CM/AS(2004)Rec1615 final 21 June 2004
The institution of Ombudsman -
Parliamentary Assembly Recommendation 1615 (2003)
(Reply adopted by the Committee of Ministers on 16 June 2004 at the 888th meeting of the Ministers' Deputies)
1. The Committee of Ministers notes with interest the adoption by the Parliamentary Assembly of Recommendation 1615 (2003) on the institution of ombudsman, which emphasises the importance of the institution of Ombudsman within national systems and aims at further enhancing the right to good administration.
2. The Committee of Ministers has brought the recommendation to the attention of member states and has communicated it to the Steering Committee for Human Rights (CDDH), to the European Committee on Legal Cooperation (CDCJ), to the Council of Europe Commissioner for Human Rights, to the Congress of Local and Regional Authorities of Europe (the Congress) and to the European Commission for Democracy through Law (Venice Commission) for comments. The comments and opinions received are contained in Appendices I - V.
Institution of Ombudsman
3. As requested by the Assembly, the Committee of Ministers refers to Recommendation No. R (85) 13 of the Committee of Ministers to member states on the institution of the ombudsman. It underlines the invitation made to member states to consider extending and strengthening the powers of the Ombudsman to encourage the effective observance of human rights and fundamental freedoms in the functioning of the administration.
4. It is to be recalled that in-depth reflection about the ombudsman institution and efforts to provide guidelines on its creation and functioning have been conducted also by the General Assembly of the United Nations. The so-called “Paris principles”1 are an important reference in this matter, together with the Committee of Ministers Recommendation R(97)14 on the establishment of independent national institutions for the promotion and protection of human rights. The Committee of Ministers also recalls the “Principles Governing the Institution of the Ombudsman at Local and Regional level” defined in an appendix to Resolution 80 (1999) adopted by the Congress. It represents a reference, within the Council of Europe, on the responsibilities and means of action of the ombudsman as well as on public access at local and regional level to the institution. The Committee of Ministers underlines that these texts serve as a basis for the work carried out in the Council of Europe in this field.
5. The Parliamentary Assembly recommends the Committee of Ministers to support the Commissioner for Human Rights in his co-ordination of the activities of national ombudsmen. The Committee of Ministers recalls that in its Resolution (99) 50 on the Council of Europe Commissioner for Human Rights, it pointed out that the Commissioner “shall facilitate the activities of national ombudsmen or similar institutions in the field of human rights”2. The responsibility for organising European Ombudsmen Round Tables, initially lay with the Directorate General for Human Rights, but was transferred to the Office of the Commissioner for Human Rights in 2002.
6. As may be seen from the comments made by the Human Rights Commissioner, these roundtables organised every two years between the Council of Europe and the European ombudsmen, provide the principal mechanism for co-operation. Furthermore, the Commissioner recalls that, having consulted with national and regional ombudsmen, specific Roundtables will also be organised for regional ombudsmen, the first such being held in Barcelona on 2-3 July 2004. The Committee of Ministers will support the Commissioner in all his efforts in this respect.
Right to good administration
7. The Committee of Ministers is invited to elaborate a model text for a basic individual right to good administration, as well as a “Model Code of Good Administration” with a view to enabling the effective exercise of this right. The Committee of Ministers considers that these proposals have to be further considered in the relevant steering committees.
8. The drafting of a possible model code of good administration should be preceded by a comprehensive, comparative study of the existing principles of “good” or “lawful” administration in Council of Europe member states. As underlined by the Venice Commission this reflection could be extended to the question whether such a right should be constitutionally entrenched.
9. The Committee of Ministers notes that the Bureau of the CDCJ is of the view that other Council of Europe instruments than those proposed by the Assembly, could also be taken into account when considering the elaboration of a possible model code of good administration.3 It also refers to the case-law of the European Court of Human Rights.
10. The Committee of Ministers notes that, at its plenary meeting on 11-14 May 2004, the CDCJ approved draft specific terms of reference for its Project Group on Administrative Law (CJ-DA). These draft specific terms of reference propose, following the suggestion made by the Bureau of the CDCJ, that the CJ-DA examines the feasibility of preparing a consolidated model code of good administration. The Committee of Ministers agrees with the proposed procedure. It considers that the Commissioner for Human Rights, the Venice Commission, the CDDH and the Congress should be invited to contribute to the elaboration of the feasibility study. Accordingly, the draft specific terms of reference of the CJ-DA should be completed in order to allow for the participation of a representative of each of these bodies in the meetings of the CJ-DA when accomplishing these terms of reference.
