INTRODUCTION TO

The Ombudsman
System
INTRODUCTION TO
THE OMBUDSMAN SYSTEM

 From a German Perspective

 And with a focus on the Relationship between

Ombudsmen and other Branches of Power
ORIGIN AND ETYMOLOGY

 Origin of the word is found in Old Swedish

umbuðsmann meaning representative
 Ombudsmen existed in China during the Qin
Dynasty (221 BC) and in Korea during the
Joseon Dynasty
 The modern use began with the Swedish
Parliamentary Ombudsman in 1809 to
safeguard the rights of citizens by establishing a
supervisory agency independent of the
executive branch
ORIGIN AND ETYMOLOGY

 Current(classical) Ombudsman systems are

based on the concept of separation of powers
as developed by Montesquieu

 The Parliamentary Ombudsman is the

institution which was subsequently developed
into its contemporary form and which has been
adopted in various forms in over 100
countries around the world
DO YOU SPEAK OMBUDSMANISH?

 Agent for Citizens – “Buergerbeauftragte”

(Germany)
 Attorney for the People - “Volksanwalt”
(Austria and Albania)
 Public Protector of Rights (Czech Republik)

 Chancellor of Law (Estonia)

 Parliamentary Commissioner for

Administration (Sri Lanka, United Kingdom)
DO YOU SPEAK OMBUDSMANISH?

 Defensor del Pueblo (Spain, Argentina, Peru

and Colombia)
 Médiateur de la République (France, Gabon,
Mauritanie, Sénégal)
 Ombudsman (Sweden, European Union, NY
Times)
 Sorry, no Ombudswoman yet, but women may
be elected/appointed of course
TYPES OF OMBUDSMEN
1. LEGISLATIVE / CLASSICAL
OMBUDSMAN
 Citizen Defender: Usually a state official
appointed to provide a check on government
activity in the interests of the citizen
 Oversee the investigation of complaints of
improper government activity against the citizen
 If a complaint is substantiated the problem gets
resolved or a report is published making
recommendations. Financial compensation is
also possible
TYPES OF OMBUDSMEN
1. LEGISLATIVE / CLASSICAL
OMBUDSMAN
 The Ombudsman’s statement is (generally) not
legally binding – it has a guideline nature
 Ombudsmen in general do not initiate legal
proceedings on the grounds of a complaint
 The ombudsman system relies on the selection
of an appropriate individual for the office, and
on the cooperation of government institutions
TYPES OF OMBUDSMEN
1. LEGISLATIVE / CLASSICAL
OMBUDSMAN
 Major advantage: An Ombudsman examines
complaints from outside the offending
institution and is autonomous and independent
 This avoids the conflicts of interest inherent in
self-policing and guarantees fair and objective
investigations
 Making a complaint is usually free of charge, an
Ombudsman therefore needs extensive
resources
TYPES OF OMBUDSMEN
2. IN ORGANIZATIONS
 Many private companies, universities and
non-profit organizations have an Ombudsman
to serve internal employees and managers
 His role is structured to function
independently, by reporting to the CEO or
board of directors
 According to IOA Standards of Practice he do
not serve any other role in the organization
TYPES OF OMBUDSMEN
2. IN ORGANIZATIONS - EXAMPLES
 Banks, Insurances, German Railways, The
German Federal Bar
 Newspapers as a service for readers: “Bild
helps” (Bild Newspaper, Germany)
 NY Times (to mediate between readers,
advertisers and editorial staff)
 Internet Ombudsman for consumer protection
regarding e-commerce issues on the web
(Austria)
THE GERMAN OMBUDSMAN SYSTEM

Article 17 of the German Basic Constitutional Law

states:

“Every person shall have the right

individually or jointly with others to
address written requests or
complaints to competent authorities
and to the legislature.”
THE GERMAN OMBUDSMAN SYSTEM
THE PETITIONS COMMITTEE
 The right of petition makes a direct channel to
Parliament available to everyone in the Federal
Republic of Germany

 Adults and minors, Germans and people from

other countries, but also prisoners People can
address the Committee on heir own behalf, for
third parties or in the general interest
THE GERMAN OMBUDSMAN SYSTEM
THE PETITIONS COMMITTEE

 Citizenscan complain about specific

administrative acts Suggestions for legislation
are put forward

 ThePetitions Committee does not deal with

anonymous letters
THE GERMAN OMBUDSMAN SYSTEM
THE PETITIONS COMMITTEE
 Competencies:

 Request comments from the Federal

Government and hear government
representatives
 Require official bodies to provide it with files

