Stanislaw Sagan og Viktoriya Serzhanova

Stanislaw Sagan og Viktoriya Serzhanova

Prof. dr hab., d. h. c., d. h. c. Stanisław Sagan. Professor, Faculty of Law and Public Administration, University of Rzeszów, Poland. Professor of the Repub lic of Slovakia. Doctor Honoris Causa (d. h. c.), University of Berdyansk, Ukraine, 2007. Doctor Honoris Causa (d. h. c.), University of Mikolayev, Ukraine, 2007. Habilitated Doctor of Juridical Sciences (dr hab.), Faculty of Law and Public Administration, University of Silesia in Katowice, Poland, 1990. Doctor of Juridical Sciences (Dr), Faculty of Law and Public Administration, University of Silesia in Katowice, Poland, 1979. Master of Laws (LL.M.), Faculty of Law, University of Wrocław, Poland, 1972.


Dr. Viktoriya Serzhanova Assistant Professor, Faculty of Law and Public Admin istration, University of Rzeszów, Poland. Doctor of Juridical Sciences (Dr), Faculty of Law, Canon Law and Public Administration, Catholic University of Lublin, Poland, 2006. Master of Laws (LL.M.), Faculty of Law, University of Rzeszów, Poland, 2003. Master of Foreign Languages (MA), Faculty of Foreign Languages, University of Charkov, Ukraine, 1993.


Grein birt í: Lögfræðingur 2009

Ombudsman for the Children’s Rights

1. The Origin of the Institution of Children’s Rights Protection

First organizations propagating the children’s rights came into being at the beginning of the 19th century in France (1905) and in Switzerland (1910). The need for setting up an international organization dealing with the protection of children was recognized after World War I. The activities of Eglantyne Jebb’s Save the Children Fund, that came into existence at that time, led to the creation of the International Union for the Aid for Children (Union International de Secours aux Enfants – UISE) on 6 January 1920 in Geneva. The turning point in the fight for children’s rights was the adoption by the UISE of the first in the history Declaration of the Children’s Rights, the so-called Declaration of Geneva. It  became the basis of the Charter of the Children’s Rights, which was declared in 1948. The activity of the United Nations Organization and its Member States, including Poland, to a large extent contributed to popularization of the Children’s Rights. Poland actively participated in preparation of  the Declaration of  the Children’s Rights adopted by the United Nations Organization in 1959, as well as on the Convention on the Children’s Rights of the United Nations Organization from 20 November 1989. Acceding to the Convention on 30 September 1991 (the Journal of Laws No 120, entry 526 with amendments), Poland imposed on itself an obligation of a special protection of the chil- dren’s rights. The Convention imposes on its parties an obligation to respect the children’s rights and create institutional guarantees of their protection. In practice it means the liability of the legislator to be guided by the best interests of a child and create such law which would serve a child and take into consideration its needs.

The practice of using the children’s rights indicated that adopting even the most perfect regulations itself is not enough if it is not guarded by appropriate institutions. Pioneers in introducing such a specialist institution dealing with protection of the children’s rights were Norwegians. Appointing the Ombudsman for Children took place in Norway in 1981. Development of the institution continued intensively in the 1980s. Recognizing the need for possessing the national office of the Ombudsman for Children by its Member States, the Council of Europe, during the Parliamentary Assembly in 1990 appealed to the Member States which had not created such institutions yet to establish them. As a result more and more countries created that kind of institution, especially in 1990s. Among the first were mostly Nordic countries, but not exclusively: Belgium adopted the institution of Ombudsman for Children in 1991, Sweden in 1993, Denmark in 1994, Iceland and Austria in 1995. Being obliged to undertake activities aiming at appointing such an institution,  Poland created Ombudsman  for the Children’s Rights as well, which took place in 2000. The first Ombudsman for the Children’s Rights started its functioning in Poland on 1 January 2001. In the years 2000 Ombudsmen for Children have been created in many other countries, particularly in Europe: France adopted an institution of the Children’s Defender in 2000, Ireland appointed Ombudsman for Children in 2002, Croatia in 2003, Finland in 2005. Ombudsmen  for Children also exist in USA.

