Leaving No One Behind, Leaving No One Unaccountable

Front matter

SSR Paper 22

Leaving No One Behind, Leaving No One Unaccountable: Ombuds Institutions, Good (Security Sector) Governance and Sustainable Development Goal 16

Luka Glušac

Chapter 2: Setting the Scene

Ombuds institutions: definition, mandate, and functions Good governance and principles of good (security sector) governance

Connecting good governance, human rights, security, and development Chapter 3: Analyzing the Role of Ombuds Institutions in Achieving SDG 16

Sustainable Development Goal 16

Ombuds institutions as security sector actors Ombuds institutions as development/SDG actors Factoring in local ownership

Methodological framework Chapter 4: Leaving No One Behind

Reducing all forms of violence (16.1)

Ending abuse, exploitation, trafficking, and all forms of violence against and torture of children (16.2)

Broadening and strengthening the participation of developing countries in the institutions of global governance (16.8)

Providing legal identity for all, including birth registration (16.9) Ensuring public access to information and protecting fundamental freedoms (16.10)

Strengthening relevant national institutions (16.A) Chapter 5: Leaving No One Unaccountable

Promoting the rule of law and ensuring equal access to justice for all (16.3)

Reducing illicit financial and arms flows, strengthening the recovery and return of stolen assets, and combating all forms of organized crime (16.4)

Reducing corruption and bribery (16.5) Developing effective, accountable, and transparent institutions (16.6) Ensuring responsive, inclusive, participatory, and representative decision-making (16.7)

Promoting and enforcing non-discriminatory laws and policies for sustainable development (16.B)

Chapter 6: Conclusion with Recommendations

Recommendations to the legislature and executive Recommendations to stakeholders Recommendations to security providers and ombuds institutions

Recommendations to ombuds institutions specifically

55 57 58

59 61

63 64 65 66

O0. I ON ON

List of Tables and Figures

Tables

Main functions of ombuds institutions (by author) Most usual principles of good governance with sources

Principles of effective governance for sustainable development (UN ECOSOC 2018)

Articles from international treaties in which the principles of good governance have been reflected

The 17 Sustainable Development Goals The 10 main SDG 16 targets The two SDG 16 ‘means of implementation targets

The Mérida Declaration: NHRIs’ functions and activities in the context of SDGs

The framework

. Composition of the GANHRI Bureau (2023) . Composition of the IOI Board of Directors (IOI 2023) . SCA agenda for the October 2022 session (GANHRI 2022)

Figures

Four groups of SSR actors (Ejdus 2012: 64)

Accelerating the pace of progress of A-status NHRIs per year (2015-2030) (DIHR 2019: 9)

Accelerating the pace of progress of A-status NHRIs per year (2022-2030) (by author)

Relationship of accountability subtypes (Luhrmann, Marquardt and Mechkova 2020: 812)

10 18

21 27 28 28

32 35 44 44 50

Dedication

To my parents, Slavko (1950-2015) and Magdolna, for their unconditional love and support.

About SSR Papers

The DCAF SSR Papers provide original, innovative, and provocative analysis on the challenges of security sector governance and reform. Combining theoretical insight with detailed empirically driven explorations of state-of-the-art themes, SSR Papers bridge conceptual and pragmatic concerns. Authored, edited, and peer reviewed by SSR experts, the series provides a unique platform for in-depth discussion of a governance-driven reform agenda, addressing the overlapping interests of researchers, policy-makers, and practitioners in the fields of development, peace, and security.

Introduction

In 2015, the United Nations Sustainable Development Summit adopted the 2030 Agenda for Sustainable Development - a plan of action for people, planet, and prosperity, that seeks to strengthen universal peace in larger freedom and eradicate poverty in all its forms and dimensions, as stated in the opening sentences of its preamble. To achieve this, the summit formulated 17 Sustainable Development Goals (SDGs).

