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Opinion no.
193/2002_bih
OPINION
on
THE STATUS
AND RANK OF THE OMBUDSMAN INSTITUTION
IN THE
FEDERATION OF
Based on comments by
Mrs Maria de Jesus
SERRA LOPES
(
and
Mr Hans-Heinrich VOGEL
(Substitute
Introduction:
On
- Whether the rank and status of the Ombudsman of
the Federation of
- Whether the Constitution of the Federation of
Bosnia and Herzegovina and the Memorandum of Understanding provide a
sufficient legal basis to equate salaries of the Ombudsman of the
Federation of Bosnia and Herzegovina with those of ordinary court judges
The
Commission set up a working group composed of Ms Maria de Jesus Serra Lopes and
Mr Hans-Heinrich Vogel.
Moreover,
the Commission undertook a comparative study on the specific issue of the rank
and status of Ombudsman institutions in Council of
-
-
What is the rank of the ombudsman in your
system? For example, does the ombudsman have a rank equivalent to a president
or judge of the supreme or constitutional court, a member of parliament or a
senior civil servant? Is this reflected in the level at which the ombudsman is
remunerated?
-
-
Are there deputy ombudsmen in your system?
If yes, what is the rank of a deputy ombudsman?
Is this reflected in the level at which the deputy ombudsman is
remunerated?
The
Commission is very grateful to all those institutions which provided responses
to these two questions.
The
Commission’s rapporteurs provided written comments on this matter. At its 50
th Plenary Session, held in Venice on 8-9 March 2002, the Commission
endorsed the comments made by the rapporteurs and asked the Secretariat to
prepare, in co-operation with the Rapporteurs, a consolidated opinion on the
basis of these comments and of the responses received by the various Ombudsman
institutions.
A. Background
1. The institution
of the Ombudsman of the Federation of Bosnia and Herzegovina was created under
the Washington Agreements of 18 March 1994 and by the Constitution of the
Federation of Bosnia and Herzegovina, which was adopted by the Constitutional
Assembly of the Federation of Bosnia and Herzegovina at the session held on 24
June 1994. For the period 1995-2001, the
Ombudsman of the Federation of Bosnia and Herzegovina was fully funded by the
Organization for Security and Co-operation in Europe (OSCE). The Law on the
Ombudsman of the Federation of Bosnia and Herzegovina, which entered into force
on 7 September 2000, established that the Federation of Bosnia and Herzegovina
would take over full responsibility for the financial and operational
functioning of the Ombudsman on 30 September 2001. In order to facilitate this transfer of
responsibility, a Memorandum of Understanding was concluded on 9 October 2001
between the OSCE Mission to Bosnia and Herzegovina and the Government of the
Federation of Bosnia and Herzegovina.
2.
The Memorandum sets out the obligations of the Federation of Bosnia and
Herzegovina and includes a provision on the salaries of the Ombudsman, their
Deputies and Assistants, stating that they should be at the level of the salaries
of judges of ordinary courts.
3.
However, some representatives in the Parliament of the Federation of
Bosnia and Herzegovina consider that the status of the Ombudsman should rather
be equated with civil servants and wish to determine the level of Ombudsman
salaries accordingly.
B. A comparative perspective on the status
and rank of Ombudsmen institutions in Council of Europe member States: results
of the study
4. It appeared to be of interest in the context
of the present opinion to examine how different countries or regional entities
establish the status, rank and salary levels of their Ombudsman and to
ascertain whether there was a preference at a European level for any particular
approach.
Accordingly, the Ombudsmen of the member States
of the Council of Europe were asked to indicate what their rank is and whether
this is equivalent to other categories of senior public officials, such as
judges, members of parliament or civil servants. They were also asked whether
their rank is reflected in their level of remuneration. The same questions were
asked in respect of Deputy Ombudsmen, where this position exists.
i) Ombudsmen:
5. The responses received[1][1] showed that
the status, rank and salary levels of the Ombudsman are established in a
variety of ways.
6. Some of the countries which responded
establish the status, rank and subsequently remuneration of their Ombudsman
with reference to the judiciary. This is the case in Malta, where the
Ombudsman is remunerated at the level of a judge of the Superior Courts; in Norway,
where the Parliamentary Ombudsman is remunerated 20% more than a Supreme Court
judge; and in Sweden, where the rank of the Parliamentary Ombudsman is
the same as a Supreme Court judge or a judge of the Supreme Administrative
Court and the remuneration is 20% higher.
