Building Democratic Institutions:
The Role of National Human Rights Institutions in Good Governance and Human Rights Protection

Linda C. Reif[*]

INTRODUCTION

The enterprise of building or strengthening democratic institutions in societies emerging from civil conflict or non-democratic regimes can be immense, complex, and time-consuming. Each nation faced with such a task must address matters such as the redesign of state governance structures, law reform in many sectors and the strengthening of civil society. Although the state itself bears the prime responsibility in undertaking such an enterprise and the sovereign right to decide on the models and methods, it may be assisted by multilateral international organizations and bilateral donors.

The areas where rebuilding of democratic institutions can occur is broad indeed. Democratic governance structures, including the legislative, executive/administrative, and judicial branches, can be reformed. The rule of law can be strengthened. Human rights protection can be improved. Civil society groups can be fostered and a free press supported. A free market economic system can be developed and subjected to appropriate state regulation to prevent unfairness and obtain an appropriate level of tax revenue to support important state functions. The concept of good governance has developed in the practice of relevant international organizations and some donor governments as a guide for rebuilding or reforming governance structures. State institutions that act as oversight mechanisms to prevent improper state action and improve governance can also be established in the pursuit of good governance. These institutions include state auditors, electoral commissions,

anti-corruption commissions, and various forms of national human rights institutions.[1]

Many national human rights institutions have now been established, mainly in the past two to three decades and especially in the past ten years, as more states have turned to democratic forms of governance or have attempted to improve their democratic structure. International organizations, including the United Nations, are also paying more attention to the importance of national human rights institutions in improving governance and human rights protection in states.

In this Article, I will argue that national human rights institutions—defined as the ombudsman,[2] human rights commissions and hybrid human rights ombudsmen—can assist in building good governance in a state in two ways. First, ombudsman and hybrid human rights ombudsman offices can improve the legality and fairness of government administration, thereby increasing government accountability. Second, all types of national human rights institutions can act as mechanisms for the domestic implementation of the international human rights obligations of the state and assist in strengthening human rights protection. I will also argue, however, that the degree of success of national human rights institutions in achieving these objectives is dependent on the existence and strength of particular legal, financial, political, and social factors. These factors are applicable to national human rights institutions both in established democracies and in states that are at various stages of democratic transition and consolidation.

Finally, I will argue that although national human rights institutions typically do not have the power to make binding decisions in response to complaints of human rights violations or maladministration by government, they still can play a valuable role in human rights protection and oversight of administrative behavior. In established or consolidated democracies, national human rights institutions exercise their functions usually as part of a wider network of domestic machinery, including courts and specialized tribunals. In democratizing states, national human rights institutions may play a more central role, as they provide a viable forum for the investigation and resolution of human rights complaints in countries where the judicial system is weak, politicized, slow or otherwise incapacitated. In addition, a national human rights institution may be able to develop a stronger human rights culture in the state in transition, and thereby contribute to the democratization process. Also, regardless of the level of democracy in a state, a national human rights institution may be resorted to by persons who have problems that are not justiciable in that state—for example, economic, so-

cial, and cultural rights violations and faulty administrative conduct that is not contrary to law—or by individuals who cannot afford to litigate the problems they experience.

This Article will begin by describing the various types of national human rights institutions and the role of the United Nations and the international community in supporting the establishment of national human rights institutions. Next, the paper will explore how national human rights institutions can improve government administration and promote and protect human rights, and thereby build good governance. The Article will also examine factors that affect the effectiveness of national human rights institutions and analyze their mainly soft powers of recommendation. Finally, a selection of case studies of national human rights institutions will illustrate how these institutions are being structured in an attempt to build and improve the quality of administration and the protection of human rights.

I. NATIONAL HUMAN RIGHTS INSTITUTIONS: OMBUDSMEN, HUMAN RIGHTS COMMISSIONS, HYBRIDS, AND VARIATIONS

A. Recognition of National Human Rights Institutions by the International Community

The protection of human rights is furthered both at the international and national levels of governance. There is an interface between the two levels as international human rights law obligations of states must be implemented into domestic laws and procedures in order to obtain effective enforcement of these rights in most cases. Effective domestic protection of human rights requires a network of complementary norms and mechanisms. These include the following: state adherence to human rights treaties; implementation of international human rights obligations in domestic law; a domestic legal system that provides comprehensive substantive and procedural human rights laws; effective and accessible state institutions where individuals can obtain redress for human rights breaches, such as independent courts and national human rights institutions; a lively human rights NGO community; and a population that has developed a strong human rights culture.

The international community has increasingly recognized the importance of national human rights institutions. United Nations human rights bodies have addressed the subject of national human rights institutions since 1946.[3] In particular, a 1991 U.N. International Workshop on National Institutions for the Promotion and Protection of Human Rights resulted in the drafting of guiding principles that were adopted by the U.N. Commission on Human Rights as “Principles Relating to the Status of National In-

stitutions” in 1992 (popularly called the “Paris Principles”) and by the General Assembly in 1993.[4] The 1993 Vienna Declaration and Programme of Action, adopted at the conclusion of the Vienna World Conference on Human Rights, states that national human rights institutions play an important role in promoting and protecting human rights, disseminating human rights information, and providing human rights education.[5] The Vienna Declaration also encourages the establishment and strengthening of national institutions, having regard to the Paris Principles.[6] The United Nations has increased its focus on encouraging domestic enforcement of human rights, and providing assistance in the strengthening of national human rights institutions has become an important strategy used by the United Nations to improve human rights protection and promotion at this level. In the past five years, the Office of the United Nations High Commissioner for Human Rights has placed considerable emphasis on capacity-building and technical assistance to support the establishment and operation of national human rights institutions.[7] Mary Robinson, United Nations High Commissioner for Human Rights, has stated:

I have become increasingly convinced of the necessity to focus on preventive strategies. This has convinced me of the importance of creating strong, independent national human rights institutions to provide accessible remedies, particularly for those who are most vulnerable and disadvantaged. Frequently these institutions are “human rights commissions,” but in many countries, drawing on traditions originating . . . in Sweden, they are related to or identified as a human rights “ombudsman” or “ombudsperson.” . . . It is precisely their capacity to contribute substantially to the realization of individual human rights which makes independent institutions so significant.[8]

Also, as discussed further below, some of the peace agreements negotiated under United Nations auspices and Security Council resolutions on civil reconstruction have included provisions for the establishment or strengthening of national human rights institutions as one component of the domestic human rights protection provisions in the accords.

Further, regional international organizations have recognized the role of national human rights institutions. The Council of Europe Committee of Ministers has recommended the establishment and strengthening of national human rights institutions.[9] The General Assembly of the Organization of American States (OAS) has also given its support to the various national human rights institutions working in the hemisphere, has called for the establishment of such institutions in member countries that have not yet established the office, and recommended that the independence of national institutions be promoted.[10]

B. National Human Rights Institutions: Ombudsman, Human Rights Commissions, Hybrid Human Rights Ombudsman, and Other Variations

While a precise definition has not been developed, a national human rights institution has been described as “a body which is established by a Government under the constitution, or by law or decree, the functions of

which are specifically defined in terms of the promotion and protection of human rights.”[11] Although courts have the most important role to play in protecting the human rights of the individual against the state, they have many other judicial functions and are not usually included within the concept of the national human rights institution as it is currently understood.

There is considerable variance in the structure and number of national human rights institutions between countries, based on the unique political, historical, cultural, and economic environment of each state. For classification purposes, the United Nations has identified the ombudsman and human rights commissions as comprising the majority of national institutions.[12] In my view, it is also valuable to recognize contemporary adaptations of the two offices that have evolved, particularly the hybrid human rights ombudsman and ombudsman offices with an anti-corruption element.[13] Many of the institutions established in democratizing nations in the past fifteen years are hybrids.

While many national human rights institutions are established at the national level, in federal states there may be additional offices at the sub-national level (e.g., province, state, region, municipality), or only at the sub-national level in the absence of a federal office.

A national human rights institution may be established in the Constitution or by the legislative or executive branch of government. It may be structured as a distinct institution in its own right responsible only to the legislature, an independent office of the legislature or an arm’s-length office of the executive branch. Its mandate to protect and promote human rights may cover government conduct only or may, especially with respect to human rights commissions, also extend to cover cases in the private sector (e.g., discrimination in employment and the provision of services). However, where the investigation of government conduct is concerned, which is an important focus of many national human rights institutions and often the sole focus of offices with an ombudsman role, most institutions can only investigate conduct falling within the scope of public administration; the con-

duct of the legislature, the judiciary, and the policy-making element of the executive branch are usually excluded from jurisdiction.[14]

All ombudsmen and hybrid human rights ombudsmen and many human rights commissions have the power to investigate complaints made by persons.[15] If a national human rights institution can undertake investigations, it often can only make recommendations if it finds that there has been wrongdoing, and cannot make legally binding decisions. However, some institutions have been given stronger powers of enforcement, such as the power to make decisions, prosecute and refer or take cases to court or other tribunals for a judicial determination.[16] Similarly, it cannot make or change laws, although it may have the jurisdiction to recommend statutory amendments to the legislative body. Persons can lodge complaints with a national human rights institution free of charge—in contrast to the courts, where the costs of litigation may render access to justice illusory for many.

