For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9878

16 July 2003

The institution of Ombudsman

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Lili Nabholz-Haidegger, Switzerland, Liberal, Democratic and Reformers' Group

Summary

Ombudsmen, responsible to representative assemblies at all levels of public administration, have a vital role to play in ensuring proper, effective and efficient administrative conduct. In all countries, this role includes guaranteeing respect for human rights as an intrinsic element of the concept of ‘good administration’; in countries whose political, administrative and legal circumstances so require, the Ombudsman may play a more extensive role in the protection of human rights. Whilst the variety of constitutional and legal situations to be found across Council of Europe member states militates against proposal of a uniform model, in certain cases existing arrangements give rise to some concern; in particular, with respect to relations with the judicial system. Furthermore, in many instances Ombudsmen are unable to operate effectively because of a lack of resources, insufficient access to necessary information or inadequate procedures for ensuring a positive response from the administration.

Accordingly, the present Recommendation calls on those member states that have not already done so to establish Ombudsman institutions and proposes an extensive list of essential basic characteristics to be exhibited by Ombudsmen institutions throughout Europe. In order to ensure a supportive environment in which Ombudsman may discharge their responsibilities, it also asks the Committee of Ministers to draw up model texts for an individual right to good administration and a code of good administration for adoption by member states.

I.       Draft recommendation

1.       The Parliamentary Assembly confirms the importance of the institution of Ombudsman within national systems for the protection of human rights and of its role in ensuring the proper behaviour of public administration. Ombudsmen have a valuable role to play at all levels of public administration, responsible and reporting to the corresponding political bodies.

2.       The Assembly recalls the previous work of the Council of Europe, notably its own Recommendation 757 (1975) and Committee of Ministers Recommendations No. R (85) 13, No. R (80) 2 and No. Rec(2000)10 and Resolution (77) 31. It fully supports the important coordinating and supportive role played by the Commissioner for Human Rights and expresses the desire to become regularly involved in this work. It also recalls the work of the United Nations General Assembly and the European Ombudsman.

3.       The Assembly notes that the development of methods of human rights protection has influenced this role by including respect for human rights amongst the standards to be respected by good administration, on the basis that administrative actions which do not respect human rights cannot be lawful. Particular national constitutional and legal circumstances, furthermore, may dictate that Ombudsmen in different countries require mandates conferring various additional responsibilities with respect to human rights protection. Nevertheless, the Assembly believes that the role of intermediary between individuals and the administration lies at the heart of the Ombudsman’s functions.

4.       A further role for Ombudsmen exists with respect to officials within the administration itself. Where such officials become aware of situations of particular gravity and where resort to any internal procedures would be ineffective or otherwise unreasonable, there should be an exceptional mechanism for addressing such information directly to the Ombudsman.

5.       Neutrality and the universal respect of both complainants and the subjects of investigations are vital to the proper functioning of the institution of Ombudsman. The Assembly considers that these attributes are best preserved by limiting enforcement powers to the moral pressure inherent in public criticism, with reports on maladministration to and subsequent political condemnation of it by Parliament. The Assembly therefore considers that Ombudsmen’s access to administrative and constitutional courts should be limited to applications for interpretative judgments on legal questions relating to the mandate or particular investigations, unless representing an individual complainant with no direct access to such courts. It is preferable, however, that individuals with otherwise sufficient locus standi should be able to apply directly to such courts.

6.       The Assembly believes that Ombudsmen should have at most strictly limited powers of supervision over the courts. If circumstances require any such role, it should be confined to ensuring the procedural efficiency and administrative propriety of the judicial system; in consequence, the ability to represent individuals (unless there is no individual right of access to a particular court), initiate or intervene in proceedings, or reopen cases should be excluded.

7.       The Assembly therefore concludes that certain characteristics are essential for any institution of Ombudsman to operate effectively, namely:

i. establishment at constitutional level in a text guaranteeing the essence of the characteristics described in this paragraph, with elaboration and protection of these characteristics in the enabling legislation and statute of office;

ii. guaranteed independence from the subject of investigations, including in particular as regards receipt of complaints, decisions on whether or not to accept complaints as admissible or to launch own-initiative investigations, decisions on when and how to pursue investigations, consideration of evidence, drawing of conclusions, preparation and presentation of recommendations and reports, and publicity;

iii. exclusive transparent procedures for appointment and dismissal by Parliament by a qualified majority of votes sufficiently high as to imply support from parties outside government, according to strict criteria which unquestionably establish the Ombudsman as a suitably qualified and experienced individual of high moral standing and political independence, for renewable mandates at least equal in duration to the parliamentary term of office;

iv. prohibition of the incumbent from engaging in any other remunerated activities and from any personal involvement in political activities;

v. personal immunity from any disciplinary, administrative or criminal proceedings or penalties relating to discharge of official responsibilities, other than dismissal by Parliament for incapacity or serious ethical misconduct;

vi. the appointment of an identified deputy on the recommendation of the Ombudsman and with Parliamentary approval, capable of acting in the full capacity of Ombudsman when necessary;

vii. guaranteed sufficient resources for discharge of all responsibilities allocated to the institution, allocated independently of any possible interference by the subject of investigations, and complete autonomy over issues relating to budget and staff;

viii. guaranteed prompt and unrestricted access to all information necessary for the investigation;

ix. internal procedures guaranteeing the highest administrative standards in the institution’s own work, in particular fairness, efficiency, transparency and courtesy;

x. public accessibility (in terms of both availability and comprehensibility) of information on the existence, identity, purpose, procedures and powers of the Ombudsman, along with wide and effective publication of information on the institution’s activities, findings, opinions, proposals, recommendations and reports;

xi. application procedures which are easily and widely accessible, simple and free of charge, and which convincingly establish their confidentiality in all cases;

xii. guaranteed confidentiality and, when publicised, anonymity of investigations;

xiii. the authority to give opinions on proposed legislative or regulatory reforms and proprio motu to make such proposals with a view to improving administrative standards and, where consistent with the overall mandate, respect for human rights;

xiv. the requirement that the administration furnish within a reasonable time full replies describing the implementation of findings, opinions, proposals and recommendations or giving reasons why they cannot be implemented; and

xv. presentation by the Ombudsman of an annual report to Parliament, as well as of specific reports on matters of particular concern or where the administration has failed to implement recommendations.

8.       The Assembly notes with approval Committee of Ministers Recommendation No. Rec(2000)10 on codes of conduct for public officials. The Assembly observes, however, that this text is not analogous to the European Ombudsman’s European Code of Good Administrative Behaviour and lacks most of the latter’s provisions, but finds that many of these are set out in other Committee of Ministers texts, notably the appendices to Recommendation No. R (80) 2 and Resolution (77) 31. The Assembly considers that these instruments could usefully be consolidated into a single text providing guidance, instruction and information to both administrative officials and members of the public in their mutual relations.

