|
Strasbourg, 21 March 2003
|
CDL-AD (2003) 7
Orig. Engl.
|
|
Opinion N° 236/2003
|
|
EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
ON
THE DRAFT LAW
ON THE
PUBLIC ATTORNEY (OMBUDSMAN) OF
“THE
FORMER YUGOSLAV REPUBLIC OF MACEDONIA”
Adopted by the
Venice Commission
at its 54th
Plenary Session
(Venice, 14-15
March 2003)
on the basis
of comments by
Ms. Serra Lopes
(Substitute-member, Portugal)
Introduction
By letter dated 3 April 2003, the
Ministry of Justice of “the Former Yugoslav Republic of Macedonia” requested to
provide an opinion on the Draft Law on the Public Attorney (Ombudsman) (CDL (2003) 19). Following
this request, the Venice Commission appointed Ms Serra Lopes as rapporteur on
this issue. The Commission adopted her comments (CDL (2003) 20) set out below
at its 54th Plenary Session (Venice, 14-15 March 2003).
A.
GENERAL COMMENTS
1.
The Draft Law
on the Public Attorney is a very good one and contains many statements to
applaud as, for instance, those of Articles 26 and 31, amongst many others.
2.
It seems to me
that the Public Attorney, as a unified institution, adds to the aims clearly
stated in the Ohrid Agreement of “promoting the peaceful and harmonious
development of civil society while respecting the ethnic identity and the
interests of all Macedonian citizens”. Actually, splitting the institution
into a Public Attorney for the majority and a deputy for the minority issues
would divide and add nothing to the desirable peaceful unification.
3.
In
Bosnia-Herzegovina it was created an Ombudsman which was composed of three
persons of three different ethnic origins. But even that Ombudsman is a unified institution, as all the claims
are appreciated by the three persons and for each claim there is a unique decision signed by the three. Besides,
it is envisaged that, in a near future, having three persons will no longer be
necessary.
4.
In this
case, I fear that the possible division, with the consequent different
decisions and different approaches to the problems, would weaken the role of
the Ombudsman and lead to other divisions.
B. COMMENTS ON SPECIFIC ARTICLES OF THE LAW
DRAFT
I - BASIC PROVISIONS
Article 2: The Public Attorney is a
body of the Republic of Macedonia that protects the constitutional and legal
freedoms and rights of citizens when they have been violated with acts, actions
and failures by bodies of state administration and by other bodies and
organisations having public mandates, and who undertakes actions and measures
for the protection of the principle of indiscrimination and appropriate and
just representation of the members of the communities in bodies of state
government, bodies of the units of local self-government and public
institutions and services.
1. Legal
persons cannot apply to the Public Attorney? This limitation impoverishes the
potential scope of action of the Public Attorney. According to information
provided, this could be a problem of translation, though.
2. The word “citizens” reduces the
possible field of action of the Public Attorney.
3. It is true that Article 77 (2) of the Annex A
to the Ohrid Agreement says that “The Public Attorney protects the rights of
citizens when violated.”
It is also true that the Basic Principles of the same Agreement
refers to “citizens”. Anyhow, some provisions of Annex A have references
to the word “person” like in Article 7 (4) “Any person living in”, or Article 8 (1) “equitable
representation of persons belonging”.
Maybe it could be possible, with a view to widening the scope of the Law, to
use the word “persons” instead of “citizens”.
II - TERMS
OF APPOINTMENT AND DISCHARGE OF THE PUBLIC ATTORNEY
Article 5: The Assembly of the
Republic of Macedonia shall elect and discharge the Public Attorney with a
majority vote of the total number of representatives belonging to the
communities that do not constitute the majority in the Republic of Macedonia.
The Public Attorney is elected for a term of eight years, with the right to a
second term in office. …
1. The
way according to which an Ombudsman is appointed is of the utmost importance as
far as the independence of the institution is concerned and the
independence of the Ombudsman is a crucial corner stone of this institution.
In order that the Public
Attorney’s investigations will be credible to both public and the government,
the procedure of appointment must be a transparent one. In addition, the
procedure of appointment must be an election, as set out in the Draft Law.
Besides, the appointment of the Public Attorney by a
large majority of Members of the Parliament (MPs) is a warrant that the person
chosen is supported by a large part of society, with the consequences thereof
like independence and impartiality.
What the Draft Law does not regulate is
how someone is proposed to the election. Who proposes? How many candidates must
be proposed?
2. The statement of Article 5, first
paragraph, is not quite clear to me. However, according to Article 77 of
Annex A to the Framework Agreement, 13 August 2001, I assume that the Public
Attorney is appointed by a majority of votes of the total number of MPs, within
which majority there must be a majority of votes of the total number of MPs who
belong to non-majority communities in the Republic of Macedonia.
