CDL-INF(1999)010e
Strasbourg, 29 June 1999
REPORT OF THE
WORKING GROUP OF THE VENICE COMMISSION AND THE DIRECTORATE OF HUMAN RIGHTS ON
OMBUDSMAN INSTITUTIONS IN BOSNIA AND HERZEGOVINA
Adopted by the
Working Group at its meeting in Paris on 11 May 1999
and approved
by the Commission at its 39th Plenary meeting
(Venice, 18-19 June 1999)
INTRODUCTION
Very soon after the Washington and Dayton peace
agreements, the Council of Europe realised the need to define the structure and
working methods of the ombudsman institutions in Bosnia and Herzegovina, as
bodies responsible for the protection of human rights in that country. In
November 1996, at the request of the Parliamentary Assembly of the Council of
Europe, the European Commission for Democracy through Law (Venice Commission)
adopted its Opinion on the institutional situation in Bosnia and Herzegovina,
with particular reference to the human rights protection machinery
(CDL-INF(96)9); as a result of this opinion, the Working Group on Ombudsman institutions
in Bosnia and Herzegovina was set up in April 1997. It consisted of Mr Jean
Claude Scholsem and Ms Maria de Jesus Serra Lopez, members of the Venice
Commission for Belgium and Portugal respectively, and MM Alvaro Gil Robles,
former Defensor del Pueblo (Spain) and Philippe Bardiaux, Foreign Relations
Adviser to the Médiateur de la République (France). MM Gerard Batliner et Rune
Lavin, members of the Venice Commission for Liechtenstein and Sweden
respectively, contributed to the group's work.
The working group wished to involve the authorities
concerned in its work. The Ombudsperson for Bosnia and Herzegovina, the staff
of this office and the Ombudsmen of the Federation of Bosnia and Herzegovina
took an active part in the work concerning them. On two occasions, in Banja
Luka, the members of the group met Ms Plavsic and Mr Poplasen, Presidents of
the Republika Srpska, and judges of the RS Constitutional Court of the RS to
discuss the Ombudsman. Lastly, the Office of the High Representative and the OSCE
took an active part in preparing the drafts at every stage.
The group also wishes to thank the French Médiateur de la République and the
Portuguese Providor de Justiça for
all their assistance with its work.
I. FRAMEWORK
The ombudsman institutions now functioning in Bosnia
and Herzegovina, namely the Human Rights Ombudsperson for Bosnia and
Herzegovina and the Ombudsmen of the Federation of Bosnia and Herzegovina, were
established by the peace agreements. The Constitution of the Federation of
Bosnia and Herzegovina (hereinafter "FBH") was drawn up under the
terms of the Washington Agreements of March 1994 and provides for the setting
up of an ombudsman institution in the FBH. The Dayton Agreements, which came into
force on 15 December 1995, established the State of Bosnia and Herzegovina
(hereinafter "BH") as the continuation of the Republic of Bosnia and
Herzegovina, consisting of two entities, the FBH and the Republika Srpska
(hereinafter "RS"). Annex 6 to the agreements provides for the
establishment of the Office of the Human Rights Ombudsperson as one of the two
components of the Commission on Human Rights, the other being a judicial
institution, the Human Rights Chamber.
There is as yet no ombudsman institution in the RS.
The idea of setting up such an institution was muted in the above-mentioned
Opinion of the Venice Commission on the constitutional situation in Bosnia and
Herzegovina, with particular reference to the human rights protection
machinery. The working group's first task was to draw up a preliminary draft
law on the Ombudsman of the Republika Srpska. The group's work, albeit
seriously hampered by the constitutional crisis that shook the RS in summer
1997, nevertheless resulted in the drawing up of a preliminary draft text which
was presented to the Venice Commission and approved in March 1998
(CDL(98)12fin). The draft was transmitted to the Office of the High
Representative
in Bosnia and Herzegovina, the OSCE Mission in
Bosnia and Herzegovina and the authorities of the Republika Srpska.
Meanwhile the OSCE Mission in Bosnia and Herzegovina
asked the Council of Europe to assist in drawing up a draft organic law for the
Ombudsmen of the FBH. The Constitution of the FBH requires a law on the
appointment of the Ombudsmen of the FBH to be adopted three years after the
entry into force of the Constitution (May 1994). This task was assigned to the
working group, which transmitted the requested draft to the OSCE in March 1999,
after it had been approved by the Venice Commission.
At the same time, the Ombudsperson for BH asked the
working group to look into the distribution of competencies between the
ombudsman institutions in BH. An interim report on the subject was adopted by
the working group and approved by the Venice Commission in June 1998
(CDL-INF(98)12). On the basis of the conclusions of the interim report, the
Ombudsperson asked the working group to draw up a preliminary draft organic law
on the functioning of the institution of Ombudsperson for BH after the end of
the transitional period provided for by the Dayton Agreements (December 2000).
The group completed its preparation of the requested draft in March 1999.
Lastly, the group considered it advisable to revise
details of the preliminary draft law on the Ombudsman of the RS in order to
bring it into line with the draft laws on the ombudsman institutions of BH and
the FBH. The revised draft was transmitted to the OSCE and the authorities of
the RS.
The three preliminary draft laws are appended to
this report.
II. OMBUDSMAN
INSTITUTIONS IN A POST-CONFLICT SOCIETY IN TRANSITION
The operation of an ombudsman institution in Bosnia
and Herzegovina is surrounded by not only technical but also conceptual and
therefore political difficulties.
The idea that ombudsman institutions are part of
human rights protection machinery is now familiar to everyone. It is beyond
doubt that alongside highly developed judicial systems for protecting human
rights, ombudsman institutions are in a position to provide a parallel,
non-judicial form of protection which is equally effective and necessary. Of
course, the Ombudsman cannot be a substitute for judicial machinery protecting
individual rights. Its contribution to the system for protecting those rights
is a consensual rather than conflictual dimension, an authority with a more
ethical basis and a set of flexible procedures that can adapt to different
situations. The key feature of the Ombudsman's work is that the Ombudsman is
not, like the courts, bound by strictly legal considerations but can base its
action on considerations of equity; in addition, as a mediator, it has no power
to impose the solutions it recommends without the agreement of the parties
concerned; its action is thus confined to making recommendations, and its
effectiveness depends on the ability to convince and a high degree of moral
authority; lastly, unlike the courts, it can suggest amendments to laws and
regulations where it considers this appropriate. In other words, the
Ombudsman's activity parallels and to some extent complements that of the
judicial system.
