THE INSTITUTION “A PEOPLE’S DEFENDER”
(OMBUDSMAN)
Justification and a Proposal for a Law
Draft
The democratic European countries pay increasing attention
to the out-of-court methods for protection of human rights which
add to or go along with the more expensive and cumbersome judicial,
administrative and other forms of protection. Among them, with a
longer or shorter tradition in the different countries, the
institution of ombudsman stands out.
The primary function and role of the ombudsman and the
other similar institutions is to observe the function of
administration in the country and to prevent abuse of power,
corruption and arbitrary decisions which infringe on human rights,
to assist with the reinstatement of the individuals’ rights abused
by the state or by the state servants and to contribute to the
creation of a climate of respect for human rights and the autonomy
of the society. In many countries the ombudsman institution has
developed as an element of the mechanism for guaranteeing the free
exercise of human rights.
The viewpoint in favor of the introduction of the
people’s defender (ombudsman) institution in Bulgaria
primarily takes into account the country’s existing needs, the
public attitudes and the current political and constitutional
realities. Also, it is based on the comparative study and the
comprehension of foreign experience. Although the best means of
creating such an institution in Bulgaria would have been its
explicit provision in the Constitution (which would have ensured
the necessary prestige and efficiency), the prevailing opinion is
that at this stage a procedure for amending the Constitution will
involve unjustifiable time and effort to discuss an unknown and
unpopular concept with no prior tradition here. For this reason it
is proposed to have the institution based on a special statute.
This viewpoint is supported by the following arguments:
* the past experience has been that the ombudsman in the
European states was established either on the basis of a special
statute or a constitutional provision. It is possible (as in the
Polish case) that an institution can first be created by a special
statute and then incorporated in the Constitution as
well;
* according to the proposed viewpoint, the ombudsman
should not have any government powers and so does not affect the
principle of separation of powers; therefore, its incorporation in
the Constitution is not mandatory, according to the constitutional
general principles (Article 1, para 2);
* the general principles of a special statute for the
introduction of the ombudsman will be supported by general
constitutional principles and concepts such as the rights of the
individual and the individual’s dignity and security (proclaimed as
a supreme constitutional principle in the Preamble); the principle
of the rule-of-law state governed by the Constitution and
the laws of the country and obliged to protect the individual’s
life, dignity and rights and to create favorable conditions for
the free development of the individual and the civil society
(Article 4); the principle of the free market economy based on the
requirements that law must secure and guarantee to all physical
and juridical persons equal legal conditions for constructing
business activities (Article 19, para 1 and 2).
This approach, if adopted, will require detailed
legislative regulation of the objectives, scope of activity,
status, competence, functions, procedures and organization of the
work of the institution. Special attention must be given to the
relationship between the institution and the constitutional
institutions exercising the powers of state. The future statute
should be in conformity with the Constitution and the other
relevant legislation in order to provide for the broadest possible
and most effective legitimate scope for the institution’s
activities.
The present variant of the law draft proposes the
inauguration of the institution “ombudsman” called “people’s
defender” with general responsibilities which will combine the
characteristics of the classical Scandinavian ombudsman model with
some of the new features of its modern versions existing in the
European countries, and with some adjustments according to
conditions in Bulgaria. the proposed concept has the following
characteristics:
BASIC FUNCTIONS, SUBJECT AND SCOPE OF
ACTIVITIES
The establishment of the ombudsman institution is aimed at
creating a new type of guarantee for the basic rights and
freedoms of individuals and their organizations. The institution
would add to the traditional mechanisms for protection such as the
classical parliamentary mechanisms (primarily the parliamentary
commissions), the constitutional justice, the judicial and
administrative control, the media and non-governmental
organizations. The formation of this new institution reveals the
reasons which made it necessary in the first place, placing it
among but distinguishing it from the existing
mechanisms.