In other words, is it necessary that the
Public Attorney gathers the majority of the total number of votes in the
Parliament and the majority of the
total number of votes of MPs not belonging to the majority community in Parliament? If that is so I fully agree.
3. In the same first paragraph, does the clause
“with the right to a second term in office” mean that he may, eventually, be
reappointed, according to a similar procedure of the first appointment?
If it is so, it would be better to make it
clear, in order to avoid misunderstandings.
If it is not so, if the Public Attorney has the right to a second term — what
would seem odd — than it should be clarified and said what that “right” depends
on. Otherwise it would be easier to say
that he is appointed for a period of 16 years. And this also would seem odd.
The Commission was informed that
this issue might be due to a problem of translation.
Article 6: A person who meets the
general requirements determined by the act on employment in state bodies, who
is a law graduate with over nine years' work experience in legal matters and
with a proof of positive performance in the field of the protection of the
rights of citizen, may be elected Public Attorney. …
Usually the
Ombudsman does not have the power to make decisions that are binding on the
government and the Ombudsman makes recommendations. In most countries
the power of the Ombudsman resides exactly in this lack of power.
This is one of the reasons why some laws state that the appointment of the
Ombudsman may only fall upon a citizen who enjoys a well–established reputation for integrity and independence, or any
similar formulation.
I would advise to add something of the kind to the requisites necessary
(Article 6) to be elected Public Attorney.
Article 7: Prior to coming to
office, the Public Attorney shall take an oath before the Assembly of the
Republic of Macedonia, which reads as follows: "I swear that I shall carry
out the office of Public Attorney conscientiously, impartially and responsibly,
protect the rights of citizens and abide by the Constitution, laws and
international treaties ratified in accordance with the Constitution of the
Republic of Macedonia."
1. If it is
accepted to enlarge the field of action of the Public Attorney in order to
include all the persons that, not being “citizens”, like foreigners
residing in the territory or legal persons, should also be under the protection
of the Public Attorney, than the oath contained in this Article should be
rephrased accordingly.
2. I assume
that the expression “international agreements” means the ratified
international treaties and international law binding Macedonia.
The
Commission was informed that this might be a problem of translation.
Anyhow,
it would be better to clarify it, not only in the oath contained in this
article, as well as in Article 3, second paragraph.
Article 8: The function of Public Attorney is incompatible with the performance of
another public function and profession or with being a member to a political
party.
The Public Attorney function should not be
compatible with another function or profession, public or private, neither with
the belonging to political parties or unions. It could eventually be compatible
with lecturing but, even in that case, the activity should be exercised without
compensation.
Article 9: The Public Attorney is discharged: 1) if he/she so requests; 2) if
he/she is sentenced for a criminal offence to an unconditional prison term of
at least six months; 3) if he/she permanently loses the psychophysical
capability of carrying out the office of Public Attorney, which is determined
on the basis of documented findings and the opinion of a competent medical
institution; 4) if he/she fulfils the conditions for retirement.
Each one of the situations described in 1),
2), 3) and 4) of this article is enough to discharge a Public Attorney. This
being so it seems advisable to make a slight alteration in this article in
order to make clear that the Public Attorney may be discharged on the ground of
each one of those cases.
III - JURISDICTION
AND MANNER OF WORK
Article 13(1): The Public Attorney
undertakes actions and measures to protect from unjust delay of court
procedures or from the work of the court services, as well as actions and
measures to protect from tardy performance of other administrative tasks and
jobs defined by law. …
Paragraph 1 of Article 13 touches a rather
delicate matter, as it is generally understood that the activity of the
Ombudsman should not interfere with the judiciary.
To say that the Public Attorney “shall
undertake actions and measures” is too vague. It should be stipulated which
“measures and actions” are at stake.
Article 15(2): A language that is spoken
by at least 20% of the citizens and its alphabet is also an official language
in the procedure being conducted before the Public Attorney.
1. I presume that Article 15, paragraph 2 will
only be applicable when there is a complaint presented by someone speaking
another language, spoken by at least
20% of the population, or when are in cause interests of that minority.
2. Here again the word “citizen” limits
the action of the Public Attorney. Besides, the concept of “citizen” is
a legal one. This is so much so that,
analysing this statement, I felt forced to use the words “population”
and “persons” instead of “citizens” whose exact meaning in
Macedonian Law I don’t know.
Article 17: The petition addressed to
the Public Attorney shall be signed and contain personal data about the
petitioner and contain the circumstances, facts and evidence on which the
petition is founded. The petition shall contain the body, organization,
institution or person to which the petition refers; it shall also be noted
whether the petitioner has already submitted legal remedies and which legal
remedies have been submitted. The petition to initiate a procedure is submitted
in writing or orally in minutes. There is no prescribed form for the petition
initiating a procedure. The petitioner is exempt from paying fees for the
procedure before the Public Attorney.