2. Legal Basis of Organization and Functioning of the Ombudsman for the Children’s Rights

The institution of the Ombudsman for the Children’s Rights was established in Poland pursuant to Article 72 section 4 of the Constitution of the Republic of  Poland from 2 April 1997 and the Act on the Ombudsman  for the Children’s Rights from 6 January 2000 (the Journal of Laws 2000, No 6, entry 69).

Ombudsman for the Children’s Rights is appointed by the low chamber of the Polish Parliament Sejm with the consent of its high chamber Senate. The motion on appointing the Ombudsman for the Children’s Rights may be lodged by the Speaker of the Sejm, the Speaker of the Senate, a group of at least 35 deputies to the Sejm or a group of at least 15 Senators. The Speaker of the Sejm is obliged to immediately send the resolution of the Sejm on the appointment of the Ombudsman to the Speaker of the Senate. The Senate is obligated to pass a resolution on giving its consent to the appointment of the Ombudsman within one month since the date of receiving the resolu- tion of the Sejm. Taking no decision by the Senate means giving consent to the candidate approved by the Sejm. However, if the Senate refuses to give consent to appoint the Ombudsman, the Sejm undertakes its activities again and by means of a resolution designates another person for the position of the Ombudsman, who is then required to be approved by the Senate.

Ombudsman’s term of office lasts five years, starting from the day of tak- ing an oath before the Sejm. The same person may not be Ombudsman for more than two successive terms in office.

Ombudsman’s term of office expires in case of death or recall. Before the expiry of the term the Sejm with the consent of the Senate may withdraw the Ombudsman in three cases:

• if he is dismissed from the office;

• if he becomes permanently unable to perform his duties as a result of illness or loss of his strength;

• if he betrayes the taken oath.

As it is seen, removing the Ombudsman before the expiry of his term of office on the ground of the binding act regulations is not easy. It is one of the circumstances strengthening his independence.

Another guarantee of the Ombudsman for the Children’s Rights’ indepen- dence is the formal immunity granted to him, meaning that the Ombudsman cannot be drawn to criminal responsibility or deprived of freedom. The Ombudsman may not be detained or arrested except when he is seized while committing a crime and if his detention is necessary for assuring correct run of proceedings. The Speaker of the Sejm is immediately informed of the detention and may order to release the detained at once.

The Ombudsman for the Children’s Rights is independent in his activity, is separated from administrative bodies, judiciary or public prosecutor’s office. However, very distinct is the Ombudsman’s dependence on the Sejm, before which he is responsible according to the rules determined in the act.

The guarantee of the Ombudsman’s independence does remain the principle of incompatibilitas, according to which he may not take any other position or perform other professional activities, as well as he may not con- duct any public activity which cannot be brought together with the duties and dignity of the office.

Once a year the Ombudsman submits the information on his activity and remarks on the state of observing the children’s rights to both parliamentary chambers – Sejm and Senate. The Ombudsman’s information is given to the public.

3. Competences of the Ombudsman for the Children’s Rights

The Ombudsman’s task is to guarantee observing the children’s rights determined in the Constitution of the Republic of Poland, Convention on the Children’s Rights and in other legal provisions. At the same time it has been clearly indicated that his activities may not violate the principle of parents’ responsibility  for bringing up a child and their rights and duties. The Ombudsman takes up activities aiming at the assurance for the child full and harmonious development with the respect of his dignity and subjectivity. Exercising his entitlements the Ombudsman is guided by the best interests of the child and takes into consideration that the natural environment of the child is its family.

One should pay attention to the extension of the range of a child’s protection by the Act on the Ombudsman for the Children’s Rights. In comparison with hitherto binding legal regulations the legislator, formulates Article 2 paragraph 1 of the Act in the following way: „Under the Act a child is any human being from the moment of conception till attaining majority”, has also included in the competences of the Ombudsman for the Children’s Rights protection of a child in the prenatal period.

In his activities the Ombudsman for the Children’s Rights pays particular attention to observing the right to life, the right to health protection, the right to be brought up in a family, the right to decent social conditions and the right to learn. He undertakes activities aiming at protection of a child against violence, cruelty, exploitation, moral corruption, negligence and other evil treatment.

The catalogue of the Ombudsman for the Children’s Rights’ activities is very limited. He may turn to public authorities, organizations or institutions to submit explanations and necessary information, as well as to provide access to records and documents and to turn to appropriate authorities including the Ombudsman for Human Rights, organizations or institutions to take up activities in the range of their competences.  He may not take up such activities by himself and he may also not oblige an authority, organization  or institution to any activities, which allows to doubt in the effectiveness of such interventions.

