IMPLEMENTATION OF THE RECOMMENDATIONS OF SLOVENIA'S HUMAN RIGHTS OMBUDSMAN THE ROLE OF ANNUAL REPORTS AND HOW THEY ARE DISCUSSED BY THE NATIONAL ASSEMBLY.

IMPLEMENTATION OF THE RECOMMENDATIONS OF SLOVENIA'S

HUMAN RIGHTS OMBUDSMAN

THE ROLE OF ANNUAL REPORTS AND HOW THEY ARE DISCUSSED

BY THE NATIONAL ASSEMBLY

Jernej Rovšek, deputy ombudsman

Zdenka Čebašek-Travnik, ombudsman

1. STATUS AND POWERS OF THE HUMAN RIGHTS OMBUDSMAN

• The Human Rights Ombudsman (hereinafter: HRO) was established pursuant to Article 159 of the Constitution of the Republic of Slovenia (hereinafter: Constitution) of 1991 and the Human Rights Ombudsman Act (hereinafter: Act), adopted by the National Assembly in 1993 by regular legislative procedure requiring three readings.

• Since its adoption, the Act has not been modified or amended, except for the salary provisions that were deleted from it in order to be included in the new act governing the salary system in the public sector

• When drafting the provisions on the duties and powers of the Slovenian HRO, experiences of several ombudsman systems were examined and taken into consideration.

• Consequently, a number of elements in this Act reflect the classical Scandinavian model, while other elements are closer to the model adopted in other transition countries (for instance, greater emphasis is put on the protection of human rights, on redressing systemic malfunctions and on accessibility to judicial proceedings).

• The Constitution and the Act empower the HRO to examine cases of alleged illegal acts and maladministration of state authorities, local authorities and bearers of public authority.

• The Ombudsman acts in compliance with the Constitution and international law regarding human rights and fundamental freedoms.

• The activity of the HRO is founded also on the principle of equity and good administration.

• On this basis the HRO may propose exceptional solutions in individual, well grounded cases not contemplated by the law, by analogy with the Latin model of the ombudsman’s powers.

• Pursuant to the Constitution and the Act, the HRO does not investigate matters where rights and fundamental freedoms are breached by physical or legal persons.

• The HRO acts when the offender is the state or a local authority (municipality) or a bearer of public authority.

• As rule, the HRO is not the first instance of appeal, but does intervene when the competent authorities fail to do their work properly.

• However, the HRO does not interfere in cases in which court or other legal proceedings are being conducted, except in cases of undue delay in the proceedings or evident abuse of authority.

• Pursuant to Article 25 of the Act, the HRO may communicate his opinion, from the aspect of protection of human rights and fundamental freedoms, irrespective of the type or stage of proceedings which are being conducted by the respective body.

This provision is of utmost importance, as it enables the HRO to act in cases where the proceedings have not yet been concluded, for instance in courts. It gives him the possibility to file a brief with the court in the role of amicus curiae – “friend of the court”.

2. THE ROLE OF ANNUAL REPORTS OF THE OMBUDSMAN • The primary task of the HRO is to investigate

complaints lodged by individuals. However, through such investigations he may also come across so-called "systemic" malfunctions and maladministration of public administration.

• The HRO is the only entity within the public administration to have a 360-degree overview of the implementation of regulations and of relevant practices.

• The annual reports to the National Assembly reflect the Ombudsman’s endeavours.

• From this point of view, the Ombudsman's annual report to the National Assembly is one of the strongest tools for the implementation of his/her proposals and recommendations.

• Pursuant to the Act, the Ombudsman must report on his work to the National Assembly at least once a year.

• However, his annual report is not only a fulfilment of his legal obligations and a mere report on the work of the institution. It has wider implications.

• It is a report on the status of the respect of human rights in the country and of the legal certainty of citizens, and also, albeit indirectly, a report on the work of the public administration.