7. In some countries, the Ombudsman’s status, rank,
and/or salary is established with reference to a number of different
institutions or functions on a similar level. This is the situation in Croatia,
where the National Ombudsman has a rank and remuneration equivalent to that of
the president of a working body of the Parliament, a judge of the
Constitutional Court, a minister and the head of the State Audit Office; the Czech
Republic, where the Public Defender of Rights is entitled to a salary
equivalent to that of the President of the Supreme Control Office; Estonia,
where the Legal Chancellor, who performs the functions of Ombudsman, has the
highest rank, equivalent to the Parliament, the President, the Government, the
Courts and the State Audit Office and is remunerated at the level of the
average wage multiplied by a coefficient of 5.5; the Netherlands, where
the National Ombudsman is remunerated at a level equivalent to the
Vice-President of the Council of State and the President of the Chamber of
Audit, these three institutions together being called the High Councils of
State; and the former Yugoslav Republic of Macedonia, where the
Ombudsman’s rank is at the same level of a minister, the President of the
Supreme Court, the Public Prosecutor, a judge of the Constitutional Court and
the Governor of the National Bank.
8. In France, the Ombudsman’s rank is
ascertained according to the order of protocol for official ceremonies, where
he is placed after members of Parliament and the President of the Court of
Cassation. The French Ombudsman receives a salary which is more or less the
same as a member of Parliament. Similarly, in Spain, it is the order of
protocol which establishes the rank of the Ombudsman (Defensor del Pueblo)
close to that of Secretaries of State and the Fiscal General del Estado.
9. One of the countries which responded, Austria,
provides the Ombudsman Board with an extraordinary rank, equivalent only to
members of Parliament. The three members of the Ombudsman Board are remunerated
at a level comparable with Secretaries of State, which is lower than for
ministers or presidents of the Supreme Court.
10. A number of countries do not formally provide
for the rank of the Ombudsman. In Belgium, the rank of the Federal Ombudsmen
with respect to protocol has not yet been determined, some arguing that it
should be given a special position to reflect its independence while others
consider that it is a body of Parliament and needs no special position. The
financial status of the Federal Ombudsmen is identical to that of the
counsellors of the Court of Audit and judges of the Council of State. The
Parliamentary Ombudsman in Denmark has no formal ranking in the public
administration system, although several factors indicate a very high ranking,
such as the fact of being appointed by Parliament. The Danish Parliamentary
Ombudsman’s remuneration is the same as the permanent secretary at the Ministry
of Justice. In Greece, the Ombudsman also has no formal ranking but
enjoys the rank of the head of an independent administrative authority and the
privileges of higher level state officials and is remunerated the same as the
Chairman of the Legal Council of State and the Chairman of the Supreme Court.
In Lithuania, the Seimas Ombudsman is paid a salary in the amount of
five average wages of the national economy. In the United Kingdom, the
Ombudsman is regarded as being equivalent to the civil service head of a major
government department and is remunerated at the level of a judge of the High
Court.
11. At a sub-national level, there are also
variations. In Spain, the remuneration of the Ombudsman in Catalonia
(Síndic de Greuges) is equivalent to that of a Minister in the Catalan regional
Government. In Germany, the regional Ombudsmen in Mecklenburg-Pommerania,
Rhineland-Palatine, Schleswig-Holstein and Thuringia are
remunerated at the level of a senior civil servant or judge of the Supreme
Court. In the Netherlands the Ombudsman in Amsterdam has the rank and
remuneration of an alderman, who is a member of the board of governors of the
city. In the Russian Federation, the Ombudsman in the Saratov Region has
a rank and remuneration which corresponds to senior public officials, which is
equivalent to the Vice-Governor of the region. In Switzerland, the Ombudsman of
the City of Berne has a rank and is remunerated at the level of a senior
civil servant, although there are some civil servants (the heads of certain
important offices) who have a higher rank. The Ombudsman in the Canton of
Basel-Stadt has the rank of the president of the superior court and is
remunerated accordingly.
ii) Deputy
Ombudsmen:
12. There were a number of countries or regional
entities which indicated that they did not have Deputy Ombudsmen[2][2].
In Greece, deputy ombudsmen exist but receive no special privileges,
whilst in the United Kingdom, they are an internal appointment made by
the Ombudsman within his office.
13. A particular situation exists in Sweden,
where deputy ombudsmen are elected by Parliament but only work on an occasional
basis, such as when there is a vacancy. They do not have a specific rank, but
as only persons who have earlier served as Parliamentary Ombudsman may be
elected deputy ombudsman, it could be argued that they have the same rank.
