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Ombudsman in the EU and Turkey

Introduction to Ombudsman


by Muzaffer ALACAOGULLARI

 

Ombudsman is also new for the European Union (EU) as well as Turkey. Although there is a negligible discussion on ombudsman once in a while our Minister of Justice urged that a bill be drawn up for the creation of an ombudsman's office and that the final version of it be submitted to Parliament. Legal base is not concerned in this study, but toward the membership of the EU, Turkey should establish such institutions as well as adopt acquis communataire, the EU’s hundred of thousands page documentary legislation. Ombudsman is a sign for democracy, human rights and respect to individual freedom, consumer rights and better standards of living, environment and social welfare on which EU put more weight as called Copenhagen criteria set out for accession of Central and Eastern Europe after the collapse of communist regime. And after Economic and Monetary Union is finalized within the single currency, Euro among the EU, political union stage lies on realizing more democratization in one Europe and taking more concrete for a European identity and European citizenship, and finally reaching a constitution valid throughout the Europe. These core fields with more detailed subjects are being discussed and formed in the Convention the result of that will be integrated to the acquis in the Inter Governmental Conference.

 

History of the Ombudsman

The office of ombudsman was originated first in Sweden in 1809 and then used widely throughout Scandinavia. The system is used to investigate complaints against state institutions in an impartial and independent manner. Ombudsmen submit annual reports to their parliaments. The system is used in around 70 countries today.

But, the European Ombudsman under the EU legal umbrella was recently formed and become unavoidable institution for European citizens. In establishing a citizenship of the Union, the Maastricht Treaty also provided non-judicial mechanisms for the protection of citizens a part of which is the establishment of ombudsman from 1993. These means of recourse, free of charge, are the rights to petition the European Parliament (EP) and to address complaints to the European Ombudsman.

Although the EP and the Ombudsman are empowered with quite distinct tasks, the citizens' perception of their specific competence is not as yet firmly percepted as is shown by the number of inadmissible petitions and complaints European citizens forwarded. Consequently, there have been extensive efforts to establish coordinating procedures between these two bodies in order to ensure that a citizen's grievances can actually be dealt with. Therefore, the Committee on Petitions (at EP) and the Ombudsman now exchange, complaints and petitions, where appropriate and with the citizens' consent.

In Turkey, there may happen this issue between Turkish Grand National Assembly and the independent and fully authorized Ombudsman until Turkish citizens are informed and convinced of the Ombudsman’s efficiency.

In Maastricht Treaty, Article 8D stipulates that “every citizen of the Union may apply to the Ombudsman”. The framework for his action is laid down in Article 138e, which further extends this right to all natural or legal persons residing or having their registered office in a Member State. As with the right of petition, the right to address the Ombudsman is available to all legal residents whether or not they are citizens of the Union.

The task of the Ombudsman is to investigate cases of alleged misadministration in the activities of the Community institutions and bodies, with the exception of the Court of Justice and the Court of First instance acting in their judicial capacity. Acts of national authorities or of international organizations are excluded from the Ombudsman's scope.



The Borders of Ombudsman

The Ombudsman conducts enquiries, totally independently, either on his own initiative or following a complaint. But, s(he) cannot however order an administrative authority to change a decision or grant correction, by awarding damages or annulling past administrative decisions. This role in the EU is only and solely reserved for the Court of First Instance and the European Court of Justice acting in their judicial capacity.

Detailed rules on the regulations and general conditions governing the performance of the Ombudsman's duties were adopted by the European Parliament on 9 March 1994 (1). These rules, known as the Statute of the Ombudsman, set out the conditions, under which a complaint may be submitted, the procedure to be followed in the inquiries and the details of co-operation with the other institutions.

 

Ombudsman is a part of European Citizenship

Part II of the Maastricht Treaty contains specific provisions relating to citizenship of the Union and lists seven different rights. They may be grouped in the following four categories:

  • A personal right to free movement and residence subject to the limitations and conditions laid down in the treaty and secondary law;
  • Electoral rights in European Parliament as a European citizen and municipal elections in the place of residence as a national citizen;
  • Protection by diplomatic and consular authorities of any Member State in a third country where the citizen's own Member State is not represented, regardless of close or far neighbor country classification;
  • Access to non-judicial means of redress, through access to the Ombudsman and a right to petition the European Parliament.

