|Developed by the Ombudsman Task Force with the Center for the Study of Democracy|
The Law on the Ombudsman, adopted by the 39th National Assembly on May 8, 2003, and promulgated in State Gazette No. 48 of May 23, 2003, is to enter into force on January 1, 2004. Its text is based on the three drafts submitted by MP's, all adopted on first reading by the National Assembly. Based on these drafts the parliamentary committee in charge – the Committee for Human Rights and Religions, elaborated a consolidated draft law, which was adopted on second reading.
The main goal of the Law is to create a new type of guarantee for observance of basic rights and freedoms of the citizens and their organizations along with the mechanisms for protection that already exist: the traditional parliamentary mechanisms (especially the parliamentary committees), the constitutional justice, the court and administrative control, the media, the citizens’ NGOs. The accomplishment of this goal is closely dependent on the introduction and effective application of international and European standards on the ombudsman institution and on adapting them to the requirements of Bulgarian citizens. Several fundamental principles need to be followed in view of that – the independence of the ombudsman; the possibility to defend citizens' rights by means of publicity and moral standing instead of authoritative capacity; quick, unrestricted and free of charge access to the institution; unconditional access to all information crucial for the institution's performance; obligation for the ombudsman to safeguard state, official or commercial secret and the confidentiality of strictly personal information, etc.
In what way and to what extent does the Bulgarian Law on the Ombudsman responds to these requirements?
Legal Status of the Ombudsman
Chapter One “General Provisions” and Chapter Two “Taking the Office. Legal Status” contain general regulation of the legal status, goals, purposes and basic principles of the institution’s activity. The main goal and purpose of the ombudsman institution is to intercede for the citizens when their rights and freedoms have been violated by state or municipal authorities and their administrations as well as by persons assigned with the provision of public services.
The Bulgarian Parliament adopted the term ombudsman, typical for the institution’s motherland Sweden and accepted in several European countries.
As the foreign practice shows, the number of the persons to perform this function may be different and allocation of functions among them may be made by different criteria – e.g. general and special competencies, field of activity on national and/or local level, etc.
Regardless of the appellation it is given – ombudsman, parliamentary commissioner, civil rights commissioner, people’s advocate, people’s/civic defender, mediator etc., this is always a person driven institution. Certain mandatory requirements should be set to the institution’s office holders during the stages of its establishment and strengthening in Bulgaria – the ombudsman should be a Bulgarian citizen, not affiliated to any political party, an outstanding professional, within a certain age limit, possessing a university degree in humanities, not occupying any other public position or performing a public function during his/her term of office. This person should be largely trusted by the community and possess the necessary qualities to win and enlarge public confidence, e.g. high public integrity, commitment to the ideas of humanism, democracy and justice.
The Bulgarian Law (art. 9) envisages the establishment of a national ombudsman institution; its functions will be exercised by one person, who should be a Bulgarian citizen, possessing university degree, revealing high integrity and meeting the requirements for the election of Member of Parliament, namely Bulgarian citizen, who does not have another citizenship, is at least 21 years, is not under legal incapacity and does not serve a sentence of an imprisonment.
A requirement is settled for the office of the ombudsman to be incompatible with any other state office, managerial position in commercial company or not-for-profit legal person, membership in political party or trade union (art. 14); receiving any other remuneration either as employee or civil servant is also prohibited (art. 18).
Although not provided for explicitly in the Law, it is desirable that the future ombudsman should be a person who enjoys the confidence of wide social circles and possesses qualities which will allow him/her to gain and expand this confidence – high civil integrity and devotion to the ideas of humanism and democracy.
It is of particular necessity for the Bulgarian ombudsman to possess knowledge in the field of the national, international and European law and to speak at least one of the languages most widely used within the European Union in order to help the successful establishing and strengthening of the institution and its international prestige and in relation with the increasing international and European cooperation between the ombudsmen.
Regretfully, many of these requirements have not been laid down in the law (art. 9), despite being proposed in some of the drafts. The upper age limit has been omitted, while the lower is unreasonably low – equal to the 21-year one for MP’s; no requirement for knowledge in the field of national, international and European law has been set, although the nature of ombudsman’s activities does necessitate it. Thus, no sufficient guarantees are provided for an obligatory measure of knowledge and experience allowing the effective exercise of the institution’s powers.
The cases of incompatibility have not been defined as precisely as possible (art. 14 and art. 18, par. 3) since the possibility for the ombudsman to be remunerated for any work performed besides teaching or publication has not been ruled out. This makes room for a potential conflict of interests and would have a negative impact on the institution’s standing.
