Ermir Dobjani*** and
As the Ombudsman concept has spread around the world, the original idea has been modified and implemented in various legal, sociological and economic contexts. In this process, the bilateral assistance and co-operation between Ombudsmen and their institutions has proved to be a particularly important factor.
In a bilateral assistance and co-operation project, experiences are exchanged both ways, yet the parties involved enter a field where different interests and ideas might clash. Projects are fragile and success depends on a delicate balance and interaction between various elements and persons involved.
By comparing almost fifty years of experiences from building the Danish Ombudsman institution with the experiences from some of the assistance and co-operation projects in which the institution has taken part, it becomes clear that certain phases and problems surface in a specific pattern. Solutions to the problems, naturally, differ.
This article will track and systematise some of these common problems and observations. Part One, written by Jens Olsen, systematises general problems and observations, and Part Two, written by Ermir Dobjani, Søren Knudsen, Jens Olsen and Christian Møller, contains reflections and observations on a specific project, viz. the assistance and co-operation project between the Albanian People´s Advocate and the Danish Ombudsman.
* Senior Legal Adviser to the Danish Ombudsman
** Lieutenant Colonel, Danish Army, former Programme Coordinator for Danida in Tirana
*** People´s Advocate in Albania
**** IT Manager at the Danish Ombudsman
On 1 April 1955, the first Danish Ombudsman, Professor Stephan Hurwitz, inaugurated his institution in the Danish Parliament. As in all later cases, when Ombudsmen have become part of legal structures, the inspiration came from a country where a similar institution was already in operation. In Denmark's case, the inspiration came from Sweden, along with Swedish assistance brought in by Professor Nils Herlitz.
Since then Danish Ombudsmen have themselves helped to inspire and assist new institutions around the world. For many years, it was mainly as one-man operations, usually giving out information and advice on the Ombudsman and his work at lectures and conferences. Resources were limited, and from time to time the Ombudsmen had to decline requests for assistance.
Operations in this field have lately expanded considerably, and the Danish Ombudsman is now assisted by a specific section of his staff when receiving guests, participating in seminars and conferences, and implementing assistance and co-operation projects. This expansion has been made possible by a special contract, approved by Parliament, with the Danish Ministry of Foreign Affairs.
The contract raises questions of a fundamental nature.
The contract provides for the human resources that enable the Ombudsman and his staff to take part in for instance assistance projects. Without receiving instructions from the Ministry on the content of his considerations and work, or in other ways compromising his independence, the Danish Ombudsman is now able to offer his assistance on a regular basis. The Ombudsman is still not in a position to offer any funding for activities; his contribution is exclusively on the intellectual level; he is invited to assist with his specific knowledge and expertise, usually as part of a broader support to a specific country and its development towards wealth, stability and democracy. Reports on the necessary steps and elements of future support are analysed and discussed between the institutions involved and later a report is handed over to the funding party. The expenses and the final decision on whether to proceed with the project are left to the funding party.
It is only natural that the three parties - the funding party, the receiving party and the consultancy party (the Danish Ombudsman) - occasionally disagree on the right procedures and objectives for a potential project. Here it is crucial that the players know their position well and respect the interests of the other parties and, more importantly, that they are ready to seek compromises and leave behind fixed ideas of what is right and necessary and how to measure the impact of the project.
In the triangle of various interests, coalitions will appear as the process moves along: as an example, the funding party and the consultancy might want to put pressure on the receiving institution to make it adopt specific ideas or routines; the funding party and the receiving institution might push the consultancy to abandon what it believes to be fundamental principles; or the two Ombudsmen institutions may disagree with the funding party on how to measure the outcome of an assistance project.
Such differences in interests or criteria for success do not later prevent the Ombudsmen institutions from expanding, on their own terms, the relationship already established and continuing the co-operation along lines that they define themselves. Co-operation projects very often become logical extensions of assistance projects.
When possible, it is also natural to develop a local network. The development of a local network should be an integral part of any assistance project and in this respect, because they often know each other in advance, Ombudsmen are able to identify and bring together possible partners in a future network.
If an assistance and co-operation project between two institutions is launched, some basic positions and considerations should be made clear from the beginning. The consultancy party has very often been in operation for years, while the receiving party is just starting up or has been in operation for only a short time. In principle, this basic imbalance makes the position for both parties fragile and might even endanger a positive outcome, chiefly because the parties are independent bodies, struggling to prove and safeguard their professional credibility. The first encounters and contacts are often very complex, and differences in cultural and sociological norms and in communication might easily become obstacles to a successful project. The more awareness and knowledge there is about these dangers from the beginning, the smaller the risk. So it goes without saying that results from for instance the sciences of development communication, psychology or anthropology to a large degree can be transferred and used directly by all parties.
When comparing the history of the establishment and development of the Danish Ombudsman institution with the experiences from the assistance and co-operation projects in which the institution has taken part, one finds phases, problems and observations surfacing in a fixed pattern. This article will track and systematise some of these phases and common problems and observations. The aim is not to describe the subject in every detail, but rather to trace and describe general patterns. A specific example, the assistance and co-operation project with the Albanian Ombudsman, will illustrate the ideas.
PART 1 - GENERAL PROBLEMS AND OBSERVATIONS
At least three well-defined phases can be identified in the process of making an Ombudsman institution function well: an initial phase where the Ombudsman concept becomes part of the agenda and a battlefield for various administrative, political, legal and economical interests; a second phase where the institution is organised (or reorganised) and starts its operations; and a third phase where the institution is running, consolidating its position and finding practical solutions to a variety of organisational, legal and political problems.
Assistance and co-operation can be implemented in any of these phases and each phase has its own specific problems and logic.
THE INITIAL PHASE
Dissemination of the concept
Since 1955, Danish Ombudsmen have participated actively in the dissemination of the Ombudsman concept throughout the world. By providing information, advice and support to groups and individuals, Danish Ombudsmen have striven to pass on the basic tenets of an institution which, when functioning well, is an important element in the delicate balance between the legislative, judiciary and executive powers.
The torch was passed to Denmark from Sweden, and since then the Danish Ombudsmen have seen it as part of their obligations to participate in the dissemination of the Ombudsman concept to any country and culture which would like an introduction from the Ombudsman himself. In this crucial phase, the Ombudsmen themselves are very important figures (see Ermir Dobjani's report in Part Two, Section One, on this issue).
As experience has shown, information and support in this phase are more easily provided when a committed Government or Parliament is behind the initiative. But very often the initiative to establish an Ombudsman institution stems from individuals or private organisations; this does not necessarily mean that the Government and/or Parliament in question are opposed to the idea, but the driving force is primarily found in individuals or civil society generally.
In 1997, the Danish Ombudsman received a visit from a member of the Japanese Senate, Mr. Ueno. Mr. Ueno was already familiar with the Scandinavian Ombudsman model and, following his visit to Copenhagen, took upon himself the trouble and expense of translating a book on the Danish Ombudsman into Japanese. Similarly and recently, the Danish Consul-General in Jordan, Mr. Kawar, took the initiative to invite the Danish Ombudsman to participate in seminars in Jordan on the topic of Ombudsmen and their work.
The Danish Democracy Fund has agreed to fund the translation and dissemination of the above-mentioned book, "The Danish Ombudsman"1), in order to facilitate access to literature on the topic in Arabic. At this moment, the Armenian Ambassador to Denmark, Mr. Karmirshalyan, together with the Ombudsman office in Copenhagen is embarking on a co-operation project and seeking funding through the Danish Democracy Fund for raising awareness of the Ombudsman concept and, if possible, for assisting the future institution in Armenia.
In situations where support is given to individuals or groups in civil society, and not to governments, there may of course be a risk that the support is misinterpreted and becomes part of an emotional, domestic, political confrontation that interferes with the basic intention. Considerations on whether or to what extent the support from the Ombudsman should be given will obviously include such deliberations, and here it is of great importance for any Ombudsman to have close co-operation and an open dialogue with the domestic Ministry of Foreign Affairs.
In Denmark, one person became especially associated with the Ombudsman concept: Bertel Dahlgaard. He belonged to a political party and was chairman of the special sub-committee of the Commission of 1946 which drafted the 1953 Amendment of the Constitution. Mr. Dahlgaard was very committed to introducing the Ombudsman concept in Denmark, along the lines of the Swedish Ombudsman. It is of course difficult to say what would have happened if Mr. Dahlgaard had not been there to promote the establishment of the Ombudsman institution, but the political interests for and against were many and very different, ranging from sceptical approval to direct opposition. The process of adoption may seem a bit chaotic and the words of Sir John Robertson on the New Zealand process may be quoted here to cover the Danish experience as well: "Many people and organisations were involved without any conscious degree of unanimity as to the best way of going about it" 2).
This pattern, where one or more individuals dedicate their time and effort to work for the establishment of an Ombudsman institution, Sir John explains, was also experienced in New Zealand, where the then Attorney-General of the Labour Government, Dr. John Robson, and the Minister for Justice, the Hon. Ralph Hanan, became inspired by an article written by the former Danish Ombudsman, Professor Stephan Hurwitz. Later these two individuals became crucial forces in the process of establishing the Ombudsman institution in New Zealand and from there reaching the Commonwealth and English-speaking part of the world.
The struggle to find the right model
In New Zealand, Sir John explains, the Ombudsman concept became part of a government strategy to fulfil the promises in its party manifesto of 1960, saying that: "Any person concerned in an administrative decision may have the decision reviewed. The procedure should be simple and ..." 3).
In the case of Denmark, it could broadly be said that the idea of an Ombudsman institution met much sympathy because the country, at the time in question, was experiencing an ever-increasing executive power, regulating still more issues important to the individuals, and because influential circles in law and politics had placed a strong focus on the issue of legal protection of the individual.
In other countries, the Ombudsman concept has come about as an extension of abrupt transitions to democratic rule, and especially from the acute need to protect fundamental human rights and/or change scourges of previous administrative cultures such as corruption and bribery. The establishment of an Ombudsman institution may also be the result of conditions imposed or international pressure for democratic institutions in the wake of financial support.
