Introduction

Dear friends and colleagues, I would first like to thank the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, and the Greek Ombudsman, Giorgos Kaminis, for the invitation to participate in this Round Table.

In September last year, I addressed another conference in Athens, which the Commissioner and the Greek Ombudsman had organised jointly with the Human Rights Ombudsman of the Russian Federation. I began my contribution on that occasion by quoting the Prime Minister of Luxembourg, Jean-Claude Juncker, who described relations between the European Union and the Council of Europe as a “partnership between our two different but complementary organisations”.

It is in the same spirit that I share with you today some ideas about strengthening the independence, effectiveness and accountability of ombudsmen and national human rights institutions.

There are of course, important differences between those two kinds of "national human rights structure", to use the terminology of Mr. Hammarberg's background paper for this Round Table.

The national human rights institutions carry out a variety of functions, some of which overlap with those of ombudsmen. According to the "Paris Principles", however, they do not necessarily perform an ombudsman’s core function of complaint-handling.

There is also considerable variety in the ombudsman world. 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, including ombudsmen in Europe, 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.

In my own case, for example, Article 195 of the EC Treaty empowers me to inquire into "maladministration" in the activities of the Community Institutions and bodies. From the very beginning of the European Ombudsman’s activity, the term “maladministration” has received a wide interpretation. It encompasses violation of human rights, including the fundamental rights that are an integral part of the general principles of European Community law, as well as other kinds of illegality and administrative malfunction.

The European Ombudsman has also consistently taken the view that the three European Union institutions which proclaimed the Charter of Fundamental Rights at the Nice summit in December 2000, that is the European Parliament, the Council of the EU, and the European Commission, should respect its provisions, and that failure to do so would constitute maladministration.

The right to a judicial remedy is itself a fundamental right under the Charter. In recent years, the Court of Justice of the European Communities in Luxembourg has turned explicitly to the case law of the European Court of Human Rights when dealing with issues of human and fundamental rights as part of Community law.

In speaking to this audience, I need not labour the point that, alongside and complementary to the courts, non-judicial remedies also have a vital role to play in ensuring the effective protection of rights. The first Council of Europe Commissioner for Human Rights, Alvaro Gil-Robles, explained the point most eloquently in his response to Recommendation 1615 (2003) of the Parliamentary Assembly of the Council of Europe on “the institution of ombudsman”. He said:

Through their independence, flexibility and non-conflictual approach to the relations between individuals and the public administration, Ombudsmen have a key role to play in the protection of individual rights.

(…) even where the mandates of certain Ombudsmen do not expressly mention the protection of human rights, violations of these rights by State authorities clearly constitute serious cases of “maladministration” and, as such, fall within the competence of Ombudsmen.

As European Ombudsman, I can deal with complaints from citizens or residents of the European Union who allege violation of human or fundamental rights by an institution or body of the European Union. My powers are limited, however, to conducting inquiries and making reports and recommendations. I can neither annul a legally binding act, nor bring cases before the Court of Justice.

In practice, few of the complaints that I receive allege violation of human rights. That is mainly because the European Union’s institutions and bodies do not exercise the classic coercive powers of the State. There are no Union prisons, for example. Nor are the Community institutions and bodies responsible for providing general public services such as education, health and welfare, though they do have certain responsibilities towards their staff in this regard. Nonetheless, the European Ombudsman has dealt with complaints raising a wide range of human rights issues, including age and race discrimination, the rights of children, and the rights to fair procedure, freedom of speech, privacy and health.

I also received a complaint from a prisoner detained in Germany concerning the monitoring of his correspondence with the European Ombudsman by prison officials. I had no mandate to investigate the complaint, since it was not against a Community institution or body. However, given the importance of the issue I wrote to the German Minister of Justice, who agreed to promote a legislative amendment to allow prisoners to write to me without monitoring.

2 The European Network of Ombudsmen

My counterparts in the Member States, that is to say, ombudsmen at the national, regional and local levels, are competent to deal with complaints that the public authorities which they supervise have failed to respect Community law, including fundamental rights.

For this reason, my institution has always given high priority to co-operation with ombudsmen in the Member States. Very early on, in 1996, a flexible form of voluntary co-operation was set up, on equal terms. Its purposes are to (a) promote the flow of information about Community law and its implementation (b) encourage the spread of best practice and (c) facilitate the transfer of complaints to the appropriate ombudsman.

This co-operation has evolved into the "European Network of Ombudsmen". The Network now comprises almost 90 offices in 31 countries, covering the national and regional levels within the Union, as well as the national level in the applicant countries for EU membership, plus Norway and Iceland.

Some members of the Network have a mandate focused on human rights and the titles of their offices reflect this fact. As well as competence to deal with individual complaints, they also work proactively , for example in:

• promoting knowledge of, and respect for, human rights in the public administration and among citizens;
• commenting on legislative proposals; and
• conducting own-initiative inquiries.

