights of individuals and legal security in the country. Some of them are also listed in the national accession program. We finally succeeded in our request to prepare the bill which regulates the legal status of a large group of people from other former Yugoslav republics who do not enjoy proper legal status.
It is the general opinion that our public administration needs substantive reform. This is also one of the findings in the Commission’s report on Slovenia. In my daily work, especially in my annual reports, I give many suggestions aimed at improvements in the organisation of Slovenian public administration. In the 1998 AR we dedicated a special chapter to this matter. A feature which still remains part of the human rights situation in Slovenia is the unreasonable length of time needed to make a ruling on numerous court and administrative procedures. Ruling on rights, obligations and legally protected interests far exceeds legal deadlines in many administrative procedures, while the legal protection of rights and appeals rulings requires a disproportionate amount of time. It lasted a rather long time and much effort was required to put this question on the agenda. It is no wonder that problems of this type are reflected in the Commission report on progress, especially “slowness of the judicial process” and delays in some administrative procedures (denationalisation, citizenship). In 1999, the National Assembly also adopted some very concrete decisions aimed at speeding up appeals procedures with tax authority.
Another interesting parliamentary move which reflects the work of the ombudsman was the National Assembly decision to support the human rights ombudsman’s recommendation that the country should establish a maintenance fund to provide for those children for whom the party liable for maintenance payments fails to pay maintenance. Another decision (not yet implemented) reads that for protection of children’s rights it would make sense to introduce appropriate forms of representation and advocacy for children. The parliament supported the opinion of the ombudsman that there was a need for reorganised legal aid for persons unable to pay high lawyer’s fees, especially in complaints claims for maintenance or for the division of property after divorce, in labour disputes and in exercising the rights deriving from medical and pension insurance. An appropriate bill has already been drafted.
For certain reasons the following decision is interesting:
“The National Assembly finds that the resolutions passed at the 7th session of the National Assembly on 19 November 1997, on the occasion of the reading of the first and second regular annual reports of the human rights ombudsman for 1995 and 1996 respectively, have not been put completely into effect. Therefore, with regard to the excessive slowness in addressing certain systemic problems and the consequent lack of improvement regarding the protection of certain human rights, it advises the government of the Republic of Slovenia to take action as soon as possible in certain areas and to prepare a plan of measures for removing the causes of violations of human rights and fundamental freedoms”. This is evidence that sometimes even the decisions of the parliament remain unaccomplished.
There is no doubt that an ombudsman can and must have some impact on improvements in legislation, structure and procedures of public administration and practice of authorities. In the accession process the ombudsman’s activities go hand in hand with the expectation that the country will fulfil the human rights part of the political criteria for EU membership.
Eliana Nikolaou, Ombudsman, Cyprus: The role of the Ombudsman in the process of the harmonisation to the E.U standards-legislation, institutions, practices
Nowadays, a National Ombudsman is the norm in nearly all European countries. The typical European national Ombudsman deals with a similar range of public bodies and functions in more or less similar ways.
During the last decade the Council of Europe has been promoting non judicial means for the protection and promotion of human rights. Though the courts remain always the ultimate arbiter of human rights questions, it is recognized that the ombudsman system offers certain advantages to the individual because, by comparison with the courts, is speedier, more accessible and less formal.
The establishment of the European Ombudsman is one of the most important institutional novelties introduced within the framework of the European Union. The process of European integration along with the prospect of further enlargement of the European Union led to the establishment of the European Ombudsman.Within the Institutional framework of the European Union both the European Ombudsman and the Committee on Petitions of the European Parliament, are non judicial bodies, competent to safeguard citizens / political, civil and social rights vis a vis the Community institutions and bodies. These non judicial bodies together with the judicial system of the Union, constitute a broad spectrum guaranteeing the participation of the citizens in the every day life of the Union.
The increasing number of ombudsman institutions in Europe along with the evolving relationship between European Ombudsman and national Ombudsmen is a very interesting issue and in one way or another signifies an important challenge for a country like Cyprus which is under accession to the European Union.
