Berkuta A.A.
Baimagambetova Z.M.
(scientific adviser)
Al -Farabi Kazakh National University, Kazakhstan
The Formation and Development of the Ombudsman Institute
in Sweden
The institute of Ombudsman has a long history of origin. It was first
introduced in Sweden more than 200 years ago to protect human rights from abuse
by officials. The "Sweden" Institute was named the so-called
"Nordic" model of the Ombudsman.
Historically, the term "ombudsman" emerged in the XIII
century. It has a German origin, and its roots date back to the early history
of the Germanic tribes. Ombudsman called for the person who was elected to
collect monetary penalties (vira) from the perpetrators of the murder on behalf
of the injured party. Swedish and other Scandinavian nations translate the word
"ombudsman" as "attorney" or "trustee." It is
also suggested that the roots of competence are seen in the figure of the Roman
censor, tribunes, and provincial procurators [1].
The the formation of the Ombudsman institute is associated with the
appearance of the figure of the Seneschal («drotsen») in Sweden in the XVI
century whose responsibilities included implementation on behalf of the supreme
authority of the king, supervision of judges and the administration of justice.
In addition, the Seneschal had exercised their powers by reporting to the king.
Since 1683 another officer (General Richz Schultz) was given the right
of direct impact on court officials [2, p. 35].
In 1697, Charles XII became King of Sweden. For the next 17 years,
however, Charles was out of the country fighting wars, mostly against Russia.
During this time, because he was away from the country, Charles signed a law which
created an office called the King’s Highest Ombudsman ( from 1719 – Chancellor
of Justice). The job of the King’s Highest Ombudsman was to make sure that
while the king was away the government workers, judges, and the military were
acting properly and following the rules that the King had left for them. When
the wars were over and the King returned to Sweden, the office of the Ombudsman
disappeared for several decades, but it was not forgotten [3].
After the death of Charles XII in 1718, a difficult period in Sweden
began, known as the "era of freedom." At that time, the parliament
performed functions traditionally performed by the king.
This period also affected the activities of the Chancellor of Justice:
in 1739 he was forced to give a report on its activities to parliament
(Riksdag). From 1766 to 1772, the Chancellor of Justice began to be designated by
parliament [4, p. 25-26].
The final release of Swedish Absolutism (after the assassination of King
Gustav III and the overthrow of his successor Gustav IV) was marked by the
adoption of the Riksdag in 1809. This new Constitution was based on the
principle of balance of power between the king and parliament. The Constitution
introduced the Ombudsman of Justice (Justitie-Ombudsmanen). In contrast to the
Chancellor (this position is also preserved, as a royal official), the
Ombudsman of Justice became accountable to parliament and the king. The king,
in turn, had to submit an annual report on its activities, who before were
independent in their activities and had not submitted to anybody except the
law. It was thus created to oversee the administration of justice, and even the
Church [2, p. 37].
Ombudsman of Justice held a high position in the state system of Sweden.
The new Constitution of 1809 expressly provides that the Ombudsman may only be
a person who enjoys the respect and esteem in their society. The Ombudsman is
elected for four years and could be dismissed only by parliament. In exercising
its discretion, the Ombudsman was independent of other public authorities,
however, it was charged with the duty of maintaining relations with the
Constitutional Committee of the parliament.
After the adoption of the Riksdag in February 1810 of the Act which contained
instructions for the Ombudsman of Justice, Lars Baron August Mannerheim, the
former chairman of the Constitutional Committee, was elected to the post of
Ombudsman of Justice [5, p. 8].
Justice Ombudsman was entitled to carry out investigations on the basis
of citizens' complaints of abuse by officials. In addition, he was entitled to
seek any material or information on the case and require them to provide
officials.
Upon completion of the investigation in the case of confirmation of the
violations of human rights, the Ombudsman has the right to:
1. To make an appeal to the court;
2. To make a warning without charge in criminal proceedings;
3. To send him advice and suggestions for improvement without any
sanctions;
4. Refer to the parliament or the government with proposals to improve
the legislation [2, p. 45].
