Netherland, De Nationale Ombudsman
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De Nationale Ombudsman
NETHERLAND
ANNUAL REPORT
On 20 March 2002, Mr R. Fernhout, the National Ombudsman of the Netherlands, presented his 2001 Annual Report to the President of the House of Representatives. Here are presented some highlights of part I, the ‘core report’, with some general information and statistics relating to the work of the National Ombudsman. The core report is also available on the Internet www.nationaleombudsman.nl
Cases submitted
In 2001, 27,990 people wrote or telephoned the National Ombudsman, a quarter more than in the previous year. Of these, 18,186 contacted the Office by telephone, a rise of almost 50% compared with 2000. The National Ombudsman received 9528 written complaints, 15% more than in 2000 (8242 complaints).
Cases dealt with
The number of cases dealt with - with roughly the same number of staff – rose from 8172 in 2000 to 9060 in 2001. The upper limit does however appear to have been reached. The increase in the number of cases submitted has led to an increase in the workload by 26%. Processing time has inevitably also increased. Of all the cases completed, 34.5% were dealt with within four weeks (35.6 % in 2000), 59.8% were dealt with within eight weeks and 90.2% within a year.
Of the 9060 complaints dealt with, 21% concerned bodies that do not lie within the National Ombudsman’s competence (inadmissible under the Act). In addition, 48.9% were inadmissible on other grounds. The remainder (30.1%) were investigated and subsequently settled.
Investigation and report
In total, 2717 complaints were dealt with after having been found eligible for investigation. Of these 406 (14.9%) led to a report. In 2321 cases (85.1 %) the investigation was discontinued without a report being issued. 2034 cases (87.6%) were discontinued because the administrative authority concerned had given the complainant satisfaction.
Investigations instituted on the National Ombudsman's own initiative
Last year the National Ombudsman decided to make greater use of his powers under section 15 of the National Ombudsman Act to ‘institute an investigation into the manner in which an administrative authority has acted in particular circumstances’ on his own initiative. This decision gave rise to questions. However, what is at issue here is merely the use of a particular power on a somewhat larger scale than before. No necessity is felt to extend or expand this power any further. If the National Ombudsman regularly receives complaints about a specific practice of a government body, he may decide to start an investigation on his own initiative. In this way, any problems that lie at the root of numerous complaints may come to light. In addition, dealing with a specific complaint may shed light on a more structural problem that the person concerned has not complained about. Starting an investigation on his own initiative offers an opportunity to include such an aspect in the decision. In 2001, five investigations were instituted on the National Ombudsman’s own initiative, some of which were of a combined nature (partly following a complaint, partly own initiative):
- An investigation into the circumstances in three reporting centres (ACs) for asylum-seekers (report 2001/081).
- A combined investigation concerned the registry of The Hague District Court, sitting in Haarlem (report 2001/134).
- A combined investigation into the Economic Investigation Service (ECD) (report 2001/216).
- An investigation into the Tax Department (report 2001/270).
- An investigation into the Province of Zeeland Complaints Committee (Youth Services and Youth Protection) (report 2001/313).
Whistle-blowers
The Town Council of Enschede is about to enact a regulation concerning whistle blowers. It provides for an internal procedure. If a whistle blower is not satisfied with the way his report of abuse has been dealt with by the Town Council, he can complain to the National Ombudsman. According to the National Ombudsman he can investigate and give a decision at the request of individual public servants on the way administrative authorities have dealt with his report of abuse. He can however only perform this duty by using his statutory powers. This means that he will not advise the municipal executive, but will issue a report with conclusions on the way it has acted, if necessary accompanied by one or more recommendations. If the National Ombudsman is to play the role of external complaint handler, he considers that safeguards should be put in place both for the official reporting and for the administrative authority. For example, it will have to be clear that the official can have recourse to the National Ombudsman after the internal procedure has been completed. And the official or the municipality must be able to demand confidentiality in respect of the documents involved. What is more, if the official so desires, he must be granted anonymity, both with respect to the municipality and the outside world.