In societies in transition the Ombudsman's activity
is of course much less discreet. Faced with a state apparatus undergoing
profound changes, the ombudsman institution's task is not only to deal with
cases of maladministration, but to promote or protect the values of society,
including human rights, which also mean the rule of law. While targeted in
theory at the administration, its activity in the transition process not only
parallels that of the judicial system, but may often take the form of judicial
action. Its function is then to disseminate a certain legal culture both among
the state institutions and among the population. In a transition situation, the
Ombudsman's work focuses more on applying the law and the Ombudsman tends to
become a fully-fledged player in the judicial system, exercising a
quasi-judicial function based on influence. This trend is reflected in the
broad scope afforded to ombudsman institutions in several central and east
European countries for referring matters to the courts, including the highest
courts.
This trend, albeit justified, does have
repercussions on the concept of ombudsman. The ombudsman institution may well
be viewed as an opponent of the administration, parliament or courts and
consequently lose its image as a mediator. Its effectiveness could also be
undermined.
Lastly, it is certainly an unusual idea to use an
ombudsman-type institution in a society in conflict or post-conflict society
where the state machinery is not only new but also - and above all -
particularly weak. Many critics in fact describe the ombudsman institution as
too sophisticated to perform a stabilising function in a society in conflict.
However, some features of the ombudsman institution can be acknowledged to be
of great use in a fragile society: an approach free of the constraints imposed
by an incomplete or defective legal system, the use of mediating (rather than
adversarial) procedures and the structural and operational flexibility of an
institution which by definition keeps red tape to a minimum are so many
features warranting the setting up of an Ombudsman institution in a society in
conflict or post-conflict society.
However, there are major risks. While the ombudsman
institution's role in a society in transition is to safeguard or promote values
in the face of a changing state apparatus, it could, where the state
institutions are weak or lacking, be granted powers enabling it to replace the
defective state agency. This could pose problems: firstly, the ombudsman
institution would lose its distinctive features and become too similar to the
standard institutions of the executive; secondly, the broad scope of its
activity could be seen as infringing the separation of powers; its flexibility
could be considered arbitrary; and by further relieving the defaulting
authorities of the need to take responsibility, its action could undermine the
process of setting up effective democratic institutions and introducing the
rule of law.
III. CONCEPTUAL
PROBLEMS SURROUNDING THE OMBUDSMAN INSTITUTIONS IN BOSNIA AND HERZEGOVINA
Bosnia and Herzegovina faces a combination of the
difficulties described above. Society is both undergoing a transition to a new political,
economic and legal system and recovering after a long war. The question is how
to define the position of the ombudsman institutions in this context.
The Ombudsmen of the Federation of Bosnia and
Herzegovina
Three Ombudsmen - a Bosnian, a Croat and an
"other", currently a Serb - have been appointed under the Constitution of the FBH.
The Office of the Ombudsmen is an
independent agency.
The Ombudsmen are empowered to examine the
activities of all institutions of the Federation, cantons and municipalities
and all institutions or persons whose dignity, rights and freedoms may be
breached, particularly by ethnic cleansing or the preservation of its effects.
To perform their task, the Ombudsmen of the Federation are empowered to
initiate proceedings before competent courts and to intervene in pending
proceedings.
The Constitution of the FBH makes it clear, if only
by its structure, that the Ombudsmen are not a supplementary, accessory or
parallel institution, but one of the key players in the state. The chapter on
the Ombudsmen is strategically placed in the Constitution, immediately after
the list of fundamental rights and before any reference to the entity's
institutions, whether the President, the Parliament, the Government or the
courts. This position reflects the importance assigned by a war-torn society to
the ombudsman institution and explains the expectations the latter has aroused.
It also explains the institution's distinctive features, including its
extensive powers and special relations with the judicial system. This suggests
that the purpose of the institution extends well beyond monitoring the
functioning of the administration: it is in fact a device for rehabilitating a
society in crisis.
The question that arises at the outset is how an
ombudsman institution, which by definition lacks means of enforcement, can
fulfil this task. On the other hand, if it is granted such means, the question
is whether it does not then cease to be an ombudsman institution.
The first few years of operation are fairly
indicative of the difficulties encountered by the Ombudsmen of the Federation
in the performance of their duties, due to the conceptual problems outlined
above. The Ombudsmen have repeatedly approached the FBH authorities with
requests for the adoption of measures.
The US State Department Report on Human Rights for
1995 states that "the Ombudsmen have done some impressive work monitoring
the human rights situation and bringing cases of abuse to the Bosnian and
Croatian governments. However, the Ombudsmen have no enforcement power and
authorities treat them with varying degrees of indifference and hostility. They
say that were it not for the international backing, the Federation authorities
would disband them immediately". In their annual activity report for 1996,
the Ombudsmen state that despite repeated assurances to the contrary, the
authorities resisted their efforts to monitor respect for human rights.
The Human Rights Ombudsperson for Bosnia and
Herzegovina
The Ombudsperson for Bosnia and Herzegovina,
established under Annex 6 of the Dayton Agreements, is a hybrid institution. As
indicated above, it is one of the two branches of the Commission on Human
Rights (provided for by Article II, para.1 of the Constitution of BH and Annex
6 of the Dayton Agreements, Chapter II, Part A), the other being the Human
Rights Chamber. The two institutions are jointly responsible for investigating
manifest or alleged violations of human rights enshrined in the European
Convention for the Protection of Human Rights and Fundamental Freedoms
("ECHR") and its protocols, and instances of discrimination in the
exercise of fundamental rights enshrined in other human rights instruments. The
Ombudsperson is therefore an institution empowered to receive and investigate
complaints and rule on their merits. It draws up a report stating whether there
has been a violation of human rights or not, and if so, may make
recommendations for securing just satisfaction. If the party at fault fails to
reply or refuses to comply with its conclusions, the Ombudsperson transmits its
report to the High Representative and the Presidency and may also refer the
matter to the Human Rights Chamber.
The Ombudsperson's mandate gives rise to a broad
range of interpretations. The institution's powers, tasks and options are in
fact sometimes incompatible with one another. Annex 6 does not prevent the
Ombudsperson from issuing findings that there have been human rights violations
(even without giving reasons) or from frequently exercising the power to make
recommendations, which may be coupled with the threat of enforcement by the
High Representative. This would make the Ombudsperson's function comparable to
that of a powerful executive body, but it seems doubtful whether such an
approach is consistent with the institution's stated purpose (to assist the
parties in complying with the ECHR).
