Assessing the relationship between parliament and ombudsman: evidence from Serbia (2007–2016)

ABSTRACT

The work of parliament and ombudsman is of critical importance for democracy and the rule of law. Still, the relationship between these two institutions is considerably under-researched. This paper aims to contribute to filling this research gap by presenting a set of key criteria for the assessment of their relationship. These are applied in the analysis of the Serbian Parliament’s actions towards the Ombudsman in the first ten years of operations of this new institution in the Serbian legal and political system on the national level (2007–2016). Results show that the Parliament did not build consistent, predictable and efficient relations with the Ombudsman yet. Instead of being a supreme protector of the Ombudsman’s independence and its strongest ally in the protection and promotion of human rights, Parliament developed a practice of hampering the Ombudsman’s work. The results may serve as an indicator of the state of democratisation of Serbia, as well as for assessing the level of the Parliament’s institutional maturity. Outside the Serbian context, this study can be a useful source for comparative purposes, given the importance of this issue for all parliamentary ombudsmen, particularly those that are also national human rights institutions (NHRIs).

KEYWORDS:

• Serbia
• parliament
• democracy
• ombudsman
• protector of citizens
• national human rights institution
• NHRI
• Paris principles
• Belgrade principles

Acknowledgements

The author would like to thank Daliborka Nikodimović, Tara Tepavac, Janja Simentić and Sava Popović, the editor and two anonymous reviewers for their valuable comments on an earlier draft of this article. All errors remain author`s sole responsibility.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Luka Glušac is a PhD candidate at the University of Belgrade – Faculty of Political Sciences. His PhD explores the evolution of national human rights institutions (NHRIs) and their relations with the United Nations. He is also independent advisor in the Secretariat of the Protector of Citizens (Ombudsman) of the Republic of Serbia, where his responsibilities include reporting, researching and international cooperation. The views expressed in this article are his own and do not necessarily reflect the positions of the Protector of Citizens.

Notes

1. M. Steven Fish, ‘Stronger Legislatures, Stronger Democracies’, Journal of Democracy 17, no. 1 (2006): 5–20.

2. Ibid., 18.

3. P. Nikiforos Diamandouros, ‘The Ombudsman Institution and the Quality of Democracy’ (lecture, Centre for the Study of Political Change, University of Siena, Siena, Italy, October 17 2006, https://www.ombudsman.europa.eu/speeches/en/2006-10-17a.htm).

4. David Beetham and others, Assessing the Quality of Democracy: A Practical Guide (Stockholm: International Institute for Democracy and Electoral Assistance, 2008), 23.

5. Marten Oosting, The Independent Ombudsman in a Democracy, Governed by the Rule of Law, Occasional Paper No. 66 (International Ombudsman Institute, 1998).

6. See for instance: Jernej Rovšek, ‘Practical Impact of Ombudsman’s Recommendations – Legislation and Policy’ (paper presented at the Regional Meeting on Independent National Human Rights Protection Institutions, Budapest, 13–14 December 1999), http://www.varuh-rs.si/publications-documents-statements/speeches-papers-and-articles/news/detajl/practical-impact-of-ombudsmans-recommendations-legislation-and-policy/?L=6&cHash=fdb175cc63a42b90a6d52e748681aed8 (accessed June 6, 2018); Réka Friedery, ‘Insight into a Special Relation: the European Parliament and the European Ombudsman’, Acta Juridica Hungarica (Hungarian Journal of Legal Studies) 52, no. 2 (2011): 115–25.

7. The term Ombudsman is gender-neutral, as the ‘man’ suffix itself is gender-neutral in original Swedish. i.e. it applies correctly whether the Ombudsman is male or female. Following that, we use ‘ombudsmen’ in plural throughout this paper.

8. Local ombudsmen exist in Serbia since 2002, when the Law on Local Self-government envisaged the possibility of establishment of local ombudsmen. The provincial ombudsman of Vojvodina was also established in 2002.

