European Network of Ombudsmen : newsletter. No. 22, January 2015.
Date: 2015-02-04
Institutions: European Ombudsman
Subjects: EU Member State, European Ombudsman, appeal to the European Ombudsman, mediator, serial publication

European Network of Ombudsmen

Newsletter
No. 22

January 2015

© European Union and the authors, 2015
The views expressed in this publication are those of  
the authors. They do not necessarily reflect those  
of the European Ombudsman or the International  
Ombudsman Institute (IOI).
Contributions appear in the EU’s protocol order, that is,  
alphabetically, based on the name of each country in  
its own language.

European Network of Ombudsmen

Newsletter
No. 22

January 2015

Contents

4 

6 

Editorial

News  
Changes within the European Network of Ombudsmen 
and other ombudsman institutions in Europe

10 

IOI communications  
Activities of the International Ombudsman Institute

14 

18 

26 

60 

European Union law

Articles  
Contributions relating to European Union law issues 
submitted by members of the European Network of 
Ombudsmen and by European Union institutions 

Cases  
Cases with a European Union law dimension handled by 
members of the European Network of Ombudsmen

The work of ombudsmen and similar bodies 
Reports on the work of the members of the European 
Network of Ombudsmen and of other ombudsman 
institutions in Europe

Seminars and meetings  
Reports of seminars and meetings organised by the 
members of the European Network of Ombudsmen and 
by other ombudsman institutions in Europe

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Editorial

4

she and her excellent team are putting into the 
preparations for the Seminar, which promises to be both 
inspiring and deeply poignant.

All that remains is for me to wish you and your staff a 
happy and successful 2015.

Emily O’Reilly 
European Ombudsman

Dear colleagues,

Many thanks to all those of you who provided invaluable 
feedback regarding the European Network of 
Ombudsmen Newsletter in your replies to the Network 
survey at the start of last year. Thanks also to the liaison 
officers for their excellent suggestions during discussions 
at the Liaison Seminar last spring, and to the regional 
ombudsmen and committees on petitions who 
contributed many positive ideas during the Regional 
Seminar in June.

Based on the survey results and on the suggestions 
received, I informed you at the end of October of our 
plans for a timelier multilingual Newsletter. As I 
mentioned in my e-mail, the Newsletter will continue to 
be produced in five languages: English, French, German, 
Spanish, and Italian, and that, in order to ensure that the 
news contained in the Newsletter is as topical as 
possible, we will aim to produce four issues of the 
Newsletter per year instead of two – in January, April, 
July, and October. All members of the European Network 
of Ombudsmen, as well as all the other members of the 
International Ombudsman Institute's European Region, 
will continue to receive the Newsletter in their preferred 
language, but in order to reduce the financial and 
environmental costs associated with producing the 
Newsletter, it will, from now on, be produced as an 
electronic publication only.

A total of 25 offices have contributed articles to this 
latest issue of the Newsletter. I hope that you will find 
the variety of contributions as interesting to read as I 
have, and will find inspiration for your own work as 
ombudsmen and members of committees on petitions.

While 2015 is the year in which we will celebrate the 
20th anniversary of the European Ombudsman, next year 
marks the 20th anniversary of the European Network of 
Ombudsmen. Over the coming twelve months, I will be 
looking at ways to increase the visibility, impact, and 
relevance of the Network for the citizens and residents 
of Europe. The suggestions made in last year's Network 
survey have provided me with many excellent ideas for 
the future development of the Network. If you have any 
further suggestions that you would like to make, I'd be 
delighted to hear from you.

I look forward to seeing many of you in Warsaw this 
April for the Tenth National Seminar of the European 
Network of Ombudsmen. As you know, the theme of 
this year's Seminar is “Ombudsmen against 
discrimination” – a topic that will give us the opportunity 
to discuss the latest developments in EU anti-
discrimination law, and to exchange our experiences and 
best practices in combatting discrimination through our 
work as ombudsmen. The Ombudsman of Poland, 
Professor Irena Lipowicz, has not only secured a 
remarkable venue for our conference – the newly-
inaugurated Museum of the History of Polish Jews, but 
has also arranged for participants to visit the Auschwitz-
Birkenau Memorial, 70 years after its liberation. I would 
like to thank Professor Lipowicz for all the efforts that 

5 

Editorial

News 

6

Germany

Croatia

Ombudsman of the State 
of Rhineland-Palatinate
Hermann Josef Linn the new Deputy 
Ombudsman at the Landtag (state 
parliament)

At the office of the Ombudsman and the Ombudsman of 
the State Police, Dieter Burgard welcomed his new 
deputy, Ministerialrat (permanent secretary) Hermann 
Josef Linn on 1 July.

Before this, the President of the State Parliament, 
Joachim Mertes, presented Mr Linn with his certificate of 
appointment in the presence of the Head of the State 
Parliament, Ursula Molka, and staff representatives. 
Mr Mertes thanked Mr Linn for his dedication to the 
organisation of the state parliament since 1990. Mr Linn, 
now 53, began his employment in the state parliament 
administration 24 years ago in the office of the 
Ombudsman. In 1994, he took on various organisational 
functions in the state parliament.

Dieter Burgard highlighted in his welcome address that 
with Hermann Josef Linn taking up his post, he will 
become the fourth Deputy Ombudsman in the 40-year 
history of this institution. This demonstrates great 
continuity and the high degree of confidence of the 
four Ombudsmen in their deputies.

As Head of Unit, Mr Linn will work predominantly in the 
important areas of the penal system, courts, the public 
prosecution departments and the law concerning foreign 
nationals.

Contact
Désirée Rausch;  
desiree.rausch@derbuergerbeauftragte.rlp.de

Opening of the Rijeka Regional Office 
of the Ombudsman

The Rijeka Regional Office of the Ombudsman was 
opened on 17 November 2014. The opening provided 
an opportunity to present the work and role of the 
Ombudsman as a Commissioner of the Croatian 
Parliament for the promotion and protection of human 
rights and freedoms, as laid down in the Constitution, 
laws, and international legal acts on human rights and 
freedoms adopted by the Republic of Croatia.

At the opening, the Ombudswoman, Lora Vidović, 
stressed: “In this way, we want to be closer to the 
citizens, because their expectations of our institution are 
increasing due to our powers of protection and 
promotion of human rights, prevention of discrimination, 
and our role as National Preventive Mechanism. Since we 
previously only had an office in Zagreb, many people 
who needed our help were not able complain and to 
seek protection of their rights because of the distance. 
In this way, we will be more accessible to all.”

Besides the Ombudswoman, Lora Vidović, the first public 
presentation of the new Office was attended by Fani 
Bugarin Šoljan, on behalf of the Centre for Civic 
Initiatives from Poreč (the regional antidiscrimination 
contact point of the Ombudsman), Furio Radin, Member 
of Parliament and Chair of the Committee on Human 
and National Minority Rights, Vojko Obersnel, Mayor of 
Rijeka, and Zlatko Komadina, Prefect of Primorje-Gorski 
Kotar County.

The presentation of the Office was held at the City Hall 
in Rijeka, and was attended by a wide range of 
stakeholders. The opening was welcomed by the Deputy 
Prefect of Istria County, Viviana Benussi, and the Prefect 
of Lika, Milan Kolić.

Contact
Milena Gogić; milena.gogic@ombudsman.hr

7 

News

Liaison Officers

Austria: The Liaison Officer for the Austrian Ombudsman 
Board, Ms Ulrike Grieshofer, is back from maternity leave. 
Ms Victoria Schmid replaced her during her absence. We 
would like to welcome Ulrike back to the European 
Network of Ombudsmen and look forward to continuing 
our close cooperation with her.

8

IOI 
communications

10

The IOI European Region is by far the largest of the IOI’s 
regions. It has a membership including the oldest, and 
some of the newest ombudsman institutions in the 
world. The work of our offices ranges from routine 
complaints about poor services to difficult interventions 
on behalf of oppressed groups, such as the Slovak 
Ombudsman’s work for the Roma people, or in war 
zones, as exemplified by our colleague in the Ukraine.

I was elected Regional President after Alex 
Brenninkmeijer stepped down in January 2014. 
Subsequently, I was elected 2nd Vice-President at a World 
Board meeting in Vienna in October, and an election is 
underway at the time of writing to elect a new Regional 
President.

During the course of the year, the Board met in Warsaw 
in April and the IOI European Region meeting was held 
in September in Tallinn. I would like to express my 
thanks to Chancellor Indrek Teder and his staff for 
hosting us in Tallinn. The quality of the organisation and 
the warmth of the welcome were exceptional.

I would like to update you on some of the work done by 
the Board so far this year.

Privatisation and outsourcing of public services

The Board has devoted considerable attention to the 
practical implications of the privatisation or outsourcing 
of public services. In our paper The Ombudsman and the 
Changing Face of Public Services we consider the 
implications of privatisation for the IOI and advocate a 
policy stance based on existing public services 
ombudsmen retaining jurisdiction even when services are 
privatised or outsourced. We suggest that the IOI should 
take a clear stance opposing the proliferation of 
ombudsman institutions and the dilution of the 
ombudsman “brand”. We further advocate enabling 
ombudsman schemes which deal with complaints about 
a subset of public services – such as utilities – to become 
members of the IOI, but in a non-voting capacity. A more 
concise policy document will be issued by the IOI shortly.

This work was given added impetus by the imminent 
implementation of the EU ADR directive which will affect 
Member States. We met with the European Commission 
and continue to monitor developments across Europe. A 
survey of members on the implementation of the 
Directive in their respective countries is underway as I 
write.

Board membership

Promoting learning

The current IOI European Region Board members are:
 • Mr Peter Tyndall (Outgoing Regional President), 
Ombudsman of Ireland
 • Ms Catherine De Bruecker, Federal Ombudsman of 
Belgium
 • Ms Elisabet Fura, Chief Parliamentary Ombudsman of 
Sweden
 • Prof. Irena Lipowicz, Ombudsman of Poland
 • Mr Rafael Ribó, Ombudsman of Catalonia, Spain
 • Ms Kalliope Spanou, Ombudsman of Greece
 • Mr Igli Totozani, People’s Advocate of Albania

Change in by-laws

The Rules of the Board were amended to incorporate 
changes as a result of the changes to the by-laws agreed 
in Wellington, to allow for an update in terminology and 
to incorporate the changes resulting from the recent 
decision. These changes also introduced electronic 
voting. I believe that electronic voting will enable more 
members to vote and participate in decisions without 
having to attend meetings and will ensure that the IOI 
officers are elected by the full membership.

Human rights project

At the Conference in Tallinn, Northern Ireland 
Ombudsman Tom Frawley presented the IOI-funded 
project undertaken by his Office, in conjunction with the 
Northern Ireland Human Rights Commission. The project 
produced an interactive tool to enable ombudsmen who 
are not the Human Rights Institution for their country to 
consider the human rights implications of any case they 
are considering. The interactive tool will be rolled out 
with training in the months ahead.

The Region is committed to exploring ways in which 
learning can be shared between institutions. The current 
topic being explored is the use of “own initiative” 
investigative powers. A survey is underway to look at 
which institutions have such powers (the vast majority 
do) and how they are used. A report will be issued 
highlighting best practice.

Training

During the year, the IOI has been actively considering 
training initiatives to meet the evolving needs of its 
members. It is intended that Latvia will host a thematic 
workshop on implementing the NPM (National 
Preventive Mechanism) mandate next June.

Ombudsman offices under threat

The IOI Regional President wrote to the President of the 
Slovak National Council expressing concern at difficulties 
faced by the Public Defender of Rights of the Slovak 
Republic, Ms Jana Dubovcová, with regards to the 
decision to reject her Annual Report, in response to her 
outspoken criticism of decisions adversely affecting 
Roma children. Her subsequent Annual Report has now 
been accepted by the Parliament. Ms Dubovcová was 
grateful for the support offered by the Regional Board.

Ombudsman institutions in Italy have been losing powers 
and competencies while in some regions an ombudsman 
was never appointed. During the year, Mr Ribó and 
Mr Totozani made presentations to the Italian parliament 
on the role of the ombudsman. This was at the invitation 
of the Ombudsman for the region of Tuscany, Ms Lucia 
Franchini. They were also joined by European 
Ombudsman Emily O’Reilly.

11 

IOI communications

A report had issued from the Spanish Government in 
June 2013 which recommended the abolition of all 
regional ombudsmen within Spain. Some regional 
ombudsman institutions were subsequently abolished, 
which is a matter for considerable concern.

Coordination Meeting for Ombudsman Networks

IOI Europe is pleased to be working with the European 
Ombudsman’s Office in establishing a regular informal 
coordination between the various ombudsman networks 
in Europe, with a view to better coordinating meetings 
and conferences, and reducing the potential clashes in 
timing and content of conferences. We are grateful to 
the European Ombudsman for organising the first 
coordination meeting, which took place in Brussels at 
the start of December.

Regional projects

As well as the Northern Ireland project mentioned 
above, the following European projects have received 
funding from the IOI:
 • The “Right-to-Reform Project” carried out by the 
Office of the Ombudsman for Children, Ireland. “Right to 
Reform” is a practical guide for civil and public servants 
in delivering a child friendly-administration/public 
service. This work is ongoing but it is expected that the 
final report will be submitted by the end of 2014.
 • An information campaign on human trafficking from 
the Office of the Latvian Ombudsman. It is expected that 
the project will be completed by the end of 2014.

The IOI will continue the regional subsidy programme 
into 2015. The subsidies will be split equally between all 
the regions. It is intended that a request for project 
proposals for 2015 will be made by the end of this year.

Annual meeting of the IOI Board of Directors, 
October 2014

On the occasion of the annual meeting of the IOI Board 
of Directors, the Regional Board welcomed two new 
members to the chapter: the Turkish Ombudsman 
Institution and the Public Defender of Georgia.

Finally, my congratulations to Emily O’Reilly upon her 
successful re-election as European Ombudsman.

Peter Tyndall 
Regional President of the IOI (European Region)

12

European Union
law
Articles

14

also make it possible to know the frequency of the 
communications of the user with certain persons during 
a given period. As the Court pointed out, those data 
allow conclusions to be drawn concerning the private 
lives of the persons concerned, including, inter alia, their 
habits, social contacts, and places of residence. This 
indisputably constitutes an interference with the rights 
to private life and freedom of correspondence which are 
guaranteed by the CRB, notwithstanding that the 
confidentiality of correspondence is not affected by the 
contested provisions, as data revealing the content of 
correspondence may not be retained as per the 
procedure at hand. While such interference may pursue 
a legitimate public interest aim, I find it to be unjustified 
and contrary to the Constitution.” The Ombudsman is of 
the opinion that the collection and retention of traffic 
data on absolutely all users of electronic communication 
services for 12 months – for the purpose of potentially 
using some of those data in respect of a limited number 
of people, at an indefinite point of time, in order to 
possibly detect crimes – constitutes a disproportionate 
and unjustified interference with citizens’ rights.

The Constitutional Court has not yet adjudicated on the 
constitutional case, No. 8/2014.

Contact
Nadya Milkovska; nmilkovska@ombudsman.bg

Bulgaria

Judgment of the Court of 8 April 2014 in 
Joined Cases C-293/12 and C-594/12 and 
the reaction of the National Ombudsman 
of the Republic of Bulgaria

In its Judgment of 8 April 2014 in Joined Cases C-293/12 
and C-594/12, the Court of Justice (Grand Chamber) 
ruled that Directive 2006/24/EC of the European 
Parliament and of the Council of 15 March 2006 on the 
retention of data generated or processed in connection 
with the provision of publicly available electronic 
communications services or of public communications 
networks and amending Directive 2002/58/EC (Directive 
2006/24/EC) was invalid due to its being incompatible 
with Articles 7, 8, and 52(1) of the Charter of 
Fundamental Rights of the European Union.

Following that judgment, on 15 April 2014, the National 
Ombudsman requested that the Constitutional Court 
(CC) ascertain the unconstitutionality of Articles 
250a-250f, Article 251, and Article 251a of the 
Electronic Communications Act (ECA) which infringe 
upon citizens’ rights. The contested provisions of the 
ECA had been introduced by the Act Amending and 
Supplementing the ECA, as promulgated in the State 
Gazette, Issue No. 17/2010. According to the 
explanatory memorandum to Draft Act No. 902-01-52 of 
2 December 2009, put forward to the National Assembly 
by the Council of Ministers, the draft act was intended 
to transpose the requirements of Directive 2006/24/EC. 
Given the ruling that said the Directive was invalid, the 
aforementioned provisions of the ECA, which transposed 
the requirements set forth in Directive 2006/24/EC into 
Bulgarian law, contradict EU law and violate Article 5(4) 
of the Constitution of the Republic of Bulgaria (CRB).

The Ombudsman also put forward arguments that the 
legislation at issue contradicts the Constitution of the 
Republic of Bulgaria. Article 32(1) CRB enshrines citizens’ 
privacy. According to Article 34(1) CRB, the freedom and 
confidentiality of correspondence and of all other 
communications shall be inviolable. Exceptions to this 
rule shall be allowed only with the permission of the 
judicial authorities, for the purpose of discovering or 
preventing grave crimes (see Article 34(2) CRB). 
Article 250a(1) of the ECA requires the retention of data 
which are necessary to: trace and identify the source of 
the communication; identify the destination of the 
communication; identify the date, time, and duration of 
the communication; identify the type of the 
communication; identify the communications terminal 
equipment of the user or what purports to be the 
communications terminal equipment of the user; and 
identify the location label (Cell ID). Article 251a ECA 
specifies the scope of such data. In his application to the 
CC, Mr. Konstantin Penchev stated: “Those data make it 
possible to know the identity of the person with whom a 
user has communicated and by what means, and to 
identify the time of the communication, as well as the 
place from which that communication took place. They 

15 

European Union law – Articles

Finland

Residence-based social security and 
harmonisation of EU legislation

To support a study launched in February 2014, the 
Finnish Ministry of Social Affairs and Health requested a 
statement from Deputy-Ombudsman Maija Sakslin on 
how the Finnish residence-based social security system 
meets the requirements of EU legislation, especially 
regarding the principles of equal treatment and free 
movement of persons enshrined in EU legislation.

In particular, the Deputy-Ombudsman was requested to 
address the following issues in her statement:
 • Legal framework set by the European Union’s 
competence and EU law to national social security 
legislation;
 • Recent case-law of the Court of Justice of the 
European Union;
 • Recent and future evolution of EU legislation.

This issue has sparked a lot of debate not only in Finland 
but also in such countries as the United Kingdom and 
Germany.

Drawing upon the case law of the Court of Justice, 
Deputy-Ombudsman Sakslin analysed in her statement a 
few examples that elucidate the conditions for insuring a 
person and for granting and paying benefits a Member 
State can set in its national legislation.

The basic principle of the division of competences 
between the Union and its Member States is that social 
security legislation is within the competence of individual 
Member States. A Member State may thus specify in its 
national legislation the type of benefit systems it 
maintains, the persons entitled to these benefits, the 
geographical scope of and time limits for applying the 
legislation on benefits, the conditions for granting 
benefits and their levels, and the administrative 
organisation used to implement the system. The Member 
State’s competence is, however, limited by the Treaties 
and other EU legislation. The Court of Justice has ruled 
that even if a question is within the competence of the 
national legislator in the Member States, they must, 
when exercising this competence, observe the general 
principles of EU law, which include equal treatment, 
prohibition of discrimination and free movement.

Equal treatment of economically inactive persons who 
are not working and their entitlement to social security 
related rights are based on Articles 18 and 21 of the 
TFEU and EU legislation adopted by virtue of these 
Articles. In several of its decisions based on these 
Articles of the Treaty, the Court of Justice has confirmed 
EU citizens’ right to equal treatment in access to social 
benefits.

Provisions on the right to social security of workers who 
exercise their freedom of movement and the relevant 
competence of the Union are contained in Article 48 of 
the TFEU. More detailed provisions on these rights are 
contained in the Regulation on the coordination of social 
security systems 883/2004 and 987/2009.

The most crucial principle of the EU law that restricts the 
competence of the national legislator is the principle of 
equal treatment. A Member State may not set in its 
legislation conditions for being insured or for granting 
and paying benefits that nationals of that Member State, 
who have always resided and worked in the country, find 
easier to meet than workers who have moved to the 
country from another Member State.

