Justice out of court

Pamela Hansen interviews the European Ombudsman, Professor P. Nikiforos Diamandouros, on his role, and finds out he does not see himself as either a Robin Hood or a Zorro, but if a fundamental human right has been violated he will of course champion that cause.

The European Ombudsman arrived in Malta on Tuesday on a familiarisation visit. I met him at our Ombudsman's office, conveniently across the road from my office, and attended the public lecture he gave at the Aula Magna of the Old University in Valletta on Wednesday evening.

Professor Diamandouros has held the post of European Ombudsman since April and was formerly the national ombudsman in Greece. The institution of the European Ombudsman was created by the Maastricht Treaty in 1992 to fight maladministration in the activities of Community institutions and bodies. The European Parliament elected the first Ombudsman in 1995.

The European Ombudsman has been professor of comparative politics at the Department of Political Science and Public Administration of the University of Athens since 1993 (currently on leave), and he served as director and chairman of the Greek National Centre for Social Research (EKKE) from 1995 to 1998.

Since 1990 he has been co-chair of the Subcommittee on Southern Europe of the Social Science Research Council (New York), whose activities are funded by a grant from the Volkswagen Foundation.

He is also joint general editor of the series on the New Southern Europe published by the Johns Hopkins University Press and the recipient of Fulbright and National Endowment for the Humanities research grants.

In 1999 and 2000 he was appointed member of Greece's National Commission on Human Rights and the National Council for Administrative Reform respectively.

Quite an impressive CV, and I have not listed it all. A tall, dapper, quick and quietly spoken man he gave me so much information in response to my first questions that my list went out of the window.

I first asked Professor Diamandouros what he hoped to achieve from this visit.

"I made a commitment to visit all EU acceding countries. While I am here I shall be meeting the press, citizens, the Ombudsman, Joseph Sammut, the prime minister, the leader of the opposition and other state officials.

"The idea is to raise awareness on my role with the Maltese public. It is a form of 'reaching out' an exchange of information by meeting as many people as possible.

"It is no use having rights if you don't know how to use them."

I understood that meeting most of the people on his list was feasible. But how was he going to meet 'citizens'?

"I agree that that is not as easily done, but the general public was invited to a lecture at the Aula Magna and anyone had the opportunity to ask questions".

Incidentally, the Aula Magna was full on Wednesday and there were many questions from the floor.

"I also gave a lecture to the NSTF Mini-European Assembly. I think making contact with the young is important.

"We will also be identifying NGOs which will be able to transmit information on to the people they represent," Professor Diamandouros said.

What does the right to good administration entail?

Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

This includes the right of every person: to be heard, before any individual measure which would affect him or her adversely is taken; to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; to have the Community make good any damage caused by its institutions, or by its servants in the performance of their duties, in accordance with the general principals common to the laws of the member states. Besides, the administration is obliged to give reasons for its decision.

Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

I asked Professor Diamandouros how the functions of the European Ombudsman differed from those of national Ombudsmen.

The European Ombudsman investigates and reports on maladministration in the institutions and bodies of the European Community, such as the European Commission, the EU Council, the European Parliament, the EU Central and Investment Banks and the Economic and Social Committee.

Only the Court of Justice and the Court of First Instance acting in their judicial role do not fall within his jurisdiction. However, complaints regarding recruitment of administrative staff within the courts do.

The European Ombudsman is not an appeals body, nor is it a hierarchical, superior post to a national Ombudsman. "We are colleagues," he explained.

Like our national Ombudsman the European Ombudsman usually conducts inquiries on the basis of complaints but can also launch inquiries on his own initiative. He is pro-active as well as reactive.

He has wide powers of investigation and the Community institutions and bodies must supply him with the information he requests and give him access to the files concerned.

Member states must also provide him with information that may help to clarify instances of maladministration by the Community institutions and bodies.

If the case is not resolved satisfactorily during the course of the inquiries, the Ombudsman can try to find a friendly solution, which puts right the case of maladministration and satisfies the complainant.