• The report is also important in a wider context. Its target public is, besides the deputies of the National Assembly, various government and administrative bodies, individual citizens, civil society and professional groups (lawyers, university scholars and others).

• In his annual reports the HRO presents concrete problems encountered in various segments of public administration and the most typical individual cases investigated; in addition, he spotlights general problems arising in the operation of public administration bodies.

• The report provides comprehensive information concerning the status of the protection of the rights of individuals that come into contact with public administration bodies, an overview of the operation of public bodies at all levels.

• The report represents an essential piece of information for the National Assembly in the exercise of its role of supervision of public administration, in particular of the executive branch.

• It is interesting to analyse the discussion of the first two reports by the National Assembly, as at that time it was not clear in what way the discussion should be conducted and concluded.

• The Ombudsman Act does not provide for it. It only defines that the report shall include an assessment of the status of the protection of human rights and the rule of law in the Republic of Slovenia.

• A more detailed structure of the report is defined in Article 40 of the Ombudsman’s Rules of Procedure, which stipulates that the report shall contain:– an assessment of the status of the protection of

human rights and the rule of law, – an illustration of problems of essence,– statistics of cases investigated, – a description of individual typical cases and a report

on other actions carried out by the Ombudsman.

• The HRO has always insisted that the National Assembly has no authority to decide on the adoption or rejection of the report, and this position was accepted.

• The Ombudsman also insisted on the fact that the National Assembly was only authorised to adopt recommendations and guidelines for other institutions, in particular for the Government.

• This procedure concerning the discussion of the report was later made official by the Rules of Procedure of the National Assembly, adopted in 2002.

• In Article 272, these Rules define the terms to be reserved for the discussion and the procedure to be followed (a special item on the agenda of a regular session of the National Assembly in the spring or autumn terms may also be reserved for discussion of a special report of the ombudsman for human rights), and that after the discussion the National Assembly adopts a recommendation.

• The Rules further explicitly provide that the ministers whose scope of work the report refers to must be present during the discussion of the report.

• A great leap forward as far as the discussion of the HRO’s Report is concerned was made after 2000, when the Minister of Justice (first mandate HRO), requested and was granted the condition that a special response report by the Government be prepared and annexed to the HRO’s Report.

• The grounds for this request may not be found in any rules of procedure or legal provisions, but are part of the general obligation of the Government to prepare its position for each item of the agenda of any session of the National Assembly.

• The Government response report also contains a chapter on the monitoring of implementation of recommendations from the previous report.

• A special response report by the Government is a welcome reaction of the executive branch and a document that may serve as a basis for a detailed discussion of the report in the working bodies and in the plenary session of the National Assembly.

• Normally the discussion of the report takes a whole day.

• National Assembly recommendations are divided into chapters.

• They contain recommendations to the Government concerning the adoption of new regulations or the regulation of certain areas, which are, in the opinion of the Ombudsman (as presented in the Report) and deputies, insufficiently regulated and negatively affect the status of individuals and their rights.

• Some recommendations are implemented in a relatively short period of time, while others wait several years before adequate solutions are put in place.

• By way of his reports, the HRO has contributed considerably to the adoption of certain acts, for instance in the field of access to information of public character, protection of personal data, police powers, lawyers and courts, children's rights, mental health and patient's rights.

• In this way the HRO is able to positively influence the implementation of his systemic proposals and recommendations.

• Consequently, in the classical distribution between branches of power the HRO may be considered an institution that assists the representation body (National Assembly) in the supervision of the executive and administrative branches.

• The representation body is thus also entrusted with – besides its legislative function – a supervisory function.

• In the framework of its supervisory powers, the representative body carries out direct supervision of the work of the Government and of individual ministries by way of votes of (no)confidence, interpellations or questions by the deputies.

• Hence, the HRO may be defined as an entity assisting the National Assembly in the supervision of the executive branch, and in particular of those segments that the legislative branch may not supervise directly.

• The annual and special reports of the Ombudsman to the National Assembly are of vital importance in this regard.