9.       The Assembly notes that the European Ombudsman benefits from the inclusion in Article 41 of the Charter of Fundamental Rights of the European Union of a right to good administration. The Assembly believes that incorporation of such a right into national legislation could also be of great value, for similar reasons to adoption of a Code of Good Administrative Behaviour: indeed the Code would elaborate for practical implementation the detailed standards implicit in the basic right.

10.       Accordingly the Assembly makes the following recommendations to the governments of Council of Europe member states:

i.       to create at national (and at regional and local level as appropriate), where not already existing, an institution bearing a title similar to that of “Parliamentary (/ regional/ local government) Ombudsman”, preferably by incorporation into the constitution;

ii.       to ensure that the institution of Parliamentary Ombudsman exhibits the characteristics described at paragraph 7 above, and that these characteristics are sufficiently protected and appropriately elaborated in the enabling legislation and statute;

iii. to give this institution a mandate which clearly encompasses human rights as being fundamental to the concept of good administration, and which includes a wider role in human rights protection where, in the absence of specific complementary alternative mechanisms, national circumstances require;

iv. to exclude from the mandate of this institution the power to enter into litigation against either the administration or individual officials, whether before criminal or administrative courts, but to consider allowing the Ombudsman to apply to the Constitutional Court for interpretative judgments;

v. to engage fully with the Commissioner for Human Rights in his work of coordinating the activities of member states’ Ombudsmen;

vi. following the drafting of a model text by the Committee of Ministers, to adopt at constitutional level an individual right to good administration; and

vii. following the drafting of a model text by the Committee of Ministers, to adopt and implement fully a code of good administration, to be effectively publicised so as to inform the public of their rights and legitimate expectations.

11.       The Assembly further recommends to the Committee of Ministers:

i. to encourage member states to implement Recommendation No. R (85) 13, whilst also giving effect to the more detailed provisions of the current Recommendation;

ii. to draft a model text for a basic individual right to good administration;

iii. to draft a single, comprehensive, consolidated Model Code of Good Administration, deriving in particular from Committee of Ministers’ Recommendation No. R (80) 2 and Resolution (77) 31 and the European Code of Good Administrative Behaviour, with the involvement of the appropriate organs of the Council of Europe – in particular the Commissioner for Human Rights and the European Commission for Democracy Through Law, as well as the Assembly – and in consultation with the European Ombudsman, thus providing elaboration of the basic right to good administration so as to facilitate its effective implementation in practice;

iv. to encourage and provide technical assistance to governments of Council of Europe member states in adopting and implementing the above-mentioned right and code; and

v. to support the Commissioner for Human Rights in his work of coordinating the activities of member states’ Ombudsmen.

II.       Explanatory memorandum

      by Mrs Nabholz-Haidegger, Rapporteur

A.       Introduction

1.       On 8 October 2001 a motion for a resolution, Doc 9253, was presented to the Parliamentary Assembly entitled “Ombudsman institution”. This motion noted the importance of Ombudsmen to the primacy of national human rights protection (as implicitly required by Article 1 of the European Convention on Human Rights), but expressed concern at the consequences of the variety of institutions across Council of Europe member states and at the fact that such offices are often under-resourced, lack effective access to adequate information or are simply ignored. Accordingly, along with proposing a recommendation that those member states which had not already done so should enact legislation creating such institutions, the motion suggested several fundamental principles for their operation:

i.       transparent appointment by Parliament;

ii.       guaranteed independence;

iii. sufficient personnel and financial resources;

iv.       guaranteed access to necessary information;

v.       presentation of an annual report to Parliament; and

vi.       fullest possible implementation of recommendations.

2.       The Swedish word “Ombudsman” translates literally as “people’s representative”, but comparisons between different countries show that the translation into practice of the concept varies considerably. Freely interpreted, it means an independent official to whom citizens can turn in confidence with complaints and who, in the interests of greater legal protection, acts as a watchdog, a warning-mechanism and a mediating body in relation to the authorities. The institution can properly be described as an independent and impartial office responsible both for maintaining and improving the quality of public administration and for correcting acts of maladministration, located between citizens and the administrative authorities and intervening either in response to individual complaints or of his/ her own initiative.

3.       An Ombudsman is neither a partisan legal representative for the citizen nor a judicial officer. His/her duties are best discharged when acting as an independent, impartial intermediary between citizen and executive, investigating complaints or, of his own motion, situations of particular general concern, reaching conclusions of fact, and on the basis of those findings seeking a solution to the underlying situation satisfactory to all parties and/ or making recommendations for future improvements. Ombudsmen endeavour to improve administrative practices. An Ombudsman ought to give the public in general the confidence that there is an impartial “watchdog” holding government and public administration to account. This has a preventive effect favouring an administration based on the principles of law, justice and fairness. Citizens know that they can seek the assistance of a highly qualified, neutral person if they feel that they have been wronged by bureaucracy, and officials will be further motivated not to give rise to justified complaints that may call for the Ombudsman’s intervention. The services of the Ombudsman can be invaluable for the socially disadvantaged, as they are likely to be especially affected by the increasing complexities of government and, at the same time, have greater difficulties in comprehending administrative decisions and articulating their grievances. The Ombudsman helps to avoid formal litigation procedures by way of “alternative dispute resolution”. This makes a useful addition to the legal protection provided by the courts.

4.       Analysis of the numerous Ombudsman institutions both in Europe and elsewhere shows that they can be grouped into four essential categories:

i.       parliamentary Ombudsmen charged with oversight of the general administrative activities of government (whether national, regional or local);

ii.       parliamentary Ombudsmen responsible for supervision of specific areas of administrative activity or for protecting the interests of specific groups (for example as regards the police, correctional institutions, military services, data protection, education or protection of the disabled/ incapacitated);

iii.       statutory Ombudsmen responsible for scrutinising centrally regulated but essentially commercial activities (for example legal or financial services or with respect to environmental protection); and

iv.       Ombudsmen created by specific agreements to protect and maintain confidence in certain commercial activities (for example with respect to complaints concerning rail services, disputes relating to private insurance contracts or academic grievances within universities).1

This report, however, is concerned only with category (i), although it should be noted that some Ombudsmen (e.g. those in France and Greece) are responsible both for general public administration and for the acts of certain publicly-owned companies (notably utility companies). Ombudsmen should be responsible and report to a representative political assembly at the level (national, regional or local) of the administration under investigation.

