Austrian Ombudsman Board: fostering democracy by mediation between citizens and the state

Austrian Ombudsman Board: fostering democracy by mediation between citizens and the state

The spread of the ombudsman idea is based on the conclusion that there is a need of a “new quality of legal protection and remedy” in order to overcome deficiencies and shortcomings as to the efficiency of traditional systems of legal protection and bureaucratic obstacles, which exist in the context of these systems. In about 125 member states of the United Nations there are ombudsmen respectively similar institutions. So in more than two thirds of the UN-member states we can find such controlling bodies.

The Austrian Ombudsman Board being a child of a state dominated by political parties and being born under specific parliamentary conditions has gradually become a sort of institution for the protection of citizens’ rights with especially Austrian characteristics in the course of the past 26 years of its existence whereas younger ombudsman institutions in Central and Eastern Europe have been created as institutions for the protection of civil rights respectively fundamental human rights right from the beginning on and hence had the function of an engine generating the development of civil society .

In Austria there is no other institution of the state which provides services that could be consumed by any citizen as easily as those of the Austrian Ombudsman Board since no formalities or fees have to be considered when filing a complaint with the board or asking for help. But it is also these citizens that do actually influence the ombudsman’s work. Primarily it is the complaints and stories about grievances in public administration told by citizens concerned by maladministration who make the ombudsman and his staff take measures. It is the citizens who articulate which requirements must be met by the state and a good public administration, which effects are implied by certain administrative measures and it is also these citizens who want to know whether certain administrative measures and decisions are in compliance with the law and hence have to be accepted or not. But there are also citizens who contact the ombudsman without being affected by acts of maladministration just in order to draw the attention to certain general grievances and shortcomings; in this context the ombudsman will be free to start an ex officio review procedure. The Austrian Ombudsman Board as well as every parliamentary ombudsman has got the function of an institution that has to be accessible easily for everybody who is subject to the law and has to confront public administration with alleged grievances to uncover acts of maladministration in a constructive way in order to pave the way for a process of consideration and improvements in the future or has to confirm correct administrative decisions. The ombudsman both has to act as somebody who provides help and assistance to the individual and as a supreme body of the state drawing conclusions from intentional acts of maladministration or errors of public officers, which may lead to new general guidelines for public authorities. With respect to his experience in the context with the application of legal provisions in force the ombudsman has also got to give impulses for amendments and alternative legislative solutions.

According to the opinion of the European Council ombudsman institutions as such are an important part of “bonne gouvernance” respectively “good governance” . So in easy speech one could say that the ombudsman has to guarantee that the law does not only come from the people as the real sovereign of a state but that the law does also come back to the people again. In this context the ombudsman board has been entrusted with the function of an institutional link between the citizens and the state.
Consultation days of the ombudsmen in the capitals of the federal states, at local authorities and in local communities

There has always been some controversy in parliament, in the mass media and in jurisprudence concerning the organization of the Austrian ombudsman institution as a board consisting of three incumbents who decide on their allocation of business and standing orders; also the Austrian Convent (Österreich-Konvent), which is working on a general revision of the Austrian constitution, will deal with this issue . My colleagues and me hold the view that the “board-system” has proved to be very worthwhile. One has to state that this sort of organization offers the opportunity for personal contacts with citizens and for individual care for their legal problems to an extend, which is quite unique when compared to other national ombudsman institutions.

The direct contact and communication with people in the course of consultation days in Vienna and the Austrian Federal States (Bundesländer) demonstrate that the ombudsman board is not a part of anonymous bureaucracy and represent the “unique selling point” of the ombudsman board. Since the Austrian Ombudsman Board is a national ombudsman institution which is obliged to conduct review proceedings in the field of federal public administration and in addition in the field of local administration in seven federal states it has always been the intention of the ombudsman board both to make clear that the headquarters of our institution are in Vienna but that at the same time our scope of competence and activities also comprise the whole federation and the federal states.

It is especially the parliamentary ombudsman who has the mission to support those who are not supposed to have the power to deal successfully with bureaucratic obstacles and maladministration themselves by offering the opportunity for a personal talk. There are a lot of people who really want to discuss their case with an incumbent of the Austrian Ombudsman Board in person and who do not only want to correspond with the ombudsmen in writing. Personal meetings with incumbents of the board in the course of consultation days can be directly arranged by the office of the respective ombudsman; the consultation days as such are announced by local media and on the home page of the board.

