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VARIA
40 (E) abbreviated version
Dr
Peter Kostelka
Austrian
Ombudsman Board -
fostering
democracy by mediation between citizens and the state
or:
The
importance of office days and of the presence in the mass-media
Introduction
The spread of the ombudsman idea is based on the conclusion that
there is a need of a "new quality of legal protection and
remedy" in order to overcome deficiencies and shortcomings
as to the efficiency of traditional systems of legal protection
and bureaucratic obstacles, which exist in the context of these
systems. In about 125 member states of the United Nations there
are ombudsmen respectively similar institutions. So in more than
two thirds of the UN-member states we can find such controlling
bodies.
The
Austrian Ombudsman Board being a child of a state dominated by
political parties and being born under specific parliamentary
conditions has gradually become a sort of institution for the
protection of citizens' rights with especially Austrian characteristics
in the course of the past 26 years of its existence whereas younger
ombudsman institutions in Central and Eastern Europe have been
created as institutions for the protection of civil rights respectively
fundamental human rights right from the beginning on and hence
had the function of an engine generating the development of civil
society .
In
Austria there is no other institution of the state which provides
services that could be consumed by any citizen as easily as those
of the Austrian Ombudsman Board since no formalities or fees have
to be considered when filing a complaint with the board or asking
for help. But it is also these citizens that do actually influence
the ombudsman's work. Primarily it is the complaints and stories
about grievances in public administration told by citizens concerned
by maladministration who make the ombudsman and his staff take
measures. It is the citizens who articulate which requirements
must be met by the state and a good public administration, which
effects are implied by certain administrative measures and it
is also these citizens who want to know whether certain administrative
measures and decisions are in compliance with the law and hence
have to be accepted or not. But there are also citizens who contact
the ombudsman without being affected by acts of maladministration
just in order to draw the attention to certain general grievances
and shortcomings; in this context the ombudsman will be free to
start an ex officio review procedure. The Austrian Ombudsman Board
as well as every parliamentary ombudsman has got the function
of an institution that has to be accessible easily for everybody
who is subject to the law and has to confront public administration
with alleged grievances to uncover acts of maladministration in
a constructive way in order to pave the way for a process of consideration
and improvements in the future or has to confirm correct administrative
decisions. The ombudsman both has to act as somebody who provides
help and assistance to the individual and as a supreme body of
the state drawing conclusions from intentional acts of maladministration
or errors of public officers, which may lead to new general guidelines
for public authorities. With respect to his experience in the
context with the application of legal provisions in force the
ombudsman has also got to give impulses for amendments and alternative
legislative solutions.
According
to the opinion of the European Council ombudsman institutions
as such are an important part of "bonne gouvernance"
respectively "good governance" . So in easy speech one
could say that the ombudsman has to guarantee that the law does
not only come from the people as the real sovereign of a state
but that the law does also come back to the people again. In this
context the ombudsman board has been entrusted with the function
of an institutional link between the citizens and the state.
Consultation days of the ombudsmen in the capitals of the federal
states, at local authorities and in local communities
There
has always been some controversy in parliament, in the mass media
and in jurisprudence concerning the organization of the Austrian
ombudsman institution as a board consisting of three incumbents
who decide on their allocation of business and standing orders;
also the Austrian Convent (Österreich-Konvent), which is
working on a general revision of the Austrian constitution, will
deal with this issue . My colleagues and me hold the view that
the "board-system" has proved to be very worthwhile.
One has to state that this sort of organization offers the opportunity
for personal contacts with citizens and for individual care for
their legal problems to an extend, which is quite unique when
compared to other national ombudsman institutions.
