The Czech Public Defender of Rights was established by Act No. 349/1999 Coll. on the Public Defender of Rights (further only "the Act").
The Act was approved by the Chamber of Deputies of the Parliament of the Czech Republic by a tight majority vote on 4th November, 1999, and approved by the Senate on 8th November, 1999. Approval of the Act meant that the Czech legal order was to incorporate a brand new and unusual institution: However, the Act was approved in a significantly different form from the original draft that was not passed in 1993.
At the stage of the preparation of the draft the opportunity to apply extensive experience based on similar overseas and foreign institutions of the ombudsman was limited since the Czech counterpart of such an institution was established in a relatively different legal as well as social environment. The Act complies with all of the basic principles of the ombudsman even if it might have had to accept a slightly different direction with respect to certain issues.
The Act was being drafted at the time of heated discussions in which doubts were repeatedly articulated undermining the very need for such an Act. One of the crucial arguments to support the passage of the Act was, among others, the statement of the Committee of Ministers of the Council of Europe. The Committee of Ministers of the Council of Europe in its Recommendation R/85/13 on Institution of the Ombudsman as well as in its Recommendation R/97/14 on establishment of independent national institutions for the promotion and protection of human rights urged the member states to consider the establishment of the ombudsman institution or an institution of similar nature especially in the countries affected by sudden social and political changes, by economic transformation or by violent events of war-like nature leading to threats to human, industrial, social and cultural rights.
Foreign experience also proves that ombudsman institutions remedy or at least act as means for reduction of the dissatisfaction of citizens with respect to the situation within state administration. Such dissatisfaction might however, be based on both objective or subjective negative experience with the way state administration officials execute the authority of state.
With a certain level of simplification it might be said that the disadvantageous situation of the citizens in their dealings with the system of state administration results to a large extent from the very nature of such relations. Citizens are sensitive to situations in which, actually or supposedly, they might feel neglected, overlooked or humbled, since citizens often do not know where, how and in what way their rights and interests can be exerted.
Citizens, unlike specialist officials, do not possess sufficient information and expert knowledge.
The system of courts including administrative courts seems to be complicated, complex and costly as well as time-consuming and often inefficient and subject to a much discussion. Apart from those traditional procedural means of protection what seems to generally appear as insufficient is the mechanism of internal supervision over the execution of state administration applying function-based structure and practicing the principle of purely function-based responsibility for the malpractice or insufficiencies uncovered. Unlike court-type institutions serving to rectify cases in which failure to comply with legal standards is uncovered the Public Defender of Rights can ensure remedy even in cases when the action of a relevant office or an institution complies with the law but might be in other ways incorrect, inadequate or unjust or even in cases when the relevant institution fails to act.
The existence of and institution of the ombudsman can to large extent remedy the disadvantageous status of citizens with respect to the system of state administration might be significantly compensated for, since the ombudsman acts as an institution that is external, independent, free, relatively co-operative and as informal as possible. The main role of the ombudsman is to ensure protection of rights and legitimate interests mainly in the areas in which the citizens or other entities and subjects encounter the offices of state administration.
The Public Defender of Rights is able to successfully fulfil the role of the traditional mediator between the parties involved. Foreign experience indicates that the very existence of the ombudsman also has extensive preventive impact. The offices and the officials in charge of state administration must be aware that when citizens as a party to the procedure do not feel satisfied with either their performance or with their decision, they may find themselves in a situation in which they will have to provide explanation and justification for the measures taken and the decisions issued.
The Public Defender of Rights has no direct means or mechanisms of enforcement at his/her disposal. The ombudsman requests the body of state administration responsible for malpractice or error to remedy the situation. Should the relevant body fail to provide remedy the ombudsman may eventually pass the matter onto the government. The role of the Defender cannot be perceived in changing or replacing the decisions of the relevant body of state administration but in instructing the above bodies to apply their own supervisory and correctional sanction-imposing legitimate authority and power to ensure remedy of the situation.
Where the individual cases of complainants are concerned the Defender is bound to maintain confidentiality while dealing with a number of sensitive issues and data but when the issues dealt with gain more general form the Defender of Rights is obliged to continually inform the public on the activities and findings of the Office. The most significant and unexpectedly the most effective means of sanction that the Defender of Rights is entitled to use is the sanction represented by informing the public on the malpractice of relevant institution. The Public Defender of Rights regularly on a quarterly basis informs the Chamber of Deputies of the Czech Republic on the activities of the Office.
The Act stipulates that the Public Defender of Rights is not only obliged to contribute towards remedies for malpractice and errors of the individual institutions in their dealings with citizens but is also obliged to evaluate the findings and propose such systemic remedial measures a would remove or alter the actual cause of the situation leading to malpractice in the first instance. Such activities represent the contribution of the Public Defender of Rights towards the improvement of the quality of the state administration or in other words towards the improvement of the state administration with respect to all persons involved.
Findings based on the activities of the Defender in a given year in their more general form are submitted to the Chamber of Deputies of the Czech Republic in the annual report for the relevant year. The report is to be discussed by the Chamber of Deputies and is also received by the Senate, the President of the Czech Republic, the Government Departments and other administrative bodies with national powers.
The report contains detailed information on the activities of the Defender. It also attempts to attract attention to issues uncovered by the Public Defender of Rights that could be seen as the cause of the dissatisfaction of the complainants with respect to the legislation of the country and malpractice of state administration. On a more general level such issues could be perceived as the cause of the obstacle standing in the way of citizens attempting to fulfil their rights and legitimate interests or even causing failure of citizens to have such rights recognized. The law-making authorities in question, if willing to listen carefully can be more aware of the inefficiencies that are to be resolved.
The concept of the Czech legal status of the ombudsman is based on the principle of the exclusive authority and responsibility of the Public Defender of Rights for impartial performance of his/her role and that is also the reason for the clearly monocratic nature of the Act.
The Act amends the legal status and the powers of the Public Defender of Rights as a public official. The Public Defender of Rights is elected by the Chamber of Deputies of the Czech Republic. Two candidates are proposed by the President and two by the Senate. The term of office of the Public Defender is six years and the Defender can serve only two consequent terms of office. Any person eligible for the Senate (Czech citizenship, the right to vote and aged 40 or more) may be elected for the post of Public Defender of Rights. Such a person may not be a member of any political party or movement and may not undertake any other posts, offices or any other gainful activities. The Defender assumes his/her powers within the office when being sworn in by the Chairman of the Chamber of Deputies of the Czech Republic and once established in the office he/she reports directly to the Chamber of Deputies.
The Deputy Public Defender of Rights is elected in a procedure identical to the election of the Defender, identical conditions for candidature and identical term of office apply. The Deputy has at his/her disposal the full powers of the Defender when the Defender is not available and additional powers entrusted to the deputy by the Defender.
The Office assisting the Public Defender of Rights in his/her activities is established out of the will of the Defender since the Act contains merely a basic framework for activities of the Office of the Public Defender of Rights. This Office "shall fulfil the tasks related to professional, organizational and technical support " of the activities of the Public Defender of Rights. The Act also stipulates the Defender has the authority to issue Internal Regulations to amend and stipulate the details related to the organizational structure and the concrete tasks of the Office.