Documento Relatorio_ar_2010ingles

PORTUGUESE OMBUDSMAN Report to the Parliament 2010 Portuguese Ombudsman – Report to the Parliament – 2010 The Ombudsman’s Office Rua do Pau de Bandeira, 7-9, 1249-088 Lisboa Portugal Telefone: +351 213 92 66 00 | Fax: +351 21 396 12 43 provedor@provedor-jus.pt http://www.provedor-jus.pt PORTUGUESE OMBUDSMAN REPORT TO THE PARLIAMENT 2010 Lisbon 2011 O PROVEDOR DE JUSTIÇA President of the Parliament Excellency, In compliance with article 23, paragraph 1, of the Statute of the Portuguese Ombudsman, I am honoured to present to the Parliament the Annual Report of Activities for 2010. Yours faithfully, THE OMBUDSMAN, Alfredo José de Sousa Rua do Pau de Bandeira, 7-9, 1249-088 Lisboa|Telefone: 213 92 66 00|Fax: 21 396 12 43 provedor@provedor-jus.pt|http://www.provedor-jus.pt Title: Portuguese Ombudsman – Report to the Parliament – 2010 Published by – The Ombudsman´s Office – Documentation Division Design – Pedro Lages Photographs – Nuno Fevereiro ISSN – 0872-9263 How to contact the Ombudsman: The Ombudsman’s Office Rua do Pau de Bandeira, 7-9, 1249-088 Lisboa Portugal Telephone: +351 213 92 66 00 | Fax: +351 21 396 12 43 provedor@provedor-jus.pt http://www.provedor-jus.pt  TABLE OF CONTENTS THE OMBUDSMAN 07 MESSAGE FROM THE OMBUDSMAN 09 THE OMBUDSMAN TEAM 13 1. THE OMBUDSMAN’S MANDATE AND ACTIVITY 23 2. THE OMBUDSMAN’S ACTIVITY 31 2.1. Statistical Comment on Global Data 32 2.2. Fundamental Rights: 39 2.2.1. Environment and Life Quality Rights 40 2.2.2. Rights of Taxpayers, Consumers and Economic Operators 46 2.2.3. Social Rights 53 2.2.4. Worker’s Rights 59 2.2.5. Right to Justice and Security 65 2.2.6. Other Fundamental Rights 72 2.2.7. Rights of the Children, Elderly Persons and Persons with Disabilities 79 2.3. Azores Local Office 82 2.4. Madeira Local Office 85 2.5. Recommendations of the Ombudsman 89 2.6. Review of the Constitutionality 94 2.7. Cases and Inspections of the Ombudsman own Initiative 96 2.8. Other Activities of the Ombudsman 100 05  3. INTERNATIONAL RELATIONS 103 4. MANAGEMENT OF RESOURCES 109 5. ANALYTING INDEX 111 06  The Ombudsman ALFREDO JOSÉ DE SOUSA (Ombudsman - (2009/....) Alfredo José de Sousa was born on 11 October 1940, in Póvoa de Varzim. Alfredo José de Sousa was elected to succeed Nascimento Rodrigues, as Ombudsman, by a vote well above the necessary two-thirds majority, thus ending a one-year impasse. The candidate was proposed jointly by the PS and PSD parties and was elected by 198 of the 217 members of parliament who took part in the vote (four voted against, ten abstained, with three null votes and two blank votes). He was invested as Ombudsman, in the Parliament, on 15 July 2009. PROFESSIONAL CAREER B.A. Hons. degree in Law from the University of Coimbra Elected on 22 January 1987 by the Parliament as member (1958/63). Delegate of the Attorney General in Celorico of the Supreme Council of Administrative and Fiscal Courts. de Basto, Mogadouro and Amarante (1967). Inspector of Nominated, after a competition, as Councillor Judge of the the Criminal Investigation Police (PJ) in Oporto (1968/74). Supreme Administrative Court on 13 October 1992. Elected Judge of the Courts of Tavira, Alenquer, Vila Nova de Gaia and Deputy-President of the Court of Auditors. Nominated Presi- Vila do Conde (1974/79). Judge of the Oporto Court of 1st dent of the Court of Auditors on 2 December 1995. Member Instance of Taxes and Contributions (1979/85). of the Inspection Committee of the European Anti-Fraud Promoted to High Court Judge of the Court of 2nd Instance Office (OLAF) from 2001, reconfirmed on March 2003, of Taxes and Contributions, in February 1986. Coordinator but subsequently resigned, at his own request, on health of the Working group responsible for drawing up the draft grounds, on 25 February 2005. Reconfirmed as President of bill on tax infringements. Post-graduate course (unfinished) the Court of Auditors for four years, and ceased functions on in European Studies, from the Faculty of Law of Coimbra 6 October 2005, when he formally retired. (1986/87). 07  The Ombudsman Publications and Speeches Other Positions The Ombudsman has delivered various speeches and The Ombudsman was a member of the 1st National intervened in various seminars on topics of Tax Law, Finan- Management Board of the Trade-Union Association of cial Law and Financial Auditing in numerous Universities the Portuguese Judicial Magistrates (1976/77); founder and Associations, in Portugal and abroad, and within the and member of the editorial committee of the magazine, scope of International Organizations. He has published vari- Fronteira (1977/82). He led the Portuguese delegation in ous opinion articles in leading daily and weekly newspa- various Conferences of INTOSAI (International Organisation pers. He co-authored and published the Procedural Code of of Supreme Audit Institutions) — including the 52nd meet- Contributions and Taxes, with comments and notes, that ing of the Management Board of 11 October 2004, that took is frequently referred to in case-law and legal doctrine; place during the XVIII INTOSAI Conference, that unanimously «Infracções fiscais: crimes e transgressões» (Fiscal infringe- approved the Resolution, establishing Portuguese as an ments: crimes and transgressions) in the Cadernos de Ciên- official language of the Organization —; of EUROSAI (Euro- cia e Técnica Fiscal, no. 142; Various sentences and legal pean Organization of Supreme Audit Institutions); of EURO- doctrine articles in the Case-law Compendium; Infracções RAI (European Organization of Regional Audit Institutions); Fiscais – Não Aduaneiras (Fiscal infringements – Exclud- of OLACEFS (Organization of Latin American and Caribbean ing customs’ duties), Almedina, 1990; Código do Processo Supreme Audit Institutions); and of the Courts of Auditors of the Tributário (Tax Procedure Code), with comments and notes, CPLP (Community of Official Portuguese-Speaking Countries). Almedina, in co-authorship (4 editions); and A Criminalidade President of the Inspection Commission of the Portuguese Transnacional na União Europeia – Um Ministério Público Diabetes Association. Europeu? (Cross-Border Criminality in the European Union – Substitute member of the Anti-Corruption Council (July A European Public Prosecution Service?) Edições Almedina, 2008/July 2009). S.A., Coimbra, June 2005. He has published various articles: Member of the Supreme Council of Administrative and «As Fundações e o Controlo Financeiro do Tribunal de Con- Fiscal Courts (2008/09). tas» (The Foundations and Financial Auditing of the Court of Third Vice President of the «Federación Ibero-Americana Auditors), in Memória, Year 1, no. 0, May 2003; «Financial de Ombudsman» (2009-2011). Regime of Management and Auditing of Pre-Adhesion Aid First Vice President of the «Federación Ibero-Americana – Portugal and Spain and the 10 recently-admitted Mem- de Ombudsman». (2011-) ber States», speech integrated within the Summer Course organized by the General Foundation of the Complutense University, Madrid, in July 2003; «The Auditor’s Independ- Decorations and Awards ence», included in pp. 865-875 in the commemorative work of 170 years of the Hellenic Court of Auditors (1040 pages), The Ombudsman was awarded the Minister José Maria Greek edition: «Transparency and independence in audit- Alkmim Court of Accounts Collar of Merit by the Minas Gerais ing. Studies in honour of the 170 years of the Hellenic Court Academy of Letters (Brazil); he was granted the Ruy Barbosa of Auditors» (in Greek); «A Policy to Fight Financial Fraud Medal (Rio de Janeiro, 1999; and Bahia, 2003); the Grand in the European Union», pp. 151-183 in the work, Public Collar of Merit of the Court of Auditors of the Union (Brasilia); Expenditure Control in Europe – Coordinating Audit Func- the title of honorary member of ATRICON – Association of tions in the European Union, Part II (Towards Coordination Members of the Courts of Auditors of Brazil; and the Grand Strategies), coordinated and edited by Prof. Milagros García Cross of the Military Order of Christ from the President of the Crespo, of the Faculty of Economic Sciences of the University Republic on 18 January 2006. of the Basque Country, Bilbao, Spain; «O Juiz» (The Judge), speech delivered in the ceremony in honour of Prof. António de Sousa Franco, pp. 45-56, In Memoriam Sousa Franco, by the Portugal Fiscal Association, Edições Almedina, SA, Coim- bra, March 2005; «O Estado no século XXI: Redefinição das suas Funções?» (The State in the XXI Century: Redefinition of its Functions?) text delivered in the Seminar (held on 19 October 2004), published by INA - National Administration Institute, Oeiras, 2005. 08 MESSAGE FROM THE OMBUDSMAN  Message from The Ombudsman In compliance with Article 23, paragraph 1, of the Statute of Within central public administration, the Ministry of Labour the Portuguese Ombudsman (Law 9/91, of 9th April) I have and Social Solidarity is at the top of the table. Concerning the honour to present to the Parliament the 2010 Annual local government, the Municipality of Lisbon is the most tar- Report of Activities. geted entity, with 10% of the overall number of complaints. 2010 marks the beginning of the second half of my man- In relation to constitutionality reviews, after having examined date as Ombudsman. It was preceded by a transition year, 39 requests, I decided to present 2 to the Constitutional with a change of mandate holder following a lengthy pro- Court. In one of the cases, a judgment has already been cess of electing a new Ombudsman that engulfed the insti- issued, considering my request well-found and thus declar- tution in an undesirable situation of uncertainty. ing the unconstitutionality of the provision of the Regulation During the first half of my mandate, in 2009, this situ- of the Portuguese Bar Association that forced candidates to ation of uncertainty inevitably affected the functioning of pass an examination before entering the traineeship. On the Office of the Ombudsman, although the situation was this issue I also addressed a Recommendation to the Parlia- normalized during 2010. ment, so as to clarify the academic qualifications required for access to that traineeship. 2010 in large numbers In 2010, I issued 22 Recommendations, of which 10 had In 2010 the Ombudsman opened 6505 cases following been accepted by the end of October 2010. 6488 complaints. These complaints were presented by 7849 Those figures allow me to conclude that the normal claimants. activity of the Ombudsman increased the number of closed About 800 people brought to my knowledge facts or gen- cases, reducing the backlog in the previous year. eral situations that did not contain a specific request, and thus did not lead to further proceedings. The reorganization of the Office of the Ombudsman In addition to the cases opened pursuant to a complaint, To ensure the continuity of the activity of the Ombuds- I decided to open on my own initiative 17 other cases. Out man, after forming my Cabinet and filling vacant posts in of these, 4 relate to actions of inspection, namely to the the Legal Advice Service, I started recruitment procedures in Homes for Children and Young People and the Temporary order to fill 12 vacant posts, which resulted from the non- Placement Houses of the Autonomous Region of Madeira; renewal of the nominations of 12 staff members that the detention centres for foreigners who have not been admit- Court of Auditors had considered illegal. I also proposed an ted into the country or are in the process of being removed amendment to the Statute of the Portuguese Ombudsman from it; homes for elderly people; and employment centres. in order to include an identical provision to that of the Law Also as regards inspections, mention should be made to the on Ministerial Cabinets, which came to be accepted by the 21 visits made to prisons, in the context of cases opened on Law on the State Budget for 2010, allowing me to appoint the basis of a complaint. three experts to my office. Of the 6505 cases that were opened, 4502 were closed After the first semester of my mandate, based on the work in the same year. In total, in 2010 6790 cases were closed already carried out, I realized some changes were needed (14% more than in 2009). At the end of 2010 there were in the functioning of the Legal Advice Service. Therefore, 2282 pending cases (less than 11% in 2009). Of the 6790 on 29th April I started a reorganization of the work of the closed cases, 4,932 (3/4) were closed within six months. Departments, including the matters assigned to each one, Of the 6505 cases that were opened, 3318 resulted from having proceeded to a redistribution of cases and subjects. written complaints and 2559 were submitted electronically, Within the specialized hotlines, in addition to continuing the revealing an increasing trend of using these facilities. regular operation of the Children’s Hotline and the Elderly Issues related to social rights, worker’s rights and the Citizens’ Hotline, the necessary conditions were created for administration of justice lead the chart of complaints issues. the entry into operation, in 2011, of the Citizens with Dis- Central public administration is targeted in 50% of cases. abilities’ Hotline. 10 Project of modernization of the ICT infrastructure Dissemination of information and promotion of the In 2010, I continued to pursue my goal of reshaping the Ombudsman’s action Ombudsman’s information systems, taking into account the In order to foster dynamisation of and dissemination of crucial role that the institution has in society, particularly in information on the activity of the Ombudsman, the means establishing dialogue with citizens. of action available to him and the ways to appeal to him, Based on the budget assigned for these purposes, a pro- on 19th March 2010 a Protocol of Cooperation was signed ject of modernization of the ICT infrastructure, designed to between the Ombudsman and the National Association improve the organizational and managerial practices, was of Portuguese Municipalities. The aim was to have joint developed. Initially I renewed the IT resources, acquiring and concerted action to disseminate information to the new computers and updated software and 3 new servers. population regarding the mission and competences of the The second phase of the project, which depends on Ombudsman. the existing budgetary resources, aims to improve the Under this Protocol, the adhering municipalities (up website of the Ombudsman. The website is intended to to the present day approximately 90) provide free use of be more friendly, but also to have additional features and computers to their respective residents, enabling access greater capacity to store essential information about the to the Ombudsman’s website with a view to presenting Ombudsman’s activity, making it accessible to all citizens, an electronic complaint via the available form. Leaflets on allowing the citizens to conduct free text searches and the Ombudsman’s mission and duties, on the theme «The enabling them, beyond the already existing possibility of Ombudsman and the Defence of the Citizen», were also sent filing an electronic complaint, to obtain online information to these municipalities. on the status of their complaints. The second phase of the More specifically, aiming at the dissemination of informa- project also aims to improve the case registration system tion on children and human rights, I celebrated the World and work flow services of the Ombudsman. Children’s Day (1st June) with a group of students from a first cycle school that visited the Office of the Ombudsman and The facilities of the Portuguese Ombudsman participated in an event called «Don’t let go of your rights». When I started my duties I found structural problems to There was an interactive