October 11, 2001

           INTRODUCTION

This Review is being presented by Aleck H. Trawick, Q.C., FCIArb, a practising lawyer in Calgary, Alberta, Canada, and formerly (1987 - 1989) Ombudsman for the Province of Alberta. The Ombudsman's Office for the Province of Alberta is the oldest in Canada, and is a major financial and technical supporter of the International Ombudsman Institute, located at the University of Alberta in Edmonton, Alberta. The Ombudsman legislation in Alberta shares many of the same characteristics with legislation in other Ombudsman jurisdictions, including Albania. The population of Albania and the size and scope of its People's Advocate's Office, (the “PA”) are not dissimilar to that of the Province of Alberta.

I was selected by and supported in this review by the Central and Eastern European Legal Initiative of the American Bar Association (“CEELI”).

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OBSERVATIONS

          I was highly impressed with the quality of the personnel and the accomplishments by the PA Office as reflected in the Annual Report. For a new (and previously unknown) Institution to achieve this level of progress at this stage is unprecedented, in my experience. The staff unanimously laud Dr. Dobjani for his energy and drive in directing and forcing the progress of the PA Office. The support of the Country of Denmark, and its Ombudsman Office, has been generous and unstinting, greatly facilitating the establishment of the Office and supporting its work. The meetings that I have held with Dr. Dobjani and his staff have convinced me that they are capable and dedicated to this work. With some further assistance (as outlined below) and further experience, I am confident that the PA can progress to become a major pillar in establishment of democratic institutions in the Republic of Albania.

          RECOMMENDATIONS

          Office

The office space is clean, well ventilated and equipped, and is far above the standard of offices enjoyed by most government departments visited in Tirana. All staff have access to computer terminals as required. All this is largely due to the largesse of the Danish government. Better operation, however, may result from the following improvements:

a)       The Commissioners need individual offices to work efficiently and meet individually with the ACs under their supervision.

b)  The Office has only one meeting room within it for meeting with complainants; more are necessary. (Also see below).

c)  There is no reception area, save a small bench, inside the Office entrance for complainants to wait. Entrance is achieved by appearing before a camera outside the main door and buzzing for entry. While security is necessary, a better system more inviting to complainants must be devised. A separated visiting area, (ideally at ground level) where complainants may sit, with ample seating, and posters, paraphernalia, and brochures depicting PA activity works best in most jurisdictions. It is important that people not receive the impression they must stand outside and await entry to just another government bureaucracy. The image of welcoming all complainants, no matter how humble, is an extremely important characteristic of Ombudsman Offices.

d)  The PA has recently obtained use of a meeting room in the basement of its building which is being used to take oral complaints and meet complainants. An expansion of that area with some proper planning would go a long way to meet the above recommendation.

e)   A reliable UPS system must be installed when the Office computerizes the complaint system, to avoid devastating failure having regard to the lack of reliability of Tirana’s electrical supply. I understand through Mr. Lehki that such a system is within funds already budgeted through the Danish assistance.

          Personnel

a)  The Office appears adequately staffed for the number of complaints but the organization of it and the mechanics of complaint handling (see Non-­Jurisdictional Complaints below) may need some changes to process the workload more efficiently.

b)  Each section has equal staffing i.e. each Commissioner has five ACs, but the workload is not so equally distributed. The distribution of complaint areas amongst the three Commissioners, set out in the PA Law, was not, according to Mr. Lako, based on any projection of anticipated workload, and should not necessarily mandate the organization of staff. However, it is recognized that the numbers of complaints are not necessary indicative of the time and difficulty involved in resolving them. It is recommended that allocation of ACs to the three statutory Commissioners, and the utilization of those ACs (i.e. the possibility of some of them working with two or more Commissioners depending on workload) be analysed strictly on the basis of need.

c)  The ACs are exclusively lawyers. That may result in an overly legalistic but less practical result in certain areas. The standard of Ombudsman review of administrative action is not just legalistic but also involves considerations of what is fair and appropriate. Although the European Ombudsmen have, generally, recruited only lawyers, the ten Canadian Ombudsmen and Ombudsman Offices in Australia and New Zealand have often utilized those whose practical experience and education may be closely related to the nature of the complaints - i.e. an accountant, a journalist or an ex-police officer. Most of these offices, for example, now employ a human resources specialist as an investigator, given the large number of complaints from the public service itself about unfair work practises, harassment, etc. I note that the PA is now receiving such complaints as are most Ombudsmen Offices in the world. Legality and fair practise are not always the same, and are sometimes at great odds with one another. Legal standards may be maintained by the PA’s and Commissioner’s approval of each recommendation made by the Office.