In the modern world the influence and range of activity of
the administration at all levels is increasing. More and more
central or local governmental authorities with their actions,
visible or invisible, affect the private persons -- individuals and
legal entities -- on a daily basis. The existing mechanisms are not
always in a position to secure a quick, timely, efficient and
easily accessible protection of the parties affected by the actions
of the administration. This creates the need for a new mechanism
which will not duplicate the functions of the existing mechanisms
but, rather, will operate parallel to them, add to their work,
initiate directly or indirectly their interference, and under some
circumstances, be their alternative.
The most essential function of the people’s defender
(ombudsman) institution will be to guarantee more efficiently
the rights and freedoms of private persons. If the former are
abused by the public authorities, the ombudsman shall be entitled
to propose measures for terminating the acts of abuse, compensating
the incurred damages and creating conditions for their smooth and
efficient exercise in the future. The functions of the ombudsman
will be carried out by observing the regulation of public processes
and monitoring the work of the public authorities.
The basic functions of the institution predetermine the
subject and the scope of its activities. In general terms, the
scope of its activities is concentrated in the point of
intersection between the State and the civil society. Thus, the
subject matter of its authority will cover all cases in which the
border between private and public, inherent to the
rule-of-law-state, was breached, or in other words, all cases in
which the public authorities, or private persons vested in public
functions, abuse the private rights and freedoms proclaimed by
national and international law or do not provide conditions for
their free exercise.
Its functions, therefore, are geared toward monitoring and
specific control within a comparatively broad scope which includes
the regulation of society in general: 1) the operation of the
executive power and the administration in its narrow meaning, 2)
the organization and regulation of the judicial system’s
administration and 3) any other exercise of public
activity.
For self-explanatory reasons, the subject and scope of the
activities of the people’s defender (ombudsman) shall not include
certain institutions and relationships between the private and
public sectors, as follows:
* firstly, the supreme state bodies: the National
Assembly, the President, the Constitutional Court and the
judiciary. Sufficient grounds for excluding the first two
institutions is their immediate democratic legitimacy. The
Constitutional Court may be excluded by reason of its status as an
independent supreme constitutional body, functionally and
organizationally separate from the other branches of government. It
is designed to safeguard the constitutional consensus, protect the
Constitution, and balance the power of the public authorities “at
the top” of the governmental pyramid. The constitutional principle
of independence of the judicial system requires that its
constituent bodies perform their constitutional functions
separately.
* secondly, the activities related to the exercising of
judicial power by the courts, the prosecution office, the
investigation office, or to national security and the country’s
foreign policy.
STATUS
The Person of the Ombudsman
Notwithstanding the name of the institution -- ombudsman,
parliamentary commissioner, human rights commissioner, public
advocate, intermediary, etc. -- the effectiveness of the
institution will always depend on the person of the Ombudsman. As
foreign experience shows, the number of individuals who carry out
this function may vary, and it may be possible to establish a
division of labor among them based on various criteria, for example
general and specific authority, national or local scope of
activity, etc.
In Bulgaria, during the initial stage of the establishment
of the institution, it would be appropriate to have one individual
who meets certain requirements outlined by law: Bulgarian
citizenship, political neutrality, high professional achievements,
between a certain minimum and maximum age, knowledge in the areas
of domestic, international and European law, holding a university
degree, and not occupying any other public position or function
during the term of office. It is desirable that the individual is
supported by broad social circles and has certain qualities which
will enable him to gain and extend the public confidence, such as
high civil ethics and commitment to the ideas of humanity,
democracy and justice.
The Parliamentary Ombudsman Institution
The successful performance of the tasks vested in the
institution and the prestige it obviously needs require that its
powers follow directly from the supreme representative body. This
is the most common practice in those countries where the
institution is already in place. It is logical that in Bulgaria, a
parliamentary republic, the appointment should be made directly by
the parliament in accordance with its authority to elect the heads
of the institutions created by statute (Article 84, para 8 of the
Constitution of the Republic of Bulgaria).
