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Ombudsman institutions

 

The Venice Commission has consistently encouraged the creation and strengthening of the Ombudsman institutions, emphasizing its key role in the protection of human rights.
 

The Venice Commission particularly values the Ombudsman's task of alerting the legislator when a law violates human rights. In order to have such laws amended or removed from the national legal system, it encourages full access of the Ombudsman to the Constitutional Court. The Ombudsman also has the role of alerting the legislator of deficiencies, for instance when the implementation of laws is difficult or when they do not provide sufficient guarantees.
 

Contributing to the dissemination of an administrative culture that encourages the protection of human rights is another key function of the Ombudsman. He is well placed to identify situations in which the implementation of laws, at an individual level as well as at the level of the administration as a whole, is problematic in terms of human rights.  In order to address these structural deficiencies, the Ombudsman can recommend changes in the administrative structures and staff’s behavior, as well as raising staff awareness.
 

An easy access to the Mediator is essential. He can intervene on his own initiative or following a consultation. He acts as an intermediary between individual and public bodies and this intermediary role enables him to benefit from the trust of both the injured party and the public body. The public nature of the Ombudsman's actions contributes to public awareness concerning human rights and therefor disseminates a culture in favour of the rule of law and the promotion and protection of human rights within society. 
 

In order to promote the interests of citizens by completely protecting their rights, the Ombudsman also needs to be protected. The Venice Commission systematically calls on states to give this institution a constitutional basis and the necessary means to fulfil its mission effectively. This will protect the independence and impartiality of the Ombudsman, which are fundamental characteristics of the institution.
 

To this end, the Commission has drafted "Principles for the Protection and Promotion of the Institution of Ombudsman, or "The Venice Principles".

 

 

25 “Venice Principles” - Democratic ABCs for ombudsman institutions

Following the various threats to Ombudsman institutions in recent years, the Commission has decided to codify, on the basis of its previous work, a set of constitutional and legal principles specifically devoted to the institution of the Ombudsman (known as the "Venice Principles"). An extensive process of consultation and exchange on the "Venice Principles" with mediation institutions around the world, as well as with relevant international actors. The Steering Committee for Human Rights of the Council of Europe played an active role in the process. Among the associations of ombudsmen and international partner organizations involved in the preparation of this text, is the International Ombudsman Institute, a global association of ombudsmen from more than 100 countries, and the office of the United Nations 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 has thus offered a new reference text which will guide and support the proper establishment and functioning of ombudsman institutions, the stability of democracies and the protection and promotion of fundamental rights.

 

On the 16th of December 2020, the United Nations General Assembly adopted Resolution A/RES/75/186 on “The role of Ombudsman and mediator institutions in the promotion and protection of human rights, good governance and the rule of law”.

 

The UN Resolution A/RES/75/186 in its Preamble “acknowledges the principles on the protection and promotion of the Ombudsman institution (the Venice Principles)”, in operative §2, it strongly encourages Members States to rend Ombudsman institutions “consistent with the principles on the protection and promotion of the Ombudsman institution (the Venice Principles)”.

 

In operatives §8 it “Encourages Ombudsman and mediator institutions, where they exist, to operate as appropriate, in accordance with all relevant international instruments, including the Paris Principles and the Venice Principles”.

 

Opinions

The Venice Commission adopted opinions concerning the legal framework of the Ombudsman institution in a number of countries including the United-Kingdom, Hungary, Armenia, Azerbaijan, Bosnia and Herzegovina, Kazakhstan, Kosovo, Luxembourg, Montenegro, the Republic of Moldova, Serbia and Republic of North 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 solid guarantees for its independent, effective and impartial operations, including an immunity regime and appropriate human and financial resources.

 

In its opinion of December 2021 on the draft law on the "Commissioner for Human Rights" of Kazakhstan, the Venice Commission underlined the importance of integrating the institution of the Ombudsman into the national Constitution as well as the need for the public and transparent nature of the selection of the Ombudsman. It also promoted the strengthening and extension of the Ombudsman's immunity and budgetary autonomy.

 

In the October 2021 opinions on the laws concerning ombudsmen of Armenia and Hungary, the Venice Commission recalled the importance of establishing a legislative framework that ensures the full independence of the Ombudsman as well as access to the necessary resources to best defend the interests of citizens. The Commission also recommended a constitutional revision to ensure respect for all the Venice principles in the opinion regarding Armenia. It also stressed the importance of an independent and high-ranking staff and the Ombudsman's powers in recruitment.

 

In March 2021, two years after the establishment of the "Venice Principles", the Commission recalled in an opinion on the draft law amending certain normative acts regarding the People's Advocate of the Republic of Moldova, the importance of the public nature of any changes affecting the institution of the Ombudsman as well as the importance of the application of all the Venice Principles in national law.

 

In its 2018 opinion on the draft law of the Republic of North 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.

 

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