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Central Europe Review: How does your sphere of activities differ from that of your counterparts in the West?
Katalin Gönczöl: I have more or less answered that question already, but I would point out that I certainly initiate more ex-officio investigations than is customary in the West, for the simple reason that the size of the vulnerable group unable even to lodge complaints in the first place is considerably larger here than it is elsewhere.
The comprehensive investigations, referred to in the trade as project-like investigations, I have carried out thus far have included—apart from pupils' rights—conditions in homes for the disabled, homes for the elderly, shelters for the homeless and refugee camps, the situation faced by foreigners arriving at Ferihegy Airport and the extent to which police rights have been respected, to name but a few.
As far as the latter—police rights—is concerned, you might wonder why I chose to react on this particular subject explicitly against the backdrop of the steady increase in the number of complaints against the police force from year to year. These complaints are not always justified, yet it is an incontrovertible fact that they are growing in number. The investigation was held in 1997 to 1998, if memory serves me well, and my suspicions to the effect that police officers, whose work involves daily dealings with the public at large, operate within a strictly regulated hierarchy were immediately borne out.
If the civil rights of the individual officer are not rigorously respected on an ongoing basis, if he feels he is but a pawn at the mercy of his superiors and of the regulations, if he is deprived of both leeway and professional prestige then there can be no doubt that he is placed under severe stress and that he takes out the wrongs inflicted on him on the people with whom he comes into contact and who are subject to his authority.
Police officers are the public officials who have the most extensive contacts with members of the general public, and the investigation demonstrated that their position leaves a lot to be desired as far as respect for their civil and human rights is concerned. In fact, I would go so far as to say that, even years after the completion of the investigation and years after the competent authorities endorsed the lion's share of the recommendations contained therein, I still have the impression that the ordinary police officer is in a vulnerable position.
A second difference is that I make greater use of my rights of initiative concerning modifying legislation than my Western colleagues. The explanation for this lies in the fact that many rules dating back to the period before the collapse of Communism are still in force, which means that it is inevitable that we will stumble upon laws from the 1970s in the course of our enquiries, which are in urgent need of change as a result of the new mindset according to which the citizen and his rights must be the focal point of concern.
The law factory
Above and beyond that the Parliament has been forced to adopt far greater quantities of legislation to the extent that I sometimes refer to it in jest as the law factory and the sheer pace at which it is compelled to do its work means that it does not always have the time at its disposal to sift through every minute detail to ensure that all our values are fully respected—and this is particularly true of every implication for human rights, which are sometimes quite nuanced.
Of course, it is equally true that many bills presented to Parliament are the culmination of a lengthy process of painstaking work. One example of the latter is the new law on minor offences, which entered into force this year. The legislator is not capable of thinking in such a colourful and richly diverse way as everyday life itself anyway. This is why anomalies can creep into even the most meticulously prepared piece of legislation and why I am called upon to make recommendations to remedy them a couple of months after the relevant law's entry into force.
It seems as if the proposals I have put forward to amend the law are going to be accepted. In the course of the last five and a half years, I have made 786 proposals pertaining to various types of legal provision. 65 per cent of my proposals were accepted, 28 per cent were rejected and the fate of seven per cent is still unknown, as the deadline for response has not yet expired.
In total, I have suggested modifying or repealing 250 laws proper and of these proposals 45.2 per cent have already entered into force, 16 per cent are in the process of being dealt with as we have already delivered our opinion on the bills containing the requisite amendments and in 18.5 per cent the issue concerned has not been tackled by amending the legal provision we drew attention to, but through codification elsewhere.
If the proposals represent 100 per cent, then one in five has not been responded to whilst the remainder has been accepted. In other words, 35 per cent of proposals relating to primary legislation have not been reacted upon.
The comprehensive or project-like investigations were an innovation. We were inundated with complaints about problems in a particular type of institution and so we drew up an investigation plan before examining the human rights situation there from A to Z.
We went about this by selecting five, eight, ten or even twenty of the kind of institution in question, looking at the conditions prevailing there in an objective manner, consulting representatives of the vulnerable group in question and sounding out their opinions generally via the medium of a thematic questionnaire form. We also listened to the managers, its specialist staff and, in certain cases, those responsible for maintaining it.
We drafted a separate report for every institution visited before pooling the data compiled and drawing general conclusions. In this way two and in individual cases three reports were produced. One was addressed to the institution itself or to those responsible for maintaining it—in some cases ministers—setting out what kind of problems had to be resolved.