Here too, difficulties stemming from the conceptual
problems surrounding the institution have had to be dealt with during the first
few years of its operation. The Office of the Ombudsperson was set up very soon
after the conclusion of the peace agreements and was for a long time the only
operational institution of those provided for by Annex 6 to the Dayton
Agreements;
it took on the task of introducing the ECHR into Bosnia and Herzegovina's legal
system, precisely to help BH comply with its commitments under the Convention,
which is directly applicable in BH. Whatever the authors of Annex 6 had in
mind, this task has been carried out successfully, with the result that the
institution has acquired a quasi-judicial status. Yet this too seems hard to
reconcile with the intrinsically non-judicial nature of all ombudsman
institutions.
IV. CHANGES
IN THE FUNCTIONS OF OMBUDSMAN INSTITUTIONS IN BOSNIA AND HERZEGOVINA
Despite the social, political and legal difficulties
confronting the ombudsman institutions in Bosnia and Herzegovina, the results
of their work are becoming increasingly visible. In their activity report for 1997
the Ombudsmen of the Federation note that despite the difficulties encountered,
the institution is gaining further recognition every day and its
recommendations and requests are increasingly complied with and accepted. The
1998 activity report of the Office of the Human Rights Ombudsperson for Bosnia
and Herzegovina shows a spectacular rise in the number of cases in which the
authorities have complied with its recommendations.
This development is simply the outcome of changes in
the functions of Ombudsman institutions in Bosnia and Herzegovina.
The Ombudsmen of the FBH have exercised the powers
conferred on them by the FBH Constitution with welcome caution. The fact that
they devote much of their work to dealing with individual applications (an
option not expressly provided for by the FBH Constitution, but arising from
their status as Ombudsmen) best illustrates their capacity to adapt the
institution both to the requirements of the present and to its future in a
state governed by the rule of law. Their reports increasingly show a genuine
concern to convince - rather than compel - with arguments based on both the
values and the provisions of the ECHR.
The Ombudsperson was in a position to increase its non-judicial
activity and has indeed done so. The working group indicated in its interim
report that the Ombudsperson needed to gear its activities to standard
mediation tasks, even before the end of the transitional period. This process
is now well under way - a welcome development.
Indisputably, a cautious interpretation of their
mandates and an approach based on legal analysis of the cases before them are
bound to enhance the ombudsman institutions' prestige and credibility and
gradually instil a greater awareness and sense of responsibility into other institutions,
including the courts, as to the need for consistent application of the ECHR.
At the end of the day, the key to the success of
ombudsman institutions in BH seems to be their ability to adapt to society's
expectations and demands. It is essential for them to gear their action and
thinking both to changes in society and to the development of other
institutions' capacities. The Ombudsmen will make greater use of their
extensive and often unusual powers (provisional measures, applications to the Chamber
or the Constitutional Court, intervention in pending proceedings) as long as
they consider the organs of the state and the entities, including the courts,
to be functioning unsatisfactorily. However, as soon as the judicial and
administrative systems show signs of being able to function regularly and
satisfactorily, in line with the principles of the rule of law, the ombudsman
institutions will have to gradually reduce their involvement with the courts
and allow the institutions concerned to assume their rightful place and regain
the people's trust. Normalisation of the institutional situation in BH
necessarily entails a decrease in the Ombudsmen's powers; at the same time,
there can be no institutional normalisation as long as the Ombudsmen wield exceptional
powers. The success of the reconstruction of institutions governed by the rule
of law in BH will depend largely on the Ombudsmen's capacity to gradually adapt
their functions to changes in those of the other institutions.
In the draft laws it has drawn up, the working group
has tried to avoid hampering this process of change with rigid provisions. As a
result, the draft laws place no restrictions on the powers assigned to the
ombudsman institutions by the peace agreements, but condition and organise the
exercise of those powers while allowing the Ombudsmen broad discretion as to
their use.
The draft law on the Ombudsman of the RS takes the
same approach. It enables the institution to adapt its functions in the light
of the work of the entity's other institutions, but also the activity and
especially the experience of the Ombudsmen who have already been operating in
BH and the caution and creative sense with which they have carried out their
mandates.
The regulations governing relations between the
Ombudsmen of the FBH and the courts are a case in point.
The FBH Ombudsmen's relations with the judicial
system are one of the thorny issues of the FBH Constitution. The Venice
Commission has already expressed its anxiety on this point (see the Commission's
opinion on the Washington Constitution inCDL-INF(98)15, pp. 26-29). The
working group recognised the importance of the Ombudsman being able to
intervene before the courts in the event of manifest injustice. The draft law
offers scope for two forms of action consistent with the provisions of the
Constitution (assigning the Ombudsman a key role in the matter) and the crucial
independence of the courts: the Ombudsman can make recommendations to the
administrative departments of the court (or to the Judicial Council of the
Federation, when it exists) in cases where the problem concerns the
administrative functioning of a court; it can also intervene as a party
empowered to appeal when the problem concerns the merits of the case and the
Ombudsman considers that this is necessary in order to perform its task of
protecting fundamental rights and erasing the consequences of ethnic cleansing.
Clearly, the Ombudsman must make use of this possibility in exceptional cases
only, before the highest courts of the entity. And in any event it is not for
the Ombudsman to make "recommendations" to the courts on the merits
of a case or the procedural rights of the parties.
A further example of flexible regulations giving the
Ombudsmen substantial room for manoeuvre is the matter of time-limits for
lodging applications. The group was in favour of introducing a time-limit for
lodging individual applications; this should make the sorting of cases easier,
without causing unfair consequences for the applicants or preventing the ombudsman
institution, which is empowered to act on its own initiative, from taking up
particular cases where it considers that they raise serious problems.
V. INDEPENDENCE AND IMPARTIALITY
The composition of ombudsman institutions must
ensure complete independence and impartiality. For the time being, this is
achieved by the international community's involvement in the appointment
process and by an "international" or multiethnic composition.
International involvement is by nature transitory and
the draft laws drawn up by the group include provisions to that effect. In the
medium and long term, therefore, the impartiality of the ombudsman institutions
will chiefly be guaranteed by their multiethnic composition and the open and
balanced nature of the appointment procedures. The provisions included in the
draft laws with regard to the composition of the ombudsman institutions and the
appointment of Ombudsmen are intended to ensure the broadest possible consensus
on the persons concerned. This is the only way of making the institution's
impartiality an objective fact, recognisable in the eyes of all citizens.
