Utrecht Law Review
Demands of proper administrative conduct
A research project into the ombudsprudence of the
Dutch National Ombudsman
Philip M. Langbroek & Peter Rijpkema*
In the autumn of 2002, the Dutch National Ombudsman asked the School of Law of Utrecht
University to develop a research project in which the norms used by him and by local Ombudsmen
would be described and categorized. It should also involve the way in which the National
Ombudsman and local Ombudsmen handle complaints.
The reason for this request was the planned change to the chapter on complaint procedures in the
General Administrative Law Act (GALA), concerning complaints against government. The
innovation consists of the introduction, by means of a statutory Act, of external complaints
procedures for all decentralised public bodies. Because of that, all municipalities and provinces
and other decentralized agencies (gemeenschappelijke regelingen = agencies based on a public
law contract between public bodies) are obliged to either institute an external complaints
committee (called Ombudsman or Ombuds committee) or to adhere to the National Ombudsman.
According to the new legislation, the National Ombudsman and local Ombudsmen or Ombuds
committees should judge the behaviour subject to a complaint as ‘proper’ or ‘improper’. Local
Ombudsmen and the National Ombudsman use the same rules of complaints procedure, but the
National Ombudsman is not the appeal instance of judgements by local Ombudsmen. They have
separate jurisdictions, and there is no hierarchy between the National Ombudsman and local
Ombudsmen. So, the legislator has not planned a central ombuds institution that could lead to the
development of norms of good governance or, as we say it in Dutch: ‘demands of proper governance’.
The National Ombudsman wanted us to develop a guide for the work of the (newly
established) local Ombudsmen & commissions.
This article describes the design, evolution and outcomes of the research project on the demands
of proper governance as operated by the Dutch National Ombudsman and by some local
Ombudsmen. After describing the function and legal competences of the National Ombudsman,
we will sketch the policy context of the research project and explain its design and development
1 The research project was conducted by a team consisting of: J.B.J.M. ten Berge, N..C, Bouwman-de Zoeten, A.M. Hol, Ph.M. Langbroek,
R. Ortlep, P. Rijpkema, R. W. Veldhuis and R.J.G.M. Widdershoven. It was coordinated by Langbroek. As an outcome of the research
project, in November 2004 a book was published in Dutch: Ph. M. Langbroek & P. Rijpkema (eds.), Ombudsprudentie, over de
behoorlijkheidsnorm en zijn toepassing, BJU, The Hague.
2 We describe the situation as it was, before the new chapter on complaints procedures entered into force on July 1 , 2005.
We will mix the description of these subjects with our findings on the norms used by the National
2. The Dutch National Ombudsman
The National Ombudsman is a complaints instance, but can also conduct an inquiry upon his own
initiative.2 The figure of the National Ombudsman is embedded in the Dutch Constitution: he is
a High Office of State, just as the Parliament, the King, the Supreme Court and the Council of
State. He is appointed by the Lower House of Parliament.
Everybody with a complaint against an office, officeholder or public servant within his jurisdiction,
can contact the Ombudsman office in The Hague. The complaint will only be admissible
when the complainant has first filed the complaint with the administrative body that caused the
distress. A complaint to the National Ombudsman will only be useful after the administrative
body has been given the opportunity to deal with the complaint itself. The National Ombudsman
is competent in the case of national public bodies, and decentralized public bodies, as far as they
have indicated the National Ombudsman as their local Ombudsman.
The legal definition of a complaint refers to a written document; however, oral complaints may
be delivered at the office and will be written down by Ombudsman staff. The Ombudsman may
not conduct an inquiry into complaints that are suitable for legal action against decisions of
administrative authorities, or for civil law suits against the public body concerned.
Furthermore, the result of an inquiry by the Ombudsman is of a restricted nature: the Ombudsman
delivers a report in which the judgement ‘proper’ or ‘improper’ is given. Normally, a report
will contain a detailed description of the events that led to the complaints, a description of the
internal complaints procedure, an extensive description of the applicable law, and an elaborate
check on the lawfulness or unlawfulness of the behaviour subject to the complaint. He may also
deliver some recommendations for the public authority concerned.
However, the Ombudsman is not able to conduct any legal act as a response to complaints.
The work of the National Ombudsman is closely related to the terms and concepts of the General
Administrative Law Act. This act defines legal concepts like: ‘administrative body’; ‘decision’
and ‘complaint’, and also operates and legally defines most principles of good governance. The
competence of the Ombudsman is linked to the definition of these concepts, and, by his reports,
he also contributes to the development of administrative law in the Netherlands.
Nonetheless, it is a point of departure of the research project described below that there is a
fundamental difference between principles of proper governance used in a legal framework and
demands of proper governance as operated by Ombudsmen.
3. Original research design
The original research design was attuned to the condition that local Ombudsmen should be
convinced of the usefulness of the outcomes of this project.