The Law envisages the ombudsman to be assisted in his/her activity by a deputy ombudsman (art. 5) who shall meet the requirements, applicable for the ombudsman, including the election criteria enumerated in art. 9, the incompatibility (art. 14) and the prohibition for receiving other remuneration either as employee or civil servant (art. 18, par. 3) as well as personal and professional qualities, which are not stipulated in the Law.
However, as the functions of the deputy ombudsman have not been specified, he/she does not possess any distinctive powers and is supposed to act only when the ombudsman delegates some of his/her powers to him/her. If no such delegation occurs the function of the deputy ombudsman remains unjustified in practice.
General Principles for the Ombudsman Activity
The principles of independence and publicity in the activity of the ombudsman are declared in Chapter One of the Law and further developed in Chapter Two and Chapter Three “Powers”.
- In the process of implementation of the main purposes of the ombudsman institution, it is necessary that its autonomy while performing its functions and its absolute independence from any other authorities and instructions shall be guaranteed by law. The Bulgarian legislator has adopted as a guarantee for the ombudsman’s independence that he/she shall enjoy the same immunity as a Member of Parliament (art. 16, par. 1).
- In connection with the powers of the ombudsman, he/she is envisaged to maintain a public register on the received oral and written complaints and signals and their movement (art. 21), and because of the parliamentary origin of the institution – to report before the National Assembly.
By March 31 every year the ombudsman has to submit an annual report on his/her activities to the National Assembly. The annual report has to contain information on: the complaints and signals received, on which the examinations have been completed; the cases when his/her intervention has led to a certain result; the cases when his/her intervention has had no consequences and the reasons thereof; the proposals and recommendations made and whether these have been taken into consideration; the respect for the human rights and fundamental freedoms and the efficiency of the legislation in force in this area; a report on the expenditures and a summary (art. 22, par. 1 and 2).The annual report is public. The ombudsman has to prepare reports on particular cases upon request by the National Assembly or upon his/her own initiative. It is also provided for the ombudsman to publish an annual bulletin on his/her activities.
All these prerequisites would create a high degree of publicity and transparency in his activity and the results of it. This will affect positively all the public institutions which do not respect to a satisfactory degree the rights and freedoms of the private persons.
- Another common principle is setting an obligation for the state and municipal authorities and their administrations, the legal persons and citizens to provide the ombudsman with information, entrusted to them officially, and to provide assistance to the ombudsman in relation with the complaints and signals sent to him/her (art. 6).
- A basic principle is the financing of the activity of the ombudsman and its administration to be provided by the state budget and other public sources. The Law sets provisions for the ombudsman and his/her administration to be financed through the state budget and/or other public sources and defines him/her as a first-rate administrator of budgetary credits (art. 7). The suggestion that the operational costs of the ombudsman should be set down in a separate section of the state budget similarly to the independent budget of the judiciary, was dismissed.
Election and Mandate of the Ombudsman
As Bulgaria is a parliamentary republic, Chapter Two logically envisages the ombudsman to be elected by the Parliament in accordance with its power to elect heads of the institutions, stipulated in a law (art. 84, item 8 of the Constitution of Republic of Bulgaria). The successful implementation of the tasks, standing before the institution and the prestige it indisputably needs, demand ombudsman’s powers to еvolve directly by the supreme body of people’s representation.
Members of Parliament and parliamentary groups may submit proposals for election of ombudsman (art. 10, par. 1).
Art. 13 envisages the election of a new ombudsman to take place at least two months before the expiry of the term of office of the active ombudsman who shall continue to carry out his/her duties until the newly elected ombudsman takes office.
The ombudsman has a fixed five-year term of office which is asynchronous, e.g. does not coincide with the term of office of the Parliament in order to guarantee the ombudsman’s independence. He/she may be re-elected for the same office only once (art. 8). The election of the ombudsman by the National Assembly is direct, with secret voting and as the Constitution in force does not provide for another possibility – by a simple majority (art. 10, par. 2).
If none of the candidates has received the required majority at the first voting, a second voting shall take place, in which only the two candidates, who have received the greatest number of votes, shall participate. The second voting also requires simple majority for the ombudsman to be elected, i.e. more than half of the votes of the Members of Parliament participating in the second voting (art. 10, par. 3).
The deputy ombudsman is also elected by the National Assembly upon proposal by the ombudsman.
The provisions regulating the election and the taking of the office of the ombudsman are not always clear-cut or consistent.
