Ombudsman [0mb] Protecting the rights of minorities

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Ombudsman 0mbProtecting the rights of
minorities

• everybody is allowed to be the author of their
  own life
• groups have fair and equal chances to gain
  democratic power

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Simon Matthijssen????? ??????????

• Lecturer constitutional- and administrative law
  Univ Leyden
• Lawyer for the city of Rotterdam
• Alderman (D66 progressive social liberals)
• Substitute Ombudsman Rotterdam (17 yr)
• After retirement Guest at Univ of Utrecht,
  Erasmus Univ Rotterdam, Higher School of
  Economics (Moscow), Padua It., Kaunas, Lt,
  Kiev Rivno (Ukraine).
• Board Member Dutch Complaint-Law Association,
  European Ombudsman Institute (representative in
  Council of Europe INGO-conference), reporter.

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Aim of this contribution

• Raising questions and giving arguments for
  tonight's Evening Discussion Club on Universality
  of Human Rights (HR)
• What is an Ombudsman?
• What is the relation Omb HR?

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1991 Paris Principles (UN)

• Nat. HR institutions Ombudsman
• Monitor violations of HR
• Advice Gvt, Parl. etc on violations, legislation
  and implementation of HR
• Partner Int. and Nat. Network
• Mandate to Educate and inform on HR
• (some have) quasi juridical competence
• Many Omb in former CCCP states are build on PP

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Ombudsman old and new

• Trustees of the ruler existed long, first
  ombudsman / 1713 King Charles XII Sweden
• Nowadays many forms Diffensore Civico, Defensor
  del Pueblo, Avocatul Poporului, Arartekko, Sindic
  de Greuges, Human Rights Commissioner,
  Parliamentary Commissioner, Médiateur de France,
  Seimo kontrolierius, Petitionsausschuss
• One is looking for missing dossiers, others are
  looking for missing persons NO Omb is the same!
• European Omb use ECoHR

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ECoHR European Convention on Human Rights

• Council of Europes main product
• the HR codex for 47 countries.
• My personal perspective
• Individual to be the author of ones own life.
• Group every minority has the right to aim for
  govt. power in a peaceful way.

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Author of your own life

• Biology proves that Humans are not meant to
  live alone, HR include individual and group
  rights
  (very disputable list)

Life, Torture, Servitude , Property, Liberty and Security (conscience and religion), Fair trial (effective remedy/ non-retroactivity), Privacy, Marriage, Non-discrimination, Education, Free expression, Assembly, Transparency and accountability (right to complain), Political equality, pluralism, Protection minorities
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Ombudsman in context

• The 0mb finds his/her role in the given society
  and circumstances
• Different societies have different needs
• KNOW YOUR CONTEXT
• Juridical context Democratic/HR stability and
  tradition, Margins of appreciation, Soft Law.
• Economic context Spread of wealth (Gini-index).
• Social Context Maslovian pyramid, Trust
  Society,

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Self-actualisation
Text
Esteem
Loving/Belonging
Safety
Physiological
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Gini Index
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0mb context

• Axiom there will be more oppression when
  behind the veil of ignorance (Rawls) and in
  real life people assume/know
• Majority can never escape Maslowian lower stage
• There is an unescapable unequal division of
  income and wealth
• State power leads to wealth
• (also less trust and more corruption?)

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Minority rights and Author axiom

• ALL MEN ARE BORN FREE AND EQUAL
• Logical truth/Consistency requires every
  individual to recognize and respect the freedom
  and well-being of others (individuals and groups)
  who also want to be the author of their own lives.

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undemocratic to protect Minos?

• Majorities do not always have the power (under
  Saddam Hussein 32 Sunni had power over 64
  Shia)
• No majority is for ever
• Who decides what a minority is? gt process of
  Group / Identity building (Prof Ermischer)
• Many Minos can make a coalition to become a
  Majority they have the right to struggle
  peacefully for democratic power
• Majority can be wrong (fascism),

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Conflicting HR Expression Religion Private
Life

• The law does not decide whats right, often
  history proves old rights wrong.
• NL 1975 homosexuals were outcast, peado-sexuals
  were openly in parliament
• Now its the inverse. (H-sex was against nature
  now 1500 species have their gays. P-sex was
  considered ok because of consent, now we assume
  undue influence)

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Conflicting HR dilemma

• Free marketplace of ideas you may oppose IDEAS
  but you are not allowed to spread hatred amongst
  GROUPS or incite violence -gt intntion of sender
  is criteria
• Religion special status?
• Axiom just as much religions as living languages
  (2000!) How to choose?