Demands of proper administrative conduct
3 Sources: Annual reports 2000-2003.
Before the new legislation entered into force, several municipalities already had instituted local
Ombudsman institutions autonomously several years ago. Especially the cities of Amsterdam,
The Hague, Rotterdam and Utrecht, but also the municipalities of the province of Zeeland, the
city of Groningen, and so on, have had their own Ombudsman institutions for many years. These
institutions do differ from the National Ombudsman institution. They are originally based on
municipal or provincial regulations. They do not have a very large staff, and they are much closer
to complaining citizens and to the local offices, agencies and departments over which they have
We expected that it would be quite difficult to meet the aim of convincing local Ombudsmen of
the usefulness of the outcome of this project. The reason is that they very often perceive themselves
as problem solvers and not primarily as officials that only judge a situation when there is
a complaint. So a complaint that there are several holes in a cycle lane, resulting in a danger to
cyclists, and that the municipal traffic department does not act on the complaint, is – in their
view – best solved by going to the place in question, having a look at the holes, and if they are
serious, phoning the responsible public servant in order to have the dangerous holes in the road
filled in. Carrying out a formal investigation on the complaint and writing a report would not be
To date, the National Ombudsman deals with 10,000-11,000 complaints annually.
Numbers of complaints entered and how they are dealt with by the National Ombudsman
2000 2001 2002 2003 2004
Complaints received 8,242 9,528 9,643 10,518 11,156
Complaints dealt with 8,172 9,060 10,363 10,214 11,347
Beyond Jurisdiction 5,078 6,333 7,465 7,464 8,285
Inquiry 3,094 2,727 2,005 1,897 2,137
Sent to public body for
re-examination* 893 853 925
Reports 379 406 413 507 506
without report 2,715 2,321 1,592 2,404 1,631
Satisfied because of
intervention 1,681 2,034 1,385 1,183 1,388
* This was introduced in 2002, based on the argument that public bodies should be enhanced to deal with complaints themselves.
When an investigation is opened, Ombudsman staff first try to reach a friendly solution. This
method, called the ‘intervention method’, is quite successful as most of the inquiries started
(between 55% and 88%) are closed in this way. The intervention method is the informal approach;
Ombudsman staff function as mediators, by arranging some contact between the
complainant and the office complained of. Often, a meeting, an explanation and/or an excuse by
a public servant suffices. In these cases, no report is written. In principle, a report follows when
an attempt at intervention is not successful and when a re-examination of the case is not possible.
This means that the development of the demands of proper governance is based on complaints
where public authority and the complainant were unable to reach an agreement.
Evidently, local Ombudsmen and the National Ombudsman spend most of their efforts on
interventions and not on writing reports. Although reports were expected to be most interesting
from a normative perspective, problem-solving methods are of interest from the perspective of
having mistakes rectified, and hence for the realisation of the principles of proper governance.
For these reasons we thought it best not only to pay attention to the norms to be used by Ombudsmen
in general, but also to the problem-solving methods of the National Ombudsman and the
local Ombudsmen. In this way, newly established local Ombudsmen would be able to know how
to use the different principles of good governance and to see the different approaches of other
Ombuds institutions to problem solving.
The point of view of the original research design was the vision of governmental organisations
as ‘learning organisations’. As part of the institutional infrastructure of the state, they inevitably
relate to citizens. In representative democracies feedback from citizens to government is formally
organized via elections; quality management of governmental organisations presupposes also
other feedback from citizens to the government. In our view, an Ombudsman organizes such
auxiliary feedback, by hearing and judging complaints by citizens against alleged improper
behaviour of offices, civil servants, or office holders.
That is why the communication of applied norms of proper governance between Ombudsman
offices and the administration is essential, at least in theory: without it the administration would
not be able to learn from its mistakes. The same holds true for the problem-solving methods.
We intended to carry out in part, qualitative and exploratory research on the intervention method
of the National Ombudsman and of the then existing local Ombudsman institutions. Next, we
intended to carry out empirical normative research on the reports of the National Ombudsman
and of local Ombudsman institutions of several years standing, in order to make an inventory of
which demands of proper administrative conduct were used and how these norms are used by
Dutch public Ombudsman institutions. We decided to choose the reports from 2001 and 2002,
with auxiliary reports accessible via the Ombudsman website.4 The Ombudsman office supplied
us with a list of 800 reports organised by date of publication, file code and a code for the field
of governance, and a code of the ombudsnorms violated.
Typical fields of governance are e.g. Aliens, the Police, Finances, Municipalities, Justice, Home
Affairs etc. We asked researchers to pick every fifth report on the list and to check if it would be
worthwhile making a description according to the following standards:
– the case;
– what is the subject of the complaint;
– what behaviour is at stake;
– is the administrative organisation concerned a municipality or a province;
– how is the behaviour judged, and according to what norm;
– can you make a summary within a reasonable time?
