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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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