approach to the rights of the child, exist in the main building, so I asked the National Labo- with a symbolic moment of release of balloons inscribed ratory of Civil Engineering (LNEC) for an inspection to the with such rights. building and its stability. The opinion of the LNEC, from July I also initiated proceedings with the Minister of Educa- 2010, concluded that structural problems affected the stabil- tion in order to pursue initiatives intended to disseminate ity of the wooden floors while also detecting an infestation information about the Ombudsman and citizens’ rights, by subterranean termites. Before initiating the necessary freedoms and guarantees, to be conducted by members work to ensure the safety of the building, I asked for further of my staff in primary, middle- and secondary schools, and technical review of the Parliament. An opinion was prepared proposed the signing of a Protocol for this purpose. setting out the priorities for the construction work to be car- Regarding the protection and promotion of the rights, ried out. freedoms and guarantees of foreign immigrants, I proposed The on-going work on the building is essential for the the celebration of a Protocol of Cooperation with the High safety of people who work there and for the maintenance Commission for Immigration and Intercultural Dialogue of the facilities. (ACIDI). With the same goal I attended and ensured representa- The need for amendments to the Statute of the tion in several events at national level, held by civil society Ombudsman organisations, in particular organizations representing and Following the establishment of a working group to modify defending the rights of groups of citizens in a more vulner- the Organic Law of the Ombudsman (Decree-Law 279/93 able situation. of 11th August, as amended by Decree-Law 15/98, of 29th At the invitation of the Minister of Justice (paragraph 4 of January, and Decree-Law 195/2001, of 27th July), on 8th April Article 3 of Decree-law 1871/2000, of 12th August), I partici- 2010 I presented to His Excellency the Prime Minister a pro- pated in the meetings of the Consultative Council for Justice, ject for amending this Law, adapting the support structure on 11th January, 12th July and 20th October 2010. of the Ombudsman to the current realities and demands of his/her mission. This draft Decree-Law is being finalized and International Relations a revision of the Rules of Procedure of the Legal Advice Ser- As regard international relations, I tried to resume the vice is being prepared. work of continuity and deepening of the cooperation with counterpart institutions, whether bilaterally or within the international fora of Ombudsman and National Human Rights Institutions, in line with the so-called Paris Principles. 11  Thus, I set out to strengthen the role of the Ombudsman Committee on Labour, Social Security and Public Administra- as National Human Rights Institution, promoting the institu- tion, on 14th July, to pursue this project. tion amongst NGOs and civil society and establishing a link An example of good cooperation between the Ombuds- between the national and the international level. man and the 1st Commission of the Parliament, was the As part of my participation in Portugal’s evaluation under joint organisation of the Conference «The Ombudsman: The the Universal Periodic Review mechanism established by Protector of Fundamental Rights», which took place on the the Human Rights Council of the United Nations, I stressed Grand Hall, on 27th April. my willingness to take on the function of the National Pre- vention Mechanism for the Prevention of Torture, follow- ing Portugal’s ratification of the Optional Protocol to the United Nations Convention Against Torture, based on the powers conferred on this body and the extensive work carried out on the penitentiary system and inmate rights. I made efforts to further promote the establishment and effective appointment of Ombudsman in all countries of the Community of Portuguese-Speaking Countries, in coop- eration with the Ombudsman of Angola, in order to foster cooperation between counterpart institutions in the area of Portuguese language and enhance their participation in other international fora. The chapter dedicated to International Relations provides a more detailed description of the events in which I took part, or to which I sent a representative. The Ombudsman and the Parliament Collaboration with the Parliament is essential for the development of the activity of the Ombudsman. The Ombudsman is elected by the Parliament and in order to deal with matters within his competence, may take part in the work of parliamentary committees when he deems it appropriate and where his/her presence is requested. His recommendations are not binding, so, if the Administra- tion doesn’t act according to them or in case of refusal of requested collaboration, the Ombudsman may address the Parliament, stating the reasons for his position. I did so in the case of the Church of Santo António de Campolide, con- fiscated by the State on 8th October 1910, drawing the atten- tion of the Parliament to its state of degradation and the justice of its restitution to the parish. In compliance with Article 23 of the Statute of the Ombudsman, on 2nd June 2010 I personally presented to the President of the Parliament the Annual Report of the activ- ity of the Ombudsman for 2009, while expressing my entire availability to be present before the Parliamentary Commit- tee for Constitutional Affairs, Rights and Liberties, during the discussion and assessment of the Report. In order to improve administrative action, in the context of the recognition of the right to good administration, under Article 41 of the Charter of Fundamental Rights of the Euro- pean Union, on 19th April 2010 I also proposed to the Par- liament the adoption of the Code of Good Administrative Behaviour, inspired by a similar initiative of the European Ombudsman. I hope, that following the hearing held on the 12 THE OMBUDSMAN TEAM  Ombudsman, Deputy Ombudsman and Department Coordinators João Portugal Nuno Simões Elsa Dias Armanda Fonseca André Folque Miguel Coelho Helena Vera-Cruz Pinto Jorge Silveira Alfredo José de Sousa 14  Deputy Ombudsman DEPUTY OMBUDSMAN Jorge Correia de Noronha e Silveira, born in Lisbon (02.07.1955) Master’s degree in Legal Sciences from the Faculty of exercised functions in the Macau Public Administration Law of the University of Lisbon (1988). B.A. Hons. degree between December 1990 and July 1996, in the following from the same Faculty (1978). Attorney registered at the positions (in chronological order): Assistant Coordinator Portuguese Bar Association since 1980. He has served as of the Office for Legislative Modernization of the Macau Deputy Ombudsman since September 2005. Professor at Government, Adviser to the Cabinet of the Secretary for the Faculty of Law of Lisbon since 1978, having lectured Justice of the Macau Government and Head of the same in various disciplines in the area of Legal Sciences, in par- Cabinet. He served as Secretary for Justice of the Macau ticular the General Theory of Civil Law, Penal Law, Civil Government during the final years of the Portuguese Procedural Law and Penal Procedural Law. His contract as Administration of that territory, during the mandate of a university assistant professor was suspended between the Vice-Governor, Vasco Rocha Vieira (between August December 1988 and December 1999, while he exercised 1996 and December 1999). He served as Deputy-Presi- functions in Macau, and is also currently suspended, due dent of the Portuguese Road Safety Prevention service to the functions he occupies in the Ombudsman’s Office. between January 2001 and April 2003, nominated by the Between 1980 and 1988 he worked as an attorney. His Portuguese Government, in accordance with the statutes registration in the Portuguese Bar Association has been of that association. He was hired between October 2001 suspended since that time. Between 1981 and 1988 he and October 2002 by the Office of Auditing and Mod- lectured in the discipline of Penal Procedural Law in vari- ernization of the Ministry of Justice, as a contracted con- ous private universities. Between December 1988 and sultant to provide specialized collaboration in the field of December 1990 he lectured the discipline of Constitu- auditing of the system and quality of the Courts. He has tional Law in the Law Course of the University of Ori- published various legal works. He has been distinguished ental Asia (now known as the University of Macau). He with the Order of Infante D. Henrique (Grand Cross). 15  Deputy Ombudsman DEPUTY OMBUDSMAN Helena Cecília Alves Vera-Cruz Pinto, born in Luanda (14.11.1958) B.A. Hons. degree in Law from the Faculty of Law of the Law, with special focus on the topics of minors and the University of Lisbon (1976/1981). She has served family and criminal affairs. She addressed the Judicial as Deputy Ombudsman since 1 September, 2009. Studies Centre in sessions on the topics of «Professional Magistrate of the Public Prosecution Service, classified Deontology and Ethics» and «Management of Investiga- as a Prosecutor of the Republic. Served as the Auditor tion in widespread criminality». On 13 December, 2006, of Justice (from 28 September, 1983 to 4 September, she was designated to represent the Attorney General in 1984) and exercised functions as Assistant Prosecutor the Working group in charge of preparation of the Draft (25 October, 1985 to 17 September, 2000), in the Munici- Project for Revision of the Judicial System. Between 2006 palities of Ponte da Barca, Santo Tirso, Barcelos, Oporto, and 2008 she was a member, within the framework of Barreiro and Almada. Member of the Almada Municipal the C.S.M.P., of the working group that monitored the Safety Council, designated by the District Attorney General computerization procedure of the Public Prosecution of Lisbon. Elected by her peers, she was nominated a Service, implemented by the Institute of Information member of the Supreme Council of the Public Prosecu- Technologies in Justice, of the Ministry of Justice. From 22 tion Service (C.S.M.P.) in February 2005 and, by means of November, 2007 to 5 December, 2007 and from 31 Janu- an order issued on 22 March, 2006, after a deliberation ary, 2008 to 14 February, 2008, she was a member of two of the C.S.M.P., she was nominated a full-time member short-term technical missions to the Democratic Republic of the aforementioned Council, always as a member of of S. Tomé and Príncipe in order to revise various legal the Classification and Disciplinary Sections. On 6 March, diplomas, including the Penal Code and the Penal Proce- 2008 she was assigned, internally, to the Attorney dure Code. As a result of an order issued on 16 March, General’s Office of the Lisbon District, in order to assist the 2009, by the Deputy-Attorney General of the Republic, in General Prosecutor for the Lisbon District. In representa- relation to implementation of the new Citius/MP/Penal/ tion of the Attorney General’s Office and within the scope New Generation (Court management software) she was of her professional training, she participated in vari- designated as the permanent interlocutor between the ous seminars, conferences, courses, training initiatives, Attorney General’s Office and the Ministry of Justice. conferences and congresses, covering various areas of 16  Department Coordinators ENVIRONMENT AND LIFE QUALITY RIGHTS Eduardo André Folque da Costa Ferreira — born in Lisbon (13 Novem- ber, 1967). Master’s degree in Legal-Political Sciences from the Faculty of Law of the University of Lisbon (2001). B.A. Hons degree in Law, from the same Faculty (1991). Since 21 October, 1993 he has served as coordinator of the Ombudsman’s Office, via a service commission in the Department that handles issues of the environment and life quality rights. He coordinated and participated in inspections, inquests and checks, also in the area of the Prison Services and of the Police Force (PSP) and of the Republican National Guard. He has taught at the Faculty of Law of the University of Lisbon, as monitor (1989/1992), assistant intern (1995/2001) and assistant of the Legal- Political Sciences Group (since 2001). Assistant of the Ombudsman’s Cabinet (1992/1993). Author of various monographs and scientific articles on Con- stitutional Law, International Public Law, urban planning and environmental law. Intervention in post-graduate university courses, seminars, colloquia and professional training initiatives. Member of the Commission of Religious Freedom (since 2004), of the European Council of Environmental Law (since 2003), of the Scientific Society of the Catholic University of Portugal (since 2009) and of the Editorial Council of Constitutional Case-law (since 2003). RIGHTS OF TAXPAYERS, CONSUMERS AND ECONOMIC OPERATORS Elsa Maria Henriques Dias — born in Alverca do Ribatejo (10.03.1966). B.A. Hons degree in Law from the Faculty of Law of the University of Lisbon (1988), postgraduate degree in European Studies from the same Faculty, and a postgraduate degree in Fiscal Management of Organizations, from the Higher Institute of Economics and Management (ISEG). She exercised functions as legal adviser to the Office of the Director of Finances of Lisbon (1989/1992) and worked as an attorney at the Legal and Litigation Office of Portuguese Railways (CP — Comboios de Portugal, E.P.E.) (1992/1993). Since 1993 she has worked in the Ombudsman’s Office, in a service commission, where she began by exercising functions as an adviser of the Department, and coordinated the Department between 1998 and 2000. Between 2001 and 2005, while continuing to provide advisory services to the Department, she also served as an adviser in the Local Office of the Ombudsman’s Office in the Autonomous Region of Madeira and coordinated the «Children’s Messages» and «Senior Citizens» hotlines. In 2005 she was reconfirmed as coordinator of the Department, that handles with rights of taxpayers, consumers and economic operators, and currently exercises this position. 17  Department Coordinators SOCIAL RIGHTS Nuno José Rodrigues Simões — born in Lisbon (28.08.1962). B.A. Hons degree in Law from the Faculty of Law of the University of Lisbon (1985). Courses and training initiatives in various areas of the Law, in particular, Work, Social Security and Health, including cross-border training on «Social Dialogue and European Collective Bargaining», administered by the Universities of Rome, Seville, Catholic University of Lisbon and the Democritus University of Thrace. Coordinator of the Ombudsman’s Office in the Department, that handles social rights, since 2000. Adviser to the Ombudsman (1996/2000), in the same area. Consultant to the Economic and Social Council (1992/1995), responsible for issues of social law: work, social security, employment, professional train- ing and social concertation. Legal adviser to Partex - Companhia Portuguesa de Serviços, SA (1987/1992). Author of studies and monographs in the field of the social law and speaker and moderator in seminars and conferences. WORKER’S RIGHTS Armanda Amélia Monteiro da Fonseca — born in Coimbra (20.07.1965). B.A. Hons degree in Law from the Faculty of Law of the University of Lisbon (1988). Inspector of the permanent staff of the Inspectorate- -General of Health Activities, exercising functions as Coordinator of the Ombudsman’s Office in the Department that handles issues of worker’s rights since, 3 August, 2009. In recent years, she has served as deputy director of the Directorate-General of Public Administration and Employment (April 2008/March 2009) and assistant to the Secretary of State for Public Administration (March 2006/April 2008). She has exercised functions in the Public Administration, in various services, as a senior technical official and, since 2001, with inspection functions. She exercised management func- tions in the Portuguese Roads Institute (February 2000/June 2001) and in the Justice Services Department of Macau ( January 1997/July 1999). She coordinated the Working group of the Ministry of Justice, constituted within the framework of the Reform Programme of the Central Administration of the State (PRACE) (November 2005/March 2006), and she participated as a speaker in information and debate sessions, training initiatives and conferences on Reform of the Public Administration. 