National legislation may also not set the beneficiary’s 
residence or stay in a Member State as a condition for 
paying a benefit if the person has a right to benefits 
based on activity as an employed or a self-employed 
person, or if he or she is a family member of an 
employed or a self-employed person.

All conditions that would cause an employed person to 
cease to be entitled to his or her benefits as a result of 
having exercised the right to free movement enshrined 
in the Treaty or have the effect of deterring him or her 
from exercising this freedom are also prohibited in 
national legislation.

The general prohibition of discrimination already applies 
to social benefits on the grounds that the relevant 
provisions are contained in Regulation 883/2004 on the 
coordination of social security systems1, 
Regulation 492/2011 on the free movement of workers2 
and, today, also in Directive 2004/383 on the right of 
citizens of the Union to move and reside freely within 
the territory of the Member States.

The purpose of the free movement Directive 2004/38 is 
to implement Union citizens’ right to settle in any 
Member State. Its contents are to a great extent based 
on the case law of the Court of Justice concerning Union 
citizenship. The Directive stipulates that all Union citizens 
and their family members residing in a Member State on 
the basis of this Directive should enjoy, in that Member 
State, equal treatment with nationals.

However, economically inactive persons may be denied 
the right to social assistance during the first three 
months of residence.

Regulation (EC) No. 883/2004 of the European Parliament and of the 

1 
Council of 29 April 2004 on the coordination of social security systems.

2 
Regulation (EU) No. 492/2011 of the European Parliament and of the 
Council of 5 April 2011 on freedom of movement for workers within the Union 
(Text with EEA relevance).

3 
Directive 2004/38/EC of the European Parliament and of the Council of 
29 April 2004 on the right of citizens of the Union and their family members to 
move and reside freely within the territory of the Member States amending 
Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 
93/96/EEC.

16

Deputy-Ombudsman Sakslin extensively analysed the 
case law of the Court of Justice concerning the 
implementation of citizens’ rights relevant to free 
movement. To counterbalance the extension of rights, 
setting adequate ties with the receiving country as a 
condition for entitlement to social rights has been 
accepted in the case law. However, these requirements 
vary depending on whether the person is a migrant 
worker, a frontier worker, a jobseeker, a student or a 
person who is not working for some other reason.

If the benefits to be granted are non-contributory, it may 
be considered acceptable for the national legislator to 
ensure that the claimant has actual ties with the 
competent Member State, thus striving to safeguard the 
economic balance of the national social security system. 
The fact that the claimant has been resident in the 
relevant Member State for a reasonable period of time 
can be used to ascertain the existence of such ties.

Conclusions

No clear-cut conclusions can be given on the question of 
which issues are within the scope of Finland’s national 
social security legislation and which are solely within the 
scope of EU legislation. This is due to the evolving nature 
of the EU legislation and the active argumentation of the 
Court of Justice. The right to equal treatment and not 
losing entitlement to benefits when a person exercises 
his or her right to freedom of movement safeguarded in 
EU law is a fundamental right enshrined in the Treaty. 
The Member States’ possibilities of sharing responsibility 
for implementing this right fairly is above all based on 
EU legislation. However, it is to some extent possible to 
set conditions in national legislation for such rights as 
being insured or being granted and paid benefits. In 
addition, national legislation may in certain situations lay 
down provisions on the adjustment of benefit amounts 
to prevent overlapping. In order to make full use of 
these possibilities, the current analysis should be 
extended.

The question of the relationship between EU law and 
national legislation is open to interpretation. The issue 
has been further clarified by the recent judgement of the 
Court of Justice of the European Union in case C-333/13, 
Dano.

Contact
Riitta Länsisyrjä; riitta.lansisyrja@eduskunta.fi

17 

European Union law – Articles

European Union
law
Cases

18

access to documents requests it has dealt with up to 
now in relation to TTIP? (b) Could the Commission 
explain whether it has a policy of sharing certain 
negotiating documents selectively with privileged 
stakeholders? The Commission also responded to the 
suggestions put forward by the Ombudsman in relation 
to (i) publishing certain documents on the Commission’s 
website; (ii) establishing a public register of TTIP 
documents; (iii) ensuring that it can deal with documents 
from third parties in a transparent way; (iv) publishing 
online lists of meetings with stakeholders; and 
(v) reinforcing the measures it has taken in relation to 
confidential TTIP documents.

In brief, the Commission confirmed that it would:
 • Publish and regularly update a list of TTIP documents 
shared with the Parliament and Council’s trade policy 
committee and come back in 2015 to the issue of 
publishing on-line TTIP related documents released 
pursuant to access to document requests.
 • Start asking organisations, which provide written 
papers to the Commissioner responsible for TTIP, 
whether they agree to the publication of documents 
either as delivered or in a non-confidential version.
 • Publish information on all meetings held by Members 
of the Commission, cabinet members, or Directors-
General with organisations and self-employed individuals 
on issues relating to policy-making and implementation 
in the Union5.
 • Review arrangements for access by the EU institutions 
to trade policy-related information and documents.

The Commission also announced that it is ready to 
examine whether these steps could be extended over 
time to other negotiations.

The Ombudsman welcomed these steps. With a view to 
promoting greater transparency and public participation, 
the Ombudsman made a range of further suggestions to 
the Commission, notably in relation to the proactive 
publication of documents and information. The 
Ombudsman’s decision in this case is available on her 
website.

Contact
Rosita Agnew; rosita.agnew@ombudsman.europa.eu

European Ombudsman

Promoting greater transparency 
in relation to TTIP

In July 2014, the European Ombudsman opened an 
own-initiative inquiry concerning the steps taken, and 
foreseen, by the European Commission to ensure 
transparency and public participation in relation to the 
Transatlantic Trade and Investment Partnership (TTIP) 
negotiations. The Commission is currently negotiating 
this agreement on behalf of the European Union, on the 
basis of a mandate granted by the Council of the EU. If 
agreed, the deal will reputedly be the biggest bilateral 
free trade agreement in history and will shape future 
rules and standards in areas such as food safety, cars, 
chemicals, pharmaceuticals, energy, the environment 
and the workplace.

In her letter to the Commission requesting an opinion in 
this inquiry4, the Ombudsman noted that the 
Commission had, in line with suggestions made by the 
European Parliament, made real efforts to enhance the 
transparency of the TTIP negotiating process and to 
promote public participation. It had, among other 
things, produced lists of relevant meetings in relation to 
TTIP and released many relevant documents. At the same 
time, there were delays in replying to some requests for 
public access to documents relating to TTIP. Concerns 
were also raised about privileged access being given to 
certain external stakeholders and to the unauthorised 
disclosure of documents.

The Ombudsman underlined, in her letter to the 
Commission, that a proactive approach to transparency 
could enhance the legitimacy of the negotiating process 
in the eyes of citizens. With this in mind, the 
Ombudsman made a range of suggestions to the 
Commission to encourage the proactive publication of 
documents and the making available of information in 
relation to meetings.

In the course of the inquiry, the Ombudsman conducted 
a public consultation inviting ideas to help the 
Commission make the talks more transparent and 
accessible to the public. In response to the public 
consultation, the Ombudsman received over 300 replies 
to the dedicated TTIP email address and more than 
6 000 emails in total, including questions, complaints 
and comments. The report on that public consultation, 
which outlines many suggestions made by interested 
third parties to enhance TTIP transparency and public 
participation, can be found on the Ombudsman’s 
website.

In its opinion, which is also available on the 
Ombudsman’s website, the Commission responded to 
the two questions posed by the Ombudsman, namely: 
(a) What learning has the Commission achieved from the 

This document, along with the other documents relating to this inquiry, are 

4 
available on the Ombudsman’s website at: http://www.ombudsman.europa.eu/
en/cases/caseopened.faces/en/54631/html.bookmark

As decided by the Commission on 25 November 2014. See C(2014) 9051 

5 
and C (2014) 9048.

19 

European Union law – Cases

A few months later, in November 2014, the ECB 
informed the Ombudsman that, to honour its previous 
commitment, it had decided to release the Letter 
together with three other letters that were part of the 
correspondence between the ECB and the Irish 
authorities.

The Ombudsman welcomed the ECB’s decision to 
disclose the Letter and its willingness to work 
constructively with her with a view to improving its 
policies and practices in the area of transparency. 
Disclosure of the Letter was also welcomed by the press 
and generated discussions about whether Ireland was 
forced or not into the bailout.

Contact
Christina Karakosta; 
christina.karakosta@ombudsman.europa.eu

The European Central Bank discloses 
the famous Trichet letter

Back in 2010, at the height of the financial crisis and just 
before Ireland entered the EU’s bailout programme, Jean 
Claude Trichet, the then President of the European 
Central Bank (ECB), sent a letter to the former Irish 
Minister for Finance, Brian Lenihan, calling on the Irish 
government to take swift action to protect the stability 
of the Irish financial system.

In late 2011, an Irish journalist requested public access 
to the Letter, which had been long suspected to have 
put undue pressure on the Irish government to enter the 
bailout6. The ECB refused to disclose the Letter and the 
journalist turned to the European Ombudsman.

The Ombudsman opened an investigation and inspected 
the Letter at the premises of the ECB in Frankfurt. In 
December 2013, she made a proposal for a friendly 
solution. While she agreed with the ECB that disclosing 
the letter at the time the journalist requested access, in 
2011, would have jeopardised the interests of Ireland 
and its financial sector, she invited the ECB to consider 
disclosing the Letter in light of recent developments. In 
particular, she referred to the fact that more than three 
years had passed since the Letter was sent as well as to 
the subsequent changes in the monetary and economic 
conditions of the Eurozone.

The ECB put the matter before its Governing Council7. In 
March 2014, the Governing Council rejected the 
Ombudsman’s proposal. It took the view that the 
protection of the public interest as regards monetary 
policy in the European Union and financial stability in 
Ireland continued to justify confidentiality. It nevertheless 
promised to reassess the situation once the conditions of 
the Eurozone were different.

The Ombudsman was unconvinced by this approach. She 
regretted that the Governing Council of the ECB had 
wasted an opportunity to apply the principle that, in a 
democracy, transparency should be the rule and secrecy 
the exception. However, in light of her previous 
conclusion that the ECB was entitled to refuse access to 
the Letter at the time of the complainant’s request, she 
decided to close the case without taking any further 
action. She nevertheless took note of the Governing 
Council’s commitment to re-evaluate disclosure of the 
Letter in the future and invited the ECB to take into 
account her views and give greater weight to the public 
interest in transparency and accountability.

Requests for access to documents to the ECB are governed by the Decision 

6 
of the European Central Bank of 4 March 2004 on public access to European 
Central Bank documents 2004/258/EC, OJ 2004 L 80, p. 42, as amended by 
Decision ECB/2011/6 of 9 May 2011, OJ 2011 L 158, p. 37.

The Governing Council is the main decision-making body of the ECB. It 

7 
consists of the six members of the Executive Board, plus the governors of the 
national central banks of the 18 euro area countries.

20

In general, the Belgian tax authority has been content to 
refer citizens back to the foreign seller or supplier to 
rectify the VAT charged, without providing them with 
any information or assistance.

If the foreign supplier was reluctant to reimburse the 
VAT, the Belgian client had no other choice than to begin 
legal proceedings or to accept the outcome. 

The federal Ombudsman requested the Belgian tax 
authorities to provide its citizens with a remedy when 
they are confronted with double taxation of VAT. 

From now on, the authority:
 • shall inform citizens of all the steps that can be taken 
to recuperate VAT unduly charged in another Member 
State; 
 •
federal Ombudsman or to the SOLVIT centre.

in the absence of a solution, shall direct them to the 

Depending on the case, the federal Ombudsman can 
request that the Belgian tax authority reviews its own 
position or makes contact with the foreign tax 
authorities to remove the double taxation. If the 
situation so requires, it can appeal to its European 
colleague in the other Member State, as it did for the 
farmer who bought a tractor in France. 

Without a Community mechanism to resolve cases of 
double taxation, achieving the objectives of the common 
system of VAT is the responsibility of the public 
authorities in each Member State. Consequently, they 
must resolve these cases bilaterally. For as long as they 
fail to do this, citizens faced with double taxation can 
turn to their national ombudsman to find a solution, if 
necessary with the help of the ombudsman in the other 
Member State.

Contact
Pierre Charlot; pierre.charlot@federaalombudsman.be

Belgium

Ombudsmen and double VAT taxation 

While harmonisation of the VAT taxation system in the 
European Union has seen significant progress in the past 
few years, there are still many cases of double taxation. 
They frequently relate to the purchase of vehicles. 

Double taxation goes against the European spirit. 
However, there is no Community mechanism to settle 
these types of disputes. In the absence of a solution, it is 
the citizens who are paying the price.

This was the case for a Belgian farmer who appealed to 
the federal Ombudsman to resolve the problem of 
double taxation.

In 2010, the farmer went to France and bought a used 
tractor. The invoice included French VAT. On his return to 
Belgium, when the vehicle was going through customs 
clearance, the Belgian authorities also claimed a VAT 
payment from him. 

The French and Belgian states do not have the same 
interpretation of the VAT Directive8. The French tax 
authority believed that the purchase was taxable in 
France. The Belgian authorities contested this. Despite 
different contacts made at the federal Ombudsman’s 
invitation, the two authorities maintained their 
respective arguments. The Belgian farmer found himself 
confronted with the contradictory positions of the two 
authorities, one of which came from outside his country. 

In this context, cooperation between the ombudsmen of 
the two Member States could resolve the matter. 

Convinced of the soundness of the Belgian tax 
authority’s arguments, the federal Ombudsman 
requested that the French “Défenseur des droits” (Rights 
Defender) intervene with the French tax authority. The 
intervention of the Defender convinced the French 
administration that it needed to re-examine its position. 
It concluded that the purchase of the tractor should 
actually have only been taxed in Belgium, the State of 
arrival of the goods. 

The Belgian farmer thus received, nearly four years after 
the purchase, a reimbursement of the French VAT which 
he was wrongly charged. 

The federal Ombudsman is regularly contacted by 
citizens, consumers or traders subject to VAT who have 
suffered from double VAT taxation. 

two national authorities interpreting the VAT directives 

These situations originate from:
 •
differently, as was the case for the Belgian farmer; 
 • obstacles hindering or preventing the recovery of VAT 
which has been unduly imposed by a foreign supplier. 

Council Directive 2006/112/EC of 28 November 2006 on the common 

8 
system of value added tax.

21 

European Union law – Cases

Estonia

The payment of family support allowances 
in cross-border social security cases within 
the European Union 

A petitioner contacted the Chancellor of Justice with her 
concerns regarding unpaid family support allowance. In 
her petition, the petitioner explained that her husband 
had been employed as a seafarer on a vessel that was first 
flying the flag of Germany, then that of Luxembourg and, at 
the time that the petition was made, that of Liberia. At first, 
the family received social welfare from Germany, but by the 
time of the petitioner’s submission, the payment of support 
had ceased. The family had not received any social 
welfare from Luxembourg either.

According to the explanations given by the Estonian 
National Social Insurance Board, full family allowances 
had been awarded by Germany and paid to the applicant 
from 01.04.2012, and therefore payment of family 
welfare allowance was stopped in Estonia. The petitioner 
contacted the Estonian National Insurance Board at the 
beginning of 2014 and informed them that the father of 
the children had ended his employment relationship in 
Germany and had started working in Luxembourg. The 
petitioner said that Germany had paid family welfare 
allowance until 30.11.2013. As the petitioner had 
contacted the Estonian National Social Insurance Board 
to raise the issue of the termination of welfare payments 
from Germany, the Board had sent various requests for 
information to the competent authorities in Germany 
and Luxembourg on 31.01.2014, 03.04.2014, and 
30.06.2014, so that it could be informed about the 
employment relationship of the father of the children 
and about the family welfare allowance that had been 
paid abroad. Allegedly, the competent authorities of 
Luxembourg and Germany failed to respond to the 
requests. Therefore the Estonian National Social 
Insurance Board decided not to pay social welfare to the 
petitioner in Estonia.

In addition, the Estonian National Social Insurance Board 
explained to the Chancellor of Justice that obtaining 
information from another competent authority in 
another Member State of the European Union could take 
between a single month to a full year. There may also be 
cases in which repeated requests have to be sent due to 
the fact that the information initially received from 
another Member State is not sufficient for a decision to 
be made on the payment of a family welfare allowance 
in Estonia. According to the explanations given by the 
Estonian National Social Insurance Board, 
communications with other competent authorities is 
carried out through communication forms that are sent 
out via registered post.

In order to speed up the proceedings and to find a 
solution for the petitioner’s problem, the adviser to the 
Chancellor of Justice communicated with the adviser to 
the Ombudsman of Luxembourg, who in turn contacted 
the competent authority in Luxembourg. According to 
information received from Luxembourg, the 
communication forms that were issued by the Estonian 
National Social Insurance Board had been sent to the 
wrong address, due to which fact the competent 
authority in Luxembourg could not respond to them 
within a reasonable period of time. As a result of 
communicating with the competent authority in 
Luxembourg, confirmation regarding the payment of 
family welfare allowance to the petitioner was sent from 
Luxembourg to the Estonian National Social Insurance 
Board. Thereafter, the Estonian National Social Insurance 
Board took the decision on 01.06.2014 to restore the 
payment of child support, which recommenced from 
12.08.2014, and disabled child allowance, which 
recommenced from 26.08.2014.

In this case, the main issue for the Estonian Chancellor 
of Justice is whether the Estonian National Social 
Insurance Board observed good administrative practice 
and the principle of ensuring fundamental rights and 
liberties, in leaving a person without family welfare 
allowance for a period that was longer than six months 
due to the fact that the information exchange between 
the competent authorities of two Member States was 
slow.

The principle of good administrative practice arises from 
Section 14 of the Constitution of the Republic of Estonia 
as well as from Article 4 of the Charter of Fundamental 
Rights of the European Union. Among other aspects, 
good administrative practice includes the requirement of 
a reasonable amount of time for processing, which must 
also be followed for cross-border social security cases, in 
which case the competent authorities must rely on the 
Regulation of the European Parliament and of the 
Council on the coordination of social security systems 
(the ‘Basic Regulation’),9 and its implementing regulation 
(the ‘Implementing Regulation’),10 which regulates social 
security for persons who are working in another Member 
State of the European Union. 

These regulations have been drawn up with regard to 
the principle of free movement of employees which is 
applicable within the European Union,11 and the purpose 
of the regulations is to ensure the free movement and 
equal treatment of individuals so that the rights of those 

Regulation (EC) No. 883/2004 of the European Parliament and of the 

9 
Council of 29 April 2004 on the coordination of social security systems, 
OJ 30.04.2004, L 166.

10  Regulation (EC) No. 987/2009 of the European Parliament and of the 
Council of 16 September 2009 laying down the procedure for implementing 
Regulation (EC) No. 883/2004 on the coordination of social security systems, 
OJ 30.10.2009, L 284.

11  The European Court of Justice has repeatedly emphasised the importance of 
coordinating rules to ensure the freedom of movement, and has explained that 
the said rules must be interpreted in the light of favouring free movement of 
employees. See F. Pennings, M. Weerepas. Towards a convergence of 
coordination in social security and tax law? EC Tax Review, 2006, pp 216 with 
references to decisions of the Court.

22

competent officials can communicate with the officials 
of other Member States by e-mail to obtain information 
as to why an official response has been delayed, or to 
request more detailed clarification. Furthermore, 
cooperation could be improved by telephone 
communication, in which case the protection of personal 
details must be taken into account, but the use of such a 
means of communication could solve issues related to 
cooperation between authorities (such as to discover 
why communications have been delayed and when a 
response could be expected).

Due to the above, the Chancellor of Justice found that 
the Estonian National Social Insurance Board failed to 
follow the principles of good administration and to 
ensure fundamental rights and liberties when processing 
the petition by the individual concerned. As the 
petitioner’s problem was solved during processing, the 
Chancellor of Justice has requested that the Social 
Insurance Board apologise to the petitioner for the 
difficulties that were caused by their failure to pay family 
welfare allowance. 

Contact
Kertti Pilvik; kertti.pilvik@oiguskantsler.ee

individuals and their family members who are moving 
within the borders of the Community are protected. The 
Implementing Regulation emphasises the importance of 
the coordinating rules, providing that closer and more 
effective cooperation between the authorities of the 
Member States is a key factor in allowing those persons 
who are covered by the Basic Regulation to access their 
rights as quickly as possible and under optimum 
conditions (Article 2 of the Preamble).

