Popularity of the Ombudsman

Nature and Function

Reform Thoughts

Petition Committees

Prospects

History

In October 1982 the "Working Association for the Science of Insurance at the University of Innsbruck" organized a conference in Innsbruck. Its subject "Legal Protection in Private Insurance Law: Court - Administrative Supervision - Ombudsman?" triggered off a plan, so to speak, to generally dedicate more scientific interest to the ombudsman idea. The proponents of these ambitions have initially been professors of the University of Innsbruck, in particular Professor Dr. Hans Klecatsky, Professor Dr. Fritz Reichert-Facilides, LL.M. and Professor Dr. Norbert Wimrner, from the outset though in close cooperation with the Austrian Ombudsman Office.

Based on a strong political conviction of the ombudsman's great importance they started a scientific association as a first step. The "European Ombudsman-Academy", a loosely organized circle of scientists without legal identity, should explore ombudsman institutions in Europe. As the activities of the association developed, the structure became inadequate and had to be deepened. Therefore, the association was transformed into a legal entity: the present "European Ombudsman-Institute".

Why did the association give itself a new name? Responsible is not as much an intended search for a new externally visible identity as an almost anecdotal peculiarity of Austrian law. For the name "Academy" had already been transferred to someone else who claimed copyrights, so to speak, and the Austrian Authorities would never have permitted the original name "European Ombudsman-Academy". Having been compelled to look for another name it has lost its attribute of a second-best solution long ago and is generally being considered as very valuable identification symbol of the association.

Top of page

Let us call to mind the founding members who formed the European Ombudsman-Institute on January 22, 1988, in Gnadenwald near Innsbruck:

Dr. Ingeborg Bauer-Polo, Bolzano
Univ.Prof.Dr. Hans Klecatsky, Innsbruck
Univ.Prof.Dr. Hans Kochler, Innsbruck
Prof. h.c. Dr. Egon Rene Oetzbrugger, Innsbruck
Univ.Prof.Dr. Christoph Pan, Bolzano
Hon.Prof.Dr. Viktor Pickl, Vienna
Univ.Prof.Dr. Gerte Reichelt, Vienna
MMag.Dr. Nikolaus Schwarzler, Bregenz
Peter Sonnewend-Westenberg, Innsbruck
Dr. Heinold Steger, Bolzano
Dr. Helmuth Tschiderer, Innsbruck
Hans Widmann, Bolzano
Univ.Prof.Dr. Norbert Wfmmer, Innsbruck
Dr. Ivo Winkler, Innsbruck

Until today different members from different countries have held the presidency of the European Ombudsman-Institute:

Univ.Prof.Dr. Hans Klecatsky, Innsbruck/Austria, 1988/89
Dr. Heinold Steger, Bolzano/Italy, 1989/91
Hon Prof.Dr. Viktor Pickl, Vienna/Austria, 1991/94
Juan San Martin, Vitoria/Spain, 1994/95
Univ.Prof.Dr. Arcadio Diaz Tejera, Canaries/Spain, 1995

The founding members aimed at high goals that found their way into the statutes of the institute:

1. Scientific analysis regarding human rights, protection of citizens and ombudsmen on a national, European and international level;
2. Research on the before-mentioned matters;
3. Propaganda and support for the ombudsman idea;
4. Cooperation with domestic, foreign and international institutions that further similar goals;
5. Scientific support for domestic and foreign ombudsmen;
6. Channeling the discourse on a national, European and international level.

In the meantime the institute made big efforts to further and realize these goals. Namely by organizing a series of scientific meetings and conferences that not only emphasized the international character of the European Ombudsman-Institute, of the ombudsman idea as well as of human rights but where also the improvement of legal protection always served as a main topic. Attention had also been directed to the question about how to reduce the difference in power between government and citizens or between big enterprises and consumers. For the perspective of controlling power has naturally to be a main focus of ombudsmen.

Today the European Ombudsman-Institute stays in contact with all important ombudsmen institutions in Western and Eastern Europe most of which are even members of the institute. The scientific connections have reached a similar network structure. And the membership number of the European Ombudsman-Institute is still growing. Today 89 persons do have membership status classified as institutional (49) and individual members (40) 12 of which are university professors.

