ГавриловаО.А_summery (Конституционно-правовой статус омбудсмана в иберо-американских странах), страница 2

Remírez, A. García, M.I. Romo, M. Roccatti, S. Sabrosa, E.L. Cervantes, L.Silveira, A.I. Stroganov, F. Zúñiga, F. Uggla, H. Wuyts, K.P. Fernández-Turegano, H.Fiz-Zamudio, R. Gil Rendón, A.J. Estrada.There are a plethora of scientific studies on the topic of human rights ingeneral. These studies are featured in the works of S, Aguayo, A.Y.

Azarov, I.A.Alebastrova, G. Anuar Ortega, N.V. Vitruk, L.D. Voyevodin, A. Garrido, J.M. GarcíaLaguardia, A. Gómez-Robledo Verduzco, S.A. Gracheva, P. Kelley Oquist, D.Kyprianou, O.E. Kutafin, C. Lachenal, E.A. Lukasheva, J. Magalhães Godinho, A.Manuel Pérez, R.

Martínez, J.C. Martínez, N.M. Mironov, A.A. Mishin, M. Mogel, E.Martínez, A. Narváez Medécigo, A.B. Nougrères, E.E. Rafalyuk, V. Royter, R.Stavenhagen, B.A. Strashun, R. Witmer, A. Figueruelo Burrieza, G.F. Shershenevich,T.Y. Khabrieva, N.I. Khamaneva, K. Hufner, B.S. Ebseev, S.T. Hernández.Works of the aforementioned scientists have been used as a theoretical basis forthis dissertation research.The object of research of this dissertation is social interactions in regards tothe functioning of the institution of ombudsmen.The subject of the research are the legislative and doctrinal terms ofemergence and operation of the institution of ombudsmen in Ibero-Americancountries, as well as law-enforcing practices of the aforementioned institution, itsinteraction with the citizens and government bodies.The methodological foundation of the research is comprised of generalscientific and special cognition methods.

In this work the historical, social, formallylogical and systematic structured methods were used, along with the specialjurisprudential methods: comparative jurisprudential, historical jurisprudential,formally jurisprudential, etc. Such methods were used to identify models and issues ofdevelopment of the institution of ombudsmen and its legislative regulation. Aconsiderable attention was paid to comparative analysis (in line with reaching anunderstanding of the functioning of various jurisprudential systems (or its separateelements), as well as your own, being the initial goal of using comparative analysis).Any object can be understood and adequately evaluated only in comparison withother correlative objects.In order to identify non-jurisprudential elements influencing the operation of anombudsman, more all-encompassing methods, i.e.

sociological (by way of deepinterviewing of experts) and psychological (the observation method, method of polesregarding the choice of behavior patterns) were used, ones that reach out to wideraspects of public life but are closely linked with jurisprudence, in line withjurisprudence being one of the social sciences.

As such, based on the formaljurisprudential method, specific features of legislative regulation of the institution ofombudsmen in constitution and law were identified. Herewith, a situation wasresearched, when the form and content of legislation regulating the status of anombudsman complies with international standards and principles of a democraticstate, but there are doubts that in practice an ombudsman is acting independently.

Inresearching such situation a sociological method was used extensively, i.e. deepinterviewing of experts in order to identify the professional opinion in regard to theoperation of the institution of ombudsmen in the country:What is the extent of the influence of the political regime and balance orlack thereof of branches of government on the legal and factual status of anombudsman;What specific issues emerge when getting an ombudsman involved,when they are carrying out their duties and in carrying out their recommendations bygovernment bodies.This dissertation also used researches in psychology analyzing the psychologyof legal behavior, based on the methods of observation and poles regarding the choiceof behavior patterns.The most significant new points and conclusions submitted for defense andmaking up the conceptual basis of the dissertation are the following:1.This dissertation offers an authorial definition of an ombudsman,according to which an ombudsman is a rights protecting institution existing within themechanism of government authority, possessing soft power to protect citizens fromillegal and unwarranted acts and decisions by bodies and individuals in authority viaadministration of complaints and drawing recommendations in accordance with theresearch conducted, as well as possessing a variety of other authorities in order toimprove the quality of actions of bodies of government authority in their interactionswith citizens;2.The notion of an ombudsman being an institution of soft power isexplained, firstly, as their decisions are recommendatory as opposed to obligatory,and, secondly, as the ombudsman operation and interaction with government officialsis rather flexible, being aimed towards ensuring cooperation and solidarity.