The individual and institutional independence of the
Ombudsmen is also guaranteed by rules on immunity, incompatibilities, staffing
and their budgets.
VI. DISTRIBUTION
OF COMPETENCIES AND CO-OPERATION BETWEEN OMBUDSMAN INSTITUTIONS IN BOSNIA AND
HERZEGOVINA
The group has reached the following conclusions on
the distribution of competencies between the ombudsman institutions in BH.
The jurisdiction of the Ombudsperson (henceforth
called "State Ombudsman") will in principle be confined to cases
concerning the state of Bosnia and Herzegovina and cases simultaneously
involving both entities; questions concerning a single entity will, in the medium
term, have to fall within the exclusive ambit of the Ombudsmen of the entities.
In the interim, however, the Ombudsperson will have to have parallel
competencies to those of the Ombudsmen of the entities.
While the Ombudsperson must concentrate more on the
area of mediation, it must for some time retain the possibility of referring
cases to the highest judicial authority competent to deal with human rights
issues, where circumstances so require.
There will be no hierarchical relationship between
the three ombudsman institutions in Bosnia and Herzegovina; each will function
independently. In particular, there must be no possibility of appealing to the
Ombudsperson against the decisions of an entity Ombudsman. The Ombudsperson
must be empowered to organise co-operation and consultation between the
institutions and to represent the ombudsman institutions of BH in the
international arena.
VII. IN THE LONGER TERM…
Lastly, the group wishes to emphasise that it has
not been asked to give an opinion on the question of whether it might be
possible to consider setting up a single ombudsman institution for the entire
administration of Bosnia and Herzegovina and its entities, instead of three
separate institutions. It notes that this question is not currently on the
agenda, particularly because the two ombudsman institutions set up in BH a few
years ago are operating satisfactorily. However, the question might arise in
the longer term.
English only
PRELIMINARY
DRAFT ORGANIC LAW
FOR THE STATE
OMBUDSMAN
OF BOSNIA AND
HERZEGOVINA
prepared by the
Working Group
on
Ombudsman-Institutions in Bosnia and Herzegovina
Nature
Article
1
The
State Ombudsman of Bosnia and Herzegovina (the State Ombudsman) shall be an independent
institution set up in order to protect the rights and liberties of natural and
legal persons, as enshrined in particular in the Constitution of Bosnia and
Herzegovina and the international treaties appended thereto, monitoring to this
end the activity of state and entity institutions in Bosnia and Herzegovina, in
accordance with the provisions of the present law.
Powers and jurisdiction
Article
2
The
State Ombudsman shall consider cases involving the poor functioning of, or
violations of human rights and liberties committed by any government
department, authority, or official or any other agency, including private
agency, performing public services
The State Ombudsman shall
act either on receipt of a complaint or on its own initiative.
The State Ombudsman may
undertake general investigations.
The
State Ombudsman may recommend the appropriate individual and/or general
measures.
The
State Ombudsman shall not consider cases concerning decisions, facts or events
prior to 15 December 1995.
Article 3
The
State Ombudsman's competence shall comprise the power to investigate all
complaints about violations of rights
and freedoms allegedly committed by the military administration.
Article 4
The
State Ombudsman's competence shall comprise the power to investigate all
complaints made about the poor functioning of the judicial system.
Without
prejudice to its power to refer cases to the highest judicial authority of the
State competent in human rights matters, the State Ombudsman can neither interfere
with pending court proceedings nor challenge the legality of a decision by a
court or tribunal. This shall not prevent the State Ombudsman from making
recommendations to the governmental body party to the proceedings or to be
consulted by the parties
In
case of non-execution of a court judgement, the State Ombudsman may recommend
the department concerned to give effect to the judgement within a time limit
indicated by the State Ombudsman. If the recommendation is not followed, the
non-execution of the court judgement shall be included in the annual or a
special report to the Presidency, the House of Peoples and the House of
Representatives.
Article
5
The
State Ombudsman shall have exclusive competence to deal with cases
-
concerning any institutions, authorities or agencies of
the State of Bosnia and Herzegovina;
-
concerning at the same time an institution, authority or
agency of an entity and an institution, authority or agency of the State of
Bosnia and Herzegovina;
-
concerning at the same time institutions, authorities or
agencies of both entities.
The
State Ombudsman may also deal with cases concerning an institution, authority
or agency of an entity, whenever it finds that the outcome of a case is of
particular relevance for the effective enjoyment of individual rights and
freedoms in Bosnia and Herzegovina as a whole.
If, at
any stage of the procedure, the State Ombudsman finds that a case does not fall
within its competence, as described above, it shall refer the case to the
entity Ombudsmen.
Article 6
The
State Ombudsman may refer cases of alleged human rights violations to the
highest judicial authorities of the State competent in human rights matters,
pursuant to the rules concerning appeals to these authorities, whenever it
finds that this is strictly necessary for the effective performance of its
duties under Article 1 of this law.
Article
7
The
activity of the State Ombudsman shall not be interrupted while the legislature
is not in session, either because it has been dissolved or because its term has
expired.
Emergency
situations shall not interrupt the State Ombudsman’s term of office.
Composition, appointment and
resignation
Article
8
Three
persons shall compose the institution of the State Ombudsman.
The three
Ombudsmen co-operate in the exercise of their functions. In carrying out their
activities, they will follow, to the furthest extend possible, the principle of
personal contact with the applicants. Investigating activity can be carried out
individually by each Ombudsman, but distribution of tasks among them shall not
rely on the criterion of ethnic origin of the applicant. In their suggestions,
resolutions and reports the three Ombudsmen act jointly.
Article 9
The
three Ombudsmen shall be appointed by the House of Representatives and by the
House of Peoples by a two-thirds majority of each House, following a joint
proposal by the Presidency.
The
appointment shall be held no more than three months after the joint proposal is
deposited with Parliament, and, in any case, no more than three months after
the date on which the vacancy occurs or on which one or all three of the
members of the State Ombudsman institution cease their functions.
Article
10
The
three Ombudsmen shall be appointed for a period of five years and may be
re-elected only once.