Demands of proper administrative conduct
In accordance with general legal rules
Rules of competence
Rules of procedure
Rules of content
Abuse of power (détournement de pouvoir)
Balancing of interests/reasonableness
Balancing of interests
Legal certainty/ legitimate expectations
Legal certainty otherwise
Following up judicial decisions
Equality (other than the prohibition of discrimination)
Timeliness of proceedings
Adequate provision of information
Provisions for registration
Provisions for coordination
Provisions for the protection of privacy
Provisions to enhance impartiality
Provisions to enhance service to citizens
Accessibility of services
Adequate conditions for a stay
Respect for human dignity
Respect of privacy
Empathic abilities/ service attitude towards citizens
Taking care of the interests falling within the domain of the office’s tasks
Other demands of proper administration
This approach was directed at assembling cases under the heading of the standards of proper
governance applied by the National Ombudsman. With regard to the standards applied, the
National Ombudsman has developed a list of norms that, after the name of the National Ombudsman
at the time of its introduction in 1987, has been labelled ‘Oosting’s list’. Oosting’s list
consists of, on the one hand, legal norms for administrative conduct that are developed by the
legislator and the judiciary and, on the other, norms developed by the National Ombudsman in
the course of the first couple of years of the functioning of the institution. The list is regarded as
the National Ombudsman’s normative backbone for judging administrative behaviour.
If a report would be considered uninteresting, e.g. because it very much resembled a case already
summarized, or seemed too complicated, we asked them to take the next case. In most single
reports different aspects of administrative behaviour are scrutinized, for which different norms
may apply. For example, the complaint may be that the arrest of the complainant by the police
was based on racial prejudice, or that the complainant was handcuffed while being held to the
ground for no reason and was not given any medical attention while being detained at the police
station, although he suffered from diabetes. So one report may contain different situations and
Together with this more random approach we planned to contact the ombudspersons of the
indicated city areas in the Netherlands, and to ask them to describe the practical and normative
sides of their work. We also planned to ask them to provide us with some reports for our
4. The normative situation found
Complaint procedures primarily have the function of redressing wrongs in the relation between
the administration and individual citizens. Here the focus is retrospective: the Ombudsman judges
an administrative act that has taken place in the past. Parallel to legal procedures, judgments of
the Ombudsman can also be a reservoir of experience from which general rules can be deduced
which administrative bodies have to live up to in their dealings with citizens. As such, the
function of the judgments is more prospective: the rules can function as a guideline for future
actions of administrative bodies and as a future standard for judging administrative acts by
In order to fulfil this prospective function, the judgments of Ombudsmen will have to meet
several criteria. The most important ones are that the judgments must contain sufficiently clear
standards and that they are easily accessible for both the administrative agencies and Ombudsman
authorities. We found that existing Ombudsman judgments were lacking on both accounts.
The National Ombudsman used the list mainly as an administrative tool for classifying rendered
judgments for the purpose of the annual report and not as the normative basis for deciding a case.
And even as an administrative tool the list had only limited meaning, since it turned out that there
was no clear understanding of how cases should be administered. Through interviews with staff
members of the National Ombudsman we learned that some believed a single case should only
be administered under a single norm, while others rubricated a case under as many norms as
might seem relevant. Also staff members disagreed about whether or not particular cases fell
under a specific heading.
The basic reason for this was that the list contained the norms for proper administrative conduct
only at the most abstract level. As such, the norms are hardly ever directly applicable to concrete
administrative conduct. The missing link between abstract norms and concrete judgments are
norms in context. The formulation of norms in context is the typical responsibility of judging
Demands of proper administrative conduct
institutions. In deciding cases, they identify the general aspects of the case that are relevant for
their judgment and identify the rules in the light of which these aspects are relevant. Thus the
institution explicates the meaning of the abstract rules by identifying the contexts in which they
are applicable and the consequences they imply in those contexts. Without this explication
abstract rules remain largely without sense or meaning. This is true also for legal adjudication.
It explains the importance that is given in every legal system to the study of case law.
However, Oosting’s list does not contain a systematic rendering of norms in context. These will
have to be found in the individual judgments. In the last couple of decades there have been
periods in which the National Ombudsman has been active in formulating norms in context,
several of which have been incorporated in the law. In other periods the Ombudsman has been
less active. Our analysis of the judgments of the National Ombudsman in the period 2001-2002
revealed that during that period the Ombudsman hardly formulated norms in context. Typically,
reports contain a very detailed description of the facts of the case and the judgment that, given
these facts, the conduct of the administrative body was either proper or improper.
The absence of norms in context has several disadvantages. First, for the parties involved the
judgment may be more difficult to accept, because the finding that the conduct was proper or not
appears more or less out of the blue. Second, the judgment does not offer guidance to administrative
bodies as to how they should act in the future in order to meet the standards of proper
administrative conduct. Finally, the judgment offers no guidance to citizens with respect to what
they can reasonably expect from administrative bodies.
The Ombudsman office, as the principal in this project, was itself divided on how to proceed
from these findings. This, together with the circumstance that reports of local Ombudsmen are
rare and were not very well disclosed, made us decide to refrain from an inquiry into problemsolving
methods and to focus on reports of the National Ombudsman. Nonetheless, we insisted
on involving experiences and reports of local Ombudsmen into our analysis, as an auxiliary to
our analyses of National Ombudsman reports.
