Implementation of Transitional Laws in Serbia 2006

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Implementation of Transitional Laws in Serbia 2006Comparative Analysis of Laws on the OmbudsmanThe Initiative conducted a comparative analysis of the Law on the Protectorof citizens with other laws in the region that regulate the organization andwork of the „ombudsman“. Reference material used for the analysis wasthe following: Montenegrin Law on the Protector of Human Rights andLiberties 357 , Law on the Ombudsman for Human Rights of Bosnia andHerzegovina 358 and Act on the Institution of the Ombudsman 359 in Kosovo.The objective is to point to the sections of the Law which do not complywith the pattern of democracy and which, in turn, could form a practicalobstacle in the development of the institution in our society.This law establishes the institution of The Protector of Citizens (in furthertext: Ombudsman). This is an ex lege institution, established as an independentstate body which protects citizens’ rights, monitors governing state bodies’activities 360 and protects and improves human rights and liberties 361 . Theterm „citizen“, as used in the Law, encompasses each physical person andlegal entity, local or international, whose rights and duties governing statebodies decide upon. 362The Law foresees that the Ombudsman should be an independent, selfgoverningbody, whose work and activities no one has right to influence.363Every caucus can propose a candidate for the Ombudsman to theConstitutional Board (hereinafter: Board) 364 , then the Assembly votes uponthe Board’s motion and elects Ombudsman 365 by relative majority, that is, bythe majority of the present members of Parliament. This solution, thoughconstitutional, can cast doubt with the public concerning Ombudsman’sindependence and impartiality. It should be stated here that Act on theInstitution of the Ombudsman in Kosovo 366 as well as Montenegrin Lawon the Protector of Human Rights and Freedoms 367 both envisage thatOmbudsman can be elected by absolute majority, that is, by majority votes357 Law on the Protector of Human Rights and Liberties, adopted on July 8 th 2003. Official Gazette of theRepublic of Montenegro No 41/2003358 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina, adopted on June 25th 2002. inthe National Assembly session and on July 3 rd , 2002 in the Representative Assembly session, official gazette BiH70/02359 Act on the Institution of the Ombudsman in Kosovo was brought on February 16th 2006, No 2006/6360 Law on the Protector of Citizens, Article 1, see above under 5361 Ibid, Article 1, Item 2362 Ibid, Article 1, Item 3363 Ibid, Article 2, Item 1364 Ibid, Article 4, Item 1365 Ibid, Article 4, Item 2366 Act on the Institution of the Ombudsman in Kosovo, Article 6, Item 2 , see above under 359367 Law on the Protector of Human Rights and Freedoms, Article 8, see above under 35782
Implementation of Transitional Laws in Serbia 2006of the total number of members of Parliament. Law on the Ombudsmanfor Human Rights of Bosnia and Herzegovina states that the Ombudsmancan be elected by two-third majority, both in the House of Commons andHouse of Representatives of the BH Parliamentary Assembly. 368The conditions that have to be met in order for someone to be electedan Ombudsman are the following: citizenship of the Republic of Serbia,degree in law, minimum ten years of working experience in legal domain,high degree of expertise and personal, moral qualities and relevant,commendable experience in citizens’ rights protection. 369 Ombudsman hasfour Deputies who are elected, on his proposal, by the Assembly. 370Act on the Institution of the Ombudsman in Kosovo foresees a veryinteresting solution that, amongst people elected the Ombudsman, FirstDeputy Ombudsman and other three Deputies, there should be at leastone representative of Kosovo Albanians, Kosovo Serbs and some otherminority group eligible for representation in the Kosovo Parliament. 371There must be at least one female amongst them. 372At the same time, Assembly is also a body that can brought Ombudsman’sterm to an end and this can happen in the following instances: in case theincumbent does their job without due level of expertise and conscience,if they are simultaneously engaged in some other public or professionalactivities or in case they act in contravention of the Law on conflict ofinterest prevention. The same applies if the incumbent is convicted of anact of crime that renders them unsuitable for performing Ombudsman’sduties. 373Ombudsman’s jurisdiction is to monitor the human rights implementationand establish damage incurred by state agencies’ activities, regulations orinertia, especially when it means flouting the laws, other regulations andgeneral acts of the Republic of Serbia. 374Apart from this, the incumbent’s duty is to monitor and check the legality368 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina, Article 9, Item 1, see above under358369 Law on the Protector of citizens, Article 5, see above under 5370 Ibid, Article 6371 Act on the Institution of the Ombudsman in Kosovo, Article 6, Item 7. See above under 359372 Ibid, Article 6, Item 7373 Law on the Protector of citizens, Article 12, see above under 5374 Ibid, Article 17, Item 183
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Implementation of Transitional Laws in Serbia 2006

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