Between a Rock and a Hard Place: The Ombudsman Between Administrative and Judicial Appeal Procedures

Abstract

In recent years a lot of attention has been paid to enhancing and strengthening the role of the Ombudsman in complaints procedures; an equal (or larger) amount of attention has been given to lowering the threshold of formal – administrative or judicial – appeal procedures or to simply creating more and broader legal protection mechanisms. From a legal point of view a strict distinction has always been made between the complaint of a citizen against ‘unfair’ treatment by the government and the appeal lodged by the citizen against an ‘illegal’ administrative decision. In this context it’s surprisingly easy to think of ‘complaints’ and ‘appeals’ as ‘black’ and ‘white’ categories thereby leaping over the grey area in-between. But it’s exactly this grey area which is of particular interest not only to the citizen – who very often finds such legal distinctions incomprehensible – but also to the legal community – whose primary interest should be fair adjudication. This paper has a dual focus: on the one hand we wish to study effective adjudication in administrative proceedings, on the other hand we want to examine the position of the Ombudsman visà- vis these administrative proceedings. Problems as described above are common to most countries that have well-developed (or over-developed) legal protection mechanisms. Complaints and appeal procedures are not – contrary to popular belief – parallel tracks but rather are separate tracks of legal protection which can and do intersect at some points in time.