5. Developing a solution for our research method: reconstruction of ombudsnorms
In order to proceed properly from this experience, we had to solve a different problem. We had
discovered that most of the reports analysed so far did not contain any form of reasoning
considering which standard of proper administration would be at stake. Now that most of the
reports did not contain this reasoning and now that markings of standards of proper administration
in a concrete case were often wild guesses, how could we ever make a convincing inventory
of the norms used by the National Ombudsman and have them function as guidance for the local
Shift to the (re)construction of ombudsnorms
Given the importance of the development of norms in context and the stagnation in the development
of these norms by the National Ombudsman, the focus of our research gradually shifted to
the reconstruction and even the construction of norms in context from the factual materials in the
reports of the Ombudsman. We have tried to relate the context of a given case to the general rules
of proper conduct given in Oosting’s list in such a way that we described a norm in context that
is applicable to a general category of situations. In general, the process started with identifying
the facts of the case that appeared to us to be decisive for the final judgment in a short case
description, called the context. In this context we tried to distill it further into a single sentence
with a rule-like structure. Next, we tried to generalize the particulars of this rule as far as seemed
justified by the context of the case. Finally, we tried to link the rule to the general principles of
One of the consequences of this exercise was that it became clear that the organization of
Oosting’s list was less than perfect. Thus, it became a further extension of our research project
to review the structure and content of Oosting’s list and to suggest an improved version thereof.
In the evaluation of Oosting’s list two perspectives were employed:
– the relation between the requirements of proper conduct and the context of the administrative
– the relation between norms of proper administrative conduct and legal norms.
Regarding the context of the conduct to be judged, it seemed that a natural way for organizing
the norms of proper administrative conduct is by starting from its actual context. One advantage
of organizing the norms of proper conduct in this way is that it makes the norms more easily
accessible for both administrative bodies and citizens. For the question of which abstract
principle might be relevant for judging some specific administrative action may be quite difficult
to answer when one is not already familiar with the normative framework of judgments of the
Ombudsman. On the other hand, it seems quite natural to ask what type of conduct is involved.
For example: is the conduct complained about part of a formal decision process, a complaint
procedure, or the execution of a formal decision? Or does the complaint concern factual conduct
like acting impolitely or not sufficiently informing citizens? From this perspective we examined
whether a specific norm establishes a sufficiently discernible standard for the evaluation of
The perspective of the relation between norms of proper administrative conduct and legal norms
was relevant for a different reason. One of the findings of our analysis of the reports of the
National Ombudsman was that, insofar as the Ombudsman applied more detailed norms, these
norms were almost exclusively legal norms. It appeared that in the course of time the National
Ombudsman increasingly regarded itself as an institution for the assessment of the legality of
It is not fully clear whether this development has been the result of the fact that more detailed
norms for assessing whether the conduct of administrative bodies was proper or not were lacking,
whereas legal norms for administrative conduct were developed in detail by both the legislator
and the judiciary. Conversely, it might be the case that the Ombudsman did not develop more
detailed norms in context because it regarded itself primarily as an institution judging the legality
of administrative conduct. Another part of the explanation may be that several staff members are
not trained in administrative law, but in criminal and civil law; hence they were not familiar with
the scope of the legal principles of proper administration.
From our interviews with staff members of the National Ombudsman it emerged that many of
them regarded the National Ombudsman as the tailpiece of the legal protection of citizens against
administrative actions and that they are inclined to look primarily at whether some legal norm
is being violated. If it is, the conduct is marked as not proper, and if it is not, it is regarded as
proper. Some of them explicitly stated that the Ombudsman office was a small claims court. On
the other hand, there are also staff members who believe that the Ombudsman should steer a
more autonomous normative course.
Be that as it may, the fact of the matter was that the National Ombudsman increasingly equated
proper administrative conduct with lawful conduct. We believe that this equation is inconsistent
Demands of proper administrative conduct
with the proper function of the institution of the Ombudsman and is also an inaccurate interpretation
of its standard of evaluation: the norm of proper administrative conduct.
6. A normative perspective on the Ombudsman as a developer of ombudsprudence
Regarding the function of the Ombudsman, we can distinguish between an aspect of compensation
and of reconciliation.
Within a democratic society, citizens are subjected to the power of the government, but the
government, in turn, is subjected to democratic supervision by (representatives of) the citizens.
The reason for this is that a democratic state rests on the principle that the government should
equally support and respect its citizens as autonomous people. In the modern welfare state,
citizens are confronted more often and more intensely with administrative institutions. The
impact of administrative actions on the lives of citizens has increased accordingly and, as a result,
the balance of power that should exist in a democratic state between government and citizens
tends to become lost. By assessing whether administrative conduct was proper, the Ombudsman
can compensate for the growing power of the state by adding an extra check on the government
to ensure that it treats each citizen with sufficient concern and respect. This compensating aspect
is structurally secured by the status of the National Ombudsman as a High Office of State and
by the fact that the Ombudsman is directly accountable to Parliament.