If the attempt at conciliation fails, the Ombudsman can make recommendations to solve the case. If the institution does not accept his recommendations, the Ombudsman can make a special report on the matter to the European Parliament.

However, he stressed that the latter is rare. "More than 98 per cent of recommendations are complied with. I have had to resort to a special report less than eight times. No officials like to be criticised publicly," he said.

What kind of complaints are dealt with by the European Ombudsman?

Many of the complaints concern administrative delay, lack of transparency or refusal of access to information. Some concern work relations between the institutions and their agents, recruitment of staff and the running of competitions. Others are related to contractual relations between the institutions and private firms, for example in case of abrupt termination of a contract.

Professor Diamandouros categorised the following as valid complaints.

1. If an institution is late in responding, or does not respond at all to an individual's request.

2. On recruitment, an unsuccessful applicant has the right to see his/her paper.

3. Complaints on calls for tender and non-payments for services provided to the EU.

4. Refusal of access to documents.

There has to be a balance between the right of access and the right to privacy, the Ombudsman said.

I asked Professor Diamandouros whether the concept of redress, through the Ombudsman, in the event of maladministration, was working.

"Prevalent culture tends towards the courts as the only means of redress, however, democracy is served better if the citizen has another option and the right to choose an alternative mode of redress.

"Court action is usually protracted (sometimes to over 10 years), it involves rigid procedures and is expensive. On the other hand referring a case for arbitration by the Ombudsman costs nothing; the process is quicker (cases usually take four to six months to be cleared); is free of court constraints and therefore more flexible.

"Besides, rather than the adversarial logic of winners and losers as followed in the courts, the Ombudsman seeks compromise and more of a win-win result.

"The Ombudsman seeks 'friendly' solutions which are not an option at law. Awareness on this issue needs to reach the public", he added.

However, I mentioned that from the Malta experience, it was the institutions rather than members of the general public who preferred to fight issues out in court.

"The Ombudsman has control over the administration of the state, while being external to the state. He has to mediate and educate institutions that they have moral as well as legal obligations to abide by the rule of law and set guidelines on best practice.

"It is the Ombudsman's job to convince and persuade that it is also in the interest of institutions that conflicts are resolved out of court. The Ombudsman is a neutral institution, it is there to mediate between state and citizen."

Professor Diamandouros referred to the appellation defensor del pueblo in the Ombudsman's regard as used in Spain and Portugal. He said it was understandable that countries with different experiences to democracy and rule of law "less neutral terms" but that could be read as "an uneven playing field".

I could not see how the Ombudsman could be neutral. After all, the playing field is hardly ever even, since the state and other establishment institutions wield more power.

Besides, the Ombudsman is there to empower and to 'defend' or champion individuals when their fundamental human rights are violated, so how can the Ombudsman be neutral?

While conceding that usually the state has more power and that, of course, the Ombudsman is there to defend violations of human rights, Professor Diamandouros said that a priori one has to start not taking sides. "One cannot assume from the premiss that the citizen is always right.

"The institutions are sometimes right and citizens have obligations as well as rights. I am neither a Robin Hood nor a Zorro. But if it is shown that a fundamental human right has been violated, then of course the Ombudsman will champion that cause. The important thing is to let the other side be heard", he said.

So who can complain to the European Ombudsman?

Any citizen of the Union or any natural or legal person residing or having its registered office in an EU member state can lodge a complaint with the Ombudsman by mail, fax or e-mail.

A brochure entitled The European Ombudsman - Could he help you? containing a complaint form is available from the Ombudsman's office.

Every year, the Ombudsman presents his annual report to the European Parliament. The report is translated into all the official languages of the Union. The Ombudsman also has a Website, www.euro-ombudsman.eu.int. It provides detailed and updated information on his activities.

The European Ombudsman's address is 1, Avenue du President Robert Schuman, B.P. 403, F-67001 Strasbourg Cedex. Tel. (0033) 388-172313/388-172383; fax (0033) 388-179062, e-mail: euro-ombudsman@euro parl.eu.int