Constitution of the Portuguese Republic

Article 23
(Ombudsman)

1 – Citizens may submit complaints against actions or omissions by the public authorities to the Ombudsman, who shall assess them without the power to take decisions and shall send the competent bodies such recommendations as may be necessary in order to prevent or make good any injustices.

2 – The Ombudsman’s work shall be independent of any acts of grace or legal remedies provided for in this Constitution or the law.

3 – The Ombudsman’s office shall be an independent body and the Assembly of the Republic shall appoint the Ombudsman for such time as the law may determine.

4 – The bodies and agents of the Public Administration shall cooperate with the Ombudsman in the fulfilment of his mission.

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Statute of the Ombudsman

Law n.º 9/91, of 9 April
(as amended by Law n.º 30/96, of 14 August,
and Law n.º 52-A/2005, of 10 October)

The Parliament, in compliance with articles 164, sub-paragraph (d), 167, sub-paragraph (l), 168, sub-paragraph (b) and 169, paragraph 3, of the Constitution, decrees as follows:

CHAPTER I
General principles

Article 1
Duties

1 – In accordance with the Constitution, the Ombudsman is a State body elected by Parliament whose main duties shall be to defend and to promote the rights, freedoms, guarantees and legitimate interests of the citizens, ensuring, through informal means, that public authorities act fairly and in compliance with the law.

2 – The Ombudsman shall have complete independence in the performance of his duties.

Article 2
Scope of activity

1 – The activities of the Ombudsman shall focus namely on the activity of the services integrated in the central, regional and local public administration, the Armed Forces, the public institutes, the public companies or the companies whose capital is mostly public and the concessionaires operating public services or exploiting state property.

2 – The scope of activity of the Ombudsman may also include relations between natural persons in a special power relationship, within the scope of protection of rights, freedoms and guarantees.

Article 3
Right to complaint

Citizens may refer complaints to the Ombudsman concerning actions or omissions by public authorities. The Ombudsman shall examine such complaints and address the public bodies concerned, making recommendations where appropriate so as to prevent and remedy injustices.

Article 4
Autonomy

The Ombudsman may also act on his own initiative, irrespective of the administrative and judicial remedies provided for in the Constitution and in the law.

CHAPTER II
Statute

Article 5
Appointment

1 – The Ombudsman shall be appointed by Parliament by a two third majority of the Members present, provided that the said majority is higher than the absolute majority of the Members in office.

2 – The appointment may only fall upon a citizen who meets the conditions required for being elected a Member of the Parliament and who enjoys a well-established reputation of integrity and independence.

3 – The Ombudsman shall take office before the Speaker of Parliament.

Article 6
Duration of the mandate

1 – The Ombudsman shall be elected for a period of four years and may be re-elected only once for a similar period of time.

2 – His mandate having reached an end, the Ombudsman shall nevertheless remain in office until his successor takes office.

3 – The appointment of the Ombudsman shall take place within the last thirty days of the term of office of the incumbent Ombudsman.

4 – Where the Parliament has been dissolved, or is out of session, the appointment shall be made within fifteen days of the first sitting of the new Parliament or of the new session, unless an extraordinary Parliament session is convened for such purpose.

Article 7
Independence and irremovability

The Ombudsman shall be independent and irremovable and his duties shall not be discontinued before the end of his mandate, save where otherwise established in the present law.

Article 8
Immunities

1 – The Ombudsman shall not be civilly or criminally liable for his recommendations, remarks or opinions nor for any other act carried out in the performance of his duties.

2 – The Ombudsman shall not be detained or arrested without the authorisation of the Parliament, save for a crime punished by imprisonment of more than three years and if caught in flagrante delicto.

3 – Where criminal proceedings are brought against the Ombudsman and the latter is definitively accused, the Parliament shall decide whether or not to suspend him from office so that the proceedings can be continued, save in the case of a crime punished by the sentence mentioned in the previous paragraph.

