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 Report - AYLU - Electronically digest "What is ombudsman?" (AYLU)

 Report date: 31.10.2001

AYLU - Ombudsman Law Education Project - Funded by ABA CEELI - USAID

Ombudsman law education

Dear friends,
From November 2001 AYLU began to realize 6 months project by the financial support of the American Bar Association Central and East European Law Initiative (USAID funded).
In July 2001, the parliament of the Azerbaijan Republic (Milli Mejlis) adopted a draft law "On Human Rights Commissioner" in Azerbaijan (ombudsman) in third reading. The adoption of this law was one of the obligations put on Azerbaijan by Council of Europe.
The procedure of enacting constitutional laws differs from that of other laws. These laws must be considered twice. According to article 156 of Constitution of the Azerbaijan Republic (Order of Adopting Additions to the Constitution of the Azerbaijan Republic), additions to the Constitution of the Azerbaijan Republic shall be adopted as Constitutional Laws in the Milli Mejlis of the Azerbaijan Republic by a majority of 95 votes. Constitutional Laws of the Azerbaijan Republic on Additions to the Constitution of the Azerbaijan Republic shall be put to the vote at the Milli Mejlis of the Azerbaijan Republic twice. The second voting shall be held in 6 months after the first was held.
Constitutional Laws of the Azerbaijan Republic on Additions to the Constitution of the Azerbaijan Republic shall be submitted to the President of the Azerbaijan Republic after the first as well as the second voting. The Constitutional Laws of the Azerbaijan Republic on Additions to the Constitution of the Azerbaijan Republic shall come into force upon the President's signing them after the second voting.
At the Executive Board meeting of AYLU Board members were decided to conduct a campaign concerning ombudsman law education among the population. According to draft law, ombudsman defends human rights and freedoms, secures the respect of those values by governmental and municipal bodies and assists in restoration of the violated rights. During 10 days, the state officials must provide the human rights commissioner with necessary documents and materials. If necessary, in written form ombudsman may require to substantiate the disputable issue from state official. While investigating the complaint, the ombudsman has right to give a commission to the state bodies. The government officials, the commanders of military units, the heads of investigating isolators and places of confinements are obliged to give an audience to ombudsman.
Taking into consideration the above mentioned, the working group of NGOs on legal issues found the problem an up-to-date one and the NGOs directly have to participate in enlightenment of population and adoption of constitutional law on ombudsman and its execution.

THE PURPOSES AND TASKS OF THE PROJECT:

  1. Preparation of population on adoption of ombudsman law and its execution;
  2. Legal enlightenment of population on ombudsman institute;
  3. To prepare the population in acceptance of the constitutional law on ombudsman and its execution;
  4. Legal informing of the population on the activity of the institute of ombudsman;
  5. To increase the level of legal knowledge of NGO representatives in the field of ombudsman activity;
  6. Formation of public opinion of the population on the given problem through mass media;
  7. Preparation of the trainers on ombudsman;
  8. Attraction of a public and state bodies & attention to the given problem.

Contact person:
Elmary Mamishev - project coordinator
email: ylu@azeurotel.com; aylu@azeronline.com

The United States Ombudsman Association

The United States Ombudsman Association is the national organization for public sector ombudsman professionals. Founded in 1977, USOA is North America's oldest national ombudsman association with members from ombudsman offices in local, state, and federal governments, and affiliated ombudsman offices. Under its bylaws, USOA was organized to operate exclusively for educational, scientific and charitable purposes.
Its purpose is to assist existing ombudsman and ombudsman organizations in improving the operation of the ombudsman offices throughout the United States. Additionally, the USOA dedicates itself by social and educational means to promote and encourage the establishment of ombudsman offices at the international, national, state, and local levels.

Legislative Model

In its effort to promote and encourage the establishment of ombudsman offices, the USOA specifically promotes and encourages the establishment of offices that manifest the following characteristics:

  1. a governmental office created by constitution, charter, legislation or ordinance
  2. an office with the responsibility to receive and investigate complaints against governmental agencies
  3. an office with freedom to investigate on its own motion
  4. an office which may exercise full powers of investigation, to include access to all necessary information both testimonial and documentary
  5. an office with the authority to criticize governmental agencies and officials within its jurisdiction and to recommend corrective action
  6. an office with the power to issue public reports concerning its findings and recommendations
  7. an office directed by an official of high stature who
    • is guaranteed independence through a defined term of office and/or through appointment by other than the executive and/or through custom
    • is restricted from activities constituting a personal, professional, occupational or political conflict of interest
    • is free to employ and remove assistants and to delegate administrative and investigative responsibility to those assistants.