No matter how the idea of introducing an Ombudsman becomes part of the political agenda, the debate will very soon focus on how the Ombudsman institution is going to fit into the existing power structure and more specifically how the relationship with the legislative power, the judiciary and the administration will be outlined.
Until 1953, Members of the Danish Parliament still had a role to play in handling complaints from citizens in Denmark and there was even a specific Parliament Committee for Petitions. In 1939, Denmark saw the first attempt to introduce a new system whereby Parliament was more or less relieved of the responsibility for assisting and guiding complainants. This was to a large extent due to the realisation that the development in society towards a more complex and legalised structure had reached a level where citizens needed full-time professional assistance rather than the support of politicians, who very often did not know the legal details of the matter in question.
In other countries such as Germany and the UK, Members of Parliament still play a role in relation to complaints from citizens. In Germany, they form the various Petitions Committees and in the UK, the Commissioner may only investigate cases referred to him by a Member of the House of Commons.
Bertel Dahlgaard wanted a strong Ombudsman in Denmark - an Ombudsman who rather like in Sweden was able to supervise the courts to some extent. The reason for this wish may have been a series of notorious cases from the period before and during World War II. However, the majority in Parliament was not interested in this type of Ombudsman. The judiciary must be kept out of the reach of the Danish Ombudsman. However, the wording of the Ombudsman Act was not very clear on this point and the Ombudsmen had to find practical answers to the powers of the Ombudsman institution on a case-by-case basis until 1997, when the act was finally amended4).
The Scandinavian Ombudsmen maintain close contact with strong Parliaments. They act on behalf of Parliament when exercising their supervisory task, thereby ensuring that the executive power keeps within the boundaries of the rules and principles that govern the exercise of that power. It is quite obvious that a strong Parliament is an advantage to any Scandinavian Ombudsman when confronted with public authorities that might not be inclined to listen and, conversely, it makes the job of the Ombudsman very difficult and unstable if Parliament is divided on issues regarding the Ombudsman and his performance.
However, a formally strong institution may well be the answer if it is facing a strong executive power and only has a relatively weak Parliament to fall back on.
An analysis of the legal basis of for instance the Ghana Commission on Human Rights and Administrative Justice (CHRAJ)5) shows quite clearly that the specific context in which CHRAJ was going to operate in 1993 made it logical to provide the Commission with powerful formal tools.
CHRAJ got other and more wide-ranging powers than for instance the Danish Ombudsman in relation to the follow-up and enforcement of opinions and decisions. This appears from Section 9 in Act 456, viz. that: " For the purpose of performing his functions under the Constitution, this Act or any other law, the Commissioner may bring an action before any court in Ghana and may seek any remedy which may be available from that court."
Powers of this nature reflect the need in Ghana for a strong institution if it is to be able to push through and exercise its powers. On the other hand, being powerful in such circumstances requires relatively many human resources, and CHRAJ has to invest heavily in this field in order to retain its credibility among the population. In other words, the specific context of CHRAJ entails in advance that many resources will be tied up in ensuring the survival of the institution, by maintaining the institution's credibility among the population as an effective means of access to justice.
However, wishes for powerful institutions to secure fundamental rights and administrative justice might end up in a Catch 22-situation if the wishes are not followed up in the national budget thinking and planning. And it is sometimes a dilemma for Ombudsmen expected to be powerful that there is not sufficient funding for building and running this type of forceful institution.
Being aware of the administrative context and history is of utmost importance when fitting the Ombudsman concept into a new structure: which role is the Ombudsman going to play in the pattern of complaint possibilities? Is there an existing administrative court system? What are the regional and governmental structures and powers, etc., etc.?
Since the mid-1970s, the Danish Ombudsman has systematically contributed to the development of principles for good administrative behaviour. One of the reasons why this effort became possible and successful was the already existing and historically evolved basic conception of good governance within the public administration itself. It goes without saying that in such a historic context Ombudsmen find their work much easier than in a context where the concept of good governance must continually be developed and reiterated in relation to reluctant authorities and public servants.
Sometimes the desire to kill several birds with one stone arises as a consequence of shortage of funding, and the idea of establishing an Ombudsman institution is combined with the wish for instance to establish a specific human rights institution, which is also allowed to process complaint cases, at the same time.
The idea is obvious, as the two fields of operation to some extent are interlinked in so far as Ombudsmen have to include human rights principles and regulations as part of their basis of assessment.
In Denmark, Parliament in 1987 decided to establish a Centre for Human Rights (amended in 2002) 6). As mentioned in the political debate about this new institution, it was intended to establish independent research into human rights questions, to promote education and information on human rights and to support international co-operation on human rights. But in Denmark, the Centre was not going to deal with individual complaint cases.
In Ethiopia, a long process of consideration resulted in the creation of an Ombudsman institution as well as a Commission on Human Rights7). Both institutions may process complaints and are at the same time independent. So far, the process of electing an Ombudsman and a Commissioner is still underway, but Ethiopia is probably left with some quite difficult practical and fundamental issues concerning the implementation of parallel and partly joint institutions.
In Ghana, the Commission on Human Rights and Administrative Law was given a very broad mandate when it was established in 1993 - also, presumably, as the result of a wish to kill several birds with one stone. According to Article 218 of the Constitution of 1992, it is the duty of the Commission to investigate complaints about violations of fundamental rights and freedoms, complaints about the functioning of governmental bodies, the armed forces, the police, etc., and complaints about practices and actions by persons and private enterprises that allegedly violate fundamental rights, as well as to take appropriate action to have these remedied, corrected or reversed, to investigate alleged or suspected corruption and to educate the public about human rights and freedoms. It goes without saying that such broad mandates probably do not make it easier to focus and have a durable impact when resources are scarce.
Over the years, the original Swedish Ombudsman institution has been subject to many modifications in order to make Ombudsmen fit into specific contexts. The literature has several times listed classifications, and much has been said and written about various models like the Scandinavian model, the African model, and so on. Over time, and as the many institutions around the world have appeared, the Ombudsman idea seems to have developed into a concept based on certain principles, such as the principle of independence, rather than remaining a uniform concept. But even this central principle has from time to time been curtailed, without necessarily warranting claims that the impact of the work performed under such conditions is not fully as effective as that of other, more "independent", Ombudsman institutions.
Complete independence is utopian in the sense that any Ombudsman will receive his powers from another body, be it a parliament, a president or for instance a king. In this sense, independence will always be curtailed: complete organisational and budgetary independence are luxuries that cannot be offered. The question then is how much and where curtailments of basic principles, like the principle of independence, can occur without depriving the institution in question of its ability to operate for the benefit of citizens and administration.
In Denmark, the Ombudsman can be summarily dismissed if he ceases to enjoy the confidence of a majority in Parliament8), and he is not protected by immunity. If this provision is taken out of the historical context in Denmark, one would say that the position and protection of the Ombudsman is very weak.
According to the Ghana Constitution, Article 225, the Commission on Human Rights and Administrative Justice is guaranteed independence in the performance of its duties. Historically, CHRAJ has had to fight for the fundamental principle of independence and already in his second Report for 1995, Commissioner Emile Short protested that: "Even though the Commission enjoys independence as it operates without interference from the Executive, Legislature and the Judiciary, it is constrained in its work by its lack of financial autonomy. The practice whereby the Ministry of Finance and Economic Planning can cut the Commission budget after a lengthy and cumbersome vetting process undermines the Commission independence as provided in Article ..."9) .
The Ghana Commission has been in operation since 1993 and despite the financial constraints that endanger its independence, it has succeeded in being recognised in Ghana and internationally as an independent institution that does not shy away from advancing and constantly arguing for its cases and fundamental principles. However, there is no doubt that the Commission has been and still is under an enormous financial and organisational pressure and that CHRAJ is balancing on the brink of what is possible.
Organising or reorganising Ombudsmen institutions
Assistance and co-operation in the phase of organising or reorganising an Ombudsman institution is a field characterised by a complex interaction of legal regulations, administrative norms, tradition and psychology. Therefore, assistance in this phase, aimed at focusing the institution on issues important to the Ombudsman, possibly requires even more flexibility and professionalism of the parties involved.
Very often, the freedom to organise or reorganise an institution is regulated by law: to mention just one example, in Spain "El Defensor del Pueblo" is incorporated in the Spanish Constitution Article 54 and further articles in the Organic Ombudsman Act regulate issues relating to his institution and his duties10). The Ombudsman is assisted by a first and second Deputy Ombudsman, approved by both Houses and appointed by the Ombudsman. Legal experts, the advisers, are freely appointed by the Ombudsman, but Article 36 states that Deputy Ombudsmen and Advisers will automatically leave office when a new Ombudsman is appointed by Parliament.
In Albania, the specifics of the People's Advocate Office are regulated by Statute No. 8454 of 4 February 1999, Chapter Five. Article 31 states that the institution must have three specialised offices, each headed by a Commissioner. The Assembly elects the Commissioners for a three-year period - unlike the People's Advocate who is elected for a five-year period.
In Ghana, the Commission consists of a Commissioner and two Deputy Commissioners, all appointed by the President, and pursuant to Article 220 of the Constitution, the Commission must have 9 regional and 122 district branches. This makes it a large organisation to manage, especially when there is insufficient funding and the possibility of closing one or more district offices is not an option.
In Denmark, the freedom of the Ombudsman to organise or reorganise his office is very broad. The Ombudsman can decide on the structure and modus operandi of the institution and over the years it has gradually changed as a result of the growing number of cases, staff and obligations. Parliament decides on the number of staff, but the Ombudsman hires his staff, and they remain employed after the election of a new Ombudsman. The Ombudsman Act does not specify that the Ombudsman should be assisted by a Deputy Ombudsman. However, the situation became increasingly critical during the 1980s and 1990s as the number of cases grew from 1,651 in 1986 to 3,423 in 1999. Of course, there must be a limit to how many cases one person can handle. So during the phase of preparing the amendment of the Ombudsman Act in 1997, the Ombudsman asked Parliament to accept a Deputy Ombudsman. Parliament refused, but in practice, and with Parliament´s knowledge and informal acceptance, the Ombudsman is de facto assisted by a Deputy Ombudsman appointed by the Ombudsman.
