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I. THE HISTORICAL AND LEGAL ASPECTS OF EVOLVEMENT OF HUMAN RIGHTS IN THE WORLD AND IN UKRAINE

2. Establishment of the Ombudsman Institution in the World

Until recently the word ombudsman and the institution it stood for were known only to a comparatively narrow circle of specialists in the legal profession. And small wonder. Since this institution evolved on the basis of West European democratic values, it did not hold any particular interest for the advocates of the official Soviet legal doctrine. But as democratization was gaining a stronger foothold in Eastern Europe in the early 1990s, there appeared a growing interest in the new democratic mechanisms of protecting human rights, in particular in the practices and historical background of the ombudsman.

In most countries the ombudsman institution was established when the system of bodies of state authority was already in place and allowance had to be made for national, legal, cultural and other distinctions. Although the underlying principles of the office are uniform, its name is different in different countries. But in every case it stands for a generally accepted idea with the name of ombudsman, although in Ukraine it is a Ukrainian Parliament Commissioner for Human Rights, in the Republic of South Africa a guardian of the people, in Poland a commissioner for civil rights protection, in France an intermediary of the French Republic, in Latvia a controller of the Seym, in Greece a guardian of citizens, in Moldova a parliamentary attorney, while in Sweden, Finland and Denmark – ombudsman.

One of the principal functions of the ombudsman is to exercise control over the activity of executive and other bodies of state authority by considering citizens’ complaints against the actions of bodies of authority or their officials who violated human and citizens’ rights and freedoms. In this sense an ombudsman’s important and inalienable right is to conduct investigations, on his own initiative included, and on their basis to offer recommendations to have the infringed rights restored in each definite case, to submit proposals on amending laws or revising the unlawful administrative practices of the bodies of state authority. The procedure for filing complaints with the ombudsman is flexible and excludes any tiring formalities, while access to the ombudsman is free and open to all citizens of the country.

The independence an ombudsman enjoys is sustained by the high status of his office. In most countries this status is secured by the constitution as well as by his election by the country’s parliament, which makes him independent from all branches of power, the legislature included. This entails the inadmissibility and direct prohibition from interfering in his activity by bodies of state authority, political parties, NGOs, and the mass media. In society an ombudsman is something like an arbiter between the person and authority, and therefore his actions must be independent and impartial.

Yet another aspect of the ombudsman’s independence is guaranteed by the availability of sufficient financial resources for the exercise his powers and, owing to the personified nature of his office, by his pursuance of an independent personnel and institutional policy.

Since an ombudsman lacks mandative state powers, one of his principal tools of influencing the adoption of necessary decisions is openness and dissemination of information about violations of human rights and freedoms in the state, primarily by making public annual and special reports.

Taken as a whole, the characteristics mentioned above reflect but the most important features of the ombudsman institution. Depending on the scope of powers, areas of competence and other factors, several models of an ombudsman can be singled out.

Of them the most widely accepted is the classical or strong model of an ombudsman introduced for the first time in Sweden in the early 19th century.

To this day historians are divided over what exactly social and historical circumstances led to the establishment of this office in Sweden. It could have been the Swedes’ centuries-old tradition of respecting the rule of law and individual human rights, or else it was because of the acute struggle for power between the Swedish King and Parliament. In the end, the king’s power was considerably curtailed and parliament – in order to counterbalance the royal chancellor of justice – gained the right to elect a parliamentary commissioner to exercise independent control over the administration and the courts. This was reflected in the Constitution of 1809, by which the office of the ombudsman of justice (justitie ombudsman) was introduced into Sweden’s legal system for the first time.

According to the Swedish model, an ombudsman enjoys broad powers. He exercises control not only over the central bodies of authority and administration, but also over the courts and local bodies of administration as well as the armed forces and even officials of state enterprises. For this purpose the ombudsman has quite a few methods of influence in his arsenal: right to unrestricted access to minutes and documents, confidential documents included; right to legislative initiative; right to initiate disciplinary proceedings against persons who do not comply with his requirements, and even to impose penalties; and the right of an extraordinary prosecutor who can take legal steps against officials for failure to discharge their duties properly.

The Swedish model promoted the success and subsequent spread of the concept of ombudsman in Europe and the world.

The next country to introduce the office of ombudsman in 1919 was Finland whose legal system was very close to Sweden’s. Therefore, the model introduced in Finland was very much similar to the Swedish precedent. The competence and powers of the Finnish ombudsman were just as broad: right to initiate criminal proceedings against chairmen of the supreme and highest administrative courts of Finland, and by authority of parliament to be a public prosecutor of other highest officials of the state, in particular members of the State Council and the Chancellor of Justice.

After the Second World War the idea of the ombudsman institution began to spread rapidly throughout Europe. At this time the executive was focusing its regulatory activity on all areas of public life and for this reason additional monitoring of the actions of officialdom was needed.

In 1952 the ombudsman institution was established in Norway. At first its function was limited to overseeing the armed forces, and only in 1962 a body was set up to exercise control over the civil administration.

For all the successes of the Swedish model, the majority of countries learned about the ombudsman institution after it was established in Denmark in 1953. Since Denmark’s legal system was close to both the Romance-Germanic and Anglo-Saxon legal culture, the Danish model gained the largest following in the world. Although the powers of the Danish ombudsman were somewhat limited compared with his Swedish counterpart, the institution was nonetheless the first successful experiment in a country where, first, the principle of ministerial accountability of the government to parliament was in effect and, second, judicial control over the administration was exercised, something that Sweden and Finland lacked.

From then on the idea of the ombudsman institution spread rapidly from Scandinavia to the other countries of Europe, the Americas, Asia and Africa.