- Election of the ombudsman and his/her deputy by a simple majority vote is dependent on a small number of MP’s and consequently on the will of the parliamentary majority. Moreover, concerning nominations for ombudsman and the election procedure (art. 10) the law stipulates that proposals could be submitted by MP’s and parliamentary groups. The explicit provision that parliamentary groups may nominate their own candidates means that these will be party nominees, which enhances the probability that the majority’s candidate will be the one elected. Thus the provision in art. 10 virtually renders futile the stipulations of both art. 14 and art. 3 of the law – art. 14 regulates the incompatibility of the ombudsman office with political party membership, while art. 3 defines the principle of independence of the institution.
Therefore, if independence of the ombudsman from the political will of the parliamentary majority is to be sought within the existing constitutional model, this should be done as early as the nomination stage. The CSD draft contained provisions to entitle the President, the Supreme Judicial Council, and the Chair of the Constitutional Court as well as a definite number of Bulgarian citizens who have come of age to make proposals for the election of the ombudsman in order to ensure a greater measure of responsibility in appointing nominees. Two of the draft laws, submitted by MPs, also laid down similar provisions that prevent politicizing parliamentary debates or the election procedure itself and promote the nomination of truly competitive candidates.
Such a provision in the law would partially compensate for the lack of constitutional requirements that the ombudsman be elected by a qualified majority.
On second reading, the proposals that nominations might be made by persons and institutions outside parliamentary groups or MP’s were rejected and the National Assembly voted in favor of an election procedure strongly contingent on the will of parliamentary majority. This encourages the political dependence of the ombudsman and contradicts the character of his/her activities and should be overcome by relevant constitutional and legislative amendments.
The only guarantee for the ombudsman’s political independence is that his/her five-year term of office is longer than that of parliament so that these mandates can only overlap, but not coincide, in case, of course, that the powers of the ombudsman are not ended pre-term.
- There is no rule on what should happen if none of the nominees is elected at the second voting in Parliament (art. 10, par. 3 of the Law), yet this is a rather probable development. Since no ballot is envisaged the procedure for dealing with such cases remains unresolved.
Termination of Office of the Ombudsman
In order to assure the democratic character of the institution and to guarantee the strict implementation in full scope of its powers, it is provided that the ombudsman’s powers can be terminated before the expiry of his/her term of office in case of several exhaustively listed grounds and established procedure.
The powers of the ombudsman and the deputy ombudsman shall be terminated before the expiry of their term of office by the National Assembly upon request by at least one-fifth of the Members of Parliament in cases when: incompatibility or ineligibility has been verified; inability to carry out his/her powers for more than six months or failure to carry out his/her duties and violation of the Constitution and the laws of the country or the commonly accepted ethical rules has occurred.
The procedure and conditions for termination of the ombudsman’s powers by the National Assembly before the expiry of the term of office are also applicable for the deputy ombudsman plus one additional ground – a motivated proposal by the ombudsman.
The decision for termination of the powers of the ombudsman and the deputy ombudsman shall be announced before the National Assembly by its Chair in case of: entry in force of a sentence for intentional crime, resignation and death.
The regulation of these matters also shows several flaws:
- Termination of office before its expiry in case of “failure to carry out his/her duties and violation of the Constitution and the laws of the country or the commonly accepted ethical rules” (art. 15, par. 1, item 4) is a rather broad definition, not referring to any clear and objective criteria. This formulation and the overall institutional model could allow a fairly small parliamentary majority to pronounce on the compliance of the ombudsman’s conduct with the law or the commonly accepted ethical rules. Thus, the parliamentary majority could remove a problematic ombudsman on the grounds of subjective motives derived from its political inclinations.
- The representative authority can judge only the performance of the ombudsman’s professional duties and this judgment should not extend to compliance of his/her conduct with the law or the commonly accepted ethical rules. It is recommendable that the initiative for early termination of powers shall be given to the above-mentioned wider set of people and authorities (different from parliament) that are entitled to make election proposals.
- Art. 15, par. 4 envisages that the ombudsman and the deputy ombudsman shall have the right to speak before the National Assembly, yet this does not fully secure the institution’s independence.
