AYLU - Ombudsman Law Education Project - Funded by
ABA CEELI - USAID
Ombudsman law education
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
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
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:
- Preparation of population on adoption of ombudsman law and its execution;
- Legal enlightenment of population on ombudsman institute;
- To prepare the population in acceptance of the constitutional law on ombudsman
and its execution;
- Legal informing of the population on the activity of the institute of ombudsman;
- To increase the level of legal knowledge of NGO representatives in the
field of ombudsman activity;
- Formation of public opinion of the population on the given problem through
- Preparation of the trainers on ombudsman;
- Attraction of a public and state bodies & attention to the given problem.
Elmary Mamishev - project coordinator
email: firstname.lastname@example.org; email@example.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.
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:
- a governmental office created by constitution, charter, legislation or
- an office with the responsibility to receive and investigate complaints
against governmental agencies
- an office with freedom to investigate on its own motion
- an office which may exercise full powers of investigation, to include access
to all necessary information both testimonial and documentary
- an office with the authority to criticize governmental agencies and officials
within its jurisdiction and to recommend corrective action
- an office with the power to issue public reports concerning its findings
- 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
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:
- 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.
- The Ombudsman shall perform his duties in accordance with the powers conferred
on the Community institutions and bodies by the Treaties.
- The Ombudsman may not intervene in cases before courts or question the
soundness of a court's ruling.
- 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
- 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
- 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.
- 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.
- The Ombudsman may advise the person lodging the complaint to address it
to another authority.
- Complaints submitted to the Ombudsman shall not affect time limits for
appeals in administrative or judicial proceedings.
- 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.
- 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
- The Ombudsman shall as soon as possible inform the person lodging the complaint
of the action he has taken on it.
- 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.
- 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
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.
- 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.
- If the assistance which he requests is not forthcoming, the Ombudsman shall
inform the European Parliament, which shall make appropriate representations.
- As far as possible, the Ombudsman shall seek a solution with the institution
or body concerned to eliminate the instance of maladministration and satisfy
- 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.
- 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.
- At the end of each annual session the Ombudsman shall submit to the European
Parliament a report on the outcome of his inquiries.
- 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.
- 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.
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
- 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.
- 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.
- The Ombudsman shall cease to exercise his duties either at the end of his
term of office or on his resignation or dismissal.
- Save in the event of his dismissal, the Ombudsman shall remain in office
until his successor has been appointed.
- 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
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.
- 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.
- 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
- During his term of office, the Ombudsman may not engage in any political
or administrative duties, or any other occupation, whether gainful or not.
- 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.
- 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.
- The Ombudsman shall be assisted by a secretariat, the principal officer
of which he shall appoint.
- 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).
- 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.
- 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.
The Ombudsman's budget shall be annexed to section I (Parliament) of the general
budget of the European Communities.
The seat of the Ombudsman shall be that of the European Parliament.
The Ombudsman shall adopt the implementing provisions for this Decision.
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.
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.
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,
Official Journal L 113, 4.5.1994, p. 15
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.
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,
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
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