It is quite clear that these two different approaches to the question of freedom to organise the office both have their advantages and shortcomings. Institutions headed by one Ombudsman or Human Rights Commissioner may be more flexible and easier to organise or reorganise if required and sometimes even more powerful, because no consensus at the executive level is needed but, on the other hand, these institutions are dependent on one person's attitudes, psychology and miscalculations.
Organising and managing an Ombudsman institution are not only subject to legal regulations, but very much also to psychology, administrative traditions and management thinking.
Since Brenda Danet published her study on how to measure the quality of Ombudsmen´s work11), it seems as if new methods and thinking in the field of managing Ombudsman offices and their staff have increasingly become part of the standard thinking and routines of many Ombudsmen institutions around the world and it would seem that especially Ombudsmen in the Commonwealth countries have taken on the new ideas and committed themselves to publishing sets of values and strategic plans for their work 12).
The arguments put forward by various Ombudsmen institutions for introducing and publishing sets of values and strategic plans seem to focus on two statements and beliefs: that the quality of an Ombudsman´s work can be measured immediately and that an Ombudsman can abandon the reactive role and become proactive by setting explicit priorities in the strategic planning process, thus making it easier for the Ombudsman and his staff to focus and perform their duties.
From the perspective of the Danish history, one might doubt whether it is possible to measure the quality and impact of the Ombudsman at any given moment in time. It would appear that this can only be done after years of work and a substantial number of cases. Of course the quantitative performance of an Ombudsman can be measured by setting up various indicators, and a well-trained pair of eyes can easily detect an effective and well-respected Ombudsman, but simple and effective indicators are hard to come by.
The second argument focuses on what is believed to be internal benefits in the sense that having published values and priorities makes it easier to adhere to the choices made.
It goes without saying that from time to time any Ombudsman institution should take the time to analyse and discuss fundamental issues such as values and how to prioritise the work. No doubt the process itself can be beneficial to any institution, by helping to combat arrogance and self-indulgence, but the real concern is whether or not the daily choices and work of the Ombudsman and his staff will become easier?
In the Danish Ombudsman office we have chosen another approach, realising that everybody here will have to prioritise his efforts every day, and that a formal list of priorities probably will not help in the specific situation. More delegation and individual awareness of the responsibility imposed on everybody in an Ombudsman institution seem to be as effective and even suit our context better. In this way, the institution cannot guarantee uniform solutions, but instead enhance the chances of finding flexible solutions, which is very important when dealing with citizens who all have difficult complaint cases such as the ones presented to an Ombudsman.
However, this does not mean that Ombudsman institutions in general should avoid establishing up priorities and sets of values. On the contrary, this method may be the right way to initiate an important process of awareness building. The result is what counts: a focused, respected and effective institution.
The ability to manage an institution in a friendly and considerate way and the ability to delegate as much influence as possible are very important issues. It may be possible to keep well-qualified staff even at a lower salary than they could get elsewhere, if they are allowed to assume responsibility and if they feel that the institution is setting high standards with regard to professionalism, influence and staff policy. Ombudsman institutions have a specific responsibility here because they set and control the standards of the authorities.
In the Danish Ombudsman office, time has shown that one cannot organise an institution, far less reorganise an institution, without taking into consideration the people working there and their individual needs for recognition and guidance. This might sound banal, but over time the Danish Ombudsman institution has increasingly been forced to acknowledge this very basic fact. Staff policy has become a focus area. Although it has nothing to do with the Ombudsman and his work as such, it is an element that must be taken into account when organising a well-functioning institution.
This leads to one more observation: within the last five years, the Danish Ombudsman office has learned that the use of IT also has an impact on the organisation and attitudes among the staff.
For example, the institution does not need detailed knowledge of internal procedures from the Heads of Division any longer. Internal procedures can be looked up on the intranet, which enables the institution and its management to concentrate on other and more fruitful undertakings.
Running and consolidating the institution
Some of the fundamental problems during the period of consolidating and running the institution can be classified in two, interlinked, categories. The first comprises a set of problems deriving from the fact that the specific task of an Ombudsman is unique and to a large extent has its own nature and problems, involving considerations on how to strike the right balance between making decisions from case to case and developing solutions and experiences at the general level. A second set of issues derives from the fact that those involved in receiving complainants and complaints and developing standards of good governance must possess certain skills and need adequate organisation, proper tools and guidance in order to give their best.
The right balance between operations at the general and the specific level
When reviewing the development of the powers and the organisation of the Danish Ombudsman institution since it started its operations almost fifty years ago, one finds a theme repeated over and over again. This theme is brought up by many other Ombudsman institutions as well - the balance between an institution focused on resolving individual complaint cases and an institution transformed into a body supervising the general development of the rule of law as well as the general standards and attitudes within the administration.
In 1955, the Danish Parliament expected the Ombudsman to receive approximately 200 complaints a year, so the first Danish Ombudsman, Professor Hurwitz, was not given much assistance: one office assistant and one lawyer. He was allowed to take up cases on his own initiative. The idea was that in the performance of his duties the Ombudsman would be able to control the administration more effectively if he was not restricted to issues or authorities specifically identified in the complaints he received. So Parliament did foresee a balance between the two fields of operation: the individual complaint cases and a broader concept of control, on a general level.
After a few months, the estimated 200 cases had already been received and the Ombudsman institution was rapidly coming under heavy pressure from the increasing load of incoming cases.
This is not a unique Danish experience. All over the world, newly established institutions tend to become buried in actual complaint cases - African countries such as Ghana and Malawi or European countries such as Poland or Albania have shared this experience. In the beginning, the number of incoming complaint cases exceeds even the wildest expectations, forcing the institution to find individual solutions case by case, with no resources left for the general influence on development of the administration. It seems like a vicious circle.
This is a paradox, because the success of the Ombudsman to a very large degree depends on his ability to gain and retain the confidence of the complainants, which is clearly a part of the whole idea of an Ombudsman. On the other hand, great success might lead to more cases coming in and to a loss of confidence that threatens the institution's further existence if it turns out that the Ombudsman is not able to process and complete the incoming cases.
As a consequence of the burden of more incoming cases, the organisation quickly adapts to the situation. It automatically focuses on the processing of the complaint cases, while work at the general level is reduced.
When reviewing the history of the Danish Ombudsman institution, one finds deliberate and consistent efforts to control the number of incoming cases and at the same time make it possible to work at the general level. The legal framework and practices were adjusted in accordance with an actual development in the institution towards being able to focus on cases of general nature, but it became clear that the organisation and the professional skills of the staff also had to be adjusted in order to improve the performance at the general level.
In the first Danish Ombudsman Act, a provision in Article 6 said that the Ombudsman shall determine whether a complaint offers sufficient grounds for investigation11).
The intention was to enable the Ombudsman to dismiss the relatively few complaints that are manifestly ill-founded. Over the years, the statistics show that as intended this provision was only used very rarely and mostly in cases where the complaint was clearly without substance or impossible to understand. In 1986, the number of complaint cases rapidly increased, growing from approximately 2,000 cases a year to between 3,500 and 4,000, a level at which it has remained ever since12). Solutions had to be found to resolve this situation. The first, obvious solution was of course more human resources, and more staff was in fact supplied because Parliament realised the problem. However, more staff was not enough, partly because the additional resources were only granted some time after the problem had arisen. By the time the extra staff was in place, a considerable backlog of unprocessed cases had accumulated.
In order to cope with situations like this, the provision in Article 6 was gradually used to dismiss not only manifestly ill-founded cases, but also cases where the Ombudsman could clearly see that there was little or no likelihood of his being able to support the complainant. In other words, the provision was used as a first-hand decision to close cases without starting the normal procedures. In this way, the Ombudsman avoided the formal procedure, hearing the authorities that were involved, etc., etc. The Ombudsman was very quickly able to dismiss many cases that did not involve fundamental principles or had no chance of being supported.
Of course, the Ombudsman has to be careful that the use of this provision does not deny complainants access to justice, and mistakes may have been made. So far, the Danish complainants seem have accepted the fact that the Ombudsman is primarily concerned with cases where maladministration of some significance has actually occurred and not only been sensed by the individual complainant. But the acceptance is largely due to the efforts made to explain to the complainant why the Ombudsman does not take up the case for formal investigation. At the psychological level, complainants apparently first and foremost want explanations from someone independent and outside the administration, like an Ombudsman.
This practice started by reading and using the provision in Article 6, initially an article with a different scope. But in 1997, the Ombudsman Act was amended by Parliament13), and the practice of the Ombudsman was confirmed in the new Article 16:
"The Ombudsman shall determine whether a complaint offers sufficient grounds for investigation.
If a complaint gives the Ombudsman no occasion for criticism, recommendations, etc., the case may be closed without submission to the authority concerned for a statement, cf. Section 20, subsection (1)."
In other words, the Danish Ombudsman was allowed and even encouraged to concentrate further on cases involving fundamental and/or general issues.
This development away from the specific towards the general level is also found in other instruments developed by the Danish Ombudsman in his practices.
In 1988, a new investigation model was introduced. Instead of taking up individual cases for investigation on his own initiative, the Ombudsman from time to time takes up a whole sector for investigation. After selecting between 100 and 150 cases from a specific institution or area, and after processing these cases as if they were complaint cases, the Ombudsman will make a full report which he hands over to the authorities. In Denmark, the term own-initiative projects are used about these major, focused investigations of the authorities' administration of selected legal areas. For example there have been investigations of 150 fundamental cases from the Social Appeals Board14), of 105 cases from the former EU Directorate15), and of 100 cases involving the administration of family law by the Civil Law Directorate16).
In his final report, the Ombudsman not only lists the errors he has found, but may also make recommendations on how to change procedures, adjust interpretations, etc. In other words, the own-initiative project involves an entirely different and more systematic contribution directed at the authorities' general standard, which obviously enables the Ombudsman to influence the interpretation of good governance in a broader and more forceful way.
