Guideline on Ombudsman investigations
The guideline contains information on best practices from ombudsman experience on the receipt of complaints, ombudsman policies and procedures surrounding the receipt of complaints, decisions to investigate them or not, how they are investigated, how the results of those investigations are presented to the complainant, the subject of the investigation, government officials and leaders, Parliament, the public and the media. These best practices are presented so Ombudsmen and their staff can consider implementing or adapting them to improve the function and performance of their institutions.The guideline however, does not cover Ombudsman investigations about specific types of complaints or complainants, specific subjects, media relations other than concerning investigations, alternative dispute resolution in detail, how to construct or use a computerized complaint registration system that tracks information about complaints and investigations.
Legal Basis for An Ombudsman Investigation
The legal basis for an Ombudsman to conduct inquiries and investigations of complaints is in the country’s constitution and/or law creating the institution. Without specific authority, the Ombudsman could not conduct an investigation of a complaint received within the office’s competence. The Ombudsman is a Rule of Law institution. Ombudsmen must be the first to follow the laws creating their offices and providing the powers they can use to receive and investigate complaints.
Each Ombudsman and staff who conduct investigations should carefully read, analyze, understand and use appropriately the powers and authorities provided in the office’s legal basis. To do otherwise would open the Ombudsman institution to the kind of criticism it makes of other authorities about not following the law.
Adaptation FOR LOCAL PRACTICE
Each Ombudsman and National Human Rights Institution (NHRI) has its own legal basis in the country’s constitution and the law creating the institution as well as in the regulations, and policies and procedures adopted for each institution. If there is a conflict between the guideline and national legislation, follow national legislation. If provisions in national legislation do not agree with international standards, seek amendments to the legislation to bring it into agreement with international standards.
Individual institutions may have different ways to accomplish the same goals described here as best practices that have been developed in other countries.
No one set of practices fits every local situation. The basic concept of an independent, impartial institution that receives and investigates complaints about alleged violations of human rights is implemented using different methods in different countries. What is important is that the Ombudsman institution be and be seen to be independent and impartial, capable of conducting fair and unbiased investigations credible to both complainants and the authorities under the institution’s competence.
Regulations, Policies and Procedures
In whatever manner an Ombudsman office is structured under law, an important goal is to create one or more documents prescribing how the office functions in its various aspects. While it is difficult to create a manual early in an office’s history, it is important to begin and to draft and adopt regulations that amplify and complement the law creating the Ombudsman institution. The regulations should be further amplified in policies and procedures the Ombudsman can change instantly that prescribe how the office operates.
Documents and manuals are important for the efficient, effective and consistent operation of an Ombudsman institution. Practices should be documented in written policies and procedures. This is vitally important for investigations. Written policies and procedures help insure that staff conduct investigations in manners approved in advance by the Ombudsman that are consistent from one investigation to another.
1. Ombudsman Versus Criminal Investigations
An investigation is the Ombudsman’s process of examining a complaint. The Ombudsman determines the facts, the laws or other legal bases governing the facts, analyzes the facts in light of the laws, makes a finding on the allegations of the complainant and makes recommendations to restore rights or prevent them from being violated in the future.
The Ombudsman and staff systematically gather and analyze facts to understand and determine the merits of a complaint and, in turn, to consult either to settle a complaint or to make recommendations to resolve the complaint.
In English, the word “investigation” can be used to describe everything from a very informal inquiry to a very formal criminal investigation that could result in a prosecution. In Russian, the word “investigation” often connotes a criminal prosecution, an activity conducted only by procurators. Thus it is very important to distinguish between Ombudsman investigations and those conducted by a procurator.
Ombudsman investigations are not criminal investigations. Their goal is not to determine whether to initiate a criminal prosecution. An Ombudsman investigation is administrative, an inquiry that determines facts, finds the law governing the situation, makes a finding on the complaint and presents recommendations designed to resolve or redress the specific problem or to prevent it from happening again.