B.       Work of the political organs of the Council of Europe

5.       On 23 September 1985 the Committee of Ministers adopted Recommendation No. R (85) 13 on the institution of Ombudsman. Its two substantive recommendations to member states were:

i.       to consider appointing Ombudsmen at national, regional or local level or for specific areas of public administration; and

ii.       to consider empowering the Ombudsman, where not already the case, to give particular consideration, within his general competence, to the human rights matters under his scrutiny and, if not incompatible with national legislation, to initiate investigations and to give opinions when questions of human rights are involved.

6.       The first part of this recommendation echoed the Assembly’s Recommendation 757 (1975) on the conclusions of the meeting of the Assembly’s Legal Affairs Committee with the Ombudsmen and Parliamentary Commissioners in Council of Europe member states. The second part was not, but is an important issue with respect to the issue of the jurisdiction or mandate of Ombudsmen.

7.       The Committee of Ministers has also adopted Recommendation No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities. This document recommends to states that they “be guided in their law and administrative practice” by the annexed “Principles applicable to the exercise of discretionary powers by administrative authorities”. After a statement of scope and definitions, this annex sets out basic principles: non-abuse of power; objectivity and impartiality, and the consideration of only relevant factors; respect for equality before the law by avoidance of unfair discrimination, respecting a “proper balance” between the adverse consequences of decision for individual rights and the purpose being pursued; decision-making within a reasonable time; and consistency, taking account of particular circumstances. The next section addresses procedure, beginning with reference to Committee of Ministers Resolution (77) 31 (see further below): general administrative guidelines should be made public or transmitted to concerned parties; and individuals should be informed if any departure from general administrative guidelines will have consequences for their rights or interests. Finally, the appendix addresses ‘control’: discretionary administrative acts must be subject to control of legality by a court or “other independent body” (which suggests an Ombudsman), whilst allowing for preliminary consideration of such issues by an administrative authority; failure within a reasonable time to take a decision for which no time limit is prescribed should be subject to appropriate control; and controlling bodies should be able to obtain necessary information.

8.       Committee of Ministers’ Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities provided an earlier list of the rights of individuals with respect to public administration. Again, it is recommended to member States that they be “guided in their law and administrative practice” by certain annexed principles. These included: the right to be heard in respect of acts likely to affect adversely the individual’s rights or interests, including the right to put forward facts and arguments and, where appropriate, to call evidence, and also the right where appropriate to be informed of the foregoing rights; the right of access to information of all available relevant factors; the right of assistance and representation; the right to a statement of the reasons for taking particular administrative actions; and the right of those subject to adverse administrative action to receive an indication of the remedies and of their availability.

9.       At the time of adoption of all of these instruments, the Council of Europe consisted only of Western European states, the range of whose political and legal situations and administrative experiences was more limited than that of the current pan-European organisation. Certainly, the administrative context of post-Communist states introduces new and very different challenges to those faced by Ombudsmen in Western European states. Nevertheless, at least as regards the various statements of principles of good administrative, these are of general application and relevant to all forms of public administration.

10.       The Rapporteur notes that the Model Code appended to Committee of Ministers’ Recommendation No. Rec(2000)10 on codes of conduct for public officials differs in two important and related respects from the European Ombudsman’s European Code of Good Administrative Behaviour2: the former emphasises the problem of corruption, and thus is directed more at the relationship between officials and their institutions than at relations between administrative authorities and members of the public. As a result there are considerable differences in substantive content, with no reference, for example, to prevention of discrimination, proportionality between measures taken and aims pursued, and procedural criteria such as the citizen’s right to be heard, taking decisions within a reasonable time, statement of grounds, and notification of decisions and appeal rights. Article 12 of the Model Code does, however, note that where an official receives unlawful or otherwise improper instructions or becomes aware of breaches of the Model Code by others, these matters should be reported to “the competent authorities” or to “the relevant head of the public service”, without any risk of resulting prejudice official concerned. The Rapporteur believes that Ombudsmen can play a valuable supplementary role in receiving information on acts which are unlawful or otherwise amount to serious maladministration, in circumstances where requiring the official to resort to internal procedures would either be ineffective or otherwise unreasonable (for example because of endemic corruption within an institution).

11.       Many of the principles lacking from the Model Code were, however, set out in other Committee of Ministers texts, notably Recommendation No. R (80) 2 and Resolution (77) 31, and the Rapporteur believes that confusion could be avoided and ease of adoption and implementation facilitated if these texts were consolidated and revised, taking into account also the European Code of Good Administrative Behaviour. The resulting text – a Model Code of Good Administration – would be clearly distinguished from the Model Code of Conduct for Public Officials in being intended to guide officials relations with those outside the institution, rather than their relationship to the institution itself. Such a text would both establish the standards to which officials should adhere and inform citizens of their rights and of the treatment they could expect; in addition, it would guide and explain the approach of national Ombudsman towards good administration. The Rapporteur believes that the work of drafting should involve the specialist organs of the Council of Europe, such as the European Commission for Democracy Through Law and the Commissioner for Human Rights, and that collaboration with the European Ombudsman could be valuable.

C.       The importance of Ombudsmen

12.       The European Ombudsman Institute (“EOI”) has produced an interesting analysis of this question3, which compares the situations in established and new democracies. “[T]he ombudsmen of the new democracies in Middle and Eastern Europe define themselves much more as an important force to establish and secure a democratic development in its very beginning. Therefore, their main interest relates to the fundamental requirements of democracy as such, civil and human rights; therefore, these ombudsmen stress much more the overwhelming importance of the rule of democratically enacted law than their colleagues in Western Europe, where ombudsmen demand for themselves more and more even the role of a counterpart to parliaments that come persistently under stronger influence of rapidly shifting public opinions. Obviously law is being appreciated more in countries where it did not exist so far as an expression of democratic will. In the highly developed Western social welfare societies the call for the ombudsman has to be analysed much more in the light of a common frustration with the current situation of democracy and the constitutional state… [I]t is widely agreed that the quality of democracy and the constitutional state had – and still has – to be improved; that despite its high standard the pacifying function of the constitutional state has not reached its optimum… Furthermore, together with its unavoidable consequence of a bureaucracy that is growing steadily in quantity and quality the social welfare state counts as an important reason for the success of the ombudsman idea.”

13.       The EOI’s conclusions are perhaps rather abstract and conceptual with respect to western democracies. To put it in more concrete terms, the key aspect is the availability of an easily accessible institution that helps citizens with their daily concerns and difficulties with respect to the authorities. This is not least as a result of the widespread public disillusionment with the inadequacies and weaknesses of the traditional forms of scrutiny of government by parliaments and the courts. ‘Western European’ ombudsmen primarily act as mediators between citizens and the authorities and, when justice and fairness so require, try to work towards better solutions. The essential aim is ensuring ‘good administration.’ Nevertheless, the EOI’s analysis does raise interesting questions concerning whether there is a single ‘model’ constitution for Ombudsmen’s offices which could be said to be valid throughout Europe; and, if not, then how the various functions which might be attributed to an Ombudsman’s office should be distributed elsewhere amongst state authorities.