When the Ombudsman Act was amended in 1997, Parliament urged the Ombudsman to increase his inspection activities. From the beginning, the institution was expected to visit some of the premises where citizens were received and public employees worked, in order to secure a minimum standard of quality and fairness. Over the years, especially prisons and psychiatric hospitals have been visited. Since 1997, the inspections have increased in number and are carried out in a much more systematic way.
These examples demonstrate the desire to ensure that the Ombudsman in Denmark was not left solely with individual complaint cases. It is necessary to work at the general level, to discover and draw attention to general trends and patterns of errors and shortcomings in the administration. Working at the general level will allow the administration to improve in a much more systematic and effective way.
The human resources and the professional skills (once more)
The development in the Danish institution towards striking the right balance between cases at the specific and the general level can be paralleled at the organisational level of the institution.
In 1955, the institution took what was supposed to be the main focus area for its basis: the processing of individual complaint cases. Much energy was invested in making the structure of the institution reliable and the institution efficient. The registration had to be in place and the tracking of the cases had to be reliable in order to monitor the processing as well as being able to respond to any question at any time about how far the specific cases had progressed. The whole structure seemed to have one purpose: to make the institution able to process as many individual complaint cases as quickly and reliably as possible.
Many issues had to be tackled and resolved, and very soon the basic structure of the institution was established almost automatically in accordance with the Ombudsman's primary task: to process individual complaint cases.
The idea behind the structure was clear: when a complaint was received in the registration, it was handed on to a legal expert in a specific office. For many years, the institution had three sections/offices, which were each allocated a certain number of the ministries in Denmark. When the legal expert had finished his proposal for the final outcome of the case, it was handed over to the Head of Division and from there to the Ombudsman himself.
When the number of cases started to increase and general issues and management problems started to put pressure on the institution, the structure was no longer able to cope with the situation. The solution was to create the function of a deputy Ombudsman, introduce IT solutions and establish a new department to deal with all internal and general matters17).
The IT system and management were improved. In order to work at the general level, it was necessary to upgrade the IT system as an integral part of daily case management and routines, capable of supporting the needs of the institution in terms of statistics, Annual Report, retrieval of precedent cases and systematic searches18).
In new institutions, the number of incoming cases very often exceeds the expectations and causes the original design and proportion of the institution to break down. However, new institutions are rarely able to obtain the additional human resources needed. The stress resulting from the inadequate number of staff is often combined with an enormous need for further training and development of the existing staff.
It is also very common to see a brain drain from relatively new institutions. The salaries are usually not very high and well-educated staff can find much higher salaries elsewhere in the private and even in the public sector, so new Ombudsman institutions risk finding themselves in a very vulnerable situation, partly due to the shortage of manpower, partly due to the brain drain and constant need of training. To add further difficulties, it is impossible to find partners in the international donor community willing to fund higher salaries or the hiring of more staff. Other solutions have to be found, and here all kinds of creative and flexible measures are welcome.
The effort to develop a satisfied and competent staff is not only an issue for new institutions. In Denmark, the Ombudsman institution has tried to find solutions to various problems and wishes from the staff developed over time, such as flexible working hours, leave and rotation opportunities, etc., etc.
The staff very often needs IT training, and the more and better training they receive on up-to-date equipment, the better chances they will later have on the labour market. In other words, a well-functioning, modern institution with up-to-date IT solutions stands a better chance in the competition for well-qualified staff, even if the salaries are lower.
Secondly, as indicated earlier, IT back-up solutions can be part of the answer to a growing number of cases. Of course IT equipment cannot process or finish the cases, but IT can be a better and more secure way of keeping track of the growing number of cases. At the same time, IT solutions can improve the capacity and quality of the work of the individual legal officer by making it easier to find information and prepare and process the cases.
Study tours are useful tools in the process of exchanging experiences on routines and case handling. The study tours can also focus on similarities and differences in management, and this issue, as mentioned before, is crucial in relation to attracting and retaining human resources. Study tours can be part of a deliberate strategy to attract and retain qualified staff. Occasionally donors regard study tours with some disbelief, and rightly so, if they are not properly organised and focused. But in the co-operation with other Ombudsmen institutions, the Danish Ombudsman office has proposed and organised study tours for staff and management, apparently with the result that key members of staff have stayed at the institution longer than expected.
Prelude to Part Two
Based on the experiences of the Danish Ombudsman institution and the projects with which it has been involved, this article identifies three distinct phases in the development and consolidation of an Ombudsman institution. The first phase, where the Ombudsman concept is disseminated and the struggle to find the right model in a new context begins, has proved to be particularly suitable for co-operation projects. In Part Two, Section One, People´s Advocate Ermir Dobjani therefore describes this very important phase of a specific assistance and co-operation project: Albania.
In Section Two, former Programme Coordinator Søren Knudsen presents some personal remarks on the project and in Section Three Jens Olsen and Christian Møller describe some of the experiences in the Danish Ombudsman office.
PART TWO: AN ACTUAL PROJECT IN ALBANIA
SECTION ONE: THE INITIAL PHASE
The idea of establishing an Ombudsman institution in Albania, its rapid progress and its success in raising the confidence of the public in this new institution is impressive because the social trauma experienced over the last 10 years, due to the changing of the political system, could not be responsibly managed by the traditional institutions of the state. It is enough to point to the chaos and anarchy of the year 1997, followed by the collapse of the state along with its institutions. The international community, which had been present since 1991 with the initiation of democratic processes in Albania, therefore implemented a new strategy after 1997. This was not based on economic survival aid, or on unconditional financial assistance to the Albanian Government, but rather on development programmes for establishing and strengthening the Albanian state institutions.
The new Albanian Constitution, approved through the 1998 referendum, was identified as a contribution from local as well as international experts. Five articles of this new Constitution provided for the establishment of the People`s Advocate Office, its rights and duties, its status and its main powers. In February 1999, the Albanian Parliament passed the People's Advocate Act with 40 articles.
When the establishment of the People`s Advocate (Ombudsman) was under discussion, and before the approval of the Constitution took place, some surveys undertaken by various NGOs revealed that the Ombudsman concept was unknown to most of the persons interviewed, including lawyers and sociologists.
In December 1999, the public national television channel broadcast four programmes informing the Albanian viewers about the experience of the Danish Ombudsman. In this way, a certain level of knowledge was conveyed to the public and the politicians about this very new institution, which was "very important even though its recommendations had no binding powers". Apparently, it was admissions of this kind which to the Albanian citizens implied important issues in relation to the effectiveness of the institution. Was it possible that "a new institution with no binding powers, but very important" would appear two years after all traditional state institutions, even those of justice and police, had been destroyed in 1997? At that time (1999), the same image was presented by the media, which returned to the idea of the Ombudsman only when Parliament started its discussions on the election of the first Albanian Ombudsman in February 2000. Press analysts showed sympathy for the new institution which "would minimise corruption" or "would handle complaints of the citizens against public administration", but how, with what powers, who and against whom? This remained an obscure vision, because the outcome seemed vague even to the most optimistic individual.
Nonetheless, the election process for the People`s Advocate by Parliament was quite open and democratic. There were 15 candidates, but Ermir Dobjani won with more than 2/3 of the votes from all political forces represented in Parliament. The work of the Ombudsman started after 16 February 2000, when the first Albanian Ombudsman was asked the first questions, such as: " Have any complaints been lodged with you?", "Will you process the complaints?" and even: "Where is your head office located?", "What are you working with?", "Who are you working with?", etc.
The main questions related to the Ombudsman himself: "How will you face the challenge which you yourself have initiated", "The institution was legally envisaged but will the social and administrative context accept it" or "How will the institution be orientated in relation to the controlling system and the balance among the three powers".
"Will the Albanian traditional institutions accept with this new institution when it appears to oppose decisions made by the administration and its employees?"
The establishment of the Albanian People`s Advocate Office involved several international bodies, especially the Council of Europe and OSCE. The international pressure was helpful in establishing the democratic institutions and, following the financial aid to Albania, was positively associated with a coordinated support, offering consultancy, developing ideas, supporting initiatives and providing financial guarantees for the new institution, whose Organic Act was a combination of the Danish and Swedish Acts.
The strongest guarantee was undoubtedly the allocation of DKK 7.7m from the Danish Government within the framework of a Danida programme.
The establishment of the Ombudsman institution
Meanwhile, two weeks after the election of the People`s Advocate, a forum was created called "The Friends of the People`s Advocate", composed of representatives from the most powerful international bodies in Albania such as the Council of Europe, the OSCE, the Royal Embassy of Denmark, the American Embassy, AbaCeeli and even representatives from some Albanian NGOs experienced in the field of human rights protection. They expressed their willingness to lobby and provide support for the establishment of the institution.
For the further independence of this institution, a group of MPs in April 2000 took a legislative initiative which resulted in the amendment of Article 35 of Act No. 8454 of 4 February 1999, the People's Advocate Act, by empowering the People`s Advocate to decide on the office structure and number of staff himself.
In May 2000, three months after his election, the People's Advocate had at his disposal very limited premises, consisting of three rooms for the use of himself, the three Commissioners, the Secretary General and four other support staff. The Internal Regulations of Work and the Code of Ethics of the institution were also produced in May 2000. In June 2000, the process of hiring legal experts ended with the hiring of the fifteenth legal expert selected among 60 applicants who had all been submitted to an admission test, pursuant to the Civil Servants Status Act. Meanwhile the Albanian Government in July 2000 offered the People`s Advocate ten offices located in the centre of the capital, opposite the Prime Minister's building, a very suitable place and easily accessible for the citizens.
Before the People's Advocate started work and began opening the first letters received (15 June 2000), he undertook two study visits. He visited two counterpart institutions, in Sweden and Slovenia, where the first necessary input was received for the fundamental orientation of an Ombudsman's work. 1) The processing of the complaints by each section (composed of five legal experts), headed by the respective Commissioner elected by Parliament with a three-year mandate. 2) Public relations, where the media relations were established as a permanent priority in order to establish the institutional integrity and credibility necessary to guarantee the success and effectiveness of such a new institution.