Because of its parliamentary origin, the people’s defender
will report to the National Assembly once a year which would secure
a high level of publicity and transparency for its activities and
the results thereof. This effect will have a positive influence on
those public institutions which do not fully respect the rights and
freedoms of private persons.
To ensure that the selection of candidates is done in a
responsible manner, and that there is a sufficient pool of
qualified candidates, it should be allowed for proposals for
people’s defender to be made by the President, the Supreme
Judicial Council and the Chairperson of the Constitutional Court,
as well as by predetermined number of individuals.
It is suggested that the Council of Ministers
(specifically, the prime minister) should not be included in the
list of the constitutional bodies who are entitled to make a
proposal for ombudsman because in the conditions of a parliamentary
governance the Council of Ministers is anyway supported by the
parliamentary majority which, on its part, will always have the
decisive vote when the candidates are selected and the eventual
choice is made.
The suggested mechanism for proposing candidates for
people’s defender will soften the politicization of the
parliamentary debate and the election process, and will prevent the
transformation of the parliamentary ombudsman institution into a
governmental one . At the same time, it aims at creating conditions
for proposing competitive candidates, for selectivity and
alternativity of the choice and for the recruitment of the best
candidate.
Appointment and Term of Office
The people’s defender must be elected directly by the
National Assembly with a simple majority vote, as the present
Constitution does not provide for any other alternative. If the
institution gains the public confidence and performs as hoped,
amendments to the Constitution can be considered, including the
introduction of a qualified majority for election and dismissal of
the ombudsman. This would mean a larger consensus between the
political forces represented in parliament, and therefore a larger
guarantee for the independence of the ombudsman, for the confidence
in it, and for the effective performance of its
functions.
The people’s defender should be appointed for a specific
term which must not coincide with the term of office of the body
which elects him. The number of possible terms is limited to
two.
In order to ensure the democratic character of the
institution and to guarantee the diligent performance of the full
scope of its duties, the dismissal of the people’s defender should
be possible following the same procedure as for his
election.
The other grounds for termination of the authorities of
the ombudsman, besides his dismissal, are to be similar to the ones
applicable to the termination of an MP’s term of office as listed
in Article 72, para 1 of the Constitution -- namely resignation,
effective imprisonment sentence for a wilful crime of common
character or any imprisonment sentence which has not been
suspended, violation of any of the requirements for occupying the
position, or death.
Independence and Immunity
While performing its main functions, the people’s defender
should adhere strictly to the Constitution and the laws,
international contracts and agreements and should be guided by his
own conscience and morality. For this reason it is necessary to
legislatively guarantee his autonomy and full independence from any
and all bodies in the performance of his assigned
functions.
One of the conditions for securing the independence of the
institution is to grant its representative immunity equal to the
immunity of MP’s.
Budget and Organization of the Activity of the
Administrative Office of the People’s Defender
The budget of the institution should be determined by the
National Assembly in two ways -- either as a part of the budget of
the National Assembly itself, or as a separate part of the state
budget. In all cases the executive power bodies -- the Council of
Ministers and the Ministry of Finance -- shall not be entitled to
take part in the preparation, execution or accounting of the
ombudsman’s budget. It could perhaps be similar to the independent
budget of the judicial power (for more details please refer to
Decision No 18 of 16.12.1993 on the constitutional case No 19/93 of
the Constitutional Court of Republic of Bulgaria, State Gazette
1/94). The solution should allow the ombudsman to perform his main
functions without being “forced to his knees” or placed in the
condition of dependence from any other factors. Any apprehension
concerning misuse of funds is irrelevant here, since the
ombudsman’s activity is public at any time and its annual report to
the Parliament will include a section on the expenses
incurred.
In his activity, the people’s defender will be supported
by secretaries and an administrative office. The people’s defender
will adopt internal rules for the functioning of his office,
appoint and dismiss his employees and define their duties and
remuneration. His remuneration could be equal to the remuneration
of a Constitutional Court Judge.