Main Powers of the Ombudsman
Chapter Three “Powers” provides for the ombudsman’s powers, predetermined to a high degree by its disposition out of the system of the state authorities, by its role of a guardian and guarantee of the human rights and freedoms and to a certain extent - of a mediator between society and state. Тhey аre exhaustively listed in art. 19, par. 1, item 1-8 as follows:
1. to receive and consider complaints and signals regarding violations of rights and freedoms by the state and municipal authorities and their administrations as well as by persons assigned with the provision of public services;
2. to make examinations upon the complaints and signals received;
3. to reply in writing to the person, who has lodged the complaint or signal, within one month; if the case requires a more thorough examination, this term shall be three months;
4. to make proposals and recommendations for reinstatement of the violated rights and freedoms before the respective authorities, their administrations, and persons under item 1;
5. to mediate between the administrative authorities and the persons concerned for overcoming the violations admitted and shall reconcile their positions;
6. to make proposals and recommendations for eliminating the reasons and conditions, which create prerequisites for violation of rights and freedoms;
7. to notify the authorities, listed under article 150 of the Constitution, for approaching the Constitutional Court, when he/she is of the opinion that it is necessary the Constitution to be interpreted or a law to be declared unconstitutional;
8. to notify the Public Prosecution Office when data exists that a crime, prosecuted on indictment, has been committed.
The ombudsman acts on complaints and signals as well on his/her own initiative when he/she has established that the necessary conditions for protecting citizens’ rights and freedoms have not been created (art. 19, par. 2).
An opportunity is provided for the ombudsman to assign some of his/her powers to the deputy ombudsman (art. 19, par. 3).
The scope/circle of persons entitled to address the ombudsman, the way and requirements for lodging of complaints and signals (including their requisites) and in general the way they are to be considered is regulated in Chapter Four “Submission of Complaints and Signals”.
- It should be mentioned that the range of persons entitled to address the ombudsman with complaints and signals is too restricted. The proposal that, apart from natural persons, legal entities and informal organizations should also be granted the right to address the ombudsman was rejected for no good reason. Such a possibility would help to apply the equal-opportunities-for-all principle, including legal persons and entities which are not legal persons under Bulgarian law, whose rights are often violated by the public administration. The lack of opportunity for addressing the ombudsman in such cases is hardly acceptable. Moreover, such a solution considerably limits the scope of activities of the ombudsman which in turn may substantially decrease the effectiveness of the institution and detract from its reputation. Most of the newly emerged ombudsman type institutions world- and Europe-wide are contrastedly enlarging the spectrum of possible complainants to a broadest definition, including citizens and their organizations.
- Another weak point is that the law does not clearly define the scope of public authorities the ombudsman is empowered to monitor. The too general heading “state and municipal authorities” does not explicitly exclude the authorities whose acts and activities the ombudsman institution cannot monitor by virtue of its very spirit such as the Parliament, the President, the Supreme Judicial Council and the Constitutional Court as well as the activities related to the exercising of judicial power (by the courts, the prosecution offices and the investigation services) or concerning national security and foreign policy. The inaccurate use of the term “municipal authorities”, which is not legally defined, also makes an unclear point. These provisions may result in contradictions with the implementation of the law, which in turn could block the successful start of operation of the ombudsman.
- In order to perform successfully his/her functions, the ombudsman shall exercise his/her powers through extremely simplified and informal procedures. Therefore, no special forms with any obligatory requisites for the complaints and signals are envisaged by the law. They may be written or oral, submitted personally, by post or by other traditional means of communication (art. 25, par. 1). The only requirement is the complaint or signal to contain information on the sender, description of the violation, the authority, administration, or person against whom the complaint is lodged (art. 25, par. 2). This approach will make the ombudsman institution become easily accessible and open to anyone whose rights have been violated; irrespectively of any other procedures and means of protection which can be taken in parallel. The accessibility is further enhanced by the fact that the submission of complaints and signals will be free of charge for the sender (art. 26).
- In order to prevent the overloading of the institution with complaints whose settlement is beyond its powers (which can be expected, considering the slow and expensive procedures for defense in the country, the presence of a considerable number of unresolved court disputes, the complicated legal cases, etc.), the law introduces a “statute of limitations”, i.e. the ombudsman shall engage only with such cases having occurred at most two years before the date of submitting the complaint or signal.
- When a complaint or a signal has been accepted, the ombudsman shall, within his powers, take the necessary actions, although not specified in the Law, 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 complainant or to the prevention of their exercise, he can relay his opinions, recommendations and proposals to the relevant institutions, i.e. state and municipal authorities and their administrations as well as by the persons assigned with the provision of public services.
The institutions to which the opinions, recommendations and proposals are extended are obliged to answer within a 14-days term whether they accept them or not and to inform the ombudsman of the measures which they have taken (art. 28).
However, some of the powers of the ombudsman are disputable, while the procedure for handling complaints is incomplete.
- No obligation is set for the ombudsman to reply to complainants within a certain time limit whether their complaint or signal will be processed.