Since the establishment of the post of Ombudsman of Justice in 1809, the
institute has undergone several changes due to the constitutional reforms in
Sweden which were carried out in the XIX century.
For example, in 1840 there were ministerial reforms in Sweden, as a
result of which the government was divided into ministries, heads of which have
acquired the status of not only the speakers, but also members of the government
("the Royal Council"). Further, in 1866, there was the reform of the
system of representation: representation instead of four classes created
popularly elected bicameral parliament [6, p. 13-14].
From 1809 until 1915 only one Ombudsman of Justice had served in Sweden.
He had jurisdiction over the same areas as the civil and the military
administration. Since the beginning of the First World War, there was a need
for a separate institution to protect the rights of soldiers.
In 1915 the Military Ombudsman Service was created (militieombudsman). Elected
by parliament, it served to oversee the military government and investigates
complaints of soldiers. This service has played an important role during the
two World wars, but in the interwar period, it was not much in demand. At the
same time, the load on the Ombudsman of Justice in the postwar years has
increased substantially. This was due to both the overall increase in
government regulation and the fact that in 1957 as a result of the reform of
local self-government under the jurisdiction of the Ombudsman were the municipal
authorities and officials [4, p . 30-31].
All this determined the content of the reform, approved by parliament in
1967, which resulted in the union of two institutions (the Ombudsman of Justice
and the Military Ombudsman) into a single service Ombudsman Justice, consisting
of three independent ombudsmen, each of which was endowed with a specific
remit.
For example, one Ombudsman supervises the courts, prosecutors, the army
and police. The second - controls in the social sphere, to deal with
information, media and education. The job of the third included the examination
of issues in the transport sector, fiscal et al. [2, p. 39].
With the adoption of the new Constitution in 1974 in Sweden, there was
even further reform of the Ombudsman. There are so-called
"government" ombudsmen - officials appointed by the government and
responsible for determining the most "vulnerable" in the field of
social and political spheres: The Ombudsman for consumer protection, the
Ombudsman to protect the rights of persons with disabilities, the Ombudsman
against ethnic discrimination, etc. However, it should be noted that the legal status of
"government" ombudsmen allows us to consider them as quasi
structures, based on the fact that in terms of data jurisdictional bodies
included in the scope of supervision of the Ombudsman of Justice.
Since 1976, Sweden has four Ombudsmen: The Ombudsman of Justice, the
Ombudsman consumers, Ombudsman for economic freedom, the Ombudsman for the
press. "Scandinavian" model of the Ombudsman has been further
developed in Finland (1920), Norway (1952) and other countries.
In general, appointment of parliamentary ombudsman in Sweden in 1809 is
generally regarded as the birthdate of the modern Ombudsman institute. Most of
the public or parliamentary ombudsmen around the world are modeled on what
happened in Sweden. A common definition that is accepted today says that a
public or parliamentary ombudsman is “a public official appointed by the
legislature to receive and investigate citizen complaints against
administrative acts of government”.
Reference:
1 Liverovskii A.A.,
Romankiv L.P., Khudyakov A.A., Khudyakov A.I. On the legal status of the
Ombudsman. // Scientific Notes, second edition. - St. Petersburg: Institute of
Law, 1999. - P. 72.
2 Gil-Robles, A.
Parliamentary control over the administration (Ombudsman institution). - M .:
"Ad Marginem", 1997. - 235 p.
3 History of
Ombudsman https://www.ombudsman.sk.ca/info/the-history-of-the-ombudsman
4 al-Wahab I.I. The
Swedish institution of Ombudsman: an instrument of human rights. Stockholm,
1979. - 190 p.
5 Lundvik U. A Brief
Survey of the History of the Ombudsman // The Ombudsman Journal. 1982. - ¹ 2.
6 The Constitution of
Sweden. The fundamental laws and the Riksdag Act. With introduction by Erik
Holmberg and Nils Stjernquist. Published by Sveriges Riksdag. Stockholm, 2002.