18  Department Coordinators RIGHT TO JUSTICE AND SECURITY Miguel Armada de Menezes Coelho — born in Lisbon (25.11.1966). B.A. Hons degree in Law from the Faculty of Law of the University of Lisbon (1990). He was an intern attorney and worked as an attorney, between 1991 and 1995, and currently has suspended his registration in the Bar Associ- ation. In 1991/1992 he was coordinator of the Legal Office of the Nature Protection League. Between 1993/1995 he worked as legal adviser to the Office of the Board of Directors of the Portuguese Post Office (CTT), with a fixed-term contract, and entered the company’s permanent staff in 1995. He has currently been assigned to the Ombudsman’s Office via a public interest assignment. He began functions in the Ombudsman’s Office in 1993, as adviser to the Ombudsman’s Cabinet, and specialist in Environmental issues. From 1995, he worked as an adviser in the area entrusted with handling cases related, amongst other issues, to the environment and urban planning. Between 1997 and 2004 he was the adviser in charge of the Local Office of the Ombudsman of the Autonomous Region of the Azores. From 2004 he was the head of the Project Unit, responsible for issues related to the rights of the children, elderly persons, persons with disabilities and women, and also coordinated the functioning of the «Children’s Messages» and «Sen- ior Citizens» hotlines. Since May 2008 he has worked as coordinator of the Ombudsman’s Office for the Department that handles the right to justice and security. OTHER FUNDAMENTAL RIGHTS João António Pereira Moital Domingues Portugal — born in Leiria (27.01.1965). B.A. Hons degree in Law from the Faculty of Law of Lisbon (major in Legal-Political Sciences). He attended, with a note of approval, the scholastic part of the Master’s Degree in Law of the same Faculty. Coordinator of the Ombudsman’s Office, in the Department that handles other fundamental rights. He participated in the Inspection of the Prison System in 1996 and collaborated in drawing up the final report. He coordinated the organization and orientated the respective final report of the Inspections of the Prison System from 1998 to 2002. Representative of the Ombudsman in the Commission for Indemnification to the Family Members of the Victims of the collapsed bridge in Entre-os-Rios. Previously, he served as Assistant to the Ombudsman’s Cabinet, substituting the Head of Cabinet, in the event of absences and impediments. Intern Assistant Professor at the Faculty of Law of Lisbon, where he lectured practical lessons in Constitutional Law and International Public Law. 19  AZORES (Local Office) José Álvaro Amaral Afonso – born in Angra do Heroísmo (10.12.1964). B.A. Hons degree in Law from the Faculty of Law of the University of Coimbra (1994). Adviser to the Ombudsman, since February 2004, he has exercised functions as Head of the Local Office of the Ombudsman of the Autonomous Region of the Azores, since April 2004. Trainer at the Public Administration Training Centre of the Azores, from 2001 to 2004. Director of Local Administration Services, in the Regional Directorate of Organiza- tion and Public Administration, from December 1998 to January 2004. Head of the Administrative and Financial Department of Lajes do Pico Municipal Council, from March 1997 to November 1998. He has worked for the Autono- mous Regional Administration of the Azores, since October 1994. MADEIRA (Local Office) Duarte dos Santos Vaz Geraldes – born in Lisbon (9 December, 1977). B.A. Hons degree in Law from the Catholic University of Portugal, Lisbon (2000). Master’s degree in Law (Area of Legal-Political Sciences) from the Faculty of Law of the University of Lisbon (2005). Registered in the Bar Asso- ciation (registration suspended from 1 October, 2005). Worked as an attor- ney in the legal firm «P.M.B.G.R. & Associados», and «C.S.B.A.» (Carlos de Sousa Brito & Associados). Assistant to the Ombudsman’s Cabinet (October 2005/June 2006). Adviser to the Ombudsman since 19 June 2006, exercis- ing functions as Head of the Ombudsman’s Local Office in the Autonomous Region of Madeira. 20  The Ombudsman and his Team THE HEADQUARTERS OF THE OMBUDSMAN 21  Organisational Chart OMBUDSMAN Cabinet Deputy Ombudsman Secretary-General Environment and Life Quality Rights Coordinator Advisers Rights of Taxpayers, Consumers and Economic Coordinator Advisers Operators Social Rights Coordinator Advisers Worker’s Rights Coordinator Advisers Right to Justice and Security Coordinator Advisers Other Fundamental Rights Coordinator Advisers Rights of the Children, Elderly Persons and Persons with Disabilities (N-CID) Azores Local Office Madeira Local Office Technical and Administrative Support Services Department Information and Public Documentation Administrative Computing Relations Division Division Division Division Staff, General Dispatches Accounting, Assets and Cases Unit and Archive Unit Stationery Unit 22 1. THE OMBUDSMAN’S MANDATE AND ACTIVITY  1. The Ombudsman’s Mandate and Activity The institution of the Ombudsman, directly inspired by the justice and legality of the exercise of public powers (Articles Swedish Ombudsman set up in the early 19th century, was 23 of the Constitution and Article 1 of the Statute). introduced in Portugal by Decree-Law 212/75, of 21st April. At a subjective level, the scope of his/her activity covers, In 1976 the Ombudsman was consecrated at constitutional in particular, the services of the central, regional and local level, in Article 24 of the Portuguese Constitution, current public Administration, the Armed Forces, public institutes, Article 23. public companies or the companies whose capital is mostly The consecration of the Ombudsman in the general prin- public and the concessionaires operating public services or ciples of Part I of the Portuguese Constitution relating to fun- exploiting state property (Article 2, paragraph 1 of the Statute). damental rights and duties gives this State body increased The scope of the Ombudsman’s activity does not include protection. Indeed, the Ombudsman has been established sovereign bodies (President of the Republic, Parliament, within the framework of constitutional values as a funda- Government and Courts), or the Regional Parliaments and mental right of the people, thus benefiting of the general Regional Governments of the Autonomous Regions of the regime of fundamental rights and the special regime of Azores and Madeira, except in issues associated to their rights, freedoms and guarantees, instead of a simple institu- administrative activity or acts of supervision of the Adminis- tional guarantee. So the Ombudsman is, de jure, a constitu- tration. As a result, the Ombudsman’s supervision and con- tional body due to ensure the fundamental rights and, more trol powers do not extend to the political activity, in the strict generally, human rights. sense of the term, nor to the judicial activity (Article 22, Thus, it was the responsibility of the Portuguese legis- paragraph 2 and 3 of the Statute). lator to establish the respective Statute, by Law 81/77, of On the other hand, the Ombudsman’s remit is no longer 22 November, that in the meantime has been revoked by restricted solely to the public authorities, although this does Law 9/91, of 9th April, and subsequently amended by Laws configure its main scope. Since 1996, the Ombudsman may 30/96 of 14th August and 52-A/2005 of 10th October. also intervene in relations between private entities, but only In essence, the Constitution and the Law define the when there is a special relation of power and if this falls Ombudsman as a single person body of the State, irremov- within the scope of protection of rights, freedoms and guar- able, completely independent1 and impartial in the exercise antees (Article 2, paragraph 2 of the Statute)2. of his functions, and endowed with parliamentary legitimacy. The Ombudsman acts, as a general rule, pursuant to citi- The mandate holder is designated by the Parliament, by a zens’ complaints (Article 23, paragraph 1, of the Constitution qualified two-thirds majority of MPs present, provided that and Article 3 of the Statute). Nonetheless he/she may also this is higher than the absolute majority of MPs effectively act on his/her own initiative (Articles 4 and 24, paragraph in functions. The Ombudsman’s mandate is four years, and 1 of the Statute), in response to facts that he/she becomes may only be renewed once. His/her functions cannot ter- aware of by any other means, either via: the media; alerts minate prior to the end of the period for which he/she has issued by a NGO’s and reports from International Organisa- been designated, except in the cases specified in the law tions; his/her sensitivity in diagnosing more problematic sit- (Articles 23, paragraph 3, and 163, indent i) of the Constitu- uations of national scope and also by the special depth with tion and Articles 5 to 7 of the Statute). which he/she analyses complaints and withdraws the com- Furthermore, the Ombudsman is exempt from civil and mon denominator that resides therein, classifying and ana- criminal liability for the recommendations, comments or lysing issues or questions that require more in-depth analy- opinions that he/she issues or for the acts that he/she prac- sis3. The Ombudsman therefore has complete autonomy tices in exercise of his/her functions (Article 8, paragraph 1 to act on his own initiative, investigate, inspect, denounce of the Statute). irregularities and recommend changes, aimed at improving The Ombudsman’s main function is to defend and pro- public services. In this context, the Ombudsman may guide mote the rights, freedoms, guarantees and legitimate inter- his/her activity in order to prevent incorrect conduct by the ests of citizens, guaranteeing, through informal means, the 2 Legal provision introduced in the Ombudsman’s Statute by means of Law 30/96, 1 The constitutional revision of 1989, approved by Constitutional Law 1/89, of 8th of 14th August. July, clarified the Ombudsman’s degree of independence (1st part of paragraph 3 3 The Ombudsman may, in particular, after studying a complaint, analyse the dys- of Article 23 of the Portuguese Constitution). functional aspects of the respective system or sector of the Public Administration. 24 public powers and instil an administrative culture, and also In the performance of his/her duties, he/she may carry monitor the public policies. out investigations and inquiries as he/she deems necessary, The Ombudsman’s activity is independent of any acts of make inspections4 (Article 21, paragraph 1, indents a) and grace or legal remedies specified in the Constitution and in b)) and is entitled to order any civil servant or any official the laws (Article 23, paragraph 2 of the Constitution and of any public body to be present at his/her Office (Article Articles 4 and 21, paragraph 2 of the Statute). 29, paragraph 5 of the Statute). Correspondingly, the bod- In the exercise of his/her functions, the law attributes ies and agents of public entities, civil and military, have a broad powers to the Ombudsman as a national constitu- duty of cooperation, also defined in broad terms (Article 23, tional fundamental rights’ protection body. In summary, in paragraph 4, of the Constitution and Articles 21 and 29 of accordance with Articles 20 and 21, 23 and 38 of the Statute, the Statute). Given that this is a legal duty, non-compliance the Ombudsman can: constitutes a crime of disobedience, liable for a disciplinary · address recommendations to the competent bodies procedure (Article 29, paragraph 6 of the Statute). with a view to correcting illegal or unfair acts of pub- lic authorities or to improving their services (adminis- The Ombudsman is a member of the Council of State. trative recommendations). If recommendations are not accepted, and whenever the collaboration requested is not forthcoming, the Ombudsman may address the Par- The right to present a complaint to the liament, or if applicable, Regional Parliaments, stating Ombudsman the reasons behind his actions. · point out shortcomings in legislation, issue recommen- Citizens’ access to the Ombudsman is broad, direct and dations concerning its interpretation, amendment or free of charge. All citizens are entitled to present complaints revocation, or suggesting the drafting of new legislation to the Ombudsman, regardless of their age, nationality 5 (legislative recommendations); or residence. The complaint may be presented by citizens, · request the Constitutional Court to declare the unconsti- either individually or jointly, and depends neither on the tutionality or illegality of any legal provisions, orto rule complainant’s direct, personal and legitimate interest nor on on cases of unconstitutionality due to a legislative omis- any time limits (Article 24, paragraph 2 of the Statute). The sion; complaints must concern illegal or unfair actions or omis- · issue opinions, upon request of the Parliament, on any sions by public authorities, that the Ombudsman is responsi- matter related to its activity; If he/she deems it con- ble for redressing or preventing (Article 23, paragraph 1, of venient, and at their request, the Ombudsman may the Constitution and Article 3 of the Statute). participate in the work of parliamentary committees for The right to present a complaint to the Ombudsman is the purpose of dealing with matters within his/her com- therefore also subject to same constraints and limitations petence; that should be explained in further detail. · promote the divulgation of the content and the meaning A specific example is the regime governing complaints of each of the fundamental rights and freedoms, as well filed by military personnel to the Ombudsman, regulated in as of the aims of the Ombudsman, themeans of action at a special and autonomous manner by Law 19/95, of 13th his/her disposal and how to appeal to him; July and by the Law of National Defence, approved by the · intervene, in accordance with the applicable law, in the Organic Law 1-B/2009, of 7th July (Article 34). In accord- protection of collective or diffuse interests whenever a ance with these legal norms, military personnel, prior to public entity is involved. presenting an individual complaint to the Ombudsman, · make, with our without prior notice, inspection visits must exhaust all other forms of hierarchical appeal and com- to any area of activity of the central, regional and local plaint within their respective chain of command. In 2009, administration, including public services and civil and the Ombudsman opened a case, on his own initiative, to military prisons, or to any other entities under his/her appraise this issue, due to the fact that he disagreed with control, hearing their bodies and officials and requesting this regime, in light of the relevant constitutional provisions, such information, and the exhibiting of documents, as above all Article 270 of the Portuguese Constitution. On the he/she may deem adequate; · undertake such investigations and enquiries as he/she 4 Either by exercising his right to take own initiatives, or after a specific complaint, may deem necessary or convenient; the Ombudsman may carry out, without providing any prior notice, inspection visits to all and any activity sector of the central, regional and local Administration · search, in cooperation with the competent bodies and - specifically public services and civil prison establishments and military personnel establishments, or to any entities subject to its control - and also undertake all the services, the solutions which best allow the protection of investigations and inquests that it considers to be necessary or convenient. the legitimate interests of citizens and the improvement 5 Result of the constitutionally-established principle of equivalent treatment (Article of the Administration’s activity. 