Ombudsman [0mb]Protecting the rights of

minorities

Simon Matthijssen

СИМОН МАТТАЙССЕН

– Lecturer constitutional- and administrative law Univ Leyden

– Lawyer for the city of Rotterdam– Alderman (D66: progressive social liberals)– Substitute Ombudsman Rotterdam (17 yr)– After retirement: Guest at Univ of Utrecht, Erasmus

Univ Rotterdam, Higher School of Economics (Moscow), Padua [It.], Kaunas, [Lt], Kiev & Rivno (Ukraine).

– Board Member Dutch Complaint-Law Association, European Ombudsman Institute (representative in Council of Europe INGO-conference), reporter.

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Aim of this contribution

• Raising questions and giving arguments for tonight's Evening Discussion Club on Universality of Human Rights (HR)

What is an Ombudsman?What is the relation Omb – HR?

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1991 Paris Principles (UN)1. Nat. HR institutions ≈ Ombudsman

2. Monitor violations of HR3. Advice Gvt, Parl. etc on violations,

legislation and implementation of HR4. Partner Int. and Nat. Network5. Mandate to Educate and inform on

HR6. (some have) quasi juridical

competenceMany Omb in former CCCP states

are build on PP

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Ombudsman old and new• Trustees of the ruler existed long, first

“ombudsman” / 1713 King Charles XII Sweden• Nowadays many forms: Diffensore Civico,

Defensor del Pueblo, Avocatul Poporului, Arartekko, Sindic de Greuges, Human Rights Commissioner, Parliamentary Commissioner, Médiateur de France, Seimo kontrolierius, Petitionsausschuss

• One is looking for missing dossiers, others are looking for missing persons: NO Omb is the same!

• European Omb use ECoHR

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ECoHR European Convention on Human Rights

Council of Europe’s main product the HR codex for 47 countries. •My personal perspective:

•Individual: to be the author of one’s own life. •Group: every minority has the right to aim for govt. power in a peaceful way.

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Author of your own life:Biology “proves” that Humans are not meant to live alone, HR include individual and group rights (very disputable list)

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Life, Torture, Servitude , Property, Liberty and Security (conscience and religion), Fair trial (effective remedy/ non-retroactivity), Privacy, Marriage, Non-discrimination, Education,

Free expression, Assembly, Transparency and accountability (right to complain), Political equality, & pluralism, Protection minorities

Ombudsman in context• The 0mb “finds” his/her role in the given

society and circumstances• Different societies have different needs

• KNOW YOUR CONTEXT Juridical context: Democratic/HR stability

and tradition, Margins of appreciation, Soft Law.

Economic context: Spread of wealth (Gini-index).

Social Context: Maslovian pyramid, Trust & Society,

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Text

Self-actualisation

Esteem

Loving/Belonging

Safety

Physiological

Gini Index:

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0mb context• Axiom: there will be more oppression

when – behind the veil of ignorance (Rawls) – and in real life people assume/know:

• Majority can never escape Maslowian lower stage

• There is an unescapable unequal division of income and wealth

• State power leads to wealth• (also less trust and more corruption?)

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Minority rights and Author axiom

• ALL MEN ARE BORN FREE AND EQUAL

• Logical truth/Consistency requires every individual to recognize and respect the freedom and well-being of others (individuals and groups) who also want to be the author of their own lives.

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undemocratic to protect Mino’s?

1. Majorities do not always have the power (under Saddam Hussein 32% Sunni had power over 64 % Shia)

2. No majority is for ever 3. Who decides what a minority is? => process of

Group / Identity building (Prof Ermischer)4. Many Mino’s can make a coalition to become a

Majority: they have the right to struggle peacefully for democratic power

5. Majority can be wrong (fascism),

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Conflicting HR Expression | Religion | Private

Life• The law does not decide what’s right, often history proves old rights wrong.