 

Submissions of the EU's First Ombudsman

Mr. Jacob Söderman, a former Finnish Ombudsman, was appointed by the European Parliament as the Union's first Ombudsman on 12 July 1995 (2). He took up his duties in Strasbourg after having been sworn into office before the Court of Justice on 27 September 1995. On 22 April 1996, the Ombudsman issued his first annual report (3). It contains detailed information on the rules governing the admissibility of complaints and on the procedure followed in his inquiries. It also points to the unexpected high percentage (nearly 80%) of inadmissible complaints lodged.

Since taking up office to the end of December 1996, the Ombudsman has received 1.140 complaints. Of all the complaints received the examination of admissibility has been completed in 921 cases. Only 34% of these complaints turned out to be within the mandate of the Ombudsman. The Ombudsman had requested the Commission to provide information on 166 cases. Information was forwarded in 113 alleged instances of misadministration. Following this, 35 cases have been filed by 31.12.1996. At present there are therefore 131 cases under examination. Most of these complaints deal with transparency and access to information, fraud, environmental issues, and contracts between the Commission and private enterprises and recruitment procedures. Co-operation with the Commission has so far proceeded smoothly as the Ombudsman himself has indicated on several occasions. Within the Commission, the main institutions subject to inquiries are the European Commission (187 cases), the European Parliament (19 cases) the Council of the European Union (4 cases) and the Court of Auditors (5 cases). Out of the 210 cases where inquiry has been started, 102 were closed by the end of December 1996. No misadministration was found in 82 cases (4).

In 1996, the Ombudsman initiated three investigations on his own motion, all of which relate to information and transparency. The first concerns the rules of access to documents followed by Community institutions other than the Commission and Council, where a code of conduct is already in place. (5) The second focuses on information in the recruitment procedure and the third one deals with the information given to citizens who complain to the Commission alleging a breach of Community law.

The measures for the success of the Ombudsman depends not only the figures related to the client (citizens) and mostly stressed above, but also it should be kept in mind that the function of the Ombudsman is to make the institutions more open and democratically accountable, and his action is inevitably an incentive for the institutions under scrutiny to remedy inappropriate administrative practices.

 

A Latest Case Its Decision Taken on 03.07.2002 by the European Ombudsman (*)

Steps on the Decision of the European Ombudsman on complaint file 302/2001/PB against the European Commission:

Final Letter to Complainant

Dear Mr. M.,                                                                                       Strasbourg, 3 July 2002


On 28 February 2001, you made a complaint to the European Ombudsman on behalf of Vestsjællands Amt, concerning alleged failure by the Commission to respond to requests for access to documents.

On 14 March 2001, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 12 June 2001. I forwarded it to you with an invitation to make observations, which you sent on 9 July 2001.

On 13 July 2001, my legal officer responsible for your case contacted your staff in order to clarify if related actions taken by you in Denmark at that time could assist the handling of your complaint submitted to the European Ombudsman. On 25 October 2001, your staff finally informed my legal officer that you preferred not to await the results of your actions in Denmark.

On 4 December 2001, I addressed a draft recommendation to the European Commission. On 7 March 2002, the Commission submitted its detailed opinion on my draft recommendation, which I forwarded to you. On 23 April 2002, you submitted your response. On 14 May 2002, my legal officer responsible for your case contacted you to obtain further information.

I am writing now to let you know the results of the inquiries that have been made.

The Draft Recommendation

By decision dated 4 December 2001, following an inquiry into the complaint, the Ombudsman addressed the following draft recommendation to the Commission in accordance with Article 3(6) of the Statute of the Ombudsman(1):

The Commission should apply its rules on public access to documents to respond to the complainant's request for access to all Commission documents relating to the Commission's control visits carried out on 8 and 9 November 1995 in the complainant's county, and give the complainant access to the files concerned unless one or more of the exceptions in those rules applies.

Full details of the inquiry are provided in the decision of 4 December 2001, a copy of which was also forwarded to the complainant.

The Commission’s Detailed Opinion

The Ombudsman informed the Commission that, according to Article 3(6) of the Statute, it should send a detailed opinion before 31 March 2002 and that the detailed opinion could consist of acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.