15, paragraph 1, of the Constitution), the Ombudsman is an institution that is open to foreigners and stateless persons, regardless as to whether or not they have regu- larised their legal situation. 25  same topic, in 2010, he issued a recommendation to Parlia- There is also the possibility that the Ombudsman will con- ment, to eliminate negative discrimination against military clude that the complainant has access to acts of grace or personnel, which constitutes a barrier to the Ombudsman’s legal remedies, as specified in the law, and the complaint activity as the protector of justice, rights and freedoms of may therefore be forwarded to the competent body (Article all citizens6. 32, paragraph 1 of the Statute). Public bodies or entities cannot however present com- If the complaint is neither preliminarily dismissed nor plaints against other bodies or entities of the same nature. simply forwarded, a case will be opened (to be sequentially This is because the Ombudsman is a body intended to numbered) and inquiries carried out. defend citizens against the exercise of public powers, The Ombudsman operates in an informal manner. In other against abuses practised by the Administration and other words, the Ombudsman is not bound to strict procedural public powers, rather than a body designed to mediate insti- norms, nor to specific procedural norms in relation to the tutional conflicts between these powers. On the contrary: production of evidence (Article 1, paragraph 1, and Article a characteristic quality of his/her function and the powers 28, paragraph 1 of the Statute). Indeed, the Ombudsman conferred to him/her is to foster initiatives of concertation frequently recourses to telephone calls or organises meet- and mediation, in an attempt to find, in collaboration with ings between the entities addressed and complainants, in the competent bodies and services, the most suitable solu- order to foster consensus and conciliation of the interests tions to protect citizens’ legitimate interests and to improve involved, and thereby resolve or overcome the dispute. administrative action (Article 21, paragraph 1, indent c) of Another essential characteristic of the Ombudsman’s the Statute). activity is the speed with which complaints are processed. The Ombudsman is not bound by the complaint itself, or Suitable mechanisms and instruments are adopted in order by the exact terms in which it is formulated. He/she may, to ensure that the Ombudsman may respond promptly to first and foremost, reject complaints that he/she objectively the question submitted to him - effectively and efficiently - considers to be unfounded; he/she may check facts and and ensure its swift resolution. issue recommendations beyond the terms of the request; The Ombudsman is a control body based on the principle or even, propose measures that stand in opposition to of cooperating, that fosters prior hearings with the entities the interests of the complainants, given that he/she is a addressed, prior to taking any position on the issue or for- defender of both the legality and the justice of the activity mulating any conclusions (Article 34 of the Statute), listen- of the public powers. ing to their arguments and permitting them to provide all Within the fairly diversified range of communications necessary clarifications in order to achieve a satisfactory received on a daily basis by the Ombudsman, the first rel- resolution of the question, wherein the relevant public inter- evant task consists in qualifying the communication as a est will be weighed against the right claimed by the citizen. «complaint», or as a simple statement of facts. Next, the After investigation of the case, the Ombudsman may complaints are subject to a judgement of admissibility, in conclude that the complaint is unfounded, due to lack of order to ascertain whether their material scope lies within due grounds, in which case the case will be closed, and the the Ombudsman’s sphere of powers. In all circumstances, it complainant will be informed of the reasons underlying this is always the substance, rather than the form, of the com- decision, highlighting the justice and legality of the position munication, that must be considered. assumed (Article 31, indent b) of the Statute). In this context, a complaint is considered to be any com- If pursuant to the inquiries made it is demonstrated that munication, regardless of its form, that is presented by the complainant has a well-founded complaint, the case one or more complainants, in which the Ombudsman is may still be closed if the illegality or injustice has been requested to intervene in relation to questions falling within redressed in the meantime (Article 31, indent c) of the Statute). his scope of competence. In other cases, unless measures are adopted to restore In relation to any complaint, the parameters determin- legality or overcome the injustice cited in the complaint, ing the possibility of the Ombudsman’s intervention include the Ombudsman may issue recommendations to correct the both the mission and competencies legally attributed to this illegal or unfair act, or the irregular situation (Articles 20, body; and respect for the principle of separation of pow- paragraph 1, indent a), and 38 of the Statute). In other situ- ers, consecrated in Articles 2, 110, and 111, paragraph 1, ations, he/she may make suggestions or formulate propos- of the Portuguese Constitution; and also the purely recom- als to the public powers, in order to restore the legality of mendatory nature – rather than a binding nature - of his/ the act against which the complaint has been submitted. He her intervention. may also, in less serious cases, of a one-off nature, simply A complaint that fails to respect the scope of the Ombuds- issue a warning to the body or service against which the man’s attributions will be preliminarily rejected. complaint has been submitted or terminate the subject with the explanations provided, in which case the case will be closed (Article 33 of the Statute). 6 Recommendation 1/B/2010, of 3rd February. 26  In this context, he/she does not have any coercive power, ing a key role in the implementation of national systems of or power to make impositions or annulments. The force of protection and promotion of human rights. the Ombudsman’s intervention fundamentally resides in Like the Ombudsman, they are also considered key part- the power of persuasion and what has been called «mag- ners by human rights international agencies. istrature d’influence», i.e. the Ombudsman’s authority is This importance is especially evident at the United moral and its effectiveness depends on being demonstrably Nations, which has recognized a set of participation in some impartial and non-partisan. instances, maxime in the Human Rights Council, such as Complaints may be presented in writing or orally, iden- submitting documents, attending meetings and making oral tifying the identity and address of the complainant and, interventions. whenever possible, his signature. When presented orally, a The Portuguese Ombudsman has been accredited with a record of the complaint must be drafted, which the com- status of National Human Rights Institution since 1999. plainant will sign, if he/she knows how to, and is capable It should be noted, as mentioned by academics, it is now- of doing so (Article 25, paragraph 1 and 2 of the Statute). adays recognized the existence of a human rights compo- Citizens may send their complaints by letter, telephone or nent in the Ombudsman’s core activity, although not always fax, and also by electronic means, by filling in the specific in an explicit and direct way. Even in more classic institu- form available at the Ombudsman’s website (http://www. tions with a mandate related mainly to administrative jus- provedor-jus.pt/queixa.htm). They may also present their tice, attention is paid to the international legal framework of complaints in person at the premises of the Ombudsman. human rights as a guiding and interpretative element. In addition to the possibility of sending a complaint In the case of the Portuguese Ombudsman, the human directly to the Ombudsman, they may also be sent to the rights dimension is expressed in several ways, namely Public Prosecution Service, who shall immediately forward through the inclusion of the power of recommending - max- them to the Ombudsman (Article 25, paragraph 3 of the ime legislative recommendation - and the power to request Statute). the Constitutional Court a review of the constitutionality. When a complaint is incorrectly submitted its replacement These two prerogatives, in particular, combined with the will be ordered (Article 25, paragraph 4 of the Statute). ability to act on his own initiative, allow the Ombudsman to contribute to the greatest possible alignment of Portuguese legislation and practice with international law on human The Ombudsman as National Human rights, as well as the recommendations issued by the inter- Rights Institution national bodies monitoring the respect for these rights. On the other hand, the knowledge and experience gained The concept of National Human Rights Institution desig- by the Ombudsman in carrying out its functions allow him nates a multitude of administrative institutions (i.e., non- to provide an impartial and comprehensive perspective on judicial or parliamentary) aimed at the promotion and pro- human rights in Portugal to the international entities, thus ena- tection of human rights. Grosso modo, we can speak of two bling them to carry out their duties in a more informed way. types of institutions: Commissions and Institutes of Human It is therefore in the combination of these two roles – that Rights and Ombudsman. of Ombudsman and that of National Human Rights Institu- In 1993, with Resolution 48/134 of 20th December, the tion – that we can find the exact measure of his involvement United Nations General Assembly adopted a set of principles in the international system of human rights. concerning the status of these institutions, defining aspects At national level, the role of the Ombudsman as Portu- of its composition, powers and methods of operation and guese National Human Rights Institution in full conformity guarantees of impartiality and pluralism. They became with the Paris Principles gives him/her the right to partici- known as the «Paris Principles» and are now considered the pate in the work of the newly established National Com- minimum reference standard respected by all the National mission for Human Rights7. This governmental entity works Human Rights Institutions, as regards their full independ- under the Ministry of Foreign Affairs and aims at ensuring ence and effectiveness of their action. better coordination between ministries, both regarding the Also in 1993, the International Coordinating Committee preparation of Portugal’s position in international organiza- of National Institutions for the Promotion and Protection of tions on human rights, and the fulfilment of its obligations Human Rights (ICC) was created. Its main mission is to assess on this matter. the institutions’ compliance with those principles, through a process of accreditation and re-accreditation that may result in three classifications: A (fully compliant), B (some aspects of non-compliant) and C (not compliant). The international community recognizes the National Human Rights Institutions accredited with A status as hav- 7 Resolution of the Council of Ministers 27/2010, de 8 de April. 27  Principles relating to the Status of National Institutions (The Paris Principles)8 Adopted by General Assembly resolution 48/134 of 20 December 1993 1. Competence and responsibilities (b) To promote and ensure the harmonization of national 1. A national institution shall be vested with competence to legislation, regulations and practices with the interna- promote and protect human rights. tional human rights instruments to which the State is 2. A national institution shall be given as broad a mandate a party, and their effective implementation; as possible, which shall be clearly set forth in a constitu- (c) To encourage ratification of the above-mentioned tional or legislative text, specifying its composition and its instruments or accession to those instruments, and to sphere of competence. ensure their implementation; 3. A national institution shall, inter alia, have the following (d) To contribute to the reports which States are required responsibilities: to submit to United Nations bodies and committees, (a) To submit to the Government, Parliament and any and to regional institutions, pursuant to their treaty other competent body, on an advisory basis either at obligations and, where necessary, to express an opin- the request of the authorities concerned or through ion on the subject, with due respect for their inde- the exercise of its power to hear a matter without pendence; higher referral, opinions, recommendations, proposals (e) To cooperate with the United Nations and any other and reports on any matters concerning the promotion organization in the United Nations system, the and protection of human rights; the national institu- regional institutions and the national institutions of tion may decide to publicize them; these opinions, other countries that are competent in the areas of the recommendations, proposals and reports, as well as protection and promotion of human rights; any prerogative of the national institution, shall relate (f) To assist in the formulation of programmes for the to the following areas: teaching of, and research into, human rights and to (i) A ny legislative or administrative provisions, as take part in their execution in schools, universities and well as provisions relating to judicial organizations, professional circles; intended to preserve and extend the protection (g) To publicize human rights and efforts to combat all of human rights; in that connection, the national forms of discrimination, in particular racial discrimi- institution shall examine the legislation and admin- nation, by increasing public awareness, especially istrative provisions in force, as well as bills and pro- through information and education and by making posals, and shall make such recommendations as use of all press organs. it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend 2. Composition and guarantees of the adoption of new legislation, the amendment of independence and pluralism legislation in force and the adoption or amendment of administrative measures; 1. The composition of the national institution and the (ii) Any situation of violation of human rights which it appointment of its members, whether by means of an decides to take up; election or otherwise, shall be established in accordance (iii) The preparation of reports on the national situa- with a procedure which affords all necessary guarantees tion with regard to human rights in general, and to ensure the pluralist representation of the social forces on more specific matters; (of civilian society) involved in the protection and promo- (iv) Drawing the attention of the Government to situ- tion of human rights, particularly by powers which will ations in any part of the country where human enable effective cooperation to be established with, or rights are violated and making proposals to it for through the presence of, representatives of: initiatives to put an end to such situations and, (a) N on-governmental organizations responsible for where necessary, expressing an opinion on the human rights and efforts to combat racial discrimina- positions and reactions of the Government; tion, trade unions, concerned social and professional 8 http://www2.ohchr.org/english/law/parisprinciples.htm 28  organizations, for example, associations of lawyers, (f) Maintain consultation with the other bodies, whether doctors, journalists and eminent scientists; jurisdictional or otherwise, responsible for the pro- (b) Trends in philosophical or religious thought; motion and protection of human rights (in particular, (c) Universities and qualified experts; ombudsmen, mediators and similar institutions); (d) Parliament; (g) In view of the fundamental role played by the non- (e) Government departments (if these are included, their governmental organizations in expanding the work of representatives should participate in the deliberations the national institutions, develop relations with the only in an advisory capacity). non-governmental organizations devoted to promot- 2. The national institution shall have an infrastructure which ing and protecting human rights, to economic and is suited to the smooth conduct of its activities, in particu- social development, to combating racism, to protect- lar adequate funding. The purpose of this funding should ing particularly vulnerable groups (especially children, be to enable it to have its own staff and premises, in migrant workers, refugees, physically and mentally order to be independent of the Government and not be disabled persons) or to specialized areas. subject to financial control which might affect its inde- pendence. 