d)  Many of the ACs were recruited because of previous experience with government departments being investigated. That may provide quicker results in some cases but less than satisfactory results in others, and must be closely monitored. The advantage is (hopefully) the credibility the AC enjoys with his or her former department; the disadvantage may be the tendency to protect former colleagues or to protect or enshrine practises put in place by the AC when so employed. The PA himself must ensure that healthy skepticism is maintained in investigating all complaints.

e)  The ACs are now largely specialized in particular areas of complaint within the jurisdiction of their Commissioner, with some flexibility dependent on workload. The experience of most Ombudsman Offices is that the ACs need to be rotated on a regular basis (perhaps every two years) to avoid becoming jaded, which is the enemy of investigating for fairness and legality. This state of mind also emerges in some Offices even with a rotation scheme, which is the reason most Ombudsman laws grant the Ombudsman total discretion regarding staff employment. The PA must be vigilant to this regarding both the positive recommendations and the decisions that complaints are unjustified provided to him.

f)   Staff is already apprehensive about the impending computerization, and are speaking about maintaining a completely separate manual system as a backup. That is counter-productive. The Office must ensure that its IT Department is completely familiar and fully trained regarding both the hardware and software applications necessary to the computer system so that help can be provided to the staff instantaneously to support their confidence in the system. It may be that separate persons each with hardware and software experience will be necessary. As the Office is already finding, a major part of the work of an Ombudsman Office is collecting, storing and retrieval of information regarding investigations. The manual record keeping of the Office is already overwhelmed. It is vitally important that the upcoming computerization proceeds successfully.

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     Confidence Building - Gaining Respect and Credibility With Institutions Investigated

a)  The PA Office, like all Ombudsman Offices, encounters indifference, lack of response, or sometimes jurisdictional challenge from organizations being investigated. All such Offices express some frustrations about these matters at times. The history of Ombudsmen Offices throughout the world reflects these problems. Albania is not alone in this regard and indeed has made substantial progress in the short period of time the Office has been open.

b)  The above problem is best combated by leadership and principled co-operation with the Institutions being investigated, which is already being practised in the PA Office.

i)   The first step is negotiating a written protocol with bodies regulating the subject of complaint. It represents some difficulty. In this regard, such a protocol has been achieved, for example, with the Director of the Tirana prison to allow investigative visits (not provided for in the PA Law) (see below), and with the Chief Prosecutor for Tirana District. More of these must be achieved, and the moral persuasion of the PA himself as exercised in these matters must be continued.

ii)   The PA Office has recognized that in some local governments, the problem is systemic. They have no staff, facilities, or advice available to them in order to deal with complaints. The PA Office has been working with those bodies to assist when a complaint goes unanswered. That is an important but small step in credibility building.

iii)  In cases where intransigence is encountered, the slow arduous process of never failing to follow up, pressing for response, and never failing to move the case up the ladder to a Commissioner or the PA himself to push for a response at the highest levels in the government department involved must continue to be followed on a case by case basis. This tiresome process is not unusual to any Ombudsman’s Office.

iv)  The PA must show himself to be ready to resort the press in instant where response is not provided, as that is a substantial weapon enjoyed by the PA. Again, in a credibility building process resort should only be taken to this measure when the other measures of steady pressure have simply yielded no result.

v)  There may be some possibility of assistance from FOPA on this matter, in that the viability of the Ombudsman Institution is seen by the Council of Europe as something important for the strengthening of democratic institutions in Albania. A complaint regarding a particular department's intransigence supported by an important NGO or a European Embassy might be of some assistance.

vi)  Lastly, the PA Law may need to be strengthened in this regard. The Danish Ombudsman legislation in Article 19(3) contains the right to subpoena under court process in order to obtain a response to an investigation. The Alberta Ombudsman's Act contains such a right (Section 17), the right to enter premises and search (Section 20) and makes it an offence not to co-operate (Section 30). The PA Act may need some strengthening in Article 22 in order to give the PA the legislative authority to get responses and complete investigations.