It hasbeen proved, that emergence of elements of soft power in the government mechanismis a notorious trend in the development of modern countries. One of themanifestations of this trend is establishment and wide incidence of the institution ofombudsmen in the modern world;3.The dissertation argues the existence of a separate model of an Ibero-American ombudsman, having features both common to the classic model (securingthe status of an ombudsman in a legislation act, possessing higher authority within thecountry – a constitution and (or) law; political neutrality of an ombudsman ensured bypolitical and legislative mechanisms; autonomy of an ombudsman in their operationand decision-making as an intermediary between a person and a government aimed atefficient protection of human rights; authorities of ombudsmen to administratecitizen’s complaints concerning actions or lack thereof by the government officials;reaching recommendatory decisions; a parliament granting authority to ombudsmen)and specific features, such as initiating remedy of amparo in Bolivia, Venezuela,Spain, Costa-Rica, Nicaragua, Panama, Paraguay, Uruguay, Peru and Ecuador; aswell as authority to initiate habeas data in Venezuela, Peru and Ecuador; authority topetition the constitutional court for verification of constitutionality of the legislationacts concerning human rights in Bolivia, Venezuela, Spain, Colombia, Costa-Rica,Mexico, Nicaragua, Peru, Portugal, Ecuador; and, finally, close cooperation with thepublic prosecution office.

In Honduras, Colombia, Mexico, Peru and El-Salvadorombudsmen were included into the legislation system as an institution of theexecutive branch, appointed by the president or attorney general (who in turn wouldbe given authority in case the president’s role is decisive). This distinction isexplained by history of dictatorship in Latin-American countries, where the executivebranch was not only the strongest, but actually the only branch to hold actual power.4.A conclusion was drawn, that organizational unity of ombudsmen withpublic prosecution offices has a variety of conceptual and technical deficiencies thatputs the efficiency of ombudsmen in jeopardy. Firstly, despite the public prosecutionoffice possessing the rights protection function in the form of overseeing compliancewith human rights and freedoms by various elements of government, the rightsprotection potential of this institution is conceptually narrow.

It does not fullycorrelate logically with the function of representing public prosecution in court, whichin its operation makes unavoidable the emphasis on protecting the interests of thegovernment and society and ensuring legitimacy. Secondly, a public prosecutionoffice is tightly built into the system of hard power, which makes unavoidable itsadherence to the corresponding methods of action, as opposed to ombudsmen.

Anombudsman by definition is an institution of soft power, therefore uniting it withpublic prosecutors compromises preservation of its very essence. Thirdly, uniting apublic prosecution office with ombudsmen within the same ministry as an element ofexecutive branch is undesirable, since the majority of complaints, administered byombudsmen, concern human rights violations by executive branch bodies’representatives.5.Based on the research of the legislative norms in Ibero-Americancountries and the doctrine, the following functions of Ibero-American ombudsmenwere identified:a.Symbolical, according to which an ombudsman is a symbol ofhumanization of the relationship between a citizen and a government;b.Rights protecting function, including in separate specific areas;c.Instrumental, which includes conducting investigations and reinstating ofrights in specific cases, as well as eradicating general deficiencies in various segmentsof the administrative system in order to improve it;d.Representative, according to which ombudsmen operate on super-national and international levels;e.Educational, presupposing developing and carrying out events topromote human rights.6.Researching the legislation in Ibero-American countries allowed foridentification of conditions of granting authorities to ombudsmen, which ensureefficient realization of these authorities:a.Representatives of the executive branch and a powerful leader of thecountry should not be involved in the ombudsman appointment procedure.Involvement of a branch that features in most complaints from citizens to anombudsman does not allow for ensuring full autonomy.

Some of the consequences ofsuch involvement of the executive branch in granting authority to ombudsmen can bereceiving directions from a strong leader of the country or the ministers, or generalpolitical limitations of ombudsmen’s rights protecting operations by theaforementioned institutions. It can have a negative effect on an ombudsman renderingthem inefficient and not allowing for fulfilling its mission, as well as lead to decreasein trust levels of the citizens towards ombudsmen;b.Only the parliament should be involved in appointing an ombudsman;c.It should be ensured that, firstly, the civil society and especiallyrepresentatives of the rights protection organizations are involved in the nominationprocess, in order to identify and nominate candidates whose experience in the rightsprotection activities and commitment to human rights as the highest merit are enoughto ensure efficiency in correlative functions.