The National Ombudsman has informed the municipality of Enschede and the Minister of the Interior and Kingdom Relations that he is prepared to act as an external complaint handler in whistle-blower procedures provided the principles set out above are taken into account.
Children’s ombudsman
The National Ombudsman is in principle in favour of the private members’ bill setting up a children’s ombudsman introduced by MPs Arib and Van Vliet on 6 December 2001. He considers the supervision of compliance with the UN Convention on the Rights of the Child and advising on legislation and policies relating to young people, in particular as suitable tasks for a children’s ombudsman. However, he does not feel that such an institution would be the appropriate one to handle individual complaints, particularly where the National Ombudsman is the official complaint institution. Minors may also submit complaints to the National Ombudsman. Having another institution deciding on complaints about administrative authorities would seriously undermine the aims and structure of the existing external complaints system.
A children’s ombudsman would nonetheless have an important role to play in providing information on the most appropriate complaints procedure for minors and referral to such bodies. The bill should therefore also contain a provision allowing for speedy referral to the National Ombudsman of complaints about administrative authorities from young people. The National Ombudsman pointed out some time ago the confusion and misunderstandings that arise from the broad use of the term ‘ombudsman’. This name should be reserved solely for external bodies dealing with complaints about the public sector that meet the requirements of professionalism, independence and impartiality. The term “children’s ombudsman” is therefore not right and confusing. The intended mandate will after all consist of much more than the handling of individual complaints, moreover the children’s ombudsman will also operate in the private sector.
Designation of decentralized authorities
As of 1 January 2002 the National Ombudsman Act became applicable to the administrative authorities of a total of 175 municipalities with a combined total of nearly 5.1 million people. Due to a reorganisation several more municipalities fall within the jurisdiction of the National Ombudsman from 1 January 2002. This brings the total number of municipalities that fall within the competence of the National Ombudsman at 190 at the beginning of 2002. In addition, 165 municipalities have their own external complaints procedure, in the form of a municipal ombudsman or (Ombuds)committee. This means that around two-thirds of the 496 municipalities had set up an external complaints procedure by 1 January 2002. This date is significant in the light of a motion adopted unanimously by the House of Representatives on 8 June 1999. The motion requested the government to make every effort – either by creating a statutory duty or otherwise - to ensure that by 1 January 2002 every local authority should have an independent ombudsman with proper legal safeguards. The National Ombudsman now notes that the number of local authorities still failing to comply is considerable. Draft bill external complaints procedure
At the request of the Minister of the Interior and Kingdom Relations and the Minister of Justice, the National Ombudsman issued an advisory report in July 2001 on the draft bill produced by the Commission on the General Rules of Administrative Law. Although his response was generally favourable, he did make a number of critical comments.
The draft bill treats the different categories of decentralised authorities in exactly the same way. According to the National Ombudsman, however, it could be ascertained whether the provinces and the water boards would be prepared to cooperate in the designation in categories of their administrative authorities in section 1a, subsection 1 of the National Ombudsman Act. In this way amendments to the Provinces Act and/or the Water Boards Act would be unnecessary. The bill imposes a number of requirements on procedures created by decentralised authorities, including that of impartiality. It is nonetheless disappointing to see that there is no requirement that the officials staffing the complaints body may not also be employed by the administrative authority whose actions the complaints body has to assess. The bill rightly grants far-reaching investigative powers to external complaints bodies set up by decentralised authorities. For that very reason, it is a matter of concern to the National Ombudsman that the requirements imposed, barely refer to the expertise and professional qualifications of the complaints bodies. The decision of the ombudsman is a final decision against which there is no appeal. The effectiveness of the complaints procedure is therefore dependent on the authority of the ombudsman. Because the quality of his work is the main foundation of his authority, there could at least be statutory requirements relating to competence in the areas of legislation, administration and complaint handling.