Any
Ombudsman elected following the resignation, or in replacement, of another
shall only serve for that part of the five-year term of office remaining and
may be re-elected only once.
Article
11
Any citizen
of Bosnia and Herzegovina of age enjoying full civil and political rights who
has a demonstrated experience in the field of human rights and is of recognised
and high moral stature may be elected as an Ombudsman
Article
12
An
Ombudsman’s duties shall terminate for any of the reasons below:
a.
His/her resignation;
b.
Expiry of his/her term of office;
c.
His/her manifest inability to perform his/her duties;
d.
Failure to give up an incompatible position as set forth
in Article 17 para 4;
e.
His/her conviction, and final sentencing, for of an
intentional offence.
An
Ombudsman’s post shall be declared vacant by the President of the House of
Representatives in the event of decease, resignation, expiry of the term of
office, or final conviction. In other
circumstances, the decision that a post is vacant shall be taken by a
two-thirds majority of the House of Peoples and the House of Representatives,
after a debate and following a hearing of the person concerned.
Once a
post is vacant, the Presidency shall make a proposal for appointing a new
Ombudsman within one month.
Where
a post or posts become vacant because of the expiration of office, the
Ombudsman or the Ombudsmen whose term has expired shall continue on an interim
basis to perform his/her/their duties until the appointment as provided for by
Article 9 has been completed.
When
one of the three Ombudsmen’s posts becomes vacant for a reason other than the
expiration of his/her term of office, the remaining Ombudsmen shall
provisionally perform his/her duties until the appointment of a new Ombudsman
has been completed.
Co-operation with
Ombudsman institutions of the entities
Article 13
The
State Ombudsman shall co-operate with and promote co-operation among Ombudsman institutions
in Bosnia and Herzegovina and shall facilitate the co-ordination of action
taken by the Ombudsman institutions in Bosnia and Herzegovina. In this respect
the State Ombudsman of Bosnia and Herzegovina shall in particular
-
establish a network of liaison officers to disseminate
information about the activities of the Ombudsman institutions in Bosnia and
Herzegovina among them, in particular information on pending cases;
-
organise regular meetings of the Ombudsman institutions
in Bosnia and Herzegovina;
-
organise seminars and workshops;
-
represent the Ombudsman institutions of Bosnia and
Herzegovina in international fora as
appropriate.
Article 14
The
State Ombudsman shall refer, in accordance with article 6, to the highest
judicial authority of the State competent to deal with human rights issues, any
case referred to it for this purpose by the Ombudsman institutions of the
entities. When referring such cases the Ombudsman shall also ensure that the
views of the entity Ombudsman institution is adequately presented to the
judicial authority concerned.
Immunities and
Incompatibilities
Article
15
The State Ombudsman
shall be under no specific orders. Within the framework of his/her constitutional
and legal competencies, each Ombudsman shall not be given instructions by any
authority. Each Ombudsman shall act independently, on the basis of the
institution’s own criteria.
Article 16
An Ombudsman
shall not be prosecuted, subjected to investigation, arrested detained or tried
for the opinions expressed or for the decisions taken in the exercise of powers
associated with their duties.
In all
other circumstances and insofar as he/she performs his/her duties, an Ombudsman
may not be arrested or detained, safe in case of flagrante delicto relating to an offence punished with imprisonment
of more than five years.
Decisions
to prosecute, to detain or to refer an Ombudsman to a court charged with a criminal
offence shall be taken after the House of Representatives and the House of
Peoples have lifted the above immunity. Solely a court at the level of the
State of Bosnia and Herzegovina shall be competent to try him/her.
Persons holding any office
or appointment under the State Ombudsman shall not be prosecuted, subjected to
investigation, arrested, detained or tried for any action, opinion or decision
taken while performing their duties upon the State Ombudsman’s instructions. In all other circumstances, whenever persons
holding an office under the State Ombudsman are arrested, detained or tried,
the prosecuting authorities shall duly and promptly inform the State Ombudsman.
Article
17
The
position of Ombudsman is incompatible with the holding of any representative
office; with any political activity or office or responsibilities of
propaganda; with continued activity in government service; with membership of a
political party or with the exercise of leadership of a political party, trade
union, association, foundation, or religious organisation or with employment by
any of these; with performance of the duties of a judge; and with any activity
in an occupation or profession, in commerce or in employment.
An
Ombudsman who is a civil servant enjoys the guarantee of reintegration in his
service at the end of his/her term of office.
An
Ombudsman shall, within ten days of his/her appointment, and before taking up
his/her office, forgo any position of potential incompatibility, failing which
he/she shall be regarded as having declined the appointment.
Where
incompatibility arises after an Ombudsman has taken up his/her duties, it is
understood that he/she shall give up his/her duties, within the meaning of
Article 12, on the date on which the incompatibility arises.
Investigation Procedure
Article
18
Any
natural or legal person claiming a legitimate interest may apply to the State
Ombudsman without any restriction. Nationality, citizenship, residence, gender,
minority, ethnicity, religion, legal incapacity, imprisonment of any kind, and,
in general terms, a special relationship with, or dependence on, a government
department or authority may not restrict the right to lodge a complaint with
the State Ombudsman.
Applying
to the State Ombudsman or the latter’s intervention shall not entail for the
applicant any criminal, disciplinary or other sanction or any disadvantage or
discrimination.
No
administrative body or authority or legal person of public law may complain to
the State Ombudsman about matters within its remit.
Article
19
Any
complaint must be signed and submitted by the person concerned, who shall
indicate his/her surnames, first names and address, in a document stating
his/her grounds, written on plain paper. A complaint presented in a less formal
manner may be accepted where the State Ombudsman finds that circumstances so
require.
All
the work of the State Ombudsman is free of charge to the person concerned and
does not require the assistance of counsel or a solicitor.
Article
20
Correspondence
addressed to the State Ombudsman from places where individuals are held in
detention, in imprisonment or in custody may not be the subject of any kind of
censorship.
Conversations
between an Ombudsman or persons delegated by the State Ombudsman and any of the
persons listed in the previous paragraph may never be monitored or interfered
with.
Article
21
The
State Ombudsman shall register and acknowledge receipt of the complaints
submitted, whether it considers that they should be pursued or not. When the State Ombudsman decides not to
pursue a complaint, it shall do so in writing, explaining the grounds and
informing the person concerned of the most appropriate means of taking action,
if any exist, leaving it to the person concerned to use those which he/she
considers most suitable.