Keeping the said aims in mind, the competent authorities 
must ensure the efficient protection of the rights of 
persons. Article 2(1) of the Implementing Regulation 
stipulates in relation to communications between the 
competent authorities that exchanges between Member 
States’ authorities shall be based on the principles of 
public service, efficiency, active assistance, rapid delivery, 
and accessibility, including electronic access. Pursuant to 
Article 2(2), the institutions shall without delay provide 
or exchange all data necessary for establishing and 
determining the rights and obligations of persons to 
whom the Basic Regulation applies.

Generally, information is exchanged between the 
competent authorities of Member States via the 
communication forms drawn up by the Administrative 
Commission for the Coordination of Social Security 
Systems working at the European Commission. These 
forms, sent out by post and used for official 
communications, certainly play a significant role in the 
exchange of important information between the 
competent authorities of Member States, but they 
cannot be considered as being the only means of 
facilitating cooperation and communication between the 
authorities. The authorities of Member States may 
communicate in other formats.12 Keeping in mind both 
the purpose of the regulations and good administrative 
practice, the competent authorities should find the most 
efficient ways of communicating with other Member 
States, thereby ensuring that they achieve their results 
within a reasonable period of time.13 Furthermore, 
Article 9 of the Implementing Regulation gives Member 
States or their competent authorities the option to 
agree, if necessary, on procedure rules, provided that 
such procedures do not adversely affect the rights or 
obligations of the persons concerned.14 

Therefore, the regulations do not prescribe the format 
for communications between authorities, and the Social 
Insurance Board can arrange for communications with 
the authorities of other Member States via means other 
than by post in the case of official information requests. 
For example, in the case of replies being delayed, 

12  The Administrative Commission has also recognised the possibility and 
necessity of communication via e-mail or fax for cross-border social security 
cases. See Administrative Commission for the Coordination of Social Security 
Systems 12.06.2009 decision no A1, Art. 8.

13  The preamble of the Implementing Regulation establishes that electronic 
communication is suitable for operative and reliable exchanges between Member 
States, which in turn facilitate speeding up the processing (Art. 3).

14  Pursuant to Art. 9(2) of the Implementing Regulation, any agreements 
concluded to this end shall be notified to the Administrative Commission and 
annexed to the Implementing Regulation.

23 

European Union law – Cases

Greece

Removing obstacles to the exercise of 
a number of professions

The exercise of the veterinary profession on 
a voluntary and temporary basis in Greece

One of the basic objectives of the 1st Memorandum of 
Economic and Financial Policies between Greece, the 
members of the euro area and the International 
Monetary Fund is to enhance the operation of free 
competition. In order to achieve this objective, Law 
3919/201115 entered into force in July 2011.

The provisions of this law eliminate unjustified 
restrictions on access to and the exercise of a number of 
professions, and also simplify the administrative process 
of examining the required qualifications for the exercise 
of specific professional activities. 

Unjustified restrictions are considered as those 
restrictions that are listed exhaustively in the provisions 
of Article 2(2) of Law 3919/2011, such as: the existence, 
by virtue of a provision of the law, of a limited number 
of persons who are entitled to exercise a particular 
profession either throughout the country or in a specific 
geographic district; the reliance on the issuance of 
administrative permits on the assessment by the relevant 
administrative authority of the actual need for the 
relevant profession; the imposing of minimum distances 
between the establishments of persons exercising the 
same profession; the imposing of compulsory minimum 
rates or fees for the sale of goods or provision of 
services, etc.

As a part of simplifying the administrative procedure, 
efforts were made to ensure that licensing requirements 
are not stricter than necessary in order to ensure the 
quality of the services provided and the protection of 
consumers. 

Based on the above position, the provisions of Law 
3919/2011 state that, in cases where the issuance of 
administrative permits depends solely and exclusively on 
the competent administrative authority’s assessment of 
whether a person meets the necessary requirements to 
practice a profession, administrative permits will be 
abolished and replaced by the system of announcing the 
exercise of a profession. 

In particular, interested parties must submit to the 
competent authority the required supporting documents, 
such as a degree/diploma, criminal record certificate, 
etc., and the competent department must then issue a 
certificate of acceptance of the announcement within 
three months from the filing of the application. If an 
application is not rejected due to the lack of the required 

15  Law 3919/11 (Government Gazette 32 A/2-3-2011) “on the principle of 
professional freedom and eliminating unjustified restrictions on access to and 
pursuit of professions”.

qualifications within this three-month period, the 
profession may be exercised freely. 

It should be noted that the licensing system has not 
been entirely abolished, but continues to exist for a 
limited number of professions for which the issuance of 
a licence to practise the relevant profession is required 
for reasons of public interest.

However, despite the abolition of the licensing system 
for a large number of professional activities, there are 
still obstacles to the exercise of professions, on the one 
hand due to the existence of regulatory frameworks that 
have been set in place in order to protect sectional 
interests, and on the other hand due to the 
‘protectionist’ mentality that governs the competent 
departments.

An example of this is the case of a foreign veterinarian who 
requested that the Geotechnical Chamber of Greece 
(GEOTEE)16 issue him a certificate in order to exercise the 
veterinary profession in Greece as a volunteer, on a 
temporary and occasional basis. 

The temporary and occasional exercise in Greece of the 
veterinary profession by nationals of member states who 
legally practise the profession in other member states is 
regulated by the provisions of Ministerial Decision 
165261/201017. This decision has been issued in 
implementation of the relevant provisions of Directive 
2005/36/EC18.

This decision states, inter alia, that in order to 
temporarily exercise the veterinary profession, interested 
parties must submit to GEOTEE a written declaration 
accompanied by all the required supporting documents. 
GEOTEE must then issue to the service provider – within 
seven days – a certificate certifying that s/he meets the 
requirements to provide the service in question. 

When the Dutch veterinarian requested that GEOTEE 
issue a certificate for the temporary and occasional 
provision of veterinary services on a voluntary basis, 
having submitted the supporting documents required by 
the provisions of the aforementioned Ministerial 
Decision, the Chamber refused to grant him his request 
and asked that he submit a certified certificate proving 
that he has good knowledge of the Greek language. 

Being unable to meet the above requirement, the Dutch 
veterinarian requested the intervention of the Greek 
Ombudsman in order for his application to be accepted. 

16  GEOTEE is a Legal Entity governed by Public Law. It is the competent 
professional body for submitting announcements regarding the exercise of 
geotechnical professions (agronomists, foresters, veterinarians, geologists, 
ichthyologists).

17  Decision No 165261/ΙΑ/10 (Government Gazette 2157 Β/31-12-2010) “on 
the free provision of services in Greece by professionals who are nationals of 
European Union member states, in accordance with the provisions of Articles 5 
to 9 of Presidential Decree 38/2010” (the harmonisation of Greek legislation with 
the provisions of Directive 2005/36/EC was achieved through Presidential Decree 
38/2010).

18  Directive 2005/36/EC of the European Parliament and of the Council of 
7 September 2005 “on the recognition of professional qualifications”.

24

In response to the aforementioned individual’s request, 
the Greek Ombudsman sent a letter to GEOTEE 
requesting that the applicant’s request be granted, 
pointing out that the submission of the aforesaid 
supporting document is not required by the provisions 
of the above-mentioned Joint Ministerial Decision. 

Nevertheless, GEOTEE left the applicant’s request pending. 
Subsequently, Law 4039/201219 was issued, which regulates 
the particular issue of voluntary work by foreign 
veterinarians, as was the number 63/2013 opinion of the 
Greek State Legal Council20.

Based on the aforementioned opinion, the obligation to 
furnish a language certificate as a requirement for the 
issuance of a certificate for the temporary and 
occasional provision of services to foreign volunteer 
veterinarians does not result from the application 
mutatis mutandis of the provisions of Directive 
2005/36/EC to the provisions of Law 4039/2012. 
However, it was determined that volunteer veterinarians 
are solely and exclusively permitted to perform 
sterilisation and marking procedures, since the 
aforementioned law only allows for those specific 
procedures. 

In view of the above developments, the Greek 
Ombudsman once again requested that the application 
of the aforementioned veterinarian be accepted without 
having to submit a certificate indicating good knowledge 
of the Greek language.

GEOTEE notified the Greek Ombudsman that it will grant 
the applicant’s request and issue him and other foreign 
volunteer veterinarians a certificate for the temporary 
and occasional provision of veterinary services, as set out 
in the provisions of Directive 2005/36/EC, however only 
for the performance of sterilisation and marking 
procedures. 

Furthermore, it pointed out that interested parties must 
additionally submit the supporting documents set out in 
the provisions of Directive 2005/36/EC and Joint 
Ministerial Decision 165261/2010, including the exact 
address of their place of stay in Greece, so that the 
Chamber may conduct controls in order to establish 
whether the foreign veterinarians comply with the 
professional rules governing the exercise of the 
veterinary profession in Greece. 

Contact
Isabella Monioudi-Pikrou; monioudi@synigoros.gr

19  Law 4039/12 (Government Gazette 15 Α/2-2-2012) “on pets and stray 
animals, and the protection of animals against being exploited or used for profit”

20  The Greek State Legal Council is the administrative body responsible for the 
legal support of the State.

25 

European Union law – Cases

The work  
of ombudsmen 
and  
similar bodies

26

general and outdated criteria, such as intellectual 
disability and mental illness, without taking into account 
the specificities of the different disorders and conditions 
and the level of disability. Rather than depriving such 
people of legal capacity, to a different extent, and 
having someone else take decisions concerning their 
everyday life, protection should entail appropriate means 
to facilitate and support the persons concerned in taking 
decisions and legal action independently”. In addition to 
this definitive stance, Konstantin Penchev proceeded to 
say that such a limitation of the rights of persons with 
mental disabilities violated a number of provisions of the 
Convention. Some of the general principles underlying 
the Convention include: respect for inherent dignity; 
individual autonomy including the freedom to make 
one’s own choices, and independence of persons; as 
well as full and effective participation and inclusion in 
society. The contested provisions contradict these 
principles. Furthermore, by having having such 
legislation in place, the Republic of Bulgaria fails to fulfil 
its obligations under Article 4(1) of the Convention to 
take all appropriate measures to ensure and promote the 
full realization of all human rights and fundamental 
freedoms for all persons with disabilities without 
discrimination of any kind on the basis of disability. 
Finally, the contested provisions are absolutely 
inconsistent with Article 12(2) of the Convention, which 
requires that States Parties shall recognize that persons 
with disabilities enjoy legal capacity on an equal basis 
with others in all aspects of life.

By Judgment No. 12 of 17 July 2014 in constitutional 
case No. 10/2014, the Constitutional Court rejected the 
Ombudsman’s application. In its grounds, however, the 
CC stated: 

“The applicable legislation does not reflect the 
requirements laid down in the Convention on the Rights 
of Persons with Disabilities for the limitations on such 
persons to be proportional to their circumstances, to 
apply for the shortest time possible, and to be subject to 
regular review by an independent authority.

The imperfections of the overall legislative regulation 
governing the consequences of incapacitation do not 
result from the two contested provisions only. Aligning 
Bulgarian law with the Convention on the Rights of 
Persons with Disabilities cannot be achieved by not 
applying the provisions at issue. The protection of 
people with mental disabilities falls within the 
competence of the National Assembly, which needs to 
adopt the necessary legislation on the arrangements 
concerning incapacitation.

Declaring the contested provisions of the PFA to be 
unconstitutional will not solve a single problem 
concerning the rights of incapacitated persons. 
Moreover, it will cause a significant gap in the legal 
arrangements for those people, result in cancelling the 
special protection that the law grants to incapacitated 
persons in line with the Constitution, and undermine the 
body of legal norms for placing a person under full 
judicial interdictions.”

Bulgaria

The UN Convention on the Rights of 
Persons with Disabilities and the Bulgarian 
Persons and Family Act

The Persons and Family Act (PFA) was adopted in 1949. 
Its only amendment, which concerned Article 5 PFA, was 
made in 1953, when the Republic of Bulgaria was under 
a totaritarian regime and people with mental disabilities 
were not considered worthy members of the socialist 
society. At present, social relations in Bulgaria are 
radically different – a new Constitution is in force and it 
provides that all people are born free and equal in 
dignity and rights (see Article 6(1); Bulgaria is now a 
European Union Member State and a state party to a 
number of international human rights treaties, including 
the Convention on the Rights of Persons with Disabilities. 
Following his recommendations made in previous annual 
reports to Parliament concerning the outdated legislative 
framework, in 2014, the National Ombudsman requested 
that the Constitutional Court (CC) declare the 
unconstitutionality of Article 5(1) regarding the phrase 
“and shall become incapacitated” as well as of 
Article 5(3) of the Persons and Family Act (PFA) on 
account of their violating citizens’ rights. The contested 
provisions concern the status of persons under judicial 
interdiction. Pursuant to Article 5(1) PFA, minors and 
adults who are incapable of taking care of their affairs 
due to intellectual disability or mental illness shall be 
placed under full judicial interdiction and shall become 
incapacitated. And, paragraph 3 requires that legal 
actions of persons under full judicial interdiction be 
governed by the arrangements applicable to minors, 
while legal actions of persons under limited judicial 
interdiction be governed by the arrangements applicable 
to underage persons. In his application, the Ombudsman 
explained that the legislation at issue contradicted the 
Constitution of the Republic of Bulgaria (CRB) and the 
Convention on the Rights of Persons with Disabilities 
(“the Convention”) and went on to say: “I find these 
provisions of the PFA to be unconstitutional and 
unacceptable in the legislation of a state based on the 
rule of law.” According to Article 4(2) CRB, the Republic 
of Bulgaria shall guarantee the life, dignity, and rights of 
the individual and shall create conditions conducive to 
the free development of the individual and of civil 
society. Yet, the contested provisions of the PFA, which 
deprive persons of their legal capacity or significantly 
restrict it, contradict the said constitutional guarantees. 
The only limitation of the rights of persons under judicial 
interdiction which the Constitution stipulates is related 
to the exercise of active suffrage and passive suffrage 
(see Article 42(1) and Article 65(1) CRB). According to 
the Ombudsman, fully depriving adults of their legal 
capacity by virtue of a general legal provision, as laid 
down in Article 5(1) PFA, is incompatible with the 
Bulgarian Constitution. “What’s more, Article 51(3) CRB 
provides that persons with physical or mental disabilities 
shall be under special protection ensured by the State. It 
is unacceptable for this protection to entail deprivation 
or significant limitation of legal capacity on the basis of 

27 

The work of ombudsmen and similar bodies

The Ministry of Justice is currently working on a draft act 
intended to regulate the status of the persons concerned 
in line with Bulgaria’s international human rights 
commitments.

Contact
Nadya Milkovska; nmilkovska@ombudsman.bg

Czech Republic

Muslim headscarves at a secondary 
medical school

The Public Defender of Rights (Ombudsman), Anna 
Šabatová, investigated a complaint brought by a refugee 
of Somali origin. She began to study nursing at a 
secondary medical school, but the school rules forbade 
the wearing of any headwear. The complainant 
abandoned her studies, because she is of the Muslim 
faith and wears the ‘hijab’ (a headscarf that does not 
cover the face). She contended that the general rule 
prohibiting the wearing of headwear was indirectly 
discriminatory, placing her at a disadvantage compared 
to others because the wearing of a Muslim headscarf is 
an outward expression of her religious beliefs. The 
complainant filed a complaint with the Czech School 
Inspectorate, which did not find any violation of the 
principle of equal treatment.

Following an investigation, the Ombudsman concluded 
that the secondary medical school had indirectly 
discriminated against the complainant, because, based 
on a neutrally formulated provision in the school rules, it 
had prevented her from wearing the Muslim headscarf, 
which is an outward expression of her religious beliefs. 
Within the context of theoretical teaching at a secondary 
medical school, provisions in the school rules that ban 
the wearing of any head covering, including the Muslim 
hijab headscarf, constitute indirect discrimination on the 
grounds of religious belief (Section 3 paragraph 1 of the 
Anti-discrimination Act (Act No. 198/2009 Coll.)). Such 
measures cannot be justified by a requirement to respect 
social behaviour, because compliance with social norms 
is not a legitimate aim within the meaning of Article 9 
paragraph 2 of the European Convention on Human 
Rights and Article 16 paragraph 4 of the Convention for 
the Protection of Human Rights and Fundamental 
Freedoms.

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28

 
 
 
 
 
 
 
 
 
 
totally automatic. For this reason, the Ombudsman 
recommended to the headmistress that it would be 
better if the school rules explicitly stated that the ban on 
wearing head coverings did not apply to religious 
symbols.

The headmistress did not respond to repeated requests 
for information as to whether she had submitted the 
proposed amendments to the school rules to the School 
Council, as set out in the recommendations. It was only 
discovered from statements the headmistress and her 
legal representatives made to the media that no such 
proposal was to be submitted. Given this situation, the 
Ombudsman will continue to address this matter with 
the Czech School Inspectorate. According to the 
information we have available, the complainant has not 
applied to the courts.

Contact
Iva Hrazdílková; hrazdilkova@ochrance.cz

The Czech legal system contains no legal restriction of 
religious symbols within the education system, or in 
public areas in general. This issue is regulated at a 
general level by the Anti-discrimination Act, which, 
under the provisions of Section 7, allows difference of 
treatment on the grounds of religion and belief if this is 
objectively justified by a legitimate aim and the means of 
achieving that aim are appropriate and necessary. If the 
condition of a legitimate aim is not met, the school head 
teacher is not only prevented from restricting the use of 
religious symbols through the school rules, but cannot 
even decide whether or not to allow the use of a 
religious symbol, as he/she has no authority under the 
law to make such a decision.

As concerns physical education and the teaching of 
vocational skills, the protection of health and safety can 
be considered to be a legitimate aim justifying 
limitations, but the Ombudsman is convinced that even 
in this case a general ban on the wearing of head 
coverings is not an appropriate and necessary means of 
achieving this. More moderate measures can be 
adopted, such as requiring a form of the Muslim 
headscarf worn when playing sports.

It is only in the case of nursing and medical practice that 
a Ministry of Health decree forbids the wearing of the 
hijab. However, given that it also lays down an 
obligation for hair to be covered by a cap, it can be 
assumed that the student would not have any problem 
complying with these requirements.

The Ombudsman also found that the Czech School 
Inspectorate had erred in proceeding unilaterally. It 
based its findings primarily on information provided by 
the secondary medical school and failed to deal with the 
contradictions contained therein. It agreed with the facts 
as described by the school representatives and never 
verified the information provided by the student or her 
legal representative. However, the case file shows that 
the headmistress asked the complainant to remove her 
Muslim headscarf and, as a result, the complainant 
signed a form terminating her studies. Although it 
accepted that the school rules did not allow for the 
option of requesting an exemption from the general 
provisions of the school rules, it found that it would be 
possible for an exception to be made. The investigation’s 
conclusion that the student’s complaint was unfounded 
and that the headmistress had no possibility of 
breaching the principle of equal treatment were 
therefore found to be unjustified.

Following on from the investigation by the Czech School 
Inspectorate, the School Council approved a new text of 
the school rules which, although it still imposes a ban on 
wearing head coverings in school, extends the 
possibilities of exemption inter alia for religious reasons. 
The Ombudsman commended this step, but at the same 
time pointed out to the headmistress that even in this 
form the school rules still did not comply with the 
legislation because the headmistress is not authorised by 
law to decide on exemptions to the dress code in 
accordance with the religious beliefs of the students. In 
cases where the headwear is an outward expression of 
religious beliefs, the exception to that rule must be 

29 

The work of ombudsmen and similar bodies

Ombudsman of the State Police with any concerns in 
connection with the work of the police. This requires 
cooperative dialogue with those concerned in order to 
find a mutual settlement to the matter. On the basis of 
what is now 40 years of successful experience of the 
Ombudsman being a mediator between citizens and the 
administration, it has been entrusted with this additional 
task.

The practices at the Ombudsman of the State Police lead 
to more transparency in police matters. It increases the 
chances of solving future conflicts not by disputes but 
instead through cooperative communication between 
those involved. This should increase the mutual 
understanding for the point of view of the opposing 
side.

Since the law entered into effect, 23 cases have so far 
been sent to the Ombudsman of the State Police, 17 of 
which were complaints from citizens and six were 
petitions from police officers. By comparison, between 
2011 and 2013, a total of 16 or 17 petitions relating to 
the police were registered with the Ombudsman each 
year; in 2010 there were 20. Together with the 
11 petitions regarding the police from 2014 prior to the 
law being amended, a noticeable increase in the number 
of petitions may therefore be observed already. 

