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Address to the III Ombudsmen Summit Eastern Partnership, Balkans and EU on "supporting ombudsmen cooperation in the Eastern Partnership and Western Balkans countries"

16 March 2016, European Parliament, Brussels

Dear ladies and gentlemen,

Thank you for inviting me here today.

I believe that today's event provide a vital space Ombudsmen, to come together to discuss problems in our respective countries and in Europe more generally. This can help us realise that we are not alone in our challenges, but can also provide space for possible solutions to emerge from the experience of our colleagues who may have already faced a similar challenge.

This of course was the very reason for this event. It evolved from an initiative of the Human Rights Defender of Poland and the Defender of Rights of the French Republic to provide for the exchanging of best practices, to enhance the ability of the Ombudsman's Offices, government bodies and NGOs to protect individual rights and to assist in building democratic states based on the rule of law. That was in 2009 and perhaps today we can see how foresighted it was.

I note the recent joint statement of international organisations concerning the Office of the Polish Ombudsman which recognises the importance of the Polish Ombudsman to the Polish citizen and to the state itself and which notes the commitment of the Polish Ombudsman and of the international community to continue to work together to protect fundamental rights in the face of current challenges.

Many ombudsmen present today are dealing directly with the consequences of migration flows and I greatly admire their work in speaking out where there are violations of fundamental rights committed by national administrations, while on the other hand recognising the challenges that those administrations face in dealing with the crisis.

Those challenges are not just logistical but also political, financial, and at times touch upon highly sensitive issues concerning neighbouring countries or even global geopolitical concerns. The challenge for your institutions of course is, while not ignoring those matters, to continue to shine a bright light on the need for human rights compliance, to make sure that a country’s obligations under domestic and international law are not set aside for reasons of political or other forms of expediency.

The act of challenging the administration should not be considered negatively but positively and that can be a particularly difficult challenge particularly in countries where criticism of the state may not be well tolerated. I have often said that it is easy to be an Ombudsman in a healthy democracy where the rule of law is embedded and dissenting voices are allowed and even welcomed. Not so easy when an Ombudsman is trying to do her or her job in a state where the normal democratic checks and balances may no longer be in alignment and the Ombudsman’s voice is viewed negatively.

I speak today not only in my role as the European Ombudsman but also as a coordinator of the European Network of Ombudsmen to which many ombudsmen present today are members. I have been an Ombudsman now – both in Ireland and here – for thirteen years and during that time I have witnessed the rising or falling fortunes of many Ombudsman offices throughout Europe as political or other circumstances have changed in their countries. When I became EU Ombudsman in 2013, I drew on that experience and have tried to find ways to make our common purpose and our union through the network more effective both for the citizen but also for the offices themselves.

As many of you may know, I have slowly been developing a series of what I call parallel investigations with the network. That is, we identify an issue of shared EU and Member state concern and through our individual investigations into that issue, attempt to achieve a more powerful result than we might have while working alone.

The first investigation concerned the EU border agency Frontex and how it protects the fundamental rights of migrants forcibly returned when denied refugee status. Frontex coordinates and finances such returns by air in cooperation with the Member States (so called Joint Return Operations). The issues arising concerned for example travel arrangements for pregnant women and families with children, common rules on the use of restraints, Frontex assistance to Member States concerning complaints procedures, and timely medical examinations before return takes place. Frontex accepted these recommendations.

The fact that Frontex accepted all the recommendations I made owes much I believe to the Network Ombudsmen many of whom knew the practice of the authorities as many, are the monitoring bodies of these Joint Return Operations or national return operations, either as National Preventive Mechanisms or as monitoring bodies designated by the Member States in implementation of the Returns Directive. Following the investigation I also made suggestions to ensure that Frontex does all within its power to promote independent and effective monitoring of Joint Return Operations. Frontex also accepted this suggestion and this is particularly important currently as Frontex’s role is expanding – under a new name – and will play an enlarged role in EU migration policy particularly in relation to the return of failed asylum seekers.