4 – In the case referred in paragraph 2 above, the imprisonment of the Ombudsman entails his suspension from office during the term of imprisonment.

Article 9
Privileges, rights and guarantees

The Ombudsman shall have the same rights, privileges, precedence, rank, remuneration and privileges as a minister, including those provided in Law n.º 4/85, of 9 April, particularly in paragraphs 1 and 2 of its article 12.

Article 10
Office of the Ombudsman

1 – An office of the Ombudsman is hereby created, providing direct and personal assistance to the Ombudsman.

2 – The staff of the office shall consist of one Head of Office, three assistants and four personal secretaries.

3 – The staff of the office is freely appointed and dismissed by the Ombudsman.

4 – The rules applicable to the appointment and to the remuneration, as well as those concerning guarantees and duties, of the staff of the ministerial private offices shall apply to the staff of the office of the Ombudsman.

Article 11
Incompatibilities

1 – The Ombudsman shall be subject to the same incompatibilities that apply to judges in office.

2 – The Ombudsman may not hold any position within the bodies of political parties or associations, nor may he engage in any public partisan activities.

Article 12
Duty of confidentiality

1 – The Ombudsman shall maintain the secrecy of the facts that come to his knowledge in the performance of his duties where such secrecy is required by the nature of such facts.

2 – The duty of any citizen or any entity to keep confidential information that does not stem from a constitutional or legal provision is overridden by the duty to cooperate with the Ombudsman within his competence.

Article 13
Employment guarantees

1 – The Ombudsman shall not be prejudiced as regards the stability of his employment, his career or his social security scheme.

2 – The time actually served as Ombudsman shall be taken into account, for all due purposes, as if it were served in the incumbent’s position of origin; it shall also be taken into account for purposes of retirement and pension, even if the job position held at the time of the appointment did not confer the right to such benefits.

3 – The Ombudsman shall benefit from the general social security scheme.

Article 14
Identification and free pass

1 – The Ombudsman shall be entitled to a special identification card issued by the secretariat of the Parliament and signed by its President.
2 – The identification card shall entitle the bearer to free access to all premises of the central, regional, local and institutional administration, of civil and military services, and all other entities under the control of the Ombudsman.

Article 15
Vacancy of office

1 – The Ombudsman's duties shall only cease before the four-year term lapses in the following cases:

a) Death or permanent physical disability;
b) Loss of the requirements for being elected a Member of the Parliament;
c) Supervenient incompatibility;
d) Resignation.

2 – The grounds for the Ombudsman's cessation of duties are verified by the Parliament, in accordance with its Rules of Procedure.

3 – In case of vacancy of the office, a new Ombudsman must be appointed within the following thirty days, in compliance with the established in article 6, paragraph 4, above.

4 – The legal provisions concerning retirement on grounds of age shall not apply to the Ombudsman.

Article 16
Deputy Ombudsmen

1 – The Ombudsman may, at any time, appoint and dismiss two deputy Ombudsmen from among individuals holding an adequate university degree and having a well-established reputation for integrity and independence.

2 – The Ombudsman may delegate to his deputies the powers referred to in articles 21, 27, 30 to 34, and 42; and the latter shall also be responsible for ensuring the running of the office in case or early cessation or interruption of the Ombudsman’s duties.

3 – The provisions of articles 11, 12, 13 and 14 above shall apply to the deputy Ombudsmen.

Article 17
Assistants

The Ombudsman shall be assisted In the performance of his duties by coordinators and advisers.

Article 18
Guarantee of authority

The Ombudsman, the deputy Ombudsmen, the coordinators and the advisers are considered public authorities, including for criminal law purposes.

Article 19
Assistance from other authorities

All authorities and agents of authority must assist the Ombudsman as required for the proper performance of his duties.