History of the Public Sector Ombudsman

For as long as government has existed, guaranteeing citizens fair and equitable treatment under the law has been an issue and various protections have been utilized over the years. In modern times the public sector Ombudsman, where instituted, has been a successful and valuable guarantor of citizens' rights. By impartial and independent investigation of citizens' complaints, it has provided an informal and accessible avenue of redress.
The first public sector ombudsman was appointed by the Parliament of Sweden of 1809. The Swedish Constitution divided and balanced power between the king and Parliament with the king having executive powers and Parliament retaining legislative power. The ombudsman, who was appointed by and responsible to Parliament, was to protect individual rights against the excesses of the bureaucracy.
This first ombudsman's office, since its creation, has been the model for the public sector ombudsman, and set the definition that is still accepted today: a public official appointed by the legislature to receive and investigate citizen complaints against administrative acts of government. These acts may or may not include the administrative acts of the judiciary or the legislature, depending upon the statute.
The ombudsman concept spread through Europe, and to this continent with the first offices being established in the United States in the mid 60's. This was a time in the United States when exposure of government secrecy and scandal, and when movements such as civil rights and good government created a political atmosphere more favorable to openness, and to establishing recourse for the aggrieved.
Hawaii established the first public sector office in 1967. Since then a number of states, counties and municipalities have followed suit by establishing offices of general jurisdiction.
The ombudsman movement in the United States has also been characterized by offices that represent a departure from the Swedish model. These variations would include offices with general jurisdiction but appointment by a governor or mayor, legislative offices with special jurisdiction such as corrections, and single agency ombudsman with statutory authority.

The European Ombudsman Statute

Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties
The European Parliament,
Having regard to the Treaties establishing the European Communities, and in particular Article 195(4) of the Treaty establishing the European Community, Article 20d(4) of the Treaty establishing the European Coal and Steel Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community,
Having regard to the opinion of the Commission,
Having regard to the Council's approval,

HAS DECIDED AS FOLLOWS:

Article 1

  1. The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 195(4) of the Treaty establishing the European Community, Article 20d(4) of the Treaty establishing the European Coal and Steel Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community.
  2. The Ombudsman shall perform his duties in accordance with the powers conferred on the Community institutions and bodies by the Treaties.
  3. The Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling.

Article 2

  1. Within the framework of the aforementioned Treaties and the conditions laid down therein, the Ombudsman shall help to uncover maladministration in the activities of the Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role, and make recommendations with a view to putting an end to it. No action by any other authority or person may be the subject of a complaint to the Ombudsman.
  2. Any citizen of the Union or any natural or legal person residing or having his registered office in a Member State of the Union may, directly or through a Member of the European Parliament, refer a complaint to the Ombudsman in respect of an instance of maladministration in the activities of Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. The Ombudsman shall inform the institution or body concerned as soon as a complaint is referred to him.
  3. The complaint must allow the person lodging the complaint and the object of the complaint to be identified; the person lodging the complaint may request that his complaint remain confidential.
  4. A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint and must be preceded by the appropriate administrative approaches to the institutions and bodies concerned.
  5. The Ombudsman may advise the person lodging the complaint to address it to another authority.
  6. Complaints submitted to the Ombudsman shall not affect time limits for appeals in administrative or judicial proceedings.
  7. When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively.
  8. No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired.
  9. The Ombudsman shall as soon as possible inform the person lodging the complaint of the action he has taken on it.

Article 3

  1. The Ombudsman shall, on his own initiative or following a complaint, conduct all the enquiries which he considers justified to clarify any suspected maladministration in the activities of Community institutions and bodies. He shall inform the institution or body concerned of such action, which may submit any useful comment to him.
  2. The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy.
    They shall give access to documents originating in a Member State and classed as secret by law or regulation only where that Member State has given its prior agreement.
    They shall give access to other documents originating in a Member State after having informed the Member State concerned.
    In both cases, in accordance with Article 4, the Ombudsman may not divulge the content of such documents.
    Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall speak on behalf of and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy.
  3. The Member States' authorities shall be obliged to provide the Ombudsman, whenever he may so request, via the Permanent Representations of the Member States to the European Communities, with any information that may help to clarify instances of maladministration by Community institutions or bodies unless such information is covered by laws or regulations on secrecy or by provisions preventing its being communicated. Nonetheless, in the latter case, the Member State concerned may allow the Ombudsman to have this information provided that he undertakes not to divulge it.
  4. If the assistance which he requests is not forthcoming, the Ombudsman shall inform the European Parliament, which shall make appropriate representations.
  5. As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint.
  6. If the Ombudsman finds there has been maladministration, he shall inform the institution or body concerned, where appropriate making draft recommendations. The institution or body so informed shall send the Ombudsman a detailed opinion within three months.
  7. The Ombudsman shall then send a report to the European Parliament and to the institution or body concerned. He may make recommendations in his report. The person lodging the complaint shall be informed by the Ombudsman of the outcome of the inquiries, of the opinion expressed by the institution or body concerned and of any recommendations made by the Ombudsman.
  8. At the end of each annual session the Ombudsman shall submit to the European Parliament a report on the outcome of his inquiries.

Article 4

  1. The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community, Article 47(2) of the Treaty establishing the European Coal and Steel Community and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall also be required to treat in confidence any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.
  2. If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities and, if appropriate, the Community institution with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.

Article 5

Insofar as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3.