POWER, BASIC PRINCIPLES AND PROCEDURES FOR CARRYING OUT
THE ACTIVITY OF THE PEOPLE’S DEFENDER
The people’s defender should have certain authorities in
order to perform successfully his main functions and the tasks that
were assigned to him. These authorities are to a great extent
predetermined by the fact that the ombudsman will be placed outside
the system of state bodies, by its role of an intermediary between
the state and society as a guardian and guarantor of private
rights and freedoms.
Types of Responsibilities and Authority
In general, the responsibilities and authority of the
people’s defender are:
* to review petitions in any form from private persons --
individuals and legal entities, whether local and/or foreign, as
well as from individuals with no citizenship;
* to conduct investigations and examinations when a
particular case has been referred to him;
* to make proposals and recommendations to all
observed institutions with public powers or functions regarding
their respect for human rights and freedoms, and to recommend
possible remedies for the infringement of certain rights and
freedoms and the reasons for that infringement, notwithstanding
whether the ombudsman acts at somebody’s request or his own
initiative;
* to extend recommendations and give advice to
petitioners;
* to act as an intermediary between private persons and
public entities in order to overcome the existing infringements on
private rights and freedoms;
* to request and receive timely, complete and precise
information from all observed institutions;
* to have direct access to the observed institutions,
including their meetings, discussions and other forums;
* to give and announce publicly his opinions on cases he
has been approached with or on issues on which he makes summaries
and conclusions at his own discretion;
* to approach the prosecution bodies when, as a result of
his observations and investigations, the ombudsman has obtained
information on a committed crime;
* to prepare and present an annual report to the National
Assembly;
* to prepare special reports, if necessary and to inform
the Parliament incidentally about particularly serious cases of
disrespect and abuse of rights.
It is important to keep in mind that the right of the
people’s defender to receive information and have access to
relevant documents and institutions is related to the check-ups it
carries out, and naturally this right corresponds to the observed
institutions’ obligation to provide the requested information and
the required access. Nobody shall, under the excuse of state,
official or trade secret, obstruct the work of the people’s
defender. At the same time the latter shall keep confidential and
shall not disclose any secret information which has become known to
him in the course of, or in connection with, the exercise of his
powers.
In connection with the outlined limitation of the scope of
activity of the people’s defender, it should once again be noted
that the ombudsman is not entitled to make any proposals or give
recommendations and opinions in substance related to the actions of
the judicial power bodies, nor is it entitled to interfere in any
way in their function to administer justice. The people’s defender
does not have a right to legislative initiative, nor to approach
the Constitutional Court.
Basic Principles in the Activity of the People’s
Defender
In his activity the people’s defender shall be governed by
principles predetermined by the perceived view of its legal status,
its place outside the system of the state bodies and the scope of
their authority. When the principles are defined it should be
explicitly emphasized that the people’s defender is primarily a
spokesman and defender of the attitudes and dispositions regarding
the exercise of public powers and functions. Therefore, the
authorities of the people’s defender do not compete with the
authorities of the constitutional bodies. The people’s defender has
none of their means for influence and enforcement. He does not
grant legal protection, nor does he control the legality or
discretionary powers of the administration. His mechanisms of
influence are within the sphere of morality, prestige and
publicity. The following basic principles of the functions of the
people’s defender are formulated:
* judgement as to whether all observed institutions carry
out their activity in compliance with the requirements for fair and
efficient government;
* judgement as to what measures are to be taken, according
to the requirements of the rule-of-law state and to his own
conscience and understanding of justice;
* political and institutional independence in the exercise
of his authority.
Petitions and Signals. Procedure
The people’s defender shall exercise his authority
following extremely simplified and informal procedures.
Therefore, no special forms with any obligatory requisites are
envisaged for the petitions and signals given to the people’s
defender. The only requirement is that they include information on
the petitioner, the offence and the offender.