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Dos and donts

• IDEAS (eg capitalism is morally wrong vs kill
  the bankers)
• LIFE STYLES (you may picket before contraception,
  abortion or euthanasia clinic vs bomb abortion
  clinic, write down number plates and harass
  employees and visitors)
• RELIGIONS (you may deny creationism or Darwinism
  vs killing those who cannot recite verses of your
  Holy Book)

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Fracis Fukuyama on TRUST

• Trust is the expectation that arises within a
  community of regular, honest, and cooperative
  behaviour based on commonly shared norms, on the
  part of other members of the community

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low trust countries high trust countries
Trust outside clan or kinship No Yes
Voluntary associations CSO (soccer, church, union, NGO, election voluntary, school board) Seldom Flourishing
Hierarchy Much Little
Bureaucracy Well accepted Not favoured
Legal structures High density Low density
Adaptive speed Low High
Religions One predominant religion Many religious groups
China, South Italy Japan, Germany, USA
(NL)
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If people dont trust govt
they withhold information
ppl trust the govt less
the govt is in the dark
govt becomes oppressive
govt make inadequate rules
ppl disobey and distrust the govt
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Trust is good, but Bad Trust is evil

• Milgrams obedience experiment (ppl asked to give
  electroshocks to others who give wrong answers)
• 60 killed the other! (many times repeated!)
• Zimbardo Stanford University Jail experiment
  (students playing jail)
• Direct Role acceptation / adaptation
• Moral sliding scale when there is no adequate
  monitoring system

Ombudsman.HR_at_gmail.com
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Bad Trustresults

• Abu Ghraib (04),
• Hannah Arendt Eichmann in Jerusalem A Report on
  the Banality of Evil (1963),
• Magdalene Laundries (1920 - 1996)
• Philomena (2013)
• Tuam Mass Grave 1975-2014
• (bon secours Mother and baby home)

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Perversion of trust in democraciesQuis custodiet
ipsos custodes?

• Closed institutions owning their own goals
  (mission creep / goal shift)
• Esprit de corps / firm believe in own goals
• Power over others
• Absence of adequate monitoring or safe place for
  complaints for the victims
• HRD very vulnerable 

Ombudsman.hr_at_gmail.com
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The ombudsman/ HRD rule

• In democracy there can exist no closed
  institutions without independent external
  monitoring.
• access to any place where the any organisation
  exerts its power over others or fulfils his job.
• Others than the executive decide upon the power
  to monitor
• The independent external body should have right
  to handle complaints and be competence of direct
  intervention.

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Other monitoring org

• Civil Society Church, soccer team will miss
  someone that is detained
• NGOs (GONGOs??)
• INGOs (foreign agents?) AI, HRH, HRW
• ECRI European Commission against Racism and
  Intolerance
• CPT European Committee for the prevention of
  Torture and Inhuman or Degrading Treatment or
  Punishment

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CPT

• visits (to investigate how persons are treated)
  prisons, juvenile detention centres, police
  stations, holding centres for immigration
  detainees, psychiatric hospitals, social care
  homes, etc.
• Unlimited access and movement on site
• Free interviewing
• Systematic and unannounced visits Country
  reports http//www.cpt.coe.int/en/about.htm

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ECRI

• ECRI is a human rights body of the Council of
  Europe, composed of independent experts, which
  monitors problems of racism, xenophobia,
  anti-Semitism, intolerance and discrimination on
  grounds such as race, national/ethnic origin,
  colour, citizenship, religion and language
  (racial discrimination) it prepares reports and
  issues recommendations to member States.

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Remember

• Power and Money
• Fair share less oppression
• Protect Minorities
• Trust is good
• Monitoring is better
• Omb are moulded by the context I aimed on
  guaranteeing that every body can be the author of
  his own life and groups have equal chances to
  gain democratic power