As the mandate of the People`s Advocate was to safeguard the rights, freedoms and lawful interests of the Albanian and foreign citizens living in Albania from unlawful and incorrect actions or failure to act by public administration bodies and third parties acting on their behalf, the People`s Advocate had to employ an independent system of service for the citizens and raise the level of confidence in his institution. The intention was to attain such standards that the recommendations and opinions provided by the new, modern institution would be high quality and incontestable.
From the beginning, the People` Advocate focused on complaints about issues which affected a large number of Albanian citizens. Resolving these complaints meant that the People`s Advocate needed to intervene in decisions made by the main state institutions or provide recommendations on the improvement of legislation to obtain positive results. An example is the complaint by a former landowner, whose land had been expropriated by the Communist regime and used by the Communist state to build a factory, which was now being privatised. The landowner was invited to become a shareholder but the value of his land, and consequently the value of his share, fixed by the Government was very low. This was an evident violation of his proprietary right and the People`s Advocate therefore recommended that the Government change its decision on the matter. The Government refused to consider this recommendation, so the People`s Advocate had to refer the case to the Constitutional Court. The Constitutional Court considered the case a flagrant violation of human rights and rescinded the Government's decision as recommended by the People`s Advocate. The decision on this complaint in favour of the complainant benefited hundreds of former landowners in Albania.
The positive impact of this case on Albanian public opinion is understandable, as it suggested the Government had been "taught a lesson" by the very new institution of the People`s Advocate. This had an effect upon all other institutions in the Albanian public administration, which learned that the recommendations of the People`s Advocate should be considered, respected and implemented. Other, similar cases have been encountered and resolved.
Embracing the philosophy of the Ombudsman being unique in each country means that the individual Ombudsman institutions can be progressed and consolidated through the exchange of experiences with each another. So far, the People`s Advocate has received 12 Ombudsmen and several foreign experts. The meetings of the foreign Ombudsmen with the highest authorities of Albania have enabled the appropriate messages to be conveyed in order to ensure that the People`s Advocate in Albania is given the appropriate environment and considered positively by the authorities as well as by the general public. Through media coverage, the public has been well informed of these visits, which have had their effect in raising public confidence in the institution.
The People's Advocate and the Danish Parliamentary Ombudsman
The key visit in defining a clear vision of the activity of the People's Advocate was undoubtedly that of the Danish Parliamentary Ombudsman, Hans Gammeltoft-Hansen, in September 2000. This visit had an impact on the professional aspect of the functioning of an Ombudsman institution, as well as on the financial aspect, through the drafting of assistance projects led by Danida and aimed at establishing, strengthening and consolidating the People's Advocate. After a face-to-face meeting with the Albanian Ombudsman and the senior office staff, Mr. Gammeltoft-Hansen had a better idea of the institution's theoretical level and vision, and he drew some conclusions based on the cases handled during the first four months of activity. The meetings he had with the Speaker of Parliament, the Deputy Prime Minister, the Minister for Justice, the Head of the Constitutional Court and the Head of the High Court were extremely valuable. The information and feedback of the Danish Ombudsman to these authorities sent a clear message about how and why the Albanian Government and other constitutional institutions should welcome and support the People's Advocate Institution. Mr. Gammeltoft-Hansen gave a very interesting description of the access of the People's Advocate to the judicial administration. This access is also foreseen in the Albanian People's Advocate Act, but its implementation was hindered by the negative reaction of the Albanian Heads of Court.
The second visit of the Danish Ombudsman on 21 March 2001 coincided with the inauguration of the People's Advocate Office in Tirana, after its rehabilitation with financial support from Danida. On this occasion, the President of the Republic received Mr. Gammeltoft-Hansen. The exchange of opinions, based on the results of nine months work by the People's Advocate in Albania, had an impact in improving the positive image of the institution and also contributed to getting the wholehearted support of the President afterwards.
The third visit of the Danish Ombudsman in June 2002 lasted a few days. Hans Gammeltoft-Hansen met for the second time with many high-ranking government authorities as well as with the Heads of the Parliamentary Committees of Law, Finance and Budget, and Human Rights. In these meetings, he highlighted the importance of supporting the People's Advocate, mainly financially, in order to ensure the survival of the institution after 2003, when Danida project ends. During this visit, the Danish Ombudsman met some local government heads in two southern districts of Albania. This provided an opportunity to see in practice what relations the People's Advocate has established with the Albanian public administration bodies. The study visit made by the People's Advocate to Copenhagen in September 2002, where he was able to see for himself the working methods used by Mr. Gammeltoft-Hansen, provided an important experience for the future work of the Albanian Ombudsman.
SECTION TWO: The project seen through the eyes of the former Project Coordinator
This part of the article contains some comments on the process and experiences as seen through the eyes of the Programme Manager based at the Royal Danish Embassy in Tirana from May 1999 until May 2003. These experiences and observations do not necessarily reflect the opinion of Danida.
In brief, Albania was a Stalinist dictatorship until 1991, followed by a chaotic democratisation. Two major political parties emerged, the Democratic Party, which had been instrumental in overthrowing the dictatorship, and the Socialist Party, which inherited most of the leaders of the former regime. The Democratic Party gained control in elections held in 1991 and remained in power until 1997. In the spring of that year, the collapse of a series of pyramid investment schemes, probably implicating some government structures, led to such massive civil unrest that the country fell apart within a few days. It is difficult for foreigners from countries with well-established institutions and principles of good governance developed over a long time to understand how this could happen, although the reason was simple: whatever remaining legitimacy the authorities had was lost in the period leading up to these events. Not only the Government in Tirana, but also local governments in even the smallest districts, schools, police, etc., basically stopped functioning. This led to the scenes familiar from the media, where official buildings, arms depots, etc., were looted during the civil uprising.
A new Government was elected in 1997 and immediately received considerable international assistance to calm down the emotions and initiate some reform processes. However, despite the efforts made in recent years and considerable progress, it is still fair to say that Albania has an inadequate, partly corrupt and outdated civil service. In addition, the citizens of the country still do not to any significant degree respect those parts of the state which, against all odds, actually do function.
Under the Constitution of 1998, Albania is a democracy with a firm balance between the legislative, judicial and executive powers. In addition, numerous constitutionally created, independent state institutions exist alongside the three main powers, complicating the political and administrative structure. Moreover, it should not be forgotten that informal power structures remain very important, tipping the balance of power towards the executive. Firm relations to family, clan, etc., are often more important to the individual politician and civil servant than official, institutional or even constitutional links. A logical consequence of this "system" is nepotism and corruption at all levels, endangering the economic and social progress which has also been hampered by long periods of political instability.
The 1998 Constitution provided for the introduction of a People's Advocate, the Albanian Ombudsman. The mandate of the People's Advocate is broad19). Consequently, the People's Advocate may deal with any issue concerning the rights of Albanian citizens, with a few exceptions mainly within the areas of defence and judiciary.
The Albanian-Danish Transitional Assistance Programme was agreed in June 1999 by the signing of the Government Agreement. The formal birth of the institution was marked by the election of the first People's Advocate and the three highest-ranking members of his staff by Parliament in Tirana in March 2000.
The initial phase
According to the Transitional Programme Document, the objectives of the Danish support were to strengthen the independence of the People's Advocate and enhance the impact of the institution by providing moral, financial and material support. Furthermore, it anticipated a twinning arrangement whereby the Danish Parliamentary Ombudsman would be engaged in the establishment of the institution, provide training in case management, complaint procedures and relevant national and international standards, and assist in networking with related, international organisations. It also envisaged that a staff member from the office of the Danish Ombudsman would be posted in Tirana for up to six months.
However, it was easier to outline the operative phases of the assistance to the People's Advocate on paper than to put them into practice. Starting a development assistance programme consisting of a number of projects is hardly ever easy. In this case, it proved difficult to overcome the consequences of more than 470,000 refugees - approximately 15% of the Albanian population - who during the spring and summer of 1999 had to be accommodated in the tiny country because of the ongoing ethnic cleansing of Kosovo and the subsequent war to put a stop to it. As a result, Albanian resources were stretched to the limit. Fortunately, the war soon ended and the refugees returned home before the harsh winter of 1999/2000.
Naturally, the need to focus on huge, immediate problems and the almost constant political crisis meant that it took some time after the Kosovo crisis before long-term development became a real issue in the minds of ministers, politicians, civil servants and other influential groups. The Kosovo crisis therefore meant that by autumn 1999 the People's Advocate project was "all dressed up, with nowhere to go". All elements were in place: the Danish and the Albanian Governments were committed to supporting the institution, further support had been identified within the limited civil society and from some dedicated persons forming a kind of a "legal community" in Albania, and other international donors had expressed great interest in the project. However, one critical factor was lacking before the Danish support to the institution could be implemented, viz. the underlying legal structure. Because attention had been diverted by the refugee crisis, it took some time before Parliament passed the People's Advocate Act20), drafted with the assistance of the Council of Europe and other international experts. As described above, the first People's Advocate, Ermir Dobjani, was elected in spring 2000.
In the previous chapter, it was observed that the early phase of institution building involves a latent risk that support might be misunderstood and could become a part of domestic political confrontation. The Danes at the Embassy in Tirana acknowledged this, but did not feel it would be wrong to initiate action and/or join activities arranged by others to inform about the Ombudsman concept and the need, pursuant to the Constitution, for Parliament to pass the People's Advocate Act as soon as possible. For example, at one point, the Embassy wrote a letter to each Member of Parliament about this need and the Danish willingness to provide support in co-operation with international and domestic partners.