The SDGs were an attempt to revolutionize the understanding of development, to create a framework that was more fit for purpose to tackle the daunting challenges a global society faces. It is becoming increasingly evident that the world is rapidly breaching the capacity of earth systems to support life and facing growing inequalities at all levels (Caballero 2019: 138).

The governments that have signed onto the 2030 Agenda certainly exude confidence about the impending positive impact of their ‘historic decision’ (2030 Agenda 2015: 6), especially in relation to realizing human rights. The commitment to human rights is expressed already in the preamble and is then reinforced by several assurances to the effect that the new text is ‘grounded in’ the Universal Declaration of Human Rights, in international human rights treaties, and ‘other instruments such as the Declaration on the Right to Development’ (2030 Agenda 2015, 8). Historically, human rights and development have had two different trajectories, rarely communicating clearly and systematically with each other. Such a commitment to human rights in the 2030 Agenda was very welcome. It has also meant that human rights actors and mechanisms must be closely engaged in the realization of the 17 SDGs.

Like their predecessors (Millennium Development Goals - MDGs), the SDGs are a statement of aspirations: a voluntary agreement rather than a binding treaty (Pogge & Sengupta 2016: 1). While this presents a drawback insofar as states may be more tempted to skirt their commitments, it also presents an opportunity insofar as states may be willing to adopt a more ambitious agenda when this agenda imposes on them no legally binding obligations (Pogge & Sengupta 2016: 1). Indeed,

Glušac, L. 2023. Leaving No One Behind, Leaving No One Unaccountable: Ombuds Institutions, Good (Security Sector) Governance and Sustainable Development Goal 16. Pp. 1-4. London: Ubiquity Press. DOI: https://doi.org/10.5334/bew.a. License: CC BY-NC 4.0 the 2030 Agenda comes with a great promise - to eradicate poverty and hunger, to strengthen universal peace in larger freedom, and to protect the human rights of all.

The 2030 Agenda has established the High-level Political Forum on Sustainable Development (HLPF) as the central United Nations platform for the follow-up and review of the Agenda and the SDGs. While being needed and valued as a global reporting and coordination forum, HLPF has a modest influence vis-a-vis the implementation of the SDGs. The global goals are meant to be implemented on the national level by the national authorities. With states’ history of successful elusion from even strong legal obligations, many observers have rightly been worried about how they would approach the fulfilment of a voluntary pledge.

In view of this challenge, recent academic research - and to a greater extent, grey policy literature - has started to address the related questions “Through what processes can SDG accountability be assured at the national level?? ‘By which standards can SDG action be assessed?; and “With what effect can governments be held to account for their SDG-related commitments?’ (Karlsson- Vinkhuyzen, Dahl & Persson 2018). This emerging literature has identified parliaments and independent oversight agencies, such as ombuds institutions and other forms of national human rights institutions (NHRIs), as essential cornerstones for national SDG accountability regimes (Breuer & Leininger 2021: 5). However, these studies have not gone far enough in explaining how ombuds institutions and other forms of NHRIs could and should contribute to achieving the SDGs (particularly given the strong emphasis on human rights in the 2030 Agenda) and making governments accountable. This research aims to help fill in this literature gap, by concentrating on SDG 16. The focus is on this particular goal, because it is devoted to promoting peaceful and inclusive societies for sustainable development, providing access to justice for all, and building effective, accountable, and inclusive institutions at all levels. In other words, it is aligned the most with the mandate and functions of ombuds institutions.

Another reason for the focus on SDG 16 is the attempt of this study to add the security sector into the equation, when and where possible. This will be done by connecting the SDG framework with the concept of security sector governance (SSG) and security sector reform (SSR), and the principles that guide them.

SSG includes both ‘the formal and informal influences of all the structures, institutions and actors involved in the provision, management and oversight of security and justice at national and local levels’ (Myrttinen 2019: 13). SSR, as defined by the UN (UN DPKO 2012: 2), is a process of assessment, review, and implementation as well as monitoring and evaluation led by national authorities that has as its goal the enhancement of effective and accountable security for the State and its peoples without discrimination and with full respect for human rights and the rule of law.