With great pride the European Ombudsman-Institute looks back upon all its different meetings and conferences, because they indeed have developed to an international forum of discourse and exchange of experience among ombudsmen. The most important meetings are to be mentioned:

• "Protection of Citizens 2000" from 04/10 to 04/12, 1985, in Innsbruck;
• "Ombudsmanship - Idea and Reality" on 04/24, 1986, in Bolzano;
• "Ombudsman Institutions in the Lake Constance Area" on 05/07, 1987, at Schloss Hofen in Lochau, Vorarlberg;
• "The Ombudsman in a Federal State" on 05/16, 1988, at Burg Lockenhaus in Eisenstadt;
• "Parliamentary Petition Committees and Ombudsman Institutions - Two Means, One Goal" on 06/16 and 06/17, 1989, in Meersburg at the Lake Constance;
• "The Institutions of Ombudsmen in Europe - Common Features and Distinctions", 2. European Ombudsman-Conference from 10/25 to 10/27, 1990, in Bolzano, Trient and Innsbruck;
• " Dealing with Citizen Complaints regarding European Community Jurisdiction" on 06/28, 1993, in Bonn;
• "The Ombudsman and his Relations to Language Minorities; Experience and Prospects" on 09/25 and 09/26, 1993, in St. Kassian, Gadertal, Italy;
• "The Importance of The Regional Ombudsmen", 3. European Ombudsman-Conference from 10/27 to 10/29, 1993, in Victoria/Gasteiz, Basque Country, Spain;
• "Consolidation of Civil Rights Institutions in Europe", 4. European Ombudsman-Conference from 05/31 to 06/04, 1994, in Berlin.

Regularly the different local ombudsmen or petition committees from where the meetings took place co-sponsored and co-organized the meetings, a visible sign of the integrative capacity of the European Ombudsman-Institute. In addition to organizing regional and international conferences the institute tried to initiate publications on ombudsman matters, an effort that related partly to the mentioned conferences as their results have been published. For another part important representatives of the institute published their research results. Moreover, the institute has created a line of publications under its own editorship, the Publication Series of the "European Ombudsman-Institute" whose existing editions will be enumerated in the following:

• Prof.Dr. Egon René Oetzbrugger, The Media Ombudsman, School of Care For Journalists (Vienna 1989, Manz)
• "Ombudsmanship - Idea and Reality", Report About Study Meeting in Bolzano on 04/24, 1986
• "The Ombudsman and His Relation to Language Minorities", Lectures of the Conference in St. Kassian on 09/25 and 09/26, 1993
• "Consolidation of Civil Rights Institutions in Europe", Report About the 4. European Ombudsman-Conference from 05/31 to 06/04, 1994, in Berlin.

Top of page

During all its different activities the institute endeavored to illuminate the ombudsman as a modern phenomenon of governmental power control, his role, the reasons of his increasing importance.

Hereby, a different picture has to be drawn regarding Western democracies on the one hand, the new democracies of the former Eastern Bloc on the other hand. While the modern development of ombudsman institutions in Western Europe partly derives its strength from frustration with the current state of democracy - a thesis that will be substantiated immediately -, the ombudsmen of the new democracies in Middle and Eastern Europe define themselves much more as an important force to establish and secure a democratic development in its very beginning. Therefore, their main interest relates to the fundamental requirements of democracy as such, civil and human rights; therefore, these ombudsmen stress much more the overwhelming importance of the rule of democratically enacted law than their colleagues in Western Europe,¹ (For instance Prof. Dr. Tadeusz Zielinski at the 4. European Ombudsman-Conference from May 31 until June 4, 1994 during his lecture: "The Power of the Polish Citizens Commissioner and its limits") where ombudsmen demand for themselves more and more even the role of a counterpart to parliaments that come persistently under stronger influence of rapidly shifting public opinions. Obviously, law is being appreciated more in countries where it did not exist so far as an expression of democratic will. In the highly developed Western social welfare societies the call for the ombudsman has to be analyzed - as mentioned - much more in the light of a common frustration with the current situation of democracy and the constitutional state. The unease expressed itself in several protest movements, for instance the student tumults of 1968. Did these movements attempt to overthrow the constitutional state or were they just a sign of the desire to strengthen the links between governments and citizens? Did they fight against democracy, because they fighted against decisions of democratically elected politicians? Or did they only try to expand the voting power of the people including not only the right to elect parties and members of parliament but also to vote on specific issues as an instrument of direct participation in how to design law and society?

No general answer can be given, because different concerns and political aims led evidently to the different protest movements. However, it is widely agreed that the quality of democracy and the constitutional state had - and still has - to be improved; that despite its high standard the pacifying function of the constitutional state has not reached its optimum. This relates to balance of power as a key principle of every constitutional procedure, because the procedural guarantees can easily be undermined by different social and financial capabilities comparing government and citizens but also big enterprises and consumers.

Furthermore, together with its unavoidable consequence of a bureaucracy that is growing steadily in quantity and quality the social welfare state counts as an important reason for the success of the ombudsman idea. Eventually it reached also the European Union where the Maastricht Treaty prepared the basis for an European Citizens Commissioner whose first office-holder will probably be elected in 1995.