An Ombudsman’s credibility and the regard in which the public holds the institution depend to a large degree on the credibility and results of investigations the office conducts. Credibility of both the Ombudsman and the office’s investigations depend on sufficient powers to enable the Ombudsman to determine the facts even if those who possess them are not willing to cooperate with the Ombudsman.
An investigation begins with a complaint. If it is within the Ombudsman’s competence as prescribed by the office’s legal basis, the Ombudsman can determine whether it should be investigated. The investigation ends once the Ombudsman and staff are satisfied that the inquiry has yielded all relevant facts. Normally, a member of the Ombudsman’s staff receives the complaint, defines what is to be investigated, plans and conducts the investigation under the supervision of the Ombudsman or other managers, evaluates the complaint, the facts obtained and the applicable laws. The investigator drafts a report that presents a suggested finding to the Ombudsman along with recommendations if appropriate. The investigator and the Ombudsman managers evaluate an authority’s responses to the Ombudsman’s finding and recommendations and make any appropriate changes to the draft report. The Ombudsman signs the report and determines whether it will be made public. Eventually the investigation is concluded.
Ombudsmen will criticize authorities that have been found to violate human rights or commit maladministration. The Ombudsman—the person, the institution and its staff—must be as exact and precise, as scrupulously accurate in all of its work, particularly investigations, as it would expect other authorities to be.
2. Investigative Principles
Investigations begin with complaints or issues the Ombudsman chooses to examine without a complaint. They may proceed in a variety of ways and end for different reasons. The problem may be resolved and the Ombudsman chooses to discontinue the investigation. Key witnesses or records may no longer be available. Or the Ombudsman and staff conduct the investigation, find the facts, make a determination and issue a report.
The process for moving from a complaint or Ombudsman-initiated investigation to a concluded investigation with a written report may not be described in the office’s legal basis in detail sufficient enough to provide Ombudsmen and their staff the principles to follow in conducting the investigation. The following principles have been derived from examining laws creating more than 130 Ombudsman institutions around the world, reading investigative reports from many Ombudsman offices, experience in conducting investigations and discussions with Ombudsmen and their staff.
These principles describe how Ombudsmen and staff have found it best to investigate complaints. They originate in a number of places: 1. The legal instrument that creates the Ombudsman institution. 2. Furtherance of the characteristics of independence, impartiality and integrity. 3. Experience from having conducted investigations and determined what works best to yield investigations that are respected by complainants, authorities, government, Parliament and the public at large.
If an Ombudsman’s legal basis does not permit following the principles, the Ombudsman should follow the law creating the institution. If the law prevents investigations from being conducted in good ways, if appropriate the Ombudsman should seek to have the law amended to improve the investigative process. When one or more principles cannot be followed because they contradict the Ombudsman’s legal basis, think about why that principle has been suggested here and whether being able to follow it would improve the quality of Ombudsman investigations. If it would improve investigative work, plan how to approach Parliament to seek amendments that permit or require the principle to be followed.
2.2. The principles
Giving explanations is a large part of an Ombudsman’s work. From helping complainants understand how government functions through explaining what an investigation determined, Ombudsmen devote much energy to explaining.
In nearly all Ombudsman offices around the world, investigations are inquiries, not adversarial processes. The Ombudsman is responsible for all investigations, even in those offices where the Ombudsman may delegate some, many or all of the powers to conduct investigations. Based on powers provided in law, the Ombudsman determines how each investigation will be conducted.
The Ombudsman protects the rights of all parties in a complaint and assures that natural justice, due process or procedural fairness is observed. The Ombudsman does not represent the complainant, authority, government or Parliament. The Ombudsman represents good government and observance of human rights.
Investigations are conducted in private. Staff are required to observe secrecy and confidentiality. Information is normally only disclosed for purposes of the investigation or to establish grounds for the Ombudsman’s determination and recommendations. (Some Ombudsmen return documents or copies to the person or authority that provided them.)
