Conclusions of the first round table of European regional ombudsmen
Barcelona, 2-3 July 2004
organised by the Commissioner for Human Rights of the Council of Europe, Mr Alvaro GIL-ROBLES, and the Congress of Local and Regional Authorities of the Council of Europe in cooperation with the Ombudsman of Catalonia
At an informal brainstorming with regional ombudsmen in Paris in October 2003, the participants welcomed the idea that the Commissioner for Human Rights and the Congress of Local and Regional Authorities would start the cooperation with regional ombudsmen by organising a first “Round Table of European Regional Ombudsmen” in order to analyse human rights questions that are of practical importance in the ombudsmen’s work, stressing the close links between misadministration and the violation of human rights. It was high time that the Messina Conference (November 1997) and the subsequent Congress Resolution 80(1999) on the role of local and regional ombudsmen in defending the rights of the citizens to be followed by concrete action.
The Commissioner for Human Rights and the President of the Congress of Local and Regional Authorities wish to express their gratitude to the Ombudsman of Catalonia and the Forum Barcelona 2004 for their invaluable cooperation and assistance in the organisation of this Round Table. The Commissioner and the President of the Congress also thank the participants for the constructive spirit displayed in the discussions. The following conclusions of the Commissioner for Human Rights and the Congress of Local and Regional Authorities are based on their contributions:
I. The Respective Tasks and Competencies of Regional and National Ombudsmen
The participants agreed on the importance of the institution of the regional ombudsman and the need for strengthening it. Citizens can often be defenceless before administrative structures and services and it is essential to establish monitoring and control procedures of public powers activity. The institution of the ombudsman at European, national, regional, provincial or municipal level helps both to reinforce the system of human rights protection including minorities and to improve the relations between the public authorities and the citizens. The term “ombudsman” must be understood in a wide sense reflecting the diversity of legal systems in the member states of the Council of Europe. Regional ombudsmen can thus coexist with national ombudsmen or they can perform their functions when there is no national ombudsman.
The main task of the regional ombudsman is the protection and the defence of human rights. In this sense, there is no contradiction between the mandate of the ombudsman in the classical term, which is to prevent and to fight against misadministration and the mandate to defend human rights. In fact, it can be said that the difference between the two mandates is more symbolic than real since the most serious example of misadministration is precisely the violation of a human right. It also becomes clear that as the concept of human rights has evolved and expanded to include not only political rights but also economic environmental and social rights, ombudsmen now deal with a wide variety of problems which can range from the violation of the most fundamental rights to other rights such as the consequences of public works or noise pollution. Given the variety of issues they have to deal with, a wide-ranging mandate should be given to regional ombudsmen. That does not mean, however, that regional ombudsmen should have a universal field of tasks and competencies. It is important to avoid interference with other existing control mechanisms, especially judicial ones. However, it is not easy to define the functions of regional ombudsmen and in fact many countries do not. Also, the differences in the field of action of regional ombudsmen can be considerable from one country to another.
It was stressed that the level of acceptance of the work of the ombudsman, that is their effectiveness, can and should be used as an indicator of democracy. This indicator will put pressure on the authorities and make them more receptive to the work of ombudsmen. Effectiveness, however, will ultimately depend on the tools available, the methods used and also the resources available. Effectiveness also means that the persuasive element of regional ombudsmen’s work has to be reinforced. The legal training of most ombudsmen and their teams will lead them sometimes to follow the work of judges and very often resolutions of ombudsmen resemble court decisions. Serious consideration should be thus given to issues such as the methods of selection and the legitimacy based on the Ombudsman’s election by a representative assembly, professional development and in general ensuring their office is efficient and observes a strict respect of administrative norms. In fulfilling the needs of citizens and democracy, the institution of ombudsman should be consolidated in all European regions.
The question of changing the legal status of regional ombudsmen was also discussed and the need for consulting them before such changes were introduced by legislators or the administration.
Particular emphasis was given to the establishment of a network of ombudsmen which would give greater efficiency to mediation activities taking advantage of the exchange and the sharing of information and experiences. It can also constitute an important opportunity for the training of ombudsmen and of their staff. The network can be created at the European level but also at the national level in which some member states already have experience. This may result in a more complex layout. At the end the efficiency of the network will depend on the commitment of its members to the service of the citizen rather than on reaffirming their own competences.