The
direct contact and communication with people in the course of
consultation days in Vienna and the Austrian Federal States (Bundesländer)
demonstrate that the ombudsman board is not a part of anonymous
bureaucracy and represent the "unique selling point"
of the ombudsman board. Since the Austrian Ombudsman Board is
a national ombudsman institution which is obliged to conduct review
proceedings in the field of federal public administration and
in addition in the field of local administration in seven federal
states it has always been the intention of the ombudsman board
both to make clear that the headquarters of our institution are
in Vienna but that at the same time our scope of competence and
activities also comprise the whole federation and the federal
states.
It
is especially the parliamentary ombudsman who has the mission
to support those who are not supposed to have the power to deal
successfully with bureaucratic obstacles and maladministration
themselves by offering the opportunity for a personal talk. There
are a lot of people who really want to discuss their case with
an incumbent of the Austrian Ombudsman Board in person and who
do not only want to correspond with the ombudsmen in writing.
Personal meetings with incumbents of the board in the course of
consultation days can be directly arranged by the office of the
respective ombudsman; the consultation days as such are announced
by local media and on the home page of the board.
Obviously
it is easier for people living or working in Vienna to contact
the members of the board personally and to arrange a personal
meeting with an ombudsman because due to the number of inhabitants
of the city and with respect to the fact that the ombudsmen's
headquarters are located in Vienna it is in this town where most
of the consultation days are held.. In 2002 there were 263 consultation
days, 129 of which were held in the federal states. In 2001 101
consultation days out of 229 were in the federal states. However
there were 1.260 consultation days which were organized outside
Vienna in the past 11 years offering 17.000 inhabitants of rural
areas the opportunity for personal talks about their case and
legal matters. When going back to the very beginning of the ombudsman
institution in 1977 one will find that there were about 35.000
persons who had met members of the ombudsman board in capitals
of the federal states, in provincial towns and bigger villages
in the course of consultation days; one could say that is the
capacity of a medium sized football stadium of a well known football
team.
Considering
these figures a single ombudsman, who has not even got an official
car at his disposal, would have been obliged to travel through
the federal states for a total time of five years in the course
of the past 11 years in order to hold the same number of 1.290
consultation days that all together had been held by the three
board members during that period. Since actually there is a board
of ombudsmen it is quite easier to manage consultation days and
to provide a high frequency of personal contacts respectively
meetings with an ombudsman. After all there are about 40 consultation
days held by each of the members of the ombudsman board in the
federal states; so each ombudsman is "on the road" for
about two months per year. On first sight that does not seem to
be dramatic, but one has to take into consideration that consultation
days are often linked to special events and meetings with representatives
of authorities or mass media and of course a lot of coordination
work with regard to the ombudsman's agenda concerning his activities
in Vienna has to be done.
In
the course of consultation days one makes a great variety of experiences,
since people often tell the ombudsman about their most private
problems because they know very well that the ombudsman will keep
all information strictly confidential so that nobody must be afraid
of negative consequences; against this background the communication
with an ombudsman is quite different from that with a judge, a
prosecutor or even a deputy. A personal talk makes it easier to
express one's feelings, one's attitude and the whole way of thinking
about problems. A letter sent to the ombudsman by a person who
hopes that his/her problem will be well understood and handled
in the right way generally cannot meet the standards of a personal
talk. Even if it is often the little problems and shortcoming
of everyday life that are articulated at consultation days it
is especially these problems that often make the ombudsman realize
what kind of needs and sorrows people do actually have. This confrontation
with "real life" makes clear that frequently people
are not interested in things like formal legality of public administration
or the fact of correctness as to the detailed application of legal
provisions in force; they simply want fair decisions of public
authorities. They expect that their case is decided in a fair
way and that justice is done.
With
regard to these expectations of citizens the ombudsman has got
the obligation to call public authorities not only to do what
they are obliged to do under existing legal provisions but also
to consider all options in order to reach a fair and widely acceptable
solution in the specific case. Sometimes it takes a lot of time
and it may imply quite an effort for the ombudsman himself to
get a personal impression of a complainant and his case, and on
first sight it might seem to be easier and more efficient to have
this work done by members of the staff of the ombudsman board;
but actually the personal contact with citizens makes the ombudsman
realize that for an ombudsman institution there are special standards
for assessing a legal case since the individual and his/her specific
problems have to be the most important factor whereas legal considerations
as such should not prevail.