3. In order to ensure a stable mandate for the members of 4. Additional principles concerning the national institution, without which there can be no the status of commissions with real independence, their appointment shall be effected quasi-jurisdictional competence by an official act which shall establish the specific dura- tion of the mandate. This mandate may be renewable, A national institution may be authorized to hear and con- provided that the pluralism of the institution’s member- sider complaints and petitions concerning individual situa- ship is ensured. tions. Cases may be brought before it by individuals, their representatives, third parties, non-governmental organiza- tions, associations of trade unions or any other representa- 3. Methods of operation tive organizations. In such circumstances, and without prej- udice to the principles stated above concerning the other Within the framework of its operation, the national insti- powers of the commissions, the functions entrusted to them tution shall: may be based on the following principles: (a) Freely consider any questions falling within its compe- (a) Seeking an amicable settlement through conciliation tence, whether they are submitted by the Government or, within the limits prescribed by the law, through or taken up by it without referral to a higher authority, binding decisions or, where necessary, on the basis of on the proposal of its members or of any petitioner, confidentiality; (b) Hear any person and obtain any information and any (b) Informing the party who filed the petition of his documents necessary for assessing situations falling rights, in particular the remedies available to him, and within its competence; promoting his access to them; (c) Address public opinion directly or through any press (c) Hearing any complaints or petitions or transmitting organ, particularly in order to publicize its opinions them to any other competent authority within the and recommendations; limits prescribed by the law; (d) Meet on a regular basis and whenever necessary in (d) Making recommendations to the competent authori- the presence of all its members after they have been ties, especially by proposing amendments or reforms duly concerned; of the laws, regulations and administrative practices, (e) Establish working groups from among its members especially if they have created the difficulties encoun- as necessary, and set up local or regional sections to tered by the persons filing the petitions in order to assist it in discharging its functions; assert their rights. 29 2. THE OMBUDSMAN’S ACTIVITY  2.1. Statistical Comment on Global Data Graph I Table 2 – Number of open cases Cases opened Per written complaint 3318 5000 10 13 18 17 Per verbal/in person complaint 611 6727 6948 6731 6488 Per electronic complaint 2559 0 Ombudsman’s own initiative 17 2007 2008 2009 2010 Total number of open cases 6505 By complaint Ombudsman’s own initiative The complaints were mainly presented by writing, in a total of 3318 cases. The electronic complaint was used in 2559 cases (40%), retaining, albeit more slowly, the upward 6505 cases were opened in 2010, including 17 by the trend of previous years. Ombusman’s own initiative. This figure represents a decline of 3,6% compared to 2009, namely less 243 open cases through complaint and one less initiated by the Ombudsman Table 3 – Number of cases closed himself. It should be noted, regarding the cases opened by Cases forwarded prior to 2008 121 the Ombudsman initiative, that the 2009 figures included the renovation of several instances of non-compliance of Cases forwarded from 2008 237 recommendations, which at the outset of the current incum- Cases forwarded from 2009 1930 bent were reinstated to the entities concerned. Sum of cases prior to 2010 2288 Cases opened in 2010 4502 Total number of cases closed 6790 Table 1 – Complainants in 2010 Natural persons 7423 Legal persons 426 Table 4 – Number of pending cases as of 31 December Total number of Complainants 7849 Principal cases forwarded prior to 2008 12 Principal cases forwarded from 2008 23 Regarding the number of claimants, there were 7423 Principal cases forwarded from 2009 244 individuals and 426 legal persons, making a total of 7849 Sum of cases prior to 2010 279 claimants. In 2009 the number of individual claimants was Cases opened in 2010 2003 23,270. As it was then duly noted, this figure was built Total number of pending cases 2282 through a single mass complaint. Regarding legal persons, the value of 2010 represents a decrease of 10% over the previous year, continuing, albeit Graph II more moderately, the downward trend observed since then. It should be noted that in addition to the claimants listed Cases opened and closed in Table 1, about 800 other people addressed themselves to 8000 6737 7239 6961 6893 6505 6790 the Ombudsman, sometimes jointly with other entities, but 6749 5935 merely to give notice of certain facts or considerations of a general character, without formulating a specific request or 4000 presenting situations colliding with rights and legally pro- tected interests of citizens. Such communications were not 0 considered as complaints and did not required further action. Opened 2007 Closed 2008 2009 2010 32 Graph III Regarding the grounds for closing a case, 1672 cases were solved with an essential participation of the Ombuds- Evolution of the total number of pending cases man (277 more than in 2009). In 26 cases, this intervention on December 31st involved a formal recommendation (12 in 2009). 3000 854 cases were closed on a preliminary basis and 1887 2567 2500 2282 complaints were deemed unfounded. The weight of these 2000 two types of decision, considered together, fell 2% in total 1752 1500 volume of closed cases, compared to 2009. As stated in the last year report, this is significant because 1000 it represents a steady break, in 1/5, of the proportion ever 500 met in recent decades. 0 2009 2010 2011 These data show that there is an increasing overlap between the subject of complaints and the scope of inter- vention of the Ombudsman and a greater degree of conver- The stability achieved in 2010 allowed a return to nor- gence between the views of those complaining and those malcy in the number of cases filed, which stood at 6790 of the Ombudsman. (14% more than in 2009). In the same vein, a decline in backlog was obtained at the end of the year, with 2282 cases (11% less). Graph V Table 5 – Summary Duration of cases closed in 2010 2500 Total number of cases forwarded from 2009 2567 2111 N = 6790 Total number of cases opened 6505 2000 1791 Total number of cases closed 6790 1500 Cases opened and closed in 2010 *4502 1130 Pending cases as of 31 December 2282 1000 *Representing 69,2% of the total number of cases opened 522 500 492 346 245 153 In 2010, 4502 cases were opened and closed in the same 0 Between Between Between 31 - 90 days Between 91-180 days Up to 30 days Between 181-270 days Between 271-365 days year, recovering well, albeit moderately, from the decline felt in the previous year (62% of complaints entered). Over 2 years 12-18 months 18 months - 2 years Graph IV About three quarters of the cases closed in 2010 (4932 Grounds for closing a case cases) lasted less than six months, just under a third of the 2000 1887 total not to exceed the first 30 days after being received. 1800 N = 6790 1600 1646 As in previous years, one year after the end of 2009, it 1400 is possible to calculate the percentage of the new cases 1200 1000 877 opened during that year that met their final decision before 854 764 800 twelve months were completed, which was 88,5%. 600 400 295 255 200 71 26 7 63 4 41 0 Forwarding (C) Preliminary closing (A) Absence of grounds (B) Resolved without the Request for review of Administrative Lack of competency of the Resolved with a recommendation Resolved by the simple Unresolved (withdrawal Unresolved (recommendation not Impossibility of adoption of Unresolved (H) Grounds (K) constitutionality (J) opening of the case (E) any other procedure (M) Ombudsman’s intervention (F) that was complied with (D) of the complaint) Forwarding (G) complied with) (I) Ombudsman after opening the case (L) 33  Graph VI 3356 complaints were received against the Central Administration (50,4% of total), which implies a decline both in absolute terms and in relative terms, in this case by Subjects of complaints about 10% compared to 2009. 1200 N = 6637 This decline was offset by slight increases in the com- 1077 1000 plaints against foreign entities and individuals, against 800 736 725 the Azores Regional Administration and, especially, in the 601 600 491 463 Autonomous and Indirect Administration. 410 400 400 356 258 188 181 181 159 157 134 120 200 Graph VIII 0 Social Security Nationality law Penitentiary Issues Public employment relationship Territorial planning Foreigner’s law Justice Administration Tax affairs Education Environment and natural resources Health Employment and Other Consumer rights Financial affairs Traffic Issues Urban planning and housing Distribution of complaints by Ministry professional training 1000 927 N = 3356 900 800 719 700 600 500 400 380 348 341 300 195 164 200 158 83 100 41 0 Ministry of National Defence Ministry of Labour and Ministry of Finances and Ministry of Education Ministry of Health Ministry of Foreign Affairs Ministry of Agriculture, Others Ministry of Internal Ministry of Justice Administration Social Solidarity The issues related to Social Security, Public Employment Public Administration Rural Development and Fishing and Administration of Justice head the table. The hierarchy of the entities most targeted in complaints has remained thus substantially the same as in the previous year. The most significant change occurs, once again, in proceed- ings concerning Nationality (in general, issues related to citizens from the former Portuguese State of India), now in The Ministries of Labour and Social Affairs and Finance an increasing trend, a phenomenon that focused primarily in and Public Administration remained on the top of the list, the second half of 2010. with a rise in relative terms of the former and a decline of the second. The descent of the weight of complaints against the Ministry of Justice led the move to the third place of the Ministry of Internal Affairs. It is also worthy to note, the Graph VII growth of the figures concerning the Ministry of Education and the Ministry of National Defense, by comparison with the previous year. Graph IX Entities concerned in the complaints 4000 Distribution of complaints by Ministry N = 6662 (excluding complaints about public employment issues) 3500 3356 1000 3000 892 900 N = 2836 2500 800 2000 700 673 1500 1159 600 1000 875 500 557 599 500 400 352 59 57 305 0 300 200 150 130 129 159 Private and Foreign Bodies Central Administration Indirect Administration Azores Regional Administration Madeira Regional Administration Local Administration Independent bodies 100 46 0 Ministry of Labour Ministry of Internal Ministry of Justice Ministry of Ministry of National Defence Ministry of Finances and Ministry of Education Ministry of Health Others and Autonomous Foreign Affairs and Social Solidarity Administration Public Administration 34  This graph refers to the complaints of users of each gov- Consistent with the previous trend, there was a further ernment department, not including claims on the public increase in the number of complaints against banks, with employment relationship. There is a distribution very simi- an increase of 23% (plus 37 complaints). There was also lar to the previous chart, with an increased representation an increase in complaints against insurance companies from the Ministries of Labour and Social Affairs, Finance (over 54%, or 20 complaints more), reversing the tendency and Public Administration, Interior and Foreign Affairs. In occurred last year. the opposite direction, it should be noted a lower weight of the complaints against the Ministries of Health, National Graph XII Defense, Agriculture, Rural Development and Fisheries and, quite pronounced, the Ministry of Education. Category of primary complainants in cases opened 7000 6488 Complainants Graph X 6082 6000 5000 Distribution of complaints against municipalities 600 N = 720 4000 489 500 3000 400 300 2000 200 74 1000 100 30 23 406 17 15 15 12 12 11 11 11 0 0 n to a a rs Natural persons Legal persons l tra ad s or l s ve s uz bo ha or ai ba ira Cr he Lis nc Op Sin m sc ad tú Oe Sil Ot Fu Al Ca Am Se a nt Sa Some novelties arising from the list of most targeted Graph XIII municipalities, with minimal relevance one should under- line the increase in complaints against the municipalities Type of corporate body complainant of Porto and Cascais, as well as the decline in the cases of 160 Oeiras and Sintra. 140 135 N = 426 Once again, the Municipality of Lisbon is the most tar- 120 110 100 89 geted, counting about 10% (74 complaints) of the total 80 complaints against local authorities. 60 40 27 23 22 20 7 12 1 0 Graph XI s ie Tr as de a so -ucia nio tio ns r he pa n tio nns Ot cia Re Pu bl ic m As sid en bo di es Co so Pr of es ts ’C om m sio na itt ee s nd W or la ss oc i at sa ke rs’c om io ns on m itt ee un Po lit ica s i lp Complaints against private and foreign entities ar tie s e Trad 250 N = 557 195 197 200 150 The proportion of legal persons, in the universe of the 100 first subscribers of the complaints received, being virtu- 73 57 ally identical to the figure observed in 2009, there was a 50 decline, absolute and relative, in complaints presented by 12 11 10 0 2 companies, with a slight increase in the complaints made ts by associations. Although without significant expression, ks s ni ts s ie s di Ba fir es en en on tit es n m pa m m un en bo ce ish ish i the number of complaints by political parties has doubled. om e e re su ra rc ta bl ta bl ad at ig n n he es es Tr riv Fo In rp The complaints from trade unions remained the same as in Ot hi th ng al he ac He Ot Te 2009. 