ГавриловаО.А_summery (Конституционно-правовой статус омбудсмана в иберо-американских странах)

National Research UniversityHigher School of EconomicsGavrilova Olga AndreevnaCONSTITUTIONAL AND LEGAL STATUS OF OMBUDSMANIN IBEROAMERICAN COUNTRIESPhD Dissertation Summaryfor the purpose of obtainingPhilosophy Doctor in Law HSEAcademic supervisor:Alebastrova Irina AnatolievnaPhD in Law, assistant professorMoscow, 2018The thesis was completed at the Department of constitutional and administrative law of the Faculty of Law of the National Research University ‘Higher Schoolof Economics’The text of the thesis is deposited and available on the website of the Higher Schoolof Economics: https://www.hse.ru/sci/diss/12.00.02 – Constitutional law; constitutional litigation; municipal lawAcademic SecretaryDissertation Council in LawDoctor of Science, assistant professorIrina Alexandrovna EmelkinaGENERAL DESCRIPTION OF WORKRelevance of the research topic.The development of modern constitutionalism is typified, among other things,by a considerable worldwide incidence of an institution of ombudsmen.

There are anumber of reasons for such incidence. The most important ones are the inability of thetraditional vertical structures of rigid government control to provide inviolability ofhuman rights and peaceful coexistence of countries, as well as current preservation oftotalitarian and authoritarian regimes, while the public conscience is declaring andaccepting the ideas of constitutionalism, the most prevalent of which is the idea of theunquestionable value of an individual self. All these factors caused citizens to beuntrusting of the traditional elements of government mechanisms, defined by a rigidvertical interaction between a citizen and a state.

Socialization of countries, havingcaused expansion of government mechanisms, their functions and reasons to invadeprivate life of citizens, which in turn raised the danger of abuse, also contributed toinstating the institution of ombudsmen. Traditional “constraining” branches ofgovernment – the legislative and the judicial branches – in the circumstances ofdetracting from the “minimalistic” concept of government proved to be insufficient incontrolling the administrative governing process. As a result, the new institution ofombudsmen emerged within the mechanism of government power to advocate forhuman rights.In order to build a democratic law-governed state in Russia, as is mentioned inthe constitution as one of the pillars of the constitutional regime, it is reasonable toresearch the international experience in terms of institutions, aimed at protectinghuman rights as the highest merit. One of such institutions are ombudsmen, currentlyon the rise.

In line with such tendency, it emerged in Russia as well: it was accountedfor in the 1993 constitution, therefore being a relatively new development for thecountry. The way this institution functions raises multiple theoretical and practicalquestions, such as: what is their actual and appropriate correlation to the branches ofgovernment and other government bodies, i.e. whether ombudsmen should remain aninstrument of government control or has their human rights protection potentialoutgrown its initial aims? What is the correlation between the functions of publicprosecutors and the operation of ombudsmen? What is the optimal set of functionsand authorities of an ombudsman? What should their instruments be and how couldone measure their efficiency? All of these questions require an answer and presupposecareful analysis of the international experience.Analyzing the genesis of the institution of ombudsmen in Ibero-Americancountries allows one to define specifics of the institution in different circumstances:under stable democracy, in during the regime change or under preserved authoritarianregime; as well as defining directions and results of the influence of countries withliberal legal values onto those countries, which either started late or have not startedmoving towards such values while building their political regimes at all.

The historyof its establishment, along with current trends and legislative regulations of theinstitution of ombudsmen in Ibero-American countries not only have certain featurescommon for the institution as a whole, but also a set of specific features caused by theauthoritarian experience in the researched countries, as well as their economic andcultural circumstances and traditions.The relevance of researching the special aspects of emergence and developmentof the institution of ombudsmen in Ibero-American countries also lies the lack ofcoverage of this topic within the region in Russian literature.