It is well known that the European Ombudsman cannot deal with complaints concerning national, regional or local administration of the member states of the Union. The responsibility to deal with those kind of complaints lies with national Ombudsmen of the Member States of the Union.
However the co-existence of the two institutions, in Community and national level, strengthens the opportunity for European citizens to submit their complaint against those Community institutions or bodies which are within European ombudsmans / remit.
Having in mind the experience of Cyprus preparation for accession to the European Union, which is now underway, I consider that the European Ombudsman have an important role to play in the process of harmonization to the Union/s standards, institutions and practices and in ensuring the full protection of the rights of citizens of the European Union.
In this respect we have to explore ways of promoting co-operation between the European Ombudsman and national Ombudsmen and similar bodies in the member states of the European Union. A certain number of issues regarding the relationship between national and European Ombudsmen should be clarified so that the common objective of the protection of the rights of the citizens be met.
It is conceived that the European Ombudsman does not have jurisdiction over national authorities for failure to implement particular European Union Law because those complaints fall within the jurisdiction of national Ombudsmen. Neither is he empowered to act as an appeal body against the decisions of the National Ombudsmen .
However, there is a certain number of complaints which does not fall within the jurisdiction of a national Ombudsman and yet may not readily come to the attention of the European Ombudsman. Under the existing circumstances there are difficulties to national Ombudsmen to pursue such complaints to the European Ombudsman. In such a case the possibility of referring such complaints to the European Ombudsman has the advantage of removing the requirement on the complainant to start the complaint process all over again after he or she has exhausted the procedures at national level.
The development of Ombudsman institution in most of the countries in Europe shows that there is no pure model of an Ombudsman institution, because the notion of ombudsmanship has been integrated into the political and constitutional framework of each country to meet its own requirements.
The process of European integration poses the interesting challenge as to how the Community law and Citizens/s rights are applied and respected at national level. This is not an easy task because it is no longer possible to clear boundaries between the national and the international, the public and the private. However, some common features of the Ombudsman movement in Europe is not difficult to trace. That is the Ombudsman's commitment to constitutional democracy, rule of law and human rights.
Bearing in mind those features, which constitute the cornerstones of our democratic societies, I believe that irrespective of whether the ombudsman is conceived as an overseer of legality, a conciliator or mediator his role as a defender of the rights of European citizens is of crucial importance. To this end the creation of the office of the European Ombudsman together with certain cooperation arrangements, which must be put in place, with national Ombudsmen have an important role to play in ensuring the full protection of the rights of the citizens of the European Union.
Jernej Rovšek, Deputy Ombudsman, Slovenia: Activities of the Human Rights Ombudsman in the process of the harmonisation to the EU standards
In this contribution I will make an attempt to present some of the activities of the Slovenian Human Rights Ombudsman coinciding with the country's efforts in the process of harmonisation to EU standards. These efforts are evident in detail and on a larger scale from our annual reports to the National Assembly that are also available in English on our web site and in hard copies.
For the ombudsmen in transition countries it is characteristic that they face systemic errors deriving from incomplete, outdated or unsuitable legislation more often than ombudsmen in countries with a longer tradition of democracy. The problems faced by individuals turning to us for help can often only be solved by changing certain regulations. Our work in the last few years has been in general more successful in solving cases deriving from maladministration and poor work of state bodies than in solving what we call "systemic" problems. Even if our intervention helps solve an individual case, it does not eliminate the causes of future infringements, which are a consequence of errors in regulations. Our annual reports contain many criticisms of legislation, but also suggestions about which regulations need to be adopted or altered as soon as possible. Even though (as mentioned earlier) we are less successful in this area, because the government and the parliament give priority to regulations in the area of economy, we are achieving some progress in this area by persistently repeating our recomendations.
I wish to stress that our efforts towards the better functioning of state bodies and towards a more effective protection of the rights of individuals in dealing with these bodies are not only necessary because of our convergence with the European Union standards, but also for our own benefit, to set high standards of the functioning of a democratic state based on the rule of law and for effective protection of human rights. Below I will set out some examples of our activities in this area.
