President Costa,

President Maura,

Professor Gandolfo,

Doctor Di Giovine,

Ladies and gentlemen,

It is a great pleasure and an honour for me to address you on this occasion. I wish to thank the Società di letture e conversazioni scientifiche and the Rotary Club Genova Sud-Ovest for making it possible for to me speak in these magnificent settings, during the year that this city with such a long and great history is the cultural capital of Europe.

My presence in your city forms part of a larger, ongoing project that I, as European Ombudsman, have undertaken in order to make citizens of the European Union better aware of their rights and of how to enjoy them more fully. As part of this project, I have, since assuming my duties almost exactly one year ago, on 1 April 2003, travelled widely throughout the Union and, by this Fall, will have visited all 25 Member States. In order to better confront the problems associated with the lower level of awareness, in this country, of the benefits of European citizenship linked to the operation of the ombudsman institution at the European level, I have already visited Italy twice. In June 2003, I spent two days in Florence, and earlier this year I found myself in Trieste and Udine. I am delighted that my visit to Genoa gives me an opportunity to visit Italy for a third time, and remain persuaded that other opportunities will arise in the future that will bring me back to a country that has not only exhibited a long and sustained commitment to the ideals of the unfolding European project but is also the one on whose capital the initial treaty creating the core of what we now know as the European Union was signed almost half a century ago.

And as the European Union is fast approaching the date when its largest enlargement to date will become a reality--in the process bringing to an end the major, traumatic and profound divisions brought about by what I like to think of as the European civil wars of the 20th century--I thought it appropriate, indeed opportune, to share with you some thoughts on a broader topic linking the institution of the ombudsman to two central political-institutional parameters that directly affect its capacity to serve citizens and to contribute to their ability better to enjoy their rights: rule of law and democracy. My argument, simply put, will be that the particular temporal sequence in which rule of law and democracy are introduced in a given society and country will directly affect the political and institutional environment within which the ombudsman can operate. More specifically, I wish to argue that where rule of law precedes democracy, the resulting politico-institutional and cultural environment will be more hospitable to the fuller actualisation of the ombudsman's potential and more conducive to its serving as a mechanism contributing to the substantive empowerment of citizens. Conversely, the reverse sequence, where the introduction of democracy either precedes that of the rule of law or even coincides with it, constitutes a suboptimal option from the point of view of citizen's empowerment through the enjoyment of their rights. Allow me to develop my argument more systematically.

To begin with, let me stress the obvious, that is, that, even though in contemporary European legal culture, rule of law and democracy are thought of as forming an inseparable and, so to speak, natural pair, they are clearly separable and analytically very different.

Rule of law describes a condition in which all members of society live under the law, and where no one can operate outside or above the law. Its historical origins derive from European feudalism, and, more specifically, from the tight and complex nexus of reciprocal rights and obligations which, over time, issued from the contractual relations linking lord and vassal together. Flowing directly from such a situation is the additional principle that, under the rule of law, every person is subject to ordinary law and not to extraordinary or exceptional arrangements. A crucial condition relating to the generation of the rule of law and underpinning its existence is that its general principles are necessarily the product of judicial decisions, in other words, that the courts constitute the foundation upon which the rule of law is built and on which its development and evolution depends. Finally, to confine myself to very basic attributes, rule of law by definition implies the absence of the arbitrary exercise of power, captured so elegantly by the Latin maxim "Quod principi placuit, legis habet vigorem".

A further dimension associated with the rule of law is that, under conditions characterised by its acceptance, the constitution of the state is effected on the basis of what Max Weber described as "legal-rational" rules, which serve as the legal foundation of power and of the state.

Finally, the evolution of the rule of law has, over time, resulted in social and political arrangements, whose distinctive characteristic is that the relationship between rulers and ruled is not direct and immediate, but is rather mediated by structures or institutions enjoying legal recognition and authority, placing effective limits on the power exercised by the ruler. This characteristic of the rule of law and of the pattern of mediated exercise of power that it is associated with was astutely captured and extensively analysed by Montesquieu in his Spirit of the Laws, under the apt term "corps intermédiaires".

