The Venice Commission has constantly and consistently promoted the creation and strengthening of the Ombudsman institutions and has systematically emphasised the Ombudspersons’ key role in the protection of human rights.
The Venice Commission highly values the Ombudsman’s task to alert the legislator if a law runs counter human rights, and promotes full access by the Ombudsman to the Constitutional Court in order to amend or remove such laws from the national legal order.
Spreading an administrative culture conducive to human rights protection is another key function of the Ombudsman institution. Many problems with human rights arise also from the implementation of laws, either in individual incidents or as large-scale administrative malpractice. With its investigative powers and its capacity to detect structural shortcomings, the Ombudsman institution can recommend to change structures or behaviours, and raise the administrative agents’ awareness about fundamental rights and freedoms.
The Ombudspersons carry out investigations following a complaint or on their own initiative. They are easily accessible and act as an intermediary, as a constructive relay between the individual and the public bodies, having the confidence of both the aggrieved person and the public body.
Human rights suffer infringements due to insufficient legal 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 and of their means to get redress, thereby contributing to the development and strengthening of a human rights culture within society.
In order to fulfil their safeguard function properly, the Ombudsman institutions themselves need a range of safeguards. The Venice Commission has always urged states to give the Ombudsman a constitutional basis to protect one of its most basic features, its independence, and enable its effective and impartial functioning.
25 “Venice Principles” - Democratic ABCs for ombudsman institutions
Following various threats to these institutions in recent years, in June 2017, the Commission decided to codify, on the basis of its previous work, a set of constitutional and legal principles (so-called "Venice Principles") specifically devoted to the Ombudsman institution. A broad process of consultation and exchanges on the "Venice Principles" with Ombudsman Institutions from all over the world as well as with the international stakeholders took place in 2018. The Council of Europe’s Steering Committee for Human Rights played an active role in the process. Amongst the mediator associations and international partner organisations involved in the development of this text are the International Ombudsman Institute, a global association of ombudsman institutions from/of more than 100 countries, and the UN Office of the High Commissioner for Human Rights. The draft text was adopted by the Venice Commission in March 2019.
Ombudsman institutions now have a unique international reference text listing the legal principles essential to their establishment and functioning in a democratic society: The Principles for the Protection and Promotion of the Institution of the Ombudsman, or “The Venice Principles”.
Drawn partly from a diversity of existing models in the world, the 25 principles are the most comprehensive checklist ever compiled, ranging from election or dismissal and mandates of mediators, to financial and material guarantees that are necessary for the proper functioning and independence of ombudsman institutions.
They are meant to consolidate and empower ombudsman institutions, which play a crucial role in strengthening democracy, the rule of law, good governance and the protection and promotion of human rights and fundamental freedoms.
The Venice Commission hopes that its new reference text will guide and support the proper establishment and functioning of ombudsman institutions, the stability of democracies and the protection and promotion of fundamental rights.
The Venice Commission adopted opinions on the legal framework for the operation of the Ombudsman institution in a number of countries including Armenia, Azerbaijan, Bosnia and Herzegovina, Kazakhstan, Kosovo, Luxembourg, Montenegro, the Republic of Moldova, Serbia and “the former Yugoslav Republic of Macedonia”. The Commission also adopted an Opinion on the national institution for the protection of human rights in Tunisia and another one on the human rights and equality body of Malta.
In these opinions, the Commission recommended providing the Ombudsman institution with greater competences, a clear constitutional and legal basis and sound guarantees for its independent, effective and impartial operation, including an immunity regime and appropriate human and financial resources.
In its 2018 opinion on the draft law of “the former Yugoslav Republic of Macedonia” on prevention and protection against discrimination, the Commission notably insisted on the necessity of providing additional safeguards so as to ensure a real independence for the Commission for Protection against Discrimination, as the main equality body, empowered by the Law to fight against discrimination.
The Venice Commission’s 2018 opinion on the human rights and equality body of Malta recommended expanding the functions of that body and strengthening the guarantees of its independence.
The 2017 opinion on Article 37 of the Law on the People’s Advocate of the Republic of Moldova concerned an amendment which would permit interference by the executive into the Ombudsman’s activities through taking from the Ombudsman the right to propose his/her own budget. The opinion stressed that independence in budgetary matters is a part of the general independence and recommended not to adopt the proposed amendment.
In its 2016 opinion on the draft constitutional law on the human rights defender of Armenia the Venice Commission praised the draft as well-structured and going into the right direction but made recommendations concerning the process of selection of candidates to the ombudspersons’ position, and concerning functional Immunity of the ombudsperson.