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| Legal Expertise on the Draft Laws on Bulgarian Ombudsman
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By Professor Nikoforos Diamandouros, Ombudsman of Greece
Athens, June 25, 2002
I. INTRODUCTORY COMMENT
The Draft Laws on the Ombudsman presented before the Bulgarian National Assembly do generally comply with the requirements of the Council of Europe and the international standards of the ombudsman institutions, focusing on the independent, impartial and respectable status of the new Office.
It would, however, be useful at this stage to stress some specific points on the mandate, status and extent of competence of the proposed ombudsman, so as to clarify the different options subjected to the National Assembly’s resolution. The following remarks are made, with a view to contribute to the best possible model to be adopted, bearing in mind the broad mission of the ombudsman’s institution in combating maladministration, protecting people’s rights and consolidating the rule of law.
For the convenience of reference made in this paper, the law drafts will be referred to as follows:
Draft 1: introduced by Mr.Ljuben Kornezov
Draft 2: introduced by Ms Ekaterina Michailova and a group of MP’s
Draft 3: introduced by Mr.Emil Koshlukov and a group of MP’s.
II. MANDATE AND ELECTION
a. An explicit limit to the appointment of any person for two mandates only in the office of the ombudsman is a common and successful practice in preventing the institution from being identified with individuals (Draft 3, art. 6 para. 1, Draft 2).
b. The office may be open to Bulgarian citizens only, fulfilling certain preconditions of age and university degrees. However legal experience should not be a prerequisite if the new institution is not to be vested with a general inspectory power over the Court system (Draft 1, 15 years of legal office).
c. Proposals for the election may be open only to MP’s (Draft 3, art. 7 para. 1) or to other public officials as well (President of the Republic, or Presidents of High Courts, Drafts 1 and 2). The direct motion by the people (20.000 signatures, Drafts 1 and 2) would introduce an element of direct democracy blurring the purpose of the institution, which is not to “represent” the people against public administration but to impartially ensure the respect of their rights. Therefore direct legitimacy is not the issue for the ombudsman’s appointment, the focus should rather be the achievement of wide consent on the part of the political parties. The number of the MP’s required to submit a proposal (1/5 of the Assembly, Draft 3) should be viewed in the light of not excluding small parliamentary groups from the relevant motion.
d. The question as to the majority of votes, i.e. a simple majority (Draft 3, art. 7 para. 3, Draft 2, ch. 2 s. 7) or an entrenched one (more than one half of the MP’s, Draft 1), touches to the legitimization of the ombudsman to be elected. Wider majority is preferable in order to allow for a candidate to be elected only if approved by more political parties. The matter of wide consent to the person appointed as an ombudsman is crucial for the image of a truly impartial institution dissociated from the government majority.
e. Termination of office of the ombudsman, in order to guarantee his/her personal independence, should follow objective criteria, by reference to violation of law and final court verdicts, avoiding the vagueness of terms such as violation of the commonly accepted moral rules of conduct in the society (Draft 1). Failure to carry out his/hers duties (Draft 2) may also be a term open to misinterpretation. The object of these provisions is to prevent the removal from office of someone regarded as a political enemy from the government majority in seats of Parliament, therefore Draft 3 (art. 9) appears to offer the most comprehensive set of objective criteria. Entrenched majority of votes in the Assembly could be an additional guarantee and the relevant decision, which should be reasoned, could be in any case provided to be open to judicial review from the person concerned.
III. INDEPENDENT STATUS OF THE OMBUDSMAN
a. The ombudsman’s institution relies upon the principle of independence from all other state authorities. The term “independent authority” is preferable to the term “suprainstitutional” authority (Draft 3 art. 10) because it does not imply any hierarchy between the Executive, the Courts, etc. The independence is primarily conceived vis-à-vis the executive, since the ombudsman is considered as a mechanism of external and independent control over public administration. However, his independence concerns also the other two traditional state functions, the legislature and the judiciary. It has to be noted that the ombudsman’s role, correctly conceived as complementary to the judicial protection of people’s rights, can be seen as totally separate from the judicial system, which is not the case when the ombudsman participates as a party in the proceedings in constitutional cases (Drafts 1 and 3). Furthermore, the separation of powers in a democratic state and the art. 6 of the European Convention on Human Rights secure the independence of the judicial decisions and impose a hands-off approach by other authorities, even independent ones. Even in countries in a politically transitionally phase, subjecting the judiciary to the ombudsman’s control may prove to be a too ambitious task for the ombudsman, which creates rather a problem in the light of the supremacy of judicial bodies laid down by art.6 of the ECHR (Draft 3, additional provisions, para. 1, in comparison to the exclusion clause in Draft 2, ch. 4 s. 19 para. 2).
b. The establishment of the ombudsman’s accountability before the Parliament is connected with the system of checks and balances in a democratic state and does not subordinate the ombudsman to the legislature, therefore the term “accountability” is preferable to “responsibility” (Draft 3, art. 26 para. 3). Accountability calls for public debate and justified analysis of the work delivered, but it does not allow for interventions or supervision of the activity of the ombudsman, otherwise the notion of operational independence would be nullified. The annual or other reports are the basic means through which the ombudsman notifies to the Parliament the results of his overall investigation. Prevalence worldwide is given to his own initiative and the provision allowing for a number of deputies to ask for specific reports (Draft 3, art. 25 para. 6) should be seen as exceptional, since the case-to-case approach does not contribute much to a public debate on systemic aspects of maladministration. Furthermore, the ombudsman’s investigation and the proposals based thereof are conceived as independent, which necessarily means that the Parliament may discuss the ombudsman reports but it may not alter them without breaching his independence. The provision for “supplements” to the ombudsman’s report by the Parliament (Draft 3 part. 25 para. 4) contravenes therefore the principle of ombudsman’s independence and does not secure a separate role for both institutions.
c. An important means of independence is the provision for a separate budget administered solely by the ombudsman (Draft 2, ch. 9 s. 41, in comparison with Draft 3 art. 27).
d. The rules of organization and activity of the office of the ombudsman may take the form of internal regulations, issued by the Ombudsman (Draft 2, ch. 5 s. 23). These are generally considered as matters of detail and the head of the office may be empowered to issue them, respecting the general legislative framework and the principles of transparency and publicity.
IV. COMPETENCE
a. The ombudsman’s field of competence should be further specified since most problems of interpretation arise when trying to define the public sector. For instance, it would be useful for the legislation to expressly include (or exclude from) the ombudsman’s field of competence public utility companies. The term “bodies of non-profit legal persons” (Draft 3, additional provisions, para. 1) seems to include all NGO’s, extending the ombudsman’s jurisdiction over private individuals.
b. As well as any individual, legal entities and informal organizations should be able to address the ombudsman (Drafts 2 and 3 in comparison with Draft 1).
c. The ombudsman’s role in most countries is considered primarily an advisory and mediating one, according to the Danish model. The power to impose sanctions (Draft 3, art. 28) deviates from this mediating model, tipping the balance towards efficiency rather than persuasion in ombudsman’s recommendations. Another, more moderate means of securing implementation, could be the recommendation for disciplinary proceedings against state officials who fail to perform their legal duties. | |
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