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| Round table: Establishing Ombudsman Institution in Bulgaria
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A round table devoted to the establishment of the ombudsman institution in Bulgaria was held from February 28 to March 3, 2002. The round table was organized by the Center for the Study of Democracy together with Open Society Foundation of Sofia.
In the meeting took part experts, members of the working group
from the Law Program of the Center for the Study of Democracy, as
well as judges, lawyers, and representatives of civil organizations
actively engaged in establishing this institution in the country.
The Law Program working group worked out the idea and different
draft laws concerning the establishment of an ombudsman type
institution on a central and local level in the country.
In the center of attention of the participants were set:
- comparative discussion on the draft laws introduced in the 39th National Assembly;
- presentation of the Draft Law on the Civic
Defender and the Local Civic Mediators prepared by the working
group of the Center for the Study of Democracy;
- discussion about the experience in the carried out pilot projects of the establishment of this institution on a local level.
The comparative discussion on the drafts introduced in the 39th National Assembly indicated that they are characterized by certain similarities, along with many differences.
Hereinafter the introduced drafts are named for short in the
following way: the draft of Ms. Ekaterina Mihailova and a group of
other MPs - draft #1; the draft of Mr. Luben Kornezov - draft
#2; and the draft of Mr. Emil Koshlukov and a group of other MPs -
draft #3. This abbreviation follows the order of the draft introduction in the National Assembly. (On March 3, 2002, Mr. Emil Koshlukov and a
group of other MPs introduced a new Draft Law on the Ombudsman.
The offered draft slightly varies from Draft #3 introduced in
January 2002 in the 39th National Assembly and withdrawn on
February 19, 2002. Only insignificant changes have been made in
this draft: some controversial formulations have been dropped, such
as defining the institution as an alternative protection of rights
and freedoms of citizens and the obligation of the National
Assembly to approve by a decision the Rules of Procedure of the
Ombudsman. Unfortunately, the spirit and some of the regulations of
the former draft have been preserved that continue alienating the
offered version for establishing the Ombudsman institution from the
global and European standards, contradicting the Bulgarian
Constitution and other laws.)
The three drafts start from the idea of establishing a
parliamentary ombudsman institution that shall monitor the work of
the state administration. Outside the jurisdiction of the ombudsman
are the President, the Constitutional court, the National Assembly,
the execution of the judicial power by court, the procurator's
office and the investigation, and the relations regarding national
security and foreign policy. The building of local ombudsman
institutions is provided in drafts #1 and #2 but following
different procedures.
The specified similarities show out the existence of a partial
proximity between the introduced drafts.
As a result of the comparison it could be asserted that between
drafts #1and #2 exist more general resolutions, corresponding to
the existing models and to the European standards; while draft #3
differs from that method of approach in a larger extent.
The critical remarks of draft #3 can be generalized in the
following manner:
- the institution is determined as an
alternative form of protection of human rights;
- "political responsibility" is provided for
the work of the ombudsman and its conduct in the
society;
- the bodies of the not-for-profit
organizations are included in the definition of "public
authorities";
- the provisions concerning the legal status of
the institution and the scope of the institutions monitored by it
are controversial and unclear;
- not taking into consideration the former
experience in the country concerning the establishment of the
Ombudsman institution on a local level and the practical necessity
of its legal regulation.
A main setback of the presented
draft is proclaiming the principle of independence of the ombudsman
without a real and successive implementation of the specified
regulations. For example the power of the National Assembly to
approve the report of the ombudsman institution (while in State
Gazette is promulgated only the approved report) allows the
decision to depend on the Parliamentary majority's interest.
Some characteristic differences exist between drafts #1 and #2.
Draft #2 requires at least fifteen years of legal standing for the
election of the ombudsman, while draft #1 does not consider this
provision necessary. In draft #1 some of the regulations are not
clarified enough, like the one stating that the ombudsman has the
legal status of a constitutional judge. Draft #2 provides that the
Rules on the Implementation of the Ombudsman Law are approved by a
National Assembly's decision, while in draft #1 the power to
approve falls within the ombudsman's competence. The latter
corresponds in a larger degree to the traditions of Bulgarian
legislation and to the characteristic features of this type of
institution. According to draft #2 every person, regardless of its
nationality, can address the ombudsman, while in draft #1 this
right is granted to person without a nationality as well. Draft #2
provides for district ombudsmen appointed by the central ombudsman,
while in draft #1 a local mediator is assigned for one or more
districts.
The following statements were outlined according to the
participants' comments.
It is recommended with respect to the three drafts:
- to correspond in a larger extent to the
European standards, to the Bulgarian Constitution, and to the
existing public expectation for the introduction of this
institution;
- to give this institution a Bulgarian title
easily comprehended by citizens;
- to take into consideration the previous
experience in the country in establishing this institution on a
local level.
To drafts #1 and #2 is recommended
the establishment of the ombudsman institution on a local level to
be linked with the establishment of institutions on a municipal,
not on a district one. The establishment of the institution on a
district level drifts it far from municipalities where the main
problems of citizens related to the administration are settled.
Furthermore, the districts in Bulgaria are not too many and could
easily be covered by the competence of the parliamentary ombudsman.
The citizens and organizations should be granted a more
considerable opportunity to participate in the election of local
ombudsmen who, in their turn, to be elected by the municipal
councils. In this way the principle of local self-government will
be implemented.
In the discussion of draft #2 the necessity of overcoming some of
the unclear points in the draft was outlined, for example the
provision that the ombudsman has the legal status of a
constitutional judge. The requirement of fifteen years of legal
standing restricts only to a definite profession the scope of
people that can be elected for ombudsmen which might run counter to
the more important requirement for a high public authority. The
opportunity of people without a nationality to address the
ombudsman should be provided.
In draft #3 the global and European models for the establishment
of the ombudsman institution are not considered as
follows:
- defining this institution as an alternative
form of protection of citizens' rights, instead of a parallel and
complementary mechanism; thus, the opportunities of citizens to
achieve a thorough protection are limited according to the
presented version;
- the opportunity of the ombudsman to bear
political responsibility contradicts the idea and sense of the
introduction of the ombudsman institution as an independent and
political non-aligned one;
- inserting in the definition of "public
authorities" the bodies of the not-for-profit organizations as
well;
- the principle of independence of the
institution is merely proclaimed without carrying it out
successively in the text of the draft, it is even provided
competence of the National Assembly that compromises and limits the
effectiveness of the institution in a larger degree.
Taking into consideration the
continued discussion over the introduced drafts in the 39th
National Assembly, the expressed statements in the range of the
extended public discussion, and the opinions of many foreign
experts and active ombudsmen, the working group of the Center for
the Study of Democracy continued its work and prepared an improved
Draft Law on the Civic Defender and the Local Civic Mediators,
which was presented to the participants of the round table.
The participants of the round table examined the provisions of the
presented draft improved by the working group. In conclusion of the
discussion, they agreed that this draft corresponds in a larger
extent to the primary accepted and confirmed concept, the approved
models and standards in Europe, the Bulgarian Constitution and
political reality, and to the already existing public expectation
of the introduction of this institution. It was suggested the
discussion to continue with the participation of the introducers of
the drafts in the 39th National Assembly. A comparative table about
the introduced drafts in the 39th National Assembly was prepared
for facilitating the discussion.
Agenda of the round table | |
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