D.       Essential characteristics of Ombudsmen

14.       The principles mentioned in the Assembly’s motion arise from analysis of the constitutional situation of a national Ombudsman and of considerations of simple practical necessity.

i.       Guaranteed independence. Whether overseeing administrative probity or protecting human rights, the subject of the Ombudsman’s activities is the government as executive/ administration. It is therefore essential that the Ombudsman be independent of government and of the general administrative bureaucracy: this independence should relate to every element of the institution’s legal and constitutional basis, political situation and operational activities. The Ombudsman’s political independence and impartiality should be reinforced by prohibiting the incumbent from any personal involvement in political activities.

ii.       Transparent appointment by Parliament. Whilst the Ombudsman must be independent of the executive, as guardian of a general public interest, it is important that he/ she is appointed by a democratic body; i.e. Parliament. The appearance of being politically non-partisan (and thus independent and impartial) is enhanced by requiring a high qualified majority vote sufficiently high as to imply that the successful candidate has received the support of opposition as well as government parties. Similar safeguards are required with respect to lengthy (preferably at least as long as the parliamentary term) and renewable term of office; procedures for dismissal on specified, narrowly defined grounds; and immunity from legal suit arising from performance of duties. It is essential for the maintenance of public confidence not only that the appointee is clearly suitable to the responsibilities of the office, but that, should justified doubt be cast on their character, there are proper procedures for termination of office. These considerations, along with independence, are attributes necessary for ensuring the Ombudsman’s impartiality. A deputy Ombudsman should be appointed on the recommendation of the Ombudsman and with Parliamentary approval, able to act in full capacity when necessary.

iii.       Sufficient resources and autonomous budgetary and staff management. The Ombudsman must be able to respond to all admissible and substantive individual complaints, as well as to launch own-initiative investigations into matters of general public concern and to give opinions and make recommendations on any other matters within the mandate. Whilst (and, bearing in mind his function and status, perhaps in particular) the Ombudsman’s office should be a model of efficiency and productivity, it must nevertheless be sufficiently resourced as an important part of the system of constitutional checks and balances. In addition, there should be no suspicion that financing of the Ombudsman may be susceptible to the goodwill of the executive; budgetary allocations must be independent of possible executive interference and open to Parliamentary and public scrutiny. Similarly the appointment of staff to the Ombudsman’s office must be clearly independent of outside influence, and salaries (particularly that of the Ombudsman, who should be prohibited from engaging in other remunerated activities) must be sufficiently high as to attract staff of the appropriate calibre.

iv.       Guaranteed access to necessary information. Clearly an Ombudsman cannot properly investigate a situation nor reach reliable findings of fact without access to all relevant information. Furthermore, the potential for the executive to disclose facts presenting a partial picture of a situation creates the temptation to release information giving a biased portrayal. Difficulties arise, however, in relation to the confidentiality of public authority documents, particularly where the citizen complains of a refusal to disclose information. Here the dilemma is between, on the one hand, the Ombudsman’s ability to consider the propriety of the administrative decision to refuse disclosure, by having privileged access to the sensitive and confidential material in question; and on the other, the confidence of the citizen in an Ombudsman’s conclusion that the administrative refusal of disclosure of information was justifiable, when the citizen remains unaware of the details of the information involved and reliant on the decision of a distant public official. Public confidence in the probity and independence of the Ombudsman are therefore vital in this respect.

v.       Presentation of an annual report to Parliament. This serves several important practical purposes, not least in making the Ombudsman’s services widely known. Regular contact between the Ombudsman and Parliament allows the latter to keep abreast of his/ her activities and of the development of any trends in misconduct by the executive; it provides a centralised source of information on the Ombudsman’s activities and thus, indirectly, on the executive’s conduct, to which the general public may have easy access; and it ensures that the Ombudsman regularly reviews his own activities, which is a valuable process in identifying areas of particular concern, including in cases where the executive refuses to follow and implement the Ombudsman’s recommendations. Such annual reports also have an important educational function for the executive and contribute to the further development of administrative law. Periodic interim special reports are also useful in bringing matters of particular concern to the more immediate attention of Parliament. A further confidentiality dilemma may arise, in that whilst the avoidance of disclosure of complainants’ personal details enhances public confidence, it is important that the public be informed of the Ombudsman’s activities. It is desirable, therefore, that particular cases are made anonymous in public reports.

vi.       Full implementation of recommendations. For the Ombudsman to play a useful role, especially as an agent of human rights protection, his findings must be more than abstract repetitions of principle or descriptions of best practice: they must be acted on promptly and effectively, with reports being submitted to him afterwards. An Ombudsman should not be a fig-leaf for the executive’s miscreant shame, but a remedy for the injured citizen and a champion of the threatened public interest: nevertheless, as a mediator, the Ombudsman’s decisions will reflect in part the interests and position of the executive. Whilst findings and recommendations need and perhaps should not have binding effect, the Ombudsman not being a judicial officer, as a matter of principle and to protect its reputation, the executive should implement them effectively, or explain promptly and fully the reasons why this cannot be done. Parliaments can play a vital democratic political role in promoting and monitoring implementation and scrutinising the reasons given for failure to implement.

15.       Alongside these can be added certain others, in some respects elaborating on criteria implicit in the above, but nevertheless worthy of specific mention.

i. Establishment of the institution on a constitutional basis. By elevating the legal basis of the institution to constitutional level, the status of the office is enhanced and any potential for revision by a disgruntled government is reduced. Prestige, and the independence to which it contributes, are essential attributes of the institution insofar as it relies on public confidence for the provision of the individual complaints which inform it of specific instances of potential maladministration. The constitutional text should make reference to the essential characteristics of the institution, and these characteristics should then be elaborated and protected in enabling legislation and in the statute of the institution.

ii. Provision of widely-available information on the institution. For complaints to be received, it is obvious that the existence of the Ombudsman must be well publicised. The material made available must also provide clear information on the identity and qualifications of the incumbent, the purpose, internal procedures and powers of the office, and details of the Ombudsman’s past, current and future activities. The public needs to understand who the Ombudsman is, what are the functions of the office and why and how they are discharged, and what have been the past achievements and current concerns. This information should be made available at all major points of public contact with public administrative services, as well as on the internet.

iii. Public accessibility of complaint submission procedures. It must be easy, simple and free for individuals to bring cases to the Ombudsman’s attention. The fact of widespread and growing internet access is invaluable in this respect. Whilst it lowers the ‘threshold of inconvenience’ which may exclude the more frivolous or ill-directed complaints, the imposition of a requirement to provide information on a standard form and in response to specific questions can facilitate preliminary screening of inadmissible complaints. On balance, to allow applications by internet is beneficial to the Ombudsman’s work. Since not all individuals have access to the internet, however, this should not be to the detriment of other means of application. The advantage of standardised applications can be maintained by including complaint forms in information brochures.

iv. A role in legislative and regulatory reform. This should include the authority to give opinions on proposals, as well as for the Ombudsman to make own initiative recommendations for change. The matters on which the Ombudsman is able to intervene should be consistent with the overall mandate: where responsibilities are limited to narrowly-defined maladministration, then intervention should relate to improving administrative standards; where they include broader human rights issues, it could relate also to compliance with international norms and obligations.