The
State Ombudsman may refuse to pursue anonymous complaints and complaints which
it considers to have been made in bad faith, which are ill founded, which
include no claim, which entail damage to the legitimate rights of a third
party, or which were lodged with the State Ombudsman more than 12 months after
the facts, events or decisions complained of.
Article 22
No
appeal lies against the decisions of the State Ombudsman.
Article
23
When
the State Ombudsman decide that a complaint or a matter considered ex officio offer sufficient grounds for
investigation, it shall inform the body or administrative service concerned of
the material part of the case, so that the person in charge can submit a
written statement within a time-period indicated by the State Ombudsman. This
time limit may be extended when circumstances so require.
The
State Ombudsman may demand at any time any document it deems necessary for the
investigation.
Article 24
Where, during the
investigation, the State Ombudsman finds that the execution of a decision of
the administration can result in irreparable prejudice for the rights of the
complainant, it can suggest the competent authority to suspend the execution of
the challenged measure until the expiry of
a period of no more than ten days. The authority concerned may refuse to
comply with the suggestion, explaining, in a written document addressed to the
State Ombudsman, within three days from the receipt of the suggestion and in
any case before executing the challenged measure, the reasons thereof, failing
which, the suggestion becomes mandatory for the authority.
Obligation to co-operate with
the Ombudsman
Article
25
Governmental,
judicial and all public authorities and agencies in Bosnia and Herzegovina and
the entities, including private agencies performing public functions are
obliged to provide the State Ombudsman with preferential assistance in its
investigations and inspections.
During
the investigation, the State Ombudsman, or a person to whom the Ombudsman has
entrusted investigation tasks, may present himself/herself at any governmental
office or agency or service in order to check all the requisite information,
conduct personal interviews or study the necessary files and documents.
The
State Ombudsman may not be denied access to any file or administrative document
or to any document relating to the activity or service under investigation,
without prejudice to the provisions of Article 28 of the present law.
Article
26
When
the case under investigation concerns the conduct of persons employed in
government service and is connected with the duties they perform, the State
Ombudsman shall inform the person concerned and either his/her superior or the
body to which he/she is attached and may demand written statements.
The
official concerned shall reply in writing and submit all the documents and
evidence which he/she considers relevant, within the time limit indicated to
him/her. Upon request, the time limit may be extended.
The
State Ombudsman may check the veracity of the elements submitted and propose a
hearing of the official involved in order to obtain further information.
Officials who refuse this hearing may be required by the State Ombudsman to
give a written explanation of the reasons for their refusal.
The
information provided by an official during an investigation through personal
evidence is confidential, without prejudice to the provisions of the criminal
legislation on the denunciation of acts, which may be of the criminal nature.
Article
27
Superior
officials or bodies which prohibit officials subordinate to them or in their
service from responding to a request from the State Ombudsman or from being
heard by it shall declare that they have done so in a written document, stating
their grounds. This document shall be communicated to the official and the
State Ombudsman. The State Ombudsman shall then approach the said superior in
respect of all the operations necessary to the investigation.
Confidential and Secret
Documents and Duty of Discretion
Article
28
The
State Ombudsman may require the public authorities to hand over any documents
he/she considers necessary to perform his/her duties, including those
classified as confidential or secret in accordance with law. In such cases, the Ombudsman shall apply the
requisite discretion to these and shall not make them available to the public.
Investigations
conducted by the State Ombudsman and its staff, including procedural measures,
shall be conducted with the greatest discretion, where both individuals and
public services and bodies are concerned, without prejudice to the
considerations which the State Ombudsman finds it appropriate to include in the
reports. Special protective measures
shall be taken in respect of documents classified as confidential or secret.
Where
the State Ombudsman believes that a document classified as confidential or
secret and not handed over by the government could be crucial to the proper
conduct of the investigation, he/she shall advise the Presidency of this fact.
The Responsibility of
Authorities and Officials
Article
29
When
the investigation reveals that an abuse, an arbitrary procedure,
discrimination, an error, negligence or an omission complained of was perpetrated
by an official, the State Ombudsman may communicate this finding to the
official concerned. On the same date, it shall transmit the same document to
the official’s superior and set out the recommendations it considers pertinent.
Article
30
When
the State Ombudsman in the exercise of its duties becomes aware of conduct or
acts which seem to be offences, it shall immediately advise the competent
prosecuting authority
Article
31
If a
hostile attitude or an attitude impeding the investigation of the State
Ombudsman is maintained by a body, officials, holders of positions of
responsibility or members of a public service, this may be the subject of a
special report and shall be mentioned in the corresponding part of the annual
report.
Where an
official impedes an investigation by refusing to send documents required by the
State Ombudsman, or through negligence in sending such documents or by refusing
the State Ombudsman access to administrative files or documents necessary to
the investigation, the State Ombudsman shall send the relevant file to his/her
superior or to the competent prosecutîng authorities for the appropriate
disciplinary or penal action to be taken, in accordance with the law.
Where the
competent authority fails to take action, the Ombudsman may, in substitution
for this authority, institute disciplinary proceedings against the official
responsible or, where appropriate, bring the case before a criminal court.
Recommendations
Article
32
The
State Ombudsman may make recommendations to government authorities and
officials with a view to the adoption of new measures. In every case the authorities and officials
are obliged to reply in writing and inform the State Ombudsman of the effect
given to the recommendations within a period indicated by the State Ombudsman.
If,
once recommendations have been made, the administrative authority concerned
does not take appropriate measures within the time indicated by the State
Ombudsman, or if it does not inform the State Ombudsman of the reasons for not
doing so, the State Ombudsman may draw the attention of the Minister
responsible for the department concerned or of the highest authority of the
government department concerned to the course of the case and to the
recommendations made. Should the State Ombudsman, following this, obtain no
satisfaction in a case where it considers that it would have been possible to
find a positive solution, it shall include the matter in the annual or in a
special report, mentioning the names of the authorities or officials taking
this attitude.
The
State Ombudsman has no power to amend or annul government measures or orders,
but may suggest the amendment of the criteria used in their adoption.
When,
following the examination of a case, the State Ombudsman finds that the manner
in which a rule is implemented leads to inequitable results, it may address to
the competent governmental body any recommendation capable of leading to a fair
solution to the situation of the affected individual. The State Ombudsman may
suggest to the competent authority the measures likely to remedy the
complainant's situation, including payment of damages, and propose in the
institution’s annual or special report those amendments to Laws and regulations
it finds appropriate.
