Defender of Rights and Freedoms

Serbia is forever lagging behind Europe, particularly as far as human rights are concerned. Laws protecting citizens against arbitrariness and allowing insight into decisions made in high places are still "waiting in line" in the legislative assemblies

RUNNING BEHIND: Although legal theorists in the former Yugoslavia began discussing the question of an ombudsman back in the 1950s, it still has not been instituted to this day

Aleksandra Vujković

The Law on Freedom of Information (Free Access to Information) is exceptionally important for carrying out democratic reforms in Serbia, as it would introduce a high level of transparency in the functioning of public institutions, as well as give citizens the opportunity to gain easy access to public information. A draft version of this law was completed in June 2002, but so far it has been discussed neither by the Government nor by Parliament, nor even the latter's legislative committee.

The European Movement in Serbia organized a roundtable entitled "Citizens' Involvement in Adopting Legislation", in which representatives of non-government organizations, foreign organizations interested in advancing democracy in Central and Eastern Europe, and members of Parliament took part. At this roundtable it was established, however, that this law will now be insisted on less, with greater emphasis on the Ombudsman Law, which is currently in the legislative process. This campaign has also been supported by the Council of Europe.

(R)evolution

Patented in the North

The first ombudsman, the "Justitieombudsman" established by the Swedish Constitution of 1809, was a special representative of parliament entrusted with overseeing how the king and the administration enforced laws, and with initiating procedures to determine liability for abuses

Over time, the ombudsman spread from the Nordic countries to nearly all the nations of the world, where he was called "Le mediateur" in France, "Defensor del pueblo" in Spain, "Provedor del Justicia" in Portugal, "Pučki pravobranitelj" in Croatia, "Varuh človekovih pravic" in Slovenia, and so on.

The decisive affirmation and establishment of this institutional guarantee of the implementation and protection of human rights came from the United Nations Organization, which gave it a global foundation in the form of the Universal Declaration of Human Rights, the International Pact of Civil and Political Rights and other relevant documents.

The fact that the European Union introduced the institution of ombudsman, as appointed by the European Parliament, in 1994 likewise indicates what sort of social (r)evolution is involved here. The ombudsman – on his own initiative, or on the basis of a complaint – supervises the work of all the European Union's bodies, whenever there is reason to suspect that they have not performed their duties correctly.

All of this leads to a logical question: why have Serbia and Yugoslavia been hitherto deprived of this already long-established standard of civilization?

YUGOSLAVIA: Legal theorists in the former Yugoslavia began discussing the question of an ombudsman as far back as the 1950s, leading to the establishment of a "quasi-ombudsman" function, called the "Social Defender of Self-Management", in the 1974 Constitution of the SFRY. The later Constitution of the Republic of Serbia (1990) contained a total of 136 articles, the largest number of which (43) were devoted to the freedoms, rights and duties of people and citizens, but the institution of ombudsman was not foreseen in its provisions in any form.

Although the idea of introducing this institution emerged almost simultaneously with the re-establishment of pluralist societies following the breakdown of communist ideology, it did not materialize in the Serbian Constitution of 1990. Nor did this happen at a later date, when the constitutions of the FRY and Montenegro were created in 1992. It was clear that one of the most significant democratic institutions, whose aim was to protect the interests of citizens, was still not welcome in a system based upon exactly the opposite principle.

The most serious attempt to introduce an ombudsman at the federal level occurred at the beginning of 1993, when an expert group was formed within the Federal Ministry for Human Rights (in the federal government led by Milan Panić) as part of ongoing activities directed at constitutional change, with the goal of proposing an amendment leading to the introduction of this institution. This project collapsed along with Panić's government.

In the meantime, the institution of ombudsman was first implemented in this "area" in Kosovo in 1999, while citizens of Serbia first became directly acquainted with it only this past year, as part of the Government's most recent reforms in the area of health care.

INADEQUATE: "Administrative and judicial controls of the legality and regularity of the work of government bodies cannot always ensure the necessary efficiency and success" – Dejan Milenković

A basis for all of this will be represented by the future People's Advocate Law, the proposed form of which was submitted to the National Assembly by the Serbian Government in May of this year. However, the proposed federal Law on the Defender of Human Rights and Freedoms, which entered the Federal Assembly's legislative procedure in August 2001, is still waiting for its place on the parliamentary agenda. Hopes have been placed on the reasonable expectation that the suggestions of experts and international organizations, and especially the extremely significant positive pressure exerted by the non-government sector, will soon lead to citizens' greater protection and security regarding issues of national defense and security, the rights of children or national minorities, the ecology, and so on.