16.       These elements combine to establish the fundamental character of the office. The Ombudsman must be held in trust and esteem by the public, whilst at the same time maintaining the confidence and good-will of the administrative authorities under investigation. Both ‘sides’ must anticipate justice and fairness from the Ombudsman, so that the public is prepared to submit complaints to the Ombudsman and the administration is prepared to cooperate with investigations and comply with decisions.

E.       The Committee’s colloquy held on 5 June 2003

17.       During its meeting in Paris of 5 June 2003, the Committee held a colloquy in connection with this report. Professor Ian Harden, Head of the Legal Department of the Office of the European Ombudsman, and Mrs Maria de Jesus Serra Lopes, representing the Venice Commission, participated; Dr Nicolaus Schwärzler, member of the Executive Board of the Venice Commission, was unfortunately unable to attend, but submitted his contribution in writing. The panel was asked to address the question “Is there a single model for Ombudsman appropriate throughout Europe”, notably the issues of the role of Ombudsmen in protecting human rights and ensuring constitutionality of laws, and the enforcement powers of Ombudsmen and their relationship to the judicial system.

18.       This colloquy generated a very interesting and informative discussion between the panel and members of the Committee, and has played an important role in the elaboration of the present report. The Rapporteur would like here to record her great appreciation of the contribution of Professor Harden, Mrs Serra Lopes and Dr Schwärzler.

F.       The mandate of Ombudsmen: human rights protection

19.       As the Assembly noted in 1975 the quality of public administration has certain obvious consequences for human rights:

20.       Many Ombudsmen work to a brief which goes beyond the more narrow definitions of ‘maladministration’, notably with respect to human rights protection – for example:4

i.       In Albania, Bosnia and Herzegovina, Croatia, the Czech Republic, Denmark, Finland, Georgia, Hungary, Latvia, “the former Yugoslav Republic of Macedonia”, Moldova, Norway, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden and Ukraine the responsibilities of the Ombudsman (or similar body) are specifically defined so as to include human rights.

ii.       The Austrian Ombudsman Board “is not only concerned with the question whether the approach adopted by an administrative authority is in compliance with the law, but also with the manner in which that authority deals with its customers.”

iii.       The Mediator of the French Republic intervenes not only with respect to the improper functioning of the administrative services, but also when there is prejudice to principles of ‘equity’. This is defined as an essential component of unwritten, ‘natural’ law which is superior to and exists apart from positive law and so overrides it: equity is thus a corrective to written law when application of the latter leads to consequences which are manifestly disproportionate. The French Children’s Defender is charged with promoting the rights of children as defined by French law or as established under France’s commitments in international law.

iv.       The Irish Ombudsman investigates cases where an administrative action has adversely affected a person and that action was inter alia improperly discriminatory, based on undesirable administrative practice or otherwise contrary to fair or sound administration.

v.       The Dutch National Ombudsman investigates the actions of administrative authorities and decides whether or not they were “improper”.

vi.       The Maltese Ombudsman addresses acts including those which are “unreasonable, unjust, oppressive or improperly discriminatory” or just plain “wrong”.

21.       Before considering the extent to which Ombudsman should be concerned with human rights, it is worth considering alternative mechanisms; in particular, national human rights institutions/ commissions. The United Nations General Assembly Resolution A/RES/48/134 on “National institutions for the promotion and protection of human rights” contains as an annex a statement of “Principles Relating to the Status of National Institutions”. This detailed text covers competence and responsibilities, composition and guarantees of independence and pluralism, methods of operation, and additional principles concerning the status of commissions with quasi-judicial competence. Since such institutions also address citizens’ grievances against public authorities, several principles are stated of equal relevance to ‘classical’ Ombudsmen: appropriate infrastructure, adequate funding from a source independent of governmental control, stable secure mandates of definite duration, with possibility of renewal, freedom of action, ability to hold hearings and have access to information and documents, ability to address public opinion, settlement of disputes by conciliation, making of recommendations etc.

22.       The protection and promotion of human rights should permeate all areas of public life, including those falling outside the interface between bureaucracy and the citizen. Thus whilst violations of human rights in the course of administrative action clearly amount to maladministration, not all human rights violations arise as a result of, or indeed have any direct connection to, administrative action. Where the border lies between these two categories, however, is indeterminate, which has two principle consequences. First, as noted by Professor Harden during the colloquy, it is hard to envisage general principles concerning specific powers and duties concerning promotion and protection of human rights that Ombudsmen should not have. Second, the institutions of Ombudsman and Human Rights Commission (or Commissioner) form a continuum. Accordingly, one cannot predetermine where the responsibilities of one should cease and those of the other begin; rather, the question is one to be resolved in the specific legal and constitutional circumstances of individual countries.

23.       Certainly there are considerable differences in the situations faced by Ombudsmen in different countries. There is a broad distinction between ‘traditional’ (or ‘established’) and ‘new’ democracies which can be defined as a difference in the degree of development of the legal, political and administrative cultures. This is important in relation to the national situation prevailing at the time a particular Ombudsman institution is created: whilst an office in an ‘established’ democracy can begin operating in an atmosphere of political stability and entrenched respect for the rule of law and human rights, this may not be the case elsewhere, and accordingly different responsibilities must be addressed. Experience in the Council of Europe tells us, however, that as the situation develops, certain important and relevant changes take place. First, the authorities’ overall respect for human rights should improve; and second, public expectations of the authorities should apprehend good administration as a matter of course. As a result, the need for the Ombudsman to play an extensive role outside the field of administration should diminish or, as the state’s institutional apparatus develops and differentiates, be taken on by more specific bodies.

24.       Professor Harden’s presentation to the Committee elaborated on this approach. The flexibility of the Ombudsman institution had contributed to its world-wide spread in response to two developments (which reflect the analysis of the EOI): first, the rise of the welfare and regulatory state, which has increased the size and complexity of public administration; and second, the spread of aspirations to democracy and human rights. These two trends each gave rise to a certain general form of Ombudsman, in the former case emphasising the rule of law and good administration, and in the latter the protection and promotion of human rights. These two paths have tended to converge, not on a single model, but on a common basic understanding of the purpose and scope of the institution. So ‘developing’ democracies gradually limit and differentiate the human rights mandate of the Ombudsman, whilst for example the Cypriot Ombudsman’s jurisdiction was in 2002 extended to encompass human rights and the European Ombudsman’s activities have been facilitated by inclusion of a right to good administration in the Charter of Fundamental Rights of the European Union.