The
constitution does not oblige public authorities to apply legal
provisions restrictively by taking merely the wording of relevant
provisions into consideration without considering the special
circumstances of an individual case. Such an - widely accepted
- approach based on the rule of law as set forth in article 18
of the Austrian Federal Constitutional Act (B-VG) is wrong. It
is not only legality which has to be a constitutional standard
for the application of law by public authorities but also equity
. Moreover the rule of law involves the obligation to consider
aspects of equity whenever the law provides some margin of discretion.
Especially in the field of social law there are unwritten obligations
of providing assistance for citizens asserting legal claims; in
this context one has to take recourse to the "obligation
of social application of the law" as developed by the courts
.
One
also has to accept that both in the course of review proceedings
of the ombudsman board and on consultation days the ombudsman
is often confronted with actual limits of the law. We also have
to realize that the construction and institution of legal relationships
and legal claims have led to a certain decay of morality and fairness
with regard to human relations both in private and public life.
In this context public authorities are also partly victims, especially
when people try to settle their private conflicts by legal means
and remedies and attempt to abuse the legal system for private
revenge. If you get to know to all these tragic stories of conflicts
between neighbours involving complex legal proceedings that often
take several years to come to a final decision you will realize
the importance of trying to bring all parties involved together
again in order to reach a friendly settlement of a dispute. That
however requires the personal engagement of a politically responsible
person, who - just like the ombudsman - must also have the function
of a mediator.
The
position and approach of the ombudsman does at any rate require
a clear and consistent attitude towards the legal, political and
democratic function of the ombudsman board as well as the consciousness
as to the fact that the board's mission is of high complexity
since it implies discretion and options with regard to various
aspects. The obligation to call public authorities to grant redress
for damages and grievances even beyond the traditional legal protection
system and to propose both the authorities and the legislative
bodies to implement necessary improvements must be regarded as
a mission which can only be carried out by an institution that
is capable of demonstrating authority, competence and integrity
and whose legitimacy is directly deduced from the citizens and
is based on the constitution.
Public
relation activities on TV
An
ombudsman has to make public what he considers being an act of
maladministration and which improvements should be implemented.
Taking into consideration that the Austrian Ombudsman Board is
not able to impose legally binding sanctions on authorities and
being aware of the fact that it has got no legal remedies at its
disposal to enforce its legal opinions one has to realize that
the efficiency of the ombudsman board depends on its capability
of convincing authorities to follow and respect the recommendations
of the board more or less voluntarily. In this context it is the
reputation and popularity of the ombudsmen, the public consciousness
about their dedication to the protection of civil rights and the
significance of their arguments which all together lead to an
increase of the acceptance of the board. Besides the consultation
days there is a second element characteristic for the Austrian
Ombudsman Board and representing a difference with regard to other
European ombudsman institutions which has contributed quite a
lot to an increasing confidence in our institution: For more than
two years we have got again a "window to the public"
on television, which we still keep open.
Due
to the efforts of the former Federal Chancellor Dr Bruno Kreisky
in 1979 a weekly broadcast on TV with members of the Austrian
Ombudsman Board and their staff came on the air at prime time
. The live broadcast, which always took 22 minutes, was part of
the program of the ORF (Austrian Public Broadcasting Corporation)
until 1992; it had up to one million spectators and until 1983
there had been even an additional 45 minutes' broadcast on the
radio.