14. In Estonia, one of two Deputy Legal
Chancellor-Advisers exercises the powers of deputy ombudsman and has a rank
comparable with that of the Legal Chancellor and is remunerated in accordance
with laws governing the salaries of state and public servants.
15. In the other countries where the institution
of Deputy Ombudsman exists, the Deputy Ombudsman’s rank, status and
remuneration follows the system established for the Ombudsman. Thus, in Catalonia,
the Deputy Ombudsman’s remuneration is equivalent to a Director General of the
Catalan Government; in Croatia, the Deputy Ombudsman’s rank and
remuneration level is placed after the deputy of the Secretary of the House of
Representatives of the Parliament, a district-prefect and the mayor of Zagreb,
the deputy Secretary of the Government and the head of the State Treasury; in
the Czech Republic, the Deputy Defender is entitled to a salary equal to
that of the Vice-President of the Supreme Control Office; in Germany, deputy
ombudsmen in Mecklenburg-Pommerania, Rhineland-Palatine, Schleswig-Holstein
and Thuringia are remunerated 25% less than the Ombudsmen; in the Netherlands,
where the rank and remuneration of the deputy ombudsman is comparable to that
of a member of one of the High Councils of State; in Spain, where the
rank and remuneration of the deputy ombudsmen comes immediately after that of
the Ombudsman; and in the former Yugoslav Republic of Macedonia, where
the deputy ombudsmen have a rank and are remunerated at the level of deputy
ministers, judges of the Supreme Court, Deputies of the Public Prosecutor and
Deputies of the Governor of the National Bank.
iii) Conclusion:
16. The responses demonstrate that there are a
variety of ways of establishing the status of the Ombudsman. Different
countries or regional entities equate[3][3] the
Ombudsman’s status with that of civil servants, judges, ministers or members of
parliament, for example.
17. However, irrespective of the status which the
Ombudsman is assimilated to, in the countries and regional entities which
responded, the Ombudsman institutions are given an appropriately high rank,
which is reflected in salary levels. For instance, where the Ombudsman is
assimilated to the judiciary, the rank and/or salary level is fixed with
reference to the higher courts. Similarly, where the Ombudsman is assimilated
to civil servants, he or she has the rank and/or salary of a senior civil
servant, such as a permanent secretary or the head of an independent
administrative authority or institution.
18. The rank and salary level are of crucial
importance in order to guarantee the Ombudsman’s independence and to enable him
or her to properly carry out the functions with which he or she has been
entrusted. In particular, an appropriate rank and salary level are vital if the
Ombudsman is to be in a position to investigate complaints by individuals against
the public administration, especially if the Ombudsman’s status is equated with
that of a civil servant. But it is also important that the Ombudsman should be
perceived by the public in general as a person who is independent and of high
standing, both in terms of personal integrity and ability to carry out the
functions of Ombudsman. An appropriate rank, which is reflected in the level of
remuneration, will help to secure this.
C. Situation in the Federation of Bosnia
and Herzegovina
19. As regards the constitutional and/or legal
bases for equating the Ombudsmen of the Federation of Bosnia and Herzegovina to
judges of the Supreme Court, the Venice Commission has examined a) the
Constitution of the Federation of Bosnia and Herzegovina; b) the Law on the
Ombudsmen of the Federation of Bosnia and Herzegovina; and c) the Memorandum of
Understanding which was concluded between OSCE and the Federation of Bosnia and
Herzegovina (see paragraph 1 above).
a) Constitution
of the Federation of Bosnia and Herzegovina
20. Article 1(3) of Chapter II.B of the
Constitution of the Federation of Bosnia and Herzegovina in English provides as
follows:
“The terms of service
of the Ombudsmen and their Deputies shall be the same respectively as those of
the President and of the judges of the Supreme Court.”
21. Although this provision does not specifically
refer to salaries, it uses the phrase “terms of service” which undoubtedly
means the conditions of employment, including remuneration.
22. There is thus a clear constitutional basis
for equating the status, rank and salary levels of the Ombudsmen of the
Federation of Bosnia and Herzegovina with independent judges of ordinary
courts.