The Ombudsman or staff conduct an impartial and independent investigation of actions over which the office’s legal basis gives the Ombudsman jurisdiction. The Ombudsman has no interest in the results of investigations other than that they are fair, impartial, independent and correct. The Ombudsman responds to actions found to be violations of human or other rights over which the Ombudsman has competence. Generally, if an authority’s action was not a violation of human rights or other rights, the Ombudsman has no basis to make recommendations.
Once the Ombudsman receives a complaint and decides to investigate it, the authority is notified of the proposed investigation and given an opportunity to comment.
Subject to the office’s legal basis, the Ombudsman determines whether any person may be represented or advised by legal counsel and what role that counsel may play other than advising the person before the Ombudsman.
The Ombudsman normally may compel individuals to appear and give testimony or produce information the Ombudsman determines is relevant to the investigation. Individuals compelled to appear, testify and/or produce information usually have the same rights as witnesses in the country’s courts.
The Ombudsman and investigative staff should not make up their minds about a complaint before concluding the investigation. They should not assume that violations of human rights or other rights will be found to have occurred just because they have been alleged or found in the past. Staff should not express opinions, personal or otherwise, about complaints, complainants, authorities, civil servants or government officials. To do so may compromise the Ombudsman’s impartiality prior to conducting an investigation or considering future complaints. Internal debate among staff and the Ombudsman is welcome and essential to a vigorous consideration of issues before the Ombudsman makes a finding or takes a position after conducting an investigation. The Ombudsman benefits from hearing a broad range of opinion from staff and others when that is appropriate. Broadly discussed issues result in better recommendations and actions by the Ombudsman.
The Ombudsman issues a report after each completed investigation. It summarizes the complaint, the facts the investigation found, the law governing the situation, an analysis of the facts in light of the law, a finding on what the complaint alleged, and any recommendations the Ombudsman proposes the authority implement to remedy the situation or to prevent it from happening again.
The Ombudsman gives any person, official or authority that will be criticized the opportunity to read a preliminary report on the investigation and respond in any manner the person, official or authority sees fit. The Ombudsman incorporates written responses or summaries of them and any other responses in the final report.
Final reports are presented to the complainant, the authority that was the subject of the complaint, any individuals who acted on the matter complained about along with their supervisors and any other person or authority the Ombudsman determines should receive the report.
Courts may not review the acts of the Ombudsman in investigations as in other matters. Ombudsman communications or publications are absolutely privileged and cannot form the basis for suits charging defamation, libel or slander.
3. The Ombudsman’s Jurisdiction, Role and Responsibility
The Ombudsman acts as an independent and impartial third party to examine and where appropriate investigate complaints. The Ombudsman decides which complaints to investigate, how to investigate them and what recommendations to make to the authorities against which the complaints have been made. In handling and investigating complaints, most offices use some form of these steps:
- Receiving and focusing the complaint: Communicating with the complainant(s) to determine what is being alleged and which person or authority is the subject of the complaint.
- Determining whether the Ombudsman has authority/power/jurisdiction to investigate: Examining the Ombudsman’s legal basis to determine whether the complaint is within the Ombudsman’s power to consider and investigate.
- Deciding whether to investigate: After a preliminary examination of the complaint, determining whether it can be resolved without an investigation and if not whether it will be investigated.
- Investigating through fact-finding: Using the Ombudsman’s powers to interview persons with information about the events that are the subject of the complaint, and obtaining records about the events to determine the facts surrounding the complaint.
- Testing the facts: Examining the facts to resolve conflicts and determine which are most important to making a finding on the complaint.
- Analyzing the facts: Finding laws or other legal instruments that govern the facts and then analyzing the facts in light of the laws.
- Consulting with the subject of the investigation in an attempt to settle the complaint: Interviewing the subject to determine whether it is possible to settle the complaint or to restore rights that have been violated. Resolving complaints where and when possible.