A crucial condition for the effectiveness of every national human rights institution is its independence in law and fact from all branches of government, and especially from the executive/administrative branch, which is usually the main target of its work. Thus, it is often the case that an institution appointed by the legislature, with other guarantees of independence in areas such as tenure of office and budget, will be in a better position to fulfill its mandate without interference—especially when scrutiny of the government is in question.

Until the 1980s, national human rights institutions were established mainly in Western Europe, North America and some Commonwealth countries around the world. These offices were primarily in the form of classical ombudsman and human rights commissions. As states started to emerge from authoritarian and other non-democratic regimes during the 1970s and 1980s, such as in Southern Europe, Latin America, and Central and Eastern Europe, their transition to democracy has included the establishment of national human rights institutions, including variations and combinations of the ombudsman and human rights complaint office.

1. The Ombudsman

The ombudsman in its “classical” form has its modern roots in the office of justitieombudsman (ombudsman for justice) created in Sweden in 1809.[17]

The institution spread through Scandinavia in the early to mid-twentieth century.[18] However, the institution only started to proliferate in the 1960s after the extensive spread of government bureaucracy in many nations. The ombudsman found in Denmark and Norway, which does not have the power to investigate the judiciary, was the model copied by other countries. New Zealand established an ombudsman based on the Danish format in 1962, followed by a long wave of new offices in other Commonwealth countries around the world.[19] Further, since the 1970s, other countries have used the classical model, ranging from established democracies wishing to reform their governance structure (e.g., western European countries, a few U.S. states) to states in various stages of democratization.[20] Also, as discussed further below, a number of countries in these latter categories have created a hybrid office: the human rights ombudsman.

The classical ombudsman is a mechanism that monitors the conduct of public administration to ensure that it is conducted legally and fairly.[21] The

ombudsman is usually a single individual, but occasionally the institution may comprise a number of persons. An ombudsman is usually appointed by the legislative branch of government to investigate the administrative activities of the executive; the conduct of the judiciary and the legislature itself are usually excluded from the jurisdiction of the office.[22] Almost invariably, ombudsmen do not have the power to examine complaints in the private sector. An ombudsman has the power to launch investigations on receipt of a complaint or on her own motion, conduct an impartial investigation into the administrative conduct in question, make recommendations to eliminate the illegality or unfairness if faulty administration is found, and report to the government and legislature on the activities of the office. The classical ombudsman does not have the power to make legally binding decisions. Rather, the office relies on “soft” powers of persuasion and the ability to publicize, including when the government fails to implement recommendations made. Although many countries have maintained the name “ombudsman,” other countries have used different titles that are expressive of the duties of the institution, such as Parliamentary Commissioner for Administration (United Kingdom, Sri Lanka), Public Protector (South Africa), Protecteur du Citoyen (Protector of the Citizen, Quebec, Canada), Volksanwaltschaft (People’s Advocate, Austria), and Difensore Civico (Civic Defender, Italian regions and provinces).

The classical ombudsman does not have an express human rights mandate. However, in practice, some of these ombudsmen handle some cases that raise a jurisdictional human rights issue that is dealt with by using human rights norms. This aspect of classical ombudsman work will be addressed in more detail below.

2. Human Rights Commissions

Human rights commissions have been established in a number of Commonwealth member states primarily over the past thirty to forty years in countries such as Canada, Australia, New Zealand, India, Sri Lanka, and some African nations.[23] Other nations have also established human rights

commissions or complaints offices.[24] A growing number of these institutions have been established in the past decade in order to strengthen the domestic mechanisms for human rights protection, such as in India, Indonesia, Sri Lanka, Uganda, and South Africa. In some countries, a separate human rights commission and ombudsman have been created. In others, only one institution has been adopted.

The human rights commission has as its express mandate the protection and promotion of human rights. A human rights commission is composed of a number of members who should have human rights expertise.[25] The human rights commission may be appointed by the executive, the legislature or some combination of the two. The powers of a human rights commission generally include some or all of the following: providing advice to government on human rights law and policy, conducting research, undertaking human rights education and investigating complaints made by members of the public that their human rights have been violated.[26] Human rights commissions have jurisdiction to take complaints alleging human rights violations, with some only covering discrimination and others having the mandate to protect civil and political rights and sometimes also economic, social and cultural rights. A human rights commission may have jurisdiction over both the public and the private sector or may be confined to conduct in only one sector. In their investigatory function, although commissions have the power to make recommendations to resolve the matter, many also can use conciliation to try to reach an amicable settlement and, if this is

unsuccessful, they can refer the dispute to binding forms of settlement such as human rights tribunals and the courts.[27]

3. Variations: From the Hybrid Human Rights Ombudsman to Corruption Fighters

Although some countries continue to create the classical forms of the ombudsman and/or human rights commission, many of the recent national institutions for the protection of human rights have been given new roles or governments have created hybrid offices. These adaptations of the ombudsman and human rights commission started to appear in the mid-1970s. They are particularly favored in Latin America and in Central and Eastern Europe.

As a result, it is increasingly difficult to categorize new institutions as either ombudsman or human rights commission. For example, some recent human rights offices are centered around a single individual, as in Russia, Latvia, and Uzbekistan. Other human rights offices self-identify with the ombudsman concept although they essentially are human rights complaints institutions, as in the case of the Bosnia and Herzegovina Human Rights Ombudsman created in the Dayton Peace Agreement. Other institutions resemble a pure human rights commission or complaints office, although they can be said to have elements of the ombudsman concept in the types of complaints against the administration that they handle, such as the Mexican National Commission for Human Rights and the Honduran National Commission for the Protection of Human Rights. Classical ombudsmen in some countries conduct investigations that involve human rights issues and norms. Branching out in another direction, some of the newer ombudsman offices have been given corruption-fighting mandates, such as in Papua New Guinea, the Philippines, Macau, Uganda, South Africa, Namibia, Ghana, and Belize.

The hybrid human rights ombudsman can be defined as an institution that expressly has been given or that in practice undertakes two roles: to protect and promote human rights and monitor government administration. In some aspects, the hybrid institutions resemble the ombudsman rather than the commission model, in that it is more common for one person to hold the office, and the combination office usually does not have the power to examine complaints in the private sector. Also, the human rights ombudsman is often appointed by the legislature. In other aspects, hybrid institutions resemble the commission model when their main role is human rights education, advice and protection. In addition, these hybrid institutions may have new powers not associated with the earlier institutions, such as the power to bring cases to constitutional courts.

The concept of a hybrid human rights ombudsman started with the “third wave” democratization movement in Southern Europe[28] and the creation of such institutions in Portugal and Spain. The 1975 Provedor de Justiça of Portugal was given the power to defend and promote rights and freedoms as well as to monitor public administration.[29] The Spanish transition to democracy brought with it a new constitution in 1978 that provided for a governance structure that included the office of Defensor del Pueblo (Defender of the People) with the power to supervise the activity of the administration and the protection of human rights in the Constitution.[30]

Starting in the 1980s, countries in Latin America began to shed their authoritarian regimes and move to democratic governance structures. Along with reform of the public administration, most of these countries had suffered from massive human rights abuses, usually committed by the government, and most, if not all, were continuing to face human rights problems of one form or another. The response was to look to the Iberian model and to create offices that for the most part adopted the hybrid human rights ombudsman form. These include the office of Defensor del Pueblo in Colombia (1991), Argentina (1994), Peru (1993, commenced activities 1996), Panama (1997), Bolivia (1998), and Ecuador (1998); the Procurador para la Defensa de los Derechos Humanos of El Salvador (Attorney or Counsel for the Defense of Human Rights, 1992); and the Procurador de los Derechos Humanos of Guatemala (Human Rights Attorney or Counsel, 1987).

In addition, the end of the Cold War led to the rebuilding of Central and Eastern European states, including their democratic development. Not only was radical restructuring of the public administration in order, but also the development of the rule of law and human rights protection mechanisms. In reforming their governance structures, a growing number of states have adopted the hybrid human rights ombudsman. Some of the nations that have established the hybrid are Poland (Commissioner for Civil Rights Protection, 1987), Croatia (National Ombudsman, 1992), Slovenia (Human Rights Ombudsman, 1995), Bosnia and Herzegovina (Federation Ombudsmen, Bosnia and Herzegovina Human Rights Ombudsman, 1995), Hungary (Parliamentary Commissioner for Civil Rights, Parliamentary Commissioner for the Protection of National and Ethnic Minority Rights, 1995), Russia (Plenipotentiary for Human Rights, 1997), Romania (Advocate of the People, 1997), Moldova (Parliamentary Advocates), Georgia (Public Defender, 1995, started operations in 1998), and Albania (People’s Advocate, 1998, appointed in 2000).