Petitions and complaints come from citizens, who 
complain about police behaviour or certain police 
measures, as well as from police officers themselves, 
who address problems from their everyday work. The 
complaints from citizens relate to police measures, such 
as road checks or identity checks, the handling of 
criminal complaints, a police operation in connection 
with a football match, the collecting of fees for policing, 
and policing in a ‘troubled district’ which, in the citizen’s 
view, was insufficient. Police officers have turned to the 
Ombudsman of the State Police because of problems 
with superiors, in connection with job advertisements 
and promotions, as well as in one case because of the 
refusal to extend the period of service beyond the 
standard age of retirement.

Germany

Ombudsman of the State 
of Rhineland-Palatinate 
First parliamentary Police Ombudsman 
has been in office for 100 days

For 100 days, the Ombudsman of Rhineland-Palatinate, 
Dieter Burgard, has also been the Ombudsman of the 
State Police. During this period, 17 complaints from 
citizens and six petitions from police officers have been 
brought to his attention. This is already more cases 
involving the police than the number of comparable 
petitions previously handled by the Ombudsman in a 
whole year.

As a personal contact person, Dieter Burgard is giving a 
face to this new job and declares: “Already at this stage, 
it can be seen that by creating the Ombudsman of the 
State Police, the access threshold to support in the case 
of problems with and within the police has been 
lowered. Those concerned have greater confidence in 
bringing certain procedures connected with the police 
up for discussion. The legislative aim of providing more 
transparency in police matters and resolving conflicts by 
means of cooperative communication is therefore 
already being achieved as shown by the increase in the 
number of cases.”

By creating the Ombudsman of the State Police, 
Rhineland-Palatinate is the first German federal state to 
have an independent parliamentary Ombudsman for 
issues connected to the work of the police. Citizens and 
police officers thus equally have direct access to a 
trusted person at the state parliament who, in work that 
is often the source of conflict for both sides, strives to 
balance interests in a transparent manner and to clarify 
the issue by working together. In a certain way, by 
establishing this ombudsman position, the state 
parliament is assuming responsibility for the state police.

Background

With the entering into effect of the amendment to the 
state law regarding the Ombudsman of Rhineland-
Palatinate, which was passed by the state parliament of 
Rhineland-Palatinate on 8 July 2014, the Ombudsman of 
Rhineland-Palatinate, Dieter Burgard, has also been 
Ombudsman of the State Police since 19 July 2014. On 
25 October 2014, he had occupied this additional 
position for 100 days. 

While other German federal states, such as Saxony-
Anhalt and Lower Saxony, have established offices for 
complaints regarding police issues as part of the ministry 
for internal affairs, which is responsible for the police, 
Rhineland-Palatinate chose the path of an independent 
parliamentary Ombudsman. As Ombudsman of the state 
parliament, he keeps an eye in particular on the interests 
of citizens in relation to the police, but also on the 
interests of the police itself. Both sides may approach the 

30

France

The French ‘Rights Defender’ (Défenseur 
des droits): identifying projects related to 
children’s rights 

On 20 November, France celebrated the 25th anniversary 
of the Convention on Children’s Rights. As part of its 
mission to defend children, this anniversary provided the 
institution with the opportunity to raise awareness of 
children’s rights and how they are put into practice. 

To mark this anniversary, a call for projects was launched 
by the Defender. From 20 May 2014 to 20 November 
2015, an operation to identify events independent of the 
Rights Defender was launched by the institution. 

All actors working in the field of children’s rights, 
including children and young people, are invited to 
submit their projects. This includes actions, support 
services, events aimed at children, adults, professionals 
or the general public, having a direct reference to the 
Convention on Children’s Rights whether in a general 
way or concerning one right specifically, preference 
being given to one of the 12 fundamental rights which 
the Defender wants to highlight.

The applications will be examined by an ad hoc 
committee, presided over by Geneviève Avenard, the 
‘Children’s Defender’ (Défenseure des Enfants). The 
winning initiatives will receive the Label of Support from 
the Rights Defender. A logo which has been created 
especially for the occasion will be available to use on 
their communication materials. In addition, the projects 
receiving the Label of Support will be published on our 
website to highlight what can be done in this field. 

To date, around sixty projects promoting children’s rights 
have received the Label of Support from the Rights 
Defender. 

Ombudsman of the State 
of Rhineland-Palatinate
40 years of the Ombudsman of 
Rhineland-Palatinate

Model for Germany has proven its worth

On 18 May 1974, the state parliament of Rhineland-
Palatinate created the office of Ombudsman, and in 
doing so was the first German federal state to create an 
institution which lent its support as a trusted person to 
citizens in dispute with public bodies.

So far, more than 118 000 people have approached the 
Ombudsman with their worries and concerns. This shows 
that this Office has proven its worth, and is highly 
regarded. The aim is to open up the possibility to citizens 
to address their right to petition to the parliament in a 
non-bureaucratic manner.

Ombudsman Dieter Burgard refers to his predecessors, 
Johannes Baptist Rösler, Walter Mallmann and Ullrich 
Galle, who stood for citizen-focused work for the benefit 
of citizens. This focus on citizens is represented 
especially by the consultation days throughout the state 
with over 400 personal discussions annually. The state 
parliament‘s right of control is implemented through the 
intensive work of the Ombudsman and the final 
consultation in the petitions committee.

The invitation to the celebrations from the President of 
the State Parliament, Joachim Mertes, and Dieter 
Burgard was accepted by 150 guests from regional 
politics, administrations and institutions, as well as 
ombudsmen from other German federal states and the 
wider region.

In the plenary hall, President of the State Parliament 
Joachim Mertes, Prime Minister Malu Dreyer and 
Committee Chairman Peter Wilhelm Dröscher 
acknowledged the story of 40 years of success. It shows 
how important the office of Ombudsman is to our 
society, active citizenship and greater transparency. What 
was initially taken over as an idea from Scandinavia is 
still a model for the whole of Germany. Baden-
Württemberg and Saxony are currently in the process of 
establishing an office of Ombudsman.

In her ceremonial address, the President of the European 
Ombudsman Institute Dr Burgi Volgger from South Tyrol 
highlighted the leading role of Rhineland-Palatinate in 
having the most modern right of petition compared with 
the rest of Europe.

Contact
Désirée Rausch;  
desiree.rausch@derbuergerbeauftragte.rlp.de

31 

The work of ombudsmen and similar bodies

All information can be found at the following link:  
http://www.defenseurdesdroits.fr/25anscde/index.html

Italy

Examples of projects receiving the Label of Support: 
http://www.defenseurdesdroits.fr/25anscde/projets_
labellises.html

Contact
Charlotte Clavreul; 
charlotte.clavreul@defenseurdesdroits.fr

32

The Di.As.Pro. (Digital Administration 
Program) experience on a regional and 
national level: the virtual office 

During 2013, the National Coordinator of Ombudsmen, 
Lucia Franchini, extended the use of the Di.As.Pro. 
(devised in Lombardy and then also adopted in Abruzzo, 
Tuscany and undergoing adoption in other Italian 
regions) to handle cases received by the national 
coordinator for the European Network of Ombudsmen 
and for users who live in regions that do not have their 
own Regional Ombudsman.

The Di.As.Pro. is a management tool that uses free 
software and allows the user to access and see 
developments concerning their own case, meeting in 
real time the officer who is handling their case and even 
commenting in real time on the answers received by the 
Ombudsman from other administrative services. It has 
completely digitised the procedures for the offices that 
use it and the coordinator. It can be integrated with 
digital signature systems.

It is available to all offices (even those of other 
colleagues in Europe) free of charge, with only the costs 
of installation (and translation of the commands into the 
respective languages) and with the only stipulation that 
the improvements and changes that each office makes 
to it are made available to the others.

The program enables the creation of personalised 
modules to be used to handle routine cases and 
integration with personalised letterhead paper formats. 
From within the program it is possible to handle the 
protocol and despatch letters by electronic mail and 
certified electronic mail (letters to be sent in paper 
format or by fax to users who do not have an email 
address must obviously be printed manually). It also 
allows the Ombudsman to check files remotely and in 
Tuscany it is also used via teleworking by one of the 
officers and even by one of the secretariat staff. The 
program provides personalised access screens for the 
officer in charge of investigations (showing the files 

about which correspondence has arrived and with a red 
mark against those where the deadline within which a 
reply was expected has expired). 

The program allows a high degree of transparency also 
as regards citizens: in fact it can produce real-time 
statistics on the activity of individual offices to be 
published online and also allows the user to access their 
own file with a personalised username and password, 
checking the progress made by the Ombudsman’s office 
and commenting in real time on any responses that the 
Ombudsman receives from the offices questioned, 
without waiting for them to be sent to him and allowing 
the Ombudsman to give any responses in real time whilst 
bearing in mind the user’s observations.

Moreover, the fact that the Ombudsmen’s offices of 
many regions use this program will allow the various 
databases to be shared, making the comparison, also as 
regards relations between regional offices, between the 
methods used to tackle similar cases much simpler and 
will make the job of the Ombudsman easier and provide 
a more constructive comparison. Indeed, the software 
allows the gathering and logical filing of documents of 
general interest that can be useful in identifying the 
solution to specific cases, also with reference to issues 
that have already been successfully concluded by other 
Ombudsmen.

Contact
Vittorio Gasparrini; network@difesacivicaitalia.it

The program is a workflow management application that 
allows citizens' requests to be managed remotely, thus 
making it possible at the case investigation stage for not 
only the Ombudsman’s Office of Tuscany to be involved, 
Tuscany being the current headquarters of the national 
coordinator, but also the officers of the Ombudsmen of 
all of the other regional offices that are about to join. 
Membership is made easier because increasingly more 
regional offices are using Di.As.Pro. or similar systems. 
This is enabling the coordinator to create a proper virtual 
office, which began to take on a tangible form in 2014 
(as illustrated by the slide below, taken from those 
presented by the liaison officer at the ninth seminar for 
liaison officers in April last year).

33 

The work of ombudsmen and similar bodies

Ombudsman of Lazio 

Continuous care to protect health 
and human dignity 

The report by the Network per la Non Autosufficienza 
(Non-self-sufficiency network), which the Istituto di 
Ricovero e Cura a Carattere Scientifico (INCRA – 
Scientific institute for research, hospitalisation and 
healthcare) of Ancona has supported and promoted 
since its inception in 2009, is now one of the rare 
initiatives aimed at restoring rightful social visibility to a 
crucially topical issue.

As clearly illustrated in the first chapter of the 4th Report 
on care of the non-self-sufficient elderly in Italy, the 
continuous care system in our country affects nearly 
5 million people, if we consider non-self-sufficient 
people, their families, the professional health and social 
care providers and private family carers who represent, 
in particular, the real mainstay of continuous care.

But in Italy the issue of non-self-sufficiency remains a 
veritable “ticking time bomb”.

As stated on several occasions, the widespread process 
of ageing of the population will not stop and, as also 
highlighted by the European Commission (Walker, 2011), 
the development policies in Europe will prove ineffective 
unless they take into account the obvious demographic 
dynamic and its consequences. It is by now well known 
that the Italian demographic scenario is one of the 
oldest on an international level (Herrmann et al., 2010), 
but more importantly we should be aware that the 
ageing population in the Italian regions will continue to 
grow for a long time yet and today we’re merely at the 
“halfway point”.

Although the new elderly will be increasingly more 
educated, competent and ready to engage in Italy’s 
social and economic life, it’s clear that the increase in 
age will be matched by an increase in the main age-
related diseases. 

The Italian system has traditionally compensated for the 
shortfalls in the provision of direct services with 
monetary transfer mechanisms. The cost of these 
transfers, particularly for assistance allowance, has 
therefore increased rapidly over the years, thus leaving 
unsolved the problem of all those non-self-sufficient 
people, suffering from chronic diseases and requiring 
continuous health care.

A citizen who sent the Ombudsman of Lazio a request 
for action to prevent her husband from being discharged 
from the rehabilitation clinic where he is currently 
hospitalised and receiving treatment found herself in a 
very similar situation.

The applicant, who is incapable of providing the 
necessary medical care for her seriously-ill and non-self-
sufficient husband, is asking for him to be transferred to 
another ward in the care home or to a different 
healthcare facility in her home town, while continuing to 
provide all possible material and moral support.

The Regional Ombudsman’s Office immediately sent this 
appeal to the medical director of the care home and the 
head of the relevant local health authority as well as the 
regional director and the acting commissioner for health, 
requesting a prompt and urgent response to the 
problem, also pointing out that the Charter of 
Fundamental Rights of the European Union, included in 
the acquis communautaire in 2009 with the Treaty of 
Lisbon, states in Article 35, “Protection of Health”, that 
every individual has the right to access preventive 
healthcare and to obtain medical treatment and that, in 
the definition and implementation of all of the policies 
and activities of the European Union, a high level of 
protection of human health is guaranteed.

The Ombudsman of Lazio has intervened on the question 
of continuous care on other occasions, too. In particular, 
by setting up a social advancement foundation which 
has reported the unlawfulness of the form for long-term 
post-acute care used, and which the patients are 
expected to sign, with an accredited private care home, 
in contrast to the functions assigned to the Italian 
National Health Service under current law. More 
specifically, the lawfulness of some of the clauses 
included in the aforesaid form is contested since they 
state that “… from the day of discharge from the 
post-acute medical long-term ward the stay at the care 
home cannot for any reason be extended” and “… that 
the period of hospitalisation after the date of discharge 
must be paid for personally at the full-day rate …”

The foundation emphasises that the National Health 
Service’s obligation to provide the necessary treatment 
for the sick, including those suffering from disabling 
diseases and who are not self-sufficient, is enshrined in 
Healthcare Reform Law No 833/1978 and the Decree of 
the President of the Council of Ministers of 
29 November 2001 which defines the essential levels of 
healthcare and social health provision, whose standards 
are mandatory on the basis of Article 54 of 
Law 289/2002. This obligation is also confirmed by 
judgment 36/2013 of the Constitutional Court which 
states that “healthcare and social health activity in 
favour of non-self-sufficient elderly persons is listed 
among the essential levels of healthcare in the Decree of 
the President of the Council of Ministers of 
29 November 2001”. In the same judgment, the judge 
called to rule on constitutionality defines non-self-
sufficient persons as “the elderly or disabled who cannot 
care for themselves and maintain a normal social life 
without significant help from others”.

34

The Ombudsman of Lazio promptly asked the 
extraordinary commissioner of the competent local 
health authority, as well as the regional director and the 
acting commissioner for health for a response to this 
matter, highlighting the incompatibility of the forms’ 
content with the principle of continuous care, direct 
application of the right to health in accordance with 
Article 32 of the Constitution, and underlining that the 
right to healthcare is protected as a fundamental right in 
its essential principle of the right to health, protected by 
the Constitution as an inviolable requirement for human 
dignity, which stipulates that situations that fail to offer 
protection must be avoided, situations which can in fact 
jeopardise its existence. The commission, as well as the 
Courts of First and Second Instance have consistently 
expressed this same point on several occasions.

In answer to the Ombudsman, the competent bodies 
have therefore replied that they have asked the medical 
administration of the care home to provide a new and 
different form for post-acute long-term care.

Contact
Felice Maria Filocamo, Ombudsman; 
difensore.civico@regione.lazio.it

Ombudsman of Piedmont 
Domestic violence and femicide:  
the role of the Ombudsman 

The Istanbul Convention, ratified by the Italian State 
with Law No 77 of 27 June 2013 and entered into force 
on 1 August 2014, is the first international and legally 
binding instrument to prevent and combat violence 
against women and domestic violence.

The text of the Convention is based on three principles: 
prevention, protection and punishment, placing 
development, promotion and the implementation of 
gender equality at the centre of the question, 
recognising: “that the realisation of de jure and de facto 
equality between women and men is a key element in 
the prevention of violence against women” and “that 
violence against women is a manifestation of historically 
unequal power relations between women and men, 
which have led to domination over, and discrimination 
against, women by men and to the prevention of the full 
advancement of women”.

According to the Convention, “violence against women” 
constitutes a violation of human rights and is a form of 
discrimination against women and includes “all acts of 
gender-based violence that result in, or are likely to 
result in, physical, sexual, psychological or economic 
harm or suffering to women, including threats of such 
acts, coercion or arbitrary deprivation of liberty, whether 
occurring in public or in private life”, as well as 
“domestic violence” which means all those acts that 
occur within the family or domestic unit, “gender” and 
“gender-based violence against women”, directed 
“against a woman because she is a woman or that affect 
women disproportionately”.

The real novelty lies in treating this type of violence as a 
violation of human rights and a form of discrimination, 
positions that place specific responsibilities on 
institutions and, in particular, the adoption of “the 
necessary legislative and other measures” that “shall 
involve, where appropriate, all relevant actors, such as 
government agencies, the national, regional and local 
parliaments and authorities, national human rights 
institutions and civil society organisations”. 

Women victims of violence, as “persons made vulnerable 
by particular circumstances”, must be guaranteed access 
to services facilitating their recovery such as legal and 
psychological counselling, financial assistance, housing, 
education, training and assistance in finding 
employment, to be coordinated with providing safe 
accommodation, free telephone helplines, initial medical 
examination centres and trauma support counselling. 

The Regional Ombudsman, responsible for ensuring 
regularity and fairness, good performance and 
impartiality of the administrative services, in accordance 
with the principle stipulated in Article 97 of the 
Constitution, in this respect also performs the task of 
protecting the fundamental rights of individuals. In 
particular, the Ombudsman, being able to intervene to 

35 

The work of ombudsmen and similar bodies

The function of the Ombudsman is both to instigate/
prohibit (in the sense of enhancing and protecting the 
basic rights of the individual as a limit for the 
administrative services and a target to be achieved) and 
on the other hand to provide institutional mediation in 
the sense of alternative dispute resolution.

Mediation aimed at working out alternative solutions to 
going to court, promoting a culture of appeasement and 
inclusion by adopting the proactive dialogue method.

In this way, the Ombudsman can be involved in various 
proactive listening initiatives that involve the 
administrative services or managers and/or public service 
providers at every level regarding the condition and life 
of minors, women and their families.

In this “artistic” context, the Ombudsman’s influence can 
usefully be brought to bear through every most 
appropriate decision and innovation, including 
legislation, even in Europe, as an instrument of real 
hands-on “out-of-court justice”, the citizen’s watchful 
eye on the administration and the citizen’s defender.

Contact
Emanuela Borzi; emanuela.borzi@cr.piemonte.it

stimulate and encourage, through the administrative 
services, conduct aimed at “good administration” and 
behaviour to do away with situations that can create 
obstacles or limits to the full and unconditional exercise 
of the rights of the individual, the maxims of basic rights 
like the right to work and the decent existence of 
women protected generally and by the constitutional 
charter and the European Convention on Human Rights 
(ECHR).

In order to understand the role that the Ombudsman 
may play against discrimination and to affirm the human 
rights of women, we can draw on numerous prescriptive 
acts, resolutions and recommendations of the UN 
General Assembly, the Council of Europe and the 
congress of local authorities of Europe which have 
unquestionably recognised in the Ombudsman an 
institution for the protection of human rights.

In view of the ratification of the Istanbul Convention, the 
Ombudsman therefore ensures that this issue should 
meet with a coordinated response from every guarantee 
institution, preventing fragmentation, duplication and 
overlaps, upholding the central role played by the 
Ombudsman as in Latin American countries and many 
European countries, safeguarding every intervention by 
specialised operators; in line with a concerted, and 
therefore also inexpensive and transparent action and, 
thirdly, protecting the rights of women who are victims 
of violence. 

To this end the Piedmont Ombudsman’s Office has 
launched the following initiatives:
 • memorandum of understanding with the Piedmont 
regional equalities councillor;
 • setting up the scientific and technical committee to 
support the regional centre for anti-discrimination: the 
operational guidelines for planning the activities of the 
scientific and technical committee to support the work 
of the regional centre for antidiscrimination in Piedmont;
 • supporting the project proposal called “S.P.A.C.E.S 
BETWEEN Services for clinical, educational and social 
support aimed at vulnerable immigrant families” 
presented by the Frantz Fanon Centre in Turin;
 • Draft Law No 670 at the Parliament of the Regional 
Council of Piedmont in the eighth parliamentary term 
“Amendment to Law No 66 of 15 February 1996 
(Regulations against sexual violence)” which envisages 
the Ombudsman taking civil action in criminal 
proceedings involving women as victims of violence;
 • working relationship with the presiding judges of the 
Court of Turin in order to identify and create intervention 
spaces for the Ombudsman in the context of protection, 
prohibition and support management, as well as in the 
context of family relations that involve public bodies;
 • memorandum of understanding with the Juvenile 
Court of Turin in the process of being drafted.