- Preliminary report to the authority/institution: Writing a report that summarizes the investigation—the facts found, the law that governs them, analysis of the facts in light of the law, the Ombudsman’s finding on the complaint and recommendations. A preliminary report is sent to any person or authority that is being criticized for any comments or responses.
- Final report with findings and recommendations: Any responses are included or summarized, any changes made as a result of the responses are indicated and the findings and recommendations are made final. Confidential material is removed before the report is issued to anyone not entitled to read the confidential material.
- Keeping the complainant appropriately informed: The complainant is appropriately informed of the investigation’s progress throughout the process.
These steps may be followed in this order or where appropriate in a different order. For example, the complainant may be informed at regular intervals of the investigation’s progress, not just at the end when it is concluded.
Summary of remaining Guideline sections:
4. Receiving, Understanding and Recording a Complaint
Initial reception of a complaint is the first opportunity for the intake officer to help define the issues, concerns and alleged violations of human rights that the complainant wishes the Ombudsman to resolve or investigate. Many of the complainant’s expectations are set when a complaint is received.
A complaint must allege a violation of human rights or maladministration. Intake officers should look for allegations of fact that can be determined which if found true the complaint would be upheld.
5. Complainant Expectations
The earliest contacts between an Ombudsman’s office and complainants set expectations for what follows. How the intake officer explains the Ombudsman’s role, process and work to new complainants, for example, tells them what to expect. They should understand the range of remedies the Ombudsman can recommend and that the Ombudsman can only make recommendations and not order authorities to implement the recommendations.
6. Jurisdiction: May A Matter Be Investigated?
Three factors defined in the law creating the Ombudsman determine whether a specific complaint is within the Ombudsman’s jurisdiction: who can complain, what authorities may be the target of complaints, what acts may be complained about.
7. Preliminary Examinations
Preliminary examinations seek to determine whether the complaint is capable of a remedy that does not require an investigation, whether facts or law might be issues an investigation would clarify, whether there might be a basis for finding the complaint justified or supported if it is investigated, etc.
8. Reasons To Investigate or Not
The section discusses general and specific reasons to investigate or not.
9. Allegation—The Issue To Be Investigated
The allegation is a good summary or restatement of the problem from the complainant’s perspective. It contains a thoughtful, concise statement of each assertion the complainant made during an intake interview or in a written complaint. It sets the focus of what will be examined, suggests the manner in which to conduct the investigation and is stated in a way that allows the Ombudsman to make a clear finding about what the complainant alleges.
10. Deciding Whether To Investigate, Authorizing Investigations
Investigators may speed complaint resolution rather than investigating by using facilitation, negotiation, shuttle diplomacy, and face-to-face meetings between authorities and complainants. The Ombudsman’s policies and procedures should prescribe the process to authorize an investigation. It should state who authorizes investigations based on complaints, what is required to consider whether a complaint should be investigated and how the decision will be made.
11. Who should Conduct The Investigation?
The section discusses the qualities that help indicate who should investigate a complaint, what factors create a conflict of interest and how to deal with them, whether the authority should be asked to investigate first, and setting investigative priorities.
12. Terms Of Reference For an Investigation
The section discusses terms of reference for an investigation, what they accomplish, who should draft and approve them.
13. Planning an Investigation
Good investigations begin with good planning. Good planning helps the investigator think through which issues to investigate, what is required to prove or disprove each allegation and what actions and resources are needed to conduct and conclude the investigation. Good planning assures appropriate resource use, and prevents spending staff time and money without good results.
A well-thought plan indicates whom to interview, what evidence to obtain and which authority or individual is most likely to possess it. The section lists questions the investigator should consider and investigative methods.
14. Issuing Notice of An Investigation
Laws creating Ombudsmen often specify that the Ombudsman must notify authorities of the intent to conduct an investigation or when an investigation is initiated.
15. Finding The Facts
The section discusses the process for finding the facts, limits on obtaining information, rules of evidence, compelling witnesses to testify, uncooperative witnesses, interviewing, questions to ask, documenting interviews, the presence of third parties, expert witnesses, statements/interrogatories, good interviewing techniques, reviewing documentary evidence, inspecting premises.