II. Regional Ombudsmen and Housing Rights
Over the last decades in Europe, we have seen certain social rights such as the right to employment, social care, a healthy environment or housing become accepted as fundamental rights. Housing is a basic human need and more and more it is recognized that all societies should guarantee it for all citizens with no distinction. This right is now part of the wide network of international texts on human rights and has been recognized as such in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child. In the context of the Council of Europe, the Revised European Social Charter is an important tool for the implementation of housing as a human right. Its means of monitoring, however, are still weak since the Charter does not provide a possibility of individual appeal nor plans to introduce it.
In national legislation, the practices and standards for enabling the right to housing are quite different and vary from one country to another. In most legislations, it is considered a basic social right but the means to achieve often find considerable legal and financial obstacles. The interpretation of the rights also changes from one legislation to another. Thus, it is not always clear whether the right applies only to nationals of the country, to legally resident foreigners or also to illegal residents. The result is that often there are certain groups of people who are left out of the enjoyment of such a right and who without public support would be either homeless or live under extreme conditions.
It is thus urgent to establish and develop a comprehensive legal framework to enable the access to housing for all citizens, and especially for vulnerable categories of persons such as immigrants, unemployed and senior citizens.
In this context, several important issues arise which can affect the work of regional ombudsmen and will demand quick decisions: for instance, the identification of the social sectors which should benefit from housing programs; how can the administration limit the prices of housing; and how can regional ombudsmen contribute to the resolution of conflicts, for example in the field of social housing rental.
Some countries have achieved considerable progress towards the active involvement of ombudsmen in housing. The establishment of a Housing Ombudsman for England in 1996 is a good example of how having specialized ombudsmen can contribute to the effective protection of certain basic social rights.
In general terms, the issues which regional ombudsmen may have to deal with include the protection of the right to housing by national legislation; the enforcement of this right and the definition of which groups should benefit from public housing programmes.
III. Regional Ombudsmen and the Right to a Healthy Environment
The right to a healthy environment has steadily affirmed itself as a basic social right, separate from the right to health care. The destruction of the environment is a violation of human rights and has dramatic effects such as famine and migrations.
The European Court of Human Rights has recognized that certain actions against the environment which have serious consequences for individuals, can constitute a violation of basic human rights enshrined in the European Convention of Human Rights. The Parliamentary Assembly of the Council of Europe in its recommendation 1614 (2003) supported the idea of adding a Protocol to the European Convention on Human Rights concerning the recognition of individual procedural rights intended to enhance environmental protection, as set out in the Aarhus Convention. Also, the Aarhus Convention on access to information, public participation and access to justice in environmental matters will undoubtedly play an essential role in the respect and protection of the right to a healthy environment. This legal text constitutes the first multilateral treaty in the field of environment in which the main objective is to impose on governments certain obligations towards their citizens. This Convention establishes that an adequate protection of the environment is essential to the welfare of the human being and to the enjoyment of human rights including the right to life.
The importance of the European Landscape Convention of the Council of Europe (2000) and its implementation at regional level as well as the Lugano Convention of 1993 on Civil Liability for Damage resulting from Activities Dangerous to the Environment and the Strasbourg Convention of 1998 on the Protection of Environment through Criminal Law was also highlighted.
Environmental policy, as a privileged target of citizen demand, has proved to be an excellent laboratory for the development of the right to administrative transparency.
The wide range of monitoring powers that regional ombudsmen have is a precious tool for making recommendations to the administration, proposals to amend existing legislation and publishing specific reports on environmental issues. The latter can also act as a powerful and attractive instrument of preventive action. To investigate possible violations of environmental rights, ombudsman should enjoy an unlimited capacity of investigation to which no state should be immune. Finally, it falls to the ombudsman to act when the state does not adequately fulfil its task of protecting the environment which in the end is an essential part of the protection of human rights.
The granting of broad competencies to regional ombudsmen in environmental matters constitutes a valuable instrument for ensuring the right to a healthy environment and for strengthening human rights in general .
The participants reaffirmed their interest in the continuation of the work of this Round Table every two years.