There have also been a few hybrid offices established in Africa, either at the time of independence or as a result of more recent reform initiatives. This has occurred, for example, in Namibia (Ombudsman, 1990), Ghana (Commissioner for Human Rights and Administrative Justice, 1993), and the Seychelles (Ombudsman, 1994).[31]

In other regions, Cyprus established a hybrid Commissioner for Administration in 1991, and the Palestinian Authority has created a hybrid in the Palestinian Citizens’ Rights Commission.[32]

In sum, no hybrid human rights ombudsman is identical to any other. Each institution has been structured according to historical and current political and legal factors. A rough spectrum can be identified where some offices are much closer to the human rights commission model in the nature of their functions and complaints. In other offices, the ombudsman component may have a stronger role to play. The reasons for creating these combination offices are varied. Economic concerns have been one factor—fewer financial resources are needed to operate one office rather than two. Historical and political ties as well as common cultural and legal heritages are others that make a certain model persuasive when a state is undertaking constitutional and institutional reform. Thus, for example, most Commonwealth nations have established separate human rights commission and/or ombudsman offices, while Latin American nations have looked to the Iberian/Spanish model and their Latin neighbors to adopt variations on the human rights ombudsman theme.

C. International Peace Processes: The Use of the National Human Rights Institution in the Reconstruction of Government Institutions and in Human Rights Protection

A growing number of international peace processes, many under the auspices of the United Nations, have also addressed the construction or strengthening of democratic institutions and the protection of human rights. Some of these peace accords and civil reconstruction missions have also included provisions for the creation or strengthening of national human rights institutions as an instrument to protect human rights.

The United Nations–sponsored peace agreements for El Salvador created the Procurador para la Defensa de los Derechos Humanos in 1992, and the 1996 Guatemala peace accords attempted to strengthen the Procurador de los Derechos Humanos, in operation since 1987.[33] The 1995 Dayton/Paris Peace Ac-

cords contained human rights guarantees and procedures, including the establishment of a Human Rights Ombudsman for Bosnia and Herzegovina.[34]

In the Kosovo conflict, the failed NATO-led Rambouillet peace proposal of March 1999 included provisions for a human rights ombudsman.[35] At the end of the NATO bombing of the former Yugoslavia, United Nations Security Council Resolution 1244 authorized the deployment of international civil and security presences in Kosovo under UN auspices, and authorized the Secretary-General, with the assistance of other relevant international organizations, to establish an international civil presence in Kosovo (United Nations Interim Administration Mission in Kosovo or UNMIK) to provide transitional administration and assist in the development of democratic self-governing institutions in Kosovo.[36] It is likely that a national human rights institution will be established in Kosovo. Resolution 1244 stated that the main responsibilities of the international presence include the promotion of self-government in Kosovo, taking full account of the Rambouillet accords, and the protection and promotion of human rights.[37] In early July 1999 the Permanent Council of the Organization for Security and Cooperation in Europe (OSCE) agreed on the mandate of the OSCE Mission in Kosovo, which will act under the umbrella of UNMIK and take on the main tasks of building institutions and democracy and protecting human rights.[38] Among the stated duties of the OSCE Mission in Kosovo is the “[m]onitoring, protection and promotion of human rights, including, inter alia, the establishment of an Ombudsman institution, in co-operation, inter alia, with the UNHCHR [United Nations High Commissioner for Human Rights].”[39] Thus, a human rights ombudsman is contemplated for Kosovo and, in this respect, the Bosnia and Herzegovina Human Rights Ombudsman should prove influential as a precedent for the framework and powers of any new institution.

On July 7, 1999, the warring factions in Sierra Leone signed the Lomé Peace Agreement to end the civil conflict.[40] The Lomé Peace Agreement includes provisions for the establishment of a human rights commission and a truth and reconciliation commission.[41] The United Nations Security

Council is supporting the Peace Agreement, inter alia emphasizing the importance of establishing these commissions promptly within the time period stipulated in the Agreement and ensuring their effective functioning because of the “urgent need to promote peace and national reconciliation and to foster accountability and respect for human rights in Sierra Leone.”[42] Security Council Resolution 1270 creates the United Nations Mission in Sierra Leone (UNAMSIL) with a mandate that includes cooperating with the parties to the Peace Agreement in implementing its terms, presumably also covering the establishment of the commissions.[43]

Most recently, the 1999 East Timor situation resulted, inter alia, in the Security Council taking action under Chapter VII of the United Nations Charter to establish, first, a multinational force to restore peace and security in East Timor and protect and support the United Nations Mission in East Timor (UNAMET) [44] and, second, the United Nations Transitional Administration in East Timor (UNTAET)[45] to exercise legislative and executive authority in East Timor and build a civil administration. The mandate of UNTAET includes the establishment of an effective administration, assistance in the development of civil and social services, and support for capacity-building for self-government.[46] In particular, the development of local democratic institutions is envisaged, “including an independent East Timorese human rights institution.”[47]

Also, the 1998 Northern Ireland Peace Agreement included provisions for creating human rights commissions on a bilateral basis in both Ireland and Northern Ireland.[48] Both Ireland and Northern Ireland already have ombudsman offices.

Looking to the future, it is probable that the United Nations and other regional international organizations will continue to become involved in peace-building processes in states emerging from civil and other complex conflicts. Given the precedents of El Salvador, Guatemala, Bosnia, Kosovo, and East Timor, the establishment or strengthening of national human

rights institutions can be expected to feature increasingly in international peace initiatives. As the United Nations and other international organizations continue to devote more attention to good governance and domestic human rights protection matters in their member states, these concerns are also likely to be reflected in those UN missions or peace accords that encompass provisions on democratic institution building, including the establishment or strengthening of national human rights institutions. All the national human rights institutions created in peace agreements to date have had a strong or predominant human rights protection mandate, rather than a traditional ombudsman focus on administrative justice. Given the severe human rights problems in most war-torn societies, national institutions with a strong human rights protection role will probably continue to be most relevant for potential inclusion in future peace agreements or as elements of civil reconstruction.

II. THE ROLE OF NATIONAL HUMAN RIGHTS INSTITUTIONS IN PROMOTING GOOD GOVERNANCE AND PROTECTING HUMAN RIGHTS

A. The Role of National Human Rights Institutions in Building Good Governance

The concept of good governance is being increasingly accepted by the international community as the standard for domestic governance.[49] Although I will not examine the question whether there is an evolving international norm that states must practice good governance,[50] international organizations involved in development activities and some donor states are emphasizing the need for states to implement good governance reforms and practices as one way of building and consolidating democracies.

Good governance can be defined broadly as “the responsible use of political authority to manage a nation’s affairs.”[51] Good governance is often treated as a basket of many practices: a professional civil service, elimination of corruption in government, a predictable, transparent and accountable administration, democratic decision-making, the supremacy of the rule of law, effective protection of human rights, an independent judiciary, a fair economic system, appropriate devolution and decentralization of govern-

ment, appropriate levels of military spending, and so on. Kofi Annan, United Nations Secretary-General, has stated that:

U.N. programs now target virtually all the key elements of good governance: safeguarding the rule of law; verifying elections; training police; monitoring human rights; fostering investments; and promoting accountable administration. Good governance is also a component of our work for peace. It has a strong preventive aspect; it gives societies sound structures for economic and social development. In postconflict settings, good governance can promote reconciliation and offer a path for consolidating peace.[52]

The United Nations Development Programme (UNDP) has connected the practice of good governance with the improvement of human development.[53] Similarly, the World Bank has promoted good governance practices, including reform of the public sector.[54] The IMF has implemented a policy of promoting those components of good governance that relate to economic performance.[55] Other international and supranational organizations, such as the Organization for Economic Cooperation and Development (OECD), the Commonwealth, and the European Union (EU), have also developed good governance standards for their development assistance activities.[56] In terms of individual donor states, Canada, for example, has developed a development assistance policy that includes good governance.[57]

There is an interface between a democratic system of government in a state and good governance, although the former does not guarantee the latter.[58] Human rights protection is often included within the ambit of good governance, although it should also be considered as a separate important element in its own right in rebuilding torn societies and in democratic development. Further, although the conduct of the public sector is an important component of good governance, the behavior of the private sector and civil society, and the interrelationships between the three areas, have also been incorporated into the concept.[59]

In examining its essential characteristics, the UNDP has stated that “[g]ood governance is, among other things, participatory, transparent and accountable. It is also effective and equitable. And it promotes the rule of law.”[60] In a similar vein, it has been argued that the three core elements of good governance are participation, accountability, and fairness.[61] Participation involves members of the public in the decision-making and implementation of public projects or other government activity.[62] Accountability involves establishing “appropriate lines or forms of accountability” between the government and the public, which can include access to information, transparency in decision-making, and rules of procedural fairness such as the communication of decisions and the reasons on which they are based.[63] Fairness is broken down into substantive and procedural elements, with substantive fairness requiring the actual fairness of results and procedural fairness holding that “the processes of representation, decision making, and enforcement in an institution . . . be clearly specified, nondiscretionary, and internally consistent.”[64]

National human rights institutions can build good governance in a state by realizing all three of these core principles of good governance. These institutions act as mechanisms by which members of the public can participate in the regulation of the conduct of public administration by initiating complaints that lead to investigations of human rights abuses or faulty administration. Accountability of the administration is improved—lines of accountability are drawn between the public, the national institution and

the executive/administrative branch, and the latter has to comply with the investigation, have its behavior scrutinized according to standards of law and equity, and respond to recommendations or other stronger remedial action. Transparency of government conduct is heightened through formal, objective scrutiny and public reporting by the national human rights institution. Fairness of government is also improved by national human rights institutions. An ombudsman is expressly designed to investigate broad areas of administrative unfairness and legality with the objective of improving procedural fairness in administration. National human rights institutions, including the ombudsman, can also build substantive fairness in recommendations for changes in law and policy and in combating corruption.[65] All national institutions with a human rights role attempt to reduce human rights breaches by the administration, thereby improving substantive fairness.