          Confidential Access to PA and Inspections

a)   The above two topics are inter-related - i.e. the PA has expressed frustration that it does not have the right to conduct inspections under the PA Law of, for example, prisons and mental hospitals. That is coupled with the lack of the right of individuals incarcerated in those institutions to make a confidential complaint in writing to the PA that cannot be opened or interfered with.

b)  As set out above, permission to inspect prisons has been provided by protocols such as one between the Director of Tirana Prison and the PA. However, that protocol does not provide for confidentiality of communication by prisoners, and outgoing correspondence from the prison is reviewed by prison officials.

c)  The above sets out a serious problem - i.e. there can hardly be a complaint about treatment in these institutions if it must go through institutional staff where the inmate would be subject to reprisals, for so doing.

d)  Most Ombudsman legislation contains both the right to inspect such facilities and the inalienable right to communicate on a confidential basis with the Ombudsman Office. For example, Article 13(1) of the Danish Ombudsman legislation provides such right, as does Section 13 of the Alberta Act.

e)   We note that in his recent request to the People’s Assembly of the Republic of Albania for amendment to the PA Law (attached) the PA has requested the right to inspect under amendment to Article 19/1. We think the amendment should go further and also contain a procedure to ensure confidentiality of complaints. The right to inspect in furtherance of a complaint as requested in Article 19/1 is not so useful if the PA can’t simply enter and then entertain complaints when within the institution.

f)   Most Ombudsman Institutions that have jurisdiction over prisons and mental hospitals and other places where people are deprived of their liberty also do the following, which we recommend the PA consider:

i)   A poster system throughout each institution alerting the inmates regarding the existence of the PA and what it can do.

ii)   Envelopes available in which to place confidential complaints.

iii)  A toll-free number (see below as well) allowing inmates to verbally contact the PA at any time.

iv)  Regular visits to institutions that have shown themselves to have problems in the past, with attendant publicity of the visit of the AC so that people may meet with him/her and submit verbal complaints.

          Publicizing and Accessing the PA Office

a)   In addition to the suggestions set out above concerning the reception area of the Office, and providing the ability to those whose liberty is constrained in institutions to contact the PA Office freely, the following further suggestions are made.

b)  The telephone access to the Office is not yet well-planned or viable. Indeed one finds when telephoning the Office that the identification of the Office as the PA Office and a kind and helpful response is not forthcoming. At times the telephone is not answered at all. A protocol must be set up so that the person answering clearly identifies the Office as the Office of the PA, and clearly invites and assists those callers in accessing the Office's services. Most Ombudsmen Offices have a toll-free number throughout their jurisdiction so that calls may be made from anywhere without cost. I am advised that this is quite possible in Albania and with the continual improvement of toll-free communication should be considered as a priority.

c)  Regarding publicizing the Office within Albania, and within government institutions, the PA has done an excellent job of liasing with local media, and the brochures that the Office has prepared, both the long-form brochure which explains the history of the Office and the Office itself and the short brochure which explains what the Office does and suggests that people contact it are professionally prepared and useful. The following are some suggestions that may assist in furthering the work, publicity and access:

i)   The media have been co-operative in publishing reports regarding the Ombudsman Office when they were able to centre those reports around cases that would attract some notoriety. However, the media in Albania, like all media, are not terribly interested in running stories simply describing an institution. Many Ombudsmen's jurisdictions procure advertising (through broadcasters and newspapers public access programs or by payment for media advertising) to educate people about the Office. In Albania, I am advised that television is a universally watched medium, and newspapers are "devoured". Both those media should be considered by the PA for direct advertisement.

ii)   As is the case in most jurisdictions where the population is spread throughout several cities, towns, and districts, the PA has considered satellite offices. Most Ombudsmen have experienced resistance for governments to fund satellite offices, as these are seen as an unnecessary expense. An option that the Alberta Ombudsman has employed for many years is to organize tours of the rural districts, with advance publicity, often centring around a public presentation to a local service club, religious organization, etc., combined with a day of taking in complaints at a locally publicized location. Such a visit may be preceded by ensuring that Ombudsman publications are available and a poster is posted in strategic locations in the district, in places like the post office, local government offices, etc. These visits can also be combined with a visit to the local administration to advise it about the jurisdiction of the Office to investigate complaints, and to ensure an appropriate liaison if a complaint is then received and requires investigation in that district.

iii)  Another effective way that many Ombudsman Institutions use is to meet with and disseminate information to the various parties in the Legislature, to educate the representatives (and hopefully their constituency association personnel) regarding the Ombudsman function and what it can do to assist local complainants in their area. Elected members in every jurisdiction share one characteristic, and that is they must demonstrate some ability to help those who vote for them in order to be re-elected. The Ombudsman Office can be very useful in assisting constituency offices to access government services, and of course has investigative powers that are not available to individual legislators. My experience has been that to conduct such a session with each party and its representatives at the outset of a new legislative session creates good publicity for the Office, provides another level through the constituency associations of publication of the Office and what it can do, and creates great goodwill amongst the legislators when problems encountered by their constituents are resolved by the Ombudsman Office. This goodwill is often extremely useful when seeking further support for the Office, such as budget increases, legislative amendments, etc. It must be emphasized that education process should be even-handed to all parties without any favouritism for the party in power, in order to be successful.