PRESENTATION
   - From the Constitution to the Statute of the Ombudsman
   - The Ombudsman’s office
   - Functioning of the Ombudsman’s office
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From the Constitution to the Statute of the Ombudsman

The Ombudsman, whose Statute was first laid down by Law n.º 81/77, November 22, and latter by Law n.º 9/91, April 9 (as amended by Law n.º 30/96, August 14), was originally created in 1975 (Decree-Law n.º 212/75, April 21) and established afterwards at constitutional level in the Portuguese Constitution of 1976 (article 23.º).

This institution, whose 30th anniversary is now being celebrated in Portugal follows, in general, the Scandinavian Ombudsman model, namely in which concerns its tasks, guarantees and scope of action: control of the administrative activity, parliamentary legitimacy, independence in the performance of his duties, powers to make recommendations to the public authorities for prevention and remedy of illegalities or injustices and the corresponding duty of cooperation that public bodies and services are subject to.

Additionally, the Ombudsman has important powers of initiative in which concerns constitutional issues: he 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 (articles 281.º/1. and 2. d.) and 283.º/1. of the Constitution and article 20.º/3. and 4. of the Statute of the Ombudsman).

Thus, the Ombudsman stands for 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. Moreover, his intervention 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.

The Ombudsman’s office

Since its creation in 1975, the Provedoria de Justiça has developed and grown to its current organization, which is presently composed of a structure that employs a total number of 114 people. The work of this institution is carried out pursuant to 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 the successful results of the Ombudsman’s activities.

It is an individual body, with one national general Ombudsman, who may delegate some of his powers in the two deputy Ombudsmen whom he may freely appoint, pursuant to and in accordance with article 16.º of the Statute of the Ombudsman.

The institution is divided into six main departments, according to a material criterion, and one work unit that has been set up, in April 2004, specifically for handling issues concerning minors, women, elderly people and persons with disabilities.

The aforementioned six main departments, which are composed each one of an average of 6 legal advisers and headed by a coordinator, who are freely appointed by the Ombudsman, refer to the following issues:

Department 1 – Environment and natural resources, urban planning and housing, town planning and public works, culture, sports and leisure;

Department 2 – Economic and financial affairs, taxation, European funds, civil liability, public contracts and consumers’ rights;

Department 3 – Social affairs: social security, social housing and professional training;

Department 4 – Administrative procedures and civil service relations, work accidents and occupational programmes;

Department 5 – Judicial affairs, activity of security forces, road safety and traffic, registers and notary;

Department 6 – Constitutional affairs, rights, freedoms and guarantees, prisons and other places of detention, health, education, science, media, foreigners and nationality;

Department on minors, elderly people and persons with disabilities (N-CID).

The Ombudsman’s national office is located in the capital, Lisbon, having, since February 1996 and February 2000, respectively, local offices operating in the autonomous regions of Azores and Madeira.

Evidently, the Ombudsman has also services in charge of providing technical and administrative support, that include the Documentation Department, Information and Public Relations Department, Informatics Department and Administrative Division, which are indispensable for the Ombudsman to be able to duly perform his duties.

Functioning of the Ombudsman’s office

Any person may complaint directly to the Ombudsman, including foreigners, Portuguese citizens living abroad, stateless people, legal persons such as private corporate entities, private companies, unions, etc, as well as public bodies, provided that the complaint is against an illegal behaviour of a public authority.

Complaining to the Ombudsman is free of any charges and may be made by letter, fax, telephone, e-mail or personally by the complainant in the premises of the Ombudsman’s office.

Both the files opened following a complaint lodged by a citizen and the inquiries 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.

The closing of the files, whose complaints are deemed to be unfounded or whose problems have been solved in the meantime, during the investigation, leads to the dismissal of the case by the Ombudsman. The decision to shelve an affair is always conveyed to the complainant, along with the explanation of the grounds that lead to the said decision.

In the other cases, as applicable, the Ombudsman may address the concerned public body through any means deemed adequate, formal or informal, by making proposals, drafting findings, opinions or critical remarks or just drawing the attention for 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.

Whenever deemed adequate, the Ombudsman may issue a recommendation, which is the traditional way for the institution to address public bodies, provided that maladministration is at issue. The recommendations may concern (i) legal amendments 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.º/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 for discussing his position and for disclosing the lack of cooperation of the public body at issue.