Brief presentation

From the Constitution to the Statute of the Ombudsman

The Statute of the Ombudsman was first laid down by Law n. 81/77, of November 22nd, and later by Law n. 9/91, of April 9th. [sobre o texto “Law n. 9/91, of April 9th”.

This institution was created, in general, pursuant to the Scandinavian Ombudsman model, namely in what concerns its tasks, guarantees and scope of action: control of the administrative activity; parliamentary legitimacy; independence in the performance of its duties; powers to make recommendations to the public authorities in order to prevent and remedy illegalities or injustices; and a corresponding duty of cooperation on the part of public bodies and services.

The Ombudsman also has important powers of initiative in which concerns constitutional issues: he/she may request the Constitutional Court to make generally binding rulings on issues of unconstitutionality or illegality of any legal provision as well as unconstitutionality by omission, whenever the adoption of the legislative measures that are necessary for purposes of the enforceability of the constitutional provisions has failed (article 281, paragraphs 1 and 2, indent d), and article 283, paragraph 1 of the Constitution, as well as article 20, paragraphs 3 and 4 of the Statute of the Ombudsman).

Thus, the Ombudsman is a control body of every sector of public administration, representing an alternative, non-jurisdictional, remedy for resolution of disputes between citizens and public powers, overcoming the inevitable limitations of the traditional administrative and judicial means of control.

It should be noted that in addition to the more traditional function of ensuring administrative justice, the Portuguese Ombudsman is, in more general terms, an institution charged with the protection and promotion of fundamental and human rights. In fact, in Portugal, the Ombudsman assumes simultaneously the role of National Human Rights Institutions, with A-status accreditation since 1999, in full compliance with the Paris Principles.

The Ombudsman and the Office of the Ombudsman

The Ombudsman is a unipersonal body of the State. There is one national general Ombudsman, who may delegate some of his/her powers in two Deputy Ombudsman, whom he/she may freely appoint, pursuant to and in accordance with article 16 of the Statute of the Ombudsman.

The work of the Ombudsman is carried out following guiding principles that enable the simplification of the proceedings and the handling of the complaints in a timely way, with a view to avoiding bureaucratisation and to ensuring successful results in the Ombudsman’s activities.

The Office of the Ombudsman is divided into six main departments, each dedicated to specific subjects, and one additional department created to address the needs of three particularly vulnerable groups of citizens. They are, as follows:

Department 1 – Right to Environment and Quality of Life

Department 2 – Rights of Tax Payers, Consumers and Economic Agents

Department 3 – Social Rights

Department 4 – Rights of Workers

Department 5 – Right to Justice and Security

Department 6 – Other Fundamental Rights

N-CID – Department on Children, Elderly Persons and Persons with Disabilities

The seat of the Office of the Ombudsman is located in the capital, Lisbon. Since February 1996 and February 2000, respectively, local offices have also been operating in the autonomous regions of Azores and Madeira.

The Office of the Ombudsman is in charge of providing technical and administrative support to the Ombudsman. It include a Documentation Department, an Information and Public Relations Department, an Informatics Department and an Administrative Division, all of which are indispensable for the Ombudsman to be able to duly perform his duties.

Citizens’ complaints and ex officio proceedings

Any person may complaint directly to the Ombudsman, including foreigners, Portuguese citizens living abroad, stateless persons, legal persons such as private corporate entities, private companies, unions, etc, provided that the complaint is against an illegal or unfair behaviour of a public authority (or also of a private entity, in some limited cases defined in the Statute of the Ombudsman).

The intervention of the Ombudsman depends neither on any specific time limits or deadlines nor on the complainant’s personal, direct or legitimate interest, which is of utmost importance for the protection of diffuse interests such as environment and cultural heritage, among others.

Complaining to the Ombudsman is free of any charges and may be made by letter, fax, telephone, online form, e-mail or in person at the premises of the Ombudsman’s Office.

Both proceedings initiated pursuant to a complaint lodged by a citizen and proceedings launched on the Ombudsman’s own initiative are handled in an informal way. In fact, informality and celerity are the cornerstones of the functioning of the Ombudsman’s Office, where relevant information from public administration is sought to be obtained as quickly as possible, given the duty of cooperation of the public bodies that are subject to the powers of investigation of the Ombudsman.

In case a complaint is deemed inadmissible or the problem complained against is solved over the course of the investigation, the decision to end proceedings is always communicated to the complainant, along with the explanation of the grounds that led to the decision.

Where the Ombudsman finds illegality or unfairness to exist, he/she may address the concerned public body through any means deemed adequate, whether formal or informal, by making proposals, drafting findings, opinions or critical remarks or just by drawing the attention of the body concerned to a particular aspect of the administrative act at issue that should be amended, in accordance with what seems to be the most adequate legal and fair solution.

In more serious cases, whenever deemed adequate, the Ombudsman may issue a recommendation. Recommendations may concern (i) legal amendments or interpretation or drafting of new legislation, (ii) the amendment of a certain administrative act or (iii) the general improvement of services provided to citizens by public administration.

The public bodies that receive a recommendation from the Ombudsman have the duty to respond within a period of 60 days, describing the implementation of the proposals referred to in the recommendation or, in case of non-compliance with the said proposals, stating the reasons why they cannot be implemented (article 38, paragraphs 2 and 3 of the Statute of the Ombudsman).

In case a public authority does not comply with the Ombudsman’s recommendations or refuses to cooperate, the Ombudsman may address the corresponding hierarchical superior body or the Parliament as last resort, in order to discuss his/her position and disclose the lack of cooperation of the public body at issue. .