SSG is the application of these principles of good governance to security provision in a particular national setting (DCAF 2015). Looking at the conceptual relationship between SSG and SSR, following Myrrtinen (2019: 14), good SSG could be regarded as ‘the goal; whereas ‘SSR, or security sector transformation, is a way of getting there’ If there are problems with the administration of SSG in a particular country in a way that its security sector ‘is not inclusive, is partial and corrupt, unresponsive, incoherent, ineffective and inefficient and/or unaccountable to the public’ (Schnabel 2012: 53), that country’s security sector is in need of reform (Dursun-Ozkanca 2021: 12).

SSR can be described as a road to achieving good SSG, which shares the goal of having effective, accountable, and inclusive institutions with SDG 16. Such a goal applies to both security providers and security overseers. As ombuds institutions are understood as important elements of the security sector oversight system (DCAF 2019; IPU & DCAF 2003: 89; United Nations 2012: 98), this research seeks to provide additional insights on how this nexus between SSG and SDG 16 plays out in practice.

The central assumption of this study is that ombuds institutions can contribute to achieving all SDG 16 targets. With their unique position in-between three branches of power, with the mandate

Introduction 3 to oversee public administration (including the security sector) and protect human rights, ombuds institutions are well-placed to play an important role in national efforts to fulfil the SDGs.

However, the key argument of this research is that their main role should be to support and contribute, not to lead. Achieving the SDGs calls for a strong web of institutions and partnerships. Ombuds institutions (and other forms of national human rights institutions; NHRIs) are central national human rights actors but must not be expected to lead the realization of human rights-based SDGs. They cannot be the only game in town, because they cannot secure effective remedies for citizens who claim that their rights have been violated on their own (Glušac 2018b: 62). Successful partnerships are crucial, as NHRIs can be neither a panacea for all human rights-related problems nor a replacement for other mechanisms of control and protection (Glušac 2017: 67). Their raison détre can only be fulfilled in synergy with other functional stakeholders (Glušac 2017: 67).

Some governments downplay, ignore, or violate human rights. In such contexts, ombuds institutions could be inspired to step in and take the lead, trying to compensate the lack or negative consequences of government actions. While this can bring some short-term success, in long run it is not sustainable. Ombuds institutions cannot achieve human rights-focused SDGs on their own. They should push the government to perform. The same applies to their role in security sector oversight. Ombuds institutions and other types of NHRIs should be there to advise their governments, correct their actions, and advance both legislation and practice. To demonstrate how this could be done in practice, the research explores the role of ombuds institutions in achieving SDG 16 by looking at both implementation and accountability. The former is captured under the title of ‘leaving no one behind’ and the latter under ‘leaving no one unaccountable’

Leaving no one behind is a central credo of the 2030 Agenda. It is highly relevant for SDG 16, as well as SSG/R, due to the centrality of the principles of responsiveness and participation, which posit that the security sector should respond to the security needs of all, and conversely, all should be involved, to the extent possible, in the development of security policies.

Where do people face disadvantages due to ineffective, unjust, unaccountable, or unresponsive national authorities? Who is affected by inequitable, inadequate, or unjust laws, policies, processes, or budgets? Who is less able or unable to gain influence or participate meaningfully in the decisions that impact them? These questions are at the very heart of SDG 16, which stresses the need for strong institutions that are built on respect for human rights, effective rule of law, and good governance at all levels. It is arguably one of the most ambitious goals in the 2030 Agenda because it is not simply a goal by itself but also an enabler for the achievement of other goals. Nonetheless, as it will be seen, many SDG 16 targets are rather vague, and limited guidance exists on how to measure and achieve them, especially in fragile contexts. To that end, this study aims to provide some additional guidance to ombuds institutions and other actors.