The Ombudsman for the Children’s Rights presents the appropriate pub- lic authorities, organizations and institutions evaluations and motions aim- ing at assuring an effective protection of the children’s rights and interests and improvement of the procedure of fixing matters in this range. He may also turn to appropriate authorities with motions to undertake a legislative initiative or to issue or change other legal acts. Authorities, institutions and organizations to which the Ombudsman turned with motions, are obliged to reply within 30 days from the date of delivery.

Therefore the position of the Ombudsman for the Children’s Rights is exceptionally weak and one may have an impression  that this institution has been established only for meeting the requirements of the European Council.

4. Organization of the Office of the Ombudsman for the Children’s Rights

The Ombudsman performs his competences with the help of the Office of the Ombudsman for the Children’s Rights. The office has been created on the basis of Article 13 of the Act on the Ombudsman for the Children’s Rights. Its internal organization  is regulated by the Order No 2 of the Speaker of  the Sejm from 25 July 2000 on Granting  the Office of  the Ombudsman for the Children’s Rights the Statute. The detailed range of tasks and the course of its units’ actions are determined by the organizational regulations granted by the Ombudsman for the Children’s Rights in the form of a directive.

The Office of the Ombudsman for the Children’s Rights is an auxiliary unit of the Ombudsman assuring performance of his tasks. It acts in accordance with the principles of legality (conformity of performed activities with law), efficiency (diligent and fast carrying out tasks), economy (respect for the entrusted means) and transparency (openness of the function- ing principles).

The Office of the Ombudsman for the Children’s Rights functions under the management of the Ombudsman in accordance with his orders, decisions, resolutions, directives and commands.

Its activity is managed by the Director of the Office of the Ombudsman for the Children’s Rights appointed and dismissed by the Ombudsman. The Director’s competences include the assurance of the Office functioning, conditions for its acting and organization of work, as well as representing the Office. Authorized by the Ombudsman the Director of the Office of the Ombudsman for the Children’s Rights manages its general administration and watches the correct organization of work in all organizational units of the Office and particularly supervises the preparation of the draft budget of the Ombudsman for the Children’s Rights and its implementation; performs the Ombudsman’s policy in personal matters, vocational education and remuneration;  assures the performance of  personnel entitlements  and employer’s obligations; represents the Office in the matters concerning employment relationship (except for concluding, changing and terminating of employment contracts); represents the Office in current settlements with the state budget and reporting; performs the final qualification of the mail coming to the Ombudsman and the Office; supervises the internal financial and material checking and coordinates and supervises the activities in the field of public procurements. According to the Ombudsman’s order the Director may commission research activities and detailed studies, as well as appoint advisory and consultative groups composed of the Office per- sonnel and other persons from outside the Office.

The statutory organizational units of the Office are:

• Ombudsman’s  Cabinet;

• Group of Research and Analyses;

• Information and Intervention Group.

The Ombudsman’s Office is directly managed by the Director of the Office of the Ombudsman for the Children’s Rights. The basic task of the Cabinet is substantive and organizational support of the tasks performed by the Ombudsman. Inside the Cabinet the following units act: the Ombuds- man’s Secretariat,  Financial and Personnel Department,  Administration Department, the Chief Specialist for the Media and the Legal Advisor of the Ombudsman for the Children’s Rights.

Starting from the year of creation of the institution of the Ombudsman for the Children’s Rights in Poland in 2000, there have been three persons performing his duties so far. It is worth to notice that one of them dismissed.

The Ombudsman for the Children’s Rights in Poland has not fully met the hopes and expectations, which were put on him. He is characterized by low effectiveness of his interventions in protection of children’s rights. The most important reason for this situation must be the legal construction of his from the moment of its conception, determined by the right wing politicians, who possessed  majority in the Parliament in the time when the institution was created, is unclear from the legal point of view. Moreover he does not dispose any effective means of influence in cases of children’s rights’ abuse.

Of great importance is also the fact of the personalities of the first Ombudsmen, who did not bestow due prestige to the institution, as it happened in case of Ombudsman for Human Rights.