This article, as well as the previous one,
admits complaints presented by third persons. It is a good provision, as well
as it is a good measure not to impose many formalities to the presenting of
complaints.
Article 21: The Public Attorney shall not initiate a procedure based on a
petition: …
-
if the petition was submitted by an unauthorised person; …
-
if, based on the petition itself, the circumstances and facts
and evidence enclosed, it derives that it does not refer to a violation of the
constitutional and legal freedoms and rights against the petitioner by the
bodies of state administration and by other bodies and organizations having
public mandates, i.e. a violation of the principle of indiscrimination and
appropriate and just representation of the members of the communities in the
bodies of state administration, bodies of the units of local self-government
and public institutions and services of public interest;
Item 2
Sometimes, reading
a complaint put forward by an unauthorized person, the Public Attorney may
conclude that, although not authorised by reasons that, if known, could
eventually lead to exempt the authorisation, the complaint should be examined.
In those cases the Public Attorney should be
able not to discard the submission. (see Article 22)
Item 6
The Latin formula “id est” or “i.e.” used in this item,
although of generalized use in other countries —it is used in England and in
Portugal, for instance —, can eventually create problems of translation.
Article 22: If
the Public Attorney initiates a procedure on his/her own initiative or if
another person on behalf of the damaged party submits a petition, in order to
initiate a procedure it is necessary to obtain the agreement of the damaged
party that has had his/her constitutional and legal rights violated or has had
the principle of indiscrimination and appropriate and just representation of
the members of the communities violated. …
The request for “agreement” when the Public
Attorney begins a procedure on his own initiative, or when a third person
presents the complaint, may represent a severe limitation to the functioning of
these two rather good initiatives.
Actually, when the Public Attorney acts on
his own initiative, one could presume he knows better, and the agreement should
not be necessary.
On the other hand, when a third person
presents the claim, it should be possible for the Public Attorney to act
without agreement when it is impossible or very difficult to obtain it and he
thinks advisable to do without it, as said above in Article 21.2.
Article 26(3): In case when a violation of freedoms
and rights has been determined, the Public Attorney may announce the case in
the mass media at the expense of the body under Article 2 of this Law, to which
the case refers.
I assume that this paragraph applies to the
cases where obstruction to the work of the Public Attorney occurred and
infringement of freedoms and rights was in cause.
Article 30: (1) The Public Attorney, within he framework of his/her competence,
also follows the conditions in terms of ensuring respect and protection of
citizens' freedoms and rights and respect of the principle of indiscrimination
and appropriate and just representation of the members of the communities by
paying visits and having insights into the bodies of Article 2 of this Law.
(2) The Public Attorney may pay
visits and have insights under paragraph 1 of this Article even without prior
announcement and approval.
The meaning of paragraph 2 of this Article
does not seem clear enough. It could be rephrased.
IV – THE
PUBLICITY OF THE WORK
Article 37(3): The report of the Public Attorney is announced
in the mass media.
This provision says that the Public Attorney report shall
be announced in the mass media and, indeed, the media are the best allies of
Ombudsmen.
To be announced means that the report is
given to the media and that they can use it according to their right to inform
and their peculiar taste to explore and expose divergences and criticisms
existing among bodies of the State.
The Draft Law does not say that the report
shall be published by the mass media, but that it shall be announced in
the mass media, what is a quite different thing. The Commission was informed that
this issue might be based on a problem of translation.
One good
form of publicizing nowadays is to put things in the Internet.
Article 38(3): Special funds are
provided for the announcement of the reports, announcements and other
undertaken measures in the part of the budget earmarked for the Public
Attorney.
The “special funds provided for the
announcement of reports” does not contradict what was said above, as the
reports must be published, i.e.
printed, in order to be announced,
i.e. presented to the authorities and distributed among the different mass
media.
V - LEGAL POSITION OF THE
PUBLIC ATTORNEY
Article 41: The Public Attorney and Deputies to the Public Attorney, who have been
employed until their election, shall have the right to return to the job they
have done before or to another job that corresponds with the type and level of
their professional education, within three months since their mandate
terminated.
The right of the Public Attorney and his
deputies to return to the previous jobs includes public and private sectors or
only the public sector? This should be clarified.
Article 50: The Public Attorney adopts a Book of Procedures for his/her work.
The Book of Procedures specifies
the manner of work and the procedure before the Public Attorney.
In order to make the Public Attorney
institution more accessible to people and more widely known, it could be a good
idea to publicise the Book of Rules.
Here again, a very good way of publicising
something is to put it in the Internet.