11. Finally, the Committee of Ministers notes that it is invited to encourage governments of member states to adopt and establish the abovementioned right and code at national level and to provide them with technical assistance in this field. The Committee of Ministers will come back to this proposal in due time.
Appendix I to reply
Comments by the Secretariat of the Venice Commission on Recommendation 1615 (2003) of the Parliamentary Assembly on the institution of ombudsman
1. The initiative of the Parliamentary Assembly to issue a recommendation on the institution of ombudsman (“OM”) is certainly to be welcomed. This institution has proved capable of playing a fundamental role in protecting and promoting human rights. Nowadays, most European countries have ombudsman institutions, whose characteristics however vary considerably from one country to another, as is pointed out by Mrs Nabholz-Haidegger in her report of 16 July 2003. Her concern to avoid proposing “universal guidance” on the creation and regulation of the institution of OM, in order to allow for the specific circumstances and needs of each country to be reflected in the relevant national institution, is therefore to be shared. It is however important to start codifying the basic standards and procedures concerning the OM.
2. Deep reflection about this institution and efforts to provide guidelines on its creation and functioning have been conducted also by the General Assembly of the United Nations (whose so-called “Paris principles”, adopted by the General Assembly on 20 December 1993, represent the current reference in this matter (further thought was given to this matter in Geneva on 10 and 11 December 2003 in the course of a conference on “The Paris principles : a reflection” (www.nhri.net)) and by the OSCE. The importance for the international community to take a coherent approach to this institution is to be underlined.
3. Equally important is the need for the Council of Europe institutions, notably the Commissioner for Human Rights, to co-ordinate effectively with the European Ombudsman and with the different national institutions (see, in particular, the Committee of Ministers' Resolution (85) 8 on co-operation between the ombudsmen of the member states and between them and the Council of Europe; Recommendation No. R (97)14 on the establishment of independent national institutions for the promotion and protection of human rights, and Resolution (97) II on co-operation between members states' national institutions for the promotion and protection of human rights, and between them and the Council of Europe).
4. The constitutional entrenchment of the institution appears very important in order to achieve independence; the Venice Commission has indeed constantly encouraged states to lay the foundation of this institution in their Constitutions. It is further necessary that its additional legislative bases be as clear as possible.
5. As regards the OM's appointment, the requirement of a transparent procedure is essential. Appointment by parliament provides the best guarantees of independence and respect for the rule of law, notwithstanding that in certain CoE member States, such as France and the UK, non-parliamentary ombudsmen have met the relevant independence expectations. Appointment procedures must respect the essential principle that those authorities which are subjected to the control of the OM should not have any part in the latter's appointment or reappointment. The recommendation of the Assembly that the OM should be appointed by parliament must therefore be supported.
6. It would be useful if further guide were provided as concerns the relations between the power of parliament to appoint the OM and the power of other institutions, the President of the Republic for example, to propose the candidates. It might be useful in this respect to recommend that the “strict criteria” for eligible candidates should be set out in the relevant legislation, and that the nominating authority is advised by a group of independent persons, e.g. presidents of the highest jurisdictions.
7. The recommendation is silent about the involvement of the public, which is instead generally encouraged. It might be appropriate to recommend that the vacancy for the position of OM should be publicly advertised and that the public should be kept duly informed of the appointment procedure.
8. Personal immunity from any kind of proceedings may be problematic. It may be appropriate to envisage and recommend some sort of impeachment procedure.
9. As regards dismissal of the OM by parliament “for incapacity or serious ethical misconduct”, the importance of setting out clearly and exhaustively, in the Constitution or/and relevant legislation, the grounds for dismissal must be stressed. The OM should have access to the highest constitutional or administrative court to have the dismissal reviewed.
10. An OM is not supposed to remain “neutral” in respect of complaints, but to support them if they result to be well-founded. An OM is instead required to be impartial, in addition to being independent.