In addition, there is the aspect of reconciliation. Because of the increasing involvement of the
state in the lives of its citizens, citizens also have much higher expectations of what the state can
and should do for them. If the government does not succeed in meeting the expectations of its
citizens, this may lead to dissatisfaction and declining trust in the government, which, in turn, can
lead to the erosion of the legitimacy of the government. The Ombudsman can contribute to
reconciling this gap by, on the one hand, making clear what citizens may reasonably expect from
their government and, on the other, indicating how the government can better meet the reasonable
expectations of its citizens.
Legal norms differ from ombudsnorms
The idea of equating the standard for proper administrative conduct with the legal norms
developed by the legislator and the judiciary is at odds with both aspects of the function of the
National Ombudsman. In order to offer compensation for the growing impact of administrative
conduct on the lives of citizens the Ombudsman cannot restrict itself to examining the legality
of administrative conduct, precisely because democratic control through legal standards is
insufficient. For one thing, legal protection of citizens is largely restricted to formal decisions of
administrative institutions and does not extend to factual actions (administrative real acts) that
show insufficient concern or respect for citizens. The norm of proper administrative conduct
extends to all types of government action.
Even more importantly, however, legal norms normally offer only limited protection to citizens
because they usually aim at guaranteeing a minimum level of proper action. Legal norms often
only require administrative institutions not to act improperly by clearly disregarding the principle
of equal concern and respect. The principles of proper administration developed by the judiciary
also tend to formulate only the lower limit of proper administrative conduct, since administrative
courts are careful to leave a sufficiently wide margin of appreciation to administrative institutions.
The standard of proper governance employed by the Ombudsman, on the other hand,
implies a higher standard: administrative institutions should act as we may reasonably expect
them to behave. This standard is of an ethical nature. Therefore the conduct of an administrative
institution may not be proper even if the law allows it. To give a simple example: legal rules lay
down general terms for administrative decisions. These terms are generally set wide enough to
cover all normal problems that may arise in taking the decision. If, without good reason, an
institution postpones taking a decision requested by a citizen although it could easily have done
so immediately, this may not be proper conduct even if the institution decides before the legal
We have tried to emphasize the individual character of the normative framework of the Ombudsman
by referring to its decisions as ‘ombudsprudence’ as an ethical counterpart to the legal
jurisprudence. We regard it as the most rewarding aspect of our research project that we believe
to have succeeded in convincing the staff members of the National Ombudsman of their responsibility
in autonomously developing the moral standard of proper administrative conduct.
Legal norms should not be ignored
However, the individual character of ombudsprudence does not mean that the Ombudsman
should develop the standards of proper administrative conduct irrespective of the legal norms laid
down by the legislator and the judiciary. There are several reasons why the Ombudsman should
take legal norms into account.
First, many legal rules do lay down elaborations of the standard of proper government action.
Although from a different perspective, both types of norms aim at guaranteeing that every citizen
is treated with equal concern and respect. In most cases if administrative conduct is contrary to
the law, it will also be contrary to the norm of proper conduct employed by the Ombudsman. The
Ombudsman therefore has reason to consider the applicable legal rules, but the fact that some
administrative conduct falls under a legal norm is not a reason for the Ombudsman to withdraw
from an autonomous judgment of the applicable standard.
Second, legal rules raise expectations regarding the future conduct of administrative institutions,
since citizens may expect them to obey the law. In general it will not be proper for administrative
institutions to infringe upon the reasonable expectations of citizens.
A third reason for the Ombudsman to take legal rules into account is that some of these rules
contain extra high standards for administrative institutions in order to safeguard against breaches
of fundamental values. This is the case, for example, with regard to the use of police powers. The
formal requirements for the employment of these powers are meant to limit the risk of abuse of
powers. Similarly with security precautions. The Ombudsman has reason to qualify breaches of
these rules as improper conduct even if in the case at hand the breach has had no harmful
consequences for individual citizens. The ground for regarding the conduct as not proper is in this
case that by violating the legal rules, the administrative institution took the risk of harming the
interests of citizens. By taking that risk the institution shows insufficient concern and respect for
citizens in general.
Thus, legal rules and the norm of proper administrative conduct on the part of the Ombudsman
are related in several ways. Nevertheless, the norm of proper administrative conduct clearly adds
an additional dimension to the evaluation of administrative conduct. It is the responsibility of the
Ombudsman to further develop the standards for the evaluation of administrative conduct
independent of, although not in isolation of the applicable legal standards.