During the early months of 2000, the Embassy also made the first contacts with the Danish Parliamentary Ombudsman, who expressed great willingness to assist the People's Advocate, naturally within the framework of the general agreement made with the Danish Ministry of Foreign Affairs. As a result of these contacts, I gradually realised, as head of the Danida Programme Management Unit at the Danish Embassy in Tirana, that the support from Denmark would not take the initially anticipated form of an adviser spending several months in Albania and taking responsibility of co-implementing the project as a whole. Instead, I was looking forward to institution-to-institution support within very specific areas of an Ombudsman's work, which would take place alongside other activities needed to develop the institution. Consequently, very close co-operation would be crucial to fulfil the objectives. The Danida Programme Management Unit therefore engaged in much closer co-operation than originally anticipated and planned with the People's Advocate and his staff as well as with the Danish Ombudsman office. From a programme manager's point of view, this priority led to expenditure of time that was diverted from other projects. On the other hand, and in hindsight, the time invested in our co-operation led to mutual trust, friendship and good results. It was a valuable experience that a close relationship of this kind, as well as being a cornerstone in any successful project, is very rewarding personally.
As far as the Danes were concerned, the initial phase of the implementation of the project to support the People's Advocate lasted almost a year, from summer 1999 to summer 2000. During this period, we mainly exercised reasonable pressure and gathered the domestic and international forces for the subsequent phase. As far as the Albanians were concerned, the initial phase obviously took considerably longer, as the deliberations had started during the drafting of the Constitution of 1998.
Organising and starting the People's Advocate Office
Representatives of the Danish Embassy were present in Parliament when the Act was passed and a few days later we visited the People's Advocate for the first time. Initially, the People's Advocate had at his disposal only three very roughly equipped rooms in the Ministry of Co-operation and Trade, an arrangement largely instituted by Mr. Dobjani himself. Mr. Dobjani was somewhat surprised to hear that Danida would be a substantial partner, but not the only one, as some other support had already been identified. With a grant of up to approximately $1m, Danida would undertake the role of lead donor. We also explained that we expected to be able to involve professional capacity in highly important key areas from the Danish Ombudsman institution.
Using the flexibility of the Danish grant under the Transitional Assistance Programme, Danida delivered "an office start package" (IT equipment, tables, chairs, lights, cars, etc.) very soon after our first meeting, which basically enabled the People's Advocate Office to initiate operations throughout Albania. I believe these first, visible results of our talks convinced all parties that Danida was serious about its backing of the People's Advocate.
During our first conversations, Mr. Dobjani clearly stated that he would need to draw on international experience and take as much advice as possible from other Ombudsmen, including relatively newly elected Ombudsman in some of the neighbouring countries. Remembering the background as initially described, we did not waste much time on discussing the wish of Mr. Dobjani and some key employees to receive comprehensive "Ombudsman training" as soon as possible. Instead Danida reacted swiftly to the immediate needs and during 2000 also supported a number of study trips, visits by other Ombudsmen institutions and further international training and networking.
Recalling the troublesome relations between any state institution and the Albanian citizens, and acknowledging the decisive role of the media, especially from the perspective of an Ombudsman with little formal power, Danida very soon assisted in the creation of a media strategy for the People's Advocate. Danida also financed some of the first elements of the institution's media campaign, involving television, radio, newspapers, brochures, calendars and other contemporary PR material, which helped to increase awareness of the People's Advocate and create a partial basis of credibility among the population.
As previously mentioned, the People's Advocate Office had already attracted some attention before it was born. Consequently, a group of representatives of domestic and international organisations, institutions and donors met informally on various occasions. These meetings continued after the election of the People's Advocate and at one point it was decided to formalise the group under the name of "Friends of the People's Advocate" (FOPA) and to ask Mr. Dobjani to take part in future meetings. FOPA consists of the People's Advocate and representatives of (among others) the Embassy of the United States, the Council of Europe, the Legal and Human Rights Office of the OSCE, the Central and Eastern European Law Initiative of the American Bar Association, the Albanian Centre for Human Rights, Tirana Legal Aid Clinic and Danida. FOPA has served as a splendid forum for coordinating activities, as well as a body where we have been able freely to discuss joint actions in support of the People's Advocate. We all noted with pleasure how FOPA gradually became a valuable tool for the People's Advocate, not only in relation to the above-mentioned partners and the development of the People's Advocate Office, but also in negotiations with various Albanian authorities. As initially stated, informal power structures are highly important in Albania; thus there is reason to believe that FOPA, by its mere existence, has increased the weight of the words of the People's Advocate in the difficult phase of starting the institution as well as later on. As an example of the need for the People's Advocate to be strong, his 47 staff requires some space. Hence one of the immediate concerns was how the People's Advocate could acquire adequate office space in a situation with very scarce facilities available. All FOPA members spent some months lobbying, waiting and evaluating impossible "offers", until June 2000, when the Albanian Government finally provided appropriate, although small, office premises, consisting of eight rooms in one of the state buildings, suitably located at the main boulevard of Tirana.
Following up on the findings in Chapter One, I believe that FOPA also helped define the future role to be played by the People's Advocate Office and therefore helped it fit into the existing sociological structures, notably by recognising and responding to the pattern of complaints. Deriving partly from the result of discussions within FOPA, the People's Advocate from very early on successfully redirected cases falling outside his jurisdiction to the courts and, as importantly, to some non-governmental organisations, including the legal aid clinics.
There can be no doubt that the discussion in Chapter One on how to commence and continue as an Ombudsman is highly relevant. We also experienced that there are at least four parameters to the discussion. They have to be taken into consideration from very early on:
- Should a new Ombudsman, with a broad mandate, focus on the acute need to protect fundamental human rights and/or change the scourges of previous administrative cultures?
- How can an initial balance be established between the focus on resolving individual complaint cases and the need to work at a general level on promoting principles of good governance within the country's central administration?
- How can credibility among the population be increased?
- How does the Ombudsman remain independent?
The four issues were much discussed within FOPA. No matter how they are answered, they all point to one basic issue: the raison d´étre of an Ombudsman institution is a large number of professionally resolved cases properly followed-up. Needless to say, a newly established Ombudsman institution needs to prove that it is available and ready to fight for the values that justify its existence. Some of our international colleges therefore focused on the need for the People's Advocate to prove himself capable, credible and independent by immediately engaging in some specific, high-profile human rights cases. There is no need to study the human rights record of Albania for long to understand that the cases were indeed highly relevant to the People's Advocate Office. Thus the pressure was tremendous on the People's Advocate to "travel less, get started and show some results."
With regard to complaints, a few of us understood that, in contrast to the very aggressive approach, the People's Advocate and his staff would have to prepare well for the job, particularly in the special Albanian context. Furthermore, the People's Advocate would for some time probably prefer to choose fewer, more low-profile cases, and also engage in relatively small cases with a good chance of success. If not, we envisaged a real danger that the People's Advocate would commit de facto suicide even before the institution began to function. As the People's Advocate and Danida received considerable criticism within FOPA and elsewhere because of our standpoint, I was admittedly happy that more than 450 complaints had been received by the People's Advocate by September 2000. Approximately half the cases had been fully processed and some 50 cases had been resolved in favour of the citizens. The good news was clearly that the People's Advocate Office had started its functions according to the provisions. Moreover, we knew that we had succeeded in overcoming some of the first hurdles in very close co-operation and coordination within FOPA. Finally, from the point of view of the Programme Management Unit, we realised that through moral and physical support, Danida had assisted the People's Advocate and his staff to obtain some knowledge and gain further organisational strength needed for the proper development of the institution.
Also in September 2000, the Danish Ombudsman, Hans Gammeltoft-Hansen, visited Tirana for the first time and thereby confirmed the availability of technical assistance for further substantial development. More important at the time, however, was the moral support to the People's Advocate (and incidentally to the Programme Management Unit). The value of such a visit to the development of the People's Advocate Office cannot be overestimated, as it has an internal, professional dimension through the exchange of viewpoints, discussion of future co-operation, etc., as well as an external dimension of public support for the existence and continuing activities of the People's Advocate Office.
Subsequent to the visit, during autumn 2000, the work was intensified to identify areas of support and specify the required output, related activities and detailed input from both Danida and other donors, equivalent institutions and organisations in so far as their input could be envisaged. A number of working sessions were organised with the People's Advocate and with representatives at different levels of each of the branches of the People's Advocate Office. The Albanian assistant to the Danida Programme Management Unit, Miss Rozeta Shmbilku, should be mentioned for her important efforts. The daughter of a former internally displaced dissident deprived of basic human rights for many years and herself an engineer and a lawyer with experience from among other things the establishment and management of a legal aid clinic, Miss Shmbilku very skilfully headed the Danida efforts in very close co-operation with the People's Advocate Office. The work done during autumn 2000 facilitated the preparation of the comprehensive project document signed on 28 December 2000.
At the same time, Miss Shmbilku played a significant role in the detailed work of formulating, tendering and initiating the many tasks undertaken by a number of contractors.
With the aim of establishing, strengthening and consolidating the administrative, management and professional capacities of the People's Advocate Office, the project document outlined six main focus areas to obtain optimal working conditions:
- Much needed physical rehabilitation of the premises.
- Creation of a contemporary office by supplying furniture, electrical works, heating/cooling, telephones, etc.
- Delivery of IT-equipment including a sufficient number of computers, a case management system, a local area network and access to the internet.
- Establishment of systems and actions to support the management and administration of the People's Advocate Office, including the development of Internal Regulations of Work and a Code of Ethics as part of a more comprehensive Office Policy and Procedures Manual.
- Continued technical and professional staff training, in particular of new employees, but also involving information on the activities, policies and procedures of the People's Advocate Office. 6) Increased public awareness of and receptiveness to the recommendations made by the People's Advocate and the development of a strategic plan for marketing and lobbying, in continuation of the media campaign already initiated. An Annual Report, along the lines of those prepared by similar institutions in other countries, was seen as essential in this context.
Not surprisingly, the general experiences are easily summarised: 1) Any job is more easily and considerably better done with the right employees and partners. 2) A project document signed between two parties clearly outlining common goals and common approaches to their achievement is often a prerequisite of good co-operation.
It is no secret that the People's Advocate Office and the Danida Programme Management Unit did not agree on every aspect of the support needed. In finding solutions on which we could agree and which Danida could support, Mr. Dobjani and I had some open and frank discussions. I have no doubt that our mutual trust and friendship were the keys to overcoming differences in norms and standards, as also discussed in Chapter One, and therefore helped us to learn from each other and subsequently develop the solutions that eventually found a place in the project document.
