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Round table: Establishing Ombudsman Institution in Bulgaria
 
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 The offered draft slightly varies from Draft #3 introduced in January 2002 in the 39th National Assembly and withdrawn on February 19, 2002.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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