IN THE WORLD: In modern countries there is an ever more pronounced tendency to complement traditional political and judicial controls of the legality and regularity of the work of government bodies with modern and more effective institutions, since administrative and judicial controls cannot always ensure the necessary efficiency and success, said Dejan Milenković of the Lawyers' Committee for Human Rights.

Cooperation Between Cities

The Best Practical Examples

The European Movement in Serbia and ICMA organized a symposium at which municipal officials from four cities in Serbia established cooperation with representatives of municipal government from the USA and Central and Eastern Europe

Serbia has made much progress over the last two years, but it still has a long, difficult road of reform ahead of it if it wishes to attain the optimum level of economic development, said Jon Bormet, director of the International City Managers' Association (ICMA). This organization is a partner of the European Movement in Serbia, and thus far has been active in implementing USAID's Serbia Resource Cities Program (SRCP), as part of which a symposium entitled "The Best Practical Examples" was organized. Here municipal officials from four Serbian cities (Subotica, Pančevo, Kragujevac and Niš) established cooperation with representatives of municipal government from the USA and Central and Eastern Europe.

Representatives of the four Serbian cities outlined their strengths and weaknesses, with the discussions focusing mainly on strategies of economic development, financing, the communal sphere and public administration, said Angelina Perduh, Pančevo's director for financing and the economy. One of the topics was renewal of the airport in Niš, and there was also discussion of the port in Pančevo.

One curiosity of this meeting was that Kragujevac and Springfield, Ohio became sister cities, reported Vlatko Rajković, chairman of the Assembly of the City of Kragujevac. He concluded that the benefit of these seminars was many-sided, since municipal representatives received firsthand information about how public administration works in the USA, Romania, Bulgaria and other countries.

The talents of Serbia's cities are underestimated or hidden. While it is true the technology is lacking, there is a good level of know-how, concluded Valerie Lemi, a city manager from Cincinnati, Ohio.

The institution of ombudsman is the best-known of all contemporary institutions for supervising the work of government bodies. As a rule, this function is performed by a single individual, a lawyer by profession, aided by a team of assistants which he himself forms. There are, however, countries (e.g. Austria) where this function is entrusted to a collective body. Each country, due to its specific socio-political environment and differences in its political and judicial culture, creates its own model for protecting citizens' human rights from the arbitrariness of the public authorities, which has become more pronounced due to an increasingly developed and comprehensive state apparatus, observed Professor Stevan Lilić of the Faculty of Law.

The effectiveness of an ombudsman derives primarily from his ability, based on the reports he submits to parliament, to call the attention of the public and parliament to complaints filed by citizens. It is a simple fact that it is impossible to create a political system in which violations of citizens' rights and freedoms would not occur. For this reason, it is essential to establish a system of protection that allows such violations to be detected promptly and eliminated or prevented in the most effective manner possible.

EX-YUGOSLAVIA: Croatia was the first country in the former Yugoslavia to introduce the institution of ombudsman in its system (1992). Communication between the government and citizens in Croatia is better than in other transition countries in the Balkans, said Aurela Isufi, manager of the project for citizen involvement in adopting legislation. In Slovenia the ombudsman was introduced in 1994, and in Macedonia (the national defender of rights) in 1997. In Bosnia and Herzegovina the ombudsman was instituted by the Dayton Agreement.

KOSOVO: As far as Kosovo is concerned, the special emissary of the United Nations General Secretary established the institution of ombudsperson by decree in 2000, appointing Marek Antoni Nowicki to this position at the end of the same year. It is interesting to note that more than a third of the 590 complaints officially received and registered to this date have related to violations of property rights. Next come irregularities in employment relations and in hiring, with a smaller number of complaints concerning violations of the right to a fair hearing, discrimination and unequal protection.

Nowicki, demonstrating that independence is the fundamental attribute of an ombudsman, even called on Hans Haekkerup, the former UN special emissary to Kosovo, to honor decisions regarding implementation of human rights, above all those of prisoners.