Finally, even legality as highest principle of public administration could be another reason for the increasing power of the ombudsman idea. It is not that anybody wants to raise doubts about the benefits of legality and impartiality as standards of public administration. For the institution of the ombudsman can only exist within a democratic and constitutional state structure: without recognition of human rights, without participation of citizens in public matters, without service-mentality in public administration as preexisting commitments adopted by constitution, political system and social order the ombudsman cannot have any impact at all. - But equity and justice in every single case must be added as further goals, principles that ombudsmen are specifically committed to. Insofar the ombudsman constitutes a complementary institution to personalize public administration, to direct its focus on the needs of the individual human being - notwithstanding the rule of law. Because of their mediating capacity ombudsmen seem to perform better in dealing with modern conflict situations than traditional dispute resolution mechanisms.

Top of page

What are the key features of nature and function of ombudsmen? Despite all structural distinctions between different constitutional and legal systems there exist some main elements that are common to the different types of ombudsmen. The degree of conformity reaches a higher level, though, regarding the functions of ombudsman, while in terms of organization and structure the variety is bigger. Typically, ombudsmen are independent and do not have any executive power. Moreover, they are nowhere designed to replace existing instruments of legal protection like appellate courts or controlling boards within the administrative system. By contrast, ombudsmen constitute an additional agency where complaints can be addressed to.

It counts as one of the main ombudsman duties to support and guarantee legality and quality of public administration, especially regarding matters where the law has granted discretionary power to public officials and in areas where public administration does not interfere with rights but only with interests of citizens.

Besides, in many countries ombudsman are designed as an instrument of parliament to strengthen its control over government.

Finally, the mediating function of the ombudsman has gained more attention in recent times, the more so because the increasing complexity of public administration creates a continuously increasing lack of insight among people. For, on the one hand, ombudsmen have to protect rights and interests of the people against government and public administration. On the other hand, ombudsmen might also explain to citizens why specific governmental actions are not only lawful but also necessary. Insofar the ombudsman is able to create trust and confidence between citizens and public administration. In light of this trust building function the ombudsman himself appears as a governmental representative supporting a transformation process from a magisterial to a democratic administration of public affairs.

Concerning the relation to minority groups the mediating role of ombudsmen might produce invaluable benefits. For minorities often do strongly mistrust the state and its public officials, in many instances with good reason. Establishing regional ombudsmen gains insofar high priority. Yet, just when dealing with minorities ombudsmen have to be very careful not to appear themselves as part of the mistrusted governmental organization. Recognizing this danger one can see how important the independence of ombudsmen really is.

Top of page

The European Ombudsman-Institute tried again and again to initiate discussions about how to reform and improve existing ombudsman systems. Different goals have been stated. In contrast to their exclusively subsequent controlling power in many states ombudsmen should be able to intervene in pending cases. They should be given the right to enter a trial and to appeal against administrative decisions. Letting ombudsmen file actions against unconstitutional laws with the supreme court appears as a promising approach. Whether it should be a precondition of complaints to ombudsmen that individual rights have been interfered with instead of granting a general right to appeal against any decision of any administrative authority like in Sweden, Finland or Denmark leads to another interesting question.

Finally a request to ombudsmen themselves: They can strengthen their impact enormously by using the media, not least in order to create a public support for recommendations to parliaments about where and how to change the law. In this context the publication of the annual reports seems a very promising possibility. Because of his personal authority and the quality of his arguments the ombudsman and his publications may influence administrative standards by inhaling specific and exemplary meaning to the principles of equity and justice. Through the use of publications the soft law of ombudsmen might benefit greatly.

After that some considerations to the status of the ombudsman: only if parliaments appoint ombudsmen, a sufficient degree of impartiality and independence from administration and government can be secured. In addition, qualified majority rules should determine the voting procedure in parliament - so that any ombudsman election requires decisions taken by a two-third majority, at least - in order to create high enough a democratic legitimacy as well as the necessary distance to single parties and their interests.

Top of page

Of special interest turned out the question whether parliamentary petition committees - that do exist in Germany for instance - are able to completely substitute for ombudsmen. While parliaments are able to eliminate political deficiencies better than ombudsmen, the latter can react more effectively if the law does not have to be changed in order to help the complaining citizen. For members of parliament are usually no experts and in light of the political character of their office they usually demonstrate more interest where issues matter politically. In a dual system ombudsmen are even able to enhance the efficiency of petition committees by filtering out those cases that properly should be dealt with in parliament.

Top of page

Undoubtedly, the European Ombudsman-Institute made big efforts to keep a vivid discussion about ombudsman affairs alive, to create standards for and give guidance to ombudsmen and politicians. The institute has always addressed politicians as well. because the further development of the ombudsman idea depends heavily on their backing. The institute will continue its efforts to contribute to the creation of a typical, generally valid profile of the ombudsman and his duties.

Top of page