On 7 March 2002, the Commission sent the Ombudsman its detailed opinion.

In its opinion, the Commission stated that it was in agreement with the European Ombudsman's draft recommendation.

One of the exceptions to the rules on public access to documents concerns audit reports. These are documents of a special nature and the list of people to whom they can be divulged is limited. After it carries out control visits, the Commission sends such reports to the managing authority in the Member State, in this case the Danish authority 'Arbejdsmarkedsstyrelsen'.

In a letter dated 17 August 2001, the 'Arbejdsmarkedsstyrelsen' sought the Commission's advice concerning the complainant's access to certain documentation.

It is clear from the Commission's reply of 10 October 2001 that it advised the 'Arbejdsmarkedsstyrelsen' to give the complaint access, inter alia, to the part of the Commission's control report which concerns the projects in the complainant's county edited in 1995.

The complainant should by now have received the relevant documentation directly from the Arbejdsmarkedsstyrelsen.

The Commission enclosed the relevant letters to its opinion.

The Commission's opinion was forwarded to the complainant for observations. On 23 April 2002, the complainant informed the Ombudsman that the Commission's opinion did not give rise to any further comments from the complainant.

On 14 May 2002, the Ombudsman's staff phoned the complainant to inquire about the outcome of the complainant's public access requests. The complainant stated that it had received the documents that it needed from the Danish authorities, and that it had no wish to pursue the matter further.

Decision:

1) On 4 December 2001, the Ombudsman addressed the following draft recommendation to the Commission, in accordance with Article 3(6) of the Statute:

The Commission should apply its rules on public access to documents to respond to the complainant's request for access to all Commission documents relating to the Commission's control visits carried out on 8 and 9 November 1995 in the complainant's county, and give the complainant access to the files concerned unless one or more of the exceptions in those rules applies.

2) On 7 March 2002, the Commission informed the Ombudsman that it agreed with the Ombudsman's opinion. However, the complainant had also requested the documents in question from the Danish authorities, who had asked the Commission for its advice on the request. The Commission therefore dealt with the matter through its advice to the Danish authorities. According to the Commission, the complainant should have received the documents requested from the Danish authorities.

3) The Ombudsman's contacted the complainant, who confirmed that it had received the documents that it needed, and that it had no wish to pursue the matter further. The measures taken appear to be satisfactory and the Ombudsman therefore closes the case.

A) Copy of this decision will also be sent to the European Commission.

Yours sincerely,

Jacob SÖDERMAN

 

ELECTRONIC ADDRESSES OF THE OMBUDSMANS IN BOTH GENERAL AND EACH OF EU COUNTRIES:

You may find more samples to get an idea on the implementation of the Ombudsman on the following web sites:

EUROPEAN UNION:
http://www.euro-ombudsman.eu.int/

1) GREECE: (English)
http://www.synigoros.gr/en_index.htm

2) SPAIN:
http://www.defensordelpueblo.es/InicioI.htm

3) BELGIUM:
http://www.federalombudsman.be/

4) DENMARK:
http://www.ombudsmanden.dk/

5) FINLAND: (English)
http://www.eduskunta.fi/efakta/eoa/eoa.htm
http://www.vn.fi/okv/english/index.html

6) FRANCE:
http://www.mediateur-de-la-republique.fr/

7) ITALY:
http://www.consiglio.regione.toscana.it/difensore/index.htm

8) LUXEMBOURG:
http://www.consiglio.regione.toscana.it/difensore/index.htm

9) HOLLAND:
http://www.ombudsman.nl/

10) IRELAND:
http://www.irlgov.ie/ombudsman/

11) ICELAND: (Country is not member state of the EU but a wealthy country)
http://www.umbodsmaduralthingis.is/

12) NORWAY: (Country is not member state of the EU since referendum for membership is still negative.)
http://www.sivilombudsmannen.no

13) PORTUGAL: (English)
http://www.provedor-jus.pt/ingles/

14) UNITED KINGDOM:
http://www.ombudsman.org.uk/

15) AUSTRIA:
http://www.volksanw.gv.at/

16) GERMANY:

http://www.bundestag.de/gremien/a2/index.html

17) SWEDEN: (English)

http://www.jo.se/default.asp?SetLanguage=en
http://www.riksdagen.se/folkvald/ledamotr/organ/ON_RO_en.htm

 

Conclusion

This study is a leading overview and/or guiding exercise on the role of the ombudsman with the factual analysis on the EU findings, hence aiming at inspiring and emerging more studies detailed on how to form the institutional framework of the ombudsman in Turkish legislation and pointing out how necessary for citizens of whether or not a member country of EU. In this critical process, I want the reader to know that you have the right to amend the policies and the criteria when you are a member of the EU and on the other hand, those are the universal ones of the international institutions Turkey is already in.