23. It is true that the Bosnian
and Croatian versions of the Constitution of the Federation of Bosnia and
Herzegovina uses the phrase “trajanje mandata”, which would translate into
English as “terms of office”, a phrase which would not include a reference to
the Ombudsman’s status, rank or salary levels. However, the Commission
considers that there is good reason to assert that it is the English meaning
which was intended and that the Bosnian version merely reflects an error of
translation. It notes that the proposed Constitution of the Federation of
Bosnia and Herzegovina, which is contained in the Washington Agreements, was
drafted in English and uses the phrase “terms of service”. The Bosnian version
of the Constitution of the Federation of Bosnia and Herzegovina which was
discussed and subsequently adopted by the Constitutional Assembly was
translated from English. It was at the translation stage that “terms of
service” became “terms of office”. There is no evidence that this issue was
discussed by the Constitutional Assembly and that it represents a deliberate
change.
24. Moreover, “terms of service”, as used in the
English version, is consistent with the current legal framework in the Federation
of Bosnia and Herzegovina, in particular with the Law on Ombudsmen of the
Federation of Bosnia and Herzegovina which provides that the Ombudsmen will be
appointed for a four year term. Indeed, it may be gathered from the fact that
the House of Representatives of the Federation of Bosnia and Herzegovina
endorsed and adopted the Law on Ombudsmen of the Federation of Bosnia and
Herzegovina, prepared by the international community, in particular the Venice
Commission, that the authorities of the Federation of Bosnia and Herzegovina
were following international practice not to have Ombudsmen appointed for
life.
b) Law
on the Ombudsmen of the Federation of Bosnia and Herzegovina
25. The Commission observes that the Law on the
Ombudsmen of the Federation of Bosnia and Herzegovina does not make specific
reference to the issue of the Ombudsmen’s rank, status or remuneration.
c) Memorandum
of Understanding
26. Article 4(2) of the Memorandum of
Understanding which was concluded between OSCE and the Federation of Bosnia and
Herzegovina states:
“Ombudsmen, Deputies and
Assistants will receive salaries and compensation in accordance with the salary
structure introduced for the judiciary in Federation of Bosnia and Herzegovina.
The Ombudsmen shall each receive a salary equal to that of the President of the
Supreme Court. Deputy Ombudsmen shall each receive a salary equal to that of a
judge of the Supreme Court. Assistant Ombudsmen shall be granted a salary equal
to that of a judge at a District Court.”
27. Furthermore, this Agreement was duly signed,
and thus concluded, by competent representatives for the OSCE Mission to Bosnia
and Herzegovina on the one hand and by the Government of the Federation of
Bosnia and Herzegovina on behalf of the Federation of Bosnia and Herzegovina,
on the other. Accordingly, the Federation of Bosnia and Herzegovina in bound by
this Agreement.
28. In conclusion, in the light of the analysis
of the Constitution of the Federation of Bosnia and Herzegovina and relevant
legislation, it is clear that, in the Federation of Bosnia and Herzegovina, a
choice has been made in favour of equating the status of the Ombudsmen with
that of ordinary judges, the rank with that of the President of the Supreme
Court and the salary accordingly.
29. This choice is fully in conformity with European
standards and, as shown by the responses received from Ombudsmen in different
countries and regional entities, is the position in a number of other European
countries. Indeed, it is a choice which unequivocally guarantees the
independence of the Ombudsmen.
30. The Commission is therefore of the opinion
that in the current legal context of Bosnia and Herzegovina, the Ombudsmen of
the Federation of Bosnia and Herzegovina should be equated with judges of
ordinary courts.
31. In particular, the
Commission finds that the Constitution of the Federation of Bosnia and
Herzegovina and the Memorandum of Understanding provide a sufficient legal
basis for equating the salaries of the Ombudsmen of the Federation of Bosnia
and Herzegovina with those of ordinary judges.
Summary and conclusions :
- The situation in a number of countries which are member states of the
Council of Europe shows that there are a variety of ways of establishing
the status, rank and/or salary levels of the Ombudsman but that,
irrespective of the status (be it judge or civil servant) which the
Ombudsman is equated with, Ombudsman institutions are given an
appropriately high rank, which is reflected in salary levels.
- The Commission notes that in the Federation of Bosnia and Herzegovina
a choice has been made in favour of establishing the status, rank and
salary level of the Ombudsmen with reference to judges of the Supreme
Court.
- The Commission considers that this choice is fully in conformity with
European standards.
- Furthermore, the Commission is of the opinion that the Constitution of
the Federation of Bosnia and Herzegovina and the Memorandum of
Understanding provide a sufficient legal basis to equate salaries of the
Ombudsman of the Federation of Bosnia and Herzegovina with those of
ordinary court judges.