As it was supposed to, the project document framed our joint future efforts to develop the People's Advocate Office in numerous areas, including the organisation, management, physical and other conditions for the staff, etc. In this context, the People's Advocate Office and the Danida Programme Management Unit received valuable opinions from the Danish Ombudsman office about the project in general. Furthermore, specific inputs detailed the professional assistance that would be delivered from the Danish Ombudsman office in Copenhagen: 1) Training, information gathering and team building on a broad scale as well as specific assistance with working methods and proper case management, including a series of study visits by the People's Advocate and his staff to Copenhagen. 2) Implementation of the necessary IT to cope with an ever-increasing caseload and allow modern management methods. 3) Help to construct reporting systems aimed at a high quality Annual Report were added a little later, due to the importance of the matter and acknowledgement of the lack of experience in Tirana.
How the phases in institution building should be defined is open to discussion and they are probably too fluid to be exactly defined. Nonetheless, I would argue that the second phase of the institution building lasted approximately six months, from summer 2000 until New Year 2000/2001, when the project document which has governed the development of the People's Advocate Office ever since was officially signed. In phase two, which was relatively short, the People's Advocate Office started its functions for real. Valuable knowledge and organisational strength were obtained, while the People's Advocate Office at the same time avoided restricting its options before it had received the agreed and coordinated support from the Danish Ombudsman, Danida and other members of FOPA.
Running and consolidating the People's Advocate Office
The first outputs of the third phase of the project were delivered at the same time as the overall, comprehensive project document was being developed. Not surprisingly, the first critical remarks were therefore also voiced before the project document of 28 December 2000 was signed. In discussions with Albanian and Danish authorities, but also with FOPA, the Danida Programme Management Unit and the People's Advocate often had to argue why we jointly aimed at an institution with "Danish standards." At that time, the People's Advocate Office had not yet delivered as much as some had expected. In such a situation, why was so much hardware required, for instance almost one computer per employee? And why did the Danida Programme Management Unit plan to deliver the goods so soon after the start of the project? The answers were obvious: because we trusted our joint capacity to develop the People's Advocate Office within the overall framework of the project document. Secondly, as described in Chapter One, it is commonly known that an organisation characterised by very specific professional skills needs to be able to offer more to its key employees than public and private competitors if it is to retain the expertise. We were in no doubt that the People's Advocate Office in particular needed adequate and capable staff to create and retain its credibility among the people of Albania. In focusing on the development of a modern, contemporary office with good working conditions and training opportunities, the project document of 28 December 2000 represented the outcome of many discussions on organisational sustainability that took place from very early on. The same considerations were behind the special arrangement that allowed the IT Manager of the People's Advocate Office to obtain a salary somewhat comparable to what he could obtain in the booming IT market outside the institution.
Looking upon the approximately 30 months that have passed since the third phase started, a number of conclusions can be drawn:
- Depending on the level of detail required, the development has more or less been as set out in the project document of 28 December 2000 and some updates of it.
- The People's Advocate has dealt with complaints and made recommendations that in some cases also challenge the government. Furthermore, the People's Advocate has expressed criticism of (among others) the prosecution service and the courts in a number of cases. It is of great importance to the reputation of Albania that the People's Advocate has addressed a number of police actions that constituted breaches of human rights and subsequently recommended severe action against abuse of power and violent attitudes.
- The People's Advocate Office has published the results of its work in three successive, good and focused Annual Reports. In addition, the People's Advocate Office has become better known in public life and in the media.
- The number of cases has grown to approximately 4,600 in 2002. This trend of an increasing caseload seems to be continuing.
- The People's Advocate has maintained good relations with Parliament. This is shown, among other things, by the fact that the Annual Reports have been approved by a huge majority of the votes, representing all parties.
- The People's Advocate Office seems to have retained its staff to a very high degree.
- Taken together, the above-mentioned points indicate that the People's Advocate has developed reasonable independence and ability to operate with and among the judiciary, executive, legislative and other, independent, powers.
FOPA and others consider the progress made in a short time by the People's Advocate impressive. However, in a young democracy with a background like Albania's, nobody should forget the questions posed in Chapter One, which will remain highly relevant to the further consolidation of the institution: how to focus on human rights and/or good governance? How to balance work at the individual level and a more general effort? How to remain credible and independent?
A broad mandate and an increasing caseload make it necessary to reflect on the potential to handle future challenges. Some valid options are organisational development, including better use of IT and other resources to be incorporated in an updated version of the Internal Regulations of Work and Code of Ethics, as well as alternative ways of prioritising and resolving cases. However, the People's Advocate Office will have to take its credibility and independence very much into consideration when providing answers to the questions of how to proceed.
In the context of the future of the People's Advocate Office, two issues should be discussed with the Albanian Government and Parliament. 1) The premises of the People's Advocate are already too small for an expanding institution like this one, especially if further staff were to be added. The opening of regional offices has been discussed. This would potentially but not necessarily constitute a partial solution, as such offices would probably serve to receive complaints but not to process them. Some of the employees or administrative functions could be placed in other adjacent buildings, but this is not particularly good for the coherence of the institution. 2) Any proposed solutions must be carefully evaluated and judged against the potential for financial sustainability.
In relation to sustainability, and not only financial, I also hope that the People's Advocate will be able to retain FOPA as a forum of assistance, and thus continue to obtain support for training and networking for the staff. Furthermore, the present external activities such as the Annual Conference and the Annual Report are very important for the People's Advocate Office in relation to other Albanian central institutions and the citizens.
Some final remarks
From my point of view, five groups of players in the process should be mentioned as contributors to the success of the People's Advocate Office so far, although they are by no means the only ones: 1) The People's Advocate himself, Mr. Dobjani, who is a courageous, skilful lawyer. Mr. Dobjani has always pushed himself and others to create a new, modern institution in support of the Albanian people, while at the same time being open to close co-operation with the other players and constitutional powers. 2) The staff of the People's Advocate Office, who continue to be motivated and have shown themselves capable of processing the cases that are, after all, the raison d´être of the institution. 3) The Danish Parliamentary Ombudsman and the staff from his office, who have delivered technical assistance with both expertise and generosity. 4) FOPA, which has been a support to the People's Advocate Office and a forum for discussions when required. 5) The Danida Programme Management Unit, which participated in creating the overall framework for the project to develop the People's Advocate Office and some coordination of the activities.
In very close co-operation with other interested parties, the flexibility of the Danish grant was used to ensure a quick start-up as soon as it became possible. In the next phase, it was possible to prepare and implement a general project which allowed a comprehensive approach to institution building.
There are further hurdles to overcome in the process of consolidating the People's Advocate Office. It is my hope that the assistance needed to secure all elements of sustainability will become available.
SECTION THREE: THE PROJECT AS SEEN FROM THE OFFICE OF THE DANISH PARLIAMENTARY OMBUDSMAN
Professionally, the office of the Danish Parliamentary Ombudsman first noticed Albania in 1992, when we started to receive guests in increasing numbers from that particular country. Before 1992, we had never received anybody from Albania, for obvious reasons, but suddenly it seemed that organisers all over Denmark and Albania believed it to be a good idea to visit the Ombudsman as part of a trip to Denmark. We had visits from judges, politicians, students and musicians. And it seemed that nothing could stop our guests from coming, not even a missing windscreen in a bus driven on the icy motorways of Germany in March.
The guests we had were keen to learn about Denmark and Danish society, and many of them showed great interest in the establishment of democratic institutions. Some of these guests we later met in Albania, now in influential positions; one of them was even a member of the Friends of the Albanian People's Advocate.
We do not know to what extent these visits had an impact on the decision to establish an Ombudsman institution in Albania or how much impact they had on the later reception of the Ombudsman by politicians, authorities, the judiciary and civil society. However, we believe that the visits at least to some extent contributed to fertilising the ground for future success.
As mentioned in Chapter One, we have generally noted that many of our guests later on become crucial in disseminating the Ombudsman concept and building Ombudsman institutions in their own countries. The Albanian project very much confirms this general observation, and underlines the importance of Ombudsman institutions being ready to receive guests and actively take part in passing on the ideas of the Ombudsman's work.
From 1995 to 1998, the number of visits increased and, as previously mentioned, the Danish Ombudsman was in February 2000 formally invited to take part in a project to support the newly established Albanian Ombudsman institution. In May, the Royal Danish Embassy in Tirana tabled a project document and in September the Danish Ombudsman, Mr. Gammeltoft-Hansen, went to Tirana to help formulate the project.
In October 2000, the Danish Ombudsman and the Albanian People's Advocate in principle accepted the project proposal, and in November a meeting was held at the Danish Ministry of Foreign Affairs in order to identify possible areas of support in detail.
A team from Copenhagen went to Tirana in December 2000 to start the process and conclusively identify the areas of assistance and co-operation. Before leaving, the team had an opportunity to study the legal framework of the People's Advocate Office and his powers, but we knew very little about the people and context we were going to encounter. At the same time, our vulnerable position became increasingly clear to us - experts in a specific field, with high expectations looming over us as to how to assist and advise and maybe remedy. Any Ombudsman or expert team knows this situation, and the incentive to flee from the responsibility is strong. We realised that we might blunder into a battlefield of different expectations from the donor and the People's Advocate Office respectively, and we tried to envisage what to do: should we prepare ourselves for taking the easy way out by refusing any responsibility when the going got tough, or should we try to be extremely flexible and accept which we basically might not like but knew our colleagues would welcome? We were indeed challenged, but ended up by realising that in our situation we might miscalculate and be wrong, but we could not avoid taking responsibility for the advice given by claiming that we were just providing expert advice and leaving someone else to make the decisions and deal with the consequences.
The first meeting with Mr. Dobjani and his staff took place at the new premises of the People's Advocate Office, still with holes in the floor, no paintings on the wall and no furniture except from one chair, which was kindly offered to our team leader. And great nervousness on both sides. A series of interviews with the staff took place from early the following morning, and when the team left Tirana, it was supposed to present a comprehensive report on what to do.