35  Graph XIV Graph XV Evolution of individual complainants by gender No. of complaints by districts of the Portuguese mainland 2400 2200 70,0% 2000 65,9% 65,9% 65,8% 1800 65,5% 65,0% 62,0% 61,6% 1600 61,1% 60,9% 61,3% 60,0% 1400 58,5% 1200 55,0% 56,8% 1000 800 50,0% 600 400 45,0% 43,2% 200 40,0% 41,5% 0 38,9% Évora Guarda Leiria Lisbon Oporto Portalegre Aveiro Setúbal Viana do Castelo Santarém Vila Real Beja Braga Coimbra Viseu Castelo Branco Faro Bragança 35,0% 38,0% 39,1% 38,7% 38,4% 34,5% 34,1% 34,1% 34,2% 30,0% 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Men Women 2008 2009 2010 As every year, with the exception noted in 2009, there is Graphs XVI a predominance of complaints presented by men, by a ratio of 62% of the universe of individuals. No. of complaints from the Autonomous Regions The number of replies to the questionnaire sent to com- 180 plainants, upon receipt and acceptance of the complaint, 160 140 was weaker than previously noted, this information being 120 only fulfilled in about a third of the cases. 100 Within the universe of answers received (with the larg- 80 est representation in the case of individuals who, in relative 60 40 terms, doubled the response rate observed by legal per- 20 sons), about three quarters were appealing for the first time 0 Azores Madeira to the Ombudsman’s intervention. 2008 2009 2010 The age distribution of respondents was very similar to that seen in previous years. More than 30% were aged over 60 years. The qualifications declared are in a continued improve- The district of Guarda (with a 16% increase) and the ment. The percentage of those with a college degree rose Azores (an increase of 24 complaints, that is over 20%) were three points (and almost doubling the number of bearers the only districts/regions where the number of complaints of a PhD). grew (with the exception of a very slight increase occurred Regarding the employment status , there is a decrease in in the Autonomous Region of Madeira). the number of unemployed claimants and those working in the private sector. On the opposite direction, there was an increase in the number of responses that indicated to work Graph XVII on the public sector or having a liberal profession. No. of complaints with non-identified origin and from abroad 1000 900 800 700 600 500 400 300 200 100 0 Non-identified From Abroad 2008 2009 2010 36  Once again reflecting the specific issue of citizens from Table 6 – Complaints in function of the population the former Portuguese State of India, the number of com- plaints coming from abroad has increased one and a half The five higher figures over the 2009 figure, a situation that has shown consider- 2006 2007 2008 2009 2010 able volatility over the last decade. 1.º Lisbon Lisbon Lisbon Lisbon Lisbon 2.º Santarém Azores Santarém Madeira Madeira Graph XVIII 3.º Azores Santarém Faro Santarém Azores 4.º Évora Setúbal Madeira Setúbal Setúbal Complaints per 10 000 inhabitants: 5.º Setúbal Faro Setúbal Faro Faro districts and Autonomous Regions 11,0 10,0 9,0 8,0 The districts of Portalegre, Vila Real, Évora, Viana do 7,0 6,0 Castelo, Viseu and Santarém felt relative decreases below 5,0 the average for mainland Portugal. 4,0 3,0 Observing only the five highest values, in relative terms 2,0 compared to the resident population, the district of Lisbon 1,0 0,0 remains in the first position, followed by Madeira. The dis- Lisbon Azores Santarém Aveiro Beja Braga Bragança Castelo Branco Évora Faro Guarda Leiria Portalegre Viana do Castelo Coimbra Setúbal Madeira Viseu Vila Real Oporto tricts of Setúbal and Faro were overcome, thanks to the increase in complaints already noted above, by the Azores, this last Region nearing the peak registered in 2007 2008 2009 2010 37 2.2. Fundamental Rights | Environment and Life Quality Rights | Rights of Taxpayers, Consumers and Economic Operators | | Social Rights | Worker’s Rights | Right to Justice and Security | Other Fundamental Rights | | Rights of the Children, Elderly Persons and Persons with Disabilities |  2.2.1. Environment and Life Quality Rights Most plaintiffs in complaints concerning environmen- changed this role. The Ombudsman is now requested to tal and building matters express their concern about the recommend the exercise of public authority. indifference or unreasonable permissiveness on the part of Complainants in environmental, construction and land public authorities towards the violators of rules protecting management subjects continue to point out the poor perfor- natural resources, quality of life or land management instru- mance of the public authorities (53.2%), the failure to com- ments. They ask the Ombudsman to persuade authorities ply with the duty to act in view of the public interest and, to use coercive means whether to close a noisy industrial reflexively, to protect their rights affected by third parties. plant, enforce the demolition of an illegal work or to replace The number of complaints against acts, regulations and the developer on the completion of urbanization works. operations in the exercise of authority powers, especially Although the institutional profile of the Ombudsman is against the adoption of administrative police measures or traditionally associated with the limitation of power and administrative sanctions is lower than the number of com- authority, the expansion of environmental rights and the plaints against omissions2. Typical complaints against the development of the specific tasks of this State organ in actions of public authorities are complaints against expropria- order to safeguard the so-called diffuse interests1 have long tion for public utility and against administrative rights of way. NO. OF Planning 7 ISSUES CASES Special land regimes 16 OPENED Public works 25 Building 178 Public domain 70 Building works 76 Public street (kiosks, terrace, advertisement outdoors, 37 Use of buildings 22 complaints, parking, Public lighting) Land allotments 7 Public roads 19 Building maintenance and rehabilitation 18 Coastal sea and water resources 6 Illegal urban areas 5 Others (cemeteries, green areas, etc.) 8 Specialty projects and connection to public networks 18 Expropriation 29 Public housing and controlled rent housing 17 Procedures 18 House renting 8 Ultra vires 10 Buildings owned by floors 4 Reversal rights 1 Professional qualifications 3 Administrative rights of way 14 Environment and Natural resources 136 Others (allotments, preemptive rights) 5 Water 10 Culture 21 Soil and subsoil 3 Architectural and archaeological heritage 10 Noise 73 Museums, archives and libraries 3 Forest 11 Arts and performing arts 2 Fauna 1 Copyright 6 Air quality 9 Leisure 41 Radiation 1 Hunting and angling 7 Salubrity 13 Tourism 12 Landscape 2 Game 1 Waste management 7 Pets 5 Flammable, toxic or explosive products 5 Boating and recreational aviation 3 Others 1 Entertainment 1 Land development 167 Sports 10 General 49 Total 543 1 Article 20, 1, paragraph 1, indent e) of Law 9 / 91, 9 April. 2 42,5%, in 2010, 42,1%, in 2009 and 44,7% in 2008. 40  The analysis of complaints by subject shows almost equal use of the Municipal Aerodrome. It was confirmed that the weight between building and land management com- users of the aerodrome who were not members of a given plaints, followed by environmental based complaints and local association were forced to book its use in much earlier finally by complaints on culture and leisure issues, with a than others, which was not compatible with either because much lower expression. of the nature of aeronautics or and the unpredictability of Within these themes, the major causes of complaints are forecasted weather. The Ombudsman concluded that two the following: basic principles of public services were offended: equal- ity and universality principles. The Mayor of Mogadouro a) Construction works and use of buildings: the major- accepted the Recommendation. ity of complainants oppose construction works that In the matter of the alienation by the Government of the somehow damage environmental or safety condi- Convento de Santa Joana in Lisbon, the Ombudsman made a tions while municipal authorities refrain from acting new Recommendation4 to the Minister of State and Finance. promptly in order to restore the law. The Recommendation was that ownership the church of b) Environment and natural resources: most complaints Santo António in Campolide5 should be transferred to the are against excessive noise, especially industrial noise Brotherhood that manages the said church. The church of and noise resulting from restaurants and similar activi- Santo António was confiscated on 08.10.1910. The Govern- ties. However, There is an increase in the number ment insists the transfer of the church be made upon pay- of complaints concerning water quality and forest ment of € 230.000.00. Despite having acknowledged the defense. public interest of the property due to its artistic and archi- c) Land management and planning: public domain tectural value in 1993 the Government never provided for management gives cause to the greatest number of it. Notwithstanding, the Brotherhood, who had been judi- disputes with the departments of Public Administra- cially recognized rights over the Convento de Santa Joana, tion, including the use of city roads and the vast field is faced with the profound dilapidation of the church of of municipal and secondary roads whose registration Santo António which endangers the safety of people and remains to be completed in most municipalities. goods. The opinion of the Ombudsman in relation to both d) Culture: complainants seek protection of architectural confiscated properties was that the Government enjoyed and archaeological heritage sitesand copyright. unfair financial benefits: it received the property value of e) Leisure: tourism (including public accommodation the convent through confiscation, it has not spent any funds units and municipal camping) is the main issue of lei- for conservation and restoration of the church and also gain sure-based complaints. revenue from its sale. The Government maintains it can not dispose freely of any of the assets included in public In 2010, the Ombudsman has issued seven Recommenda- domain. Nevertheless, the Ombudsman noted that Decree- tions on environment and life quality rights, two of them Law 280/2007, of 7th August, does not apply in this situ- pointing out shortcomings in legislation. ation, which occurred earlier and should be governed by In regards of urban rehabilitation the Ombudsman the Concordat with the Holy See. The position of Minister of recommended an amendment to the Rented Building State and Finance was reported to the Parliament6. Subvention Law (Recria) to the Ministry of Environment and The Mayor of Grândola was recommended7 to exercise Land Development. The Recommendation was to suppress powers over public roads, namely self-declarative and the rule that regardless of the time since the first financial enforcement powers8. The case involved the removal of a aid was granted prevented more that one subvention of ren- device obstructing traffic on public roads within a private ovation works in a building. This narrow sense has been con- development. Despite the fact that these roads allowed firmed by the administrative courts (ruling of the Supreme access to the seashore and that there was a public parking Administrative Court, 1st Sub. of 23/11/20053). Since this area, the management of the development acted as if it subvention program refers to the Decree-Law 4/88, of 14th was private property. The Recommendation was accepted. January, there are buildings whose renovation works were The Ombudsman addressed a Recommendation9 in supported by Recria but are presently in need of further respect of the environmental pollution caused by a cow maintenance. By the end of 2010, the Government had not farm whose activity the Municipality of Vila Nova de yet reported its position on the matter. Another legislative Recommendation, this time refer- 4 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=266> ring to regulations, had been made to the Mayor of 5 Recommendation 9/A/2010, of 28th June. Mogadouro on recreational aviation based upon a com- http://www.provedor-jus.pt/recomendetalhe.php?ID_recomendacoes=459 6 <http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=326> plaint against arbitrary imposition of requirements for the 7 Recommendation 10/A/2010, of 12th August. 8 <http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=314> 3 Proc. 0484/05, www.dgsi.mj 9 Recommendation 6/A/2010, of 29th March. 41  Famalicão acknowledged as illegal. The Ombudsman rec- man is that of informing plaintiffs in respect of complaints ommended that the farm should be compulsory closed with no grounds (34%) or that become useless (10,7%). considering that twelve years of numerous administrative Asking the right questions to the right public bodies procedures and subpoenas had achieved no result what- is a task the Ombudsman undertakes upon investigating the soever. In addition, it was explained the transitional provi- complaints and it assumes growing importance as adminis- sions of Decree‑Law 214/2008, of 10th November, were trative law and organizations become more complex. not to be applied in cases where legalization is clearly As in previous years, it is important to focus on some lines impossible. The Recommendation was accepted10. of action and positions taken by the Ombudsman that reveal A Recommendation to the Mayor of Tomar11 in order its legislative and administrative role. to restore the name of a street that had been arbitrarily A paradigmatic example of the significant Ombudsman changed by the Parish of Asseiceira, with no powers on action is the intervention in the construction of the Circular the matter, was not complied with. Although the Munici- Interna Regional de Lisboa – CRIL (internal circulation road pality was willing to compensate the losses suffered by in the Lisbon region). Since 1994, the Ombudsman receives the complainant due to the change of personal and prop- complaints about this public work for various reasons namely erty documents, it will not modify neither the designa- its layout, the project implementation and, in 2010, the tion nor the numbers of the street, which benefits another inconveniences arising out of the construction works. The resident. objections to the layout and to technical solutions made by We are presently waiting for the Municipality of São the residents of Lisbon and Amadora were submitted to the João da Madeira to report the position taken on a Rec- Ombudsman for an impartial prospective. It was determined ommendation12 objecting to the deposit of € 500.00 as if the solutions had been chosen on rational grounds, which a guarantee to noise measurements. The Ombudsman proved to be a difficult balance between the autonomy of considers the requirement of Regulation 326/95, of 4th public authorities – guided by reasons of expediency and October, was expressly revoked by Decree-Law 292/2000, convenience - and legality – reflecting general principles of of 14th November. Furthermore this measure would the administrative activity. threaten municipal powers in the pursuit of public inter- Regarding the location of public works, the Ombuds- est and would prevent citizens with fewer resources from man actively monitored the activity subject to a complaint having their complaints against noisy activities answered. against the Via de Caparica (Caparica Road) and urged the In 2010 the Municipalities of Cascais and Mafra reported public company EP – Estradas de Portugal SA (public com- their position on Recommendation 11/A/2008, of 25th pany responsible for the management of national roads) to Novembre, and on Recommendation 13/A/2008, of 16th explain why work had not been suspended in face