Saturday

24th Oct 2020

Opinion

Defending the defenders: ombudsmen need support

  • EU ombudsman Emily O'Reilly is up for re-election in December (Photo: Irish Jesuits)

In a true democracy, it is critical that governments can be properly held to account for their actions.

But who do you turn to if the authorities violate your basic human rights or if they simply fail to do their jobs properly?

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One option is the courts.

However, this can be expensive and time-consuming. Taking a case to court requires legal assistance and often means following very formal procedures. Furthermore, public trust in the judiciary is not always high.

A simpler solution may be to seek the help of an ombudsman.

Ombudsmen exist in more than 140 states around the world, working at different levels – national, regional and local.

Their responsibilities may differ, but their main purpose is to look into complaints against the public authorities in cases of maladministration or violations of the basic rights of citizens or organisations.

Furthermore, the underlying principles of the work of an ombudsman are always the same: independence, objectivity, transparency, fairness and impartiality.

Ombudsmen can therefore be seen as a first line of defence when fundamental values are threatened, helping to solve problems whilst saving time and money for both sides involved in a dispute.

So far so good, but at a time when Europe's basic values are being challenged in many different places and in many different ways, the institution of the ombudsman can become a target, notably when ombudsmen act with independence and determination.

Like people, states generally do not really like being criticised or held to account. It limits their scope for doing as they please – something which is being tolerated less and less nowadays.

One consequence of this is that ombudsmen are often coming under attack or facing different kinds of challenges. These can include threats, legal action, reprisals, budget cuts or a limitation of their mandate.

If states are truly committed to upholding democracy and human rights, they need to protect ombudsmen from such threats and to make sure they can continue to do their work both independently and effectively.

But how?

The best way to protect any important structure is to build it on a firm foundation.

To help with this, the Council of Europe's Venice Commission, the world's leading body of international constitutional experts, has developed a new set of principles on protecting and promoting the ombudsman institution.

Drawn up following extensive consultations with ombudsman associations around the world and other international organisations – including the United Nations, the EU's Fundamental Rights Agency and the Organization for Security and Cooperation in Europe (OSCE)/Office for Democratic Institutions and Human Rights (ODIHR) – the Venice Principles set out a total of 25 recommendations to governments.

These cover a wide range of issues including giving the ombudsman a firm legal foundation, ideally at constitutional level, and setting out guidelines concerning their appointment and dismissal.

The principles state that ombudsmen should be individuals of a high moral character, possessing integrity as well as appropriate professional experience and expertise.

They must be appointed in a way that ensures their independence from political power - especially the executive. Their offices must also be given sufficient and independent financial and human resources to do their work effectively.

Any individual or group, including NGOs, should be able to file a complaint with an ombudsman free of charge and ombudsmen should not be given, nor follow, any instruction from the authorities.

During their investigations, the ombudsman should have unrestricted access to all relevant information as well as the power to interview relevant officials.

As a result of their work, ombudsmen should be able to address recommendations to state bodies, including calling on parliament and the government to amend or adopt legislation. Preferably, they should also be able to formally challenge the constitutionality of relevant laws and regulations.

The Venice Principles are not legally-binding as such.

Nevertheless, the Venice Commission's opinions and guidelines help to set legal standards across the continent – and beyond.

Adopted in March this year, the principles have already been endorsed by the committee of ministers of the 47-nation Council of Europe.

They are also due to be endorsed by the organisation's parliamentary assembly and congress of local and regional authorities.

All that remains now is for the Venice Principles to be fully embraced and properly implemented by national authorities.

This would be a major step in helping to protect and promote the institution of the ombudsmen at the international level, thereby helping to ensure better respect for human rights and democracy – for all of our sakes.

Author bio

Andrew Cutting is spokesperson for the Council of Europe office in Brussels.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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