- The ombudsman has no capacity to require an administrative authority to pronounce explicitly in the case where the time limit to appeal against a tacit refusal has expired and this presents a problem for individuals in their dealings with the administration. The possibility to appeal against a tacit refusal before court does not sustain full respect for citizens’ rights since appeals are usually slow and expensive and a large number of individuals are forced to acquiesce to the breach upon their rights.
- The ombudsman should be authorized to recommend an administrative body to pronounce explicitly on requests addressed to the administration in order to promote civil rights and freedoms. Such an authorization was set forth in some of the drafts, yet was omitted from the final version.
Organization and Funding
The organization and funding of activities and the setting of remuneration of the ombudsman have not been regulated in utter detail or clarity.
- The ombudsman is envisaged to receive remuneration in the amount of three average monthly salaries received by civil servants and the employees in the public sector according to the data of the National Statistical Institute (art. 18, par. 1). Another suggestion that did not hold was to make the remuneration of the ombudsman equal to that of constitutional judges. The issue of setting the ombudsman’s remuneration is not simply an issue of public respect, but also of independence since certain restrictions on income are usually imposed on ombudsmen (the new Bulgarian law in its art. 18, par. 3 also regulates that the ombudsman and the deputy ombudsman may not receive other remuneration under contracts as employees or civil servants). In certain countries where parliamentary ombudsman type of institutions have been introduced, their remuneration is equal to that of the most highly regarded state officials such as chairs of parliament, constitutional or supreme court judges, presidents etc.
- The fact that the ombudsman has his/her own administration is mentioned in brief but the issue of the administrative office that will assist him/her has not been settled at all; the establishment, structure and functions of this office are not particularized and it is barely acceptable to deal with this matter solely in the institution’s Rules of the Organization and Activities. The lack of such regulations can significantly hinder the smooth operation of the institution.
A separate Chapter Five “Administrative Penal Provisions” provides for administrative penalties and procedures for their imposition for anyone who hinders the ombudsman to perform his/her official duties, fails to submit data, documents or certificates, demanded by the ombudsman, in the respective term, specified by him/her or fails to perform another obligation, evolving by the Law on the Ombudsman. Unless otherwise provided in the Law on the Ombudsman, the Law on Administrative Violations and Penalties shall be applied.
The final text of the law envisages the possibility that the ombudsman shall determine an official who should draw the statements for establishment of administrative violations and send them to the respective regional court. This resolution substituted the version in which the ombudsman himself shall impose administrative penalties (as in the initial draft proposed by Mr. Emil Koshlukov). Although aiming to raise the institution’s efficiency and respectability, this possibility counters the principles of administrative penalization on the one hand and indirectly defies the non-authoritarian quality of the ombudsman institution on the other hand. Ombudsman’s powers are largely defined through its functioning outside any public authority and thus being disabled to apply any authoritarian means of influence or coercion whatsoever.
Ombudsman Type Institutions on Local Level
After long debates and a definitely positive opinion expressed by the Committee for Local Self-Government, the Committee for Human Rights and Religions decided on the option that municipal councils may set up such local institutions, provided there are financial resources available. This proposal was rejected on second reading by the National Assembly.
On July 18, 2003, the Bulgarian National Assembly adopted the Law on Amending and Supplementing of the Law on Local Self-Government and Local Administration. The legislative provision for the establishment of the ombudsman type institutions on local level is among the adopted amendments. The new texts of the law envisage the possibility for the municipal councils to elect a public mediator with a qualified majority and to adopt rules on its organization and activities. The public mediator will promote and protect the civil rights and the lawful interests of citizens before the local authorities.
Although far from detailed, this legal framework was the first step towards regulating the activities of the local mediators, operating in several municipalities, as well as for developing the legal basis for establishing new institutions on local level.
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The Transitional and Concluding Provisions of the Law on the Ombudsman envisage that the National Assembly shall elect the ombudsman within three months following the entry into force of this law and the ombudsman shall submit to the National Assembly for approval the rules on the organization and activity of the institution within one month after taking the office.
Despite some good legislative decisions, the review and comparative analysis of the contents of the Law does not provide grounds for conclusion that the newly adopted Law on the Ombudsman duly complies with the respective international and European standards; therefore, it is unlikely to achieve its objectives properly. The Parliament failed to make use of some essentially valuable legal solutions that would allow the ombudsman institution to sustain effective exercise of human rights and freedoms in Bulgaria and promote greater transparency and accountability of the administration.
The best way to correct the faults referred to would be to adopt relevant amendments to the Constitution and the Law. This would allow the proper structuring and regulation of the ombudsman institution taking into account European and world experience. The appropriate degree of efficiency, independence and reputation would be achieved and the expectations and requirements of civil society in Bulgaria would be met most exhaustively.