So, Ombudsman is an institution Turkey needs to set up as soon as possible in favor of her citizen, for the sake of consumer rights, trust to State and lastly freedom and democracy. I think, an experienced and eligible person taking this post can easily be found whom most readers may name it, refreshing their minds with one of the past news attached to the study.


Attachment

Oriental ombudsman: Advocate of public administration, but not of the people

  • The institution of ombudsman, which protects the rights of the individual against the administration in a democratic state of law through public support, is now on Turkey's agenda. Yet the names that are proposed suggest the new appointment will be most beneficial to former politicians.

A new foreign word has entered the popular lexicon in Turkey: "ombudsman." While the storm raging around this popular word in recent days brought Minister of Justice Hikmet Sami Turk to the brink of resignation, the Cabinet was split between those in opposition to and those in support of the initiative.

The fiery debate in the Cabinet indicated that this word was "foreign" not only to a large portion of the public, but also to some Ministers. State Minister Mehmet Kececiler and Minister of Education Metin Bostancioglu stated that they were opposed to this institution, because, "It would be superfluous when there is already a judiciary," and noted that it would lead to "confusion with regard to authority."

The strength of the institution of ombudsman depends on public support since it cannot implement legal sanctions in the same way as the administrative arm of the judiciary. In fact this provides the basis for a further criticism, namely that the institution is unnecessary if its decisions cannot be enforced.

To return to our previous point, Minister of Justice Turk used his leverage, and his words, "I regard this proposal as a condition for my staying on at the Ministry of Justice," created a powerful shockwave in the Cabinet. Shortly after that a special commission, chaired by Turk, was formed.

The now customary practice of establishing a certain link with Turkey's accession to the European Union as part of the debate was not ignored. State Minister Sukru Sina Gurel said, "An important step will be made in terms of harmonization with EU criteria," thereby raising the following three points: Whether current candidates were acceptable in this respect, whether former President Suleyman Demirel could or should become ombudsman and whether the goal was in fact to find positions for former politicians.

Reports in the media have indicated that just as the main issues were not being discussed, many vital matters continued to remain unaddressed. Furthermore, an issue which is of great public interest was debated in such a way that the people have been left out of discussions and not provided with sufficient information. And what does the word "ombudsman," which has created such a stir, really mean? As Professor Bakir Caglar indicated, “this point may be key in determining the future of the institution”. Academics and experts, whom the authorities did not deem necessarily to involve in the debate, have informed the Turkish Daily News about some crucial points on which the public should be enlightened.

(Inci Hekimoglu reported on Turkish Daily News, daily newspaper, dated 20 September 2000)


References

(1) European Parliament Decision 94/262/ECS/EC/Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties in OJ L 113/15 of 4.5.1994. This decision was adopted after the Commission issued its opinion and the Council gave its approval.
(2) In Official Journal, L 225/17 of 22.9.1996
(3) In OJ C 234/1 of 12 August 1996. Cfr also the European Parliament reaction to the report, Doc PE 217.098
(4) SEC (97) 731 of 20 February 1997
(5) Code of conduct concerning public assess to Council and Commission documents (93/730/EC) in OJ L 340/41 of 31.12.1993.

(*): Source: [http://www.euro-ombudsman.eu.int/decision/en/010302.htm] The whole list can be searched into various categories on this web address:

Search by Case Number against (European Institutions: European Commission, Council of The European Union, Justice of European Communities, European Parliament, Europol, European Investment Bank, European Central Bank, etc.)


Search by Date (starting from 29.10.1996)
Search by Type of Decision
Search by Field of Law
Search by Misadministration Alleged
Search by Institution Concerned
   
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