Ombudsman

The Ombudsman is a State authority in charge of guaranteeing the rights of the inhabitants in the face of abuses that may be made by the political powers of that same State. This figure traces its origin to the 16th century in Sweden, and means representative, protector or commissioner. His function was to ensure the proper functioning of the administration of justice in the kingdom. At the beginning of the XIX century, this figure mutates and becomes a guardian of people's rights against possible abuses of power or arbitrariness committed against citizens. Due to the success in fulfilling his functions, several Scandinavian countries decided to emulate the figure of this official during the first half of the century XX . Later, after the serious violations of Human Rights committed during World War II became known, and especially in the Holocaust, most democratic countries have chosen to include the figure of the so-called Ombudsman in their constitutions. Currently, one of the main duties of the Ombudsman is to promote and guarantee compliance with Human Rights; In addition, its function is to regulate the Public Administration.

Historical Origin

According to Andrés Crevillén Múgica, some authors defend that the Justice of Aragon, born at the end of the 12th century AD. C. and the beginning of the XIII d. C., is the precursor of the Ombudsman, since the main task entrusted to Justice was the protection of individuals and groups included in the Statute of Aragon. For others, it comes from the figure of the universal attorney or protector of all the indigenous people of the Indies in 1516. Finally, some authors suggest that the figure of the Ombudsman was created by King Carlos XII of Sweden in 1713. At that time, it was He called the person who held that position Supreme Attorney, who was appointed by the King, whose functions were to monitor compliance with obligations by officials and prevent abuse of power by citizens. In 1719, this administrative entity was renamed the Chancellery of Justice, and, for a brief period of time, the appointment of the chancellor of justice passed to the hands of the four estates or representative bodies. However, King Gustavo III claims the power to appoint this official. Finally, in the Constitution of 1809, the Swedish parliament disputes the appointment of the Ombudsman on the grounds that this should be an instrument at the service of the people that allows controlling the actions of the King and his council of ministers, as stated in article 96 of the constitution:

The House of Representatives was to appoint, at each ordinary session: "a trial of proven science and of special integrity, as a president, of Ombudsman of Riksdagin charge, in accordance with its instructions, of controlling the observance of the laws by the courts and officials and of pursuing, in the competent courts, according to the laws, those who, in the exercise of their duties, commit, by partiality, favor or any other reason, illegalities or negligence in the fulfilment of their obligations. He shall be subject, from all points of view, to the same responsibilities and shall have the same duties as the Code of Procedure prescribes for public accusers."

Origins of the Modern Ombudsman

The Modern Ombudsman arises with the Swedish constitution of 1974, which contemplates, on the one hand, the Government Instrument Law, which defines the characteristics and standards that the Ombudsman must comply with. In chapter 12 of this law, articles 3 and 6, it is established that the duty of the Ombudsman is to monitor public officials and formulate charges against them in case they have been found guilty, however, the final judicial decision rests with them. the Supreme Court.

Chapter 12 of the Law on Instruments of the Government of the Constitution of 1974:

Article 3.—A person who is or has been a minister may be held responsible for a criminal act committed in the exercise of his official duties only if he has incurred serious negligence in him. Such prosecution must be decided by the Committee for the Constitution and be tried by the Supreme Court.

Article 6.—The Riksdag to choose one or more Ombudsman for the purpose of supervising, in accordance with its instructions. A Ombudsman may initiate legal proceedings in the cases indicated in the instructions.

On the other hand, the Riksdag Law, also promulgated in the constitutional process of 1974, proposes in chapter 8, article 10, and in chapter 9, article 8, the organization that the Department of the Ombudsman should follow, delimiting hierarchies, temporalities in the position and the norms that the personnel and the administration must comply with.

Chapter 8 of the Riksdag Law of the 1974 Constitution:

Article 10.- The Ombudsman of the Parliament of Sweden should be four. One should also be the Chief Administrative Officer and decide on the orientation of activities.

Chapter 9 of the Riksdag Law of the 1974 Constitution:

Article 8. —A legal process (16) against an official, promoted by a fault committed in the exercise of his duties, can be agreed upon.

The Riksdag Act states that the ombudsman has the power to bring charges, having conducted a prior investigation and submitting it as a report. In this process, the citizen's ombudsman can also propose what is the sentence to be served by the offender. If the offense is not very serious, it may only require an economic sanction, but it may also be the case that an official suffers a temporary suspension from office or is permanently removed from it. The person being investigated can negotiate the sentence with the Ombudsman or appeal it to higher levels, since the Supreme Court is the one that finally issues the sentence against the defendant.