11. The exclusion from the Ombudsman's mandate of the power to institute legal proceedings appears appropriate.
12. The powers of Ombudsman institutions to have access to constitutional courts or supreme courts should not be limited to seeking advisory opinions (“interpretative judgments” in para. 10 iv of the Recommendation). If it were so, there may be paradoxical situations in which, following a request by the Ombudsman, a Constitutional Court reaches the conclusion that a certain law is unconstitutional but cannot annul it. Consequently, the OM should be empowered to seek the annulment of norms, not only their interpretation.
13. As regards the mandate, it is very important that the OM be empowered to start ex-officio investigations.
14. The OM should have no powers, or very limitatively defined ones, vis-à-vis the judiciary.
15. The setting out at European level and prompt availability of clear principles of good administration would undoubtedly increase the awareness of the public and greatly facilitate the work of ombudsman institutions.
16. The “European Code of Good Administrative Behaviour” represents a good example of a clear, comprehensive and easily accessible text pointing to the responsibilities of the European public administration. It is foreseen to ground the related European citizens' right to a good administration in the Charter of fundamental rights (Article 41 – “right to good administration”). This “constitutional” entrenchment would significantly assist the European Ombudsman in his efforts to fight maladministration by Community institutions or bodies.
17. The right to good administration exists in substance in most European States. While it is rarely entrenched as such in the Constitution (it is so in Finland, for example), aspects thereof (such as the right of access to administrative files and records or the right to be heard in administrative proceedings) are often contained in the Constitutions and outlined in the legislation and/or in the jurisprudence. Apart from that, its content is rather vague. Its justiciability as such may therefore be problematic.
18. A European definition of this right, as previously underlined, would certainly be beneficial. For this reason, the Parliamentary Assembly's recommendation that the Committee of Ministers should draft “a model text for a basic individual right to good administration” and a “single, comprehensive, consolidated Model Code of Good Administration” is to be welcomed.
19. Such drafting should be preceded by a comprehensive, comparative study of the existing (be it at the level of the constitution, or of the legislation or of the jurisprudence) principles of “good” or “lawful” administration in CoE member states (to the extent that it has not been already carried out, either by the European Ombudsman or other Community institutions or bodies or by the Council of Europe – see, for example, the European conference on “the right to good administration”, held in Warsaw on 4-5 December 2003, as part of the Council of Europe's co-operation programmes for strengthening the rule of law). The Venice Commission could and would be willing to assist the Committee of Ministers and the other competent institutions, including the Commissioner on Human Rights and the Project Group on Administrative Law (CJ-DA), in this work.
20. The reflection on all the fundamental aspects of the right to good administration should then be extended to the question of whether such right should be constitutionally entrenched.
Appendix II to reply
Opinion of the Commissioner for Human Rights on Recommendation 1615 (2003) of the Parliamentary Assembly on the institution of ombudsman
1. The Commissioner of Human Rights welcomes the adoption Recommendation 1615 (2003) by the Assembly concerning the institution of the mediator (Ombudsman). The importance of this institution within the institutional framework of European democracies no longer needs to be demonstrated. Through their independence, flexibility and non-conflictual approach to the relations between individuals and the public administration, Ombudsmen have a key role to play in the protection of individual rights.
2. The Recommendation of the Assembly correctly emphasises the role of Ombudsmen in the defence of human rights and the usefulness of mandates explicitly referring to this area. It should, however, be noted that even where the mandates of certain Ombudsmen do not expressly mention the protection of human rights, violations of these rights by State authorities clearly constitute serious cases of “maladministration” and, as such, fall within the competence of Ombudsmen.
3. All Ombudsmen share a common characteristic: they represent a vital interface between individuals and public authorities. There is, therefore, good reason to encourage the establishment of a close relationship between Ombudsmen and organised civil society. This will enable both the attention of authorities to be drawn to the concerns of civil society and facilitate, through the intermediary of NGOs and other organised groups, contacts between Ombudsmen and the most vulnerable sectors of society, which, despite being those with greatest need of the assistance of Ombudsmen, are often least aware of the remedies they offer. In encouraging member States to adopt its Recommendation R(85) 13 concerning the institution of the Ombudsman, the Committee of Ministers might usefully take this consideration into account.