Demands of proper administrative conduct
7. How we continued: interaction
Because of the change of perspective in the research project, we decided not to focus on cases
with regard to municipalities and provinces. We decided that we should focus on assembling
enough reports in order to scrutinize Oosting’s list, and to demonstrate that it would be possible
to construct norms in context with a wide variety under the heading of an ombudsnorm. When
we did not find enough variety in the list of reports from 2001 and 2002, we looked elsewhere
in the public database of the National Ombudsman. For that reason, you will find in our book
references to Ombudsman reports from 1988-2000 and from 2003-2004 as well. This occurred
in the fields of human rights, courtesy, proportionality (egalité devant les charges publiques), and
also in the many fields under the heading of the norm of carefulness. So, we have been looking
for reports outside our sample in order to prove the relevance of a certain ombudsnorm. Where
this was unsuccessful, e.g. for the norm of ‘legality’, we concluded that it should be eradicated
from the list of ombudsnorms. All in all, we effectively described about 240 reports.
As a consequence, we also faced another problem: how to convince the office holder and his staff
that our approach could work? The office holder, Mr Fernhout did not have objections to our
approach but wanted a practicable solution. This left us to convince his staff.
We had to find and show them some cases where legal conduct could be classified as improper,
or where proper administrative conduct could be classified as illegal, in order to show the
difference between legal rules and standards of proper administration. After several discussions
during meetings at the office of the National Ombudsman, it was accepted that it might be useful
to distinguish between legal norms and ombudsnorms of proper governance.
For our normative analysis we proceeded as follows. We summarized situations as described in
an Ombudsman report, including the judgment of the Ombudsman. Next we tried to formulate
the concrete norm in the context of the case , and subsequently we analyzed which general norm
from Oosting’s list was at stake. For example:
Description of context:
A complaint has been filed against the Central Fine Collecting Agency in Leeuwarden for
refusing to refund traffic fines and garage charges which were paid to have a motor vehicle
returned, as it later transpired that the vehicle had been wrongfully seized. The National Ombudsman
judges that in general before seizing a vehicle, investigating agencies should verify whether
the vehicle in which a person is found actually belongs to that person. This did not occur. The
complainant was wrongfully fined and the vehicle was wrongfully seized. It is therefore unreasonable
that the Collecting Agency refuses to refund the fines and charges paid.5
From this description we distil the norm in context:
‘The Central Fine Collecting Agency should refund the fines and garage charges if they were
This rule can be generalized into:
‘If an administrative body wrongfully imposes fines or other charges, these sums should be
This norm in context is an elaboration of the general norm of reasonableness, which we defined
‘The norm of reasonableness requires that administrative bodies always balance the interest of
achieving an objective against the interests of citizens concerned.’
8. Outcomes: human rights, legality of administrative conduct, and a reorganisation of
Based on the analysis of all these reports we came to a reconstruction of Oosting’s list.
Of course, in the context of this paper we are not able to give a full description of all our findings.
We want to focus on two issues: the relevance of human rights in the reports of the Dutch
Ombudsman and the evaluation of legality as a separate Ombudsnorm. The discussion with
Ombudsman staff especially revolved around these two issues, and they are interrelated.
After that, we will summarize the changes we made to Oosting’s list.
One of the outcomes of our analysis of the Ombudsman reports is that references to human rights,
either as described in the European Convention on human rights or in chapter one of the Dutch
Constitution, are quite scarce. They do occur (we found about 20 reports), especially in the field
of discrimination, the inviolability of one’s home, and privacy. The reluctance to refer to human
rights is also connected to the preference of Ombudsman staff members to refer to legal rules in
judging a case over referring to ombudsnorms. Sometimes they do refer to ombudsnorms, but
refrain from mentioning the human right concerned. So, their apparent preference was:
1. legal rules;
2. if need be, refer to the principle of proper administration;
3. only if there is absolutely no other possibility, refer to a human right.
Some of the Ombudsman staff said that reproaching public bodies (the police) for violating
human rights would hinder their working relationship with the police, e.g. during inquiries, and
would probably also lead to neglecting reports by the Ombudsman on their behaviour.
