“The Venice principles on the role of the Ombudsman institution”

Read the speech of the Honourable President of the Supreme Court of Cyprus, Cypriot Member of the Venice Commission, Mr. Myron M. Nicolatos at the conference «The Venice Principles in strengthening the Ombudsman Institutions».

Most of the Venice Commission’s member and observer states have an ombudsperson institution (occasionally named Mediator, Parliamentary Commissioner, Human Rights Defender, etc.), usually appointed by national parliaments.

These ombudspersons are independent and impartial institutions. In many states, ombudspersons are considered to be human rights΄ protectors (People’s Advocates) who try to find viable solutions when human rights violations have occurred.

The Venice Commission considers that ombudspersons institutions, are important ingredients of a democratic society, protecting human rights, and in particular the important principles of good governance.

The concept of good governance is a very old one; it can be traced back to the works of the Ancient Greek Philosopher Aristotle, who referred to good governance, in order to describe a state ruled by an ethical and just governor.

In the year 2000, the European Community defined good governance, in the Partnership Agreement between the States of the African, Caribbean and Pacific Group and the European Community (Cotonou Agreement) as follows:

“In the context of a political and institutional environment that upholds human rights, democratic principles and the rule of law, good governance is the transparent and accountable management of human, natural, economic and financial resources for the purposes of equitable and sustainable development. It entails clear decision-making procedures at the level of public authorities, transparent and accountable institutions, the primacy of law in the management and distribution of resources and capacity building for elaborating and implementing measures aiming in particular at preventing and combating corruption”

Good governance requires good administration in the sense that public organs, institutions and processes serve citizens, within a reasonable time, and produce results that meet the needs of society, while making the best use of resources at their disposal. Good administration entails that public officials and institutions must act within the law and with regard to the rights of those concerned. They should treat people impartially and with respect and courtesy. Decisions taken by public organs must be fair and reasonable, based on all relevant considerations. Public authorities should act fairly and proportionately.

In a properly democratic society, no public official should refuse to listen to legitimate complaints, or should abuse the authority he has been entrusted with.  Good governance requires that individuals  be treated in accordance with the law and with due regard to the proper merits of their case.

The task of the ombudsperson is to investigate complaints of persons to whom injustice has been caused, by maladministration.

Maladministration is a highly flexible concept that includes errors affecting the manner in which the administrative decisions have been reached, as well as the manner of their implementation.

Ombudspersons can build on their experience, gained when dealing with individual complaints, in order to improve the general quality of public administration.

The Venice Commission has systematically emphasised the Ombudspersons’ key role for the promotion of an efficient and sustainable public administration that respects and protects fundamental human rights.

 The model, most widely followed for the institution of Ombudsman, may be briefly described:

 «As that of an independent official having the primary role of acting as intermediary between the people and the state and local administration, and being able in that capacity to monitor the activities of the administration through powers of inquiry and access to information and to address the administration by the issue of recommendations on the basis of law and equity in a broad sense, in order to counter and remedy human rights violations and instances of maladministration.»

The Ombudspersons check whether the laws are being respected by the executive power and public administration, whether citizens are being treated fairly by the state, and whether the administration is just, fair ethical, and accountable to the people.

By carrying out investigations, following complaints or on their own initiative, ombudspersons detect structural shortcomings and injustices and make recommendations as to how they may be remedied.

By voicing problems and by acting publicly, they raise the public’s understanding of human rights and the necessity for redress.  In this respect, they are essentially contributing to the development and strengthening of a human rights΄ culture, within society.

The institution of ombudsperson has become such a vital indicator of a well-functioning Democracy and Rule of Law, that the European Union makes its existence  one of the criteria for membership. Under the Copenhagen criteria, and under EU enlargement support programmes, the Ombudsman is considered as an essential institution, safeguarding democracy, the rule of law, and the protection of human rights.

In the new democracies of Central and Eastern Europe, the creation of Ombudsman Institutions is considered as fundamental, in order to prevent the risk of returning  to totalitarianism, and secure the democratic rights of the people.

Following various threats to these institutions in recent years, the Venice Commission decided to codify, on the basis of its previous work and experience, a set of constitutional and legal principles (the so-called “Venice Principles”) specifically applicable to the Ombudsman institution.

In 2018, a broad process of consultations and exchanges, on the “Venice Principles”, took place with Ombudsman Institutions from all over the world as well as with the international stakeholders.

Ombudsman institutions, now, have a unique reference text listing the legal principles that are essential to their establishment and functioning, in a democratic society.