After gaining independence, Slovenia enabled citizens of other republics of former Yugoslavia who lived in Slovenia to gain Slovene citizenship on request without any special conditions. More than 170,000 individuals gained citizenship in this manner without having to relinquish their previous citizenship. The status of those who for whatever reason did not opt for Slovene citizenship in 1991 within the time limit provided by law, however, remained unsettled. These people were later deleted from the register of permanent inhabitants in a controversial procedure, even though they had been living in Slovenia for a long time. Insurmountable difficulties were often encountered when arranging permits for permanent or temporary residence, since many had lost their jobs and did not fulfil the conditions set by the Law on Foreigners. By persistently drawing attention to this problem, we have succeeded in having the government draft an act to settle the status of these persons through the acquisition of a permanent residence permit. The act is about to be adopted by the National Assembly.
While the status of temporary refugees in Slovenia is appropriately regulated by the 1997 law, the arrangement of procedures for granting asylum according to the United Nations convention was not in accordance with European standards. We expect new acts on foreigners and asylum to be adopted soon.
We keep pointing out that an appropriate organisation of state bodies is important for an effective assertion of the rights of individuals. Slovenia has a two-tack territorial organisation of state administrative units and local communities. Public administration reform is currently underway, which is expected to provide a more appropriate organisation of administrative units and local communities.
The denationalisation process in Slovenia, i.e. returning the property nationalised in the previous system, is running very slowly. One of the various reasons for this is that the preferred system of returning property is in naturalis, which causes new problems, for instance for the tenants of such real estate. We are contacted by groups of various individuals affected in this area, but the ombudsman cannot take a stand on these very political issues. We expect that the latest government resolutions adopted when the report on the implementation of the Denationalisation Act was debated, will contribute to a faster resolving and ending of this long and complex process.
We have also included several special analyses in the report for 1998. We believe they will trigger a broader discussion in parliament and general public and lead to better solutions in these areas.
The first analysis refers to the attitude of civil servants to their clients. As early as 1996 we proposed in our report the principles that should be considered by those public administration bodies that have direct contact with individuals. We have now proposed that public administration bodies prepare codes of ethics for their staff, and these should define the obligations of civil servants towards individuals more precisely as an addition to the legal provisions, in order to have a more efficient and citizen-friendly administration.
One of the peculiarities of states in transition is the poor development and tradition of complaint procedures. In the report for 1998 we have therefore specially suggested the forming of effective avenues of complaint in all areas where public administration bodies have contact with individuals. In one of the previous reports we separately analysed the avenues for complaint in the area of health care. Appropriate changes to regulations are already being prepared on this basis.
We have also given a great deal of attention in our last report to the issues of access to information of a public nature. The analysis of this area was split into four areas.
First, we dealt with the passive element of the right of access to information, i.e. the obligation of public administration bodies to provide information upon special request. We have determined that the constitutional provision which gives the individual the right to acquire information of a public nature, is not regulated by law. We have therefore proposed the adoption of an act that would regulate the execution of this right in more detail, and of an act that would determine the basis for defining secrecy of information in public administration bodies as this is important for defining information of public nature. We have also proposed that public administration bodies in the meantime adopt their own rules on the procedures for requesting information, and the possibility of setting up a non-judicial body to supervise the implementation of this provisions.
The second area is the openess and transparency of state bodies' activities. We proposed that public administration bodies inform the public primarily through new technical means by establishing their own internet home pages. Citizens should be informed in the same way about the possibilities of complaints and of regulations that were adopted or are being prepared.
It is our opinion that the accessibility of laws and other regulations poses a special problem in Slovenia. At this moment no free-of-charge access to a register of regulations and complete law texts is available. Our proposals are oriented towards gradually ensuring free-of-charge access to complete texts of regulations on the Internet.
We have also separately dealt with the accessibility of environmental information and suggested an early ratification of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Ă„rhus Convention) and its early implementation even before ratification.