As Robert Putnam (1993: 63) notes, “Who governs?’ and “How well?’ are the two most basic questions of political science. Translated to the language of the 2030 Agenda, one could ask “Who implements?’ and ‘How well?’ A negative response to the second question brings the issue of accountability into the picture. As already alluded to, the issue of accountability is highly relevant for the implementation of the SDGs. This study attests that for a number of the SDG 16 targets, ombuds institutions should primarily serve as accountability mechanisms. They should work with, pressure, and make public administration accountable, in cases when the administration as the primary duty-bearer fails to protect the rights of citizens and when their actions fall short of the standards needed to achieve the SDGs. This particularly applies to security sector institutions, considering their actions, particularly of the police and security services, may interfere with human rights in an unparalleled way, as they are authorized to use special measures to penetrate deep into the private lives of citizens (Glušac 2018b).

There is an additional reason why ombuds institutions are so relevant for the SDGs. They contribute to making the entire endeavor more locally owned. Local ownership is a central concept for both SSR and development. The concept has its roots in the development circles that emphasized the importance of empowering local communities and encouraging local participation, while at the same time it is widely regarded as the bedrock and main precondition for successful SSR (Gordon 2014). Being national state authorities with rich experience in applying international standards to the national (local) context, ombuds institutions could serve as a social fibre of the SSR and SDG efforts. In the right environment, they could help build trust among international, national, and local actors, liaising between them when frictions occur, and making sure that all social forces are included in the process, and that their needs and interests are duly considered.

Before presenting the road map of the study, one note on terminology. This book is about ombuds institutions. Still, not all ombuds institutions contain the term ‘ombuds’ or ‘ombudsman in their official title, despite their common structural and functional characteristics. For instance, in Francophone Africa, many countries have ombuds institutions but formally call them ‘mediateur; while Botswana and South Africa use the term ‘Public Protector’ The majority of other African states use the term ‘ombudsman’ Similarly, ombuds institutions in Europe have different names, e.g., People’s Advocate (Albania), Parliamentary Advocate (Moldavia), Public Defender of Rights (Czechia), Defender of People (Spain), Justice Provider (Portugal), Chancellor of Justice (Estonia, Finland), Commissioner for Human Rights (Russia, Azerbaijan), Human Rights Defender (Armenia), etc. These different designations do not imply substantial differentiation but usually emanate from the traditions of the particular legal terminology of a state. A good example of this variety of names is the official translation of the European Ombudsman, the ombuds institution of the European Union: Médiateur européen (French); Defensor del Pueblo Europeo (Spanish); Provedor de Justiça Europeu (Portuguese); Mediatore europeo (Italian) (Glušac 2019c: 5).

The term ‘ombudsman is gender-neutral, as the ‘man’ suffix itself is gender-neutral in original Swedish. That is, it applies correctly whether the ombudsman is male or female. However, many states expressly provide a notation for female incumbents ((Ombudswoman; ‘Ombudsfrau; ‘Médiatrice). To avoid ambiguity and overcomplicated language, this research uses the genderfree term ‘ombuds institutions’ throughout. It uses ‘“ombudsperson when referring to an individual mandate-holder. Such a decision also reaffirms the function-centered approach to ombuds institutions taken by in this research.

The study is organized as follows. It starts with defining ombuds institutions, their key features, mandate, and functions (Chapter 2). This chapter then elaborates on the concepts of good governance and good security sector governance, with a focus on the principles of good (security sector) governance, before connecting good governance with security, human rights, and development. The study then turns to explaining the nature of ombuds institutions as security sector and development actors, before presenting the original methodological framework for analyzing their role in achieving SDG 16 (Chapter 3). In the next two chapters, this framework is applied empirically. They start with providing more details on the logic and background of ‘leaving no one behind’ (Chapter 4) and ‘leaving no one unaccountable’ (Chapter 5), respectively, before going target by target, demonstrating the potential role of ombuds institutions in achieving them. The concluding chapter (6) provides an overview of the study and its main findings and brings a set of recommendations to different actors on how to support ombuds institutions.