36

Ombudsman of Tuscany 
Experiences of direct management of 
health disputes 

In 2010, Tuscany decided to forgo professional liability 
insurance cover for public health service workers. The 
law states that the health authorities and University 
Hospital of Tuscany (Italian law dictates that the health 
service is organised on a regional basis through public 
health authorities that become university hospitals in the 
case of hospitals that are the seat of a university’s 
faculty of medicine) shall provide compensation 
themselves for damages that they cause, without 
recourse to insurance. In order to avoid the proliferation 
of disputes, the law states that, before going to court, if 
the user’s claim for damages appears justified, the 
hospital shall try to reach an amicable settlement with 
the injured party, offering him a compensation payment. 
The law states that for the more difficult and costly 
cases (over EUR 500 000) the case for compensation 
shall be submitted for consideration by a regional 
committee, known as the regional committee for claims 
management.

The Regional Ombudsman of Tuscany has for some time 
been providing a free consultancy service that potentially 
reduces professional liability disputes, with an express 
provision for this purpose in the latest reform of the law, 
introduced under Regional Law 19/2009, which governs 
this procedure, enabling the Ombudsman to consult with 
public medical experts (of authorities other than those 
involved in the actual case) and to provide the users who 
claimed to be victims of a professional error with a free 
pre-litigation consultation. This allowed the Ombudsman 
to monitor general aspects connected with the users’ 
complaints, such as keeping medical records, the 
methods of obtaining informed consent and stages of 
healthcare.

In 2011, the Tuscan region adopted a resolution 
(Regional Council of Tuscany Decree 1234/2011) and, in 
defining the procedure of direct dispute management by 
the health authorities and University Hospital of Tuscany, 
confirmed that the Ombudsman can intervene “by 
promoting agreement between the parties”.

From this vague expression, a practical method of 
resolving health disputes is emerging, after a review in 
2012 and extending throughout 2013, promoted chiefly 
by the collaboration of the operating unit of general 
affairs and the public relations office of the University 
Hospital of Careggi (Florence) and by the review 
implemented over the years with the Arezzo Health 
Authority.

The response of the University Hospital of Careggi was 
most comprehensive and effective, with the resolution of 
two cases that resulted not only in a particularly high 
compensation payment with the user incurring no legal 
expenses, but in a real recovery of the relationship of 
trust and dialogue between hospital and user, whose 
confidence in the responses received was bolstered by 
the fact that negotiations were attended by the 
Ombudsman’s representative, which ensured that the 
hospital clearly and fully explained all the stages that led 
to its calculation of the amount of compensation and 
meant that the user could assess them and have access 
to all the documents required to handle their appeal.

With the Massa and Carrara Hospital Authority, too, a 
particular case is in the process of being concluded and 
there are also positive responses from the Senese 
Hospital Authority, of Arezzo and Florence, with cases 
now in progress.

In June 2014, thanks to the regional centre for clinical 
risk, the Ombudsman was invited to a session of the 
claims management committee, and to a subsequent 
meeting with the general and legal affairs operating 
units of all the health and university hospital authorities 
of Tuscany. It became apparent that uniform criteria 
must be found to govern the procedure. Hopefully, the 
practice followed by the Careggi hospital can be 
adopted and extended in Tuscany, even though there has 
been some resistance by some authorities which want 
the user, even when they have no legal assistance, to 
provide not only a request for compensation, but also an 
assessment of the amount of damages, rather than 
explaining clearly (as occurred in the case in question) 
the criteria adopted by the authority when submitting its 
own damage assessment proposal in the light of the 
existing law on damages, which is the one that a judge 
would apply in the event of litigation. A clear and 
transparent proposal avoids the costs of litigation and 
re-establishes a relationship of trust, which has added 
value that cannot be quantified but is certainly high in 
terms of the positive impact that it has on the system as 
a whole. 

Hopefully, the issue can soon be rectified, by adopting a 
uniform approach based on proposals that will emerge 
from the collaboration between the Ombudsman, the 
regional centre for clinical risk and the hospital 
authorities.

Contact
Vittorio Gasparrini; network@difesacivicaitalia.it

37 

The work of ombudsmen and similar bodies

Ombudsman of Valle 
d’Aosta
A settlement procedure precludes 
re-examination of a tax claim

The Ombudsman explained that this does not provide 
exemption as regards the Revenue Agency, to which the 
taxpayer alone is obligated.

Contact
Enrico Formento Dojot, Ombudsman; 
eformento@consiglio.vda.it

A citizen came to the Ombudsman to describe what had 
happened to her:

The citizen received some demands for payment relating 
to a dispute with the Revenue Agency, arising from a tax 
assessment drawn up by the financial police covering her 
work over several tax years.

The citizen maintains that the conclusions reached by 
the financial police are wrong, involving duplications of 
tax and the application of VAT to the provision of 
service, which in her opinion is tax exempt.

However, she signed a settlement assessment, in 
accordance with Article 5bis of Legislative Decree 
218/1997.

She asked whether this assessment precludes further 
actions.

Having examined the issue in depth, the Ombudsman 
explained that the particular institute used offers the 
advantages of reducing penalties to an eighth of the 
minimum, the possibility of paying in instalments 
without providing guarantees and the settlement not 
being subject to the will of the Revenue Agency.

On the other hand, the notice of willingness to settle 
must be submitted within the cut-off point of thirty days 
from delivery of the tax assessment and, furthermore, 
indicates an irrevocable intent to settle, in the absence 
of any opposing argument.

The citizen also explained that she had signed the formal 
notice of assessment on the basis of incorrect advice 
from her professional advisor.

38

It has been noted that the above were achieved, to a 
large degree at least, through the granting of 
humanitarian protection under Article 19A of the Law on 
Refugees. Through the abolition of the relevant provision 
and the assignment of the matter to the Civil Registry 
and Migration Department, there is the risk that the 
matter of stateless persons will be underrated and will 
get ‘lost’ in the maze of competencies and procedures of 
the Department, which – as repeatedly observed by the 
Commissioner – is characterised by bureaucracy, 
unjustified delays, inflexibility and lack of transparency, 
and does not provide guarantees of legal safety and 
predictability. 

This risk could be limited through the adoption and 
implementation of a framework of action in relation to 
stateless persons, which will determine the procedure 
and criteria for identifying stateless persons, the type 
and content of their rights, and the manner in which 
cross-departmental cooperation can be achieved 
between involved departments, and in particular 
between the Civil Registry and Migration Department 
and the Asylum Service, under the guidance of the 
UNHCR (United Nations High Commissioner for 
Refugees). The Commissioner submitted a 
recommendation to create one such framework of 
action, and stated her intention to invite the bodies 
involved to participate in consultations, pursuant to the 
Laws on the Commissioner for Administration.

Contact
Melina Tringidou; mtringidou@ombudsman.gov.cy

Cyprus

The position set out on 9 May 2014 of the 
Commissioner for Administration and 
Human Rights (Ombudsman) as a National 
Independent Authority for Human Rights, 
with regard to the regulation of the legal 
status and rights of stateless persons.

The complaints filed with the Commissioner for 
Administration and Human Rights from time to time 
show that the Cypriot legal system treats stateless 
persons in a piecemeal manner, thus failing to provide 
them with adequate and effective protection and 
therefore giving rise to the need to intervene in this 
matter. This situation is expected to intensify after the 
recent amendment to the Law on Refugees and the 
abolition of Article 19A, which made provision for the 
granting of humanitarian protection by the competent 
asylum authorities (Asylum Service and Refugee 
Reviewing Authority). The recommendation of the 
Council of Europe Commissioner for Human Rights that 
the institution of the Ombudsman must take initiatives 
to protect the rights of stateless persons was seriously 
taken into account.

The position set out included a detailed discussion of 
complaints, the phenomenon and consequences of 
statelessness, international treaties governing the matter 
and the relevant domestic legislation. Emphasis was 
placed on the importance of the concept of nationality 
and the serious impact of the lack thereof on a person’s 
legal status and enjoyment of human rights. 
Nevertheless, millions of people are stateless and, by 
extension, deprived of rights, and as a result, the states 
hosting stateless persons are called on to fill this gap 
themselves and ensure that stateless persons can enjoy 
their basic human rights without any discrimination. 

The 1954 Convention relating to the Status of Stateless 
Persons forms a strong basis on which to establish the 
institutional framework for safeguarding the rights of 
stateless persons. Given that Cyprus has not signed the 
Convention in question, the Commissioner encouraged 
the accession of Cyprus to the Convention. In any case, 
the Commissioner highlighted that the obligation to 
protect stateless persons and their ability to live in safety 
and with dignity applies independently of the fact that 
the Republic of Cyprus has not signed the relevant 
international conventions, as it arises from the broader 
international framework for the protection of human 
rights, which requires every state to respect the basic 
rights and freedoms of all persons on their territories. 
Either way, it is imperative to establish suitable rules and 
procedures that guarantee the timely detection and 
identification of stateless persons, and provide them 
with a minimally necessary framework of rights, such as 
those involving the issuance of identification documents, 
the granting of residence/work permits and access to 
education and health services. 

39 

The work of ombudsmen and similar bodies

Latvia

The Ombudsman’s Annual Conference 
was held in December 2014

On International Human Rights Day, 10 December, the 
Ombudsman of the Republic of Latvia, Mr Juris Jansons, 
opened his annual conference on current human rights 
issues. The conference took place from 10 to 
12 December 2014, in the Ombudsman’s Office in Riga.

For this year’s conference, as every year, topical human 
rights problems of importance to industry professionals, 
faculties, students, and the broader public were selected. 
This year’s topics were:
 • Doubts over lobbying;
 • Mechanisms of compensation in cases of unjustified 
restrictions of rights (in accordance with the Constitution 
of Latvia paragraph 92, 3rd clause);
 • The rights of children to meet their imprisoned 
parents;
 • The institutional care of children.

For each of the topics, the experts taking part not only 
included experts from the Ombudsman’s Office of Latvia, 
but also experts from other state and municipal 
institutions, from academia, and from NGOs.

The Conference was open to everyone interested and it 
was possible to watch the conference online thanks to a 
live webstream.

More information (in Latvian) can be found at:  
http://www.tiesibsargs.lv/sakumlapa/-tiesibsarga-2014.
gada-konference-papildinata-programma

40

The Ombudsman has begun a public 
awareness campaign in Latvian libraries

The Ombudsman has launched an information campaign 
for Latvian citizens. This time, the Ombudsman’s office is 
addressing the public with caricatures depicting various 
aspects of human rights. The main target audience is 
people in the regions of Latvia.

Special calendars and bookmarks were prepared, which 
people were able to obtain in their nearest library. 
Principles of human rights and their explanation are 
included at the top of the calendars and bookmarks. We 
think it is a great way to draw people’s attention to their 
rights and to enable them to explore those rights.

The Ombudman’s Office of the Republic of 
Latvia informs children about their rights 
through materials on the UN Convention 
on the Rights of the Child and on bullying-
free school

The Ombudsman’s Office has this year launched several 
information campaigns for children and their parents, as 
well as for teachers.

For example, we have published the UN Convention on 
the Rights of the Child in the form of a booklet, which is 
interesting both for children and their parents. It is 
colourful and easy to read, as can be seen in these 
photos:

The booklet was published together with professionals 
and gives practical recommendations for pupils, 
teachers, and parents. It focues on the prevention of 
bullying and the resolving of bullying incidents. Our 
wonderful Estonian colleagues shared this booklet with 
us and we decided to translate it into Latvian and 
include our own drawings to make it interesting for a 
Latvian audience. This topic is very important nowadays. 
We would like to say “thank you” to our colleagues in 
Estonia for sharing such useful and interesting material 
with us.

Contact
Laura Bagātā; laura.bagata@tiesibsargs.lv

Our second information campaign was produced in 
cooperation with the Estonian Ombudsman for Children. 
It is called “Bullying-free school”. 

41 

The work of ombudsmen and similar bodies

Lithuania

The Seimas Ombudsman has paid 
attention to the detention conditions 
of refugees in Lithuania

During the third quarter of the year, the Seimas 
Ombudsman Augustinas Normantas visited almost all the 
institutions that are responsible for the custody of aliens 
in Lithuania. By performing national prevention of 
torture under the Optional Protocol (OPCAT) to the 
Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, the Seimas 
Ombudsman Mr Normantas has monitored the 
Foreigners Registration Centre, the Refugees Reception 
Centre and the Frontier Stations of Vilnius and Ignalina 
Frontier Districts.

After visits to all the aforementioned institutions, the 
Seimas Ombudsman Mr Normantas invited Renata Kuleš, 
a representative of the United Nations High 
Commissioner for Refugees (UNHCR) in Lithuania to 
discuss recommendations provided to monitored 
institutions and called for closer cooperation with 
Ms Kuleš in combating human rights violations regarding 
the custody of aliens in Lithuania.

The Seimas Ombudsman Mr Normantas introduced a 
national programme for the prevention of torture and 
discussed procedures for the implementation of 
recommendations submitted by the Seimas Ombudsman 
concerning the elimination of human rights violations.

The meeting also served as a platform for a discussion 
concerning cooperation in performing human rights 
monitoring in different institutions. Furthermore, the 
representative of the UNHCR in Lithuania Ms Kuleš had 
an opportunity to introduce the Seimas Ombudsman 
Mr Normantas to the UN Detention Guidelines on the 
Applicable Criteria and Standards relating to the 
Detentions of Asylum Seekers and Alternatives to 
Detention.

Poor living conditions and personnel 
training

In his report concerning the human rights situation, the 
Seimas Ombudsman observed several problems, 
including sanitary facilities, which did not meet the 
religious requirements of foreigners living in the 
Refugees Reception Centre.

In the opinion of Mr Normantas, the accessibility of 
information was not properly ensured both in the 
Foreigners Registration Centre and in the Refugees 
Reception Centre.

“Clean and disinfected matresses should be provided for 
newly accommodated foreigners. Moreover, facilities 
should be accessible for the disabled”, noted the Seimas 
Ombudsman Mr Normantas in his human rights report 
concerning the Refugees Reception Centre.

The Seimas Ombudsman also identified poor 
implementation of requirements for living premises and 
hygiene norms in the Foreigners Registration Centre. 
“There are less than five square metres for each person 
in the Centre and the premises are not sufficiently 
heated. Moreover, the natural and artificial light does 
not meet the minimum requirements”, concluded the 
Seimas Ombudsman.

The Seimas Ombudsman recommended the 
implementation of all required means to ensure the 
minimum living requirements for aliens in the Foreigners 
Registration Centre:

“The officials of the Foreigners Registration Centre 
should consider the possibility of separating vulnerable 
and conflictual people and ensuring the heating and 
cleanliness of the premises”, noted Mr Normantas.

Furthermore, Mr Normantas encouraged the ensuring of 
the right of religion to refugees by providing meals that 
are in compliance with their religious and cultural 
beliefs. The Ombudsman noted that although the 
Foreigners Registration Centre ensures the right to (free) 
movement and occupation of refugees, not all foreigners 
are involved in occupational programs.

A general recommendation for both institutions was to 
improve the quality of services by organising training 
sessions for the personnel on human rights and the 
implementation of the requirements of the Convention 
on the Rights of Persons with Disabilities.

The vast majority of human right violations 
will be eliminated in Frontier Stations by 
the end of 2014

During the visit to the Švenčioniai, G. Žagunis, 
Dievenišikiai, Pavoverė, Adutiškis, Tverečius, and Puškai 
Frontier Stations of Vilnius and of the Ignalina Frontier 
Districts, the Seimas Ombudsman Augustinas Normantas 
identified a number of human rights violations. However, 
a Commander of the State Border Guard Service assured 
him that the vast majority of them will be eliminated by 
the end of 2014.

“Such goodwill by the Commander of the State Border 
Guard Service regarding the implementation of the 
recommendations of the Seimas Ombudsman could be a 
good example to other institutions which often violate 
human rights in the performance of their obligations”, 
pointed out the Seimas Ombudsman Mr Normantas.

The problems in the majority of Frontier Stations are 
similar, with, for example, detainees not being registered 
and not being informed about video surveillance, the 
main entrances not being accessible for disabled people, 
and detention rooms temporarily having no heating, no 
means of ventilation, or no natural lighting.

The report of the Seimas Ombudsman also shows that in 
some Frontier Stations there is no video surveillance and 
conversation equipment, which would enable detainees 
to contact the security guards of the Frontier Station.

42

There are over 400 detention places in Lithuania, 
including correctional institutions, prisons, police 
stations, centres for foreigners, psychiatric institutions, 
institutions for communicable diseases, social care 
homes, and border checkpoints.

The Law on the Seimas Ombudsmen allows the Seimas 
Ombudsmen to enter any social care or custodial 
institution at any time of the day in Lithuania. The 
Seimas Ombudsmen started implementing national 
prevention of torture in Lithuania at the beginning of 
2014 when the Parliament of the Republic of Lithuania 
adopted the Optional Protocol (OPCAT) to the 
Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment.

Contact
Milda Balčiūnaitė; milda.balciunaite@lrs.lt

Luxembourg

LuxLeaks: a tax package rejected by 
the tax authorities

Indeed it has happened that the Ombudswoman has had 
a referral from a taxpayer whose tax package was 
refused by the Inland Revenue. 

The subject of the claim against the tax office is the 
refusal of partial exemption provided for under 
Article 50(a) of the ITL for income received as part 
payment for the use of a trademark. 

The claimant, a Luxembourgish company, concluded a 
licence agreement with another company in the same 
group to use a trademark filed at the Benelux Office for 
Intellectual Property. 

The tax office had certain doubts about this operation.

The value of an intangible commercial asset depends on 
its reputation, the quality of the commercial services and 
the scale of promotional activities undertaken to 
promote it.

The tax office stated that the licensee had already 
pursued commercial activities and offered its services on 
the market under its own trade name, which was 
identical to the trademark, for at least four years before 
the company (the licensor and signatory of the licence 
agreement) had been formed.

The claimant argued that both the Benelux system and 
the Regulation on the Community trademark are based 
on the principle of ‘first-to-file’ and that a trademark is 
obtained through its registration, and that using it would 
in no way confer rights to it. As the licensee never 
possessed any rights over the newly registered 
trademark in question, the licence agreement concluded 
on this trademark would therefore be legally valid.

In its assessment of the trademark licence agreement 
concluded between the two associated companies and 
the transfer price foreseen, the tax office was guided by 
the principle of full competition set out in Article 9 of 
the OECD Model Tax Convention, according to which it 
is appropriate to adopt the viewpoint of an independent 
company and try to determine how it would have 
behaved in the same situation towards another company 
with which it had no connection.

It became apparent that it was the licensee‘s marketing 
activities prior to the licence agreement which in reality 
promoted the brand name in question in the 
marketplace. The licensor had not incurred any 
promotional or publicity costs to develop its value. It 
appeared that all of the value-increasing efforts had 
been carried out by the licensee itself well in advance of 
the registration of its trade name as a trademark.

43 

The work of ombudsmen and similar bodies

The tax office concluded that the transaction in question 
must be qualified as an abuse of rights, within the 
meaning of paragraph 6(1) of the tax law amendment of 
16 October 1934, and duly defined as exercising an 
individual right in a way that is contrary to its purpose, 
spirit and for the sole purpose of avoiding tax law. 

The Ombudsman therefore refused the claim as being 
unfounded. 

Contact
Jean-Paul Hoffmann; jphoffmann@ombudsman.lu 

Hungary

Experience of the Commissioner for 
Fundamental Rights regarding the 
handling of public interest disclosures

The Act on the Commissioner for Fundamental Rights 
and the Act on complaints and public interest disclosures 
(the Complaints Act) specified new responsibilities for 
the Commissioner for Fundamental Rights from 
1 January 2014 regarding the handling of public interest 
disclosures. A public interest disclosure calls attention to 
a circumstance the rectification or elimination of which 
serves the interests of the community or of society as a 
whole.