of the December. The Municipality of Mafra complied with the Regional Department of Agriculture and Fisheries position, Recommendation and acknowledged that the increase of that deemed mandatory the preservation of a vast area of taxes for legalization of construction works diverges land with high agricultural potential13. from the purpose for which the power to create munici- After suggestions made in 2009 by the Ombudsman to pal taxes is granted. The Municipality of Cascais did not the Government on non-agricultural use of lands classified comply with the Recommendation, on grounds of wrong- in the National Agricultural Reserve, the Secretary of State ful qualification of the construction works. The said works for Forestry and Rural Development informed that many of were not to be deemed as a building, but a simple cov- the proposals would be followed in the regulation of Decree ering, and therefore its areas should not be considering Law 73/2009, of 31st March. upon calculation of construction parameters. In accordance A note of concern with the eventual pursuing industrial with Article 38, paragraph 6 of Law 9/91, of 9th April (the and trade activities on agricultural soils, as long as they are Ombudsman’s Statute) the non-compliance was reported deemed to be related to agriculture or to forestry resulted on to the Municipal Assembly of Cascais. a suggestion that the regulation should define these situa- Despite the fact that recommendations to public author- tions in precise terms. In addition, the Ombudsman stressed ities in order to redress unfair or illegal situations corre- out the lack of resources for inspection and replacement spond to the archetype of the Ombudsman’s intervention, operations of soils within the National Agricultural Reserve. the vast majority of complaints were settled through- Complaints relating to expropriation for public purposes out the investigations carried by the Ombudsman staff are often directed towards EP- Estradas de Portugal SA as (43,8%). An important service rendered by the Ombuds- well as at the concessionaries of highway construction and operation and are often linked to the payment of compensa- 10 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=365> tion. There are significant delays in fulfilling obligations aris- 11 Recommendation 5/A/2010, of 23rd March. ing out of the agreements established with the owners, but http://www.provedor-jus.pt/recomendetalhe.php?ID_recomendacoes=477 12 Recommendation 13/A/2010, of 17th November. http://www.provedor-jus.pt/recomendetalhe.php?ID_recomendacoes=482 13 <http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=318> 42 is it important to acknowledge that most concessionaires is pendent position, often plays an important role in joining willing to solve matters informally, saving courts costs and different agencies and services, central and local, general cooperating with the Ombudsman. and special that share duties and responsibilities. Moreover, If new binding administrative rights of way, espe- the Ombudsman, by submitting to a particular institution cially on behalf of transportation and electricity distribution the content of information, opinion, or data gathered by facilities, inspires concern to the Ombudsman, it is fair to other entities and by continuously trying to resolve negative acknowledge the commitment of EDP, SA (electric company) conflicts between public powers acquires a new role in the in reviewing its practices in order to reinforce the safeguard field of intra-administrative relationships, which exceeds his of property owners’ rights. original expected functions. A special reference to the implementation of new acts A favorable comment is to be made to the position of on water resources, particularly to the Decree-Law 226- the Secretary of State for Trade and Consumers Rights con- A/2007, of 31st May, is due. The successive extensions cerning the need to revise the Decree-Law 119/2009, of for the settlement of water resources permits, especially 19th May. This Decree-Law had imposed some unjustified those concerning groundwater abstractions (boreholes and requirements to playgrounds and recreation facilities and wells) have allowed a certain degree of distension. Also, it raised serious doubts in terms of compliance with Euro- the five Hydrographic Regions converged in the interpre- pean law on standards of quality. Furthermore, it would tation and application of legal provisions. These entities result in the closure of many facilities due to the failure to have been committed with the water management pow- comply with the new provisions 15. ers that were previously held by the CCDR (coordination The jurisprudence namely the Supreme Administra- and regional development committees). The committees, tive Court (Judgment of the 2nd Sub., of 09.06.2010) also despite the transference of water resources management followed the position of the Ombudsman by specifically powers, reveal a considerable disproportion between their quoting the Recommendation n.º 6/A/20066, according means and the multiple tasks they are required to ensure, to which: « the rule of Article 72, paragraph 3, of Decree- namely monitoring the updating procedure of hundreds of Law 380/9, of 22nd September, on soil classification is not land management instruments. self-enforceable.». This means all revisions and changes It should also be pointed out that the Secretary of State for of municipal development plans involving an increase Land Management has welcomed an interpretive sugges- of urban areas were not to be admitted until the Decree tion made in respect of the rules concerning changes to the 11/2009, of 29th May(established the criteria for extraordi- specifications of licenses in areas within the National Eco- nary reclassification of rural soil as urban) was in full force. logical Reserve. The Ombudsman argued that any request In matters of planning and building law the Attorney for the amendment of a license should not be rejected by General’s Office16 followed the Ombudsman position on the the CCDR without considering its object, extent and scope. illegality of the so-called «corrections» introduced by the In fact, the owner of a property complained (justly) against Lisbon Municipality in the allotment permit for the division the rejection of a request that actually decreased the dam- of the «Urbanização Norte do Sport Lisboa e Benfica» that aging effect on the Ecological Reserve by reducing the area would have allowed a higher building coefficient with far of construction. greater impact on other buildings. As to the monitoring of air quality14 the Ombudsman The Ombudsman has continuously insisted with several reported to the Parliament his concerns that resulted from municipalities on the understanding that the generic com- the analysis of a particular industrial activity: coffee roast- mercial use of buildings, or fractions, does not enable, with- ing. Prompt measures are now expected in order to improve out public authorization, the installation of restaurants and the efficiency of self-inspections, to enforce obligations and drinking establishments. As a matter of fact, this special to restore the competitive conditions of equality between use is not limited to the purchase and sale of goods and has those who meet strict legal requirements and those who a significant effect on the conditions of the environment. obtain an illegal gain by an illegal reduction in production Likewise, the Ombudsman has stressed out the need to costs. ensure the compliance of property regime provisions in the Also in respect of air pollution, it is worth mentioning the case of changes to the incorporation title. Contrary to con- positive effect that resulted from the concerted action of struction permits and licenses, this act affects private legal the Municipality of Caminha, the Committee for Coordina- relationships, in accordance with Article 1418, paragraph 3, tion and Regional Development (North) and the Regional of the Civil Code. Offices of the Ministry of Economy (North) in order to relo- The interpretation and application, whether by pub- cate a bituminous central that was installed near family lic authorities or by courts of law, of rules on distances houses. This reveals that the Ombudsman, due to its inde- 15 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=311> 14 <http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=339> 16 Legal Opinion 10/2010, in Diário da República, 2.ª série, 14/10/2010. 43  between buildings and between windows and other open- council departments that resulted in granting excessive ings - Articles 59. and 73 of the General Regulation of Urban delays for the legalization of establishments without ensu- Construction – remains highly controversial. This has not pre- ring an effective decrease of noise. In the case of Vila Real, vented the Ombudsman from insisting on the understand- the main reason for complaint seemed to be the noise pro- ing he has been giving to these provisions. For instance, the duced by clients in the street. This justified the limitation of Municipality of Fundão changed a land development plan the opening hours as well as a joint action with the security according to the Ombudsman suggestion. In this case, as in forces in order to ensure the safeguard of public order. many others, the advice of the expert on architecture, which In this matter, the Ombudsman considers it is imperative assists the Ombudsman, has proven to be decisive. to bring together the revitalization of historic centers and The uncertainty about the classification of roads as munic- the improvement of economic activities with the respect ipal, under parish management or private raises serious dif- for the rights of residents, namely their right to rest, which ficulties and gives cause to numerous complaints. Consid- is an essential condition for good professional and scholar ering there is a general conviction that atravessadouros performances. In both cases, local councils were reminded (pathways through private properties, abolished in 1967 that lack of administrative measures might be a source of by the Civil Code) and private passageways must obtain liability. municipal guardianship and that it is extremely hard to proof The Oporto Municipal County acknowledged the relevance the nature of these roads, many complaints are referred to of the suggestions made by the Ombudsman and informed the courts of law. on the improvement of administrative procedures allowing A last reference to three files opened by the Ombudsman a more rigorous exercise of its powers. based on issues often raised in complaints: – monitoring insalubrities caused by citizens suffering Case R-3476/09 from disease known as Diogenes Syndrome, character- Entity addressed: Secretary of State for Forestry and Rural ized by the accumulation of waste within their home; Development / Lisboa Municipal County / REN - National – special needs of disabled citizens in public parking areas; Energy Networks, SA (concessionaire for the national electric – guarantees of residents and local traders against the infra-structures network) / National Forest Authority / inconvenient resulting from the use of public domain Commission for the Coordination and Regional Development (streets and sidewalks) in audio-visual productions. of Lisbon and Tagus Valley Subject: Land development. Special territorial regimes. Forestry. Summary of some interventions of the Ombudsman Summary: Case R-1058/06 and R-5252/06 Regarding a complaint against the location of an electri- Entity addressed: Porto Municipal County/ Vila Real cal substation in the Lisbon Forest Park of Monsanto, the Municipal County Ombudsman concluded that the legal regime on forest had Subject: Environment and natural resources. Noise. not been complied with. The rules of the Decree of 24th Concentration of bars and nightclubs December 1901 and of the Decree of 24th December 1903 did not allow neither changes to public ownership of the land nor the partial suspension of the Lisbon Master Plan. Summary: The Ombudsman reported to the Minister of Agriculture, The Ombudsman reported to the municipal authorities Rural Development and Fisheries that any change to lands of Oporto and Vila Real an important set of observations under the forestry regime could only be achieved through a aiming at the improvement of administrative control of legislative act by the Council of Ministers. noise and security conditions in bars and nightclubs. In both At the same time, the Ombudsman noted that the succes- cases, municipal authorities failed to act promptly against sive postponement of a new Forest Code is giving cause to the high concentration of noisy nightlife establishments harmful effects specially because legislation on this matter whose activity was not licensed. To the Ombudsman regard is fragmented and has been randomly changed. these situations not only harm the legitimate authority of administrative authorities but also create a discriminatory treatment to residents and to business owners who have establishments in strict conformity with the law. As far as Oporto Municipal County is concerned, the Ombudsman noted difficulties in the operation and coordination of several 44  Case R-4286/06 sands of non-licensed livestock farms is being carried out, Entity addressed: Sintra Municipal County under Decree-Law 214/2008, of 10th November (livestock Subject: Building. Land division. Principle of legality. farming regime). The Ombudsman considers that this tran- Development plans. sitional regime, already extended, cannot justify that farms which are harmful to the environment and to public health and clearly do not fulfill all legal requirements may remain Summary: in activity. The Ombudsman conducted a complex analysis of sev- Pig farms, dairy farms poultry houses are often the cause eral topographic, administrative and legal elements relating of water, soil and air contamination, either because they are to the licensing, by the Sintra Municipal County, of a vast improperly located within urban areas or due to the non-use and complicated land division operation. At the end of this of new environment-friendly technologies. Public authori- search, the Ombudsman concluded the licensing act to be ties refrain from determining the closure of such farms, null and reported his position to the public prosecutor. except in cases of serious risk to human or animal health, According to the provisions of the Sintra Master Plan, due to lack of resources to enforce their decisions and due to either a previous development plan or a detailed plan was the lack of facilities to store the seized animals. required to legitimize the operation. Since this requirement Moreover this is a matter of major environmental justice: had not been fulfilled the license issued by the municipal third parties are severely disturbed and do not get any ben- county should be deemed null. efit or advantage. Although the developer had committed to meet all The Ombudsman persuaded public authorities to impose obligations arising out of future land development plans, the closure of an illegal farm of considerable size located in this commitment proved to be contrary to the principle an urban area in Azueira, in Mafra county. of administrative legality and corresponds to an unlawful administrative practice. Case R-1044/10 Entity addressed: Parliament Case R-1177/08 Subject: Building and construction. Professional qualifications. Entity addressed: Lisboa Municipal County Architecture and engineering technicians (ATAE). Subject: Land development. Public domain. Streets. Parking fares. Summary: Law 31/2009, of 3rd July, revoked Decree 73/73, of 28th Summary: February, and expanded the professional acts of architects, The Ombudsman investigated a complaint against the engineers, technical engineers and landscape architects. Lisbon Municipal Parking Company (EMEL) challenging the The Ombudsman expressed his opinion on complaints fare charged for the issuing of a new resident card (title from several architecture and engineering technicians (ATAE) exempting residents from parking fares) in case of replace- pleading the unconstitutionality of Decree 73/73 provisions ment of vehicle while the initial title was still valid. EMEL and demanding it should be revoked. The Ombudsman also proceeded as if it was a second vehicle and charged a higher concluded that the Decree 73/73, despite having been in rate. Finally, the Municipal Company acknowledged that in force for 36 years, should be deemed as a temporary legisla- the case of replacement of a car there was no increase in the tive measure adopted as a response to the lack of architects ratio number of cars/house and limited the payment to the and engineers. material costs of issuance of a new card. It was also noted that the new Law 31/2009, resulting from the demands of the market and the need for higher standard projects and building operations, kept a five-year Case R-6733/08 transitional regime providing ATAE with the necessary time Entity addressed: Mafra Municipal County/ Regional for retraining. Department of Agriculture and Fisheries of Lisbon and Tagus Valley/ Commission for the Coordination and Regional Development of Lisbon and Tagus Valley Subject: Environment. Salubrity. Livestock farms. Urban area. Summary: Since 2008, the inventory and the legalization of thou- 45  2.2.2. Rights of Taxpayers, Consumers and Economic Operators Complaints related to the rights of taxpayers, consumers The remaining complaints – on Civil Liability, European and economic operators gave rise in 2010 to 989 new cases1. and Nacional Funds and Public Procurement – have been Economic and financial, taxation and consumer problems accounted for in a similar number to that reached in the represented 87,77% of total, and therefore continue to be previous year3. the core of matters in this thematic area. The slight decrease As regards the cases closed, 1063 was the number of in the total of complaints received was a bit reflected at cases of this thematic group whose investigations ended in each of these three major themes, having the fall been 2010 with a final decision of the Ombudsman. 