Complaints about the National Ombudsman
The decisions of the National Ombudsman are not open to appeal. Expressions of dissatisfaction with his work can in fact only be treated as any other complaint. The National Ombudsman is therefore obliged to adopt an open attitude to complaints about him and to examine his actions critically in order to judge whether they comply with the requirements in force. Although the rules applying to internal complaints procedures contained in the General Administrative Law Act do not apply to him, he uses them as a guideline in handling complaints about himself. Such complaints are recorded and the relevant information is published – this year for the first time – in the Annual Report.
The National Ombudsman received 85 complaints about himself or his staff. Most came from complainants or their authorised representatives, while eight were submitted by the officials concerned or representatives of administrative authorities. Of the 85 complaints, 54 concerned the content of the National Ombudsman’s decisions.
INTERNATIONAL CONTACTS
- On 18 February the European Committee for the Prevention of Torture and inhuman or degrading treatment or punishment (CPT) visited the office of the National Ombudsman.
- On 27 February National Ombudsman dr Roel Fernhout attended the meeting of the British and Irish Public Sector Ombudsmen in London.
- On 7-8 March Roel Fernhout visited the Human Rights Ombudsman of Bosnia and Herzegovina, in order to convey ideas how concretely to address complaints and solve upcoming problems in informal ways. Roel Fernhout was accompanied by Stephan Sjouke, senior adviser, and Marcel Haddink, investigation officer.
- On 5-6 April Roel Fernhout attended the European Ombudsmen conference on "The role of the Ombudsman in the Protection of Human Rights", in Vilnius, Lithuania.
- On 12-13 April deputy ombudsman Mrs. Liesbeth Horstink-von Meyenfeldt attended the meeting in Athens for the Athens network of Ombudsman for the Protection of the Environment.
- On 15 April Mr. Eduardo Cifuentes, Ombudsman of Colombia, visited the National Ombudsman.
- On 22-24 May Mrs. Liesbeth Horstink-von Meyenfeldt and Stephan Sjouke attended the VI European Ombudsmen Conference in Cracow, Poland
Newsletter No. 27
De Nationale Ombudsman
NETHERLAND
ANNUAL REPORT
On 20 March 2002, Mr R. Fernhout, the National Ombudsman of the Netherlands, presented his 2001 Annual Report to the President of the House of Representatives. Here are presented some highlights of part I, the ‘core report’, with some general information and statistics relating to the work of the National Ombudsman. The core report is also available on the Internet www.nationaleombudsman.nl
Cases submitted
In 2001, 27,990 people wrote or telephoned the National Ombudsman, a quarter more than in the previous year. Of these, 18,186 contacted the Office by telephone, a rise of almost 50% compared with 2000. The National Ombudsman received 9528 written complaints, 15% more than in 2000 (8242 complaints).
Cases dealt with
The number of cases dealt with - with roughly the same number of staff – rose from 8172 in 2000 to 9060 in 2001. The upper limit does however appear to have been reached. The increase in the number of cases submitted has led to an increase in the workload by 26%. Processing time has inevitably also increased. Of all the cases completed, 34.5% were dealt with within four weeks (35.6 % in 2000), 59.8% were dealt with within eight weeks and 90.2% within a year.
Of the 9060 complaints dealt with, 21% concerned bodies that do not lie within the National Ombudsman’s competence (inadmissible under the Act). In addition, 48.9% were inadmissible on other grounds. The remainder (30.1%) were investigated and subsequently settled.
Investigation and report
In total, 2717 complaints were dealt with after having been found eligible for investigation. Of these 406 (14.9%) led to a report. In 2321 cases (85.1 %) the investigation was discontinued without a report being issued. 2034 cases (87.6%) were discontinued because the administrative authority concerned had given the complainant satisfaction.