In contrast to the rule of law's more ancient pedigree, democracy is a much more recent phenomenon that is inextricably linked to the political and socio-economic upheavals that shook the European Continent and the American colonies in the "long century" beginning in the last quarter of the 18th century. Associated with the gradual expansion of the right of suffrage to an ever increasing number of subjects turned citizens, democracy, and especially its liberal variant, nowadays enjoys undisputed legitimacy not only throughout Europe, which constitutes the object of our concerns today, but among the overwhelming majority of states around the world.

I will not trouble you with various definitions of democracy, many of which tend to be very long and elaborate. Rather, implicitly inclining towards a minimalist conceptualisation, I will confine myself to identifying some of the basic attributes of democracy that serve as fundamental preconditions for its legitimacy and effectiveness. In my mind, these include (a) the capacity to allow for fair elections, (b) the existence of more than one legal parties having the right freely to contest an election, and (c) the absence of what political scientists call "veto groups", capable of effectively interfering with the democratic process and of, in one way or another, subverting or voiding decisions taken by the voters. Traditional examples of such veto groups are the monarchy, the armed forces, or other parts of the state apparatus unwilling to accept the popular verdict of an election as legitimate and final.

It follows from what I have just said that democracy cannot be simply equated to parliamentary institutions or to the mere holding of elections. The existence of the former in many parts of the world today and in many parts of Europe in the past, including this Southern part of Europe, did not ensure that the conditions outlined above as characteristics of democracy were adequately met. At the same time, even a cursory look around the world will provide ample evidence to support the view that the conditions under which elections are held in many countries do not meet the criteria of fairness, contestation and absence of veto groups outlined above. Rather than democracies, these can better be thought of as "electoral regimes", whose capacity to abide by the requisites of democracy is still quite limited.

Let me, finally, make an additional and, in certain ways, more complicated point, which has to do with the relationship between democracy and the legality of the state. To put it simply, acceptance of the legality of the state in the eyes of its citizens constitutes a prior condition for the smooth operation of democracy. In fact, I would take this proposition one step further and argue that if the state is not perceived as legal, then the democratic process cannot rectify this problem. This observation serves to clarify an important point of high salience for our discussion. It highlights an essential distinction between rule of law and democracy, by pointing to the fact that the majoritarian logic driving the democratic process cannot, a priori, be used as an instrument for settling issues pertaining to the primacy of the rule of law. To give but one example to which I will come back later and which has direct relevance to political problems facing a number of more recent European democracies: the democratic process, in other words the majoritarian principle, cannot be made use of to resolve issues relating to the defence of human rights, including the rights of minorities.

As I have already indicated, democracy has, in its short modern existence, assumed many forms and varieties. Much depends on which principle or attribute one chooses to use as a criterion for classification. As a result, we can variably speak of parliamentary, presidential, or semi-presidential democracies, the latter being used in reference to the type installed in France under Fifth Republic; alternatively, we can think of democracies as majoritarian or consensual; or in terms of the republican versus the constitutional monarchy divide.

If we were to move our examination to the level of abstract principles informing democracy, I would argue that liberty and equality, two of the most powerful intellectual legacies of the Enlightenment and of the political revolutions these gave rise to, serve as a solid foundation upon which all modern democracies have been constructed. The relative balance between these two principles built into constitutional formulae and resulting institutional arrangements allows us to distinguish between two variants of modern democracy which have a particular bearing to contemporary political and intellectual debates concerning both democracy and, especially, the quality of democracy in the European Union and beyond.

The first variant, which derives its roots from the Jacobin legacy of the French Revolution, privileges equality as the fundamental organisational principle of democracy. Its attractiveness lies in the elegance issuing from its simplicity. According to this conceptualisation of democracy, shorn to its essentials, the sovereign people constitute the sole source of power, whose sole institutional expression is (a mostly unicameral) parliament. In majoritarian systems capable of producing single party cabinets, the majority party constitutes the natural and logical sole expression of popular sovereignty and, as such, assumes exercises power on behalf of the sovereign people.

