Contenu du sommaire : Revue française d'administration publique, N°64, 1992. Médiateurs et ombudsmans.

Why is a Legislative Ombudsman Desirable ? A unique System for protecting citizens against maladministration, the legislative ombudsman presents combined features which make it superior to any other method for the handling of complaints and appeals against bureaucratic behaviour. The most important is its independence from the executive branch of government. Because it meets the citizen's need for repairing injustice and enhances the accountability of the executive to the legislature, it is not surprising that this institution is expanding at ail levels of government throughout democratic world.

The Swedish Parliamentary Ombudsman 1970-1990 : A Persistent Particularity Over the past twenty years, the Ombudsman's role has been very much debated in Sweden. Without questioning the underlying long-accepted organizational and operating principles of this institution, two areas are being reconsidered : the type of control exercised by the Ombudsman and its operating conditions. More specifically, what sort of activities should be privileged : investigating complaints or carrying out inspections ? The Parliament has debated about two points regarding the conditions for exercising control. First, the collegial structure of the institution and, secondly, the question of referral to criminal courts for administration.

The Role of the Ombudsman in Finland. The Parliamentary Ombudsman established in 1919, was influenced by the Swedish model. It is in charge of legal control, which mainly consists in investigating complaints made by citizens, inquiries on his own initiative, and inspections in closed institutions like prisons, psychiatric hospitals, police and armed forces units. In case of illegal action, the strongest weapon of the Ombudsman is prosecution, but he most commonly provides for critical comments. He also plays and active role in human rights protection and in legislative reform.

The Parliamentary Commissioner for administration in the UK. Since the Parliamentary Commissioner was established in 1967 as an expression of Parliamentary control over Government, its jurisdiction has considerably expanded. It has a dual role : first he aims to redress the grievances due to misadministration ; secondly, he identifies causes of injustice and recomands solutions, which are in most of the cases, accepted and implemented. Considering the development of executive agencies, the role of the Parliamentary Commissioner becomes still more significant in helping to ensure that appropriate standards of public probity and fairness will be maintained.

Twenty Years of French Mediation. The Mediator of the French Republic, created in 1973, is based upon various models of the ombudsman principle, without being a mere transposition. This particularity of the French version has had an effect on its nomination procedures, as well as on its modes of referral and its functions. After twenty years, this institution, which backed nationwide by 111 territorial delegates, has succeeded in asserting itself within administration. Moreover, through its interventions in favour of equitable decisions and the reforms put forward, the Mediator has the means to have an important effect on modernizing the administration.

The Case of Quebec : The Ombudsman and Change. The Citizens' Protector came into existence in a context marked by an inadequate control over administrative and governmental activities. He depends on the legislature. He is responsible for combatting injustice, errors and the arbitrary in administrative and governmental action, and is an accessory contributor to personal rights and public liberties. The Citizens' Protector also acts to promote alternative procedures of conflict resolution and contributes to the development of complaint processing bodies which act as first-level ombudsmen.

Assessing the Ombudsman's Role. The independence of the Ombudsman from other State organs, and extensive powers to investigate complaints, explain the extension of the institution in the recent years. However, the lack of common standards makes comparisons in the citizens' use of the ombudsman very difficult. Many factors (degree of publicity, informality of access procedures, public's perception of the value the institution to redress grievances...) influence the variations in the number of complaints. Two main issues arise. Firstly it can be questioned whether the System is used by those who need the greatest help. Secondly the value of the Ombudsman to initiate legal and administrative reform should not be overestimated.

The Italian Experiment in Difensori Civici. The institution of difensore civico appeared in a political and cultural context during the implementation of regional reform. At first grafted onto the administrative organization of three regions, it was later extended to nearly the entire country. Its jurisdiction, limited to regional administration, exceeded in practice the strict boundaries it had been granted. Paradoxically, however, and in a sudden and inexplicable reversal, the legislator recently halted its development and reduced its potential, rendering the citizen's finding his way through the legal labyrinth even more daunting.

Maastricht and the citizens : The European Ombudsman. The creation of the European Ombudsman by the Treaty of Maastricht is part of the endeavour to democratize EC practice. Its aim is to ensure citizens the right to lodge complaints with an Ombudsman designated by Parliament. He is competent for handling ail misadministration cases within community institutions or agencies and according to the statute drafted by the European Parliament, will have powers of enquiry and recommendation. His assessments can become part of the parliamentary political control of the Commission.

The Future of Extra-Administrative Mediation. In addition to mediation which institutionalized at the highest level and initiated by public authorities, numerous social activies perform ‘mediation' (family, community, social, judicial, political, etc.). Although they are interesting and useful, most of these more closely resemble experiments in negotiation and conflict resolution techniques, but few reveal any form of mediation as a mode for managing social tensions. It is carried out through the intervention of a third, neutral, independent party, with no other authority than the one freely granted and recognized by the parties involved. Beyond problems of terminology, the future of mediation depends largely on the consideration it is given on the institutional framework of such experiments, as well as on the training and ethics of the mediators.

The Defender of the People and Justice. The Defender of the People has been established under the 1978 Constitution, and defined as a Parliamentarily-elected commissioner ensuring respect of civil rights and freedoms. He controls the administration and informs Parliament of his activities. His jurisdiction extends to ail administrations. Although he cannot or should not intervene in the powers of the judiciary, he can investigate the defects of judicial procedures, according to specifie procedures. Far from being a source of tension, the intervention of the Defender of the People in the judicial area has proved to be a positive influence.

The Polish Ombudsman and the Defense of Citizens' Rights. The creation of the Ombudsman in Poland in 1987 coincided with a sociopolitical and economie crisis and was seen to be a concession in favor of democratic reforms. This institution, which is closer to the Scandinavian model than the French one, has been granted broad powers. In addition to advocating the interests of the Polish citizen, the ‘defender of citizens' rights' participates in the establishment of the rule of law in Poland.

The Institution of Mediator of the Republic in Senegal. The Republic's Mediator has been set up in Senegal in 1991, and granted pendent jurisdiction. It is a sui generis body. To perform his regulatory mission, Mediator benefits from various immunities and guarantees. He has no real making power but his authority enables him to instil republican ethics within institutions.

The Fiscal general de la República in Venezuela. The Fiscal general de la República which has been created by the Constitution of 1961, is the highest authority in Public Prosecution responsible for ensuring that the Constitution and the law are respected throughout the Republic. Since 1989, this independent institution has been transformed with a view to the concept of the Ombudsman. The section for citizen's protection is tending towards extending the Fiscal's jurisdiction to non judicial control of the administration, human rights protection and the development of citizens's rights.

Some New Reflections on the Relation between Law and Equitable Decision-Making. Equitable Decision-Making is, first of ail, an abstract, philosophic concept. It is the basis of law and ail law is, or should be, an expression of the equitable as it is perceived by society at a given place and moment. More concretely, it is a reference, which appears intermittently, albeit decreasingly in positive law where it functions as a secondary source of law. Last, equitable decision-making operates on occasion as a circumstantial corrective to the law, explicitly as well as in practice. In this role, the Mediator, along with other institutions, has an advisory power, but has also the capacity for equitable settlement of litigations. This latter type of intervention can only be exceptional so as not to destabilize the administration and discredit the legal System.