CHAPTER III
Mandate

Article 20
Competences

1 – The following shall be within the Ombudsman's competence:

a) To address recommendations to the competent bodies with a view to correct illegal or unfair acts of public authorities or to improve their services;

b) To point out shortcomings in legislation, make recommendations concerning its interpretation, amendment or revocation, or suggesting the drafting of new legislation; such recommendations or suggestions shall be forwarded to the Speaker of Parliament, to the Prime Minister and to the Ministers directly involved and, where applicable, to the Presidents of the Regional Legislative Assemblies and to the Presidents of the Governments of the Autonomous Regions;

c) To issue opinion, upon request of the Parliament, on any matter related to its activity;

d) To promote the divulgation of the content and the meaning of each of the fundamental rights and freedoms, as well as of the purposes of the Ombudsman, its means of action at his disposal and how to appeal to him;

e) To intervene, in accordance with the applicable law, in the protection of collective or diffuse interests whenever a public entity is involved.

2 – The Ombudsman shall be a member of the Council of State.

3 – The Ombudsman may request the Constitutional Court to declare the unconstitutionality or illegality of any legal provisions, in accordance with article 281, paragraph 1 and paragraph 2, sub-paragraph (d), of the Constitution.

4 – The Ombudsman may request the Constitutional Court to rule on cases of unconstitutionality due to a legislative omission, in accordance with article 283, paragraph 1, of the Constitution.

5 – The recommendations to the Parliament and to the Regional Legislative Assemblies shall be published in their respective official journals.

Article 21
Powers

1 – In the performance of his duties, the Ombudsman shall have the following powers:

a) To make, with our without prior notice, inspection visits to any area of activity of the central, regional and local administration, including public services and civil and military prisons, or to any other entities under his control, hearing their bodies and officials and requesting such information, and the exhibiting of documents, as he may deem adequate;

b) To undertake such investigations and enquiries as he may deem necessary or convenient, where he may use, for the purposes of collecting and producing evidence, all reasonable means, provided that such means do not collide with the rights and legitimate interests of citizens;

c) To search, in cooperation with the competent bodies and services, the solutions which best allow the protection of the legitimate interests of citizens and the improvement of the Administration’s activity.

2 – Without prejudice to the established in the following article, the Ombudsman's actions and intervention shall not be limited by the resort to the judicial and administrative remedies foreseen in the Constitution and in the law, or by the pendency of any of the said remedies.

Article 22
Limits

1 – The Ombudsman shall not have the power to annul, revoke or amend decisions of public authorities and his interventions shall not suspend any time limits, in particular those laid down for administrative and judicial appeals.

2 – The sovereign bodies, the Regional Legislative Assemblies and the Regional Governments of the Autonomous Regions shall not be subject to the Ombudsman's inspection and supervision, save for their administrative activity and for the acts performed under the superintendence of the Administration.

3 – Any complaints relating to judicial activities which, due to their very nature, do not fall outside the Ombudsman’s scope of activities shall be dealt with through the High Judicial Council, the High Council of Public Prosecution and the High Council of the Administrative and Fiscal Courts, as applicable.

Article 23
Report and cooperation with the Parliament

1 – Every year, the Ombudsman shall send a report to the Parliament on his activities, indicating his initiatives, the complaints received, the actions undertaken and the results achieved, and such report shall be published in the official journal of the Parliament.

2 – If he deems convenient, and at their request, the Ombudsman may participate in the work of parliamentary committees for the purpose of dealing with matters within his competence.

CHAPTER IV
Procedure

Article 24
Initiative

1 – The Ombudsman shall perform his duties either in response to complaints referred to him by citizens, either separately or jointly, or on his own initiative in response to facts that he becomes aware of by any other means.

2 – The complaints addressed to the Ombudsman depend neither on the complainant’s direct, personal and legitimate interest nor on any time limits.

Article 25
Submission of complaints

1 – Complaints may be submitted orally or in writing, even in the form of a simple letter, and they must include the identity and the address of the complainant and, whenever possible, his signature.

