PART I
abuses committed by state actors. There is also an efficiency argument in favor of
extending the scope of action of the minority ombudsman to private actors. Investigation and collection of evidence for discrimination and violations of minority rights
cases requires special skills and know-how. However this know-how is similar for
all cases of discrimination, regardless of whether it has been committed by local
government or a privately-owned company. Centralizing this expertise in dealing at
a non-judicial level with discrimination cases will advance more efficient handling
of these problems. The minority ombudsman seems to be one type of ombudsman
institution for which the extension of the scope of action beyond public administration is justified by the nature of the specialization: the protection of rights of national, ethnic or racial minorities and the fight against discrimination.
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The ombudsman’s competence should be limited temporis.
In order to ensure consistency and avoid an extensive workload it would be necessary to limit the ombudsperson’s competence temporis. It will be difficult to
argue that the specialized minority ombudsperson should examine violations that
occurred prior to the establishment of the institution. Similarly, the time limit for
submitting complaints should be defined. In any event, it should not be longer than
two years after the event that is the subject of the complaint.
Victims as well as organizations representing classes of victims should have
the right to complain to the specialized minority ombudsman.
Any natural or legal person should be able to complain to the specialized minority
ombudsman. However experience shows that often there is an absence of complaints from the most vulnerable sectors of the population. This may be due to a
variety of reasons ranging from a lack of understanding of the system, or a lack
of confidence in the specialized minority ombudsman’s ability to find effective solutions to their concerns, through to reasons connected to the nature of minority rights violations. Understanding the nature of this problem in each country is
crucial. The specialized minority ombudsman should therefore place considerable
emphasis on building the confidence of both the public and the authorities that it is
an independent, competent and impartial ‘watchdog’ that deals with implementation of non-discrimination and the protection of minority rights.
Violations of minority rights are often due to structural problems. Due to its extensive powers, the specialized minority ombudsman will promote a structural
approach. Class action is considered a legal instrument capable of making up for
some of the structural problems in society. Class action makes court procedures
less expensive, it provides for moral support of the complainant through creating
a class, and it sheds light on the size and importance of the issues complained
about. However, the introduction of class action requires major changes in legal
systems and its introduction has been treated very cautiously in Europe. Meanwhile the minority ombudsman institution, especially if provided with the tools to
give legal support or assistance in court cases, or to eventually bring cases before
court, takes on some of the major advantages of class action: it makes up for the
financial difficulties some litigants may have in bringing a claim; provides supportive solidarity and encourages complainants to come forward with their complaint;
remedies to some extent the inequality of bargaining power between the complainant and the respondent; and provides collective remedies.
Civil society organizations, including minority organizations, should be entitled to
submit complaints on behalf of individuals that have alleged maladministration and
should be able to draw attention to more general concerns. In any event, the specialized minority ombudsperson should have the power to examine the case ex
officio. In most cases an ex officio investigation will occur in situations of general