B. National Human Rights Institutions and Human Rights Protection and Promotion

Clearly, those national institutions with an express human rights mandate can act as a domestic mechanism for protecting and promoting human rights, i.e., the human rights commission (which may go by another name, e.g., human rights office or commissioner) and the hybrid human rights ombudsman. As discussed earlier, their human rights activities are varied, and include research, advice, education, investigations, and some remedial activities. These national institutions rely on the domestic constitutional and/or other law structuring their office that directs them to promote and uphold specified human rights laws. These human rights guarantees may explicitly include international human rights norms among the legal standards that the national human rights institution must apply. The human rights norms upheld by the institution are typically found in the constitution and/or statute law. International human rights treaties and/or customary norms may be expressly incorporated in the constitution or through legislation. Alternatively, the substantive norms deriving from the international human rights obligations of the state may be translated into constitutional or statutory language. Customary international law norms may be applied by the courts and thereby form part of domestic jurisprudence. Thus, national human rights institutions can apply the international human rights law obligations of the state in which they operate—with express or implied power to do so—to the extent that these international norms have become legally binding on the state under international law and have been incorporated into the domestic law of the nation through the constitution and/or other law.

In contrast, the classical ombudsman does not have an express human rights protection function. However, the classical ombudsman can and sometimes does protect and promote human rights.[66] Ombudsman offices do receive jurisdictional complaints that involve human rights issues and cannot be referred to another human rights institution—another human rights institution may not exist and/or the human rights issue may be intertwined with a maladministration complaint. The ombudsman can use human rights laws to resolve such an investigation because she typically has the power to determine whether administrative conduct is illegal, as well as whether it is procedurally unfair or wrong. As a result, a classical ombudsman can apply domestic law, including human rights law, to determine both the legality and fairness of administrative conduct. Again, these domestic laws can be constitutional and/or statutory in nature, and may be the internal implementation of international human rights obligations of the state. Thus, the ombudsman may also serve as a domestic mechanism for the implementation of international human rights law.

There are many areas of administrative conduct that may fall within ombudsman and human rights ombudsman jurisdiction that raise human rights complaints. Further, there are greater possibilities for an ombudsman to receive human rights complaints if the office has jurisdiction over the prison system, the police and the military.[67] Both classical ombudsmen and hybrid institutions have undertaken investigations that involve civil and political rights,[68] and a number of both types of institutions take cases that raise economic, social, cultural, and labor rights issues.[69] Indeed, as will be seen further below, economic and social rights complaints form large components of the caseload in hybrid offices in countries in Central and Eastern Europe and in other countries, such as Argentina. Human rights complaints about discrimination in the provision of administrative services, restrictions

on freedom of expression, threats to security of the person in health care facilities, treatment during the criminal process, rights of the child in the care of the state, and breaches of economic and social rights in the realm of health and social services are some examples of jurisdictional ombudsman cases.

A national human rights institution may be able to use international and domestic human rights laws directly or indirectly in the investigation of a complaint.[70] The direct use of human rights norms occurs when international law has been incorporated into domestic law, alongside other supporting human rights laws and jurisprudence. The national institution can use the domestic human rights law as the foundation for recommendations and other action at the conclusion of an investigation. Human rights commissions and mixed human rights ombudsmen will be expressly directed to apply this law, whereas classical ombudsmen can use domestic human rights law as one component of the domestic legal system that is the standard by which the ombudsman can determine whether administrative conduct is illegal or procedurally unfair.

In a broader sense, indirect use of international human rights norms can occur in two ways. First, depending on the legal system, it may be possible to use international human rights obligations of the state to interpret how the national constitutional or statutory guarantees of rights comply with international obligations in a specific situation. Second, for national human rights institutions—such as ombudsman and hybrid human rights offices that have the power to use wider notions of fairness and equity in the identification of poor government conduct—the international human rights law obligations of the state can be used as guiding principles or examples of “good practices” even if the international law has not been implemented into domestic law.

The extent to which the state that has created the national human rights institution has become bound by human rights treaties influences the relevance of these treaties for the various offices. Clearly, the United Nations treaties on human rights, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and many subject-specific treaties, are important sources of norms for offices in states throughout the world that have become parties to them.[71] In addition, there are regional human rights treaties. The European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols (ECHR) are being used by national

human rights institutions throughout Europe.[72] In the Americas, the Inter-American human rights system, which revolves around the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man, is important for national human rights institutions in that region.[73] For institutions in Africa, the African Charter of Human Rights and Peoples’ Rights is relevant.[74]

The types of human rights norms that a national human rights institution can promote and protect are also expanding. Civil and political rights are extensively covered in international human rights law and are implemented in domestic constitutions and law. Increasingly, economic, social and cultural human rights are evolving in the international system, and in growing numbers of countries, these rights are also being translated into constitutional and statutory norms. National human rights institutions, therefore, potentially have a full spectrum of human rights to work with.

The ICESCR Committee on Economic, Social and Cultural Rights issued its General Comment No. 10 in December 1998 on the role of national human rights institutions in the protection of economic, social, and cultural rights.[75] The Committee stated that:

National institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights. Unfortunately this role has too often either not been accorded to the institution or has been neglected or given a low priority by it. It is therefore essential that full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions.[76]

The Committee also called on state parties to include an appropriate economic, social and cultural rights protection role in the powers of all their national human rights institutions.[77]

From a bottom-up perspective, national human rights institutions can also be a source of human rights information for governments to use in compiling their state reports, which must be submitted periodically to the committees established under human rights treaties to which the state is a

contracting party.[78] In addition, international organizations can directly scrutinize annual and special reports of national human rights institutions to determine the extent of state compliance with international law obligations.

III. THE EFFECTIVENESS OF NATIONAL HUMAN RIGHTS INSTITUTIONS IN DEMOCRATIC STATES

The fact that a national human rights institution has been established does not automatically lead to the conclusion that it will be effective in building good governance and protecting human rights. National human rights institutions may be established by a government with the best of intentions, such as when a state is making the transition to democratic government, or consolidating its democratic structure, or when established democracies wish to fine tune their institutions. However, national human rights institutions can be established by governments that are not democratic or by governments who want to give the appearance that they are taking steps to improve the human rights and administrative justice situation in their countries, while the reality is that there is little material change after the institution starts operations.

The degree of success that a national human rights institution will have in building good governance and protecting human rights depends on a number of legal, political, financial, and social factors affecting the institution. These factors are sometimes interrelated. All of the factors need to be addressed in at least a satisfactory manner in order for a national human rights institution to operate effectively. Also, these factors need to be reevaluated periodically. Weaknesses in one or more of these factors may occur from time to time in offices in both established democracies and in democratizing states and need to be remedied if the institution is to continue to operate effectively or in order to strengthen the institution. Further, in a democratizing state, the success or failure of a national human rights institution often cannot be judged on a short-term basis; rather, its effectiveness can only be determined over a longer time frame after giving the government the opportunity to address and strengthen the various factors that enhance the effectiveness of an institution.

A. Effectiveness Factors

The United Nations High Commission for Human Rights has stated that there are six “effectiveness factors” generally applicable to all national human rights institutions: independence, defined jurisdiction, and adequate powers, accessibility, cooperation, operational efficiency, and accountabil-

ity.[79] I include these six within a larger group of effectiveness factors. Some of these six factors are present in the Paris Principles, although the Principles can be criticized on several grounds.[80] The Paris Principles are drafted with only the classical human rights commission model in mind, and the Principles do not adequately address the structure and role of the ombudsman or, in some respects, even hybrid institutions, in the protection of human rights. In particular, the Paris Principles consider the power of investigation to be an optional function that may be given to a national human rights institution, a decision that in practice is taken only with respect to human rights commissions.[81] In contrast, the power to investigate is considered an essential power for all ombudsmen and hybrid human rights ombudsmen. Arguably, the investigatory power should be included as an essential component of all national human rights institutions in order to strengthen their ability to promote and protect human rights and build good governance.[82]

In my view, all of the following factors contribute to the effectiveness of national human rights institutions: the democratic governance structure of the state; the degree of independence of the institution from government; the extent of the institution’s jurisdiction; the adequacy of the powers given to the institution, including the power to investigate; the accessibility of the institution to members of the public; the level of cooperation of the institution with other bodies; the operational efficiency of the institution; the accountability of the institution, the personal character of the person(s) appointed to head the institution; the behavior of government in not politicizing the institution and in having a receptive attitude toward its activities; and the credibility of the office in the eyes of the populace.

