2.4.2 Human Rights Ombudsman Institutions

Many NHRIs that comply with the Paris Principles refer to themselves as Ombudsmen (Defensor del Pueblo in Hispanic countries, or Public Defenders in parts of Central and Eastern Europe). Most have a single head of the institution, as does a classic Ombudsman Office. Unlike the classical Ombudsman, however, these institutions promote and protect human rights and investigate allegations of human rights abuse, and are not principally focused on maladministration of administrative malfeasance.

“While the traditional ombudsman model was not concerned directly with human rights, more recent institutional models have included a specific human rights protection mandate, often in relation to rights set forth in national constitutions or other legislation. … In addition, ombudsman institutions are increasingly engaged in promoting human rights, particularly through educational activities and developing information programs.”4

“Ombudsman-like” NHRIs may be characterised as follows:

• They are State-sponsored, with the mandate to protect and promote human rights;
• They usually are headed by a single member who is the decision-maker (although some of these institutions have Deputies);
• They have a mandate to deal principally with human rights, although they may be specialized to address single human rights issues such as women’s rights;
• They investigate human rights, and often can receive individual complaints, as a core function;
• They are limited to making recommendations, although more recently, some such institutions have been given authority to go to court or to a specialised tribunal in specific instances where recommendations have been ignored or rejected, so this distinction does not always hold; and
• The ombudsman tradition is a longstanding one that significantly predates NHRIs. Ombudsman offices have been in place for centuries in Nordic countries such as Sweden. They focus on mediation, the use of “good offices” to investigate and resolve complaints, and they prize confidentiality. They favour quick resolution and so generally are not as focused on formal legal investigations.

Ombudsmen offices that have recommendation powers – the majority – may offer relative advantages with regard to flexibility and speed in complaint handling. While their decisions must be reasoned and supported by the evidence, decisions are not binding, and therefore need not be so rigorous that they stand up to legal scrutiny in the courts.

This model is heavily dependent on the reputation, integrity and leadership of the ombudsman herself or himself, as well as on the authority that the position exercises in society. It should be borne in mind that the political culture of Scandinavian countries, for example, has a long experience with offices of this kind, and recommendations made by an Ombudsman are received with deference and respect. In countries where the legal traditions are newer, and where this deeply ingrained political culture of deference is absent, there are risks that recommendations will be ignored, leading to a loss of credibility for the institution.

Having a single-member head complicates the requirement for pluralism; a single member from the majority culture or ethnic group may diminish credibility among those in the population who do not see themselves reflected in the leadership or who believe that their special concerns or needs are not reflected or understood. There are ways to get around these difficulties, including the use of advisory board or councils.

Most NHRIs with ombudsman-like attributes, can and do investigate matters and, in some instances, investigate individual complaints, across the full range of human rights recognised by the State.

Examples:

It should be noted that NHRIs in line with the Paris Principles are always preferable to Government-led ombudsman institutions. Cooperation and dialogue should be used to increase compliance with the Paris Principles rather than creating a new network of institutions with varying standards that may be lower than those set out by the Paris Principles.

4 Navi Pillay, High Commissioner, “Current Challenges to the Protection and Promotion of Human Rights”, talk given at a ceremony to celebrate the 200 year anniversary of the Swedish Parliamentary Ombudsman office, 2009.