Investigations instituted on the National Ombudsman's own initiative
Last year the National Ombudsman decided to make greater use of his powers under section 15 of the National Ombudsman Act to ‘institute an investigation into the manner in which an administrative authority has acted in particular circumstances’ on his own initiative. This decision gave rise to questions. However, what is at issue here is merely the use of a particular power on a somewhat larger scale than before. No necessity is felt to extend or expand this power any further. If the National Ombudsman regularly receives complaints about a specific practice of a government body, he may decide to start an investigation on his own initiative. In this way, any problems that lie at the root of numerous complaints may come to light. In addition, dealing with a specific complaint may shed light on a more structural problem that the person concerned has not complained about. Starting an investigation on his own initiative offers an opportunity to include such an aspect in the decision. In 2001, five investigations were instituted on the National Ombudsman’s own initiative, some of which were of a combined nature (partly following a complaint, partly own initiative):
- An investigation into the circumstances in three reporting centres (ACs) for asylum-seekers (report 2001/081).
- A combined investigation concerned the registry of The Hague District Court, sitting in Haarlem (report 2001/134).
- A combined investigation into the Economic Investigation Service (ECD) (report 2001/216).
- An investigation into the Tax Department (report 2001/270).
- An investigation into the Province of Zeeland Complaints Committee (Youth Services and Youth Protection) (report 2001/313).
Whistle-blowers
The Town Council of Enschede is about to enact a regulation concerning whistle blowers. It provides for an internal procedure. If a whistle blower is not satisfied with the way his report of abuse has been dealt with by the Town Council, he can complain to the National Ombudsman. According to the National Ombudsman he can investigate and give a decision at the request of individual public servants on the way administrative authorities have dealt with his report of abuse. He can however only perform this duty by using his statutory powers. This means that he will not advise the municipal executive, but will issue a report with conclusions on the way it has acted, if necessary accompanied by one or more recommendations. If the National Ombudsman is to play the role of external complaint handler, he considers that safeguards should be put in place both for the official reporting and for the administrative authority. For example, it will have to be clear that the official can have recourse to the National Ombudsman after the internal procedure has been completed. And the official or the municipality must be able to demand confidentiality in respect of the documents involved. What is more, if the official so desires, he must be granted anonymity, both with respect to the municipality and the outside world.
The National Ombudsman has informed the municipality of Enschede and the Minister of the Interior and Kingdom Relations that he is prepared to act as an external complaint handler in whistle-blower procedures provided the principles set out above are taken into account.
Children’s ombudsman
The National Ombudsman is in principle in favour of the private members’ bill setting up a children’s ombudsman introduced by MPs Arib and Van Vliet on 6 December 2001. He considers the supervision of compliance with the UN Convention on the Rights of the Child and advising on legislation and policies relating to young people, in particular as suitable tasks for a children’s ombudsman. However, he does not feel that such an institution would be the appropriate one to handle individual complaints, particularly where the National Ombudsman is the official complaint institution. Minors may also submit complaints to the National Ombudsman. Having another institution deciding on complaints about administrative authorities would seriously undermine the aims and structure of the existing external complaints system.
A children’s ombudsman would nonetheless have an important role to play in providing information on the most appropriate complaints procedure for minors and referral to such bodies. The bill should therefore also contain a provision allowing for speedy referral to the National Ombudsman of complaints about administrative authorities from young people. The National Ombudsman pointed out some time ago the confusion and misunderstandings that arise from the broad use of the term ‘ombudsman’. This name should be reserved solely for external bodies dealing with complaints about the public sector that meet the requirements of professionalism, independence and impartiality. The term “children’s ombudsman” is therefore not right and confusing. The intended mandate will after all consist of much more than the handling of individual complaints, moreover the children’s ombudsman will also operate in the private sector.