At the foundational level, national human rights institutions usually cannot fulfill their functions effectively in states that do not have some minimum level of democratic governance.[83] As an accountability mechanism, a national human rights institution will find it extremely difficult to function in a state without a democratic system of checks on the exercise of power, where real independence from the ruling power is not possible and where human rights are not respected in law and/or practice. In contrast, as demo-

cratic governance in a state deepens and matures, any national human rights institution established within the state should experience a more conducive environment for operational effectiveness. However, occasionally, a national human rights institution that is established in a state that is nearing a transition to democratic governance may be able to contribute through its activities to the growth of an environment that positively supports the transition and greater respect for human rights.

Maximizing the independence of the institution from government is important for effectiveness and can be achieved through various means. The independence factor requires that heads of national institutions are appointed in a manner (e.g., appointment by the legislative branch, inserting the office in the Constitution) that gives them independence from influence or control by the arm of government the office is designed to investigate—the executive/administrative branch—and other government and non-government bodies that could influence its activities.[84] Independence of the institution is also enhanced by giving the head of the institution security of tenure and giving the institution independence in matters such as the investigation and reporting process, the budget, and the hiring of personnel.[85]

A national human rights institution should be given broad jurisdiction and powers that are sufficiently strong to enable it to accomplish its mandate effectively. It is important that the jurisdiction of the institution be defined precisely in order for the institution to pursue its work efficiently and to avoid jurisdictional conflicts with other state institutions.[86] The jurisdiction of the office should be made as wide as possible.[87] For example, the police, security forces, defense forces, prisons, and other detention centers, which are often the sources of human rights problems and need civilian-oversight mechanisms, should be included within the jurisdiction of the institution. Also, consideration should be given whether the courts may be granted jurisdiction, perhaps even in a more limited way, such as where there has been unreasonable delay in rendering decisions.[88]

The institution should also be given adequate powers in its legal framework in the investigatory process, at the implementation stage and in the other roles, such as advice and education, that the institution may undertake.[89] As discussed above, giving the institution powers of investigation is important to enable individual cases of human rights and unfairness to be addressed. All ombudsman and hybrid human rights ombudsman institutions are given powers of investigation that should be as strong as possible, and all human rights commissions should also be given similar powers.

The accessibility factor requires the national human rights institution to be accessible to the population that the office is designed to protect, looking at issues such as public knowledge of the institution, physical location and diversity of composition.[90] Institutions can improve accessibility by various devices, which have different costs, ranging from advertising the office through radio, TV and brochures to opening up regional offices. Also, the institution should be free of charge to the complainant and there should be direct access to the office, e.g., the complainant should not have to complain first to a member of the legislature who then passes the complaint on to the institution.[91] The access needs of disabled and confined complainants should also be met by institutions.

Promoting cooperation refers to developing relationships and cooperating with NGOs, other national human rights institutions and international organizations.[92] Exchanging views and information with other relevant organizations should enhance the activities of a national human rights institution. Developing good relationships with NGOs provides the institution with information on human rights issues, feedback on their own work and partnerships for joint activities.

Operational efficiency requires that the institution’s structures are given adequate financial and human resources, that the institution is given the freedom to select and employ its own personnel (i.e., it is not forced to hire from the existing civil service complement), and that the institution has appropriate internal working and evaluation procedures.[93]

The effectiveness of the institution should also be improved if it has an accountability system, which is usually implemented through the reporting

requirements imposed on institutions in their legal framework in the form of annual, and sometimes special, public reports to the legislature.[94] The institution should also be accountable to the members of the public who it is mandated to protect.[95] Accountability to the public can be enhanced through actions such as making sure the annual and special reports are distributed widely in the public sphere, and ensuring that there is a regular flow of communication between the institution and the complainant during an investigation. Also, where there is both an ombudsman and a human rights commission in a territory (as is the case in a number of Commonwealth countries), when the commission is established as a government agency, the ombudsman may have the jurisdiction to investigate complaints of maladministration made against the human rights commission.[96]

Also, other effectiveness factors can be added. It is extremely important to appoint an individual or individuals to head a national human rights institution who have expertise, integrity, and credibility in the eyes of both the government and the populace. The strength of character and, occasionally, the courage needed to operate an effective national human rights institution should not be underestimated. In both democratizing states and established democracies, a strong, competent, and credible commission, ombudsman, or human rights ombudsman can be the determining factor in the effectiveness of the institution.

In addition, there is the risk that the office will become politicized if the legislature or executive appoints persons too closely connected with the government, who thus may be perceived to be aligning themselves with government positions. Accordingly, individuals who have an established history of independence from government should be appointed to head national human rights institutions. Further, political and government support must be given to the institution, its work, and its recommendations. A responsive government in the positive sense is crucial to the effectiveness of a national human rights institution. If the work and recommendations of the institution are ignored or unreasonably criticized by government, the effectiveness of the institution will suffer.

Finally, the populace served by the institution must perceive that the institution can provide it with real benefits: through its right to complain about poor administration or human rights breaches, to obtain an impartial

investigation of the matter, and to have some positive results if wrongdoing is found. The status of all of the other effectiveness factors with respect to a particular national human rights institutions will affect the public’s perception of that institution. If the public develops a negative perception about the institution, this attitude may not be easily altered and members of the public may become disinclined to use the institution. From another perspective, a national human rights institution in a newly democratizing country may be faced with the remnants of the public’s distrust in government carried over from the prior authoritarian regime. In such a situation, in order for the new institution to build a positive public perception, the new government needs to ensure that the institution is structured with attention to all the effectiveness factors, and the institution needs to develop public confidence through its activities.

B. The Effectiveness of the Power to Recommend

Even if all factors for optimizing the effectiveness of a national human rights institution are present, it still is the case that most national human rights institutions cannot make binding decisions and are confined to giving non-binding recommendations, advice and reports, plus sometimes being able to refer matters to tribunals for a legally binding decision. Only a minority of institutions have stronger powers, such as launching court actions to determine the constitutionality of laws and prosecuting for corruption or breach of law. This raises the question of the effectiveness of a national human rights institution that cannot legally enforce the results of its investigations.

Examining the issue from the perspective of the accountability provided by self-regulatory state institutions, Schedler believes political accountability is composed of “answerability” and “enforcement” elements.[97] Answerability is defined as the power given to an institution to ask “accountable actors” to give information on their decisions and to explain the facts and the reasons upon which these decisions are based, whereas the enforcement element of accountability is composed of punishment or other negative sanctions for inappropriate behavior.[98]

Schedler does conclude that state institutions can still offer accountability if either the answerability or the enforcement element is missing, stating that:

accountability does not represent a “classical” concept displaying a hard core of invariable basic characteristics. Instead, it must be regarded as a “radial” concept whose “subtypes” or “secondary” ex-

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pressions do not share a common core but lack one or more elements that characterize the prototypical “primary” category.[99]

In classifying the forms of accountability engendered by national human rights institutions, most provide legal and constitutional accountability, those with an ombudsman component also provide administrative accountability, and institutions with an anti-corruption mandate supply financial accountability.[100] Yet, at first glance, according to Schedler’s classification, most national human rights institutions would be classified as state mechanisms that have only the answerability element of accountability—a secondary or subtype example of a state accountability mechanism. If the enforcement aspect of accountability is considered to be present only when the institution is given the power to legally impose punishment, then most national institutions will be considered to lack this element unless “soft” types of sanctions are included, such as negative publicity in reports and recommendations, and the power to refer cases on to other tribunals that can issue legally binding decisions.

However, Schedler’s bipartite categorization does not account for the powers of investigation, reporting, persuasion, and forms of alternate dispute resolution undertaken by many national human rights institutions. The ability to investigate a complaint thoroughly and impartially, to analyze the case according to law (and, in the case of many ombudsman institutions, fairness considerations), and to make recommendations to government for changes in law and policy—all of which are reported to the government—goes beyond his concept of answerability accountability. Also, after a report on an investigation is issued, national human rights institutions will often engage in informal discussions with the executive/administrative branch to try to persuade the government to make the recommended changes. Accordingly, it is more accurate to classify most national human rights institutions as providing a third, intermediate form of accountability that lies somewhere between answerability and enforcement accountability on Schedler’s spectrum.