Identifying focus areas
The meetings with all the staff members were time-consuming, but proved to be a very fruitful undertaking. We learned a great deal about Albanian administrative thinking, and the meeting with the registration staff made us realise some of the problems ahead for our initial plan to propose an IT based case management system in the office. During the interviews, we became more and more concerned as we learned about the number of new cases in the institution, compared with the number of completed cases. Nobody seemed to share our worries - everything was under control.
We listened very carefully to our colleagues' wishes to come to Copenhagen and study how we process our cases and organise our institution. To be honest, we were somewhat reluctant. It was a lot of money to invest, which might be better spent elsewhere.
After the interviews, and after all we had seen and heard, we eventually recommended the implementation of a modern case management system and promised to organise a series of study tours to Copenhagen. Later on, the Annual Report became a focal point for the assistance project.
We knew that the staff had shown great interest in study tours, and we knew that Mr. Dobjani was very much in favour of this idea. We had our doubts as to whether the educational outcome would be proportionate to the cost, but recommended study tours especially because we believed them to be of great importance for the mutual trust, and we had learned that time was the answer to professional progress. In other words, we probably would not be able to assist the People's Advocate Office if we insisted too much to our own ideas of being effective at the lowest possible cost at all times.
The second reason for recommending study tours is indicated in Chapter One: study tours are a way of emphasising the importance of an engaged and qualified staff nucleus. Study tours may induce the staff to stay in their jobs even when they can get considerably higher salaries elsewhere.
We kept the third reason for recommending the study tours to ourselves for some time. From the beginning, we noticed that Mr. Dobjani, for obvious reasons, was very concerned not to lose control of any process in the establishment of the institution. It was clear to us that the People's Advocate would sooner or later have to delegate some of his responsibilities to his staff. This was of course a very sensitive issue, at least to us, and we discussed whether it was within the scope of our mandate to bring up this issue at all? But once started, we strongly felt that we, too, would be held responsible for the outcome, and therefore also for delicate issues.
We used the study tours to initiate a discussion with the People´s Advocate and his staff on the necessity of delegation and on how to build a professional team at an Ombudsman institution.
The case management system
To the Danish team, it seemed quite clear that an extra effort was required to ensure that the institution was able to handle a caseload that seemed, even at a very early stage, to be increasing rapidly. In the report following the team´s first mission to Tirana after Hans Gammeltoft-Hansen's visit in September 2000, we recommended the introduction of a case management system designed to suit the needs of the People's Advocate Office. At the same time, we suggested that Mr. Dobjani and members of his staff pay a visit to Copenhagen to discuss and see the case processing procedures and case management system at the Danish Ombudsman office.
The group from the People's Advocate Office visited Copenhagen in January. They seemed immediately convinced that a similar system would be a perfect solution for them. Within a couple of months, it was decided that the People's Advocate Office would procure a system similar to the Danish one. This decision was largely a result of the recommendations made by the team. It was a relatively expensive decision, and our recommendations were accompanied by detailed considerations and some anxiety. Although the formal decision was, and only could have been taken by the People's Advocate Office in co-operation with the Programme Coordinator and Danida, we, as the experts, ended up feeling responsible as well.
Our insecurities derived first and foremost from not knowing whether the level of ambition represented by the system in question was overshooting the mark. In retrospect, an important point can be learned from these considerations. The logical and maybe obvious approach when working in countries and organisations with very little tradition in the IT area is to "think small"; in other words, start out with a relatively low level of ambition. This is understandable and at times the only possible approach, since the funding of such projects to a large extent determines the target to be aimed for. However, there is a lot to be said for choosing the same approach as one might do in any organisation with a long IT history.
Some of the problems a new Ombudsman institution may face include a steep rise in caseload, general lack of funding, brain drain due to low salaries and general problems of structuring the case processing due to lack of experience. If a system is introduced that is sufficiently complex to address these problems, it may very well be an investment that will pay off in the longer term. It should be strongly emphasised that when referring to "system" in this context, we are talking about a combination of very well-considered working procedures and organisational structuring in interaction with IT. The common misunderstanding that the mere introduction of IT will have a positive impact on the quality and quantity of the work should be laid to rest at the earliest possible opportunity.
It is fair to say that the IT system introduced in the People's Advocate Office in Tirana represents an all-encompassing solution with the potential to address the IT needs in the foreseeable future. The design and introduction of the system was an instructive process for both parties, and although we had to overcome some obstacles and deal with some healthy scepticism, it seems that the use of the system and the changed working processes are now a natural part of the work. We know from meetings with the staff that almost everyone agrees that the introduction of a case management system has contributed in a positive way to consistency and efficiency, and that it very soon became natural for the staff to suggest adjustments for full and better use of the systems. Again this indicates that the aim should be a high level solution, since the staff already has the skills to deal with the cases, which are the core of the institution's work, while the technology as a tool to facilitate and support this work is relatively easily learned.
Therefore, an all-encompassing system might contribute to removing the focus from the system itself and the considerations and scepticism that always accompany every additional step towards more complex systems.
It should also be noted that there are parts of the Albanian project, which are not working to full satisfaction. Here, too, there are important lessons to be learned.
The further development of the People's Advocate Office system and the use of additional functions present some problems. In our view, the cause of these problems can be traced to a point, which has been touched upon earlier, viz. the careful planning of underlying structures and procedures in relation to the organisation of data. Any case management system relies upon a well-developed organisation of data to be in place in order to make use of the advantages presented by the system. Thus the implementation of a complex case management system relies upon and must start with the creation of such systems of classification and organisation.
A final important point is that introduction of IT always implies a need for support, not only in the implementation phase but also on a permanent basis. We have been focusing on this point from the very beginning and it is a crucial to the success of any IT project.
In Albania, a permanent staff member to support IT was soon hired and there is no doubt that his presence has contributed strongly to securing the success. It also seems quite certain that whatever problems still need to be solved in the People's Advocate Office system may be partly due to the fact that a single person dealing with all IT issues is not sufficient for a growing institution. As mentioned earlier, the question of salaries is a major problem for many Ombudsman institutions and this is particularly true of IT staff.
The Annual Report
Less than two months before the deadline for handing over the Annual Report to Parliament, it suddenly became evident to the People's Advocate and the Danish team that this was an area in need of attention and assistance, and the sharing of experiences in this area was therefore given a high priority. Through a study visit in Copenhagen and further assistance via e-mail and telephone, the first Annual Report was prepared in time with a good result 21).
The Annual Report has remained a focal point throughout the project, the objective being to be permanently prepared for sparring and advice. The Annual Report work is now an integral part of the daily routines, which is largely due to a very committed effort from the staff of the People's Advocate Office. It is also worth noting that the Annual Reports have received much praise from the Albanian Parliament, the international community and the surrounding national administration and authorities.
Looking back, it is clear that Danida launched a very ambitious project by supporting the new Albanian Ombudsman institution with so much input over such a short time, but the institution functions well and has gained much domestic and international credibility.
After finishing the assistance project, we at the Danish Ombudsman office realised that donors are naturally looking for indicators of effect and quality to justify the money spent. As experts on making an Ombudsman institution function, we may have focused too much on another aspect of the same criterion, as our main concerns were to enable the People's Advocate Office to cope with all the incoming cases and to think and develop as an Ombudsman institution, as well as to make it an up-to-date office with IT solutions and a modern and effective management.
We were also forced to realise that donors are very concerned about financial sustainability. What are the prospects for the institution's survival after the donors have left - will the People's Advocate Office be able to get the necessary funding from the national budget? Admittedly, our concept of sustainability was slightly different from the outset, basically concern about the survival of the institution in relation to the cases coming in and the professional routines in the office. On the other hand, we saw that assistance from an old institution can be offered and experiences shared with a new institution. Many issues apply to any project: the Annual Report, the case management system and other technical matters. In other areas, psychology, history and legal traditions are important factors to take into consideration before going ahead.
Certainly the easiest phase in which to offer assistance is the first phase where the Ombudsman concept is disseminated. The most difficult phase is where the final model and structure of the institution, the management and the modus operandi has to be decided upon. In this phase, different traditions, administrative thinking and attitudes might clash.
It is also fair to say that we learned something about own attitudes, strengths and limitations.
Above all, we acknowledged that an assistance and co-operation project is not a one-way communication, and that involvement in an assistance project requires readiness to accept responsibility for the advice given. It is not possible to hide behind the mask of an expert.
We spent many days discussing how to avoid responsibility, but ended up concluding that we were responsible, personally and as a sister institution, and could not pass on the responsibility to People's Advocate Office or Danida. On the other hand, this fact made us committed to the Albanian institution and especially to the people involved.
- "The Danish Ombudsman", Copenhagen 1995
- "The Danish Ombudsman", p.33
- "The Danish Ombudsman", p.34
- Act No. 473 of 12 June 1996
- Act 456 and Chapter eighteen of the 1992 Constitution
- Act No. 411 of 6 June 2002
- See Dr. Haile Selassie Gebre Selassie and Dr. Edmond Völker in "Contextualizing the Establishment of the Institution of Human Rights Protection in Ethiophia", Kluwer Law International 2000.
- Act No. 473 of 12 June 1996, art. 3
- CHRAJ, Second Annual Report from 1995, p.2
- Organic Law 3/1981 of 6 April 1981
- "Towards a Method to Evaluate the Ombudsman´s Role", Administration and Society 1978
- See "Evaluating Ombudsman Systems" by Steven E. Aufrecht and Marc Hertogh in "Righting Wrong", International Institute of Administrative Sciences Monographs, volume 13, 2000.
- Act No. 203 of 11 June 1954
- According to the Annual Report 2001 the number was: 3,689
- Act No. 473 of 12 June 1996
- Annual Report 1995, p.437
- Annual Report 1995, p.481
- Annual Report 1988, p.249
- The "General Department" was formally established in 1991 according to Annual Report 1991
- In 1999 an IT manager was engaged according to Annual Report 1999
- Statute No. 8454 of 4 February 1999