The purpose of the new legislation is to support 
whistleblowers and to ensure the protection and 
confidential handling of their personal information. This 
can contribute to the fight against corruption: if 
whistleblowers feel sufficiently secure that they will not 
be subject to retaliation and that the cases they report 
will be investigated properly, they will be braver in 
pointing out signs of corruption. By improving detection 
rates, increased social participation in the anti-corruption 
effort can significantly boost the deterrent force of the 
legal consequences of acts of corruption. The 
Commissioner for Fundamental Rights, who has the trust 
of the general population, has a central role to play in 
this system – he acts as a mediator with respect to the 
handling of public interest disclosures and may also 
review the public interest disclosure handling practices 
of governmental bodies, either when requested in 
individual submissions or ex officio.

Nearly one year has elapsed, giving us an opportunity to 
have a look at the steps taken in performing the new 
responsibilities and assess the results.

Operation of the electronic system for submitting 
and recording public interest disclosures

The ombudsman ensures the operation of the electronic 
system for submitting and recording public interest 
disclosures via the Office of the Commissioner for 
Fundamental Rights (the Office). The electronic system 
was implemented in the framework of the project for 
the prevention of corruption and for the development of 
public governance under the New Széchenyi Plan State 
Reform Operational Programme (ÁROP), and its 
operation meets and even exceeds the statutory 
requirements.

Public interest disclosures may be made in person at the 
client centre or electronically, via a form on the website 
of the Office, followed by the identification of the 
whistleblower by the Office (giving one’s name and 
address is mandatory).

Whistleblowers may request anonymity, meaning that 
their personal information will only be accessible to the 
Office.

44

The disclosure – or, if a relevant request was made, a 
version without personal information (anonymised 
version) is made accessible by the Ombudsman in the 
electronic system to the competent body with relevant 
investigation authority (acting body).

offices, police departments and environmental 
authorities. The most typical subject matters were cases 
of corruption or similar, reports of tax fraud, complaints 
about the actions of the tax authority, and 
environmental issues.

From the examination of the submissions it could be 
established that about 40% of all complaints were 
well-founded. In these cases the acting bodies ensure 
that the irregularity is rectified in order to uphold the 
social interests at risk. In the context of successful 
investigation of public interest disclosures made to the 
Office, the following cases might be mentioned, 
although the list is by no means exhaustive. Numerous 
reports were received concerning tax evasion by 
individuals and businesses. Based on these reports, the 
tax authority took the necessary measures to recover the 
unpaid taxes. Some disclosures concerned cases of 
corruption or similar. The relevant parties investigated 
these cases and took the necessary actions wherever the 
suspicions were confirmed. A number of disclosures 
concerned environmental matters, e.g. illegal dumping 
of waste. The municipalities that were alerted 
investigated the reports and called upon the relevant 
parties to remove the waste and clean up the area.

Experience from ex officio investigations and 
investigations launched upon a request

Eleven requests were received to review the actions of 
bodies investigating public interest disclosures. There has 
been a single case so far where the procedures of the 
authority in question were not fully in line with the 
relevant legislation. In this case the tax authority 
exceeded the time limits established for its processes 
multiple times and on several occasions failed to meet its 
obligation to provide information. To prevent the 
recurrence of issues involving fundamental rights in the 
future, the president of the tax authority was requested 
to take action to ensure that the authority pay increased 
attention to complying with the relevant statutory 
provisions and internal rules of procedure.

The Ombudsman initiated one ex officio procedure, 
against the Hungarian tax authority, to review its 
practices of handling public interest disclosures. The 
review is still in progress. The information obtained in 
the course of the investigation allows conclusions to be 
made as to compliance of the procedures of the tax 
authority with the relevant laws and regulations.

The reviews of the practices of the more frequently 
contacted proceeding bodies in handling public interest 
disclosures have brought to light other irregularities as 
well. The act regulating the practices of the Hungarian 
State Audit Office does not make it possible for it to 
launch or complete an investigation by the required 
deadline of the public interest disclosures it receives. 
A procedure has been initiated to remedy this situation.

The acting body records information about its 
investigative actions (both during the process and on the 
merits of the case) in the electronic system, too.

A short extract of the disclosure, without personal 
information (public extract) is published and is accessible 
to all on the website of the Office. 

Review, upon request, of the handling of individual 
public interest disclosures by the proceeding bodies 
authorised under the Complaints Act1

Once a public interest disclosure is investigated, the 
person making the disclosure may make a submission to 
the Commissioner for Fundamental Rights if he/she 
thinks that the proceeding body did not fully investigate 
the disclosure, if he/she does not agree with the findings 
of the investigation or if the disclosure was declared 
unfounded. Based on this request, the Commissioner for 
Fundamental Rights reviews the proper handling of the 
public interest disclosure. This may include contacting 
the organisation affected to request information and the 
submission of relevant documents. If necessary, an 
interview may be held with a representative of the 
proceeding body, and/or an on-site visit may be 
performed. If the Ombudsman’s review reveals any 
issues, he may suggest a corrective action to the body 
involved and/or to its supervising authority.

Ex officio review of the handling of public interest 
disclosures by the proceeding bodies authorised 
under the Complaints Act

The Ombudsman may also conduct an ex officio review 
of the practices of bodies handling public interest 
disclosures. It is possible to track the key information 
regarding the public interest disclosures made, as well as 
of the procedures of the investigating authorities, via the 
electronic system. Such information may be analysed to 
draw conclusions as to the compliance of the procedures 
of the bodies involved with the relevant laws and 
regulations. If a contradiction with the Fundamental Law 
is established, the Ombudsman may make 
recommendations to the body involved and/or its 
supervising authority. 

Experience regarding the operation of the 
electronic system for submitting and recording 
public interest disclosures

A total of 270 public interest disclosures were received 
between the start of operation of the electronic system 
and 30 October 2014. Both the subjects reported and 
the acting bodies contacted varied widely. The bodies 
contacted most often included the Hungarian tax 
authority, various governmental offices and mayors’ 

1 

Act CLXV of 2013 on complaints and public interest disclosures.

45 

The work of ombudsmen and similar bodies

Conclusion

Austria

Overall, it is established that the new responsibilities 
assigned to the Commissioner for Fundamental Rights 
are being carried out in accordance with the relevant 
legislation and that the new system has met prior 
expectations. The activities of the Ombudsman and the 
Office contribute to the fight against corruption. It is 
also apparent from the findings, however, that 
whistleblowers are also calling attention to problems 
existing in numerous areas of society not covered by the 
system as originally planned; the whistleblower 
protection system described here and the related 
processes provide a solution to a large portion of these 
issues.

Contact
István Perosa; perosa.istvan@ajbh.hu

Austrian Ombudsman Board’s book on 
children’s rights now also in English

Young PEOPLE and their RIGHTS – that is the English title 
of the Ombudsman Board’s book on the subject of 
children’s rights, which was presented by 
Ombudswoman Gertrude Brinek at the meeting of the 
UN Human Rights Council in Geneva on 
9 September 2014.

The aim of the book is to spark interest in human rights, 
to encourage scrutiny and to promote independence 
among children. On that basis, Young PEOPLE and their 
RIGHTS does not give theoretical demonstrations, but 
rather specific examples from the lives of young people. 
For example, it describes the situation of a blind 5-year-
old boy, who lives in a residential community that is not 
accessible for the disabled. When, aged three and a half, 
he first tried to walk, he was locked in his cot day and 
night using plexiglas. The facility was not ready for him 
to try to walk. The carers feared that the boy would 
endanger the two other children who were connected to 
respiration apparatus if he were to move around the 
room freely.

Unfortunately, such injustices against children are not 
rare in Austria. According to a recent study, almost one 
in three adolescents is beaten as a means of discipline. 
Only 58 per cent of the Austrian population knows that 
violence towards children is forbidden by law. Socio-
political education and campaigns to raise awareness of 
the rights of young people are therefore particularly 
important stresses the author of the book and 
Ombudswoman, Gertrude Brinek. She says: “Only those 
who know their rights can articulate them, claim them, 
and if necessary defend them, and not just for 
themselves, but for others too.”

The book is aimed at young people aged fourteen and 
over. It should also serve as teaching material for 
teachers to address human rights and children’s rights, 
as well as being an informative read for parents and 
others who are interested. The book should furthermore 
be interpreted as an invitation to visit the Ombudsman 
Board and its new visitor centre VA.TRIUM, which was 
opened on 24 September 2014. There, school groups 
can discuss human rights, citizens’ rights and children’s 
rights, as well as learn more about the work of the 
Ombudsman Board.

Austria begins EU Twinning Light project 
with Macedonia

At the start of 2015, the Austrian Ombudsman Board, in 
collaboration with the Ludwig Boltzmann Institute for 
Human Rights, will begin the European Commission’s 
Twinning Light project with the Ombudsman in 
Macedonia. This provides the opportunity to share the 
experience of the Austrian Ombudsman Board’s activities 
up to now, both as an administrative controlling body 
and as a National Preventive Mechanism (NPM) for 

46

protecting and promoting human rights. The Austrian 
Ombudsman Board has performed this mandate laid 
down by the Constitution since July 2012 in accordance 
with OPCAT, and places particular emphasis on 
exchanging views with other NPM countries. The 
Macedonian Ombudsman, which has been the NPM 
since April 2011, is an important partner as a member of 
the South-East Europe NPM network.

The project will last for eight months. It is intended that 
joint awareness campaigns be developed to highlight the 
situation of Roma, street children and people with 
special needs. It is also envisaged that inspection visits 
will be conducted in welfare institutions and in places of 
detention and that recommendations will be drawn up 
for improving conditions in the institutions visited. For 
the purposes of greater visibility and transparency with 
regard to the work of the Ombudsman, joint PR activities 
are also planned. The Macedonian and Austrian 
representatives are looking forward to this fascinating 
sharing of experiences, which should strengthen bilateral 
relations as well as international cooperation.

Contact
Christina Heintel;  
christina.heintel@volksanwaltschaft.gv.at

Portugal

The Ombudsman of Portugal as National 
Preventive Mechanism (NPM) against 
torture

The Portuguese State is party to the Option Protocol to 
the Convention against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment 
(OPCAT)2 – being already bound by the Convention against 
Torture and Other Cruel, Inhuman or Degrading Treatment 
or Punishment (CAT), adopted in 1984 by the United 
Nations General Assembly3 – the said Protocol having 
entered into force in the Portuguese legal system on 
14 February 2013.

The OPCAT was adopted by the United Nations General 
Assembly on 18 December 2002, incorporating a set of 
additional measures to achieve the CAT’s objectives and 
to step up protection, in this area, for persons deprived 
of their liberty. In this context, and in accordance with 
the provisions of Article 1 thereof, “the objective of [the 
OPCAT] is to establish a system of regular visits 
undertaken by independent international and national 
bodies to places where people are deprived of their 
liberty, in order to prevent torture and other cruel, 
inhuman or degrading treatment or punishment”.

By means of its stated aim of establishing a system of 
regular visits to places of detention, using non-judicial and 
preventive means, the OPCAT requires such visits to be 
carried out either by international bodies (provision for this 
having been made through the creation of the 
Subcommittee on Prevention of Torture), or through the 
creation, appointment or maintenance, at national level, of 
one or more visiting bodies to prevent torture in this sphere, 
appointed by the National Preventive Mechanism (NPM).

Given this perspective, the NPM has to be an 
independent entity that can be guaranteed to be 
impartial and representative, and to have the requisite 
technical competence and budgetary endowment for the 
visits to be made to those places where persons are 
deprived of their liberty. Thus, the functioning of the 
NPM must, of necessity, be founded on the ‘Paris 
Principles’, which are the United Nations’ parameters for 
evaluating and recognising national human rights 
institutions (see OPCAT, Article 18(4)).

The competences that the OPCAT requires the NPM to 
have, in terms of the powers of regular examinations of 
the treatment of persons deprived of their liberty in the 
places of detention covered, of making 
recommendations to the competent authorities 
concerning the improvement of specific conduct, or of 
submitting proposals and observations relating to 
existing or draft legislation (Article 19 of the Protocol), 

 The respective ratification instrument was lodged with the United Nations 

2 
Secretary-General on 15 January 2013.

 The CAT ratification instrument was lodged with the United Nations 

3 
Secretary-General on 9 February 1989.

47 

The work of ombudsmen and similar bodies

correspond to the core mission of the Ombudsman for 
Portugal since the outset, in 1975, this National Human 
Rights Institution being accredited, since 1999, with 
‘A’ status (fully compliant) by the International 
Coordinating Committee of National Institutions for the 
Promotion and Protection of Human Rights.

Furthermore, focusing fully on its mission to promote 
and to defend human rights in the wake of approval of 
the OPCAT within the United Nations, the Ombudsman 
has developed contacts with relevant sovereign bodies 
with a view to speeding up Portugal’s adhesion to the 
said international instrument, having, since that time, 
made clear its willingness to accept NPM functions 
given, in particular, the experience gained in terms of 
visits to prisons and other places of detention.

The Ombudsman’s stated wish to be available was 
welcomed, not only by the Assembly of the Republic, 
through a change to its Statute (by means of Act 
No 17/2013, of 17 February), clarifying that “[the] 
Ombudsman may likewise perform the functions of an 
independent national institution for monitoring the 
application of international treaties and conventions in 
the area of human rights when appointed so to do” 
(Article 1(2) of the Statute of the Ombudsman) but also, 
subsequently by the Government, which conferred on it 
the title of NPM, via Council of Ministers Decision 
No 32/2013, of 20 May.

the separation, as far as allowed by law, of one 

In keeping with the obligations inherent to this 
appointment, the Ombudsman immediately set about 
forming a working group to look into and to submit 
suitable draft measures to render the NPM operational. 
Knowledge, elsewhere, of combining the functions of 
Ombudsman with those of NPM – notably the Defensor 
del Pueblo (Ombudsman), in Spain – allowed immediate 
identification of the principal lines along which the 
model would develop, namely:
 •
the need to make a clear distinction between the 
typical mode of action of the Ombudsman and the 
methodology and purpose of the visits to be made as 
National Preventive Mechanism;
 •
function from the other;
 •
combination of means available to the Ombudsman, 
particularly those deriving from its traditional function of 
addressing complaints, input arising from visits already 
made, and knowledge obtained and consolidated over 
almost four decades;
 •
scope for recourse to disciplines other than to the law; and
 •
requirement, and given the single-member nature of the 
Ombudsman body, to give the NPM structure pluralist 
characteristics, opening it up to diverse contributions.

the need to master traditionally used skills, expanding the 

the need, in compliance with the OPCAT’s own 

the need, however, to take advantage of the 

In this context, it was decided to set up and to operate 
an ancillary structure for the Ombudsman in its role as 
NPM, with a view to assisting the latter in the fulfilment 
of its duties and the development of its skills. This NPM 
Support Structure (ENPM) is constituted by: i) the 
Consultative Council; ii) the Coordinating Committee; 
iii) the Visitors’ Body; and iv) administrative support.

The Consultative Committee exists to ensure greater 
social, technical and scientific reach, by opening up to 
the involvement of civil society, not only in the form of 
individuals but also in the form of groups, entities of 
independent status and, in particular, certain 
professional bodies (Bar Association, Order of Physicians 
and Order of Psychologists). By means of this approach, 
the ENPM will welcome persons who, through their 
membership of certain entities with the prime objective 
of guaranteeing citizens’ rights or through their 
recognised individual merit, are able to enhance the 
efficacy of the tasks entrusted to the NPM. Composed of 
12 members, the Consultative Council is the main body 
providing advice to the Ombudsman as NPM (in 
particular, it has the function of issuing a preliminary 
opinion on the activity plan, monitoring the ENPM’s 
activity, notably in connection with the assessment and 
monitoring of visit protocols, and contributing to the 
enhancement of working methods and respective 
instruments, ending each calendar year with a report on 
activities and compliance with national and international 
obligations to provide information, as set out in the 
OPCAT).

The Coordinating Committee has three members, and is 
responsible for implementing the activity plan, ensuring 
that places where persons are deprived of their liberty 
are actually visited, by the Visitors’ Body, and supporting 
the NPM in the development of the latter’s attributes.

The Visitors’ Body principally comprises nine of the 
Ombudsman’s collaborators duly appointed for the 
purpose, its main mission being to carry out inspection 
visits and to draw up the respective minutes of those 
visits. With a view to fulfilling this role, the NPM can also 
request the participation of others of the Ombudsman’s 
collaborators, and also that of experts with the technical 
and scientific knowledge suited to the purpose of each 
visit or to the nature of the places to be visited. 
Furthermore, whenever possible, the team formed to 
perform a specific visit must include an expert chosen 
from amongst those on a list provided by the 
aforementioned professional bodies.

The ENPM’s administrative support is provided by an 
employee of the Ombudsman’s services who is 
appointed for this purpose.

Thus, the necessary steps for setting up the NPM via the 
respective regulation and the creation of the ENPM 
having been concluded, with a guaranteed separation 

48

between the NPM and the activities already performed 
by the Ombudsman qua tale, 2014 marks the beginning 
of the NPM’s role with a series of regular visits to various 
places of detention covered by the OPCAT.

During the second half of 2014, therefore, a total of 
around 20 unannounced visits were made to prisons, 
minors’ education centres, psychiatric hospitals and 
security forces’ detention zones throughout national 
territory (continental Portugal and the archipelagos of 
the Azores and Madeira).

Contact
Catarina Ventura; catarina.ventura@provedor-jus.pt

Romania

The People’s Advocate’s role in amending 
the legal framework on “The consumer’s 
right to be informed about the source of 
bottled water”

In April 2014, the People’s Advocate (Ombudsman) 
issued the Special Report on the consumer’s right to be 
informed about the source of bottled water, which 
highlights the problems faced by consumers when the 
labelling of a vital product, such as water, lacks 
information that is absolutely necessary regarding its 
source.

With this Special Report, the Ombudsman proposes to 
amend the legislation on the labelling of bottled drinking 
water other than natural mineral water or spring water, 
sold as bottled water, by removing conflicting provisions 
and completing legal norms. In this respect, it is 
considered necessary for the label on bottled water to 
indicate the source of the water, without confusion 
being created with natural mineral water, and without 
misleading the consumer as to the geographical location 
of the water. More specifically, the place where the 
distributor or dealer sources the drinking water it bottles 
and offers for sale to consumers should be stated.

The labels on the plastic containers in which bottled 
water is sold must contain accurate information and 
essential information must not be knowingly omitted. 
This is even more important seeing as the law requires 
that confusion with natural mineral water or spring 
water must be avoided; the label must therefore indicate 
the source of the water, as this is a piece of information 
essential to the consumer when choosing a particular 
type of drinking water.

The consumer should not be misled. This is what we 
aimed to emphasise by this Special Report, namely the 
consumer’s right to make a well-informed choice about 
a specific product, in this case bottled water.

The Special Report prepared by the Ombudsman was 
sparked by a complaint made by D.C. (pseudonym) from 
the city of Braşov, who expressed dissatisfaction with the 
response from the Braşov County Commissioner for 
Consumer Protection when the complainant was 
informed that the labelling of bottled water was in line 
with the legal provisions in force.

The complainant complained to the Braşov Territorial 
Office of the People’s Advocate that in this situation, the 
consumer was not properly informed and could be 
misled by the fact that the bottled water label did not 
contain an essential piece of information, namely the 
source of the water. Thus, the bottled water s/he 
purchased from a supermarket in the city of Braşov 
might even be water from the city’s public water supply.

49 

The work of ombudsmen and similar bodies

The Braşov Territorial Office of the People’s Advocate 
notified the National Authority for Consumer Protection, 
and following this, we were informed that the indication 
of the source of exploitation on the label is mandatory 
only for spring waters and natural mineral waters. 
Moreover, “in order to respond to the queries raised by 
the complainant, tap water can be bottled and sold as 
bottled water” if it meets the legal requirements for 
drinking water.

In view of the responses received, it was considered 
necessary to take the matter to the Control Body of the 
Ministry of Economy, under whose authority the National 
Authority for Consumer Protection operates. The 
following was subsequently communicated to us:

“(...) following the discussions held with specialists from 
the Ministry of Economy and the companies involved in 
these tasks, the Control Body of the Ministry supports 
the view of the National Authority for Consumer 
Protection sent to you (Braşov Territorial Office of the 
People’s Advocate (author’s note)) by 
No. 3090/25.06.2013.

The current legislation does not regulate the obligation 
to indicate the source of origin of bottled water on the 
label.