These principles, drawn partly from a diversity of existing models in the world, provide us with a comprehensive checklist, covering election, dismissal, mandate and financial and other safeguards, crucial for the proper functioning and independence of the institution.

One of the most important presequisites for the proper establishment and functioning of the ombudsman institution is, of course, independence.

In order to promote and preserve the independence and impartiality of an Ombudsman, the Venice Commission has always urged states to give to the Institution, constitutional or legal foundation .  It is essential that the status of this institution should be based on a firm constitutional or at least legislative foundation.

In its opinions relating to constitutions and/or to Laws on the Ombudsman in various countries, the Venice Commission has, consistently, insisted on a constitutional foundation for the institution rather than an ordinary legislative one. In order to protect the institution, from undue political influence, it is preferable to provide Constitutional guarantees, for its status and jurisdiction.

Nevertheless, in many countries, the institution is founded on the basis of ordinary legislation. This may partly be explained by the fact that the significance of the role of the Ombudsman in relation to human rights and freedoms was not, in the past, as strongly recognised as it is today. Another explanation lies in the fact that the procedure for constitutional amendment is in many countries quite cumbersome.

An Ombudsman, in order to be fully independent, must be appointed in an open and independent process, and must be provided with sufficient funding.  Furthermore he must be able to appoint his own staff. He must also have sufficient access to  information and the power to summon witnesses.

Ombudsmen need to be able to report to the elected body that appointed them, both through annual reports and through special reports when necessary, mainly if the administration refuses  to accept their recommendations. 

In line with the above essential features, the Venice Commission has welcomed provisions in national legislations forbidding the Ombudsman from being re-elected.   If activities or recommendations by Ombudspersons are  influenced by an interest for  re-election, their independence may be at risk. 

For the Venice Commission, it is important that ombudspersons have a fixed term of office, of a sufficient length, as well as security of tenure.  Dismissal should be possible only on very restricted grounds, and after a qualified majority vote, in the relevant elected bodies that appoint them, or confirm their appointment.

It is also important that Ombudspersons be granted  broad mandates.

The Venice Commission prefers that activities of the Head of State, exercised in his/her capacity as head of the executive, unless they are of an exceptional nature (e.g. declaration of war) or of a purely political nature (e.g. appointment of the Prime Minister) should also fall within the monitoring competence of the Ombudsman.

Only general, “political” decisions of the Government as a whole should be excluded from the scope of the competence of the ombudsperson. Ministerial and governmental decisions of administrative nature, directly affecting individuals, should be subject to checks by the ombudsperson.

Unhindered access of the ombudsperson, to persons deprived of their liberty, is also an important principle. The ombudsperson should be able also to interview officials of administrative authorities and, possibly, should have certain limited powers of investigation.

In view of the need that the executive  follows principles of good administration, It is important to empower the ombudsperson to intervene, not only when irregularities occur, but also when such principles are disregarded.  More specifically, he should have the power to intervene when administrative bodies exhibit humiliating behaviour towards citizens, when their work lacks objectivity and impartiality, and also when their process of dealing with complaints, is flagrantly slow.

In this respect, the European Code of Good Administrative Behaviour of the European Ombudsman can be a source for inspiration.

In recent years, new instruments have contributed to the codification of good administration, both in the EU and in the Council of Europe.

The ECHR case-law has developed a number of important principles and procedural requirements based on Article 6 and other Articles of the European Convention on Human Rights which emphasise the right to good administration. National legislation and case law have also confirmed this development. Good administration is recognised as a legal principle and even as a right, in many contexts.

The Venice Commission recommends that the powers of the Ombudsman should include the possibility of applying to the Constitutional Court of the country for a judgment on questions concerning the constitutionality of laws and regulations, or administrative acts that raise issues affecting human rights and freedoms. The Ombudsman should be able to do so of his/her own motion, or after a complaint submitted to the institution.

However, this mechanism cannot replace the right to direct access to the Court, by persons having a legitimate interest. Therefore, the Venice Commission sees an advantage in combining indirect access, with direct access.

A well-functioning Ombudsman institution informs the citizens of what they should expect from a democratic state, and mainly that citizens have the right to expect an open, fair and accountable public administration.

There is no doubt that the Venice Commission΄s principles will guide and support the proper functioning of ombudsman institutions, whose role contributes significantly to the promotion of  good administration and society’s wellbeing, thus strengthening Democracy, the Rule of Law and Human Rights.

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