The European Ombudsman, P. Nikiforos Diamandouros, gave a talk on the role of Ombudsmen in promoting and protecting human rights. This was part of the European Union Agency for Fundamental Rights Symposium on “Strengthening the fundamental rights architecture in the EU” that took place on May 7, 2010.
In that speech Dr. Diamandouros notes that “the ombudsman has proved to be a very flexible institution. It has been prudently adapted to different legal, political and cultural environments throughout the world. Some national ombudsmen have been established with a specific mandate for human rights. Many others deal with human rights issues as part of a general mandate to supervise the public administration.”
To use terminology that might sound familiar (especially to Europeans) we could say that certain Ombudsmen focus more on ‘objective legality’ (i.e., on whether the administration acts within the confines of its powers) while the mandate or practice of other Ombudsmen emphasizes ‘subjective legality’ (i.e., the rights of citizens affected by the action of an official). That said, it might be difficult to cleanly separate the two notions of legality given that certain Ombudsmen might have a double mandate or because, in practice, one type of legality can be achieved by safeguarding the other.
An example would actually be the case of the European Ombudsman itself. As Dr. Diamandouros indicates: “Article 228 of the Treaty on the Functioning of the European Union empowers [the European Ombudsman] to investigate complaints about maladministration in the activities of the Union institutions, bodies, offices, or agencies. From the very beginning of the European Ombudsman’s activity, the term ‘maladministration’ has been interpreted broadly and in a manner that makes it possible to include respect for the rule of law, for principles of good administration, and for fundamental rights in the Ombudsman’s remit. This means that allegations that the institutions have breached a fundamental right fall within [its] mandate.”
According to the European Ombudsman, however, in practice, few of the complaints that he receives allege violation of human rights. “That is mainly because the EU organs do not exercise the classic coercive powers of the State. There are no Union prisons, for example. … Nonetheless, the European Ombudsman has dealt with complaints raising a wide range of human rights issues, including age and race discrimination, the principle of presumption of innocence, the rights of children, and the rights to a fair procedure, freedom of speech of EU officials, privacy and health.”
This highlights the importance of national Ombudsmen since they are competent to deal with complaints against public authorities of the Member States. Furthermore, as the European Ombudsman points out, “national ombudsmen enjoy a wide range of competences. Some Ombudsmen, especially those created after the collapse of the communist regimes in Europe, are Human Rights Ombudsmen/Defenders or Commissioners (depending on the different terms used in each instance), that is, they have a special mission to protect and promote human rights. Indeed, in countries where democracy and the rule of law were recently established, it is not rare for national legislators to extend the ombudsman’s scope of action beyond individual administrative acts. [For example,] the Portuguese Provider of Justice and the Spanish Defender of the People can bring an action to the Constitutional Court, to determine the constitutionality of a law. A Commissioner for Civil Rights Protection was enacted in Poland in 1987 and was empowered to seize directly the Constitutional Tribunal and ask for the nullification of laws.”
Last, Dr. Diamandouros refers to potential future developments on the basis of the right to good administration protected by Article 41 of the Charter of Fundamental Rights (which is binding after the entry into force of the Lisbon Treaty). In his words, “it is true that the scope of Article 41 is limited to the EU Institutions and bodies. However, it is perhaps not yet sufficiently appreciated that the case law of the Court of Justice on which Article 41 is based, concerns general principles of EU law. It is, therefore, also binding on the public authorities of the Member States, when they are acting within the scope of EU law. In that sense and to that extent, citizens and residents of the Union are already entitled to the same right to good administration vis-à-vis administrative authorities in the Member States as vis-à-vis the EU institutions and bodies.”