2 – When submitted orally, they shall be officially written down into a formal document that the complainant shall sign, if he is able to.

3 – The complaints may be submitted directly to the Ombudsman or to any official of the Public Prosecution Office, who shall immediately forward them to the Ombudsman.

4 – Where a complaint is not properly submitted, its replacement shall be ordered.

Article 26
Complaints conveyed by the Parliament

The Parliament, its parliamentary committees and as the MPs may hear the Ombudsman and request him to take whatever steps may be necessary to deal with the petitions or the complaints sent to them.

Article 27
Preliminary examination of the complaints

1 – A preliminary examination of the complaints shall be made with a view to decide upon their admissibility.

2 – Manifestly unfounded or mala fide complaints shall be dismissed immediately.

Article 28
Investigation

1 – The investigation shall consist of requests for information, inspections, examinations, inquiries or any other reasonable procedure that does not collide with the fundamental rights of citizens and it shall be undertaken through informal and swift means, without being subject to procedural rules on the production of evidence.

2 – Actions within the investigation process shall be carried out by the Ombudsman and his staff, but they may also be requested directly to Public Prosecution officials or any other public entities with priority and urgency if necessary.

Article 29
Duty to cooperate

1 – The bodies and officials of public entities, both civil and military, are under an obligation to provide the Ombudsman with every information and clarification that the latter may request from them.

2 – At his request, both civil and military public entities shall fully cooperate with the Ombudsman, notably by providing information, and shall undertake inspections through the competent offices, making documents and files available for examination, and sending them to the Ombudsman, if so requested.

3 – The established in paragraph 2 above shall not prevail either over the legal restrictions with respect to the confidentiality of judicial investigations or over the higher interest of the State, when duly justified by the competent bodies, in issues relating to security, defence or international relations.

4 – The Ombudsman may stipulate, in writing, a time limit of no less than 10 days for the fulfilment of an urgent request.

5 – The Ombudsman shall be entitled to order any civil servant or any official of any public body, by means of a request addressed to the competent hierarchical authority, or any incumbent of any body subject to his control, in accordance with article 2 above, to be present at his Office, or at any other place it may indicate based on the circumstances, so as to obtain the requested cooperation.

6 – Unjustified non-compliance with the duty to cooperate established in paragraphs 1, 2, 4 and 5 of this article by a public servant or an official of the central, regional or local public administration, the armed forces, a public institute, a public company or a company whose share capital is mostly public, or a concessionaire of public services or of the exploitation of public assets, shall constitute a crime of disobedience, notwithstanding the applicable disciplinary proceedings.

Article 30
Statements

1 – The Ombudsman may request statements or information from any citizen whenever he deems them necessary for establishing the facts.

2 – Absence from work shall be deemed justified when determined by the duty to be present before the Ombudsman.

3 – Where a convened person refuses to make a statement or to be present at the designated date and time, the Ombudsman may summon the persons to be heard by registered mail, and subsequent unjustified absence or refusal to make a statement shall constitute a qualified crime of disobedience.

4 – Travelling and other expenses authorised by the Ombudsman at the request of the convened person shall be borne by the Office of the Ombudsman out of its budget.

Article 31
Dismissal of complaints

Complaints shall be dismissed:

a) Where they are not within the Ombudsman’s competence;
b) Where the Ombudsman deems the complaint unfounded or that there are not sufficient grounds to justify any proceeding;
c) Where the invoked illegality or unfairness have already been remedied.

Article 32
Forwarding to other authorities

1 – Where the Ombudsman deems that a judicial or administrative remedy, specifically established by law, is available to the complainant, he may simply refer the complainant to the competent authority.

2 – Irrespective of the established in the preceding paragraph, the Ombudsman shall always inform the complainant of the judicial remedies within his reach.

Article 33
Minor cases

In minor, non-continuous cases, the Ombudsman may simply address a critical remark to the body or the services involved or dismiss the case upon receiving explanations.