If the
activities complained of have been carried out on the occasion of services
provided by private persons under a contract of concession of public service,
the Ombudsman may ask the competent administrative authorities to exercise
their powers of inspection and punishment.
Notification and Communication
Article
33
The
State Ombudsman shall inform the person concerned of the result of its
investigations and activities and of the reply given to it by the government
department or the official concerned, unless the reply, by its nature, is to be
considered as confidential or secret.
The
State Ombudsman shall communicate the positive or negative findings of the
investigations to the authority, official or administrative department
concerned.
The State
Ombudsman may decide to publish its general recommendations in the Official
Gazette.
All
other recommendations of the State Ombudsman shall be accessible to the public,
except in cases where they relate to matters which are confidential or secret, or
where the complainant expressly requested that his/her name and the
circumstances of the complaint should not be revealed.
Reports
Article
34
The
State Ombudsman shall each year communicate the result of the institution's
activities in a report to the House of Representatives, the House of Peoples
and the Presidency of Bosnia and Herzegovina.
Where
the public prominence or urgency of the facts so require, the State Ombudsman
may submit a special report.
Annual
reports and any special reports shall be published.
Article
35
In the
annual report, the State Ombudsman may state the number and nature of the
complaints received, indicate which were not pursued and the reasons thereof,
and which were the subject of an investigation, and the findings of this; the
State Ombudsman may also specify those suggestions or recommendations accepted
by the government.
The
report shall contain no personal data enabling the persons involved in the
investigation procedure to be publicly identified, without prejudice to the
provisions of Article 31.
The
report shall also contain an appendix intended for the Presidency, which shall
show the expenditure of the institution’s budget during the period covered.
Rules of Procedure
Article
36
The rules
governing the operation of the State Ombudsman shall be laid down in compliance
with the provisions of this law by the three Ombudsmen themselves, in Rules of
Procedure which shall be published in the Official Gazette.
Staffing and Equipment
Article
37
The
State Ombudsman may freely staff the institution’s office(s) and appoint
advisors as needed, in accordance with the Rules of Procedure and within the
budgetary limits.
The
State Ombudsman staff shall be appointed and dismissed by the State Ombudsman.
Article
38
The
State Ombudsman advisers shall be automatically dismissed when the new
Ombudsman appointed by the House of Representatives and the House of People
take up duties. They may be re-appointed.
Members
of the State Ombudsman staff who are civil servants enjoy the guarantee of
reintegration in their service at the time of their dismissal.
Article
39
Upon
proposal by the State Ombudsman, the financial appropriation necessary to the
functioning of the institution shall be included in the budget of the
Presidency.
TRANSITIONAL
PROVISIONS
Article 40
As
from the entry into force of the present law, the Office of the Human Rights
Ombudsman (Human Rights Ombudsperson) provided for in Annexe 6 to the Dayton Agreement
shall be called “Office of the State Ombudsman of Bosnia and Herzegovina” and
shall perform its duties in accordance with the provisions of this law.
Article 41
Until
31 December 2003, there shall be one State Ombudsman of Bosnia and Herzegovina
(the transitional State Ombudsman), appointed by the Chairman in office of the
OSCE after consultation with the Presidency, the Chairman of the House of
Representatives and the Chairman of the House of Peoples of Bosnia and
Herzegovina. The transitional State Ombudsman may not be a citizen of Bosnia
and Herzegovina or any neighbouring state.
Any
person performing the duties of the Human Rights Ombudsperson of Bosnia and
Herzegovina at the time of the entry into force of the present law may be
appointed as transitional State Ombudsman of Bosnia and Herzegovina in
accordance with the provision of the previous paragraph, provided that his/her
term of office as a whole does not exceed five years.
The
transitional State Ombudsman shall continue to perform his/her duties until the
appointment of the Ombudsman pursuant to the provisions of Chapter III of the
present Law.
Article 42
The
transitional State Ombudsman shall be accorded all privileges and immunities
specified in Article III, para 4 of Annexe 6 to the Dayton Agreement.
Article 43
The
provisions in this law concerning budget appropriation, appointment of staff
within budgetary limits and reports to the Presidency on budgetary liquidation
shall not apply to the transitional State Ombudsman.
Article 44
The
transitional State Ombudsman shall communicate his/her annual and special
reports to the Presidency, the House of Representatives and the House of
Peoples and to the Office of the High Representative
Article 45
Five
years after the present law comes into force, the State Ombudsman may propose
to the Parliamentary Assembly of Bosnia and Herzegovina, in a report containing
reasons, the amendments which it considers should be made to it.
English
only
Explanatory
notes
on the
preliminary draft organic law
on the State
Ombudsman of Bosnia and Herzegovina
1.
Context
The proposed draft organic law is to be read in
conjunction with article XIV of Annex 6 to the Dayton Peace Agreement. This
provision stipulates that five years after the entry into force of the
Agreement, the responsibility for the continued operation of the Human Rights
Ombudsman shall transfer from the parties to the institutions of Bosnia and
Herzegovina. The draft organic law aims at providing the legal framework for
the operation of an Ombudsman institution at the State level, under the
responsibility of Bosnia and Herzegovina.
2.
Appellation
The Working Group has found the appellation “State
Ombudsman of Bosnia and Herzegovina” to be more suitable for a permanent
Ombudsman institution than the actual “Human Rights Ombudsman” (or
“Ombudsperson”) used in the Dayton Peace Agreement and in practice. The
activities of the future permanent Ombudsman institution should cover but not
be limited to human rights violations. They should cover all kinds of
mal-administration, even when they do not amount to human rights violations.
Moreover, as explained in the general report, it is primarily for the judicial
institutions of Bosnia and Herzegovina and its entities to protect individual human
rights, the Ombudsman being in this respect a parallel and supplementary,
although necessary, means for protection.
The term “State Ombudsman” also underlines the fact
that the Ombudsman of Bosnia and Herzegovina is the central Ombudsman
institution of this State, in contrast with the Federation Ombudsmen and the
future Ombudsman for the Republika Srpska who are entities’ institutions. This
is also important for the co-ordination and representation tasks that the State
Ombudsman shall have under the proposed law.
3.