On 14th October 2015, there was a meeting of European Network of Ombudsman investigators in Madrid. This led to the Madrid Declarations where the findings of the Frontex investigation have been used by colleagues in member states to support their present or possible future role in this kind of human rights monitoring. Our joint efforts, through the Network, are beginning to yield positive results.

Two further issues of note in relation to Frontex and which may shortly concern Member State Ombudsmen: following a Special Report that I issued to the European Parliament concerning Frontex’s refusal to agree to a recommendation to create a complaints’ mechanism, on the 2 December 2015 the Parliament voted overwhelmingly in favour of the recommendation and supported again on 8 March 2016 , International Women's Day, a recommendation from elsewhere that Frontex create a gender-sensitive perspective in its complaints mechanism.

Secondly, as potential complaints may concern guest officers who do not fall under the authority of Frontex but of a Member State , Parliament supported my proposal, that the new complaints mechanism should involve the national ombudsmen to whom such complaints could be transferred. Parliament welcomed the readiness of the European Ombudsman and of the members of the Network with competence on fundamental rights to support Frontex in setting up and implementing an individual complaints mechanism and we have just started working with Frontex on this task.

The exchange of best practice is equally important in regional levels too as seen in the Balkan migration crisis with the Belgrade Declarations issued by the Ombudsmen and National Human Rights Institutions at the conference entitled "Ombudsman/National Human Rights Institutions: Human Rights Challenges in Refugee/Migration Crisis" on 23-24 November 2015.

Declarations such as the Belgrade Declaration allow us to safeguard the protection of refugees and migrants at the European level when we come together, but also to reinforce this with regional protection too. Initiatives at the regional level allow us to have the necessary flexibility to deal with the migration crisis as it continues to evolve and to affect each country in Europe differently.

Finally, I would like now to ask my colleague Ombudsmen for your commitment again to my most recent action in the crisis. This concerns the Asylum, Migration and Integration Funds (AMIF). The AMIF fund is jointly managed by the Commission and the Member States and provides funding for the provision of housing, education, social assistance and possible alternatives to detention. These are disbursed under shared management, with the engagement of the Commission and the Member States. I wrote to the Network of Ombudsmen on the 17th December 2015, encouraging the members to assess the observance of fundamental rights in relation to the use of funds. The national ombudsmen may contribute to inclusion efforts for migrants by controlling national authorities to make sure that they provide equal access to housing, healthcare and education, and through monitoring whether national authorities are avoiding hate speech towards migrants in the media and in society.

I encourage all members of the Network to verify if fundamental rights are observed in the use of these funds and to inform us of their findings. In parallel, we also wrote to the Commission to ask it to make public the programmes which have been approved for funding from AMIF.

The challenges of the migration crisis can sometimes seem insurmountable, however, it is easy to be an Ombudsman when times are good but we can really show our worth and our value perhaps most strongly in times of crisis And in these times we must simply continue our work, to speak truth to power and to continue to bring attention to any abuse of fundamental rights.

It is not easy and the result for some can be a weakened institution through the withdrawal of resources or the removal from office. The one solace is that in future times, those who spoke out will be spared the judgment of our children and grandchildren when they look to see who stood by and allowed bad things to happen.

But at time like this, an Ombudsman must assume the role of critical friend and not that of harsh judge. To be effective we also need to understand the pressures on our administrations who are dealing with situations of such urgency, that the long term effects of their actions can be forgotten. When the immediate imperative is to feed, protect and house, many other considerations may be overlooked.

Instead we should, by our actions, try to direct some of the administrations' energy towards thinking about long term solutions to the crisis which ensure that the fundamental rights, for all those entering the European Union, are respected, as the procedures we create today in crisis will be the legacy we are left with tomorrow.

We have to encourage our administrations to ensure that the legacy we leave behind in the wake of this crisis is one that still leaves the European Human Rights Convention, the Fundamental Rights Charter and the Treaty on the European Union intact.