9. Luka Glušac, ‘Razvoj nacionalnih institucija za ljudska prava’ [The Evolution of National Human Rights Institutions] in Srbija i institucionalni modeli javnih politika: problem i perspektive [Serbia and Institutional Models of Public Policies: Problems and Perspectives], ed. Djordje Stojanović and Mladen Lišanin (Belgrade: Institute for Political Studies, 2016), 287–8. For more on types of NHRIs and their geographical diffusion see: Jan Wouters and Katrien Meuwissen, eds., National Human Rights Institutions in Europe: Comparative, European and International Perspectives (Antwerp: Intersentia, 2013); Ryan Goodman and Thomas Pegram, eds., Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions (Cambridge: Cambridge University Press, 2012); Thomas Pegram, ‘Diffusion Across Political Systems: The Global Spread of National Human Rights Institutions’, Human Rights Quarterly 32, no. 3 (2010): 729–60; Richard Carver, ‘One NHRI or Many? How Many Institutions Does It Take to Protect Human Rights? – Lessons from the European Experience’, Journal of Human Rights Practice 3, no. 1 (2011): 1–24; Gauthier De Beco, ‘National Human Rights Institutions in Europe’, Human Rights Law Review 7, no. 2 (2007): 331–70; Brian Burdekin, National Human Rights Institutions in the Asia-Pacific Region (Leiden: Martinus Nijhoff Publishers, 2007).

10. Until 2015 GANHRI was known as the International Coordinating Committees of NHRIs (ICC).

11. More on GANHRI and the accreditation procedure in: Gauthier De Beco, ‘Compliance with the Paris Principles and the ICC Sub-Committee on Accreditation’ in National Human Rights Institutions in Europe: Comparative, European and International Perspectives, eds. Jan Wouters and Katrien Meuwissen (Antwerp: Intersentia, 2013), 247–62; Meg Brodie, ‘Progressing Norm Socialisation: Why Membership Matters – The Impact of the Accreditation Process of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights’, Nordic Journal of International Law 80 (2011):143–92.

12. Gauthier De Beco and Rachel Murray, A Commentary on the Paris Principles on National Human Rights Institutions (Cambridge: Cambridge University Press, 2014), 34–5.

13. Luka Glušac, ‘National Human Rights Institutions and Oversight of the Security Services’, Journal of Human Rights Practice 10, no. 1 (2018): 58–82.

14. Accredited NHRIs in the form of centres and councils also exist in some countries, e.g. Jordan, Moldavia, Slovakia, Egypt, Morocco and Libya. These types of NHRIs are more similar to commissions and institutes then ombudsmen.

15. See, for example: Saša Janković, ‘Belgrade Principles on the Relationship between National Human Rights Institutions and Parliaments’ (Statement given during the 20th session of the UN Human Rights Council, Geneva, June 28, 2012); See note 13 above.

16. For an authoritative review of the appointment and reporting procedure, see: Kucsko-Stadlmayer, European Ombudsman-Institutions, 461.

17. Petrov notes some exceptions to this rule. For example, in Denmark and Norway the Parliament may issue general directives to the ombudsman, but it cannot interfere with his/her work in specific cases: Vladan Petrov, ‘The Constitution and Regulatory Bodies (Independent Bodies) – An Attempt at Defining the Place and the Role of Regulatory Bodies in the Constitutional System’, in National Assembly of the Republic of Serbia and Independent Bodies, United Nations Development Program, ed. Boris Čamernik, Jelena Manić and Biljana Ledeničan (Belgrade: UNDP, 2009), 43–55.

18. Ibid., 49.

19. Colin Neave, ‘Exploring the Role of the Commonwealth Ombudsman in Relation to Parliament’ (Senate Occasional Lecture Series at Parliament House, Canberra, November 28, 2014), 53.

20. Thomas Pegram, ‘Weak Institutions, Rights Claims and Pathways to Compliance: The Transformative Role of the Peruvian Human Rights Ombudsman’, Oxford Development Studies 39, no. 2 (2011): 246.

21. Stephen Owen, ‘The Ombudsman: Essential Elements and Common Challenges’, in The Ombudsman: Diversity and Development, ed. Linda Reif, Mary Marshall, and Charles Ferris (Edmonton: International Ombudsman Institute, 1992), 1.