The obvious advantages of such an egalitarian conceptualisation of democracy notwithstanding, its major drawback, deriving directly from its preoccupation with equality as its major, if not sole, organisational principle, is that it is driven by what I would describe as a "unidimensional" logic geared to privileging homogeneity over diversity. Pushed to its logical extremes, such an emphasis on homogeneity so intimately linked to equality risks generating a flattening dynamic capable of imparting a dimension of "levelling egalitarianism" to the democracy associated with such a unidimensional logic. In turn, such a conceptualisation of democracy raises serious concerns relating to the observance of the rule of law and the respect for the enjoyment of rights and obligations linked to it.

The alternative variant, which, I hasten to add, seems to be drawing growing attention in recent decades and to serve as is an increasingly attractive paradigm to emulate is characterised by the systematic search for the construction of institutional arrangements capable of embodying various combinations of the principles of equality and liberty. Driving this conceptualisation of democracy is a pluralist logic, whose overriding preoccupation is the search for an optimal balance between institutions alternatively expressive of egalitarian and libertarian principles. Such an overarching balance, which, for its crystallisation, consolidation and entrenchment over time, relies on the generation of a dense network of institutional checks and balances or counterweights, provides better conditions for the observance of the rule of law and for the quality of democracy.

It is not, therefore, accidental that it is in democracies that most approximate this variant the role of the judiciary as the fountainhead of the rule of law is most developed and respected and acceptance of the ombudsman as a quintessential example of such a counterweight enjoys greatest legitimacy. I simply note that the institution of the ombudsman, initially established in Sweden in 1809 and subsequently spread to Finland in 1919, Denmark in 1953, Norway and New Zealand in 1962 and the United Kingdom in 1967, now exists at the national level in 13 of the 15 Members States in the European Union (and at the regional and local levels in Italy and Germany), in 10 out of 10 accession countries, and in 6 out of 8 states in Southeastern Europe, and is intimately identified with norms and practices geared to the promotion of the quality of democracy and respect of the rule of law.

Let me now come to the final section of my presentation and pose the question of which combination of rule of law and democracy constitutes a more hospitable environment enabling the ombudsman better to serve as an institutional counterweight capable of defending the rights of citizens, combating maladministration and protecting human rights. For the sake of clarity, I propose to identify two scenarios. In the first, which is more typical of more mature democracies, the introduction of the rule of law historically preceded democracy. In all such cases, the prior existence of the rule of law as the fundamental underpinning upon which a state organised along legal-rational rules was erected made it easier to confront the inevitable tensions and occasional upheavals associated with the rise in popular participation linked to the introduction of democracy in each country.

In countries where such a sequence resulting in the positive articulation of rule of law and democracy obtained, the emergence of the ombudsman as an institution distinct from, but complementary to, the courts, capable of serving as a non-judicial mechanism of accountability geared to the enhancement of the rule of law and to the protection of citizens' rights was both much easier and much more effective. In turn, this complementarity offers citizens a broader range of choice when it came to deciding how best to exercise their rights, and, as such, contributes positively to quality of democracy.

In the obverse scenario, where democracy is introduced in countries where the rule of law tradition is weak, fragile, or, in the worst of cases, simply lacking, the prospects for the ombudsman to serve as an effective mechanism of accountability and to contribute to the deepening of both rule of law and democracy are less bright. Where democracy cannot count on the norms and values associated with the culture of respect for reciprocal rights and obligations generated by the rule of law, and where, as consequence, the courts cannot effectively serve as the cornerstone for the construction of a system of institutional checks and balances and of a dense network of counterweights, the power of the executive branch of government and, more generally, of the state can remain unrestrained. Such an environment is almost by definition inhospitable for the ombudsman institution and severely circumscribes its capacity to serve as an effective mechanism of accountability, capable of protecting the rights of citizens. In such circumstances, the ombudsman is faced with the unenviable alternative of becoming marginalised and potentially ignored or, less frequently, of becoming burdened with unrealistic expectations concerning its role as a mechanism of control responsible for holding the executive branch of government accountable. (This latter alternative, which is encountered in certain of the new democracies in Southeastern Europe, is based on a misreading of the Swedish and Finnish precedent, where, for historical reasons, the ombudsman was also equipped with prosecutorial powers.) In either case, the likely end result is the gradual delegitimastion of the institution, as its incapacity to serve its avowed purpose leads to the erosion of its moral authority and robs it of its raison d'être.