However, we consider it necessary to initiate a similar 
process at the ‘Romanian Waters’ National 
Administration, which is an authority charged with 
overseeing surface water resources (which may also be 
marketed as ‘bottled water’) in order to develop a legal 
framework establishing the obligation to indicate the 
source of origin on the label of the container in which 
the bottled water is marketed.”

Relating to the above, the Ombudsman considered it 
necessary to amend the legislative framework regarding 
the labelling of bottled drinking water, other than 
natural mineral water or spring water, by completing the 
Methodological Norms of 7 February 2002 on food 
labelling, approved by Government Decision No 
106/2002, and the Hygiene Norms of 20 February 2007 
on bottled drinking waters, other than natural mineral 
waters or spring waters, sold as bottled water, approved 
by the Order of the Minister of Health No 341/2007.

The source of bottled water is certainly a criterion 
according to which the marketed waters are selected 
and chosen by consumers.

The source is also the criterion that distinguishes the 
three categories of water: spring water, natural mineral 
water and bottled water.

Thus, in order to avoid confusion among the three 
categories, essential information such as the source of 
water should not be omitted, and consumers should be 
properly informed.

Contact
Cornelia Cor; avp@avp.ro

The People’s Advocate’s concern regarding 
the protection of persons with disabilities

In accordance with the UN Convention on the Rights of 
Persons with Disabilities of December 2006, which 
confirms that disability is a human rights issue as a 
matter of law, as well as with the revised European 
Social Charter, adopted in Strasbourg on 3 May 1996, 
ratified by Law No. 74/1999, the People’s Advocate has 
consistently expressed its interest in and concern over 
the problems faced by this social category of individuals, 
who are sometimes disadvantaged and marginalised due 
to having a lower degree of independence and reduced 
access to employment, education and training.

The analysis of the complaints received and the 
complaints raised by the Ombudsman have revealed the 
existence of gaps in the protection of disabled persons, 
which lead to problems and not only administrative but 
also legislative irregularities, including unclear legal 
provisions, legislative gaps or inconsistencies between 
laws, and inconsistencies in terminology.

One of the issues identified relates to the insufficient 
funding for the salaries of personal assistants of people 
with severe disabilities. This issue was first raised by the 
Ombudsman in 2011, when a Special Report was drawn 
up on the payment of the salaries of personal assistants, 
provided for by Law No. 448/2006 on the protection and 
promotion of the rights of persons with disabilities. As 
this issue remained unresolved, it was subsequently 
taken up again in a Special Report drawn up in 2013.

In both reports, the Ombudsman pointed out that 
although the funding sources for the protection of 
persons with disabilities are regulated by Law No 
448/2006, the contribution level of local government 
budgets and of the state budget is not expressly 
provided for, which amounts to a gap in the law that 
allowed the authorities to not provide the amounts 
needed to pay the personal assistants of disabled 
individuals.

To resolve this, in both Special Reports, the Ombudsman 
proposed to amend and supplement Law No. 448/2006 
to determine the percentage contribution from the local 
authorities to ensure the amounts necessary to finance 
the protection of individuals with severe disabilities.

The issue raised by the Ombudsman was settled by the 
adoption of Law No. 356/2013, State Budget Law 2014, 
and Government Emergency Order No. 103/2013 on 
staff salaries paid from public funds in 2014, as well as 
other measures in public spending from 2014 onwards.

According to Law No. 356/2013, State Budget Law 
2014, the payment of salaries for personal assistants is 
covered by the budget of the Mayor’s Office via the 
amounts allocated from the state budget, and deducted 
from value added tax. The same law stipulates that in 
order to finance these expenditures, the local 
government authorities allocate amounts from their local 
budgets, in addition to the amounts deducted from 
value added tax.

50

In terms of the percentage of the amounts necessary to 
ensure the payment of such rights, in accordance with 
Article 20(2) and (3) of Government Emergency Order 
No. 103/2013 on staff salaries paid from public funds in 
2014, and other measures in public spending from 2014 
onwards, up to 75% of the financing of the rights of 
personal assistants of persons with severe disabilities, or 
the monthly allowances of persons with disabilities shall 
be provided from the state budget, whilst local 
government authorities have to allocate sums from local 
budgets, of at least 25%.

Contact
Raluca Teodorescu; avp@avp.ro

A mother’s parental rights violated by the 
Mayor’s Office of Constanţa by failing to 
reach a final and binding judgment

The Romanian Constitution guarantees the right to an 
intimate, family and private life and the right of 
individuals aggrieved by a public authority, as laid out in 
Article 26 and Article 52.

According to the constitutional provisions, “the public 
authorities shall respect and protect the intimate, family 
and private life, and any person aggrieved in his/her 
legitimate rights or interests by the failure of a public 
authority to solve his/her application within the lawful 
time limit, is entitled to the acknowledgement of his/her 
claimed right or legitimate interest, the annulment of the 
act and reparation for the damage” – Article 26(1), 
namely Article 52(1).

By an application registered at the Constanţa Territorial 
Office of the People’s Advocate in June 2014, the 
complainant informed us of the fact that her parental 
rights had been violated by the Mayor’s Office of 
Constanţa.

In this regard, the complainant stated that she is a 
Romanian citizen living in Germany and married to a 
Romanian citizen from Paşcani. She also stated that she 
had returned to Romania three years ago for the 
purpose of family reunification, but when she asked for 
the passport of her child to be issued, she was not found 
in the database and was directed to the police station 
where she had her last domicile.

The Public Community Service for the Registry of People 
and Civil Status of Constanţa revealed that there were 
two identity cards for two people (her and her sister) 
with the same birthday, the same personal identification 
number, and all the identity data were identical. The 
complainant stated that she was given a new identity 
and that she could no longer be found under the name 
of the mother on her child’s birth certificate. 
Furthermore, she encountered problems at the Public 
Community Service for the Registry of People and Civil 
Status of Constanţa, and although she was in court for 
two years and obtained a final and binding judgment 
correcting the child’s birth certificate, the Mayor’s Office 
of Constanţa through the Community Service for the 
Registry of People and Civil Status, did not proceed to 
correct the data on the birth certificate. At the time of 
the complaint, the child was 16 years old and had no 
identity papers, as he was at an orphanage in Iaşi for 
three months.

The Public Community Service for the Registry of People 
and Civil Status of Constanţa was asked to provide 
information in relation to the complainant’s case, and 
following the intervention of the People’s Advocate, we 
were told the following:
 • on 28 October 2011, the rectification of the birth 
certificate of the child (N.A.), born on 16 August 1998, 
was initiated, registered under No. XX/1998 at the 
Mayor’s Office of Constanţa;

51 

The work of ombudsmen and similar bodies

 • on the registration date of the birth certificate, the 
parents, who were not legally married, attended the Civil 
Registry to officially declare the child. The real mother 
had no identity papers, and immediately after the birth 
fled abroad, leaving her sister who had an ID to declare 
herself as the mother. Thus, the mothers were 
substituted for each other on the child’s birth certificate;
 •
accusation of false identity of the individuals (sisters).

there was also a criminal case regarding the 

The act of correcting the birth certificate was initiated 
ex-officio by the Public County Directorate of Constanţa 
for the Registry of People and the Directorate for the 
Registry of People and Database Administration of 
Bucharest. The formalities to approve and prepare the 
provision to correct the name took place, but the action 
was dismissed by the Mayor of Constanţa in March 
2012. Subsequently, the complainant and her sister 
appealed to the Constanţa Court, and this was settled by 
civil judgment which ordered the rectification provision 
of June 2014 to be issued by the Mayor of Constanţa. 
This meant that the first name of the child’s mother, the 
mother’s date of birth and residence were corrected on 
the edge of the child’s (N.A.) birth certificate.

The Mayor’s Office of Constanţa also informed the 
complainant of the correction, and she could then 
request a new birth certificate and submit the birth 
certificates issued erroneously as regards the mother. 
A copy of the provision for rectification was also sent to 
the complainant. File No. 205/2014.

Contact
Felicia Nedea; avp@avp.ro

Relations between the People’s Advocate 
and the judiciary

The Romanian Constitution, adopted in 1991 and revised 
in 2003, marked the transition of the Romanian society 
to the rule of law, democratic and social, where human 
dignity, rights and the freedoms of citizens and the free 
development of the human personality represent 
supreme values and are guaranteed. To achieve these 
goals, the Constitution restructured the constitutional 
order by creating new institutions, such as the People’s 
Advocate.

Although it is not part of any of the three powers – 
legislative, executive and judicial – enshrined in 
Article 1(4) of the Romanian Constitution, the People’s 
Advocate plays an important role in the functioning of 
the state under a constitutional democracy as it is one of 
the fundamental institutions of the rule of law. The 
Ombudsman’s place of regulation in the Constitution, 
namely in Title II, demonstrates the importance that the 
basic law attaches to citizens’ rights and freedoms.

According to the constitutional and legal provisions, the 
role of the Ombudsman is to protect the rights and 
freedoms of natural persons (Romanian citizens residing 
in Romania or elsewhere, foreigners, including those of 
the European Union, established in Romania, and 
stateless persons), as it is one of the principal means of 
control of the Parliament over the government.

Through its duties, the People’s Advocate works closely 
with other state institutions and, equally, with civil 
society structures. The nature of these relationships 
varies according to the work carried out by the 
institution or structure concerned, so it may involve 
collaboration, effective support, control or simply 
information.

In fact, the success of the institution largely depends on 
its acceptance by the population and its degree of 
integration into the country’s political culture.

To define its position in all state structures, Law 
No. 35/1997 provides that the People’s Advocate is an 
autonomous public authority independent of any other 
public authority under the law, and the People’s 
Advocate cannot be subject to any imperative or 
representative mandate. In addition, no one can compel 
the Ombudsman to obey an instruction or order. Its 
independence from the public authorities that fall within 
the scope of its concerns and the free access of citizens 
to public services are the main specific features of the 
Ombudsman, as well as the fact that it cannot replace 
the controlled public authorities when exercising their 
functions.

The jurisdiction of the Ombudsman in resolving 
complaints concerning the judicial authority is enshrined 
in its legal ability to address, as appropriate, the Minister 
of Justice, the Public Ministry or the President of the 
Court, who shall communicate the measures taken. This 
is a legal process whereby the public authorities referred 
to support the People’s Advocate in settling complaints 
on the infringement of the right of the parties to a fair 

52

trial and the settlement of the case within a reasonable 
time frame, as laid down in Article 6 of the Convention 
for the Protection of Human Rights and Fundamental 
Freedoms, and made available by the provisions of 
Article 21(3) of the Constitution.

According to Law No. 35/1997, in cases where the 
People’s Advocate finds that the resolution of the 
petition falls under the competence of the judicial 
authority, it may address, where appropriate, the Public 
Ministry, the Presidents of the Court, the Superior 
Council of Magistracy and the Minister of Justice, as they 
are obliged to communicate the measures taken.

In the context of the right to a fair trial, the complaints 
raised by the petitioners of the People’s Advocate refer 
to the length of the criminal prosecution phase – by 
invoking a delay in the settlement of the cases recorded 
at the prosecutor’s offices – and failing to communicate 
information on the appropriate stage reached in the 
investigation by the criminal investigation bodies.

Moreover, the Ombudsman may refer the matter to the 
competent administrative court pursuant to Article 3 of 
Law No. 554/2004 on administrative litigation, as 
subsequently amended and supplemented, and to the 
High Court of Cassation and Justice with appeals on 
points of law, under Article 514 of the Code of Civil 
Procedure or Article 471 of the Criminal Procedure Code, 
to ensure a consistent interpretation and application of 
the law by all courts.

In order to ensure a consistent interpretation and 
application of the law by all courts, the General 
Prosecutor attached to the High Court of Cassation and 
Justice, ex-officio or at the request of the Minister of 
Justice, the leading board of the High Court of Cassation 
and Justice, the leading colleges of the courts of appeal 
and the Ombudsman all have the duty to ask the High 
Court of Cassation and Justice to rule on questions of 
law which have been settled differently by the courts. 
An appeal on a point of law is not an appeal to reform 
judgments in a case, but it is a procedural instrument 
designed only to ensure the consistent interpretation 
and application of the law by all courts. In other words, 
an appeal on a point of law cannot lead to the 
dismantling of previous judicial decisions. This results 
explicitly from the provisions of Article 517(2) of the 
Code of Civil Procedure, and Article 474(2) of the 
Criminal Procedure Code, which state that the decision 
shall be pronounced only on points of law and has no 
effect on the judgments examined nor on the situation 
of the parties of those proceedings.

In light of the new amendments to Law No. 35/1997, by 
taking over the specific tasks of the National Mechanism 
for the Prevention of Torture in Places of Detention, the 
Ombudsman is required to notify the judiciary 
immediately if, in the course of his duties, he becomes 
aware of any information pertaining to offences under 
criminal law.

The following highlight several areas in the field of the 
relations of the People’s Advocate with the judicial 
authority:

Case No. 6451/2013: George (pseudonym) contacted the 
Ombudsman on the matter of a delay in communication 
on the part of a court. The complainant, as a plaintiff in 
a case before the Caransebeş Court, where the merit of 
the case was to grant financial rights as compensation 
for expropriation, settled by Decision No. X/2013, issued 
on 3 June 2013 with the right of appeal within 15 days 
from notification, claimed that the communication of the 
judgment was unduly delayed, despite his even 
submitting an application to speed up the 
communication of the sentence on 9 July 2013.

We asked the President of the Caransebeş Court about 
this issue, and he informed us of the reasons for the 
delay (heavy workload and the health of the magistrate), 
and informed us that the judgment under No. X of 3 
June 2013 had been drawn up on 2 September 2013 
and communicated to the parties.

Appeals on points of law promoted by the Ombudsman 
concerning different interpretations and applications of 
legal provisions by law courts:
 • Application of Article 1(1)(d) and (e), on the grounds 
of Article 4(1) and (2) of Decree-Law No. 118/1990 on 
the right of persons persecuted for political reasons by 
the dictatorship in Romania with effect from 6 March 
1945, republished, to add the allowance for the 
displacement period to the allowance given for the 
period of house arrest, when these periods coincided.

By Decision No. 8/2012, published in the Official Gazette 
No. 387 on 11 June 2012, the High Court of Cassation 
and Justice upheld the appeals on the points of law 
declared by the Attorney General’s Office attached to 
the High Court of Cassation and Justice and the 
Ombudsman, by stating that the interpretation and 
application of Article 1(1)(d) and (e), based on 
Article 4(1) and (2) of Decree-Law No 118/1990, 
republished, “when the resettlement period coincides 
with the period of house arrest, the person entitled may 
receive one allowance provided for by law, namely for 
the resettlement period”.
 • The different irrevocable settlements by the courts in 
the country on the question of law relating to the 
calculation of the 30-day period within which the 
disciplinary sanction must be applied in accordance with 
Article 252(1) of the Labour Code (namely the time from 
which this term commences), which states that “The 
employer ensures the application of the disciplinary 
sanction by a decision issued in writing within 
30 calendar days from the date of knowing of the 
disciplinary irregularity, but no later than six months 
from the date of the deed”.

By Decision No. 16/2012, published in the Official 
Gazette of Romania, Part I, number 817 dated 
5 December 2012, the High Court of Cassation and 
Justice upheld the appeals on the points of law declared 
by the Ombudsman and the Attorney General’s Office 
attached to the High Court of Cassation and Justice, and 
stated that: “In the interpretation and application of 
Article 252(1) of the Labour Code, republished, the time 
when the period of 30 calendar days starts to run for the 
application of disciplinary sanctions is the date of 

53 

The work of ombudsmen and similar bodies

registration of the final report of the pre-disciplinary 
investigation at the registration office of the unit”.
 • Regarding the interpretation of the provisions of 
Article 4(4) and Article 5(1)(m) of Law No. 341/2004 on 
recognition of the hero-martyrs and fighters who 
contributed to the Romanian Revolution of 1989 and 
those who sacrificed their lives or suffered following the 
anti-communist revolt of the working-class in Braşov in 
November 1987, the calculation of the monthly 
compensatory allowance and monthly allowance granted 
to the categories of persons defined by the legal rules 
cited (persons holding such titles as Fighter Distinguished 
for Outstanding Acts or Fighter for the Victory of the 
Revolution of December 1989 and the descendants of 
hero martyrs).

By Decision No. 22/2013, the High Court of Cassation 
and Justice upheld the appeals on points of law declared 
by the General Prosecutor’s Office attached to the High 
Court of Cassation and Justice and the Ombudsman, and 
determined that “the monthly compensatory allowances 
and the monthly allowances provided for by Law 
No. 341/2004 shall be calculated in 2011 by applying 
the coefficient of 15% on the amount of compensation 
paid in October 2010”.
 •
Interpretation of the legal provisions on the basis of 
which interest is calculated on the amounts collected 
and returned by the country’s public finance bodies as 
pollution tax, first registration fee and fee for pollutant 
emissions.

The legal matter referred to the Supreme Court has not 
been settled thus far.

Contact
Andreea Băicoianu; avp@avp.ro

Slovenia

The Ombudsman revealed discrimination 
in the allocation of municipal financial aid 
to newborns

A citizen of the Municipality of Tolmin (Municipality), 
who is a foreigner (from a non-EU country) with a 
permanent residence permit, has contacted the Human 
Rights Ombudsman of the Republic of Slovenia (RS) 
(Ombudsman) after being discriminated against in the 
allocation of municipal financial aid to newborns. As 
initiator she stated that the Rules on single financial aid 
to newborns in the Municipality of Tolmin from 2005 
(the ‘Rules’) is discriminatory because only citizens of the 
RS are entitled to be granted the aid. Due to the 
controversial provision of the Rules, the initiator has 
already contacted the mayor and received a reply that 
her concerns are justified and reasonable to a certain 
extent, but that the conditions laid down in order to 
prevent procedural anomalies and circumvention, that 
the exercise of the right to allocate aid to newborns is 
an autonomous decision of the local community, and 
that all other Slovenian municipalities, whose regulations 
have been consulted, have the same condition of 
nationality laid down therein. The Municipality replied to 
the initiator, expressing its disagreement that laying 
down the controversial condition constitutes 
discrimination; therefore, her remark cannot be 
accepted, even though this remark and possible 
amendment of the Rules will be taken into consideration.

The Ombudsman considered that the initiative could be 
justified. The Equal Treatment Act (Official Gazette of the 
RS, No. 93/2007 – official consolidated text; ZUNEO) 
prohibits conduct that constitutes direct or indirect 
discrimination on the grounds of any personal 
circumstance in any area of social life, specifically in 
relation to social benefits. The Ombudsman considered 
that the reasons the Municipality stated in its reply to 
the initiator do not discount the assumption that the 
provision of the Rules on the condition of nationality is 
discriminatory. The presumption of infringement of the 
right to non-discrimination, according to the 
Ombudsman, cannot be precluded by the intention of 
the Municipality to limit misuse of the right, by means of 
the controversial condition; the prevention of misuse of 
procedures is governed by the criminal-law provisions 
laid down in the regulation, and the condition of 
nationality also does not prevent any misuse among the 
citizens of the Republic of Slovenia. The Ombudsman 
welcomes the indication of the Municipality that 
granting the right to allocate aid to newborns is a matter 
of autonomous decision made by municipal authorities; 
however, he believes that in the case when a 
Municipality decides to grant such aid to its citizens, the 
conditions for granting this aid must not be arbitrary and 
contrary to the principle of equal treatment. The 
Ombudsman also considers that the (alleged) 
discrimination cannot serve as an excuse for any 
discriminatory conduct of other municipalities. In 
addition to the arguments of the initiator, who stated 

54

that she and her husband as foreigners with permanent 
residence status are paying all required contributions as 
laid down by the law, the Ombudsman as an argument 
in support of the initiator stated a further provision of 
the Parental Care and Family Benefits Act, which 
regulates (financial) childbirth grants at national level. As 
stated in Article 64 of the Act, the right to receive a 
childbirth grant depends on the mother or father having 
permanent residence status in the Republic of Slovenia, 
and not on having citizenship of the Republic of 
Slovenia.

The Municipality was informed of the Ombudsman’s 
opinion and was asked to demonstrate, according to the 
provision of ZUNEO on the reversed burden of proof, 
that the controversial provisions of the Rules do not 
violate the principle of equal treatment.