My
colleagues and me have made great efforts to establish the broadcast
"Volksanwalt - Gleiches Recht für alle" (Ombudsman
- justice for everybody), which at present is on the air in the
early evening once a week. Every Saturday at 5:45 p.m. 600.000
spectators on the average have got the possibility to watch a
confrontation between members of the Austrian Ombudsman Board
with officers of public authorities for 35 minutes and can see
what the Austrian Ombudsman Board is able to reach and which results
it wants to reach. The respectably increased popularity of the
ombudsman board has immediately led to an increase concerning
the number of complaints against public administration lodged
with the board. Since the broadcast has come on the air in January
2002 the number of applications respectively complaints has increased
for 64%. Whereas in 2001 there were 9.032 people contacting the
board there were 14.851 persons doing so only one year later.
Luckily in 2003 the caseload stagnated on the level of the preceding
year. The cooperation with the ORF is accepted by the citizens.
After all every eighth review proceeding is directly linked to
the broadcast.
The
positive public response to the launch of the new broadcast in
January 2002 implies the chance to attract the attention of spectators
and authorities to a fair way of public administration as it is
defined by the Austrian Ombudsman Board and hence to foster our
approach. It is principally characteristic for democracies, that
public administration is accountable for its actions and omissions
and that in this context its representatives must be ready to
take part in discussions and disputes. These representatives can
expect not to be pilloried by the ombudsman or the presenter of
a broadcast just only because the claims of a citizen had to be
rejected due to binding legal provisions since it is clear that
it cannot be the intention to reach arbitrary results by exerting
pressure via mass media. This effect cannot only be reached by
the public but also merely in the public. In the broadcasting
there is public control by the spectators not only with regard
to the public administration but also to the ombudsmen themselves.
It is also the ombudsmen who have to consider the opinion and
criticism of the spectators.
There
are also additional other factors which mirror the new general
interest in the activities of the Austrian Ombudsman Board. Whereas
in 2001 there were no more than 48.000 visits of the homepage
of the Austrian Ombudsman Board the number of internet users interested
in the information about or consultation days and annual reports
on our homepage nearly doubled (95.000 users; 380 visits each
working day). The number of applications filed via e-mail also
even doubled (1999:203; 2002:4.721; 2003: 8.428). In this context
the Austrian Ombudsman Board seems to have the same problems like
other institutions which are generally accessible for everybody:
In 2002 only 2.493 out of 8.428 e-mails (10 e-mails per day) could
be linked to a review procedure; the rest had to be seen as "electronic
garbage" (virus, spam, etc.).
Regardless
of the appreciation for the "new media" and new means
of communication which nowadays have become a part of our every
day life, we should not forget all the people who want to articulate
their problems and needs via traditional channels of communication.
Since 1977 about 67.000 persons have contacted the Austrian Ombudsman
Board by telephone. In 2001 the information service of the ombudsman
board, that can be contacted daily between 8 a.m. and 4 p.m. had
to deal with 4.682 telephone calls. In 2002 the number increased
to 7.645 calls, which had to be handled in the 250 working days
of that year (about 30 calls a day).
In
this context the free service line (0800 223 223) of the ombudsman
board is of special importance. It guarantees that there is no
regional discrimination of people who contact the ombudsman board
by telephone. This free service does not only provide an easier
access to the ombudsman board but it also clearly mirrors the
Austrian Ombudsman Board's function as a controlling body not
only in the field of federal public administration but also with
regard to the public administration of 7 federal states and their
local communities. In 2003 the service line cost the ombudsman
board a total amount of 16.000. The free service line also
guarantees that inhabitants of the federal states can contact
"their ombudsmen in Vienna" under even better conditions
as if they had their headquarters in the respective capital of
a federal state.
We
consider the interest of the population in the Austrian Ombudsman
Board's activities, which has constantly increased since 2001,
being an indicator for confidence in our efforts and a confirmation
of our approach concerning the effective implementation of a good
and comprehensive service for citizens, which comprises more than
only calling for better standards of administration. We cannot
change the people, especially the people engaged in politics,
with all their faults, but we can try to shape the institutions
which form the framework for their activities in a way that selfish
interests of political actors can be converted in a way that makes
them useful for the welfare of the individual and the community.
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