I have only stated some of the ombudsman’s activities that are important (although not exclusively so) in the light of Slovenia’s future accession to the European Union. We expect our proposals to have the support of the National Assembly as before. In the future we intend to use the possibility of assessment of constitutionality of individual regulations in the constitutional court more often than before; this is an important instrument of the Slovene ombudsman and – as we have determined – also of ombudsmen in other countries in transition.
The Maastricht treaty and European Citizenship was the subject of the presentation by the European Ombudsman Mr. Jacob Soederman. Reference was made to the special rights and the significance of the European citizenship. It was pointed out that when the European Ombudsman investigates whether there is maladministration on the community level he always refers to the case law of the Court of Justice and to the principles of good administration. Due to the fact that there are numerous sets of rules applying in specific areas of administration the introduction of a code of good administrative behaviour would have benefits both for the citizens and for the administration. Mr. Soederman pointed out that linking the web sites of the national ombudsmen to the web site of the European Ombudsman would be helpful to the ongoing dialogue and co-operation between national and European Ombudsmen.
The interpretation and application of the community law by the Court of Justice was the topic of the presentation by Judge Leif Sevon. Certain aspects of the relation between national and community law were raised along with issues related to the general rules of interpretation of community law by the Court of Justice. It was pointed out that states acceding to the Union may be well advised to introduce procedures in order to avoid conflict with community law and to rectify eventual errors in that respect. The main necessities are procedures for control of the compatibility of new legislation with community law and education of civil servants not only before accession, but on a continuous basis.
Both Mr. Soederman and Judge Sevon stressed that the implementation of the community law is primarily a task of national authorities, whose activities are controlled by national courts and national ombudsmen.
The provisions of the Amsterdam Treaty concerning the establishment of an area of freedom, security and justice were discussed by the European ombudsman’s head of secretariat Mr. Ian Harden. Stress was laid on the programmatic nature of the provisions which are to be implemented during the next two to five years. The importance of human rights and of the reports of the national ombudsman in the application of the political criteria for membership to the Union were also mentioned.
Specific issues regarding the countries in transition were discussed during the second session of the seminar. The example of Malta was presented by Mr. Joseph Sammut who pointed out that in Malta’s longstanding democratic environment the Ombudsman provides a parallel and complementary process to all the available institutions and enforcement mechanisms for the protection of human rights.
Mr. Zielinski presented the institution of the Ombudsman of Poland and stressed its vital role in adapting the Polish legal system to community law and spreading knowledge of Community law. Mr. Zielinski also pointed out the specifics of the institution of the Ombudsman, especially his right to submit petitions to the constitutional tribunal in the case of Polish law’s infringement of European or international standards for the protection of human rights.
Mr. Bizjak, Ombudsman of Slovenia, pointed out in his presentation that an ombudsman of a country in transition is a specific type of ombudsman. In transitional circumstances the role of the ombudsman is even more important than in countries enjoying a long democratic tradition. The contribution of the ombudsman is of vital importance as regards the adaptation of new structures and institutions. Of equal importance is his role in changing the relationship between the administrative bodies of the state and the citizens. Ombudsman must also have an impact on improvements in legislation, structures and public administration.
There was discussion of the term countries in transition, initiated by Mr Kresak, member of the Slovak Parliament. It was generally agreed that the term should not be used as an excuse for delay in implementing reforms.
During a Round Table discussion of the role of the Ombudsman in the process of accession to the EU, emphasis was placed on the need to ensure not only harmonisation of legislation but also the development of adequate administrative capacity for implementation of the acquis communautaire. The following list of possible instruments available to Ombudsmen for this purpose emerged from the different national contributions:
Own initiative inquiries
Recommendations to Parliament concerning legislation
Cooperation with the press and other media
Improving access to documents
Use of clear and non bureaucratic language in the Ombudsman work
informing citizens of their rights
issuing of a Code of good administrative behaviour
cooperation with NGOs and with the European Ombudsman
It was a commonly shared view that seminars of this type are very valuable and constructive in the way to full membership of the EU and that more such seminars could be organised in the future. The Romanian delegation offered to organise and host a follow up seminar in 2000 and this proposal was agreed.