Other ombudsmen in the Network, including the European Ombudsman, also work proactively. We do so across the range of our mandates, which are not specifically focused on human rights. In some countries, proactive work on human rights has been entrusted to another institution, such as a national human rights institution. At the level of the Union, the newly-established Fundamental Rights Agency has been created to contribute to the protection and promotion of fundamental rights in the European Union.

The European Network of Ombudsmen is concerned with Community law generally. Moreover, fundamental rights under Community law are legally binding on the public authorities of the Member States only within the scope of application of Community law.

For these reasons, the Network is not a human rights network, just as the Community Courts are not human rights courts in a way comparable to the European Court of Human Rights. Nonetheless, the experience of the European Network of Ombudsmen over more than a decade may be a useful source of inspiration in thinking about closer co-operation on human rights matters between national human rights structures and the Commissioner for Human Rights.

I shall develop this point specifically in relation to questions of independence, effectiveness and accountability.

Independence, effectiveness and accountability

Let me begin by making a few general observations about the relationship between those three concepts.

In a democratic society governed by the rule of law, every public authority must be accountable. Accountability is a rich concept, but its core element is the duty to explain and justify one’s activities in terms of appropriate criteria and in sufficient detail.

The effectiveness of an ombudsman depends crucially on the institution being demonstrably impartial and non-partisan, so as to deserve and win public confidence. This is the rationale for independence being an indispensable part of the architecture of the ombudsman institution.

Contrary to what is sometimes supposed, independence and accountability can be, and should be, complementary. Independence does not require the absence of accountability. Rather, it requires the existence of appropriate forms of accountability, through which the institution can demonstrate its effectiveness.

In the case of an ombudsman, one can say, in general terms, that effectiveness requires complaint-handling to be expeditious, appropriate for the case concerned, and based on analysis and reasoning that can convince both expert opinion and general public opinion.

It is for each ombudsman institution to demonstrate its effectiveness within the accountability arrangements that apply to it at the national or regional level at which it operates.

The fact that an ombudsman’s accountability is national or regional is important for effectiveness: the ombudsman needs to convince the people who are making the decisions that affect the complainants, together with those to whom the decision-makers are themselves accountable.

In this framework, the European Network of Ombudsman aims to provide practical services to its members, on which they can draw, as they consider appropriate in their own circumstances.

We share best practice, track key developments in the world of ombudsmen, and exchange information about EU law.

A key role in the Network is played by our Liaison Officers, who act as the first point of contact for other members of the Network in each institution. Through telephone or e-mail, they can rapidly exchange information, on a bilateral or multilateral basis, to help deal with cases or identify best practice. We organise a meeting for the Liaison Officers every two years.

Other resources of the Network are a regular newsletter, an electronic discussion forum and a daily electronic news service.

The European Ombudsmen — Newsletter is a valuable tool for exchanging information about EU law and best practice. The two most recent issues included articles on, among others, the mutual recognition of qualifications in the European Union, European environmental law and access to environmental information, the role of ombudsmen in supervising prisons, discrimination in access to employment, freedom of expression, children's rights, and migration and asylum problems.

The Ombudsman's Internet discussion and document-sharing fora are also very useful, enabling offices to share information through the posting of questions and answers. Several major discussions were initiated over the past year, on issues as diverse as the independent monitoring of prisons, permanent resident status for immigrant children born in the EU, combating discrimination and promoting equal treatment, and the right to vote in local elections in the EU.

The electronic news service — Ombudsman Daily News — is published every working day, and contains articles, press releases and announcements from offices throughout the Network.

The discussion forum's contents include an authoritative list of national and regional ombudsmen in the EU Member States, Norway, Iceland, and the applicant countries for EU membership. The list is updated whenever the contact details for an ombudsman office change and is an indispensable resource for ombudsmen throughout Europe.

In terms of case handling, the Network makes it possible to guide the complainant to the correct ombudsman, or to transfer cases between different offices, so as to get effective help to the complainant as soon as possible.

We have also established an informal procedure through which national or regional ombudsmen may ask the European Ombudsman for written answers to queries about European law and its interpretation, especially queries that arise in their handling of specific cases. The European Ombudsman either provides the answer directly or, if more appropriate, channels the query to another EU institution or body for response.

The feedback that we have had from other members of the European Network of Ombudsmen, some of whom are here today, has been very positive as regards the added value to them of their voluntary participation in the Network. The emphasis on practical services that are useful to the members in their everyday work has played a vital role, I believe, in the Network’s success and in ensuring that it can play a modest but useful role in helping its members to enhance their own effectiveness.

In conclusion, therefore, I would like to wish the Commissioner for Human Rights every success in organising closer co-operation with national human rights structures and in strengthening their independence, effectiveness, and accountability. For my part, I wish to assure him in public, as I have already done in private, that I and my staff are ready to provide advice and practical help, in any way that my mandate makes possible.

Thank you for your attention.