22. Luka Glušac, ‘Protecting the Rights of Refugees in Transit Countries: What Role for National Human Rights Institutions (NHRIs)?,’ in The 3rd International Academic Conference on Human Security, ed. Svetlana Stanarević, Ivica Djordjević, and Vanja Rokvić (University of Belgrade – Faculty of Security Studies, 2016).

23. Ibid.

24. See for example, Kerstin Andre, ‘Parliamentary Ombudsman of Sweden’ in Center for the Study of Democracy, European Standards and Ombudsman Institutions in Southeast Europe (Sofia, 2002), 8.

25. Ulziibayar Vangansuren, ‘The Institution of the Ombudsman in the Former Communist Countries’ (paper submitted to the International Foundation for Election Systems, Washington, July–August 2002), 9.

26. Principles relating to the Status of National Institutions (The Paris Principles), adopted by General Assembly Resolution 48/134 of 20 December 1993.

27. They were originally adopted in 2008, with revisions in 2013 and 2017.

28. GANHRI – Subcommittee on Accreditation (SCA), General Observation of the Paris Principles, 2017, https://nhri.ohchr.org/EN/AboutUs/GANHRIAccreditation/General%20Observations%201/GeneralObservations_adopted%2006.03.2017_EN.pdf.

29. Ibid., G.O. 1.11.

30. Ibid., G.O. 1.1.

31. Ibid., G.O. 2.3

32. Council of Europe Parliamentary Assembly, Improving Co-Operation Between National Human Rights Institutions and Parliaments in addressing Equality and Nondiscrimination Issues, Resolution 1998, 2014, para. 6.

33. Council of Europe Parliamentary Assembly, Strengthening the institution of ombudsman in Europe, Resolution 1959, 2013, para. 4.

34. Ibid., para. 7.

35. European Union Agency for Fundamental Rights, ‘How do Equality Bodies, NHRIs and Ombudsmen and National Parliaments cooperate?’, May 4, 2016, http://fra.europa.eu/en/news/2016/how-do-equality-bodies-nhris-and-ombudsmen-and-national-parliaments-cooperate.

36. Philippa Webb and Kirsten Roberts, Effective Parliamentary Oversight of Human Rights: A Framework for Designing and Determining Effectiveness (King’s College London, June 2014), 5.

37. Ecuador, Ghana, India, Jordan, Kenya, Mexico, New Zealand, Portugal, Serbia and the United Kingdom.

38. See: United Nations General Assembly, Report of the Secretary General: National Institutions for the Promotion and Protection of Human Rights, A/HRC/20/9, 2012, para 67.

39. Gabriele Kucsko-Stadlmayer, ed., European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Vienna: Springer, 2008), 10–11; International Ombudsman Institute, ed, Australasia and Pacific Ombudsman Institutions (Vienna: Springer, 2013), 24; Ursula Kriebaum and Gabriele Kucsko-Stadlmayer, eds., Asian Ombudsman Institutions: A Comparative Legal Analysis (Vienna: Vergal, 2016), 37–9.

40. See more on Serbian Ombudsman in: Dejan Milenković, ‘The Ombudsman (Protector of Citizens)’, in National Assembly of the Republic of Serbia and Independent Bodies, United Nations Development Program, ed. Boris Čamernik, Jelena Manić, and Biljana Ledeničan (Belgrade: UNDP, 2009), 133–62; Gabriele Kucsko-Stadlmayer, ed., European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Vienna: Springer, 2008), 371–85.

41. Art. 1. of the Law on the Protector of Citizens (further: the Ombudsman Law / OL).

42. Art. 1. of the Ombudsman Law.

43. For more on ombudsman’s competencies, see for example: Dejan Milenković, ‘The Ombudsman (Protector of Citizens)’, in National Assembly of the Republic of Serbia and Independent Bodies, United Nations Development Program, ed. Boris Čamernik, Jelena Manić, and Biljana Ledeničan (Belgrade: UNDP, 2009), 133–62.