4. The Commissioner's mandate requires that he promote the activities of national Ombudsmen where they exist and encourage their creation where they do not. The Commissioner is particular active in respect of this latter requirement. Many of his recommendations to member States refer to this point. The Commissioner is particularly concerned to promote the effective functioning of these institutions. The Assembly's Recommendation represents both a strong support and an essential reference point for the activity of the Commissioner in this area.
5. The Commissioner welcomes the reference to regional and local Ombudsmen in the Assembly's Recommendation and recalls that the Congress of Local and Regional Authorities of the Council of Europe, in Recommendation 61 (1999), on the role of the regional and local Ombudsmen for the defence of the rights of citizens, stressed the contribution of such regional and local institutions to the protection of citizens and minorities, the respect for the rule of law, the management of public affairs and the functioning of local administrations. These texts provide important reference points for the ongoing activities of the Commissioner, particularly regarding the creation and the effective functioning of regional Ombudsmen within in the Russian Federation.
6. The Commissioner welcomes the proposal to elaborate model text on the fundamental right to good administration and a model code of good administrative conduct. Convinced that these projects will contribute to a greater coherence and visibility of European standards in this area, he is ready actively to contribute to these projects.
7. Furthermore, the Commissioner considers not just consultation but also, as far as possible, cooperation with the European Ombudsman to be essential. It is highly desirable that, on a subject so important to European citizens, the competent authorities of the Council of Europe and of the European Union give a decisive example of dialogue and coordination for the greater benefit of European and national administrations and all Europeans.
8. The Commissioner supports the Recommendation of the Assembly to exclude from the mandate of the Ombudsmen the power to institute legal proceedings, and to consider rather authorizing the right to appeal before Constitutional Courts. To this effect, the Commissioner recalls the final document of the 8th Roundtable with the European Ombudsmen (CommDH-OMB(2003)24) which reads as follows:
“Whereas ombudsmen can in some countries bring cases before the courts, they cannot do so in most countries. Where ombudsmen can become parties to court cases, the wide investigative powers that they should enjoy for the sake of their function as mediators – indeed their primary role, which requires impartiality and neutrality - may collide with the principle of equality of arms. Also, if an ombudsman is called upon to supervise the good functioning of the courts seen as administrations, then it is difficult to reconcile this with the possibility that the same ombudsman may have to bring cases before those whom he supervises.”
9. The Commissioner welcomes the Assembly's Recommendation to support his efforts to coordinate the activities of European Ombudsmen. He would like to mention that the Roundtables organised every two years between the Council of Europe and the European Ombudsmen are, since 2003, provide the principal mechanism for this co-operation. Furthermore, he recalls that, having consulted with National and Regional Ombudsmen, specific Roundtables will also be organised for them, the first such being held in Barcelona on 4-5 July 2004. The responsibility for organising European Ombudsmen Roundtables, initially conferred on the Secretary General in Resolution (85) 8 on “Co-operation between the Ombudsmen of Member States and between them and the Council of Europe”, adopted by the Committee of Ministers on 23 September 1985, was transferred to the Commissioner for Human Rights in 2002, the latter being mandated by the Committee of Minister, according to Resolution (99) 50, to further the activity of national Ombudsmen or other similar institutions, where they exist, and to encourage their establishment where they do not. The first Roundtable held under his auspices took place in Oslo, on 3-5 November 2003. The Commissioner feels that this change could be more clearly reflected in a document adopted by the Committee of Ministers at a moment it considers opportune.
10. Finally, the Commissioner expresses his full agreement with the comments contained in the Opinion of the CDDH.
Appendix III to reply
Opinion of the Steering Committee for Human Rights (CDDH) on Recommendation 1615 (2003) of the Parliamentary Assembly on the institution of ombudsman
1. The Steering Committee for Human Rights (CDDH) welcomes the adoption by the Parliamentary Assembly on 8 September 2003 of Recommendation 1615 (2003), which emphasises the importance of the institution of Ombudsman within national systems and aims at further enhancing the right to good administration. The CDDH notes with interest that this document encourages member states to establish, preferably at constitutional level, the individual fundamental right to good administration and the institution of Parliamentary Ombudsman.
Individual fundamental right to good administration
2. The CDDH notes that the Committee of Ministers is invited to elaborate a model text in order to give a definition to this right, which is already included in the Charter of Fundamental Rights of the European Union, as well as to draft a “Model Code of Good Administration” with a view to enabling the effective exercise of this right.