25.       On the basis of the above discussion, therefore, the Rapporteur does not seek to propose universal guidance on what institutions should be created nor on what should be the details of their mandates. The particular circumstances of individual countries require the formulation of approaches which reflect their legal and constitutional arrangements and meet effectively the requirements of their administrative and human rights situations. The Rapporteur does, however, consider that where it is found to be preferable to give the Ombudsman a mandate which is relatively restricted with respect to human rights protection, it is important to ascertain whether human rights issues arise in any other areas of state responsibility, and so whether it is necessary to establish complementary bodies with specific mandates to address these remaining issues.

26.       In this respect the Rapporteur recalls the EOI’s analysis (see above) of the distinction between Central and Eastern European and Western European democracies and the consequences of their expectations of government for the role of Ombudsmen. Bearing in mind the rapid and successful development of nearly all of these countries – from totalitarian Communism to the situation where they are able to meet the stringent requirements for membership of the Council of Europe or that of the EU, in little more than a decade – it is perhaps patronising and certainly myopic to assume that these distinctions will be long-lasting. It would not be premature to look forward to when Central and Eastern European states are seen naturally and instinctively by their citizens as compound entities, with differentiated and effective organs variously ensuring the rule of law, democratic representation and good administration, and with respect for human rights inherent in the activities of all. Until that time, however, it is essential that Ombudsmen with broad human rights mandates are properly resourced, protected, promoted and encouraged. At the same time, attention should be given to ensuring that the mandate and constitution of Ombudsmen’s offices evolves along with national political and legal developments so that their purpose and activities retain their relevance and value.

27.       The Rapporteur thus agrees with the Conclusions of the European Ombudsmen Conference in Vilnius, Lithuania on 5-6 April 20025 which describe the role of the Ombudsman as an important tool in ensuring effective human rights protection via a “synergy between State authorities and civil society.” The Rapporteur also shares the Conference’s concerns relating to political actors’ adverse reactions to Ombudsmen’s interventions in crisis situations, and considers that not only the Human Rights Commissioner (as mentioned) but also the Assembly have an important role to play in providing support and encouragement to Ombudsmen in such circumstances.

28.       A Meeting between Western European Ombudsmen and the Council of Europe Commissioner for Human Rights was held in Paris on 1 December 2000.6 The conclusions of this meeting, in expressing uncertainty as to how best to interpret the relevance of human rights to their mandates and in calling for a Recommendation on the issue, have inspired the Rapporteur in making the proposals contained in this report. The Rapporteur also agrees that the Commissioner is well placed to receive information on and co-ordinate Ombudsmen’s activities concerning human rights.

29.       The Rapporteur notes with interest the remarks of Mr Morten Kjærum, Director General of the Danish Centre for Human Rights, made at the Conference on the Work and Co-operation of Ombudsman and National Human Rights Institutions held in Copenhagen, Denmark on 23-25 September 20017:

The Rapporteur finds that this general analysis, in attempting to distinguish between the areas of responsibility most appropriate to Ombudsmen and to human rights institutions, from the perspective of the latter, gives interesting practical clarification of the issue. It must be noted, however, that it is limited to EU countries, and the Rapporteur considers that legal and political circumstances elsewhere make it unsuitable to many other national situations.

30.       The Rapporteur also notes that the Executive Summary of this Conference repeated the often-expressed concerns regarding the fact that “the ombudsman institution also faces threats such a politicisation of the institution, lack of independence, lack of financial resources and bureaucracy.”

G.       Ombudsmen and the judicial system

31.       In some countries – notably including some of those in which Ombudsman offices have been longest established – the Ombudsman has a role in supervising the judiciary and the judicial system.

i.       The Finnish Ombudsman “shall supervise that the courts… comply with the law and fulfil their duties. The Parliamentary Ombudsman shall especially… undertake appropriate measures if a judge… has made himself guilty of deceit, partiality or grave neglect, violated the right of a private citizen or exceeded his authority.” In addition, the Ombudsman is responsible for prosecuting charges against the President or a member of the Supreme Court or the Supreme Administrative Court.

ii.       The Mediator of the French Republic ensures that justice is not administered in conditions which would be unsatisfactory for those concerned.

iii.       The Public Defender of Georgia may address “recommendations to relevant judicial bodies to reconsider the court decisions which have entered into force, if he considers that violation of human rights occurring during the legal proceedings could have substantial impact on the final verdict of the court”.

iv.       The Polish Commissioner for Civil Rights Protection may “lodge extraordinary appeal against each final and valid sentence”.

v.       The Commissioner for Human Rights in the Russian Federation may “appeal in court or to the prosecutor’s office with an appeal to investigate the decisions with the force of law, a court’s sentence, determination or ruling of a court or a ruling by a judge”.

vi.       The Swedish Ombudsmen “are to ensure in particular that the courts… in the course of their activities obey the injunction of the Instrument of Government about objectivity and impartiality and that the fundamental rights and freedoms of citizens are not encroached upon in public administration”, and may initiate proceedings against or press for the dismissal or deprival of office of members of the Supreme Court or Supreme Administrative Court.

32.       In several countries Ombudsmen have certain responsibilities with respect to the constitutionality and lawfulness of legislation and administrative regulations.

i.       In Denmark, Finland, Lithuania, Norway and Romania, the Ombudsman may inform the relevant political authorities of any legislative or regulatory deficiencies.

ii.       In Albania, the Czech Republic, Finland, France, Georgia, Moldova, Poland and Spain the Ombudsman may make proposals for improving legislation or regulations.

iii.       In Albania, Austria, Hungary, Moldova, Poland, Portugal, Russia and Ukraine, the Ombudsmen may variously apply to the Constitutional Court for declarations of illegality or unconstitutionality, interpretations or invalidation.

iv.       In Croatia, Slovakia and Slovenia, the Ombudsman may take various steps to initiate reforms.

