by Judge Emeritus Joseph Zammit McKeon, Parliamentary Ombudsman

The primary job of the Office of the Ombudsman is to investigate acts or omissions of Government, meaning the public service and the public administration, in the performance of their administrative functions. The Office can do so effectively because it is independent of Government, even where its budget is concerned, and enjoys constitutional protection.  

When investigations are concluded, the Office determines whether or not there has been maladministration on the part of the public service and/or the public administration.  

Although the Ombudsman Act 1995 (Chapter 385 of the Laws of Malta) does not have an interpretation clause that specifically defines the term maladministration, in Art 22(1) the Act in very clear terms does determine in four instances when a decision, recommendation, act or omission of Government constitutes maladministration namely:

1. when it appears to have been contrary to law; or
2. was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a law or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory; or
3. was based wholly or partly on a mistake of law or fact; or
4. was wrong.

There is nothing vague or uncertain in the criteria to which the law refers because every investigation is considered on its own merits according to resultant facts and circumstances. 

El síndic de Greuges de la Comunitat Valenciana, Ángel Luna, reprocha a la Conselleria de Servicios Sociales y a la Conselleria de Justicia e Interior su falta de coordinación y diligencia para resolver el acceso al empleo público de una persona con discapacidad intelectual.

A finales de noviembre de 2024, la madre de la afectada se dirigió al Síndic por la falta de respuesta al escrito que presentó a la Conselleria competente en Función Pública. En él solicitaba un informe de adaptación laboral para poder activar a su hija en la bolsa de trabajo temporal de Ayudante de Residencia.  Una bolsa en la que estaba inscrita, pero figuraba como “no disponible” a falta de dicho informe.

Esta institución ya había tramitado una queja previa sobre este asunto.

En su resolución, el Síndic concluye que la Administración autonómica ha incurrido en una «falta absoluta de coordinación» a la hora de emitir el informe correspondiente de adaptación del puesto de trabajo para personas con diversidad funcional, en función de la bolsa de trabajo a la que pertenezcan. Y le ha recordado que, en lo que respecta a las personas con diversidad funcional, la adaptación del puesto de trabajo es un requisito legal que las administraciones públicas están obligadas a cumplir.

Luna también afea a la Administración que la madre de la persona afectada se haya visto obligada a peregrinar por dos consellerias y presentar quejas en el Síndic para obtener los informes necesarios de adaptación al puesto de trabajo que permitan el acceso al empleo público de su hija. De hecho, transcurrido más de un año, todavía no se ha producido su incorporación efectiva.

Por último, el Síndic pide a la administración que considere la posibilidad de que la trabajadora desempeñe otros puestos dentro de la Agrupación Profesional Funcionarial de Subalterno/a, tal y como indicaba el informe de la Comisión de Estudios de la Diversidad Funciona y conforme a las adaptaciones sugeridas por el INVASSAT.

Consulta la resolución del Síndic sobre este asunto.

On February 24 and 25, the Ombudsman’s Office received a delegation from the Kenyan Administrative Justice Commission as part of the European Technical Assistance and Information Exchange (TAIEX) programme on the right to information and administrative justice.

The purpose of the working visit was to strengthen the capacities and competences of the Kenya Administrative Justice Commission’s research department in the areas of administrative justice and access to information, essential pillars for an effective and accountable public administration.

Promoted by the European Commission’s Directorate-General for International Partnerships, this programme aims to support public administrations in partner countries according to their needs, including by sharing best European practices.

This initiative was organised in collaboration with the European Commission, the European Union Delegation to Kenya, the Kenyan Administrative Justice Commission, and four Portuguese institutions, the Ombudsman’s Office, the Supreme Administrative Court, the Attorney General’s Office, and the Commission for Access to Administrative Documents.

To access the programme, click here.

The People’s Advocate of the Republic of Moldova, Ceslav Panico, firmly condemns the Prosecutor General’s unfounded accusations and unacceptable language in a public statement expressed in an article published by Ziarul de Gardă. These statements were made in response to the findings and recommendations of the People’s Advocate Office, presented in a Special Report issued in 2024.

Such accusations and attempts to denigrate are unacceptable when they target the only National Human Rights Institution with constitutional rank, accredited with Status A by the United Nations. It is even more serious that these attacks come from an institution of major importance, such as the General Prosecutor’s Office, and are incompatible with the principles of professionalism and integrity that should characterize its activity, and affect the image of the prosecution system.

For 10 months in 2024, while exercising its national and international mandate to prevent torture, the People’s Advocate Office developed and presented to the Prosecutor General a Special Report on the forced collection of biological samples in a criminal case. This document reveals important issues, both in an individual case and of a systemic nature, which, in the Ombudsman’s opinion, represent serious human rights violations, some of them even illegal.