Article 6

  1. The Ombudsman shall be appointed by the European Parliament after each election to the European Parliament for the duration of its mandate. He shall be eligible for reappointment.
  2. The Ombudsman shall be chosen from among persons who are Union citizens, have full civil and political rights, offer every guarantee of independence, and meet the conditions required for the exercise of the highest judicial office in their country or have the acknowledged competence and experience to undertake the duties of Ombudsman.

Article 7

  1. The Ombudsman shall cease to exercise his duties either at the end of his term of office or on his resignation or dismissal.
  2. Save in the event of his dismissal, the Ombudsman shall remain in office until his successor has been appointed.
  3. In the event of early cessation of duties, a successor shall be appointed within three months of the office's falling vacant for the remainder of the parliamentary term.

Article 8

An Ombudsman who no longer fulfils the conditions required for the performance of his duties or is guilty of serious misconduct may be dismissed by the Court of Justice of the European Communities at the request of the European Parliament.

Article 9

  1. The Ombudsman shall perform his duties with complete independence, in the general interest of the Communities and of the citizens of the Union. In the performance of his duties he shall neither seek nor accept instructions from any government or other body. He shall refrain from any act incompatible with the nature of his duties.
  2. When taking up his duties, the Ombudsman shall give a solemn undertaking before the Court of Justice of the European Communities that he will perform his duties with complete independence and impartiality and that during and after his term of office he will respect the obligations arising therefrom, in particular his duty to behave with integrity and discretion as regards the acceptance, after he has ceased to hold office, of certain appointments or benefits.

Article 10

  1. During his term of office, the Ombudsman may not engage in any political or administrative duties, or any other occupation, whether gainful or not.
  2. The Ombudsman shall have the same rank in terms of remuneration, allowances and pension as a judge at the Court of Justice of the European Communities.
  3. Articles 12 to 15 and Article 18 of the Protocol on the Privileges and Immunities of the European Communities shall apply to the Ombudsman and to the officials and servants of his secretariat.

Article 11

  1. The Ombudsman shall be assisted by a secretariat, the principal officer of which he shall appoint.
  2. The officials and servants of the Ombudsman's secretariat shall be subject to the rules and regulations applicable to officials and other servants of the European Communities. Their number shall be adopted each year as part of the budgetary procedure (2).
  3. Servants of the European Communities and of the Member States appointed to the Ombudsman's secretariat shall be seconded in the interests of the service and guaranteed automatic reinstatement in their institution of origin.
  4. In matters concerning his staff, the Ombudsman shall have the same status as the institutions within the meaning of Article 1 of the Staff Regulations of Officials of the European Communities.

Article 12

The Ombudsman's budget shall be annexed to section I (Parliament) of the general budget of the European Communities.

Article 13

The seat of the Ombudsman shall be that of the European Parliament.

Article 14

The Ombudsman shall adopt the implementing provisions for this Decision.

Article 15

The first Ombudsman to be appointed after the entry into force of the EU Treaty shall be appointed for the remainder of the parliamentary term.

Article 16

The European Parliament shall make provision in its budget for the staff and material facilities required by the first Ombudsman to perform his duties as soon as he is appointed.

Article 17

This Decision shall be published in the Official Journal of the European Communities. It shall enter into force on the date of its publication.

Done at Strasbourg, 9 March 1994
For the European Parliament,
The President
Egon KLEPSCH
http://www.euro-ombudsman.eu.int/lbasis/en/statute.htm Official Journal L 113, 4.5.1994, p. 15
http://www.euro-ombudsman.eu.int/lbasis/en/statute.htm A joint statement by the three institutions will set out guiding principles for the number of staff employed by the Ombudsman and the status as temporary or contract staff of those carrying out enquiries.
http://www.euro-ombudsman.eu.int/lbasis/en/statute.htm See Decision taken by common agreement between the Representatives of the Governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communities (OJ No. C341, 23.12.1992, p. 1).

Press-release "Ombudsman Institute. How to Apply to the Ombudsman"

The Citizens Labor Rights Protection League started to implement the project, titled "Ombudsman Institute. How to Apply to the Ombudsman". The project has being sponsored by the Embassy of Great Britain and Northern Ireland in the Azerbaijan Republic. Within the project realization, there will be organized seminars in 4 regions of the Republic - in the South (Lenkaran), in the North (Khachmaz), in Shirvan (Ali-Bayramly) and in Garabagh (Berde). Activists of NGO-s and representatives of active groups of population will take part in seminars. As a project activity, it is planned to publish a book, titled "The Ombudsman Institute: What We Know About It".

Press Service of the CLRPL

The Citizens' Labour Rights Protection League
41 Sh. Badalbeily str. Baku, Azerbaijan 370014
Phone/fax: (994 12) 385645
E-mail: clrpl@azeurotel.com

What is ombudsman?
Azerbaijan Young Lawyers' Union
Funded by ABA CEELI/ USAID
Baku, 370010, D.Alieva str., 251
tel/fax: (99412) 988804 www.aylu.org
email: aylu@azeronline.com

 



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