LEGAL STATUS OF “OMBUDSMAN”

The National Academy of Sciences of UkraineKyiv University of Law

Anna VasilchenkoDepartment of International LawGroup IL-41

Definition of ombudsman,historical sources of the term

1713- King Charles XII of Sweden institited the office of His Majesty's Supreme Ombudsman to ensure that judges and public officials acted in accordance with the laws

The office of the Parliamentary Ombudsman was established by the Instrument of Government of 1809 and its role preserved in the new Instrument of Government in 1974.

ombudsmen has been instituted by other governments and organizations such as the European Union.

Legal status of ombudsman Paris Principles (Adopted by General

Assembly resolution 48/134 of 20 December 1993) : Ombudsmen must be free to look into any issue falling within their competence without prior approval from the authorities. It is essential for them to be able to collect all and any kind of evidence that is relevant for their work.

Importantly, the office of the ombudsman has to be adequately funded to allow it “to be independent of the government and not subject to financial control which might affect its independence”

The ombudsman institution in Ukraine

Constitution of Ukraine

Article 55 of the Constitution: "Everyone has the right to appeal for the protection of his her rights to the Ukrainian Parliament Commissioner for Human Rights".

Article 101 of the Constitution :"The Ukrainian Parliament Commissioner for Human Rights exercises parliamentary control over the observance of constitutional human and citizens’ rights and freedoms." 

The Law On the Ukrainian Parliament Commissioner for Human Rights

(23.12.1997) Article 1 The Authorised

Human Rights Representative, governed in his or her operation by the Constitution of Ukraine, the laws of Ukraine and effective international agreements , shall permanently exercise his or her parliamentary control over the observance of constitutional human and citizens’ rights and freedoms and the protection of every individual’s rights on the territory of Ukraine and within its jurisdiction.

Article 4 : The Representative shall be an official, whose status is determined by the Constitution of Ukraine, this Law and the Law of Ukraine “On State Service”.

The Representative shall be independent of other state bodies and officials in the exercise of his or her operation.

The authority of the Representative cannot be terminated or restricted in the event of expiration of term of the authority of the Verkhovna Rada of Ukraine or its dissolution (self-dissolution), declaration of martial law or the state of emergency in Ukraine or in its separate areas.

The ombudsman institution in Hungary

The ombudsman institution in Hungary is envisaged in the Constitution of 1990.

In 1993 The Parliament adopted the Act on the Parliamentary Commissioner for Civil Rights.

At present there are four Commissioners: the Parliamentary Commissioner for Civil Rights, the Parliamentary Commissioner for National and Ethnic Minorities Rights, the Parliamentary Commissioner for Data Protection and Freedom of Information and the Parliamentary Commissioner for Future Generations.

Act LIX of 1993 on the Parliamentary Commissioner for

Civil Rights Section 8 The Ombudsman's office is an organ of

the Parliament and the Ombudsman is accountable exclusively to it. The Ombudsman takes measures solely on the basis of the Constitution and the law and cannot be given instructions concerning the course of his proceedings. 

The Ombudsman and the ex-ombudsman shall not be held responsible in court or before any other authority for any fact or opinion communicated by him in the course of the exercise of his mandate. This immunity shall not extend to slander, libel or to the civil law responsibility of the Ombudsman.

The institution of the European Ombudsman

The institution of the European Ombudsman was created by the Maastricht Treaty in 1992.

At the request of Parliament, the Ombudsman may be removed by the Court of Justice if “he no longer fulfils the conditions required for the performance of hif duties or if he is guilty of serious misconduct”.

The Ombudsman usually conducts inquiries on the basis of complaints but can also launch inquiries on his own initiative.

The Ombudsman makes official visits to all the Member States, which enables him to present his work directly to the citizens.

So,

Competences and responsibilities The Ombudsman has a very wide power of investigation but limited

opportunities to remedy violations. The Ombudsman may: • gain access to the premises of an authority;• request data and information from any authority;• inspect documents, make copies;• hear the official in charge of the matter under investigation;• request an inquiry;• request a written explanation, declaration, or opinion from any organ.

However, the Ombudsman cannot issue a legally binding decision resulting from the investigation and is not able to remedy any abuse. The Ombudsman’s function is merely to indicate abuse and issue proposals to the organ concerned, or to its supervisory body, recommending changes to practises, decisions or procedures.

Conclusions

There are four “essential and universally recognised features of ombudsmanship”: independence, flexibility, accessibility and credibility.

Independence

Parliamentary Ombudsmen are usually structurally independent of the political process and government administration. They generally are officers of and report directly to the Parliament.

Most Ombudsmen are exclusively responsible for carrying out complaint investigation and resolution.

Flexibility

The flexibility in the Ombudsman context refers typically to the nature of the Ombudsman process and its ability to adapt to change.

Many Ombudsmen have the ability to initiate an investigation on an own motion basis. This is very useful in a number of circumstances, for instance, when many complainants raise the same issue

Accessibility

An Ombudsman’s effectiveness will depend to a large extend on whether persons with complaints are aware of the Ombudsman’s existence. It is important for Ombudsman offices to have sufficient resources to ensure that community public education can be conducted.

Credibility

An Ombudsman’s ability to achieve sound results will depend to a large extent on the credibility of the Ombudsman personally and of his/her office. Complainants must perceive the Ombudsman to be a real complaint resolution mechanism and not just another department within a larger whole. Credibility is often linked to independence.

Thank you for your attention!