Among the key aspects highlighted in the Report are, but are not limited to:

• Violation of the right to defense, by allowing the prosecutor in charge to conduct a forced criminal prosecution of a person in pre-trial detention, without ensuring access to a lawyer, although the defendant requested this right. This action is contrary to the provisions of Article 69 and Article 70 of the Criminal Procedure Code, as well as Article 6 of the European Convention on Human Rights (ECHR). 
•  
• Lack of clear regulations regarding the forced collection of biological samples in a criminal case, which leads to abusive interpretations and uneven application of the law.
•  
• Exercise by a prosecutor of duties that do not belong to him by law. In a specific case analyzed, the prosecutor, holding a sterile single-use test tube, personally tried to collect biological samples from a person, although this duty belongs exclusively to forensic medicine specialists. Through this action, the prosecutor violated the Law on the Prosecutor’s Office and improperly exercised his official duties.
•  
• Actions of intimidation and physical coercion in the process of forced collection of biological samples, without the defendant’s consent, aspects that may constitute forms of torture, being contrary to Article 3 of the ECHR.

All these actions are in flagrant contradiction with the provisions of the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR), especially under Article 3 (right not to be subjected to torture) and Article 6 (right to a fair trial). The lack of corrective measures creates the premise that the Republic of Moldova could be condemned again at the ECtHR.

Moreover, although the Prosecutor’s Office for Combating Organized Crime and Special Cases (PCCOCS) initially closed the criminal case regarding acts of torture in this case, the court annulled the dismissal order, and the case is currently on the docket of the Chisinau Court of Appeal. Additionally, the Superior Council of Prosecutors (CSP) initiated a disciplinary inquiry into the activity of the involved prosecutor, based on the Ombudsman’s Report. These actions confirm the existence of reasonable suspicions regarding the correctness of the initial solution in the Report.

Contrary to the Prosecutor General’s statements, the Report of the People’s Advocate Office does not aim to attack or discredit the Prosecutor’s Office as an institution and, even less, does not target the personal image of the Prosecutor General. The document exposes a specific case that reveals systemic issues and proposes solutions to prevent such violations in the future.

We understand that law enforcement institutions, and not only them, do not like being monitored and having attention drawn to existing problems or risks of human rights violations. We also understand that the public presentation of these aspects could be perceived as interference or as an attempt to discredit an institution. However, this interpretation is completely erroneous.

It is regrettable that instead of analyzing the serious issues raised and identifying solutions to correct them, the General Prosecutor’s Office chose to respond with unfounded attacks and denigrating language towards the Ombudsman. Or, even more, to request the modification of the Report. This approach raises serious concerns, as it is an attempt to intimidate and pressure the People’s Advocate Office to influence future monitoring reports on human rights compliance in the Republic of Moldova.

The accusations made by the Prosecutor General against the Ombudsman Institution are not only surprising and concerning, but also unfounded. Statements such as “the unprofessionalism of the Ombudsman Institution”, “covert attempts to interfere in the work of the Prosecutor’s Office”, “pressures from the Ombudsman for the adoption of populist decisions”, “actions convenient for increasing one’s image”, or “feigned collaboration attempts” exceed the limits of normal institutional communication between two autonomous authorities, each with a clear mandate in the human rights protection area. The Ombudsman Institution has never allowed itself to make such statements regarding the entire prosecutor system, or even more, about the Prosecutor General; therefore, it is unacceptable for these to come from the Prosecutor General.

Ceslav Panico condemns the reaction and unacceptable language used by the Prosecutor General, especially in the context that there has already been a meeting between the two on this subject, followed by an exchange of correspondence regarding the systemic issues identified in the Report. Moreover, the Prosecutor General previously assured that these problems in the Report would be addressed in the following period.

Even in this context, the People’s Advocate remains open to cooperation. In an official letter dated February 17, 2025, addressed to the Prosecutor General, Ceslav Panico proposed strengthening common capacities in the area of prevention (the Ombudsman’s mandate) and combating torture (the Prosecutor’s mandate). Specifically, the following actions were proposed:

1. Jointly organizing visits and possibly developing a Special Report on the identification, recording, and reporting of alleged acts of torture, following Order 77/2013 and international standards.
2.  Creating a joint working group to review Order 77/2013, to update the regulations and ensure adequate training of the involved staff.
3. Establishing an analysis group to improve practices regarding the forced collection of biological samples, so that they comply with international human rights standards.

Under these circumstances, the People’s Advocate will notify the Parliament and the Superior Council of Prosecutors to express their position and take a stance on the attacks of the Prosecutor General. Relevant international institutions will also be informed, including: UN Committees and the UN Special Rapporteur on Human Rights Defenders; structures of the Council of Europe s – e.g., the Commissioner for Human Rights and the Venice Commission; European Union institutions; the 7 international Ombudsman networks of which the Ombudsman’s Office is part, and the international networks of prosecutors.

The People’s Advocate Office will not tolerate any interference in its activity and will continue to exercise its mandate firmly and independently, following international and national norms.

[1] https://ombudsman.md/post-document/alegatii-de-tortura-in-scopul-prelevarii-fortatea-probelor-biologice-intr-o-cauza-penala/