CHAPTER 2

Ombuds institutions: definition, mandate, and functions Evolution, definition, and mandate

Traditionally, ombuds institutions have been understood as public-sector institutions, preferably established by the legislative branch of the government to assess, as a rule, the administrative activities of the executive branch (Reif 2004: 1). The International Bar Association has similarly defined the ombuds institution as an office provided by the constitution or by the action of the legislature (parliament) and headed by an independent high-level public official, who receives complaints from aggrieved persons against government agencies, officials, and employers, or who acts on his or her own motion, and has the power to investigate, recommend corrective actions, and issue reports (Ferris, Goodman & Mayer 1980: 2). This administrative focus of ombuds institutions reflects their origins.

The first-ever (in today’s terms) ombuds institution was established in Sweden in 1809 as a parliamentary representative, with the task to safeguard the rights of citizens by establishing a supervisory agency that was completely independent of the executive. This Swedish model is usually called the classical administrative ombuds or first-generation ombuds institution. It was to remain the only one for a long time. In 1919, Finland adopted the ombuds idea in a republican constitution for the first time. Nevertheless, it was Denmark that initiated its increasing popularity and, by creating a new legal structure in the mid-1950s, became a role model for its further development. This Danish model is sometimes referred to as a second-generation ombuds institution, as it has abandoned the strict Swedish legal approach and introduced a less formal complaint procedure. In 1963 this legal structure was adopted by Norway, in 1967 by the United Kingdom, and later by the Netherlands. These institutions have thus been focused on maladministration. The European

Glušac, L. 2023. Leaving No One Behind, Leaving No One Unaccountable: Ombuds Institutions, Good (Security Sector) Governance and Sustainable Development Goal 16. Pp. 5-24. London: Ubiquity Press. DOI: https://doi.org/10.5334/bew.b. License: CC BY-NC 4.0

Ombudsman (1997:23) has defined maladministration as that which ‘occurs when a public body fails to act in accordance with a rule or principle which is binding upon it?

The collapse of authoritarian regimes in Portugal, Spain, and Greece, as well as Central and Eastern Europe and the resulting process of democratization, provided new incentives for the idea of the ombuds institution. Portugal and Spain have introduced so-called third-generation ombuds - hybrid or human rights ombuds institutions - as their ombuds institutions were given an explicit mandate to protect and promote human rights, in addition to fighting maladministration. With that, ombuds institutions have been inaugurated as human rights mechanisms, which has changed their approach, provided them with the opportunity to address systemic issues, and extended their reach. By combining the basic concepts of both the rule of law and human rights, hybrid ombuds institutions have lifted the entire ombuds concept to a new level. Consequently, ombuds institutions have been made attractive for countries across the world. Hybrid ombuds institutions today represent a most frequent model in Europe and Latin America.

Africa has an interesting mix of models. The first ombuds institution in Africa was established. in Tanzania in 1966, followed by a few more ombuds institutions through to the 1980s. However, the popularity of the ombuds and other national human rights institutions considerably increased in Africa only in the 1990s.

To sum up, the two most recognizable ombuds models are administrative and hybrid (which includes the human rights function). The latter can fulfil the criteria necessary for the status of a national human rights institution (NHRI). NHRIs are independent state-funded statutory bodies mandated to protect and promote human rights on the national level. The establishment and operations of an NHRI must conform to the Paris Principles on NHRIs, as adopted by the UN General Assembly’s Resolution 48/134 in 1993. Despite being legally non-binding, the Paris Principles have great political weight. They are the main international reference providing the basic principles and characteristics of an NHRI. The Paris Principles set forth a number of conditions that an institution has to fulfil in order to be recognized and accredited as an NHRI, including establishment under primary law or the Constitution, a broad mandate to promote and protect human rights, formal and functional independence, pluralism (representing all aspects of society), adequate resources and financial autonomy, freedom to address any human rights issue arising, annual reporting on the national human rights situation, and cooperation with national and international actors, including civil society (UNGA 1993).