From another perspective, the accountability concept can be explained through types of control mechanisms that can operate to obtain compliance with the law in question. A clear distinction can be made between enforcement and compliance. If the focus is on compliance, it is possible to look not only at the effectiveness of mechanisms to obtain enforcement of the law (the “sticks” approach), but also at approaches or incentives that engender voluntary conformity with the law (the “carrots” approach). In the area of control

of administrative action, Hertogh and Oosting have applied the different forms of law enforcement seen in various areas of government, classifying the ombudsman generally as a mechanism of “cooperative control” as opposed to the “coercive control” of the courts.[101] Cooperative control is facilitative and proactive, using advice and persuasion, wherein the actors confer and dialogue to try to obtain the desired result and change behavior.[102] In contrast, coercive control is reactive, and control is imposed by unilateral decision.[103] Therefore, most national human rights institutions can be considered to be forms of cooperative control, with some powers of a few offices moving into the coercive control sphere. This intermediate level of accountability provided by national human rights institutions interfaces with building good governance in a state and protecting human rights. Since national human rights institutions are overwhelmingly cooperative control mechanisms, the factors that influence the effectiveness of an institution will also affect the ability of the institution to exercise cooperative control successfully.

IV. NATIONAL HUMAN RIGHTS INSTITUTIONS:
SELECTED CASE STUDIES

In this Part, I will provide some case studies selected from over one hundred national human rights institutions that have been established around the world in order to illustrate the different ways in which these institutions can build good governance and/or protect and promote human rights. An evaluation of the effectiveness of the institutions in each region will also be attempted. Although the focus is on relatively new institutions, some established offices are also examined. Many of the case studies explore the adaptations of the human rights commission and ombudsman models that have been established. The selections are taken from the following regions: Northern, Western, and Southern Europe; Central and Eastern Europe; Latin America; and Africa. Given the large number and variety of national human rights institutions that now exist, the examples provided in this paper can only provide a partial view of the contemporary landscape.

A. Northern, Western, and Southern Europe

There are many classical ombudsmen in Northern and Western Europe, with Southern Europe favoring the human rights ombudsman, but there are only a handful of human rights commissions. There are national ombuds-

men, including several human rights ombudsmen, in twelve of the fifteen European Union states and, of the remaining three, Italy has ombudsmen at the sub-national level, Germany has one regional ombudsman, and only Luxembourg has not established the institution at all (the latter two nations rely on legislative petitions committees at the national level). The ombudsman is found throughout Scandinavia. Switzerland, however, has not established a national ombudsman, although there are a few cantonal and municipal ombudsmen.

1. Norway

In Norway, the institution of the Parliamentary Ombudsman is enshrined in the Constitution, and is appointed by the Storting “to supervise the public administration and all who work in its service, to assure that no injustice is done against the individual citizen.”[104] Pursuant to the subsidiary legislation, the Ombudsman, in giving his opinion at the conclusion of an investigation into the administration, can point out errors and negligence, notify the government of shortcomings in law and administrative practice, inform prosecuting authorities of what steps he thinks should be taken, and recommend the payment of damages.[105]

Although it is a classical ombudsman whose main activity is the investigation of poor administration, the Norwegian Ombudsman has stated that the institution should play an active role in ensuring that Norway’s obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR” or “European Convention”) and other human rights treaties are implemented in the domestic legal system and respected by the public administration.[106] Ombudsman Arne Fliflet has stated:

[i]n practice, when investigating the individual cases, I will also verify that the public administration has taken due account of any international human rights obligations by which Norway might be bound. If it is not clearly evident from the decisions of the public administration that relevant provisions of the [European] Convention have been considered, the administration will be asked to reconsider the matter. Furthermore, within the framework of sec-

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tions 11 and 12 of the Act relating to the Parliamentary Ombudsman, I will draw the attention of the Storting and the public administration to any discrepancies that I might discover between conventions and Norwegian laws and regulations.[107]

The Ombudsman of Norway has dealt with a few cases expressly involving human rights. Human rights obligations and Norwegian constitutional provisions have been used to support the opinion of the Ombudsman in investigations concerning freedom of expression (ECHR, Article 10), freedom of association (ECHR, Article 11), and the right to receive a decision within a reasonable period of time (ECHR, Article 6).[108]

The Norwegian Ombudsman illustrates how a classical ombudsman can still involve international human rights law in the resolution of cases. This approach requires the ombudsman to interpret her mandate to include human rights laws within the norms that the ombudsman takes into consideration in processing investigations. Norway’s Ombudsman, like other Scandinavian offices, scores very well on all of the effectiveness factors and plays a respected role in building good governance. However, since human rights protection and the associated law is not expressly inscribed in the office’s legal framework, inclusion of human rights concerns in the work of the office will likely depend on the approach of the ombudsman in office at any particular time, and her interpretation of the mandate of the office.

In addition, this office and other examples discussed below—i.e., Finland, the Netherlands, Spain, Poland, Slovenia, and Bosnia and Herzegovina—demonstrate how different types of national human rights institutions in Europe can all act as non-judicial domestic mechanisms for the implementation of the regional European human rights treaty system.

2. Finland

Until recently, the Ombudsman of Finland, established in 1919 as one of the earliest national human rights institutions, was based purely on the Swedish ombudsman model with the additional power to investigate the courts of law, to ensure that both the public authorities and the courts observe the law.[109] Also, unlike most ombudsman offices, the Finnish Ombudsman has the power to bring criminal charges against public officials and judges and to prosecute them, although this is rarely used. The Finnish Ombudsman addressed human rights matters within its original, classical

mandate.[110] However, since 1995, following Finland’s modernizing revision of the human rights included in its Constitution in light of the country’s obligations under the European Convention and various U.N. treaties, the Ombudsman has been given the express and additional duty to “monitor the realization of basic rights and human rights.”[111] The revised human rights obligations contained in Chapter 2 of the Constitution cover civil, political, economic, social, cultural, and environmental rights.[112]

The Finnish Ombudsman has received cases involving the entire spectrum of rights in the Constitution—to equality before the law and the prohibition of discrimination, life, liberty, and security of the person, a fair trial, freedom of movement, a secure private life, freedom of religion, freedom of expression, freedom of assembly, participation in public life, protection of property, language and culture, the environment, labour, social security—and the complainants have come from all sectors of society, including children, prisoners and soldiers.[113] The Ombudsman of Finland has also taken cases that cover police conduct and the conduct of public employees in institutions where individuals are involuntarily detained (e.g., prisons, mental health centers), and they are considered to be “part of the core area of the Ombudsman’s oversight of legality.”[114] In 1998, out of a total of 2,361 resolved cases, the greatest number of complaints concerned the civil and criminal courts (17%), social welfare authorities (15%), the police (10%) and public health authorities (5%).[115]

The Finnish Ombudsman, one of the earliest national human rights institutions to be established, is an example of an ombudsman with powers that are stronger than those typically given to the traditional ombudsman. The office also illustrates how even an established democracy with a national institution that functions effectively can continue to expand the function of the office to include monitoring the implementation of the state’s international human rights obligations. As a result, the Ombudsman of Finland not only promotes good governance, but also now has a definite mandate in human rights protection.

3. The Netherlands

The National Ombudsman of the Netherlands was created in 1981 and the institution was enshrined in the Constitution in early 1999.[116] As an ombudsman based on the traditional model, the main role of the institution

is to promote good governance in public administration. However, the ombudsman does receive some jurisdictional complaints that raise human rights issues, partly due to the fact that he has jurisdiction over the police and the security service, and thus is able to act as a mechanism for the enforcement of the human rights obligations of the Netherlands.[117]

The Dutch Ombudsman is able to use international human rights treaties, in particular the ICCPR and the European Convention, in the resolution of these complaints based on several factors. Under the law of the Netherlands, self-executing treaties by which the country is bound automatically become part of the domestic law after publication and are directly enforceable by the courts. Statutes shall not be applied if they conflict with the treaty obligations.[118] Also, the Constitution of the Netherlands codifies some of the human rights found in the treaty law. Moreover, the ombudsman statute gives the National Ombudsman a broad standard by which to assess government administration, which permits the use of human rights in the resolution of an investigation.[119] Although the direct use of human rights norms is rare, the National Ombudsman more commonly uses these norms as “orientation criteria” in his assessment of the administrative conduct in question, i.e., “review criteria which, at present, are not (yet) included or widely accepted in the range of legal principles accepted by the courts.”[120] The cases that the National Ombudsman receives tend to be “specific, physical acts” committed by public servants, especially the police, and, in this respect:

Police actions might only be considered by the criminal courts in the event of a prosecution. In practice, this means that most police actions fall outside the scrutiny of the criminal courts. The civil courts rarely consider police actions. Thus, for most police actions the National Ombudsman is the only fully independent review body.[121]

However, there are a few investigations, especially involving the police, wherein the National Ombudsman makes more direct use of human rights norms found in the Constitution and other sources.[122]

Following this route, the Dutch Ombudsman has used provisions of the European Convention and the ICCPR, embodied in the Constitution and other legislation, to determine whether the authorities have complied with their human rights obligations. Further, “[t]he effect of such a review is also that the relevant norm is expressly laid before the competent authorities, which may help to reaffirm the value of the norm and its observance.”[123] The National Ombudsman has used human rights norms in cases concerning the rights to: liberty (e.g., police arrests without reasonable suspicion that a crime has been committed, detention by police without arrest, arrest without the knowledge of the Public Prosecutor); inviolability of the person (wrongful use of handcuffs by the police, reasonableness of police body and clothing searches, unreasonable use of force by the police); privacy (improper transfer of information by police to third parties, lapses in tax department record keeping and privacy); respect for the home (improper police entry, improper entry by the tax department bailiff); protection against inhuman or degrading treatment (treatment in police cells) and equality (conduct by police, tax department, and public service recruiters).[124]

In another sector, also related to human rights, the National Ombudsman reviews the government administration of matters relating to asylum seekers and refugee claimants, a large source of complaints to his office.[125] In some cases, he has relied on international human rights instruments and domestic law relating to the right to asylum, the principle of nonrefoulement of refugees, and the rights involved in the determination of refugee status and deportation processes.[126]

Similar to the Norwegian Ombudsman, the National Ombudsman of the Netherlands is a classical ombudsman, whose mandate has been interpreted to include human rights matters that pertain to jurisdictional complaints. In this respect, the Dutch Ombudsman is aided by a broad jurisdiction including complaints against the police and security services. Like the Scandinavian ombudsman offices, the Dutch Ombudsman performs well in terms of the effectiveness factors. However, also similar to the Norwegian Ombudsman, since there is no express human rights mandate in the office structure, the extent to which the National Ombudsman of the Netherlands will rely on international human rights norms in resolving complaints will be contingent on the orientation of the appointee.