In terms of content, theaforementioned processes are of interest for constitutionalist researches because thisinstitution, possessing “soft” power, emerged in Ibero-American countries during thetransition from authoritarian to democratic stages of development. Its establishmentand entrenchment in legislative systems of Iberian European countries gave a positiveresult in terms of progress in human rights situation and in turn served as an impulsefor its development in a variety of other countries. Nevertheless, in different countriesof Latin America the institution of ombudsmen is legally defined differently, and theefficiency levels in such countries do vary. It is a very valuable material forcomparative analysis of its factors of efficiency in countries with different levels ofentrenchment of values and varying mechanisms of law-governed state.In this regard, familiarizing the Russian scientific public with Ibero-Americanmodels, in my opinion, holds a strong scientific and practical significance, not leastbecause we are lacking experience in consciously borrowing rights protectioninstitutions that would be effective at protecting individual freedom in interactingwith the government bodies.

With such, in the process of creating additionalmechanisms to aid the citizens in protecting their rights, it is essential to understandthe advantages of an institution processing “soft” power.The term of “Ibero-America” encompasses Spain, Portugal and their formercolonies on the American continent – countries of Latin America, excluding Belize,Guyana and Suriname, whose mother countries were not located in the IberianPeninsula and have culture, languages and traditions differing from Spain andPortugal.

In Russian science, the term is used by the Association of Researches ofIbero-American world at the Institute of Latin America of Russian Academy ofScience, as well as by Ibero-American Center at Moscow State Institute ofInternational Relations.In line with the aforementioned observations on the relevance of researchingthe institution of ombudsmen in Ibero-American countries, here are the defined goalsand objectives of the dissertation thesis:to prove an ombudsman to be an institution of soft power;to show the role of an institution of soft power as an intermediarybetween government bodies and citizens;to define the term of ombudsman in regard to its position as an institutionof soft power;to identify the processes of emergence and development of the institutionof ombudsmen in Ibero-American countries, as well as key factors that haveinfluenced the incidence of ombudsmen in Iberian European countries and influencedthe entire region of Latin America, where ombudsmen ha ve developed with distinctIberian features;to identify the distinctions of competence of Ibero-Americanombudsmen, to analyze the authorities of ombudsmen in initiating remedy of amparoand habeas data, as well as petitioning the constitutional court for verification ofconstitutionality of legislation acts concerning human rights;to evaluate the constitutional law from the perspective of providingguarantees of realizing the authorities and the mission of ombudsmen in researchedcountries.The degree of scientific development of the topic.Various researches of the institution of ombudsmen were conducted in theworks of such authors as: N.

Abedin, V. Ayeni, F. Alvarez de Miranda y Torres, V.V.Boytsov, L.V. Boytsov, M.L. Wagner, D. Gottehrer, R. Gregory, G. Drewry, D.A.Knyazkin, E. Lentowska, H.M. Mayorano, Nilsson Per E., M. Oosting, D. Rowat, A.I.Sungurov, M.T. Timofeyev, V. Fairen Guillen, B. Frank, A. Stuhmcke, N.I.Khamaneva, P. Hutchesson, A. Gil-Robles, M. Hostina.Scientists, who have conducted research of the institution of ombudsmen inIbero-American countries are: M. Aguitar Cuevas, F.J. Acuña Llamas, L. Alvarez deSotomayor, R.L. Harrel, S.C.

Arroyo, J. Aylwin, J. Barragan, F.A. Villena, L. VillalbaBenítres, S. García Ramírez, V.F. Guilen, V.L. González, L. Goslinga Remírez, M.Donayre Pinedo, A. De la Cruz, M. Iráizoz, D.A. Calderon, J. Caprizo, P. CarballoArmas, I. Castro Patiño, C.R. Constenla, J. Córdoba Triviño, G. Kucsko-Standlmayer,C. Lachenal, J.C. Martínez, M. Moguel, G.E. Roca, M.T. Pareja Rosales de Conrad,L.G.