3. The Assembly proposes that this model code be based on two texts already adopted by the Committee of Ministers, namely Recommendation no R (80) 2 concerning the exercise of discretionary powers by administrative authorities and Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities, as well as on the European Ombudsman's European Code of Good Administrative Behavior (The European Ombudsman's Code) elaborated by the European Parliament4.
4. Conscious that multiplying texts on the same issue is not desirable, the CDDH shares the view of the Assembly that one consolidated text should be elaborated, which could replace the previous ones and allow the Committee of Ministers to encourage more effectively its implementation (paragraph 11 (iii)). It can therefore support this idea for the purpose of effectiveness.
5. Moreover, the CDDH notes that the elaboration of such a text would be carried out with the participation of institutions such as the Council of Europe Commissioner for Human Rights, the European Commission for Democracy through Law or the European Ombudsman, which did not exist when some of the aforementioned texts were drafted, as well as with the participation of many states, which were not yet members of the Council of Europe. The new code would therefore reflect the current situation in Europe. Its implementation would be all the more facilitated that all present member states would have been able to contribute to its elaboration and would therefore feel more directly involved.
6. The CDDH finally notes that the Committee of Ministers is invited to encourage in due time Governments of member states to adopt and establish the abovementioned right and code at national level and to provide them with technical assistance in this field.
The Parliamentary Ombudsman
7. The CDDH shares the Assembly's interest for the establishment in the different national systems of institutions similar to that of « Parliamentary Ombudsman». Ombudsmen have an important role to play in protecting human rights and ensuring proper public administration practice at all levels. The CDDH agrees that most of the characteristics referred to by the Assembly in §7 of its Recommendation are necessary for any institution of Ombudsman to operate effectively. In any case, the CDDH recalls that the Ombudsmen with functions in the field of human rights should comply with the Paris Principles, which govern the status of national institutions for the promotion and protection of human rights5. It however considers that some of these characteristics might vary from one State to another, depending on the different national situations.
8. The Assembly emphasises the interest in giving mandate to the Ombudsman to act in the field of human rights as it appears “fundamental to the concept of good administration” in order to implement duly this concept. The CDDH expresses its willingness to support further the idea of promoting the right to good administration from a human rights perspective, notably through the Ombudsmen's action.
9. The Assembly proposes to give the Ombudsman a wider role in the field of human rights, where, in the absence of specific complementary alternative mechanisms, national circumstances so require (§10 (iii)). The CDDH agrees with this idea.
10. The CDDH notes that the Committee of Ministers is invited to encourage member states to implement its Recommendation no R (85) 13 related to the institution of Ombudsman, whilst also giving effect to the more detailed provisions of the present Recommendation of the Assembly and to support the Commissioner in his work of coordination of the activities of Ombudsmen of the member states. As to the last point, the CDDH recalls that the Committee of Ministers, in its Resolution (99) 50 on the Council of Europe Commissioner for Human Rights, pointed out that the Commissioner “shall facilitate the activities of national ombudsmen or similar institutions in the field of human rights” (article 3(d))6.
11. The CDDH considers that these considerations could also be appropriately incorporated in the above-mentioned revised code.
12. The CDDH remains at the disposal of the Committee of Ministers should it wish to involve it in any work carried out in this field, insofar as human rights are at issue.
Appendix IV to reply
Comments by the Congress of Local and Regional Authorities of Europe on Recommendation 1615 (2003) of the Parliamentary Assembly on the institution of ombudsman
The positions expressed by the Assembly are similar to those adopted by the Congress in Resolution 80 (1999) on the role of local and regional mediators/ombudsmen in defending citizens' rights.
The characteristics which the Parliamentary Assembly considers essential for national ombudsmen are consistent with the “Principles governing the institution of the mediator at local and regional level”, particularly as regards the concept of mediators/ombudsmen, their powers and responsibilities, their means of action and public access to the ombudsman. (Since 1999 the principles have been used by a number of towns and regions in setting up an office of ombudsman and the Congress is currently considering the possibility of re-issuing these principles and sending them to local and regional authorities in Europe).
The work of the Congress has shown that it is not a good idea for towns or regions to have different types of ombudsmen each one specialised in a specific sector. This is in keeping with the position that the activities of a ombudsman (who should deal with all the problems that can exist between the public administration and the citizens) should also include the protection of human rights.