“Three persons shall compose
the institution of State Ombudsman”
As indicated in the general report, the
“multi-ethnic” composition of the institution is an essential element of its
impartiality and, consequently, of its effectiveness. Article 8 of the draft
law, by providing that three persons compose the institution, makes the
“multi-ethnic” composition possible and necessary. The Working Group has not
find it necessary to refer expressly in the law to the constituent peoples of
Bosnia and Herzegovina. It is a matter of common sense and of elementary
political responsibility to guarantee in the composition of the institution the
equilibrium necessary for its effective functioning.
4.
“the
Ombudsman”, “an Ombudsman”, “the Ombudsmen”
In the draft, the term “Ombudsman” or “State
Ombudsman” is used to designate the institution as a whole; “an Ombudsman” is
used for one of the three persons composing the institution; “the Ombudsmen” is
used to designate the three persons composing the institution.
5.
“Decisions, facts, or events
prior to 15 December 1995”
In accordance with the proposed Article 2, in fine, the State Ombudsman shall not
consider cases concerning decisions, facts or events prior to 15 December 1995
(date on which the Dayton Peace Agreement has entered into force). This does
not of course prevent the State Ombudsman from dealing with cases, which relate
to decisions, facts or events which occurred before the above date but whose
effects continue after that date (continuing situations).
6.
Time limit for individual
applications
Article 21 para 2 provides that the State Ombudsman
may refuse to pursue complaints that are lodged with it more than 12 months
after the decisions or facts complained of. This time-limit, which appears necessary
in order to guarantee legal security and the rights of others, does not prevent
the Ombudsman from taking up the same case ex
officio, when it finds that circumstances so require.
7.
Relations between the State
Ombudsman and the entities’ Ombudsman institutions
Because it is the Ombudsman institution of the State
of Bosnia and Herzegovina, the State Ombudsman is entrusted with the task of
co-ordinating the activities of the entities’ Ombudsman institutions and of
representing all Ombudsman institutions in Bosnia and Herzegovina as
appropriate. Of course, a close co-operation between the State Ombudsman with
the entities’ Ombudsman institutions is indispensable. In particular, as
regards international representation, the State Ombudsman shall take the
necessary steps to ensure that the entities’ Ombudsman are participate or are
adequately represented in all relevant international fora (see Article 13).
8.
Distribution of competence
between the State Ombudsman and the entities’ Ombudsman institutions
The State Ombudsman has exclusive competence to deal
with cases concerning authorities of the State and cases involving at the same
time authorities of the State and of an entity or of the two entities (see
Article 5).
Of course, pending the creation of the RS Ombudsman,
the State Ombudsman will also be exclusively competent to deal with all cases
concerning authorities in the RS.
However, the State Ombudsman shall also continue to
have competence to deal with any cases in Bosnia and Herzegovina, even a case
concerning authorities of one entity, as is the situation now, under Annex 6 to
the Dayton Agreement. This is
considered necessary for ensuring a coherent Ombudsman praxis all over
Bosnia and Herzegovina and for enabling the State Ombudsman to give guidelines
and transfer its know-how to the new Ombudsman institutions of the entities, in
particular the Ombudsman of the RS. The draft organic law provides that the
State Ombudsman shall use this competence whenever “it finds that the outcome
of this case is relevant for effective enjoyment of individual rights and
freedoms in Bosnia and Herzegovina as a whole”.
Since clear entity cases can be dealt with by the
entities’ Ombudsman institutions, the State Ombudsman is expected to make a
careful use of this power, intervening in these clear entity cases only when
this appears absolutely necessary. Quite naturally, the transitional State
Ombudsman may make a frequent use of this power in order to ensure the coherent
Ombudsman praxis wished. However, it is to be expected that in the long run,
when the smooth functioning of all Ombudsman institutions in Bosnia and
Herzegovina will be achieved, such interventions will be very exceptional.
9.
Relations with the judiciary
The State Ombudsman has the power to bring cases
before the highest judicial authority competent to deal with human rights
violations, i.e. the Human Rights Chamber, as long as it exists. However, the
State Ombudsman does not perform any quasi-judicial functions, as the Human
Rights Ombudsperson in the Annex 6 to the Dayton Peace Agreement. As indicated
in the general report, the relation of the Ombudsman with the judiciary is a
delicate issue. The Ombudsman’s power to bring cases before courts may be of
particular importance in societies in transition but entail the risk of
frustrating the confidence that should prevail in the relations between the
administration and the Ombudsman.
Consequently, the use of the Ombudsman’s power to
bring cases before the highest court competent to deal with human rights must
be very careful. The Ombudsman is expected to make use of this power only when
it finds that this “is strictly necessary for the effective performance of its
duties”. This may be frequent in the period of transition but it will become
less frequent (and at the end exceptional) as the development of democratic
institutions and the consolidation of the Rule of Law will progress.
The State Ombudsman shall also refer to the highest
court competent to deal with human rights issues cases referred to it for this
purpose by the entities’ Ombudsman institutions (Article 14). This provision
consolidates an already existing practice and allows entity Ombudsman
institutions to bring cases before the highest court of the State. Of course,
this is to be done through the State Ombudsman and the latter should not be
regarded as a mere “post office box”. Pursuant to Article 6 (to which express
reference is made in Article 14) the State Ombudsman may consider whether the
reference of a case to the highest court is necessary for the effective
performance of its duties. Naturally, the State Ombudsman shall recognise that
the entities’ Ombudsman institutions have a margin of appreciation in this
respect, but the State Ombudsman must be able to refuse reference whenever it
finds that this does not serve the aims of the Ombudsman institutions in Bosnia
and Herzegovina.
Whenever the State Ombudsman brings to the highest
judicial authority competent to deal with human rights issues cases in
accordance with article 14, it shall allow the competent entity Ombudsman to be
adequately represented in the proceedings. This will often mean that it will be
for the entity Ombudsman to plead the case.
It is of course understood that all the above shall
take place in accordance with the rules governing the appeals to the highest
judicial authority competent to deal with human rights matters.
10. Transitional provisions
The draft organic law contains several transitional provisions,
including provisions on a “transitional State Ombudsman” to ensure transition
from the actual Hguman Rights Ombudsperson into the multi-ethnic State
Ombudsman. It is to be noted that, in order to preserve some continuity in the
institutions practice, the provisions concerning automatic dismissal of
advisers (Article 38) only apply to the State Ombudsman and not to the
transitional State Ombudsman. Of course, the transitional State Ombudsman can
at any time apoint and dismiss staff, including any advisers, pursuant to
Article 37 para. 2.