Literature

Andrzejewski M., Swoistosc praw dziecka (Specific Character of Children’s Rights), Poznan 2003.

Auleytner W., Zalecenia formacyjne Konwencji Praw Dziecka a wychowanie polskiego dziecka (Formation Recommendations vs. Bringing up of a Polish Child), [in:] Prawa dziecka. Deklaracje i rzeczywistosc (Children’s Rights. Declarations and Reality), J. Binczycka (ed.), Kraków 1999.

Bajorek-Ziaja  H., Srodki ochrony praw dziecka (Means of Protection of Children’s Rights), „Jurysta” 2006, no 2.

Balcerek M., Miedzynarodowa ochrona dziecka (International  Protection  of  a  Child), Warszawa 1988.

Bocian F., Kalendarium swiatowego  ruchu praw  dziecka (The  Schedule of  the World Movement for Children’s Rights), Katowice 1997.

Borecka  J., Rzecznik  Praw  Dziecka  (The  Ombudsman  for  the  Children’s  Rights), „Gubernaculum et Administratio. Historia. Prawo. Administracja” 2002, no 2.

Dziecko i jego prawa (The Child and Its Rights), E. Czyz (ed.), Warszawa 1992.

Grabowski R., Rzecznik Praw Dziecka (The Ombudsman for the Children’s Rights), [in:] Organy i korporacje ochrony prawa (Authorities and Corporations of the Legal Protection), S. Sagan (ed.), Warszawa 2001.

Gronowska B., Jasudowicz T., Mik C, O prawach dziecka (About the Children’s Rights), Torun 1994.

Informator Rzecznika Praw Dziecka (The Guide of the Ombudsman for the Children’s Right), Warszawa 2006.

Jaros P., Ochrona praw dziecka po przystapieniu do Unii Europejskiej (Protection of the Children’s Rights after Acceding to the European Union), Warszawa 2002.

Jaros P, Rzecznik Praw Dziecka – ustawodawstwo i praktyka (The Ombudsman for the Children’s Rights – Legislation and Practice), Warszawa 2006.

Kantowicz E., Ochrona praw dziecka w kontekscie działalnosci UNICEF (Protection of the Children’s Rights in the Context of the UNICEF Activity), Warszawa 1996.

Konwencja o prawach dziecka a prawo polskie (Convention on the Children’s Rights and the Polish Law), A. Lopatka (ed.), Warszawa 1991.

Kuziel E., Gwarancje ochrony praw dziecka na przykladzie polskiej tradycji konstytucyjnej (Guarantees of the Children’s Rights Protection on the Example of the Polish Constitu- tional Tradition), „Jurysta” 2003, no 7–8.

Lopatka A., Dziecko. Jego prawa człowieka (A Child. Its Human Rights), Warszawa 2000. Lopatka A., Konwencja Praw Dziecka (Convention on the Children’s Rights), „Panstwo i Prawo” 1990, no 3.

Lopatkowa M., Atrapa nie jest potrzebna (A Dummy is not Needed), „Rzeczpospolita” 1999, no 234.

Prawa dziecka Deklaracje i rzeczywistosc (Children’s Rights. Declarations and Reality), J. Binczycka (ed.), Kraków 1999.

Redelbach J., Natura praw człowieka (The Nature of Human Rights), Torun 2001.

Sagan S., Prawo konstytucyjne Rzeczypospolitej Polskiej (Constitutional Law of the Republic of Poland), Warszawa 2003.

Sitarz O., Ochrona  praw dziecka w polskim prawie karnym na tle postanowien Konwencji o prawach dziecka (Children’s Rights Protection in the Polish Criminal Law Compared to the Provisions of the Convention on Children’s Rights), Katowice 2004.

Smyczynski T., Normatywne podstawy ochrony praw dziecka (Prescriptive Grounds of the Children’s Rights’ Protection), Poznan 2003.

Sliwierski B., Konstytucja a prawa dziecka (The Constitution and the Children’s Rights), „Społeczenstwo Otwarte” 1997, no 2.

Stych M., Rzecznik Praw Dziecka (The Ombudsman for the Children’s Rights), „Jurysta” 2001, no. 3–4.

Zaporowska J., Mazurkiewicz  J., Rzecznik Praw Dziecka (The Ombudsman for the Children’s Rights), „Rzeczpospolita” 1999, no 77.

 



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