Typically, many Ombudsman cases related to human rights concern police behaviour. Many of
these cases concern the exercise of criminal investigating competences or competences involved
in maintaining order, including the use of violence. They concern the prohibition of discrimination,
the confidentiality of personal correspondence and telephone conversations, the inviolability
of one’s home, privacy, and the right not to be detained without due cause. These are some
A person arrested in the evening is immediately locked up, whereas according to a ministerial guideline, the arrested
person should be given a choice of spending the night in a police cell or in a holding area at the police station. The
question is, how to judge this situation from an ombudsnorm perspective. The Ombudsman judged that the violation
of the guideline was improper, but we missed the explanation of the grounds for this judgement in terms of standards
of proper administration. First of all, the competence to place this person behind bars in the police station is not
questioned. Therefore the right not to be detained without due cause was not at stake. So, at stake is the way this
competence was exercised. A ministerial guideline has the character of a formal promise, and therefore the principle
of legitimate expectations was violated. 6
Demands of proper administrative conduct
Police officers arrested a suspect caught red-handed for theft when they concluded that he was taking a stolen scooter apart. However, it had already been 16 hours since the scooter was stolen, so there could be no question of someone being arrested because they were ‘caught in the act’(this is a certain category of offences according to art. 54 Code of criminal procedure-CCP). Therefore this person was arrested without the necessary arrest warrant by the public prosecutor. So this article has been violated, and the police were therefore judged to have acted improperly. But the
reason for the impropriety from the perspective of ombudsnorms was not so much the illegality, but the fact that the violation of article 54 CCP also constitutes a violation of the right not to be detained without due cause.7
Peace activists had caused damage at the air force base at Volkel. They were stopped by patrolling soldiers. Art. 53
CCP prescribes that a suspect, stopped by someone other than an criminal investigations officer, should be transferred
immediately to the criminal investigations officer. For detainees of the military it may make a difference if they have
to wait or if they are transferred to the police at once. The Ombudsman judged in this case that they had to wait for
3 hours before being transferred to the police in Eindhoven, and this was way beyond the legal norm of art. 53 CCP,
and therefore improper.8
A police officer carried out a bodily search of an arrested person who had been caught ‘in the act’ of using a false
ID-card while carrying out a financial transaction at a bank.9 The norm used by the Ombudsman was proportionality;
it is up to the searching police officer to differentiate between a bodily search and searching one’s clothing in relation
to the seriousness of the crime and the behaviour of the suspect. The Ombudsman judged in this case that a bodily
search was disproportionate. But he could also have referred to the human right to integrity of the human body as
described in article 11 Constitution.
In these cases the impropriety of the behaviour is such that the Ombudsman regarded it as
inappropriate to label the behaviour as a breach of a human right. If, however, the Ombudsman
does not confine himself to mentioning the very abstract human right, but also indicates which
norm in context is implied by that abstract principle, this problem does not arise. At the same
time, mentioning the norm in context makes it clear why a breach of the legal rule constitutes a
breach of proper governance. Similarly, the Ombudsman can indicate how a legal norm can be
regarded as a specification of a human right intended to protect the fundamental interests of
Thus, we showed the possibility of referring to legal norms and to human rights in relation to the
applicable ombudsnorms. And we advised that reference should be made to human rights as
ombudsnorms if the legal norm legitimising and conditioning a breach of the right is violated.
Sometimes, like in the Volkel Airbase case, it is debatable whether reference should be made to
the relevant ombudsnorm under the heading of carefulness only, rather than to the human right.
We think it best to refer to an aspect of carefulness if a legal norm protecting a human right
concerns not the right itself, but the risk that the human right can be violated and the risk has not
been realised. The said legal norm of article 53 prescribes the immediate delivery of persons
stopped by non-police officers to the police. The rationale of this article is to prevent non-police
officers from taking the law into their own hands and from maltreating persons who have been
detained. Apart from having to wait for several hours, the persons arrested were not maltreated.
So, in the Volkel case, reference to the principle of timeliness would have sufficed.
At the beginning of our research project we tried to analyse and describe all the reports referring
to situations where legal rules were judged to have been violated as they were contrary to the
principle of legality. There were many such reports.
Our analysis revealed that the reconstruction of ‘legality’ as an ombudsnorm has no power to
discriminate between different contexts. The norm can only be operated as: has any legal
provision been violated by the administrative body concerned or not? The concrete norm
description always referred to a specific content. Therefore, these reports were connected to all
kinds of fields of administrative activities and all kinds of contexts. In each case it could be
argued that another, more specific, ombudsnorm was violated. For example:
The complaint is that an initial complaint about the way an objection procedure under GALA was managed, was
declared inadmissible by the Mayor & Aldermen of the municipality of Enschede, because for objections, a term of
14 weeks is the general policy. According to art. 7:10 and 7:13 GALA the term for decisions on objections is either
6 or 10 weeks. Enschede uses the possibility to postpone a decision on an objection in special cases as a standard
solution. This is a breach of the provisions of GALA. This is especially grave, because the government imposes many
time-limits on citizens, which are generally legally adhered to.10
The complaint is that the Economic Control Service has sent a letter to the complainant, stating that for the time
being no investigations would be opened against the firm TDE, by which the complainant had allegedly been treated
unfairly. The reason given was that the case was too old. However, such a decision may only be taken after
consultations with the public prosecutions service (PPS), and such consultations had not been taken place. Furthermore,
the complainant should have been informed of the complaint procedure of art. 12 CCP. This is a breach of the
law, according to which the PPS is responsible for the investigations policy.11
In a complaint against Cadans BV, an organisation for the execution of social insurance decisions, the allegation is
made that in the management of the complainant’s case, the complainant’s privacy had been breached, because not
only the medical doctor examining her incapacity to work, but all the employees of Cadans could have access to her
medical file (containing information about her venereal diseases). The medical doctor is obliged to maintain
professional secrecy concerning such information. In addition, an external medical doctor contracted by Cadans to
deal with backlogs was given her file without her permission.12
Due to an anonymous local tip off, an investigation is started against the complainant. The investigation is of an
administrative nature, and concerns the question whether the complainant rightfully receives a social insurance
benefit because she is a widow and living alone. The allegation is that she shares her house with a friend, and hence
is not entitled to the widow’s insurance benefit. Social insurance inspectors from the municipality of Eijsden, who
have searched the house to find evidence, have conducted their investigation. The Ombudsman indicated that the
searches were illegal after a criminal investigation had been commenced against the complainant, and the CCP is
especially designed to protect the interests of persons under criminal investigation. In such cases a warrant is
necessary to search a house.13
In these cases, apart from the fact that, somehow, some kind of regulation has always been
breached, it is always possible to indicate that the administrative conduct could be judged
according to a more specific ombudsnorm. In the case in Enschede, the municipality’s policy on
dealing with objection proceedings was not only contrary to the law, but the act violated legal
provisions; it was also contrary to the ombudsnorm that proceedings should be conducted in good
time (timeliness). In the Cadans case, the applicability of the privacy norm – as a basic right –
is evident. The ECD, by deciding not to investigate TDE, went beyond their competence, and
therefore had committed an abuse of power; the house search in Eijsden by social insurance
inspectors also involved an abuse of power. Moreover, in doing so it is also more accurately
Demands of proper administrative conduct
stated why the act was improper. For, as we indicated earlier, not every breach of a legal rule
constitutes a breach of the ombudsnorm of proper governance.