The Congress has also highlighted:
- the specific function of the institution of ombudsman in relation to other existing forms of judicial remedy;
- the flexible and non-judicial nature of mediation, which may help considerably to reduce the number of legal actions brought by citizens against the authorities and to settle such cases.
In view of:
- the growing number of responsibilities and tasks taken on by politically or administratively decentralised public authorities ;
- the need for ombudsmen to be close to the citizens, which can be achieved through the closeness of local and regional authorities to the citizens ;
The Committee of Ministers could encourage member states to support the institution of ombudsman at local and regional level too.
In view of the experience it has acquired in the course of its past activities, the Congress could make a major contribution to the preparation of the model code of good administration proposed by the Parliamentary Assembly.
Appendix V to reply
Opinion of the Bureau of the European Committee on Legal Cooperation (CDCJ) on Recommendation 1615 (2003) of the Parliamentary Assembly on the institution of ombudsman
The CDCJ Bureau adopted the Opinion on the Recommendation 1615 of the Parliamentary Assembly “ The Institution of Ombudsman”, prepared by the Project Group on Administrative Law (CJ-DA), noting that, while drafting this opinion, the CJ-DA, in accordance with its Specific Terms of Reference, focused its opinion on paragraph 11 of the text of the Recommendation 1615.
At the same time, the CDCJ Bureau would like to submit the following additional observations:
1. The CDCJ Bureau welcomes the adoption by the Parliamentary Assembly of the Recommendation 1615 “The institution of ombudsmen” and believes that the institution of ombudsman is of crucial importance in member states in ensuring proper protection of human rights and good administration.
2. The CDCJ Bureau notes that different member states have given various competences and powers to their ombudsmen with respect to the courts of law. The Bureau notes that the ombudsmen in the exercise of these functions, as well as in their other functions, act independently.
3. Moreover, competences of the most of national ombudsmen include examination of the activities of public administration in the light of human rights and having this task in mind it would be useful to ensure mutual exchange of information with ombudsmen of other states as well as the Commissioner of Human Rights of the Council of Europe.
4. Furthermore, the Bureau would like to call the attention of the Committee of Ministers to the fact that the CDCJ at its Plenary meeting on 11-14 May 2004 will consider proposals for the Draft Specific Terms of Reference of the Project Group on Administrative Law (CJ-DA) and in particular the suggestion of the Bureau on inclusion in the Draft Specific Terms of Reference of the CJ-DA of a study with a view to examine the feasibility of preparation of the consolidated model code of good administration as indicated in the Recommendation 1615 of the Parliamentary Assembly.
Opinion of the Project Group on Administrative Law (CJ-DA)
1. The delegations of the Project Group on Administrative Law (CJ-DA) note with satisfaction the Parliamentary Assembly's adoption on 8 September 2003 of Recommendation 1615 (2003) on the institution of ombudsman. They consider that, if implemented, this recommendation could help to strengthen the role of ombudsmen in member states and offer individuals greater protection of their rights in their dealings with administrative authorities.
2. In view of its terms of reference "to work out (....) proposals for activities aimed at strengthening the legal framework of good administration as an essential element of good governance", the CJ-DA notes with particular interest the Assembly's recommendation to the Committee of Ministers to draft:
- a model text for defining a basic individual right to good administration;
- a model code of good administration.
3. Recommendation 1615 (2003) refers in this context to Article 41 of the Charter of Fundamental Rights of the European Union, which under the heading "right to good administration" sets out the rules that must be respected "by the institutions and bodies of the Union". It also refers to the European Code of Good Administrative Behaviour, approved by a resolution of the European Parliament adopted on 6 September 2001, "which European Union institutions and bodies, their administrations and their officials should respect in their relations with the public".
4. To a certain extent the Parliamentary Assembly recommendation goes further than the two European Union texts, since it invites the Committee of Ministers to "encourage governments of Council of Europe member states in adopting and implementing the [proposed] right and code". It even concludes that the right to good administration should be adopted at constitutional level by states. However it says nothing about the adoption and implementation of this right and code by international institutions. The CJ-DA considers that persons having direct contact with international administrative bodies should have the same protection as those in contact with their national, local or regional equivalents.