 Visit federal institutions

 Carry out on-site visits

 Press for the amendment of federal legislation,

e.g. in order to close gaps in the system.
THE GERMAN OMBUDSMAN SYSTEM
THE PETITIONS COMMITTEE
 The Petitions Committee cannot intervene in
conflicts between individual citizens under
Private (Civil) Law.
 It has no powers to mediate in civil land
conflicts, contractual disputes between citizens,
domestic violence, conflicts between neighbours
 For Civil Disputes (Commune) Mediators can
be called before taking legal action
THE GERMAN OMBUDSMAN SYSTEM
THE PETITIONS COMMITTEE
 The Petitions Committee cannot review court
decisions. However, it can seek to influence
federal authorities involved in court cases that
are still ongoing
 Modest requirements: Draw the Petition up in
writing, sign it and give the address
 Over 15,000 submissions are received each year,
a third of them are requests for legislation. The
remaining are complaints raising problems,
concerns and hardships
THE GERMAN OMBUDSMAN SYSTEM
OTHER OMBUDSMAN SYSTEMS
 The German “Länder” (States) also have
Petitions Committees and some have “Agents for
Citizens” in addition.
 They are a contact point for people who feel
placed at a disadvantage or who want to
complain about maladministration at the state or
local level
 The competencies of these Agents for Citizens
are very similar to those of the (National)
Petitions Committee
THE GERMAN OMBUDSMAN SYSTEM
OTHER OMBUDSMAN SYSTEMS
 Last but not least the European Ombudsman is
also an important contact person for Europeans
who want to complain about the institutions and
bodies of the European Community
 The European Ombudsman investigates the
complaints, tries to solve the problems by
mutual agreement and makes recommendations
to put the maladministration right
THE GERMAN OMBUDSMAN SYSTEM
SUMMARY
 The German Ombudsman System supports a
functioning Administration (Executive),
Legislative and Judiciary
 It can focus on Individual Cases who have
“fallen through the crack”
 It can also draw attention to and help improve
deficiencies and inadequacies
 It is based on the concept of separation of
powers and checks and balance and therefore
does not aim to replace an existing Branch of
Power
EXERCISE: “FITTING INTO THE
PICTURE”
OMBUDSMAN SYSTEM WITHIN THE
FRAMEWORK OF EXISTING BRANCHES
OF POWER

Example: Obtaining a trade licence

Case Facts: A reliable business woman wants to
obtain a licence to run a business. She applies for it
at the local authority. Without being heard her
application is rejected on the grounds that she is
unreliable. Her appeal is dismissed. She goes to
court but her case is not processed. She has now
been waiting for months for a court decision.
SEQUENCE OF ACTIONS IN
ADMINISTRATIVE PROCEEDINGS

 Application / Request (ex officio or on request)

“I want a liscence”
 Fact-finding, examination of the facts

 (Bring forward evidence)

 Hearing of the applicant / adressee

 Announcement of the act of administrative

importance (also consider the principle
commensurability) “No, you are unreliable”
APPEAL - PRELIMINARY ADMINISTRATIVE
PROCEEDINGS

 If the act of administrative importance does not

appear lawful the addressee can Appeal. In
principle the appeal is also a condition to be able
file a lawsuit later. “I am reliable and was not
heard”
 In principle: Suspensive effect of the Appeal.
The act of administration is not enforceable by
the authority. Has no effect here because licence
is needed, the suspensive effect can not feign a
licence
APPEAL - PRELIMINARY ADMINISTRATIVE
PROCEEDINGS

 Corrective Decision or Dismissal of the Appeal

(by the authority which issued the act)
“Dismissed”
 If the Appeal is dismissed it is handed over to the
nearest higher authority to be decided upon.
“Dismissed”
 If the decision is negative the addressee may
take legal action “I will take you to
Administrative Court in this Public Law related
matter”
THE COURT SYSTEM

 The judicial system comprises three types of

courts. Ordinary Courts, dealing with criminal
and most civil cases, are the most numerous by
far. Specialized Courts hear cases related to
Administrative, Labour, Social, Fiscal, and
Patent Law. The Federal Constitutional Court
is the highest court dealing with constitutional
matters and has played a vital role through its
interpretative rulings on the Basic Law.
TAKING LEGAL ACTION
ADMINISTRATIVE COURTS
 Organized hierarchically
 1. Instance (Administrative Court) Appeal
on fact and law
“I am reliable and was not heard”
 2. Instance (Higher Adminis-trative Court)
Appeal on points of law only
“I was not heard”
 3. Instance (Federal Administrative Court)
The highest instance of Administrative
jurisdiction. Appeal on points of law only
END OF EXERCISE

“I will write to my Ombudsman!”

 The ombudsman will examine the case

and point out that the business women
is reliable
 He can demand or recommend that the
authorities take action
 He can include the case in his report
and raise media and civil society
awareness
 He can not issue the licence
THE CAMBODIAN CONTEXT

 In countries with a more recent tradition of

democracy and the rule of law, the independence
of the branches of power is especially important
since they are sensitive to encroachment
 The assistance of bodies such as the
ombudsman, which are external to the
administrational or judicial power, may play an
important role in improving efficiency
CONTRIBUTION TO THE BRANCHES OF
POWER

 In countries in transition, which may be faced

with outdated, deficient and non-harmonised
regulations, as in countries with established
democracies the ombudsman may also
contribute to the development of the rule of law.
 Ombudsmen may help to eliminate systemic
deficiencies in regulations which may affect
negatively, or even violate the rights of
individuals and close gaps in the system
ALLIES TO THE ADMINISTRATION AND
OTHER STATE INSTITUTIONS
 An Ombudsman can contribute to increased
confidence held by the public in the
administration and other state institutions and
to the legitimacy of their work
 Clear Division of Power: His powers in relation
to the other branches of power may only be such
that they do not aim to replace the system. An
Ombudsman System can be a meaningful
correlate and completion though
FINAL CONCLUSIONS

 The Ombudsman System is based on the

concept of separation of powers and checks
and balance and therefore does not aim to
replace an existing Branch of Power
 The ombudsman system relies heavily on the
selection of an appropriate individual for the
office, and on the cooperation of at least some
effective official from within government
institutions
FINAL CONCLUSIONS

 A strong civil society and an independent media

enabling media checks and balance can also act
as an important backstop for an Ombudsman
 Competencies: To be able to investigate
complaints by citizens and resolve them usually
by making recommendations or through
mediation
 The Ombudsman’s statement is (in most cases)
not legally binding –but his guidelines should be
followed
FINAL CONCLUSIONS

 In countries in transition as in countries with established

democracies the ombudsman may contribute to the
development of a states’ system by initiating
(administrative) reform processes and closing gaps.
 It is crucial to maintain and strengthen the independent
position of ombudsmen in relation to other branches of
power
 In this respect the financial independence is not least
important
Thank you
very much!