We therefore recommended that this principle, although recognized as a principle of (administrative)
law, should not be used as an ombudsnorm. This does not mean that we intended to say that
from an Ombudsman perspective illegality would not be important. When a legal rule has been
breached by an administrative authority it should certainly be mentioned, but it should also be
indicated why this implies that the ombudsnorm was violated.
The reconstruction of Oosting’s list
After having analysed so many reports and having (re)constructed norms in context, we saw that
not all parts of Oosting’s list were useful. Considering the tendency in law to evolve legal rules
in ever more refined rules, we thought it best to reduce the number of ombudsnorms, in order to
enable the Ombudsman office to make a new start. If the Ombudsman would adapt our advice,
more refined ombudsnorms could be added to the list in due time. Our stand is therefore that the
list below is supposed to be neither our nor anybody else’s last word on what a complete list of
ombudsnorms should look like. Ombudsnorms are under development, and like the law, that is
an ongoing process.
This is our list of demands for proper administrative conduct:
Prohibition of discrimination
Confidentiality of personal correspondence and telephone conversations
Inviolability of one’s home
The right not to be detained without due cause
(Other human rights)
Material demands for proper administrative conduct
Prohibition of abuse of power
Duty to follow court judgements
Formal demands for proper administrative conduct
Impartiality and absence of bias
The right to be heard
The right to reasoned decisions
Active and adequate provision of information
Active and adequate gathering of information
Adequate organisational provisions
Politeness and decency
Other demands of proper administrative conduct
9. Conclusion: towards a follow-up
The Ombudsman office has accepted our advice. We organised two sessions with Ombudsman
staff in order to show them how to develop ombudsnorms in context, also in cases where a legal
rule had been breached. It appeared that after some exercises, they could work quite well with
our list. However, we also evoked a permanent discussion about the applicability of specific
norms to specific cases. Especially the relation between norms within the domain of the
carefulness-principle and more material and formal demands for proper administration resulted
in debate. In most cases when a material or formal demand for proper administrative conduct
appears to have been breached, an aspect of the principle of carefulness has also been breached.
When information gathered appears to be insufficient, principles of reasonableness (related to
the balancing of interests), reasoning and/or proportionality may be at risk. It appeared difficult
for most staff to choose what principle would be impaired. However, our advice is to always
choose the most material principle of good governance, as it confronts administrative bodies most
directly with the consequences of their conduct.
At the moment, we are in the process of organising several courses for local Ombudsmen.
Furthermore, an association for complaints law has recently been established. The idea is that the
National Ombudsman and local Ombudsmen will create a platform to exchange reports, and have
continuous discussions about ombudsnorms and their application. We will have to wait and see
whether this initiative by Ombudsmen will evolve into the necessary permanent discussion on
the operation of ombudsnorms.
For further research, it would be interesting to evaluate the way in which changes proposed by
us take effect during the next few years. Further, it would be most interesting to study the way
in which local Ombudsmen practically deal with complaints, and what solutions to conflicts they
have developed. Considering what we have seen so far from their practical perspectives, there
is quite a difference between their approaches and the approach of the National Ombudsman.
More research is needed in order to investigate how local Ombudsmen operate demands of good
governance, and which approaches contribute best to the actual realization of principles of proper
conduct by administrative bodies.
Demands of proper administrative conduct
Appendix: Judgement form following Oosting’s list
* Rijpkema is a Senior Lecturer and Researcher at the Institute for Legal Theory and Jurisprudence; Langbroek is a Lecturer and Senior
Researcher at the Institute of Constitutional and Administrative Law, School of Law, Utrecht University. The authors can be contacted via:
(Rijpkema) or 253 8059 (Langbroek).
http://www.utrechtlawreview.org/ Volume 2, Issue 2 (December) 2006 81