Guidebook
to lawyers and experts from the academia. In the framework of this
research, the NHRI has addressed recommendations to the judiciary.
The NHRI also discussed the research findings with the district courts
and appeal courts examined with a view to disseminate concrete good
practices from other courts that could be replicated.
Spain
In Spain, the NHRI law explicitly states that: “The Ombudsman shall
not investigate individually any complaints that are pending judicial
decision, and he shall suspend any investigation already commenced if
a claim or appeal is lodged by the person concerned before the ordinary
courts or the Constitutional Court. However, this shall not prevent the
investigation of general problems raise in the complaints submitted. In
all cases, he shall ensure that the Administration, in due time and manner, resolves the requests and appeals that have been submitted to it.”257
Poland
In Poland, the Polish NHRI takes up recurring individual complaints
and, if adequate, handles them as a systematic challenge by taking
additional steps such as issuing general motions. 258
2.4. The role of NHRIs vis-à-vis private entities
Professional organisations, such as bar associations, translators’ associations or associations of medical doctors, play a crucial role in the protection of procedural rights. Hence, it is important that NHRIs also reflect on
their role vis-à-vis private entities.
The SCA recommends that the NHRIs' mandate extend to the acts and
omissions of both the public and private sectors.259 The same is said by
the Venice Principles with reference to Ombudsinstitutions, which state
that ‘The mandate of the Ombudsman shall cover all general interest and
public services provided to the public, whether delivered by the State, by
the municipalities, by State bodies or by private entities.’260
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THE MANDATE AND ROLE OF THE NATIONAL HUMAN RIGHTS INSTITUTIONS
Portugal
For example, the Statute of the Portuguese Ombudsman contains a broad
definition of private entities including the activity of the services integrated in the central, regional and local public administration, the
Armed Forces, the public institutes, the public companies or the companies
whose capital is mostly public, the concessionaires operating public services or exploiting state property, the independent administrative bodies, the public associations, including professional bodies, and the private entities exercising public authority powers or providing general
interest services. 261
The relationship between NHRIs and professional associations is in practice
two-fold: while in some cases it can be one of monitoring and accountability, in the majority of cases it is one of cooperation.
Slovenia
For example, the Slovenian NHRI has addressed recommendations to the
Bar Association on specific occasions, e.g. recommending the Bar Association to submit a legislative proposal to amend the regulative framework concerning pro bono legal aid.
Moreover, although the Slovenian NHRI cannot directly consider complaints against the work of attorneys (e.g. complainants’ allegations
that they were insufficiently informed about the legal and actual situations of their cases; the legal representative’s choice whether to appeal,
particularly in cases of legal aid) because it is up to the disciplinary
bodies of the Bar Association to establish whether an attorney’s action
violates the attorney’s obligation and is subject to disciplinary liability.
The NHRI may take action when the circumstances of a case show that
the Bar Association or its disciplinary bodies failed to exercise their
public authority, that is to say when the Bar Association fails to respond
to an individual’s complaint or if the procedure for handling the
complaint by the disciplinary bodies takes too long. 262
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