If, as was frequently the case, the problems encountered at the institutions could only be eliminated by means of amending the law, we put forward proposals to that effect. We subsequently distributed copies of the material compiled in the course of the investigation not only to the authorities concerned, but also to the people affected, such as the residents of the homes and to educational establishments, thereby attempting to disseminate the results widely amongst professionals throughout the sphere.
In 2000, I have conducted fewer such project-like investigations for the simple reason that the lack of a general deputy has meant we have not been able to get through the workload as originally planned.
There is one other aspect I attach a great deal of importance to. Since the Ombudsman's Office was created, we have dealt with between 43 and 44,000 complaints, which means that the urgency procedure according to which certain complaints are given priority, accelerated treatment, is assuming ever greater significance. If a barrage of complaints reaches the Parliamentary Commissioner's desk she has to take great care in determining which need to be removed from the huge pile and responded to immediately. I have already outlined the criteria applying to ex-officio initiatives.
An end to abuse
Could you give a few more details on the instruments at your disposal for putting a halt to abuses?
The primary instrument is the recommendation, which must be responded to within 30 days. Then there is the so-called initiative, according to which I can call for disciplinary proceedings to be launched against the offending individual if serious negligence on his part has come to light.
I am also entitled to call for a Public Prosecutor's protest and to propose amending legal provisions, whereby I always turn to the minister in question even if I am suggesting changes to a fully-fledged law. As a last resort, we can turn to the Parliament itself.
Often, however, I send the proposals to the Minister and the Parliamentary Committee simultaneously. We enjoy very close relations with the Human Rights Committee, the Social Affairs and Health Committee, but might also contact the Constitutional Affairs Committee, the Youth, Employment or Economic Committees—depending on the nature of the matter in hand.
Last year, I was summoned by eight committees to give an account of my activities and experiences in the course of the preceding year and of lessons learned, which might be relevant to the work of the committee pertaining to its specialist field before the annual report was examined in plenary. In the annual report itself I have to list the results and conclusions of the previous year's committee hearings, which have a bearing on the following year's work.
Debate within the committee is not confined to the annual session on the given specialist issue. This means that I have to prepare for each committee hearing well in advance and go into every theme in depth. I quip that last year I had to sit finals in eight subjects corresponding to the eight public statements that I had to present in front of the committees. Moreover, each presentation had to be appropriate to the sphere of activity of the committee in question.
I am proud to be able to report that the time and effort I put into preparing the statements was not wasted, as many of the MPs forgot what political party they belonged to and were able to engage in a genuine debate on real problems rather than trotting out the party line. I occasionally come across cases where I instinctively feel, on the basis of the investigation report, that the committee ought to be informed of the contents immediately.
There have been committee meetings where the chairman has decided the matter had to be debated forthwith or within a short space of time and therefore invited representatives of the responsible ministry. This happened with the report on the state of health of the homeless, for example. These issues can become the object of lively and often heated debate, even before the annual report is written, although such a decision does not lie in my hands but with the committee chairman.
Each committee is chaired by a representative of a political party, and his two vice-chairmen are drawn from the ranks of other parties with the result that committee membership is politically heterogeneous. An item can only be placed on the agenda on the basis of a unanimous decision to that effect. As a general rule, its contents are not determined purely on a political basis. Nor are ad hoc hearings restricted to issues linked to legal initiatives, but the report is considered important enough to be worth debating.
For example, our attention was brought to a quite special case in the area of housing, which I regarded as so serious and typical as well as being a threat to the individual's ability to keep a roof over his head in the future that I passed on its details to the Human Rights Committee where it was subsequently debated. I am glad that the committee was made aware of the risks of people losing their homes and of current local authority practice.
Success rate
How effective have these instruments proven to be?
Taking into account my six years of experience, I can say that, by the end of the year, 80 per cent of my recommendations have been taken on board; the fate of approximately 10 to 16 per cent will not have been finally sealed by the end of the year, although the latter figure does not, as a general rule, comprise proposals on legal provisions, leaving some five to eight per cent where further discussion is required.
The reason I am most fond of the recommendation amongst all the instruments available to me as Ombudsman is that, since it is a non-binding legal decision, it can be thrown out on the basis of dispassionate professional arguments. There is an opportunity to hold a prolonged and thorough debate on how best to solve the problem in the interests of safeguarding civil rights and protecting citizens.
It might very well be the case that the addressee of the recommendations rejects them initially but is gradually persuaded to agree to a compromise over a shorter or longer timeframe.
The compromise will be extremely valuable, acting as a sort of gentleman's agreement I can use to make further enquiries. That we promised each other that things would be different in future, but alas and alack I conducted a follow-up
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