It must also be noted, however, that the possibility for the specialized minority
ombudsperson institution to take cases to court on behalf of victims of discrimination and/or violation of minority rights may diminish its role as an impartial intermediary.
According to principle 3(e) of the ECRI Recommendation it is necessary for the
ombudsman “subject to the legal framework of the country concerned, to have recourse to the courts or other judicial authorities as appropriate if and when necessary”. However, the July 2003 Report of the Parliamentary Assembly of the Council of Europe Committee on Legal Affairs regarding the institution of ombudsman
states “… [o]mbudsmen’s access to administrative and constitutional courts should
be limited to applications for interpretative judgments on legal questions relating
to the mandate or particular investigations, unless representing an individual complainant with no direct access to such courts. It is preferable, however, that individuals with otherwise sufficient locus standi should be able to apply directly to
such courts.”
PART I
The minority ombudsman may have the power to challenge laws or policies in the courts (power to bring cases before constitutional courts, or ‘regular’
courts in those jurisdictions with no special constitutional courts).
In Albania, Austria, Hungary, Moldova, Poland, Portugal, Russia and Ukraine, for example, the Ombudsperson may apply
to the Constitutional Court for declarations of illegality or unconstitutionality, interpretations or invalidation. In Slovenia the
Ombudsperson can also address the Constitutional Court with
proposals for the assessment of the constitutionality of regulations without prior establishment of his/her legal interest by the
Constitutional Court.
The ombudsman should not have the power to interfere in judicial proceedings, except to review or monitor court proceedings for procedures contrary to
international human rights standards.
The ombudsman may have the power to review and monitor court decisions and
processes, but if so, this should be limited to an investigation of complaints concerning excessive delays in proceedings (criminal, civil or administrative) contrary
to international human rights standards (for example, Article 6 of the European
Convention of Human Rights). The Report of the Parliamentary Assembly of the
Council of Europe Committee on Legal Affairs states that “[o]mbudsmen should
have at most strictly limited powers of supervision over the courts. If circumstances
require any such role, it should be confined to ensuring the procedural efficiency
and administrative propriety of the judicial system; in consequence, the ability to
represent individuals (unless there is no individual right of access to a particular
court), initiate or intervene in proceedings, or reopen cases should be excluded”.
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