Finally, citing some of the functions that the ombudsman must fulfill, among them are keeping track of the development of his functions through a report that must be delivered annually; supervising the courts of law, electoral courts, the armed forces and the police; the Ombudsman must have available bureaucrats specialized in judicial investigations, as well as investigation directors and experts; Lastly, it must distinguish between the cases that must be archived and those that merit opening a file, the latter tend to be especially in cases in which the public interest is at stake.

Name

In Spanish-speaking countries it is commonly called Defensor del Pueblo and in some countries it has also been called Defensor de los Ciudadanos. In French-speaking countries it is often called Defender of Rights (in French: Défenseur des droits).

In Spain its name depends on each autonomy: for example, in the Catalan-speaking regions it is the Síndic de Greuges, while in Aragon its name is the traditional one: Justicia de Aragón. In the same way, there are differences between the ombudsman and the Defensor del Pueblo in Spain, since while the ombudsman was designed to supervise the public Administration, the Defensor del Pueblo uses this supervision as an instrument to defend fundamental rights and freedoms, as can be seen from article 54 of the Spanish Constitution and from its location within Chapter IV of Title I.

Operation

The democratic legitimacy of the Ombudsman is unquestionable, since in all cases it comes from the parliamentary election, with a qualified majority and after a public debate on the figure of the candidate. However, he is independent of Parliament, which cannot send him instructions or dismiss him, except for established causes. It has been pointed out in human rights that the effectiveness of this figure is limited by his inability to coercively impose his decisions on the authorities concerned. His ability to control lies above all in the reasonableness or persuasiveness of his arguments, which is why it acquires a more political than judicial character. However, experience shows that a good part of his recommendations tend to be heeded by the public authorities.

In some countries, the Ombudsman has the capacity to file actions or appeals before the Supreme Court or the Constitutional Court, if applicable.

The Ombudsman has been developed especially in the Americas, following the Spanish model. The institutions of the continent have been grouped since 1995 in the Ibero-American Ombudsman Federation, a very active organization in the defense of human rights in the region, which publishes an important report on human rights every year.

Ombudsmen's Offices

• Argentina: Ombudsman
• BoliviaBolivia: Ombudsman
• BrazilBrazil: Public Defender of the Union
• ColombiaColombia: Office of the Ombudsman
• Costa RicaCosta Rica: Office of the Ombudsman
• EcuadorEcuador: Ombudsman ' s Office
• El SalvadorEl Salvador: Procuraduría para la Defensa de los Derechos Humanos de El Salvador
• SpainSpain: Ombudsman
  • Ararteko, Basque Country
  • Ombudsman (Andalusia)
  • Ombudsman (Murcia)
  • Ombudsman-Ararteko (Navarra)
  • Person of the Common (Extremadura)
  • Member of the Common (Canaries)
  • Justice of Aragon
  • Procurator of the Common (Castilla y León)
  • Attorney General (Principado de Asturias)
  • Doctor of Agravios of Catalonia (Catalonia)
  • Syndic of Agravios of the Valencian Community
  • People’s Valedor (Galicia)
  • Local trade union (in different locations in Spain)
• GuatemalaGuatemala: Procurator for Human Rights
• HondurasHonduras: National Commissioner for Human Rights
• Mexico Mexico: National Human Rights Commission (Mexico)
  • National Council for the Prevention of Discrimination (CONAPRED)
  • Procuraduría de la Defensa del Contribuyente (PRODECON)
• NicaraguaNicaragua Procuraduría para la Defensa de los Derechos Humanos de Nicaragua
• Panama Panama: Ombudsman
• Paraguay Paraguay: Ombudsman ' s Office
• Peru Peru: Ombudsman
• Puerto RicoPuerto Rico: Ombudsman
• Dominican RepublicDominican Republic: Ombudsman/Ombudsman
• European Union: European Ombudsman
• Uruguay Uruguay: Office of the Ombudsman
• Venezuela Venezuela: Office of the Ombudsman

Special case

• ChileChile: Law 20.405, which creates the National Institute for Human Rights, establishes the authority of its Council that of "to issue a ruling on the consultations that the President of the Republic, the National Congress or the Courts of Justice shall make to him, within the framework of his powers" (art. 8, No. 3) and issue pronouncement in relation to the subjects set forth in the same rule (art. 8, No. 4 in relation to art. 3, especially No. 2 and 3, on reporting to the public authorities on fundamental rights), its Director being the President of that Council (art. 9), and therefore both are constituted in a legal or informal ombudsman.