|
|
 |
|
|
| |
|
|
| |
| Recommendations on the Bulgarian Draft Laws on the Ombudsman
|
| |
By Dr. Herman Wuyts, Federal Ombudsman of Belgium and
Mr. Pierre-Yves Monette, Federal Ombudsman of Belgium
THE MIHAILOVA PROPOSAL
Chapter One
General Provisions
S. 2. The word “citizens” should be replaced by “all persons”, since not only Bulgarian citizens should be able to lodge a complaint with the Bulgarian ombudsman.
Chapter Two
Election, Qualifications and Term of Office of the Ombudsman
S. 3. Knowledge of administrative science (and administration) on the one hand and experience in the “public world” would be an advantage.
S. 5. During his term of office, the Ombudsman should not have any function in the private sector either.
(2) … political party or organization … (the neutrality of an Ombudsman could be questioned if he/she would be active in any political organization, even if it is not a party (a political movement for example, etc)
S.6. (1) We find the idea of 20,00 signatures of citizens dangerous, as it can transform the nomination of an Ombudsman into a rally, as one runs for election. Besides, why couldn’t the National Assembly itself propose a name?
S.7. A 2/3 or 3/5 majority seems always better to us.
S. 12. Doesn’t this give too much power to them? (President, and so on?)
(2) … by a two-thirds majority … (here, the 2/3 majority seems crucial to us).
Chapter Three
Fundamental principles of the Activities of the Ombudsman. Independence and Immunity
S. 13. … is a party, the general principles of law
One could speak here or in S.14. of the principles of good administrative behaviour, too.
S.14.1 … with requirements for just and proper administration and for good governance.
S.14.3 … political party or organization and institutional …
Chapter Four
Powers of the Ombudsman
S.17. and S. 20/21 are in contradiction one with the other. How can someone give up his “secret” when he knows that it may bring him to the public prosecutor?
S.17.6 … accurate documents and information … (otherwise, the public services could always deny the right for the Ombudsman to give access to the documents themselves, which is crucial in an Ombudsman job).
S.17.9.bis. The idea that the Ombudsman has the right to refer a matter to the Constitutional Court, should be discussed and, eventually, included here.
S.20. … provide documents and information …
S 21(2) … and confiscation. No judge can force the Ombudsman to testify before Courts on cases he has been dealing with.
Chapter Six
Lodging of Complaints and Signals
S. 25. Does the territory of the Republic of Bulgaria include all embassies and consulates?
Chapter Eight
Annual Report
S. 39. There can be no “decision” on the Ombudsman report by the National Assembly. What decision could that be? What if it is a “negative decision”? Because of the Ombudsman’s independence, the National Assembly should only be informed about the Ombudsman’s work by means of his report.
Chapter Ten
Local Mediator
S. 46. (3) It can hardly be accepted that the municipal administration (which is controlled by the Local Mediator) would serve as his administration as well.
S.46. (5) About the decision of the Municipal Council: the same remark as for the decision of the National Assembly on the Ombudsman’s report.
Concluding Provision
§.1. If this meant as a time period in order to create the opportunity to organize the office, then it is OK. If not, why one year?
THE KOSHLUKOV PROPOSAL
Chapter One
General Provisions
Article 1
Objective
Same remark for the word ”citizens”.
Article 2
Independence
The principle expressed here (correctly!) is in contradiction with Art.26 (3).
Article 3
Publicity
(1) What is meant by public here? The files and correspondence of the Ombudsman should be and remain secret, not public.
Chapter Two
Constitution
Article 7
Election Procedure
(1) We prefer a procedure that is open to everybody, but this largely depends on Bulgarian customs!
(2) Same remark about the 2/3 or 3/5 majority.
Article 9
Termination of Powers before the Expiry of the Term of Office
(2) Instead of “managerial”, “any position” in commercial companies.
(3) Does it means a 20% is enough to terminate the activity of an Ombudsman or that a 20% is enough to put the termination into vote in the National Assembly? It is unclear for us. Same remark about the crucial 2/3 majority to terminate the mandate of an Ombudsman before the normal term.
Chapter Three
Structure of the Institution
Article 14
Powers
(1) 1. Shall the Ombudsman not accept complaints and signals from non-citizens? In contradiction with Art.17.
Are the “signals” in 1. and 8.the same kind of signals? Is that clear to Bulgarian discussants?
11. What are the consequences of such a possibility for the independence of the Ombudsman, particularly when he doesn’t win?
12. Use of the mass media can help a lot, but can you make an obligation of it?
Chapter Five
Procedure before the Ombudsman
Article 19
Statement
Three days seems to be extremely short, such complaints may need an investigation before arriving at a decision.
Article 20
Denial
Same remark as for Art.19.
Compare Art.19 and 20 with Art. 18!
Article 22
Obligation for Consideration
(4) Free mass media are very important in a democracy, they cannot be obliged to cover the Ombudsman’s statements.
Chapter Six
Accountability and Responsibility
Article 25
Report
(2) A calendar year-end at December 31 and the presentation of the report one month later? This period of time seems to be too short!
(4) The report cannot be adopted by a majority; they can be informed about it. What would happen if the report is not adopted?
Article 26
Responsibility
(3) As mentioned before: the Ombudsman cannot be responsible for his or her activity and behaviour in the society because of his or her independence.
Chapter Seven
Funding
Article 27
Funding through the Budget
(1) This article is unclear for us.
Chapter Eight
Administrative Penal Provisions
Article 28
Fines
Fines: do such stipulations need to be in the Ombudsman’s Act?
Additional Provisions
§ 1. Bodies of non-profit legal only “in so far they fulfil a public task” (could be the case of trade unions in the employment policy or insurance companies in the health policy but this depends on the Bulgarian organization of such policies).
Transitional and Concluding Provisions
§ 3. Depending on the point in time when the Ombudsman has been appointed, this stipulation can be workable or not! Anyway, it takes a lot of time to work out rules governing the organization and the activity of the institution. | |
|
| |
|
CSD.bg |
|
|
|
 |
|
|
| ©
Center for the Study of Democracy. |
 |
|
The web page you are trying to reach is no longer updated and has been archived. To visit us, please click here. |
|