Designation of decentralized authorities
As of 1 January 2002 the National Ombudsman Act became applicable to the administrative authorities of a total of 175 municipalities with a combined total of nearly 5.1 million people. Due to a reorganisation several more municipalities fall within the jurisdiction of the National Ombudsman from 1 January 2002. This brings the total number of municipalities that fall within the competence of the National Ombudsman at 190 at the beginning of 2002. In addition, 165 municipalities have their own external complaints procedure, in the form of a municipal ombudsman or (Ombuds)committee. This means that around two-thirds of the 496 municipalities had set up an external complaints procedure by 1 January 2002. This date is significant in the light of a motion adopted unanimously by the House of Representatives on 8 June 1999. The motion requested the government to make every effort – either by creating a statutory duty or otherwise - to ensure that by 1 January 2002 every local authority should have an independent ombudsman with proper legal safeguards. The National Ombudsman now notes that the number of local authorities still failing to comply is considerable. Draft bill external complaints procedure
At the request of the Minister of the Interior and Kingdom Relations and the Minister of Justice, the National Ombudsman issued an advisory report in July 2001 on the draft bill produced by the Commission on the General Rules of Administrative Law. Although his response was generally favourable, he did make a number of critical comments.
The draft bill treats the different categories of decentralised authorities in exactly the same way. According to the National Ombudsman, however, it could be ascertained whether the provinces and the water boards would be prepared to cooperate in the designation in categories of their administrative authorities in section 1a, subsection 1 of the National Ombudsman Act. In this way amendments to the Provinces Act and/or the Water Boards Act would be unnecessary. The bill imposes a number of requirements on procedures created by decentralised authorities, including that of impartiality. It is nonetheless disappointing to see that there is no requirement that the officials staffing the complaints body may not also be employed by the administrative authority whose actions the complaints body has to assess. The bill rightly grants far-reaching investigative powers to external complaints bodies set up by decentralised authorities. For that very reason, it is a matter of concern to the National Ombudsman that the requirements imposed, barely refer to the expertise and professional qualifications of the complaints bodies. The decision of the ombudsman is a final decision against which there is no appeal. The effectiveness of the complaints procedure is therefore dependent on the authority of the ombudsman. Because the quality of his work is the main foundation of his authority, there could at least be statutory requirements relating to competence in the areas of legislation, administration and complaint handling.
Complaints about the National Ombudsman
The decisions of the National Ombudsman are not open to appeal. Expressions of dissatisfaction with his work can in fact only be treated as any other complaint. The National Ombudsman is therefore obliged to adopt an open attitude to complaints about him and to examine his actions critically in order to judge whether they comply with the requirements in force. Although the rules applying to internal complaints procedures contained in the General Administrative Law Act do not apply to him, he uses them as a guideline in handling complaints about himself. Such complaints are recorded and the relevant information is published – this year for the first time – in the Annual Report.
The National Ombudsman received 85 complaints about himself or his staff. Most came from complainants or their authorised representatives, while eight were submitted by the officials concerned or representatives of administrative authorities. Of the 85 complaints, 54 concerned the content of the National Ombudsman’s decisions.
INTERNATIONAL CONTACTS
- On 18 February the European Committee for the Prevention of Torture and inhuman or degrading treatment or punishment (CPT) visited the office of the National Ombudsman.
- On 27 February National Ombudsman dr Roel Fernhout attended the meeting of the British and Irish Public Sector Ombudsmen in London.
- On 7-8 March Roel Fernhout visited the Human Rights Ombudsman of Bosnia and Herzegovina, in order to convey ideas how concretely to address complaints and solve upcoming problems in informal ways. Roel Fernhout was accompanied by Stephan Sjouke, senior adviser, and Marcel Haddink, investigation officer.
- On 5-6 April Roel Fernhout attended the European Ombudsmen conference on "The role of the Ombudsman in the Protection of Human Rights", in Vilnius, Lithuania.
- On 12-13 April deputy ombudsman Mrs. Liesbeth Horstink-von Meyenfeldt attended the meeting in Athens for the Athens network of Ombudsman for the Protection of the Environment.
- On 15 April Mr. Eduardo Cifuentes, Ombudsman of Colombia, visited the National Ombudsman.
- On 22-24 May Mrs. Liesbeth Horstink-von Meyenfeldt and Stephan Sjouke attended the VI European Ombudsmen Conference in Cracow, Poland.