33.       A related question concerns enforcement of decisions. In keeping with their status as Parliamentary Ombudsmen and role as mediators, most institutions rely on moral pressure arising from the constitutional position and public prestige of the office and the personal standing of the incumbent, with the possibility of obtaining political support from the legislature in response to the presentation of reports. In some countries, however, there is a role in criminal, administrative or disciplinary proceedings.

i.       In Norway, Portugal, Slovakia and Sweden, the Ombudsman may inform the relevant administrative or disciplinary authorities of individual misconduct.

ii.       In Croatia, the Czech Republic, Georgia, “the former Yugoslav Republic of Macedonia”, Russia and Slovenia, the Ombudsman may propose or request that administrative or disciplinary proceedings be initiated.

iii.       In Moldova, Finland and Poland, the Ombudsman may order that disciplinary proceedings be brought.

iv.       In Lithuania and Moldova, the Ombudsman may bring a court action for misconduct. In Poland, the Ombudsman may intervene in civil or disciplinary cases.

v.       In Greece, Lithuania, Portugal and Slovakia, the Ombudsman may inform the prosecuting authorities of suspected criminal offences.

vi.       In Croatia, the Czech Republic, Georgia, “the former Yugoslav Republic of Macedonia”, Russia and Slovenia, the Ombudsman may recommend criminal prosecution.

vii.       In Finland, Moldova and Poland, the Ombudsman may require that criminal proceedings be initiated.

viii.       In Hungary the Ombudsman may initiative criminal proceedings. In Finland and Sweden, the Ombudsman acts as prosecutor: in Finland, only the Ombudsman may prosecute a member of the Council of State or the Chancellor of Justice; and in Sweden, the Ombudsman is responsible for prosecuting members of the Supreme Court and Supreme Administrative Court.

34.       The Rapporteur considers that to engage in litigation, whether before criminal or constitutional courts, places the Ombudsman in an invidious situation. The Ombudsman’s most effective role – not as representative of the individual, but as mediator between the citizen and the administration – is best achieved from a position of respected neutrality. To appear in court as the opposing party to the administration or as the prosecutor of individual officials jeopardises the Ombudsman’s relationship with them. If the Ombudsman is genuinely to be seen as an alternative dispute resolution mechanism, it is preferable that court litigation is avoided altogether, unless the individual has no other means of access to, for example, the Constitutional Court (although it would be preferable that individuals could approach the Court directly). One exception8 – in countries with well-developed administrative and constitutional court systems – could perhaps lie in cases where the Ombudsman seeks interpretative judgments or rulings on the legality or constitutionality of laws and regulations, for the purpose of assisting his investigation and determination of particular issues. Such proceedings would be less likely to amount to a confrontation between the Ombudsman and the administrative authorities, and indeed could even help resolve disputes between them.

35.       Furthermore the Rapporteur considers that such activities raise potential complications as regards the constitutional separation of powers9, even where the Ombudsman has no power to question the correctness of judgments10. For instance, where an Ombudsman with responsibility for oversight of the judiciary is also able to initiate or intervene in litigation, this could create a potential or at least apparent conflict of interest with repercussions for the perceived independence of the judiciary. It is even possible, when taking into account the jurisprudence of the Strasbourg Court, to envisage issues arising under Article 6 of the European Convention on Human Rights. The Rapporteur concludes that the judiciary should be autonomous of such outside control: at most, any supervisory role for Ombudsmen should be limited to issues of legal procedure and judicial conduct, and even then only with the most stringent safeguards to prevent any suspicion of abuse or of conflict of interests. In this case, however, the Ombudsman’s own access to the courts should be excluded or, in appropriate circumstances, limited to applications for interpretative judgments.

H.       European Ombudsmen and the Council of Europe Commissioner for Human Rights

36.        The responsibilities of the Council of Europe Commissioner for Human Rights are defined as “the promotion of the education in and awareness of human rights, the identification of short-comings in the law and practice with regards to human rights and, lastly, the promotion of their effective respect and full enjoyment in all the member States of the Council of Europe”.11 It is noteworthy, however, that the Commissioner is also charged with a duty to “facilitate the activities of national ombudsmen or similar institutions in the field of human rights.” The Commissioner’s regular meetings, including the European Ombudsmen Conference of April 2002, are an indication of the complementarity of their functions.

37.       The Rapporteur considers the Commissioner’s enthusiastic and welcome interest in the activities of European Ombudsmen to be further proof that the distribution of responsibilities and institutions in the field of human rights protection lies along a continuum rather than a spectrum of distinct locations. (Perhaps the fact of the incumbent Commissioner being the former Spanish Defensor del Pueblo also evinces the compatibility of the roles!) It is also relevant that, at the level of the Council of Europe, there is no alternative ‘Ombudsman’ figure to whom national Ombudsman could refer. The Commissioner’s practical involvement with national Ombudsmen proves that he is well-placed to facilitate cooperation and coordination between them, and that they share adjoining and overlapping, responsibilities for human rights protection. The Rapporteur encourages their cooperation and appreciates the support and protection provided to national Ombudsmen through association with the pan-European Commissioner.

I.       The situation in the European Union

38.       The European Union has its own European Ombudsman to deal with complaints of maladministration in the activities of the institutions and bodies of the European Communities. Article 195 of the Consolidated Version of the Treaty Establishing the European Community, combined with the European Ombudsman Statute, fulfils the criteria proposed in the motion, notably concerning appointment by parliament, complete independence, presentation of an annual report to parliament, and procedures to reinforce implementation of decisions.

39.       The mandate of the European Ombudsman is defined as relating to instances of maladministration. The essence of ‘maladministration’ has been explained by the European Ombudsman as occurring “when a public body fails to act in accordance with a rule or principle which is binding upon it.” In his 1997 Annual Report the European Ombudsman expanded on this, giving the following non-exhaustive list of types of administrative malpractice: irregularities, omissions, abuse of power, negligence, unlawful procedures, unfairness, malfunction or incompetence, discrimination, avoidable delay and lack or refusal of information. The European Ombudsman’s definition of maladministration includes the principles appended to Committee of Ministers Recommendation No. R(80) 2 concerning the exercise of discretionary powers by administrative authorities.

40.       Following the solemn proclamation by the Union’s institutions of the Charter of Fundamental Rights of the European Union, the European Ombudsman has made clear that, since administrative action which is against the law must be considered maladministration, so must failure by these institutions to follow the Charter thus be considered. In interpreting the content and meaning of these rights, the Ombudsman has had recourse to the jurisprudence of the European Court of Justice and the European Court of Human Rights.

41.       The European Ombudsman is given further legal support by Article 41 of the Charter of Fundamental Rights of the European Union, which states that “Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.” As discussed above, the requirements of good administration have been developed by the European Ombudsman in the European Code of Good Administrative Behaviour. The Rapporteur considers that inclusion of such a right in the national legislation of member States, preferably at constitutional level, would reinforce respect for the principles of good administration at national levels by emphasising their importance to both officials and members of the public, whilst also underlining the significance of the Ombudsman’s office. The Rapporteur does not believe, however, that the implications in terms of scope and application of this right are as yet sufficiently well-defined to merit the proposal that it be incorporated into the ECHR by means of an additional protocol.