16. Fairness In The Ombudsman’s Investigative Process
The section defines and discusses the importance of procedural fairness to an Ombudsman’s investigation.
17. Those Who Refuse To Cooperate
The section discusses how to attempt to secure voluntary cooperation and what to do if it is not secured.
18. Documentation, Record Keeping
An investigative file should record what the investigator did and include communications with all parties, evidence obtained, etc. The record should allow a staff member other than the investigator to understand what took place and what might remain to complete the investigation. The section lists the types of information to include in an investigative file and who should and should not have access to that file.
19. Investigative Problems
The section discusses investigative traps, transferring investigations, common investigative pitfalls and troubleshooting an investigation.
20. Finding The Legal Basis That Governs The Matter
Methods for finding the law that governs a particular matter should be discussed at this stage.
21. Analyzing Facts In Light Of The Law
Assessing evidence begins with gathering it, determining its relevance and thinking about what needs to be determined to prove or disprove the allegation(s) of the complaint. The section discusses analyzing assessed evidence, analytical tools, interpreting statutes and standards of proof.
22. Making A Determination
When an investigation is ready to be concluded, the investigator recommends a determination for the Ombudsman to consider. The section discusses who makes a determination and what is determined.
23. Making Recommendations
The section discusses why make recommendations, the power to have them implemented, qualities of good recommendations, developing recommendations, principles for writing recommendations that will be adopted, and principles for redress.
24. Ombudsman Investigative Reports
The section discusses contents of an investigative report, when a report is appropriate, preliminary reports, writing reports, what is effective writing and how to recognize it, who decides on report content and how reports are reviewed, authority responses to reports, and when and how to make a report public.
25. Supervising Investigations
The section discusses who supervises investigations, the goals of investigation supervision, and case conferences and reviews
26. Administrative Considerations
The section discusses travel, pay for expert witnesses, legal advice, and use of interpreters.
27. Investigations That Discover Evidence Of Crimes
The section discusses halting investigations that discover evidence of criminal activity, and consulting with and referring criminal matters to the procurator.
28. Communication With Complainants, Authorities, Witnesses
The section discusses the principles of Ombudsman communication in general, the need to define who can communicate what to whom, and communicating with complainants, authorities and witnesses, as well as with the complainant’s advisers/representatives and with prisoners and other institutionalized persons.
The section discusses what an Ombudsman must keep confidential.
30. Whistle-blower Protections, Protection Against Reprisals
The section discusses the need to protect individuals against reprisals.
31. Freedom Of Information, Privacy, Confidentiality, Protecting An Investigation’s Integrity
The section discusses the effects of freedom of information, privacy and confidentiality laws on an Ombudsman’s records along with the need to protect an investigation’s integrity.
32. Protecting Ombudsman And Witnesses Against Defamation Suits
The section advises Ombudsmen to determine what the laws of their countries do to protect them, their staff, the complainants and witnesses against successful suits for defamation and libel.
33. Media and Investigations
The section discusses relations with the media before, during and after an investigation.
34. Discontinuing Investigations
Under a number of situations that may develop during an investigation, the Ombudsman or investigator will discontinue it. A chart describes those situations and the actions required after discontinuing the investigation.
35. Closing An Investigation
An investigation is normally closed when no further action is needed or possible on the complaint. Complaints that have been fully investigated with a written report, a finding and one or more recommendations are usually completed once the authority has responded and restored rights. If the authority has not adopted the recommendations, the investigation is closed once the Ombudsman concludes that nothing more can be done to encourage or persuade the authority to act and follow the report’s recommendations and the report has been submitted to higher authorities and/or made public.
36. Complaints About An Ombudsman Investigation
Complainants will occasionally want to complain about conflicts of interest, the way an Ombudsman office conducted an investigation or decided to discontinue the investigation, or the conclusions