OBE insists on a veto over the changes to the Ombudsman Act
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TO

MR. RUMEN RADEV

PRESIDENT OF THE REPUBLIC OF BULGARIA

 

ABOUT:

Exercise of a power under Art. 1 of the Constitution of the Republic of Bulgaria

 

DEAR SIR PRESIDENT,

On February 22, 2018, the National Assembly passed a bill for amendment of the Ombudsman Act, submitted by the Council of Ministers.

Representative national employers 'organizations are concerned about the accepted fundamental change in the philosophy of law that makes the Ombudsman institution a defender of citizens' rights from unlawful actions by the administration in a country in the relations and disputes between citizens and other private subjects - traders, civil organizations or even individual citizens. This is the direct consequence of the accepted change in Art. 2, para. (2) of the Ombudsman Act, which empowers the institution to intervene only in connection with acts or omissions by the state and municipal authorities and their administrations, the persons entrusted with the provision of public services "and by private individuals. "

We do not discuss the issue of the institution's capacity to deal with such powers despite its substantial staffing or the authorship of this ill-advised addition to the law, but we can not overlook the replacement of the conceptual idea of ​​a public defender as well as the unjustified and in breach of a number of constitutional norms a new function of the Ombudsman.

Under Recommendation № R (85) 13 of the Committee of Ministers of the Council of Europe of 23.09.1985 on the function of the Ombudsman should be considered, inter alia, related to "individual complaints relating to errors and other shortcomings by administrative authorities with a view to enhancing the protection of the individual in its relations with these authorities. "

According to Recommendation No. 61 (1999) of the Congress of Local and Regional Authorities in Europe to the Council of Europe, adopted on 17.06.1999, given that: a) "complications arise in relations between citizens and state authorities difficulties that can lead to conflicts and citizens are at a disadvantage vis-à-vis the state authorities "; (b) "believes that most European citizens want more efficient public authorities, easier and more reliable access to administrative procedures and matching means of satisfaction"; (c) "asserts that the institution" ombudsman "(at European, national, regional, district and municipal level) helps to strengthen human rights protection systems and improve relations between state authorities and citizens"; (d) "declares its willingness to support and promote all activities aimed at improving the protection of citizens and the functioning of public authorities", in which "the governments of the Member States which do not yet have an institution of this type to support the creation of ombudsman offices at the national, municipal and regional level and to ensure the ability of local and regional authorities to improve the protection of citizens and minorities, legal compliance, optimizing the management of public affairs and the work of the management structures through the appropriate legal and financial means ".

The Report of the Committee on European Integration in the National Assembly at a meeting held on October 31, 2001, in the initial discussion of the draft Law on the Ombudsman (№ 154-01-18 from 19.07.2001 years) clearly states that " recommendation R (85) 13 of 23 September 1985 concerning the ombudsman and Resolution (85) 8 of September 23, 1985 contains general guidelines regarding the creation of an ombudsman in a society they connect with the express function it monitors human rights and fundamental freedoms in the work of the administration ". The same report explicitly stated that the institution of ombudsmen "represents a new mechanism without duplicating the functions of the existing act alongside them, complementing their action initiated their intervention, and in some cases can be alternative. The main purpose and function of the Ombudsman is to monitor the state's administrative activity and to act as a deterrent against the abuse of power prejudicial to human rights. The Ombudsman and other similar institutions are a key element of what is called the "human rights infrastructure" that any democratic state has to provide. They offer the opportunity to satisfy the individual person who is harmed by the administration on the basis of mediation, honesty and a broad interpretation of justice rather than legal basis. "

In all European countries, the Ombudsman has the power to assist citizens with rights violated by the institutions (see the comparative legal analysis "The Ombudsman Institution in the European Union" developed under a student internship program published on the National Assembly website).

From all the above, it is clear that the Ombudsman's powers relate only to civil rights violated by state and municipal authorities, and this is not accidental, as only a limited number of acts of the administration can be appealed against. In this sphere, the Ombudsman is a guarantor of full protection of citizens from actions / omissions by the administration.

All of this philosophy has been amended with the amendment adopted in paragraph 2 of Art. 2 of the Ombudsman Act, and instead of an advocate of the administration, the figure of a country in all sorts of civil relations is already emerging - something that is no analogue anywhere. On the contrary, even for the European Ombudsman established by the Maastricht Treaty, it is explicitly mentioned that he can not conduct complaints against companies or individuals. In our country, however, we can already.

We are convinced that with such "pioneering" we will not achieve positives:

First of all, the unlimited (in practice) extension of the powers of the Bulgarian Ombudsman creates a risk of severely limiting his organizational and expert capabilities for the fulfillment of his essential function referred to above.

Secondly, we create the conditions for duplication of the new power of the ombudsman with functions of the judiciary (Article 117 (1) of the Constitution of the Republic of Bulgaria - "Judiciary protects the rights and legitimate interests of citizens, legal persons and the state" of the Bar Association (Article 134 (1) of the Constitution of the Republic of Bulgaria - "The Bar is free, independent and self-governing, assists citizens and legal persons in the protection of their rights and legitimate interests"), the police (Article 2. (1) of the Law on the Ministry of Interior - "The activity of M. BP is aimed at protecting the rights and freedoms of citizens ") ... An even more serious problem is the possibility of interfering with trade and civilian turnover, where the consequences are unpredictable.

The added power of the Ombudsman creates conditions for intervention in areas of activity governed by explicit rules of the Constitution of the Republic of Bulgaria such as the freedom of religion (Article 13), the right to property, its guarantee and inviolability (Article 17), the right to privacy freedom and privacy (Article 30), the inviolability of the freedom and the secrecy of correspondence and other communications (Article 34), the irrevocability of the fundamental rights of citizens and the inadmissibility of the abuse of rights (Article 57).

DEAR SIR PRESIDENT,

The reasons set out above motivate us to address you with a call to exercise your authority under Art. 101, para. 1 of the Constitution of the Republic of Bulgaria, by returning the law in the section Art. 2, para. 2, the expression "as well as by private individuals." In the National Assembly for a new discussion.

 

WITH RESPECT,

 / s /

BOJIDAR DANEV

Executive Chairman of BIA
and Chairman of the AOBE for 2018,
on behalf of BICA, BIA, BCCI and CEIBG