Obviously it is easier for people living or working in Vienna to contact the members of the board personally and to arrange a personal meeting with an ombudsman because due to the number of inhabitants of the city and with respect to the fact that the ombudsmen’s headquarters are located in Vienna it is in this town where most of the consultation days are held.. In 2002 there were 263 consultation days, 129 of which were held in the federal states. In 2001 101 consultation days out of 229 were in the federal states. However there were 1.260 consultation days which were organized outside Vienna in the past 11 years offering 17.000 inhabitants of rural areas the opportunity for personal talks about their case and legal matters. When going back to the very beginning of the ombudsman institution in 1977 one will find that there were about 35.000 persons who had met members of the ombudsman board in capitals of the federal states, in provincial towns and bigger villages in the course of consultation days; one could say that is the capacity of a medium sized football stadium of a well known football team.

Considering these figures a single ombudsman, who has not even got an official car at his disposal, would have been obliged to travel through the federal states for a total time of five years in the course of the past 11 years in order to hold the same number of 1.290 consultation days that all together had been held by the three board members during that period. Since actually there is a board of ombudsmen it is quite easier to manage consultation days and to provide a high frequency of personal contacts respectively meetings with an ombudsman. After all there are about 40 consultation days held by each of the members of the ombudsman board in the federal states; so each ombudsman is “on the road” for about two months per year. On first sight that does not seem to be dramatic, but one has to take into consideration that consultation days are often linked to special events and meetings with representatives of authorities or mass media and of course a lot of coordination work with regard to the ombudsman’s agenda concerning his activities in Vienna has to be done.

In the course of consultation days one makes a great variety of experiences, since people often tell the ombudsman about their most private problems because they know very well that the ombudsman will keep all information strictly confidential so that nobody must be afraid of negative consequences; against this background the communication with an ombudsman is quite different from that with aombudsman boardy. A personal talk makes it easier to express one’s feelings, one’s attitude and the whole way of thinking about problems. A letter sent to the ombudsman by a person who hopes that his/her problem will be well understood and handled in the right way generally cannot meet the standards of a personal talk. Even if it is often the little problems and shortcoming of everyday life that are articulated at consultation days it is especially these problems that often make the ombudsman realize what kind of needs and sorrows people do actually have. This confrontation with “real life” makes clear that frequently people are not interested in things like formal legality of public administration or the fact of correctness as to the detailed application of legal provisions in force; they simply want fair decisions of public authorities. They expect that their case is decided in a fair way and that justice is done.

With regard to these expectations of citizens the ombudsman has got the obligation to call public authorities not only to do what they are obliged to do under existing legal provisions but also to consider all options in order to reach a fair and widely acceptable solution in the specific case. Sometimes it takes a lot of time and it may imply quite an effort for the ombudsman himself to get a personal impression of a complainant and his case, and on first sight it might seem to be easier and more efficient to have this work done by members of the staff of the ombudsman board; but actually the personal contact with citizens makes the ombudsman realize that for an ombudsman institution there are special standards for assessing a legal case since the individual and his/her specific problems have to be the most important factor whereas legal considerations as such should not prevail.

The constitution does not oblige public authorities to apply legal provisions restrictively by taking merely the wording of relevant provisions into consideration without considering the special circumstances of an individual case. Such an – widely accepted – approach based on the rule of law as set forth in article 18 of the Austrian Federal Constitutional Act (B-VG) is wrong. It is not only legality which has to be a constitutional standard for the application of law by public authorities but also equity . Moreover the rule of law involves the obligation to consider aspects of equity whenever the law provides some margin of discretion. Especially in the field of social law there are unwritten obligations of providing assistance for citizens asserting legal claims; in this context one has to take recourse to the “obligation of social application of the law” as developed by the courts .

One also has to accept that both in the course of review proceedings of the ombudsman board and on consultation days the ombudsman is often confronted with actual limits of the law. We also have to realize that the construction and institution of legal relationships and legal claims have led to a certain decay of morality and fairness with regard to human relations both in private and public life. In this context public authorities are also partly victims, especially when people try to settle their private conflicts by legal means and remedies and attempt to abuse the legal system for private revenge. If you get to know to all these tragic stories of conflicts between neighbours involving complex legal proceedings that often take several years to come to a final decision you will realize the importance of trying to bring all parties involved together again in order to reach a friendly settlement of a dispute. That however requires the personal engagement of a politically responsible person, who – just like the ombudsman – must also have the function of a mediator.

The position and approach of the ombudsman does at any rate require a clear and consistent attitude towards the legal, political and democratic function of the ombudsman board as well as the consciousness as to the fact that the board’s mission is of high complexity since it implies discretion and options with regard to various aspects. The obligation to call public authorities to grant redress for damages and grievances even beyond the traditional legal protection system and to propose both the authorities and the legislative bodies to implement necessary improvements must be regarded as a mission which can only be carried out by an institution that is capable of demonstrating authority, competence and integrity and whose legitimacy is directly deduced from the citizens and is based on the constitution.