• NL: 1975: homosexuals were outcast, peado-sexuals were openly in parliament

• Now it’s the inverse. (H-sex was “against nature” now 1500 species have their gays. P-sex was considered ok because of consent, now we “assume” undue influence)

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Conflicting HR dilemma

Free marketplace of ideas you may oppose IDEAS but you are not allowed to spread hatred amongst GROUPS or incite violence -> intntion of sender is criteria

•Religion; special status?•Axiom: just as much religions as living languages (2000!) How to choose?

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Do’s and don’ts• IDEAS (eg: capitalism is morally wrong vs

kill the bankers)• LIFE STYLES (you may picket before

contraception, abortion or euthanasia clinic vs bomb abortion clinic, write down number plates and harass employees and visitors)

• RELIGIONS (you may deny creationism or Darwinism vs killing those who cannot recite verses of your Holy Book)

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Fracis Fukuyama on TRUST

Trust is the expectation that arises within a community of regular, honest, and cooperative behaviour based on commonly shared norms, on the part of other members of the community

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low trust countries high trust countries

Trust outside clan or kinship No YesVoluntary associations & CSO (soccer, church, union, NGO, election voluntary, school board)

Seldom Flourishing

Hierarchy Much Little

Bureaucracy Well accepted Not favoured

Legal structures High density Low density

Adaptive speed Low High

Religions One predominant religion Many religious groups

China, South Italy Japan, Germany, USA

(NL)

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If people don’t trust govt…

…they withhold information

…the govt is in the dark

…govt make inadequate rules

…ppl disobey and distrust the govt

…govt becomes oppressive

…ppl trust the govt less

Trust is good, but Bad Trust is evil:

• Milgrams’ obedience experiment (ppl asked to give electroshocks to others who give wrong answers)

• 60% killed the other! (many times repeated!)

• Zimbardo Stanford University Jail experiment (students playing jail)

1. Direct Role acceptation / adaptation2. Moral sliding scale when there is no adequate monitoring

system

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Bad Trustresults

• Abu Ghraib (’04), • Hannah Arendt Eichmann in

Jerusalem: A Report on the Banality of Evil (1963),

• Magdalene Laundries (1920 - 1996)• Philomena (2013)• Tuam Mass Grave 1975-2014• (bon secours Mother and baby home) 19/04/23 Ombudsman.HR@gmail.com 21

Perversion of trust in democraciesQuis custodiet ipsos custodes?

• Closed institutions: owning their own goals (mission creep / goal shift)

• Esprit de corps / firm believe in “own goals”

• Power over others• Absence of adequate

monitoring or safe place for complaints for the victims

• HRD = very vulnerable

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The ombudsman/ HRD rule:

•In democracy there can exist no closed institutions without independent external monitoring.

– access to any place where the any organisation exerts its power over others or fulfils his job.

•Others than the executive decide upon the power to monitor•The independent external body should have right to handle complaints and be competence of direct intervention.

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Other monitoring org• Civil Society: Church, soccer team will

miss someone that is detained• NGO’s (GONGO’s??) • INGO’s (foreign agents?): AI, HRH,

HRW• ECRI = European Commission

against Racism and Intolerance• CPT = European Committee for the

prevention of Torture and Inhuman or Degrading Treatment or Punishment

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CPT

• visits (to investigate how persons are treated): prisons, juvenile detention centres, police stations, holding centres for immigration detainees, psychiatric hospitals, social care homes, etc.

• Unlimited access and movement on site• Free interviewing• Systematic and unannounced visits:

Country reports: http://www.cpt.coe.int/en/about.htm

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ECRI

• ECRI is a human rights body of the Council of Europe, composed of independent experts, which monitors problems of racism, xenophobia, anti-Semitism, intolerance and discrimination on grounds such as “race”, national/ethnic origin, colour, citizenship, religion and language (racial discrimination); it prepares reports and issues recommendations to member States.

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Remember Power and Money:

Fair share = less oppressionProtect Minorities

Trust is goodMonitoring is better

Omb are moulded by the context: I aimed on guaranteeing that every body can be the author of his own life and groups have equal chances to gain democratic power19/04/23 Ombudsman.HR@gmail.com 27