5. Some of the Group's members attended the European Conference on "the right to good administration", held in Warsaw on 4-5 December 2003, as part of the Council of Europe's co-operation programmes for strengthening the rule of law. The issue under consideration was whether a further step should be taken by recognising, at the level of the Council of Europe, a right to good administration.
6. The Conference showed how difficult it is to define such a right and to identify the situations to which it applies. It covers both basic principles and procedural safeguards, and the procedural aspects are just as important as the ultimate objective. They are an integral part of the right to good administration - how government is conducted is just as important as what it seeks to achieve.
7. The Conference also brought out the distinction between the right to good administration and other, already acknowledged, rights, be they formal freedoms phrased in essentially negative terms or economic and social rights, which mainly give rise to positive benefits for those concerned. The right to good administration initially places obligations on the state, as a result of which rights are created for individuals.
8. Recognition of the right to good administration raises the key question of whether this is an individual right that those concerned can seek to enforce. Conference participants offered a qualified response, depending on whether such a right was viewed as a whole or in terms of specific aspects. In the former case, in the absence of a precise instruction or direct service, the right to good administration cannot be an individual right. Although Article 15 of the French 1789 Declaration of the Rights of Man and Citizens grants society “the right to require of every public agent an account of his administration” – which amounts to a right to good administration – this in no sense entitles each individual to require public officials to account for their actions. Article 41 of the European Union Charter of Fundamental Rights recognises this – the right to good administration is only the title and is not repeated in the detailed clauses of the article. The latter clarify what is to be understood by this general right by specifying what rights derive from it for "every person". These alone are individual rights, which anyone can insist on being applied by the administrative authorities of the Union.
9. The CJ-DA considers that to be effective, an international legal instrument establishing a right to good administration must specify its consequences in terms of different aspects of the relations between the administration and those with whom it deals.
10. The CJ-DA welcomes the proposal to prepare a model code of good administration. According to Recommendation 1615 (2003) the code should be based on Committee of Ministers Recommendation No R (80) 2 concerning the exercise of discretionary powers by administrative authorities and Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities. The CJ-DA considers that other Council of Europe instruments on administrative matters could also be taken into account, in particular those on access to information held by public authorities7, public liability8, administrative procedures affecting a large number of persons9, communication to third parties of personal data held by public bodies10 and the execution of administrative and judicial decisions in the field of administrative law11. The European Court of Human Rights has also delivered various judgments that offer individuals additional protection in their relations with public administration and should therefore be considered in any model code of good administration.
11. The CJ-DA observes that for society to exist and flourish within law-governed states, the principles of the rule of law must be built into the administrative culture and be automatically acknowledged as the natural point of reference by public officials when carrying out their duties.
12. The development of modern societies has led to more demands on public administration - both quantitative and qualitative - in response to the needs of natural and legal persons, or even of associations. The CJ-DA considers that a model code of good administration could help to create greater awareness among officials that in carrying out their duties they should be guided by the interests of those concerned as well as by the general interest, and greater awareness of their rights by those concerned.
13. Solutions for guaranteeing action by the administrative authorities vary widely in Europe, in terms of both how decisions are made and rectifying administrative shortcomings and omissions affecting individuals' rights. Judicial and non-judicial remedies are usually available to challenge administrative actions and decisions, including failure to act12.
14. Concerning the latter, in addition to internal administrative means of redress, nearly all the Council of Europe's member states have appointed an ombudsman, whose office offers citizens additional protection against the authorities to that supplied by the courts. The institution has general competence to fill the gaps left by appeal bodies and deal with all types of cases of maladministration.
15. The CJ-DA agrees with the Assembly that the institution of ombudsman makes an essential contribution to protecting citizens' rights with regard to public administration. Its special status and role may suffice to force the authorities to acknowledge rights they did not initially recognise, without the need to resort to the courts.
16. It notes that according to the Recommendation ombudsmen should be given "a mandate which clearly encompasses human rights as being fundamental to the concept of good administration" and considers that such a mandate would strengthen respect for the principles of good administration at national level and highlight ombudsmen's fundamental role in this area.
17. The CJ-DA remains at the Committee of Ministers' disposal and is prepared to contribute actively, under the authority of the European Committee on Legal Co-operation (CDCJ), to work in this area, particularly as this relates to the field of administration.