THE OMBUDSMEN INSTITUTION IN THE EUROPEAN UNION. CODE OF ADMINISTRATIVE BEHAVIOR. LEGAL SECURITY. First of all I would like to apologise for my English. I promise you that next time it will be better. I would like to express my gratitude to the World Bank and give special thanks to my compatriot, Blanca Moreno, whose prestige and efforts are not only well known here but in many other parts of the world. As Blanca comments in her book on poverty, we should not allow a situation to exist in which two billion people are forced to survive on less than two dollars a day. What worries me, is that at the same time, we pay a subsidy for all European Union cows of two dollars a day. I represent an Institution called El Justicia de Aragón (the Aragonese Ombudsman), which has over one thousand years of history. I’m going to tell you a story. One day the King of Spain received all the Ombudsmen from Spain and Latin America. His Majesty asked us which was the oldest institution and someone told him it was the Swedish Ombudsman because it has existed since the nineteenth century. When this speaker had finished, I asked to speak and said: “Your Majesty, I don’t agree, the legend of Aragón tells us that both your ancestors the Kings of Aragón and mine, the Justicias, were elected on the same day, in the ninth century”. 1 I didn’t tell the whole truth because in Aragón the legend says there were Justicias before Kings and Laws but I felt it wasn’t proper to place the Justicias ahead of the King. Then, the Spanish Ombudsman addressed the King and added:” One of your ancestors, Philip II, beheaded the Justicia Juan de Lanuza” and I quickly replied: “Don’t worry, Sir, because more than four hundred years have elapsed, the relationships have improved a lot and we hold no hard feelings for you. You will always be welcome in Aragón”. The King came up to me and embraced me. The accession of Spain to the European Union, now twenty years ago, has meant great progress for this country both economically and democratically. Now the citizens’ rights and liberties are recognised in a very broad sense. Besides, experience has demonstrated that stating rights is not enough and that institutions to ensure that they are followed are needed. For this purpose, both the Maastricht Treaty and the Spanish Constitution have recognised the figure of the supranational, national and regional Ombudsman. The right to complain to the Ombudsman is included in the treaty establishing a Constitution for Europe, which is currently in the process of ratification by the European Union Member States. What is the Ombudsman’s main duty? Trying to make the Administration work well and trying to solve citizens’ problems. 2 A year and a half ago I appeared as an advisor before a Commission the Parliament of Chile during the proceedings of an Ombudsman Law because this is one of the few Latin-American countries which still did not have one. A Member of Parliament asked me if institutions like the one I preside contribute to sharing out wealth. I answered that probably they didn´t, but that in my opinion they helped to create wealth as their duty is to watch over a better functioning of the Administration and if the Administration works well, legal security is increased and when there is legal security and freedom, both citizens and enterprises find it easier to create wealth. Besides, it is more difficult to create wealth than to share it out. I told him: “If we have a plate of cookies, even if there are more people than cookies they can be divided up by using a knife; but I don’t know how to bake cookies”. Let me tell you that resolving conflicts is not the sole purpose of Law; in a modern conception, Law is very important because it creates legal security (and predictability). In order to achieve its main goal, the Ombudsman investigates complaints about maladministration in the activities of institutions and bodies, with the exception of the Court of Justice. The European Ombudsman investigates the European Union Administration; the national Ombudsmen like those from Spain, Portugal, Sweden, Finland, Norway, Denmark, Austria, Belgium, Greece, The Netherlands, France, Poland and Ireland deal with the national administrations and the regional ones do the same inside their respective territories. In some places, like England or Italy, there are local Ombudsmen but no national 3 ones. As a rule, national Ombudsmen may also supervise the functioning of federal or local administrations. Not vice versa. In some places there are also sectorial Ombudsmen: those who defend the patients at a hospital, the students at a university, children. There are more and more due to the success of their big brothers. Independence is a problem because they usually supervise the same person who has actually appointed them and if there are too many we run the risk of dying of success. But we must appreciate the work they do. The Ombudsmen are elected by their Parliament for a term of four to six years. A qualified majority is required. They must be independent. They are usually lawyers. Among the regional Ombudsmen in Spain, half of us are magistrates; there is also a professor in Penal Law. But in Andalucía (a large region in the South of Spain), the Ombudsman is a priest who works in his office during the week and on Sundays at his church. The national Ombudsmen are former politicians, some have been either Members of Parliament or Ministers. Once the Ombudsmen are appointed they cannot be replaced except for very few causes like mental or physical impairment or desertion. This replacement would be carried out following a specific procedure which has never been used. 4 All the Ombudsmen, at least once a year, present a report before their Parliament in which they inform of their work and in particular the recommendations they have made. In our case a plenary session is held and all the spokespersons from the different parties make comments on the functioning of the administration more than on the Ombudsman’s work itself although they also refer to it in order to support him. At that point the Ombudsman has to give an account of the administrations which haven’t complied with their legal duty to answer. The report is published and it’s on our website. The efficiency of an Ombudsman in a developed country also depends on the relationship it has with the rulers and in this sense we must attempt to achieve a good predisposition on their behalf. They must be aware that we also help them as we are an external and impartial element which controls what their officials do. The Administration is very large and many times the government cannot know all that is going on; we can carry out that task. On the other hand, the proximity with the citizens enables us to quickly see the problems that arise and warn the Administration before they become larger or unsolvable. In other words, in social conflicts we are like a breakwater; each conflict that we solve means that the government has one less to deal with.. 5 The duty of modern Ombudsmen is to solve citizens’ problems but not to claim liability to the Administration. When we answer the telephone we say: “how can I help you?”. We are here to solve problems not to become a problem. I have heard some Ombudsmen say they would like to be feared by the government. I, however, prefer to say I am a friend of the government and the councils, but I am, above all, a friend of the citizens. If we can solve a situation without seeking for culprits it’s much better and it’s easier to be taken into account. This philosophy leads us to expose our opinions in a friendly way so as to avoid tension or anger. No-one in the Administration should think we are part of the political fight. The opportunity to choose between two projects usually concerns those who govern and we have nothing to say on such matters. What are the differences and similarities between a Judge and an Ombudsman? What they both have in common is that they apply the Law and that they are independent. As Ombudsmen we have an advantage, and I am a public attorney which in Spain is the same degree as a judge, and that advantage is that our institution is less formalist than the Courts of Justice and that is the reason why our resolutions are faster and also free of charge. We are formal but not formalist. 6 One thing that we can use with care is equity. I’ll tell you about a case: two architects who work for the civil service requested a merit-pay. Initially the administration refused it to them both, they took the case to court where one of them won the case but the other didn’t. The one who lost reached the Constitutional Court which confirmed the sentence. When he came to us we addressed the Administration and said: you have acted in accordance with the law because you have a sentence which says so; but as the situation which has been created isn’t fair and it’s against the principle of equality you have to do something so that this situation doesn’t continue. You should either modify the law or apply equity. And it did.