Let me conclude, by attempting to apply this theoretical schema on concrete historical reality and to demonstrate its utility to contemporary Europe. In line with the logic of scenario 1, in which the rule of law historically precedes the introduction of democracy, I would argue that successor states (and even regions) of the Austria-Hungarian Empire, where the rule of law became well entrenched from the mid-18th century on, receiving great impetus during the golden half century (1740-1790) of Maria Theresa's and Joseph II's reigns, and where familiarisation with democratic practices dating to the interwar period, provided a better political and institutional environment for the development of the ombudsman institution and for its capacity to serve an effective mechanism of accountability, once democracy was introduced (or, in certain cases, reintroduced) and a modern democratic state was constructed. The role which the ombudsman has, over the past decade or so, been able to play in the construction of modern democracies in Poland, Hungary, the Czech Republic, Slovenia, and, more recently, Slovakia provides strong empirical evidence in support of this argument.

Conversely, in the successor states of the Ottoman empire, where, (a) again for historical reasons, the state retained to the very end, in the early 20th century, its highly patrimonial character and the rule of law never acquired roots; where, (b) as a result of authoritarian and totalitarian rule, familiarity with democratic practices was at best very limited; and where (c) the introduction of democratic practices effectively coincided with, if it did not precede efforts to establish, the rule of law, the challenges facing the ombudsman institution as its seeks to carve out its proper role are formidable. The experiences of ombudsmen in Southeastern Europe to date constitute telling evidence of the much more tortuous road the institution will have to travel on its way to becoming an effective instrument of control and accountability capable of substantively contributing to the defence of citizens' rights.

Let me conclude with two final observations. The first recalls the point raised at the beginning of my presentation concerning the impossibility of solving issues relating to the legality of the state from within democracy, by making use of the majoritarian principle. This observation has special relevance to all the more recent European democracies facing problems of accommodating minorities into their democratic systems, and is especially pertinent to states, such as Lithuania, where minorities are particularly large. It also forcefully highlights the more general point, also made earlier, that, in certain instances, questions relating to the rule of law, such as the defence of human rights, cannot be resolved by having recourse to the majoritarian logic of democracy. Hence the need for the balanced development of both, if the interests of citizens are to be well served by a modern democratic state.

The second observation concerns the European Ombudsman and, more specifically, the challenges he has to face as he tries to promote the rule of law and democracy in the Union. I remain deeply convinced that success in this difficult task is only possible, when ombudsmen at all levels of governance, European, national, regional or local, effectively collaborate and coordinate their efforts, with an eye to serving citizens better. It is for this reason that I have been trying to convince the Intergovernmental Conference for the Future of Europe to include in the draft constitutional treaty an explicit recognition of the rights of European citizens to have access to ombudsmen and other non-judicial means of redress, when seeking to defend their rights. Success in this direction will make it easier for all of us to help you, the citizens, know your rights better and to also better enjoy your rights. It is, as I indicated to you at the outset of my presentation, in pursuit of this goal that I have undertaken to visit all member states of the European Union as well as the candidate countries by the fall of this year. It is in pursuit of this goal that I at this very moment on my third visit to your country, addressing a distinguished audience of citizens in this year's cultural capital of Europe. And it is in pursuit of this goal that I pledge myself to return and to work with my colleagues to serve you better.

Thanks you very much for your patience and for your attention. I am at your disposal for questions or clarifications.