4. Spain

In Southern Europe, the Portuguese Provedor de Justiça and the Defensor del Pueblo (Defender of the People) of Spain are important models, as they are the first hybrid human rights ombudsman institutions to have been established.

In the mid-1970s, the Iberian peninsula started the transition to democratic governance. As described above, the democratization of post-Franco Spain produced a new governance structure in the 1978 Constitution that included the hybrid Defensor del Pueblo as a High Commissioner of the Cortes Generales (Parliament) appointed by the Cortes to protect the human rights contained in Title I of the Constitution “for which purpose he may supervise the activity of the administration, informing the General Cortes of it.”[127] The Organic Law detailing the functions of the Defensor was passed in 1981, and the first Defensor took office in 1983. In establishing the institution of Defensor del Pueblo, the constitutional drafters were influenced by the Scandinavian ombudsman. They followed this model to address poor administration, and they added human rights protection functions to help strengthen the new democracy.[128]

Title I of the Constitution contains civil and political rights, as well as economic, social, cultural, and some collective or “third generation” rights. Certain rights, mainly the civil and political ones, are binding on all public authorities and are protected by the amparo[129] appeal to the Constitutional Court, whereas the other rights are considered “guiding principles of economic and social policy” for legislators, judges, and public officials.[130] In addition to the usual powers to investigate, recommend and report on maladministration and human rights complaints against government, the Defensor del Pueblo of Spain was given stronger powers: to bring actions for civil liability against authorities, civil servant and government agents, and to launch unconstitutionality and amparo actions against laws before the Constitutional Court.[131]

Margarita Retuerto Buades, former Acting Defensor del Pueblo, surveyed cases examined by the Defensor during the 1990-1994 period and found that the most common complaints lodged by the office involved alleged breaches

of the constitutional rights to equality, physical integrity, privacy, effective legal protection and conscientious objection.[132] Also, based on the Constitution, the Defensor has used the Universal Declaration of Human Rights and human rights treaties that Spain has ratified (including the European Convention, ICCPR, ICESCR, the Convention for the Elimination of Torture and Other Inhuman and Degrading Treatment, and the Convention for the Elimination of all Forms of Discrimination Against Women) during investigations and in the recommendations made.[133]

As a national human rights institution, the Spanish Defensor del Pueblo has contributed to building good governance through its ombudsman function and promoting and protecting human rights. In the latter sphere, the Defensor deals with individual human rights cases and plays a role in the implementation and interpretation of international and domestic human rights obligations of the state through its investigations and the constitutional actions it has instituted.[134] Perales has commented on the effect that the Defensor del Pueblo has had on the human rights situation in Spain after its first ten years of operation.[135] She has stated that the institution:

has had a very positive impact, not only in achieving resolution of complaints filed by individuals, but also in the analysis of greater problems . . . . It is precisely in this way that effective use of public powers can be achieved and improvement in constitutionally recognized human rights brought about.[136]

Spain is an example of a relatively young democracy that, nevertheless, has made a successful transition to a consolidated democracy where human rights are generally respected and enforced.[137] The Defensor del Pueblo has contributed to this transition and now operates as one element of a democratic governance structure. The legal framework supporting the Defensor is conducive to an effective institution, as seen in the independence, broad jurisdiction, and extensive powers given to the office. The Defensor del Pueblo has also benefited from the appointment of generally strong individuals to

head the institution. The Spanish Defensor del Pueblo is an example of a successful hybrid human rights ombudsman. It has also been influential as a model for the design of many Latin American human rights institutions established since the late 1980s.

B. Central and Eastern Europe

The end of the 1980s saw the collapse of the Soviet Union and the democratization of the former East bloc states and the new CIS states. In moving from totalitarian regimes to democratic governance, countries in Central and Eastern Europe have tried to redesign or build new government institutions. In all of these countries, the concerns have been the need to establish the rule of law, create new legislation, overhaul the practice of bureaucracies, improve the government’s human rights record, and change the mind set of bureaucrats and the people. Thus, the last decade has seen a massive exercise of constitution drafting and democratic institution building, with the new governments looking to both western and socialist systems for inspiration or ideas—such as different approaches to distribution of powers, forms of legislatures, and the constitutional court concept.[138]

These countries are also making use of various types of national human rights institutions to address the problems of human rights protection and poor administration. The countries that have established an institution have created one institution whose predominant mandate expressly includes human rights protection, instead of creating separate ombudsman and human rights commission structures. In this respect, the use of the term “ombudsman” for the office can be misleading. Although fine distinctions may be difficult to make, it can be argued that some nations in the region have established offices more closely based on the human rights commission model, while others are more clearly hybrids. However, any distinction can often dissolve in practice.

National human rights institutions have been established in the following nations: Poland (Commissioner for Civil Rights Protection), Hungary (Parliamentary Commissioners for Civil Rights and for the Protection of National and Ethnic Minority Rights), Slovenia (Human Rights Ombudsman), Bosnia and Herzegovina (Human Rights Ombudsman), Federation of Bosnia and Herzegovina (Ombudsmen), Macedonia (Public Attorney), Croatia (National Ombudsman), Moldova (Parliamentary Advocates), Romania (Advocate of the People), Albania (People’s Advocate), Russian Federation (Plenipotentiary for Human Rights), Latvia (Human Rights Office), Ukraine (Authorized Human Rights Representative), Georgia (Public Defender), Uzbekistan (Authorized Person for Human Rights), and Lithuania (its leg-

islation creating the Seimas Ombudsmen is closer to the ombudsman model). In 1999, the Estonian legislature gave the task of Ombudsman to the Chancellor of Justice, a very questionable decision in light of the independence and effectiveness concerns this raises.

Many of the national human rights institutions in Central and Eastern Europe deal with human rights issues that cover the entire spectrum of political, civil, economic, social, and cultural rights. As can be seen from the following case studies, complaints concern the treatment of persons deprived of their liberty (e.g., detainees, prisoners, persons in psychiatric facilities), police conduct, property rights, social assistance rights, and unreasonable delays in obtaining court decisions and administrative proceedings feature prominently.

1. Poland

The first institution established in the region was Poland’s Commissioner for Civil Rights Protection, an office created by legislation passed in 1987 during the decline of the communist government, in an attempt to retain some support from the population but without any genuine desire to create a viable institution.[139] The institution survived the collapse of communism. The office was included in the 1989 Constitution and strengthened in the 1997 Constitution.[140] Although the office was modelled on the classical ombudsman figure,[141] its human rights mandate is express and expansive. The 1997 Constitution emphasized the Commissioner’s human rights protection role. Article 80 of the 1997 Constitution states that “everyone shall have the right to apply to the Commissioner for Civil Rights Protection for assistance in the protection of his freedoms or rights infringed by organs of public authority.” Article 208(1) states further that the “Commissioner for Civil Rights Protection shall guard human and civic freedoms and rights specified in the Constitution and other legal acts.”