The Municipality in its response did not find compelling 
reasons to justify a discriminatory provision of the Rules. 
The Municipality agreed with the Ombudsman’s opinion, 
and within six months from the date of the 
Ombudsman’s letter prepared and adopted a new Rule 
which introduces an amendment to the definition of 
beneficiary to the childbirth grant, namely foreigners 
with permanent residence in Slovenia are now also 
included, in addition to the citizens of the Republic of 
Slovenia. The Ombudsman considered the initiative 
justified and found the response of the Municipality to 
the identified irregularities to be prompt and 
appropriate.

Contact
Jernej Rovšek; j.rovsek@varuh-rs.si

Sweden

Complaint against police authorities in 
Kronoberg County and Stockholm County 
regarding postings on Facebook

Background

There has been a substantial increase in the use of social 
media by the police in recent years. At present there are 
around a hundred accounts registered by the police on 
Facebook and Twitter. Generally, the accounts are 
administered locally, for example by a police department 
or by a youth group within a police authority. In total, 
around 360 000 people follow the police pages on 
Facebook and Twitter. 

Increased dialogue – being visible and accessible on 

The National Police Board’s regulations for the police on 
social media state that the main reasons for the police 
presence on social media are as follows: 
 •
media that are frequented by many people.
 • Sharing crime prevention information and tips for 
reducing crime.
 • Describing the work of the police to increase security. 
 • Making police requests for tip-offs and witness 
statements in order to solve crimes.

Summary of the adjudication

The Parliamentary Ombudsman has reviewed a number 
of postings made on police Facebook accounts. The 
postings are, in themselves, relevant for the purpose of 
police participation in social media; they have a crime 
prevention message, or provide information on the work 
of the police. However, many of the posts have a 
content that raises questions regarding their objectivity. 
At times they are characterised by a bantering tone that 
is not really suitable for a representative of the police. 
Questions may also be raised as to the extent to which 
descriptions of persons in a vulnerable position are 
appropriate for police postings on social media at all. 
Furthermore, the basic point of departure for anyone 
representing the police on social media should be 
restraint in expressing personal feelings in the context of 
their work duties.

The adjudication points out that there is a body of 
regulations for police participation in social media which, 
if followed, should be sufficient to avoid the publication 
of items that run the risk of jeopardising confidence in 
police objectivity and impartiality, or that are otherwise 
inappropriate.

55 

The work of ombudsmen and similar bodies

The adjudication emphasises that deprivation of liberty is 
a serious encroachment on personal freedom and that it 
is very important that a person who has been deprived 
of liberty be given information on their rights. Among 
other things, this is a necessary prerequisite in order for 
him or her to be able to assert these rights. On 
1 June 2014, new provisions were introduced in the 
Ordinance on Preliminary Investigations regarding 
information for persons who are suspected of a crime. 
The information must be in a language which the 
detainee understands and, for those who have been 
arrested and taken into custody, it must be in writing. 
The detainee is to have access to this information for the 
entire period of deprivation of liberty.

In the opinion of the Parliamentary Ombudsman, written 
information should also be provided to persons who 
have been detained for reasons other than suspicion of a 
crime, and naturally this should be in a language which 
the detainee understands. In addition, all information 
should be formulated in a way that is clear and easy to 
understand. If necessary, it should be supplemented by 
oral information.

The adjudication also points out the importance of 
providing information on rights as soon as possible after 
detention begins; this should be no later than the point 
at which the detainee is taken into police custody.

In the opinion of the Parliamentary Ombudsman, it is 
important that the National Police Board takes steps to 
see that routines are introduced by the police authorities 
to ensure that detainees are provided with information 
in a way that safeguards their legal rights. The National 
Police Board has announced that it intends to produce a 
new directive for police custody, with regulations on 
when and how detainees are to be informed of their 
rights. In view of the fact that this is a matter of 
fundamental rights, it is important that this measure be 
undertaken without delay. A new directive and improved 
routines, together with the new provisions in the 
Ordinance on Preliminary Investigations, should result in 
an improvement in the information provided to 
detainees.

Contact
Charlotte De Geer Fällman;  
charlotte.de.geer.fallman@jo.se

Information regarding rights and 
implications of enforcement for detainees 
in police custody

Background

During the period October 2011 to June 2013 the 
Parliamentary Ombudsman inspected 29 instances of 
police custody at 14 police authorities. In the course of 
these inspections the Parliamentary Ombudsman 
investigated when and how detainees are informed of 
their rights and of the implications of the enforcement 
measure.

In 2008, the National Police Board and the Office of the 
Prosecutor General issued the information sheet 
“Information for those suspected of crimes and therefore 
deprived of their liberty”. The information sheet has 
been translated into around 40 languages, and provides 
information regarding certain rights during a period of 
detention, including the right to know of what one is 
suspected and why one has been deprived of liberty, and 
the right to legal counsel and to healthcare and medical 
treatment.

The Parliamentary Ombudsman’s investigations included 
checks on whether the information sheet was being 
provided to detainees. In some instances of police 
custody the information leaflet was regularly issued to 
the detainees, while in others the leaflet was affixed to 
the wall at the custody reception area. However, the 
investigations revealed that, in certain instances of police 
custody, people were not aware of the existence of the 
information sheet, and it is unclear when and how 
information on rights and on the enforcement measure 
is issued. It also became apparent that there was seldom 
any documentation to record whether information had 
been given to the detainee.

In the case of detainees placed under arrest for some 
reason other than suspicion of a crime, the National 
Police Board has not laid down any particular model or 
template for the provision of information, or any routine 
for how information is to be issued.

Summary of the adjudication

The Parliamentary Ombudsman has investigated 
whether, when and how persons detained in police 
custody are informed of their rights and of the 
implications of enforcement.

The investigation has revealed that around half of the 
police authorities provide the information sheet issued 
by the National Police Board and Office of the Prosecutor 
General (“Information for those suspected of crimes and 
therefore deprived of their liberty”) at the time of arrest. 
At other authorities, routines vary, and in certain cases 
are inadequate. In many cases, for example, it seems to 
be unclear who is responsible for the issuing of this 
information. There is, as far as can be seen, no particular 
set of rules for information to be given to persons who 
are deprived of liberty for reasons other than suspicion 
of a crime.

56

Azerbaijan

Month-long campaign held in Azerbaijan

This year, the world community celebrated the 
90th anniversary of the Geneva Declaration of the Rights 
of the Child, the 55th anniversary of the United Nations 
Declaration of the Rights of the Child, and the 
25th anniversary of the Convention on the Rights of the 
Child.

In recent years, as a result of social, economic, and legal 
reforms, ensuring children’s rights has become an 
integral part of state policy. While guaranteeing 
protection of these rights, several important laws and 
state programs have been adopted and are being 
implemented. The United Nations Convention on the 
Rights of the Child (CRC) was one of the first 
international documents on human rights to which the 
Republic of Azerbaijan signed up after gaining 
independence. Azerbaijan is also a party to two Optional 
Protocols to this Convention and periodically submits 
reports to the UN Committee on the Rights of the Child. 
The Law of the Republic of Azerbaijan on children’s 
rights adopted in 1998 is one of the progressive 
measures which have been taken to harmonise national 
legislation with international standards.

Protection and promotion of children’s rights has an 
important place in the activities of the Commissioner on 
Human Rights (Ombudsman) of the Republic of 
Azerbaijan. The Ombudsman’s first specialised report on 
children’s rights was prepared and submitted to the 
Parliament and government and provided 
recommendations on measures to be taken to improve 
the status of children. This report was also sent to the 
Committee on the Rights of the Child (CRC). Law 
Olympiads and art competitions conducted during the 
year played an important role in forming legal skills 
among children and youth.

The Ombudsman Office of Azerbaijan has been a 
member of the European Network of Ombudspersons for 
Children (ENOC) since 2008 and shares experiences on 
children’s rights protection and promotion by closely 
cooperating with this organisation.

In accordance with the Presidential Order of 
22 December 2008, and taking into consideration the 
Commissioner’s recommendations, the year 2009 was 
declared to be a children’s rights year in Azerbaijan. The 
implementation of obligations deriving from the 
abovementioned order, the efficient protection of 
children’s rights, and the related Action Plan were 
approved in order to defend children’s interests. This 
Plan provides provisions on the protection of the rights 
of three million children and the effective resolution of 
their problems.

Family, Women and Child Issues. The purpose of state 
control is to protect children’s rights and interests 
guaranteed by the Constitution and national legislation, 
to create favourable conditions for children’s rights, and 
to eliminate the violation of those rights.

This year has also been very productive for the 
Commissioner in respect of the investigation of 
complaints, public awareness activities, preparing 
recommendations, and finding solutions to certain 
problems regarding children’s rights. In doing so, the 
Commissioner has actively cooperated with relevant 
state bodies, international organisations, NGOs, and the 
mass media.

In order to draw attention to the current problems in the 
field of children’s rights and to take necessary measures 
to improve them, the Commissioner, as every year, 
initiated a month-long campaign on the eve of the 
anniversary of the UN Declaration of the Rights of the 
Child for the period of 20 October-20 November under 
the motto “Lets listen to the children and ensure their 
participation”.

In the framework of this campaign, the Commissioner 
called the respective local authorities, NGOs, and mass 
media to hold events in this regard and to take an active 
role. Following the call, events were held in all regions of 
the country and the active participation of the 
communities and of children themselves was observed.

This campaign made a great contribution to identifying 
the current problems and to developing real solutions to 
the problems in secondary schools, high schools, 
orphanages, and universities. Training and seminars were 
held in this regard in the above-mentioned institutions, 
as well as in scientific and education centres on the 
promotion of children’s rights. The regular publication of 
a scientific newsletter and of essays on the effective 
protection and promotion of children’s rights was 
proposed by the Commissioner.

The regional offices of the Ombudsman Institutuion in 
Ganja, Guba, Shaki, and Jalilabad, as well as the 
respective local authorities and municipalities, actively 
participated in the events and roundtable discussions.

An important contribution to the protection and 
promotion of children’s rights was made by the 3rd All-
Republican Forum of Children, held in Baku on 
17 November, which was jointly organised with the 
support of the State Committee for Family, Women and 
Child Issues, the Heydar Aliyev Foundation, and the 
Children’s Fund of the United Nations (UNICEF), with the 
participation of the Ombudsman Institution and its 
children’s rights resource centre. Some 350 children, 
including those with special talents, those in need of 
special care, and children from other nations, as well as 
refugee and IDP families attended the Forum.

The progressive normative legal act, entitled “Rules on 
State Control of the Implementation of the Rights of the 
Child” was approved by the Presidential Decree dated 
8 May 2012. It provides for regular monitoring of these 
documents in cooperation with the State Committee for 

During the Forum, interactive discussions were held, 
with the participation of experts representing relevant 
state bodies, on such topical themes as “Let us love the 
Homeland and be worthy of it”, “Equal rights and 
opportunities for children”, “Application of new 

57 

The work of ombudsmen and similar bodies

standards in education”, “Children and Internet safety”, 
“Protection of the environment”. “Healthy lifestyle”, 
“Efficient organisation and appreciation of leisure”, “The 
role and responsibility of family and society in forming 
children’s personalities”, and “Let us convey the truth 
about Garabagh to the world”.

An appeal was adopted on behalf of the Forum 
participants to Azerbaijani President Ilham Aliyev, and a 
declaration was addressed to the world and to 
international organisations on behalf of the Azerbaijani 
children.

On 20 November, a cluster discussion of the UPR was 
organised at the Ombudsman Institution on issues 
including the problems faced by women and children, 
with the participation of the regional coordinator of the 
UN High Commissioner for Human Rights and of all 
stakeholders.

On 21 November, as a conclusion to the Month-Long 
Campaign and on the occasion of the 25th anniversary of 
the Convention on the Rights of the Child, an event was 
held in Parliament with the participation of children, 
parliamentarians, relevant state bodies, representatives 
of international organisations, NGOs, and the mass 
media. The currents problems and challenges relating to 
children’s rights were voiced at the event.

Contact
Elmira Suleymanova, Ombudsman; 
apparat@ombudsman.gov.az

58

Seminars 
and 
meetings

60

European Ombudsman

Transparency and public health – 
how accessible is scientific data?

International Right to Know Day, 
29 September 2014

To celebrate this year’s International Right to Know Day, 
the European Ombudsman, Emily O’Reilly, organised an 
event entitled “Transparency and public health – how 
accessible is scientific data?” The event sought to 
examine the importance of transparent scientific data, 
and more specifically clinical trials data. Patients, 
doctors, and researchers need it to make informed 
choices in relation to the medicines they take, prescribe, 
and analyse respectively.

The event took place on 29 September 2014 at the 
European Parliament in Brussels. It brought together 
representatives of the European Commission, the 
European Parliament, public affairs consultancies, legal 
professionals, industry, NGOs, journalists, researchers, 
and activists, attracting in total around 150 participants. 
The event was webstreamed live.

The speakers were: Margrete Auken, MEP, shadow 
rapporteur for the new EU Clinical Trials Regulation; 
Guido Rasi, Executive Director of the European 
Medicines Agency (EMA); Ben Goldacre, physician, 
academic, and author of Bad Pharma; and Richard 
Bergström, Director-General of the European Federation 
of Pharmaceutical Industries and Associations (EFPIA). 
Frédéric Simon, publisher and editor of EurActiv, 
moderated the event.

Ms O’Reilly welcomed the participants, stressing the 
importance of transparency with regard to clinical trials 
data. Mr Simon cited the EU’s new Clinical Trials 
Regulation, EMA’s new proactive policy on transparency, 
the changing political environment, responsibility, and 
transparency, as some of the key elements for discussion. 
It took place in the wider context of the Open 
Government Partnership (OGP), whose objective is to 
render public administration more open, accountable, 
and responsive to citizens.

Ms O’Reilly reminded the audience of the role of her 
office, which is to ensure that the EU administration acts 
transparently and responsibly. She called on the EU 
regulatory agencies to adopt convergent policies on 
transparency. The Ombudsman had opened three 
transparency cases concerning EMA in the previous five 
months, the first of which relates to access to the clinical 
study reports of a medicine. She started the inquiry after 
EMA backtracked on disclosing the reports in full, after 
accepting an out-of-court settlement with the company 
marketing the medicine.

However, Ms O’Reilly commended the Agency for its 
commitment to proactive transparency. She announced 
that she would closely examine EMA’s proactive 
transparency policy once it is adopted, to ensure that it 
meets the highest standards.

61 

Seminars and meetings

That clinical trials data is the property of patients, and 
not that of pharmaceutical companies, was the 
overarching principle of Ms Auken’s message. For the 
MEP, transparency, which is enshrined in EU law, is for 
the good of patients and humanity in general. She 
criticised pharmaceutical companies for attaching too 
much importance to financial gain, to the detriment of 
human and environmental health. The MEP also said that 
pharmaceutical products are overpriced, and that 
conflicts of interest in industry-EU administration 
relations are rife.

Ms Auken stressed that except for a few small political 
party alliances, industry enjoys overwhelming support 
within the European Parliament. She also said that 
industry lobbied the new European Commission 
presidency to the point that it plans to switch 
responsibility for pharmaceutical matters from the 
Directorate-General for Health to that of Enterprise. She 
wishes to see more transparency regarding declarations 
of interest among policy-makers.

Mr Rasi named the high number of requests for access 
to documents in 2011 as what prompted EMA to 
establish a new proactive policy. The Agency wanted to 
increase transparency in methodology and allow for 
public scrutiny, avoid duplication of clinical trials data, 
and foster new ideas and new research. The Agency’s 
Executive Director explained that EMA’s new proactive 
transparency policy aims at making data available only 
for research and non-commercial purposes. The policy 
clearly spells out redaction principles. EMA plans to start 
making clinical trials data available in 2015.

Mr Goldacre demonstrated how difficult it is to make 
informed decisions about treatment, as long as 
important information on the methods and results of 
clinical trials are withheld from doctors, researchers, and 
patients. Although he welcomed the new EU Regulation 
as a valuable step forward, he also pointed to the 
enormous gaps it contains. The Regulation, for instance, 
does nothing to facilitate access to information on 
medicines that are already on the market.

Lamenting industry’s active lobbying against change, 
Mr Goldacre specified that the registration of clinical 
trials, methods and results, study reports, and individual 
patient data should be disclosed. He warned against the 
sudden surge of interest of certain industry groups, such 
as Pharma and EFPIA, and patients groups, in the 
protection of individual patient data. Mr Goldacre 
interprets this interest as a strategy to impede the 
sharing of clinical trials data.

To highlight the importance of the pharmaceutical 
industry, Mr Bergström said that it spends 100 billion 
Euros on research yearly, compared to the EU’s 15 billion 
Euros. He reported that pharmaceutical companies were 
already sharing data on a large scale, albeit selectively. 
Having committed to sharing data with all stakeholders 
in 2014, Mr Bergström said that industry’s next step 
would be to start sharing data with civil society 
organisations.

With respect to study reports, the panellist said that EU 
law allows parts of data to be redacted to protect 
commercially confidential information. He also 
announced that most EFPIA members had promised to 
make historical data available, and that they would start 
publishing details of their financial relations in 2016.

Participants raised several questions and made 
comments, which mostly revolved around conflicts of 
interest in the EU administration-pharmaceutical industry 
relations, the need for a convergent policy between the 
EU regulatory agencies and chemicals and 
pharmaceutical industries on transparency, and the 
influence of pharmaceutical companies – on both sides 
of the Atlantic – on the Transatlantic Trade and 
Investment Partnership (TTIP) negotiations.

Attendees also spoke of the need for the public to 
scrutinise the pharmaceutical industry’s activities, to 
involve specialists in risks-benefits assessment, to hold 
more public hearings with stakeholders, to disclose 
information on the adverse effects of medicines, and to 
safeguard the rights of patients.

You can watch the event at:  
http://www.ombudsman.europa.eu/en/activities/
calendarevent.faces/en/864/html.bookmark

Contact
Gundi Gadesmann; 
gundi.gadesmann@ombudsman.europa.eu

Germany

Ombudsman of the State 
of Rhineland-Palatinate
Workshop of the parliamentarily-selected 
Ombudsman on 20 May 2014, in Mainz

Moderators, interpreters and guides for all citizens

At the invitation of the Ombudsman of Rhineland-
Palatinate Dieter Burgard, the parliamentarily-selected 
Ombudsmen of the German federal states met in Mainz 
for a workshop for the network.

The meeting served to further close cooperation and to 
exchange information between Ombudsmen and their 
deputies, from Schleswig-Holstein, represented by 
Samiah El Samadoni, from Mecklenburg-Vorpommern, 
by Matthias Crone and from the Free State of Thuringia, 
by Dr Kurt Herzberg. 

Dieter Burgard was particularly delighted that the 
President of the European Ombudsman Institute Dr Burgi 
Volgger from South Tyrol and the General Secretary 
Dr Josef Siegele from Innsbruck took part in such a 
meeting for the first time as special guests.

The President of the State Parliament Joachim Mertes 
welcomed the guests and emphasised the importance of 
the institution of Ombudsman, which has successfully 
existed in Rhineland-Palatinate for 40 years.

The deliberations focused on current issues in relation to 
welfare legislation, further advancement of the right to 
petition, inspection of files and child benefit matters. As 
a matter of principle, the Ombudsmen criticised the 
comprehensibility of administrative correspondence and 
notifications. Simpler language should be put into 
practice here.

By order of the state parliament, ombudsmen lend their 
support to citizens as a trusted person in disputes with 
authorities. Through the Ombudsman, a face is given to 
the right to petition. There should be greater adoption 
of the ombudsman idea regionally and throughout the 
country. Having originated in Scandinavia 200 years ago 
and having enjoyed success in Europe, an independent 
parliamentary institution only exists in some federal 
states in Germany.

Contact
Désirée Rausch;  
desiree.rausch@derbuergerbeauftragte.rlp.de

62

Red Europea de Defensores del Pueblo 
Europäisches Verbindungsnetz der Bürgerbeauftragten
European Network of Ombudsmen
Réseau européen des Médiateurs
Rete europea dei difensori civici

1 avenue du Président Robert Schuman  
CS 30403 
F - 67001 Strasbourg Cedex 

T. + 33 (0)3 88 17 23 13 
F. + 33 (0)3 88 17 90 62
www.ombudsman.europa.eu
eo@ombudsman.europa.eu

If you require a large print version of this publication, 
please contact the European Ombudsman’s office. 
We shall also endeavour to provide an audio version 
upon request.

QK-AB-15-022-EN-N
ISSN 2363-3352