Positioning Ombudsman services within the Justice system
Ombudsman schemes can be broadly considered as part of administrative and civil justice. They offer a form of alternative dispute resolution mechanism that allows citizens to resolve their complaints about public services, or goods and services provided in the private sector. Building on the Swedish model of an ombudsman as a dispute resolution mechanism outside the court system, the IBA identified, in the early 1970s, three salient features of this model: '[a]n office provided for by the constitution or by the action of the legislature who has the power to investigate, recommend corrective action, and issue reports'. As mentioned earlier, the classical ombudsman model has undergone major developments in the course of its transplantation into a plethora of jurisdictions.
First, the scope of an ombudsman's mandate has expanded from purely redressing maladministration by government institutions to also considering whether human rights violations have taken place, with the objective of remedying relevant power imbalances and enabling individuals to effectively enjoy economic and social rights. Respect for human rights is now seen to be an 'intrinsic element' of good administration.
Second, as emerging markets developed, consumerism surged and a continuous liberalization of the public sector took place. Against this background, the ombudsman model was transposed from the public sector to the private sector, aimed at the protection of citizens against the undertakings of institutions such as banks, insurance companies, and media companies. Two developments have taken place in this regard. On the one hand, a number of independent bodies have been established by law as part of the regulatory framework of markets that were subject to privatization (eg, energy, telecommunications, and banking). On the other side of the coin, the industries themselves have developed codes of conduct and ombudsman schemes to boost consumer confidence and maintain consumer trust.
Under the classic model, recommendations rather than binding conclusions are handed down,8 while private sector ombudsmen can occasionally impose binding decisions on organizations that form part of their membership. Thus, in less than 50 years, a broad range of models of ombudsman institutions have emerged with varying structural, organizational, operational, functional, and conceptual features, as recognized by the American Bar Association (ABA) in its Standards for the Establishment and Operation of Ombudsman Offices.
The ABA identified three essential characteristics of an ombudsman: (1) independence; (2) impartiality in conducting inquiries and investigations; and (3) confidentiality. As the practice of ombudsman offices has significantly changed since 2001, two points of caution should be raised. Certain schemes including industry-based regulatory schemes) may possess these characteristics, but may operate under a different name, such as the Anti-Corruption and Civil Rights Commission in the Republic of Korea or the Protector of Citizens of the Republic of Serbia. Moreover, schemes that are called
‘ombudsman’ may lack one or more of these characteristics.