The accreditation is conducted by the Subcommittee on Accreditation (SCA) of the Global Alliance of NHRIs (GANHRI), whose accreditation system is recognized and facilitated by the UN. To be able to conduct accreditations in consistent and procedurally fair manner, SCA has adopted the General Observations on the Paris Principles, which serves as its authoritative interpretation.

The institutions which are awarded with the highest accreditation - A - can participate fully in sessions of the UN Human Rights Council and take the floor under any agenda item, submit documentation, and take up seating, separate from the state delegation. They can also interact directly with the UN treaty bodies and the Universal Periodic Review, including through the submission of their independent parallel reports, and participation in their sessions and follow-up activities.

As of April 2023, a total of 88 institutions worldwide fulfils the Paris Principles and are thus accredited as A-status NHRIs (GANHRI n.d.). Around 35% of them are (hybrid) ombuds institutions, mostly from Europe and Latin America. Other accredited institutions come in the form of human rights commissions, and to a much lesser degree, human rights institutes.

Some countries have opted to have both a general ombuds institution and human rights commission (or similar collective body). In Europe, this is the case in Scandinavian countries, Ireland, and the Netherlands, while in Africa, such a set-up exists in, for instance, Burkina Faso, Chad, Côte dIvoire, Mali, Nigeria, Tunisia, and Uganda. Some ombuds institutions are multi-member bodies. Ghana has incorporated its classical ombuds institution into the new multi-member Commission on Human Rights and Administrative Justice, while Tanzania did the same in 2000 when it created the

Commission for Human Rights and Good Governance, which absorbed the oldest ombuds institution on the continent. Similarly, the National Human Rights Institution of Finland consists of the Parliamentary Ombudsman and the Human Rights Centre along with its Human Rights Delegation.

Although in the past, there was a considerable difference between ombuds institutions and human rights commissions, such a distinction has almost ceased to exist with the emergence of hybrid ombuds institutions and the development of contemporary national human rights institutions. The accreditation in line with the Paris Principles has been a decisive factor in this process (Glušac 2021: 51-52).

Two related notes are necessary here. First, the Paris Principles define individual complaint-handling as an additional function of NHRIs, not a compulsory one. For ombuds institutions, complaint-handling is an essential (primary) function. Second, traditionally ombuds institutions had been designed as ad personam institutions, meaning that an ombudsperson was a high public official who was the institution him/herself, where the office was established to help that individual in fulfilling the mandate. In other words, it was a single-headed institution, contrary to the human rights commission as a collective or collegiate body. However, as the gap between the two models started to shrink, this delineation also blurred. Some countries have introduced ombuds institutions as collegiate bodies, as in Bosnia and Herzegovina (Institution of Human Rights Ombudsman of Bosnia and Herzegovina) and Austria (The Ombudsman Board), or collective bodies, with the chairperson being appointed among the members, as in Kenya with the Commission for Administrative Justice (Office of the Ombudsman). Although this difference between single-headed or collective body does not (necessarily) imply differences in mandate or functions, it does influence internal organization and responsibilities.

Finally, the ombuds concept has witnessed an expansion both vertically and horizontally. Some countries have established ombuds institutions on national, regional, and local levels (such as Serbia), while others have a well-developed network of regional and local ombuds institutions but without the national ombuds office (such as Italy). Ombuds institutions have also been established through and for various sectors, creating the difference between general (parliamentary) and specialized ombuds institutions. Hence, specialized ombuds institutions have been established for universities, consumers’ rights, tax, patients’ rights, police, or armed forces.