Along with the free-style written form of the petition or
signal, verbal ones are also acceptable on the condition that they
are filed in a manner which unquestionably identifies the
petitioner. This approach will make the institution of the people’s
defender easily accessible and open to anyone whose rights have
been infringed, irrespective of any other procedures and means of
protection which can be taken in parallel. This accessibility is
further enhanced by the fact that the filing of the petition or
signal and the entire procedure for its review will be free of
charge for the petitioner.
In order to prevent the overloading of the institution
with petitions whose settlement is beyond his powers (which can be
expected, considering the slow and expensive procedures for defence
in the country, the presence of a considerable number of unresolved
court disputes, the complicated legal cases, etc.), the law should
explicitly state that the people’s defender cannot initiate
proceedings on behalf of the persons who have approached him,
cannot represent them before the court or another institution
(i.e., does not represent them in the narrow legal meaning), cannot
approach the Constitutional court (but can approach the organs
which can approach the Constitutional court) and does not have
legislative initiative. In addition, the introduction of a “statute
of limitations” should be considered; e.g., the people’s defender
shall engage only with such cases having occurred one or at most
two years before the date of submitting the petition or signal,
and, for the rest, the people’s defender shall be entitled to
decide whether to accept them.
After a petition or a signal has been submitted following
any of the above procedures, the people’s defender shall respond
within a fixed term to the petitioner whether the petition or
signal is accepted or not without having to give the reasons for
his answer. Irrespective of its content and form, an answer should
always be given! There is no restriction on a second or further
approach if the petition has not been accepted. The people’s
defender shall be entitled to decide on the acceptability of the
petition not only at the date of its submission but also at a
larger stage, at any time in the course of the
investigation.
When a petition or a signal has been accepted, the
people’s defender shall, within his powers, and with the help of
his secretaries and administrative office, take the necessary
actions for gathering information, including examination of
documents, direct observation of the activity of the respective
institutions, inquiries, etc. If he ascertains the presence of any
action or inaction which has led to the infringement of the rights
and freedoms of the petitioner or to the prevention of their
exercise, he can relay his recommendations and proposals to the
relevant institutions. He may also follow this course if, instead
of acting on a specific petition, he has acted on his own
initiative and come to a generalized conclusion concerning rights
and freedoms.
The institutions to which the recommendations and
proposals are extended should be obliged to answer within a fixed
term whether they accept them or not and to inform the ombudsman of
the measures which they have taken or intend to take and their
prospective timing.
Report before the National Assembly
The report is submitted to the Parliament until March 31
of the following year. It should contain at least the following
parts:
* information about the solved cases;
* information about the cases in which the ombudsman’s
intervention was unsuccessful and the reasons for that;
* general information about the submitted petitions
pending investigation;
* information about extended proposals and recommendations
which have or have not been taken into consideration;
* expense report.
A summary of the report should be published in the State
Gazette and the full text should be available at the office of the
people’s defender to anyone interested. The report has an extremely
important role for the publicity of the activity of the people’s
defender. It is equally important in exposing the activity of those
institutions which do not respect, or infringe on incidentally or
systematically, the rights of private persons, and whether or not
they take into account the ombudsman’s recommendations and inform
him of the undertaken measures. The information about the
successfully resolved cases can serve also as a model for
settlement of similar cases.
It would be useful for the office of the people’s defender
to issue, within its authority and budget, a bulletin periodically
announcing information about its activity as well as about the
activities of similar institutions in other countries.
*** *** ***
In conclusion, the present law draft developed by experts
of the Center for the Study of Democracy is based on the
expectation that the institution “people’s defender” would not be
limited to the settlement of individual cases. The successful
development of this institution can make it an important factor in
the evolution of general principles and rules governing the
administration’s functioning and state servants’ attitudes. The
efficient, high-quality work of the office of the people’s defender
would raise its reputation, gaining the public trust and
respect.
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