Article 34
Preliminary hearing

Except as established in articles 30 and 32, the Ombudsman must always hear the bodies and the officials at stake and allow them to provide every clarification required before any conclusions may be drawn.

Article 35
Disclosure of offences and publicity

1 – If sufficient evidence of criminal, disciplinary or regulatory offences arises in the course of the proceeding, the Ombudsman shall inform, as the case may be, either the Public Prosecutor or the authority that is hierarchically competent to initiate disciplinary or regulatory proceedings.

2 – Where the circumstances so require, the Ombudsman may decide to issue statements or to publish information concerning the conclusions reached in the proceedings or any other matter related to his activity, using, if necessary, the State-owned media for that end, and benefiting in any event from the legal regime governing the publication of official statements, according to the respective laws.

Article 36
Preclusion of appeal

Without prejudice to the established in article 44, the Ombudsman's acts may not be appealed and they may only be the object of a complaint addressed to the Ombudsman himself.

Article 37
Mala fide complaints

Where it is established that a complaint has been lodged with mala fide, the Ombudsman shall forward the matter to the competent official of the Public Prosecution Office for a criminal proceeding to be initiated in accordance with the law.

Article 38
Recommendations

1 – The Ombudsman's recommendations shall be addressed to the body with the power to correct the irregular act or situation.

2 – The body to which a recommendation is addressed shall, within sixty days upon its receipt, inform the Ombudsman of its position on the issue.

3 – Non-compliance with a recommendation must be duly grounded.

4 – If recommendations are not complied with, and whenever the assistance requested is not forthcoming, the Ombudsman may address the competent superior.

5 – If the executive body of a local council does not comply with the recommendations of the Ombudsman, he may address its deliberative assembly.

6 – Should the Administration act in defiance of his recommendations or should it refuse to cooperate as requested, the Ombudsman may address the Parliament stating the reasons behind his actions.

7 – The Ombudsman’s conclusions shall always be communicated to the bodies or officials involved, and if resulting from a complaint to the complainants.

Article 39
Exemption from expenses, stamps and lawyer

Procedures before the Ombudsman shall be exempt from costs and stamps and do not require the intervention of a lawyer.

CHAPTER V
Office of the Ombudsman

Article 40
Autonomy, premises and objective

1 – The purpose of the Office of the Ombudsman is to provide the necessary technical and administrative support for the Ombudsman to perform the duties established herein.

2 – The Office of the Ombudsman shall have administrative and financial autonomy.

3 – The Office of the Ombudsman shall have its own premises.

Article 41
Staff

The Office of the Ombudsman shall have its own staff, in accordance with the established in its organic law.

Article 42
Administrative and disciplinary powers

The Ombudsman shall have the power to perform any acts concerning the appointment and the professional situation of the staff of the Office of the Ombudsman and to take disciplinary action against such staff.

Article 43
Budget

1 – The Office of the Ombudsman shall have an annual budget prepared in compliance with its organic law.

2 – The budgetary appropriations of the Office of the Ombudsman shall be contained in the budget of the Parliament.

3 – For the purpose of authorising expenses, the Ombudsman shall have powers similar to those of a minister.

Article 44
Judicial appeals

The Ombudsman's decisions within his powers regarding the management of the Office of the Ombudsman may be appealed to the Supreme Administrative Court in accordance with the applicable law.

CHAPTER VI
Final and transitional provisions

Article 45
Reference

The designation «Office of the Ombudsman» shall for all due purposes replace the designation «Services of the Ombudsman» contained in the legislation in force or in any other legally valid acts.

Article 46
Amendments to the law establishing the Office of the Ombudsman

Within 180 days from this date, the Government shall, by means of a decree-law, make the necessary amendments to the organic law establishing the Office of the Ombudsman, i.e., Law n.º 10/78, of 2 March.

Article 47
Repeal

Law n.º 81/77, of 22 November, is hereby repealed.

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