44. In accordance with Art. 17 para 3 of OL.

45. Boris Čamernik, Jelena Manić, and Biljana Ledeničan, eds., National Assembly of the Republic of Serbia and Independent Bodies, United Nations Development Program (Belgrade: UNDP, 2009); Dobrosav Milovanović, Nemanja Nenadić, and Vladimir Todorić, Survey on the Improvement of the Legislative Process in the Republic of Serbia. Belgrade (Belgrade: Deutsche Gesellschaft für Internationale Zusammenarbeit, 2012).

46. Tara Tepavac, The Independent Bodies and the National Assembly of the Republic of Serbia: Collaboration or Ignorance, Policy Brief, Research Forum of European Movement in Serbia, 2/2015, 1, https://dgap.org/sites/default/files/article_downloads/emins_serbia_independent_bodies.pdf.

47. Ibid.

48. See for example: European Commission, Serbia 2016 Report, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2016/20161109_report_serbia.pdf. Same applies to earlier so-called progress reports.

49. See for example: ’Commissioner Muižnieks urges Serbia to shield the national Ombudsman from undue pressure’, June 1, 2015, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806db86e (accessed April 3, 2017); and OHCHR, ‘Press briefing notes on Yemen, Serbia, Honduras and Albinism website launch’, May 5, 2015, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15924 (accessed April 3, 2017).

50. Ombudsman, 2016 Annual Report, Table 3, http://www.ombudsman.rs/index.php/izvestaji/godisnji-izvestaji (accessed April 3, 2017).

51. Gabriele Kucsko-Stadlmayer, ed, European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Vienna: Springer, 2008), 50–1.

52. Ibid., 513.

53. OHCHR, National Human Rights Institutions: History, Principles, Roles and Responsibilities, Professional Training Series No. 4 (Geneva: OHCHR, 2010), 105.

54. Belgrade Principles on the Relationship between National Human Rights Institutions and Parliaments(adopted at the International Seminar on the relationship between National Human Rights Institutions (NHRIs) and Parliaments, Belgrade, Serbia, 22–23 February 2012), para. 27–31.

55. Art. 107, para 2. of the Constitution.

56. Art. 18. of OL.

57. Art. 18, para 2. of OL.

58. Art. 24, para 2. of OL.

59. This the case, for example, in Bosnia and Herzegovina, Croatia, Macedonia, Hungary, Slovenia.

60. Art. 24, para 2. of OL.

61. Art. 161.of the Rules of Procedure of the National Assembly (RoP), ‘Official Gazette of RS’, Nos.20/12.

62. See: Ombudsman, 2015 Annual Report (Belgrade: Ombudsman, 2016), 314.

63. See more in: Luka Glušac, ‘Protecting the Rights of Refugees in Transit Countries: What Role for National Human Rights Institutions (NHRIs)?,’ in The 3rd International Academic Conference on Human Security, ed. Svetlana Stanarević, Ivica Djordjević, and Vanja Rokvić (University of Belgrade – Faculty of Security Studies, 2016).

64. As of 31December 2016, according to data from the official website of the Ombudsman: http://www.ombudsman.rs/index.php/2013-01-14-14-36-04 (accessed April 3, 2017).

65. This is not a number of single formal acts of legislative initiative (there was 28 of them in total), but the number of individual initiatives within the formal acts.

66. Art. 41. of OL.

67. Rules of Procedure of the National Assembly, ‘Official Gazette of RS’, No. 52/10.

68. Decision amending the Rules of Procedure of the National Assembly, ‘Official Gazette of RS’, No. 13/11.

69. Initiative available at: http://zastitnik.rs/index.php/zakonske-i-druge-inicijative/4489-2015-12-16-10-36-00 (accessed November 23, 2016).

70. That amendment was submitted in accordance with Art. 18, para. 2. of OL and Art. 157, para. 6. of RoP, i.e. when an amendment can be submitted only by the competent parliamentary committee.

71. The Bill is available at: http://www.ombudsman.rs/index.php/lang-sr/zakonske-i-druge-inicijative/2825-2013-05-14-07-58-42 (accessed November 23, 2016).

72. More than 51,000 citizens supported the Bill with their signatures, while more than 10.000 signed an online petition, endorsing the Bill.

73. Belgrade Principles, para. 15.

74. Ibid., para. 16.

75. Ibid., para. 17.

76. GANHRI – Subcommittee on Accreditation (SCA), General Observation of the Paris Principles, 2013, http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Pages/SCA-Reports.aspx, G.O. 1.11.

77. Art. 33 of LO.

78. Art. 237 of RoP.

79. Art. 239 of RoP.

80. 2015 Annual Report, 317–34; 2016 Annual Report, 342–66.

81. Conclusion on 2010 Annual Report of the Protector of Citizens, ‘Official Gazette of RS’, No. 54/11; Conclusion on 2012 Annual Report of the Protector of Citizens, ‘Official Gazette of RS’, No. 57/13; Conclusion with regard to the Consideration of the Annual Report of the Ombudsman for 2013, ‘Official Gazette of RS’, No. 60/14.

82. Art. 41 of OL.

83. Conclusion on 2010 Annual Report of the Protector of Citizens, ‘Official Gazette of RS’, No. 54/11.

84. Government of the Republic of Serbia, Conclusion No: 02-779/12.

85. All published in ‘Official Gazette of RS’, No. 57/13.

86. Conclusions with regard to the Consideration of the Annual Report of the Ombudsman for 2013, ‘Official Gazette of RS’, No. 60/14 (as of 5 June 2014).

87. What makes it particularly worrying is that, in accordance with the RoP, the chair of the Committee on the Rights of the Child is the Speaker of the Parliament.

88. ‘Official Gazette of RS’, No. 60/14.

89. Government of the Republic of Serbia, Conclusion, No. 021-7728/2014.

90. Government of the Republic of Serbia, ‘Report of the Administrative Authorities on Compliance with the Recommendations of the Ombudsman is Adopted’, May 23, 2015, http://www.srbija.gov.rs/vesti/vest.php?id=238360 (in Serbian) (accessed March 28, 2017).

91. The author received confirmation of the Parliament that the Government submitted the Report. The information was obtained through the Law on Free Access to Information of Public Importance.

92. Art. 272 of the Rules of Procedure of the Parliament of Slovenia.

93. As it was the case with 2012 Report, Parliamentary elections held on April 24th 2016 obstructed the work of the Parliament.

94. 2016 Annual Report, 342–66.

95. Emily O’Reilly, ‘Relations between Ombudsmen and Parliaments’ (address at the Eight National Seminar of the European Network of Ombudsmen, Copenhagen, October 21, 2011), https://www.ombudsman.gov.ie/en/News/Speeches-Articles/2011/Relations-between-Ombudsmen-and-Parliaments.html (accessed April 2, 2017).

96. Interview with former commissioner of the SAHRC (name withheld for confidentiality reasons), held in South Africa in August 2002, cited according to: Anne Smith, ‘The Unique Position of National Human Rights Institutions: A Mixed Blessing?’, Human Rights Quarterly 28 (2006): 937.

97. See more at: ’Parliament rejected the Ombudsman's report!’ (In Croatian), Croatian Radio Television, May 20, 2016, http://vijesti.hrt.hr/335810/sabor-odbio-izvjesce-pucke-pravobraniteljice (accessed February 3, 2018).

98. Reports from each session are available at: http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Pages/SCA-Reports.aspx (accessed November 23, 2016).

99. Author’s analysis of the Reports of the SCA.

100. The data refer for both first-time-accreditations and reaccreditations, irrespective of final recommendations in relation to the status. The SCA hold two sessions per year. As of first session in 2016, in accordance with the GANHRI SCA Rules of Procedure, the classifications for accreditation used by the SCA are only A (compliance with the Paris Principles) and B (Not fully in compliance with the Paris Principles or insufficient information provided to make a determination). Classification C is no longer in use.

101. Art. 39 of the OL.

102. Art. 39, para. 7. of the OL.

103. Council of Europe Parliamentary Assembly, Improving Co-Operation between National Human Rights Institutions and Parliaments in Addressing Equality and Nondiscrimination Issues, Resolution 1998, 2014, para. 6.7.

104. Officially ‘Rulebook on the Organisation and Job Classification of the Secretariat of the Protector of Citizens’.

105. See the Progress Reports for Serbia.

106. ‘Official Gazette of RS’, Nos. 54/09, 73/10, 101/10, 101/11, 93/12, 62/13, 63/13 – corr., 108/13 and 142/14.

107. See: 2015 Annual Report, 48.

108. SCA, Report and Recommendations.

109. See for example: ‘Human Rights House: Government to Stop with the Pressures’, Politika Daily, May 30, 2014, http://www.politika.rs/scc/clanak/294847/Ku%C4%87a-ljudskih-prava-Vlada-hitno-da-prestane-sa-pritiscima (in Serbian) (accessed February 19, 2017).

110. When deciding on later request by the Ombudsman in the same matter, the Committee has been more efficient, time-wise, and has always accepted them.

111. ‘Official Gazette of RS’, Nos. 68/15 and 81/16 – decision of the Constitutional Court.

112. Art. 5, para. 2. of the Law on Determining the Maximum Number of Employees in the Public Sector.

113. Art. 5. of the Law.

114. See: ‘Storm Gathers Over the Office of Poland’s Human Rights Commissioner’, Liberties, September 19, 2016, https://www.liberties.eu/en/news/clouds-gather-over-the-office-of-the-polish-commissioner-for-human-rights/9736 (accessed February 2, 2018).

115. See more at: ’Philippine Congress backs Annual Budget of Just $20 for Agency Probing Drugs War’, Reuters, September 12, 2017, https://www.reuters.com/article/us-philippines-drugs-rights/philippine-congress-backs-annual-budget-of-just-20-for-agency-probing-drugs-war-idUSKCN1BN1JV (accessed February 2, 2018). The budget was ultimately restored in the same amount as in previous year. See: ‘Philippine Congress Agrees to Restore Rights Commission Budget from $20’, Reuters, September 20, 2017, http://www.reuters.com/article/us-philippines-duterte-rights/philippine-congress-agrees-to-restore-rights-commission-budget-from-20-idUSKCN1BV28J?il=0 (accessed February 2, 2018).

116. Established by the Rules of Procedure from 2010 (‘Official gazette of RS’, No. 52/10), but provisions related to the committees entered into force with the new Assembly in 2012.

117. Ombudsman, 2014 Annual Report (Belgrade: Ombudsman, 2015), 230; and Ombudsman, 2013 Annual Report (Belgrade: Ombudsman, 2014), 19.

118. Ombudsman, 2015 Annual Report (Belgrade: Ombudsman, 2016), 290–1.

119. Ibid., 200.

120. Ibid., 290–1.

121. Ibid., 17–18.

122. Ibid., 290–1.

123. Ombudsman, 2013 Annual Report (Belgrade: Ombudsman, 2014), 87

124. As of 2012, the chairman is Mr. Meho Omerović.

125. Belgrade Principles, para. 21.

126. The Public Administration Select Committee (PASC) was established by the House of Commons in June 2010 for the duration of the 2010–2015 Parliament. On 3 June 2015, the House of Commons approved changes to Standing Orders to establish a Public Administration and Constitutional Affairs Committee with a remit to, inter alia, examine reports of the Parliamentary and Health Service Ombudsman and connected matters.

127. Ann Abraham, ‘Making Sense of the Muddle: The Ombudsman and Administrative Justice, 2002–2011’, Journal of Social Welfare and Family Law 34, no. 1 (2012): 97.

128. This is also a long-standing opinion of the Ombudsman.

129. OHCHR, Strengthening the Bond between Parliaments and National Human Rights Institutions, April 2, 2012, http://www.ohchr.org/EN/NewsEvents/Pages/ParliamentsAndNHRIs.aspx#sthash.0Skc8vHg.dpuf (accessed April 3, 2017).