The European continental system of law became a subject of intense study in the countries with common law. In 1967 Great Britain passed a law establishing the ombudsman institution. The reason behind such a step was the citizens’ dissatisfaction with the country’s administration practices and the number of growing complaints to this effect. However, in Great Britain, where the government is accountable to parliament, a “weak” model of ombudsmanship was introduced. It has a narrow scope of powers, limited tools of legal enforcement, and operates through what could be called a parliamentary filter that markedly reduces the citizens’ access to the ombudsman. Complaints can be submitted only through MPs.

In 1967 Canada introduced ombudsmen in a number of provinces, and in 1979 Australia did the same.

At this time a growing interest in ombudsmanship, especially the Swedish model, was observed in the USA. But it never gained the degree of Europe’s interest because of the great role the judicial system had in the US. Ombudsmen were introduced in Hawaii, Nebraska and Iowa in 1969, 1971 and 1972 respectively. As distinguished from other countries, in the US the institution was established at different levels: state, county, city.

In 1976 Portugal and in 1981 Spain followed suit. As to Spain, the office of ombudsman (defensor del pueblo – defender of the people) was among the most successful legal novelties after the fall of Franco’s dictatorship. Spain chose the “strong” model similar to Sweden’s. In view of the country’s federative system, regional ombudsmen were introduced in the provinces. In discharging their functions, they were completely independent from Spain’s national ombudsman, building their relations with the latter on the principles of coordination and delimitation of authority. Such delimitation – specifically between the regional ombudsman of the Province of Catalonia and Spain’s national ombudsman – is carried out on the basis of a bilateral agreement. But this model is justified because of Spain’s specific federative system, but is inapplicable in countries with a unitary administrative-territorial system.

Different models of ombudsmen were introduced also in Australia, Belgium, Israel, India, Italy, Cyprus, Mexico, The Netherlands, France, New Zealand, the Federal Republic of German, Switzerland and other countries.

In the French model introduced in 1973, the Mediator of France, where the executive has been traditionally strong, is appointed by the Council of Ministers, which is a distinctive exception in the concept of parliamentary ombudsman. Besides, in France, just like in Great Britain, the parliamentary filter is in effect, thus denying the citizens’ direct access to the ombudsman.

The fall of the “iron curtain” and the emergence of new states on the map of Europe lent a new impetus to the idea of ombudmanship, raising its prestige and the number of this institution worldwide.

In 1988 Poland was the first country in Eastern Europe to establish the ombudsman office (Commissioner for Civil Rights Protection). It was the first such experiment in a socialist system of administration. And the experiment proved to be successful. It integrated smoothly into the existing system of state bodies and was in many ways instrumental in generating many of the country’s reforms in the 1980s. To a considerable degree the success was due to the ideological and political neutrality of the ombudsman, the publicity of the principles of a law-governed state and the hierarchy of human rights-oriented values. The Polish ombudsman office was also built on the strong model. The Commissioner for Civil Rights Protection is entitled to demand initiation of disciplinary or administrative proceedings, while his powers in criminal and civil judicature are comparable with those of a public prosecutor.

Many countries of Eastern Europe copied Poland’s experience. In 1989 the office of ombudsman was introduced in Hungary and in the 1990s in Georgia, Lithuania, Latvia, Moldova, the Russian Federation, Romania and Uzbekistan.

On January 15, 1998 the Law On the Ukrainian Parliament Commissioner for Human Rights came into force. On April 14 that year the Ukrainian Parliament elected the Commissioner for Human Rights for the first time in the history of this country.

At the present time the idea of ombudsmanship has spread beyond national boundaries and is applied ever more frequently at the regional and international level.

In 1976 the International Ombudsman Institute (IOI) was established. It unites national institutions of more than 50 countries worldwide and promotes ombudsmanship through studies, education programs, publication and exchange of information, as well as regional and international conferences.

In 1982 the faculty of the University of Innsbruck, Austria, came up with the initiative to establish a scientific society to study omubdsmanship in Europe. In 1988 the society was granted the status of an international non-governmental organization and is currently known as the European Ombudsman Institute. Its principal area of activity is to spread and promote the idea of ombudsmanship in Europe, support research in this field, and assist in the exchange of expertise at the national, European and international level. Membership of the Institute is made up of the majority of European ombudsman. In October 1998 the Ukrainian Parliament Commissioner for Human Rights was admitted to the European Ombudsman Institute.

Following from the provisions of the Maastricht Treaty, the office of Ombudsman of the European Union was introduced in 1993. The European Ombudsman was granted the right to consider complaints of any legal entity or individual of a EU member country and scrutinize the activity of institutions and bodies of the European Union, except for the European Court of Justice of the first instance. At the present time work is underway to draft a uniform code of behavior for EU officials so as to set clearly defined criteria that an ombudsman can apply in assessing the conduct of the officials.

After lengthy debates the office of Commissioner for Human Rights in the Council of Europe was established in 1999. The office of the EC Commissioner does not exactly accord with the concept of ombudsmanship, since he is deprived of such an important right as making definite investigations on the basis of complaints or take up a complaint of his own volition. The office of the CE Commissioner for Human Rights is intended more for discharging educational functions and coordinate the activity in the area of human rights within the framework of this European institution. The process of defining his scope of competence and powers is still going on. The first holder of this office is Alvaro Jil-Robles, formerly Defensor del Pueblo of Spain.

To date the ombudsman institution at the national, regional and local level exists in more than 100 countries, and its idea keeps on spreading.

It would be no exaggeration to say that the ombudsman institution is not only a desirable, but also a necessary element of a national system of human rights protection as well as a key link in the reforms carried out in the countries that chose to advance along the road of democracy and the rule of law. 

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