J.       Conclusions

42.       To summarise, the Rapporteur concludes that the following are essential characteristics of Ombudsman institutions:

i.       establishment at constitutional level in a text guaranteeing the essence of the characteristics described in this paragraph, with elaboration and protection of these characteristics in the enabling legislation and statute of office;

ii.       guaranteed independence from the subject of investigations, including in particular as regards receipt of complaints, decisions on whether or not to accept complaints as admissible or to launch own-initiative investigations, decisions on when and how to pursue investigations, consideration of evidence, drawing of conclusions, preparation and presentation of recommendations and reports, and publicity;

iii.       exclusive transparent procedures for appointment and dismissal by Parliament by a qualified majority of votes sufficiently high as to imply support from parties outside government, according to criteria which unquestionably establish the Ombudsman as a suitably qualified and experienced individual of high moral standing and political independence, for renewable mandates at least equal in duration to the parliamentary term of office;

iv.       prohibition of the incumbent from engaging in any other remunerated activities and from any personal involvement in political activities;

v.       personal immunity from any disciplinary, administrative or criminal proceedings or penalties relating to discharge of official responsibilities, other than dismissal by Parliament for incapacity or serious ethical misconduct;

vi.       the appointment of an identified deputy on the recommendation of the Ombudsman and with Parliamentary approval, capable of acting in the full capacity of Ombudsman when necessary;

vii.       guaranteed sufficient resources for discharge of all responsibilities allocated to the institution, allocated independently of any possible interference by the subject of investigations, and complete autonomy over issues relating to budget and staff;

viii.       guaranteed prompt and unrestricted access to all information necessary for the investigation;

ix.       internal procedures guaranteeing the highest administrative standards in the institution’s own work, in particular fairness, efficiency, transparency and courtesy;

x.       public accessibility (in terms of both availability and comprehensibility) of information on the existence, identity, purpose, procedures and powers of the Ombudsman, along with wide and effective publication of information on the institution’s activities, findings, opinions, proposals, recommendations and reports;

xi.       application procedures which are easily and widely accessible, simple and free of charge, and which convincingly establish their confidentiality in all cases;

xii.       guaranteed confidentiality and, when publicised, anonymity of investigations;

xiii.       the authority to give opinions on proposed legislative or regulatory reforms and proprio motu to make such proposals with a view to improving administrative standards and, where consistent with the overall mandate, respect for human rights;

xiv.       the requirement that the administration furnish within a reasonable time full replies describing the implementation of findings, opinions, proposals and recommendations or giving reasons why they cannot be implemented; and

xv.       presentation by the Ombudsman of an annual report to Parliament, as well as of specific reports on matters of particular concern or where the administration has failed to implement recommendations.

43.       On the basis of the foregoing, the Rapporteur proposes the following recommendations to governments of member states:

i. to create at national (and at regional and local level as appropriate), where not already existing, an institution bearing a title similar to that of “Parliamentary (/ regional/ local government) Ombudsman”, preferably by incorporation into the constitution;

ii. to ensure that the institution of national Parliamentary Ombudsman exhibits the characteristics described at paragraph 42 above, and that these characteristics are sufficiently protected and appropriately elaborated in the enabling legislation and statute;

iii. to give this institution a mandate which clearly encompasses human rights as being fundamental to the concept of good administration, and which includes a wider role in human rights protection where, in the absence of specific complementary alternative mechanisms, national circumstances require;

iv. to exclude from the mandate of this institution the power to enter into litigation against either the administration or individual officials, whether before criminal or administrative courts, but to consider allowing the Ombudsman to apply to the Constitutional Court for interpretative judgments;

v. to engage fully with the Commissioner for Human Rights in his work coordinating the activities of member States’ Ombudsmen;

vi. following the drafting of a model text by the Committee of Ministers, to adopt at constitutional level an individual right to good administration; and

vii. following the drafting of a model text by the Committee of Ministers, to adopt and implement fully a code of good administration, to be effectively publicised so as to inform the public of their rights and legitimate expectations.

44.       Furthermore, to recommend to the Committee of Ministers:

i. to encourage member States to implement Recommendation No. R (85) 13, whilst also giving effect to the more detailed provisions of the current recommendation;

ii. to draft a model text for a basic individual right to good administration;

iii. to draft a single, comprehensive, consolidated Model Code for Good Administration, deriving in particular from Committee of Ministers Recommendation No. R (80) 2 and Resolution (77) 31 and the European Code of Good Administrative Behaviour, with the involvement of the appropriate organs of the Council of Europe – in particular the Commissioner for Human Rights and the European Commission for Democracy Through Law, as well as the Assembly – and in consultation with the European Ombudsman, thus providing elaboration of the basic right to good administration so as to facilitate its effective implementation in practice;

iv. to encourage and provide technical assistance to governments of member States in adopting and implementing the above-mentioned right and code; and

v. to support the Commissioner for Human Rights in his work coordinating the activities of member States’ Ombudsmen.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9253, Reference No 2670 of 8 November 2001

Draft recommendation adopted unanimously by the Committee on 26 June 2003

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli, Mrs Arifi, Mr Arzilli, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Møller, Mr Cilevics, Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty, Mr Ivanov, Mr Kalezić, Mr Kelber, Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli (alternate: Mr Ateş), Mr Malins, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine (alternate: Mr Dreyfus-Schmidt), Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic, Mr Stoica (alternate: Mr Coifan), Mr Symonenko (alternate: Mr Baburin), Mr Tabajdi, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner


1 Prof. Harden categorises ‘Ombudsman’ institutions in three respects: being either public or private, providing remedies to individuals who are either external or internal to the administrative entity, and either determining rights or negotiating solutions (“When Europeans Complain: The Work of the European Ombudsman”, vol. 3 (2000) Cambridge Yearbook of European Legal Studies 199-237). On this basis, the present report concerns public, external ombudsmen primarily involved in determining rights whilst also seeking negotiated solutions to maladministration.

2 See further below and at http://www.euro-ombudsman.eu.int/code/en/default.htm

3 See http://members.tirol.com/eoi/uk/geschichte_uk.htm

4 All these descriptions of Ombudsmen’s functions are taken from their respective websites or from the website www.omineurope.info .

5 See http://www.commissioner.coe.int/docs/CommDH(2002)3_E.pdf

6 See http://www.commissioner.coe.int/docs/CommDH(2000)5_E.pdf

7 See http://www.um.dk/upload/publikationer/CWC-UK.pdf

8 As noted by Dr Schwärzler in his written contribution.

9 Dr Schwärzler observes, however, that “The ombudsman cannot really be ranked in the system of the classical “Montesquieu” separation of powers… In general he is not a part of the parliament, even though he is responsible and answerable to it.”

10 Dr Schwärzler contemplates the possibility of Ombudsmen being empowered to restart legal proceedings where there are doubts about the results or course of the original proceedings.

11 See http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/