The Venice
Commission has constantly and consistently promoted the creation of the
institution of Ombudsman institutions, and their strengthening notably by giving them a
firm constitutional basis, by endowing them with full independence and by
vesting in them broad competences.
Not only has the
Venice Commission assisted states in preparing laws on Ombudspersons, but it has
also put itself at the disposal of Ombudspersons : in order to
strengthen the Ombudsperson, the Venice Commission is available for
amicus ombud opinions (Armenia
2007). Like the already well-established amicus
curiae briefs for constitutional courts, Ombudspersons have the possibility
to request a non-binding opinion of the Venice Commission on a specific question
which is not necessarily related to their mandate, but can be of general scope.
In these
opinions, the Venice Commission presents elements of comparative and
international law, and tries to avoid a final verdict on the
possible unconstitutionality of a text, a decision which a
constitutional court should take.
For the protection
of human rights, the Ombudspersons play an ever greater role.
In fact, far from being limited to revealing administrative malfunctioning,
their tasks encompass Human Rights protection as a central issue.
Strengthened
ombudspersons play a significant role in ensuring rapid and comprehensive Human
Rights protection. This is of course desirable on the
national level and, in addition, it has very practical effects in that it may
contribute to reducing the caseload of the European Court of Human Rights.
In respect to laws,
the Venice Commission highly values the Ombudspersons’ task to alert the
legislator if a law runs counter Human Rights and the Commission promotes
full access by the Ombudsperson to the Constitutional Court in order to
remove such laws from the national legal order.
Many problems with
human rights arise also from the implementation of laws, either in individual
incidents or as large-scale administrative malpractice. Doubtlessly, the
Ombudsperson, with his or her investigative powers and the capacity to
accumulate institutional knowledge – that is, to detect structural shortcomings
if there have been numerous petitions in a specific area -, can make invaluable
suggestions to the administrative bodies. He or she can recommend to change
structures or behaviours, raise the administrative agents’ awareness of the
scope of freedom of expression and, conversely, inform them on their
possibilities to intervene in the freedom. This is certainly one of the most
important functions of the Ombudsperson: He or she directly participates in
spreading an administrative culture conducive to Human Rights protection.
Most often,
Ombudspersons become active not on their own but after having received a
petition from the individual. They are easily accessible and act as an
intermediary, as a constructive relay between the individual and the public
bodies. This is possible because they have the confidence of both the aggrieved
person and the public body and can thus work out viable solutions. The Ombudsman is a
carrier of hope, especially in young democracies.
The
Ombudsperson has a broad range of tools at his or her disposal to find creative
solutions. Also, much can be achieved in individual cases through informal communication,
on the basis of the ombudsman's full personal integrity.
Human rights suffer
infringements through insufficient textual guarantees, difficulties in
implementation, but also because too many people are still not aware of their
rights and liberties. Well informed and independent Ombudspersons must play an
active part in counterbalancing shortcomings. The Ombudsperson,
by voicing problems, by acting publicly, raises the public’s understanding of
Human Rights - of their rights -, and of their means to get redress. The
visibility of the Ombudsperson contributes to the spread of a Human Rights
culture amongst a society, and even more so as he or she is just at the
crossroads between civil society and institutional actors, translating the each
party’s position into the other’s language.
In order to fulfil
their safeguard function properly, Ombudspersons themselves need a range of
safeguards. The Venice
Commission has always urged states to give Ombudspersons a constitutional
basis to protect one of their most basic features: Their independence -
Independence through constitutional guarantees means that the investigations
even against the body that appointed the Ombudsman are possible without
interference. Independence also means that the Ombudsman is perceived as being
credible and impartial by the people, without which the Ombudsman would be
ineffective.
The Ombudsperson
must him- or herself benefit from freedom of expression. Public authorities
should not have the possibility to arbitrarily limit the Ombudsperson’s capacity
to publish reports. Then, the Ombudsperson must be free from prosecution. An
immunity regime is another important ingredient to guaranteeing the
Ombudsperson’s capacity to work effectively.
Finally,
Ombudspersons can benefit from international cooperation in the often
delicate conduct of their mission. The Venice Commission provides an excellent
forum for Ombudspersons and will continue to work for a strengthening of these
valuable institutions.
The Venice
Commission will continue promoting strong Ombudspersons and is always at their disposal for
co-operation and amicus ombud briefs.