The Commissioner is appointed by the legislative branch (by the Sejm on approval of Senate) for a five-year term, reporting only to the Sejm, with the mandate to “safeguard the rights and liberties of citizens as set forth in the Constitution of the Republic of Poland and in other regulations” and to investigate whether “the law and/or principle of community life and social

justice have been breached” by the acts or omissions of public bodies in civil rights and liberties cases.[142] It has been argued that the Commissioner is similar to many ombudsmen in scrutinizing government administration both according to its legality (including violations of human rights laws) and against wider equitable standards including “social justice.”[143]

Important for the human rights protection function, no area of administration is excluded from the jurisdiction of the office, with the Commissioner able to investigate the armed forces, the police, the prison system and security forces.[144] On finding a violation of rights and freedoms, the Commissioner can inter alia issue recommendations, demand that civil action be taken and participate in the action with the same powers as the public prosecutor, require that administrative proceedings or appeals be taken in the administrative court, and participate in the proceedings with the same powers as the public prosecutor, request that criminal proceedings be commenced, and launch extraordinary appeals in the Supreme Court against final decisions.[145] The Commissioner can also call on the government to make or change laws respecting rights and freedoms.[146] Furthermore, the 1989 Constitution permitted the Commissioner to make applications to the Constitutional Tribunal, and the 1997 Constitution made slight changes to this power, with the effect that the Commissioner is one of the government bodies that currently can apply to the Constitutional Tribunal to obtain a determination on, inter alia, the conformity of statutes and treaties with the Constitution and the conformity of statutes with ratified treaties.[147] The 1997 Constitution contains a range of civil, political, economic, social, cultural, and environmental rights.[148]

As a result, the human rights protection role is an important component of the work of the Polish Commissioner for Civil Rights Protection. This has been complemented with a human rights education component, important in a country emerging from a long repressive regime. During the first decade of activity, many cases covering the spectrum of human rights, especially those arising in a country moving from a socialist state to a demo-

cratic, free market system, have been addressed by the Commissioner.[149] Cases have included equality rights and discrimination, treatment of prisoners, denial of passports, privacy rights, detention and treatment in mental health care facilities, improper arrest, minority rights, denial of pension benefits, rights of the child, rights associated with employment, housing rights, rights to education, and cultural rights.[150] In these cases and in applications before the Constitutional Tribunal, the Commissioner has been able to use provisions of human rights obligations, particularly those in the Universal Declaration of Human Rights, the ICCPR, the ICESCR and the European Convention, to interpret constitutional provisions and laws broadly.[151] Ewa Letowska, the first Commissioner, has stated:

The Polish Commissioner . . . took full advantage of the right to initiate an action before the Constitutional Tribunal or the Supreme Court. Most importantly, the Commissioner pushed for direct application by courts of the rules of international law, including the International Human Rights Covenants, and insisted upon the faithful observance of the rule of law.[152]

Certainly, the provisions in the 1997 Constitution will facilitate the use of international human rights treaties ratified by Poland in the cases that the Commissioner can bring before the Constitutional Tribunal. In 1998, the Commissioner launched the first six actions before the Constitutional Tribunal pursuant to the provisions of the 1997 Constitution.[153]

Although the human rights component of the Commissioner’s work is extensive, the office also deals with the monitoring of administration in more diffuse areas. The 1998 reporting year illustrated that the greatest concentration of complaints submitted to the Commissioner included economic and social rights issues and some complaints mirror those seen in traditional ombudsman offices.[154]

Poland is a consolidating democracy, where human rights are respected overall, although there are some difficulties in areas such as prison conditions and the slow and ineffective judicial system.[155] The Commissioner for Civil Rights Protection is seen as a relatively effective institution, contributing to the democratization of Poland through its activities.[156] This can be attributed to strength in most of the factors that affect the institution, including the independence of the office, its wide jurisdiction and broad powers, the appointment of strong individuals to the position of Commissioner, the cooperative stance of the government, and the perception of the office in the eyes of the populace.[157] The problems encountered in the judicial system result in the Commissioner playing an even more important role in human rights protection than would be the case in an established democracy. The office also illustrates how a national human rights institution in Central and Eastern Europe can act as a non-judicial mechanism for the domestic implementation of international human rights obligations of the state, including the regional European human rights law. The Commissioner still has to face problems typical of a post-communist state, however, such as bureaucratic behavior that is slow to change, government officials that are poorly educated in human rights norms, and inadequacies in the law generally, all of which have an impact on the work of the office.[158]

2. Slovenia

On Slovenia’s independence in 1991, a new Constitution was adopted, including Article 159, which provided for the establishment of the Office of the Ombudsman, described as “[a]n Ombudsman, responsible for the protection of human rights and fundamental freedoms in matters involving State bodies, local government bodies and statutory authorities . . . appointed pursuant to statute.”[159] Slovenia’s Parliament passed the Human Rights Ombudsman Act on December 28, 1993, and the first Ombudsman took office on January 1, 1995.[160]

The Ombudsman is elected by Parliament upon the nomination of the President for a six-year term and reports annually to Parliament.[161] In performing his function, the Ombudsman “shall act according to the provisions of the Constitution and international legal acts on human rights and fundamental freedoms. While intervening he may invoke the principles of equity and good administration.”[162] The Human Rights Ombudsman has wide jurisdiction over public bodies, and even has limited powers over the courts, and is only able to interfere in court or other legal proceedings if there is “undue delay in the proceedings or evident abuse of authority.”[163] On the conclusion of an investigation, if he finds a breach of human rights or some other maladministration, he can make recommendations, give opinions and propose that disciplinary measures be taken.[164] The Ombudsman is also empowered to examine more general issues relating to the human rights and legal security of Slovene citizens; for example, he can initiate systemic investigations and he can make submissions on proposed amendments to the law to Parliament and the government.[165] The Human Rights Ombudsman may also lodge constitutional appeals with the Slovenian Constitutional Court to determine the constitutionality of laws, and can make constitutional complaints to the Court with respect to individual cases he is handling.[166]

The Human Rights Ombudsman addresses complaints of poor administration in general, such as arbitrary decisions, delays, and mistakes. However, the human rights protection mandate is the core element of his work and the Ombudsman uses both constitutional law and international norms incorporated in domestic law. To this end, the Ombudsman has stated:

The work of the Human Rights Ombudsman is founded on constitutionally guaranteed human rights and freedoms. Under the provisions of our constitution, these rights are exercised directly pursuant to the constitution. Particularly important for my work is that the ratified international legal acts in Slovenia are incorporated into domestic law. Thus, the European Convention on Human Rights, for instance, can be applied directly. This provides the possibility of directly invoking the jurisprudence of the bodies established on the basis of this Convention. The same applies for other ratified conventions, such as the Council of Europe Conven-

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tion on the Prevention of Torture or the United Nations Convention on the Rights of the Child.[167]

In his reports for 1995 and 1996, the Human Rights Ombudsman stated that the most serious human rights issues that his office had uncovered were the excessive duration and ineffectiveness of proceedings before state bodies, incomplete legislation in the human rights and administrative law fields, the inadequate and complex appeal routes from the actions of state bodies, the social difficulties encountered by many Slovenes, and problems arising out of Slovene independence.[168]

By 1998, the Human Rights Ombudsman was still noting that there were problems with the government’s attempts to improve human rights, accessibility to information in the public interest and the unreasonable periods of time taken to reach decisions in court and administrative proceedings.[169] A review of the annual reports of the Human Rights Ombudsman over the past three years illustrates the variety of human rights issues addressed by the office, including the civil and political rights of detainees in remand centers and detained juveniles, rights of prisoners, rights of persons involuntarily confined in psychiatric facilities, social security, welfare and pension rights, the right to an effective judicial remedy within a reasonable period of time, civil rights arising out of police conduct, and refugee issues.[170] In 1998, the largest complaint sources were court, and police procedures (26.3%), administrative affairs (20.8%), and social security matters (12.1%), followed by labor relations (6.6%) and restrictions on personal freedom (6.4%).[171]

Slovenia is another example of a country consolidating its democratic structure, where the human rights situation is adequate, but where there are the usual problems experienced in the post-communist Central and Eastern European states—undue delay in judicial and administrative processes, outdated or nonexistent laws on matters affecting human rights and legislative slowness.[172] The effectiveness of the institution is affected by several factors. The independence of the Human Rights Ombudsman is not as strong as with a purely legislative appointment, since it is based on a nomination by the executive.[173] However, the institution is given broad jurisdiction and

powers for human rights protection, including a limited mandate over court proceedings. Also, the Ombudsman himself has determined that there is a low level of response from both the executive and the legislative branches to the recommendations and reports of the Human Rights Ombudsman.[174]

3. Bosnia and Herzegovina

The national human rights institution situation in Bosnia is complex. In 1994, while the conflict in Bosnia was ongoing, the Bosniac and Croat governments agreed on a Constitution of the Federation of Bosnia and Herzegovina.[175] The Constitution contained human rights guarantees with an annex incorporating 21 human rights treaties and created three Federation Ombudsmen to uphold these rights.[176] Appointed by the Federation legislature, the Ombudsmen were given the responsibility to protect human dignity, rights, and liberties contained in the Federation Constitution (including the annexed treaties) and cantonal constitutions and, “[i]n particular, “they shall act to reverse the consequences of the violations of these rights and liberties and especially of ethnic cleansing.”[177] The Ombudsmen act individually and have jurisdiction over all Federation, cantonal and municipal institutions and “any institution or person by whom human dignity, rights, or liberties may be negated, including by accomplishing ethnic cleansing or preserving its effects.”[178] They have the power to investigate, report, and initiate and intervene in court proceedings, including in the Federation Human Rights Court.[179] Before the implementation of the Constitution, the first Federation Ombudsmen were appointed by the Organization on Security and Cooperation in Europe (OSCE) at the end of 1994, and commenced activities on January 20, 1995.[180] By 1996, the majority of human rights cases received concerned property rights (e.g.,