Considering its aim and focus, this research concentrates on general (parliamentary) ombuds institutions, as well as those ombuds institutions specialized in the security sector (police or armed forces). The latter include, for instance, the institutions such as the German Parliamentary Commissioner for the Armed Forces, the Parliamentary Ombud’s Committee for the Norwegian Armed Forces, or the South African Military Ombud.

Given this increased diversity among ombuds models and shrinking conceptual distance between ombuds institutions and other forms of national human rights institutions, this research covers all these institutions under the label ‘ombuds institutions; as long as they fulfil the following criteria:

e they are independent institutions, appointed by the Parliament, or by the joint decision of the legislature and the executive;

e they are mandated to handle individual complaints;

e they operate on the national level;

e they have the right to advise the government on the human rights/administrative policy and, ideally, on legislation.

In other words, for the purpose of this research, ombuds institutions are defined as independent oversight bodies that receive complaints and investigate matters pertaining to the protection and promotion of human rights and/or maladministration.

This research uses the term ‘ombuds institutions’ throughout. The term ‘national human rights institutions’ (NHRIs) is used only when referring to a specific document or event explicitly mentioning ‘NHRIs:

Independence

Ombuds institutions are, by rule, appointed and supervised by the parliament to which they report. In fact, in a number of countries (e.g., Hungary, Lithuania, Ukraine, Finland), the term ‘Parliamentary’ is even explicitly included in the official title of the national ombuds institution to make this institutional connection as clear as possible (Glušac 2019a: 534). However, as an ombuds institution is an independent oversight authority, the parliament must not interfere with the work of this body or issue specific instructions and orders to it. The same applies to the executive, irrespective of the fact whether it participates in the appointment of the ombudsperson or not. In some countries, particularly in Africa and Asia, the executive branch has an important role in appointing the ombudsperson. Ideally, the ombudsperson should never be appointed upon the sole decision of the executive. More complex appointment procedures which include both the executive and parliament are much more suitable, while appointment by parliament is preferred option, as it guarantees the highest degree of independence.

Independence presupposes that ombuds institutions should be free from the influence of any political authority. As reaffirmed by former Serbian Ombudsperson Saša Jankovic, ombuds’ independence is not ‘a privilege established for anyones comfort, but a requirement and a necessity needed to ensure that human rights protection does not depend on daily politics’ (OHCHR 2012).

Independence is a key characteristic of the ombuds institution (Langtry and Roberts Lyer 2021). It is its conditio sine qua non; without independence, an ombuds institution stops being an ombuds institution (Glušac 2021: 45). The independence means that ombuds institutions’ decisions are not influenced by any external entity. This applies not only to parliament and the executive, but also to the other branches of the state, and any other public or private entity, such as companies, civil society organizations, and citizens, including complainants. If the ombuds institution is established by the constitution, then the independence is most usually constitutionally guaranteed; otherwise, it is granted by the legislation (founding law).

The literature recognizes different aspects and types of independence of oversight and regulatory bodies (Born & Buckland 2011; Hanretty & Koop 2013). This research differentiates four essential aspects of independence: institutional, functional (operational), personal, and financial. Institutional means that an ombuds institution is independent of the government and, more specifically, that it is not part of any of the bodies that it is mandated to oversee. Whilst institutional independence relates to the position of the office vis-a-vis other institutions, functional (operational) refers to the office's ability to decide which matters and priorities to pursue, free from interference by other institutions or actors (Born & Buckland 2011: 11). Personal independence relates to the security of the ombudsperson’s position and tenure in office, including a legally established tenure of office, clear procedures for the potential removal of an ombudsperson from office, and a narrowly defined set of criteria stipulating the circumstances under which this can happen (Born & Buckland 2011: 10). Finally, financial independence means that an ombuds institution obtains and manages its funds independently from any of the institutions over which it has jurisdiction (Born & Buckland 2011: 9). In other words, ideally, the ombuds institution should draft, and the Parliament should adopt, its budget. The Venice Principles on the Ombudsman (Venice Commission 2019: para. 21) particularly highlight financial independence: