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Riitta-Leena Paunio, the Ombudsman As Human Rights Defender

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Riitta-Leena Paunio, the Ombudsman As Human Rights Defender The Ombudsman as Human Rights Defender Riitta-Leena Paunio, Parliamentary Ombudsman, Finland Workshop 1: The Ombudsman as Human Rights Defender Wednesday, June 10, 2009 The ombudsman’s role as a promoter of human rights can be nationally sig- nificant, depending on the tasks that go with the office and the real opportuni- ties for action that it allows. The actions of the ombudsman can play an es- pecially emphatic role as a developer of good administration and in ensuring that those who have been deprived of their freedom are treated in a way that respects their human dignity, as illustrated here by the experiences of the Finnish Ombudsman, and others. There is also a more general role to play in influencing human rights promotion. But there is no common role, and a human rights mandate or the lack of one is not decisive in this respect. We have seen how difficult it is to use international oversight bodies to safeguard implementation of human rights. States should bear responsibility for imple- mentation of human rights, strengthening fundamental and human rights on the national level would make it unnecessary for people to have to turn to international oversight bodies. The ombudsman can and will, as a part of international networks, influence the respect that fundamental and human rights enjoy at home. The ombudsman institution comes in a great variety of forms, and there is no one-size-fits-all model. The ombudsman’s role as a defender of human rights has been deliberated at various conferences and has been the focus of com- parative studies in the legal literature.1 In these studies, the ombudsman insti- tutions are often divided into so-called classic institutions, whose main task is oversight of government or public authority, and human rights defenders or similar bodies, whose principal aim is to intervene in violations of human rights and promote these rights. In my view, protection of human rights is an essential part of the work that all ombudsmen do. Irrespective of different roles and emphases, the tasks that ombudsmen perform are closely linked to upholding the rule of law and re- specting the fundamental principles that this involves. In the following, I try to analyze some of the ombudsman’s different roles as a human rights de- fender. First I shall deal with the significance that development of the international system of human rights conventions has had for ombudsman institutions. I see the creation of these institutions as a part of this human rights development. 1 With respect to recent years, cf. especially Linda C. Reif, The ombudsman, good govern- ance, and the international human rights system. Leiden, Martinus Nijhoff Publishers, 2004; Gabriele Kucsko-Stadlmayer (ed.), European Ombudsman-Institutions. Vienna, Springer, 2008. 2 But it has also brought changes in individual institutions. The Ombudsman in my own country is an example of this. I shall use a few observations to de- scribe this development. Then I shall analyze the ombudsman’s different roles as a human rights de- fender. I shall deal with this in the light of some of the ombudsman’s key tasks, namely the ombudsman’s role in strengthening the rule of law, in pro- moting good administration, in defending the rights of persons who have been deprived of their liberty, and in promoting human rights in general. To conclude, I shall outline a few thoughts about the ombudsman’s role in international human rights development in the future. The ombudsman institution and international systems of safeguarding human rights and the ombudsman institution We have been living since at least the 18th century in a world of nation-states. Legislation has steered the development of society and the principle of the rule of law has become our objective. According to this principle, the exercise of public power must be anchored in law, which has to be scrupulously fol- lowed in all public actions. Now we are living in an era when the aim is to protect the fundamental rights of everyone by means of international conventions. Human rights are seen as springing from human dignity, not the grace and favour of the state.2 An important milestone in this change of thinking was the Universal Declara- tion of Human Rights, the 60th anniversary of which we celebrated towards the end of 2008. The past 60 years have seen an impressive number of international human rights conventions come into being. Some of the important ones within the United Nations system were created in the 1960s and 70s. The European Convention on Human Rights dates all the way back to the early 1950s. It includes a far-reaching oversight system, provides the possibility of com- plaints by individuals and has a court of its own. The aim with these conven- tions has been to strengthen the rights of citizens, or more accurately, all people relative to the public authorities. Associated with this development is the creation of posts for international human rights commissioners, namely the UN High Commissioner for Human Rights and the Council of Europe Commissioner for Human Rights, both of which made their debut in the 1990s. However, I also see the establishment of national ombudsman institutions as a part of this general development. Ombudsman institutions relate, naturally, to their own time and their inter- national and national communities, and they have come into being and devel- oped as a part of these communities. The Swedish and Finnish ombudsmen were a part of the development of the rule of law in the nation-states that produced them. The rule of law and the tripartite separation of powers are the 2 Rosas Allan, Kansainvälisten ihmisoikeussopimusten merkityksestä, Lakimies 1/1995, s. 69. Cf. also Lauterpacht H., International Law and Human Rights, 1950. 3 fundamental principles on which a democratic state is founded. It was pre- cisely these factors – equilibrium in the relations of power within the state and compliance with the law in public actions – that the rulers in Sweden wanted to strengthen when they created the post of ombudsman in their coun- try.3 The primary task of the Swedish and Finnish ombudsmen was to oversee compliance with the law and hold public servants to account for their negli- gence with respect to their official duties. The role of prosecutor was neces- sary in the implementation of legal responsibility for misconduct or negli- gence in office. Later, when the ombudsman institution spread from Denmark to other countries in the late decades of the 20th century, the emphasis shifted to as- sessing the appropriateness of administrative procedures and developing them as public administration grew vigorously. The ombudsman, as a non-judicial institution, was an ideal instrument for doing this. The role of prosecutor was no longer indispensable. General promotion of human rights was accentuated in the tasks of om- budsmen in developing nations and of those most recently created. Thus, what is noteworthy is that the spread of the ombudsman institution has been contemporaneous with the most recent stages of the development of the international system of human rights, and in this way, it is closely associ- ated with this general historical developments in safeguarding the rule of law, democracy and human rights. In each country, political and societal develop- ments and the stage that it has reached in the evolution of the rule of law have influenced the kind of ombudsman institution that has been created there. In general, however, it can perhaps be said that the trend has increasingly been towards accentuating the role of the ombudsman in safeguarding and promot- ing the human rights guaranteed in international conventions and national constitutions. The Ombudsman as a promoter of human rights in Finland The institutions have also developed over the decades along with the evolu- tion of international thinking on human rights and international influences. My own country is a good example of this. The ombudsman institution was established in Finland, following the Swedish model, 90 years ago. The country had been independent for only two years, but since the early years of the century it had had its own unicameral parliament elected on equal and universal suffrage – the first of its kind in the world. The Ombudsman was tasked with overseeing the legality of public ser- vants’ actions and holding them to account for misconduct or negligence in 3 Mats Melin, JO-ämbetet 200 år – en blick mot framtiden. In: JO – Lagarnas väktare. Eds: Jesper Ekroth and Kjell Swanström, 2009. 4 their official duties. This kind of oversight is still a key task. It is performed by investigating complaints and conducting inspections of institutions, es- pecially prisons, police stations, garrisons, child welfare establishments, insti- tutions for the mentally handicapped, psychiatric hospitals and comparable places. The Ombudsman has extensive jurisdiction. It extends to both state and municipal officials, including the police, the armed forces, judges and even government ministers. The Ombudsman can issue a reprimand on the basis of unlawful action, express an opinion as to what procedure would have been lawful, or draw the attention of the authority to the requirements of good administrative practice and to aspects that promote the implementation of fundamental and human rights. In addition, he or she can recommend the rectification of an error or draw the attention of the government to deficiencies in the legislation. The right to bring a prosecution is the most severe of the sanctions at the Om- budsman’s disposal. Human rights mandate Promoting good administration has featured centrally in the Ombudsman’s work for a long time, especially since the 1970s and 80s, when the machinery of administration expanded, but administrative procedures were unregulated.
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