279 cases more marked in the economic and financial group of were pending in this area on 31 December 20104. matters2 and less pronounced in the consumer sector. NO. OF CASES Transport and communication routes 68 ISSUES OPENED Tourism 9 TAXATION 462 Miscellaneous 12 Tax benefits 9 ECONOMIC AND FINANCIAL 161 Fiscal enforcements 116 Banking Industry 105 Municipal Property Tax (IMI and CA) 31 Trade 7 Stamp Duty and Gift and Inheritance Tax 17 Capital market 4 Municipal Property Transfer tax (IMT and Sisa) 16 Insurance 22 Fiscal infringements 17 Other economic activities/Professions 7 Corporate Income Tax (IRC) 5 Miscellaneous 16 Personal Income Tax (IRS) 116 CIVIL LIABILITY 58 VAT 35 For providing public services 15 Land registration and evaluation 19 For accidents 29 Duties and tarifs 38 For loosing correspondence/luggage 7 Car taxation 11 Miscellaneous 7 Miscellaneous 32 EUROPEAN AND NATIONAL FUNDS 52 CONSUMER 245 Agriculture 24 Water 43 Education and professional training 10 Post 14 Employment 10 Electricity 36 Miscellaneous 8 Gas 14 PUBLIC PROCUREMENT 11 Internet 10 Public tenders 10 Satisfaction book 8 Miscellaneous 1 Telephone 31 TOTAL 989 1 Less 190 than the complaints received in 2009. 2 As has been said in the Report 2009 (see page 46), it should be remembered that record levels of complaints on financial affairs have been reached in that 3 All the three matters gave rise in 2009 to 135 cases opened and originated 121 year. These complaints have therefore merely taken up in 2010 the usual level cases opened in 2010. of previous years. 4 Less 74 than on 31 December 2009. 46 Rights of taxpayers Notwithstanding the increasing difficulties in finding con- sensual solutions with General Directorate of Tax («DGCI») on the interpretation and application of rules governing Rights of Taxpayers (Comparative 2009/2010) 2009 2010 Personal Income Tax, a case was closed in 2010 where it 140 was achieved the cooperation of the Directorate of Personal 125 120 115 116 116 Income Tax to clarify – towards the position of the Ombuds- 100 80 71 man – questionable areas of the tax regime and deduction 60 of alimony paid to minor children as well as the procedures 37 38 36 32 40 31 31 35 29 20 18 17 16 16 17 14 19 28 18 11 to be adopted by each parent for the purpose of deducting 79 5 0 al M enf Ta x be ne fit relevant tax expenses incurred by each of them, with these un orici cem s minor. T p St ax al en am (IM Pr ts an p I op Tr an d Du an ert In ty d y h sf M erit and A) C er un a G Ta ici nce if x p T t Co Fis (IM al P ax rp ca T a ro or l i at nf nd ert p Pe e r In ing ISA S y With regard to problems related to fiscal enforcements, rs on al In co em ) m e ent T ax s co m e Ta (I R C) La nd Re x (I R S) Fis gi stra tio VAT c Du eva a a n the recurring is most certainly a violation of the limits of tie lua nd s a tio nd n Ca tar rt ax fs at i M isc el la io n ne ou s unseizability of the assets, either by some deficiencies in the issuance of attachment orders, or, overwhelmingly, by serious deficiencies in the implementation of those orders. The year 2010 consolidates the idea formed over the past It is fair to mention at this point, the good receptivity years regarding the issues that most concern the citizen tax- that the intervention carried out with the Chairman of the payer that addresses the Ombudsman: problems related to Board of Instituto da Segurança Social, I.P. [Social Security Personal Income Tax and, more recently, problems of fiscal Institute] on improving the standard model of notification enforcements, are occupying the top places in the table of letter for the attachment of bank account balances, sent to the most recurring subject of complaint. As also tradition- credit institutions in connection with fiscal enforcements ally, the problems of taxation of real estate appear in the 3rd pending before the Social Security’s Sections, by including place of this table. 5 reference to rules of the Civil Procedure Code regarding the Although in 2010 a problem that the Ombudsman moni- limits of seizability of bank account balances of those debt- tors for some time was taken back and object of attempt to ors. In fact, although the text previously in use do not suffer be settled, this aim was not, regrettably, reached: it respects from serious inaccuracies, it is thought that the best practice to the problem of taxation in the year of receipt and jointly established as a result of this change will strengthen the with the income earned in that year, of salaries and pen- guarantees of the debtors. sions of previous years («retroactive»). More complex to settle is the problem of poor imple- The update/increase in tax rates and, in particular, the mentation of orders of attachment issued correctly. More progressive nature of the Personal Income Tax brackets complex, since the recipients of the orders of attachment leads to a situation, with the regime currently in place, of bank account balances are credit institutions with which where the year of receipt of retroactive implies, to the tax deposits were made, whose large majority of whom has a payer, a violent increase of its tax burden or even in the case private nature and are therefore outside the competence of of citizens with low levels of icome, moving from a non- the Ombudsman. Attempts dating from previous years, to taxation status to taxation at rates which do not show at all involve the Bank of Portugal in solving this problem proved their real ability to pay. to be not very effective and the practice of investigation The efforts of the Ombudsman for changing the statu- such cases with Caixa Geral de Depósitos, S.A. has not cre- tory system that provides cover to such a situation, namely ated in 2010, expectations for settling the issue in the short through the reiteration of a legislative Recommendation term. formulated in due time (and not accepted)6, were not wel- In short, the inquiries of the 34 cases that were opened in comed by the Minister of State and Finance, to whom a mes- 2010 to test the regularity of attachement of bank account sage of disagreement was sent on the occasion of the case balances, advises that in 2011 it is considered a generic closure, including the intention of the Ombusdman to retake intervention in the matter. the issue if and when possible new complaints show the Still for fiscal enforcements purposes, it should be high- relevance of such intervention.7 lighted in 2010, the thorough study8 prepared under the Ombudsman’s own-initiative case opened following media reports, as regards attachment of copyright in terms that can affect the livelihoods of debtors, particularly when these 5 Which, in the comparative table «rights of taxpayers 2009/2010», emerge desegregated into Municipal Property Tax + Municipal Property Transfer Tax + earnings are their only means of livelihoods. Land registration and evaluation. 6 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=238 7 In 2010 were received 20 new complaints about this tax regime of income repor- ted to prior years. 8 http://www.provedor-jus.pt/recomendarvore_sum.php?refPasta=347 47  The conclusions of the study point to be considered management of municipal solid waste12, whose findings legislative amendment so that it can be conferred to the have since been brought to the attention of two targeted attachment of income which is the only means of liveli- local authorities. In one case the local authority accepted hood of the debtor, similar protection that presently enjoy these conclusions, in the other a definitive reply was still salaries, pensions and similar income. Thus, following such being awaited by the end of the year. study, cooperation with the Ministries of State and Finance, Justice, and Culture was requested, and it is expected that To close, three positive notes on the rights of taxpayers: their replies will lead to an increased protection of the rights of taxpayers. In this respect, it should be mentioned that First, it was welcomed the intervention carried out by the the correspondence exchanged in late 2010 between the Ombudsman aiming the amendment of the text of notifica- Ombudsman and the Minister of Justice on the Draft Reform tions in use by DGCI (Wealth Area). In the case of a first Enforcement Procedure Act indicates good perspectives of evaluation of real estate, the notification text should be solving the problem. amended in order to include, clearly, the reactive means of In respect of taxpayers’ rights, another reply that was the taxpayer against the act notified. awaited by the end of 2010 refers to the stated problem Secondly, it should be highlighted the cooperative atti- to the Secretary of State for Fiscal Affairs, regarding fees tude of some of the Tax Offices and the Directorate for Tax charged by DGCI for inspections aimed to allow the refund Justice on the review of decisions imposing fines. In some of the corporate special payment on account («PEC»).9 cases, it has been determined to close the fiscal infringe- The Ombudsman disagrees with the understanding as ment procedure, including cancelling the respective fine well as with the interpretation in which the services of DGCI imposed and in other cases applications for extraordinary are based to sustain it. Hence, the Ombudsman suggested revocation of the fines was accepted. the Secretary of State for Fiscal Affairs to review the case Finally, it was possible to close in 2010 cases whose complained and issue instructions preventing DGCI from investigation was prolonged for quite a long time, due to charging any fees in these cases. Also, the fee charged is the delay in providing software that allows achieving repay- often manifestly disproportionate to the service provided ments of stamp duty, some of them already decided for (sometimes even higher than the amount of the PEC refund years but which were still awaiting implementation. As the that the taxpayer is seeking). investigation of these cases revealed, it was secured the Suggestion concerning the rights of taxpayers in 2010 and payment of default interest due to this excepcional delay, that had a positive outcome still during the course of this which was not at all the fault of the taxpayers. year relates to the Recommendation No. 3/A/2010, 11 Feb- ruary, addressed to the Mayor of Sesimbra. It relates to the fees of conservation and sewage treatment charged by the Rights of consumers city council, for the period prior to the availability to users of the wastewater public system.10 Rights of consumers The Recommendation was partially accepted. In fact, 2009 2010 the suggestions for the adoption in future of the procedure 80 70 68 whereby the city council is prevented from charging any 60 56 56 50 fees in such cases, were welcomed. However, the city coun- 40 43 34 36 37 35 30 31 cil has not accepted to refund the amounts unduly charged 20 17 11 14 14 11 10 8 9 12 in the past. 10 0 0 3 The assessment and collection of taxes by local authori- at W er st Po ct ric ty i s Ga ne er t bo ok m Tra ep un ns ho ica po tio rt n and ne In io n ro ut ties is a matter that is being the subject of increasingly Ele t ct Te es fa l To ur tis M i sm number of complaints11, and therefore interventions in this isc el Sa la ne ou s m co area have naturally increased over the year. Among them, and in addition to the already referred Recommendation, it is worthy of note the study carried out on the time-barred As is evident from the above graph, transport and com- debts to local autorities, regarding fees charged for water munication routes were the matters that caused more cases. supply, collection and wastewater treatment services and The most recurring issues were the problems arising from the new ticketing scheme of the collective passenger trans- 9 http://www.provedor-jus.pt/restrito/rec_ficheiros/Oficio_SEAF_PEC_30122010. pdf port and the way in which it was implemented the decision 10 http://www.provedor-jus.pt/recomendarvore_sum.php?refPasta=76 11 As is evident from the comparison chart «Rights of taxpayers 2009/2010», this was one of the few sub-issues of Taxation that, in 2010 registered more com- plaints than in 2009. 12 http://www.provedor-jus.pt/restrito/rec_ficheiros/PAR_14102010.pdf 48 to charge tolls on the ancient «routes without cost to the prior acceptance by the landlord of liability for the payment user» (SCUT). of debts arising from those contracts or, on another level of As regards the first of these two issues, it was even issued, the same problem, the requirement from both the lanlord and still during 2010 accepted, recommendation addressed and the tenant of a dwelling to pay the debts of previous to the TIP – Transportes Intermodais do Porto, ACE13, to occupiers of the place as a condition for concluding a new ensure the recognition of a 2-year guarantee period for all14 contract. «Andante» cards. Following the intervention of the Ombuds- All interventions made in 2010 with the various tar- man, this solution was previously adopted in relation to «Lis- geted entities in the complaints of this nature17 enabled boa Viva» cards.15 to overcome the problem, which in some cases involved Without the need of formal recommendation, good coop- the amendment of the rules of municipal regulations that eration was still obtained from the TIP - Transportes Inter- unduly allowed such a practice. modais do Porto, ACE in order to solve problem revealed In 2010, having solved, it was possible to close two cases, by complaint to the Ombudsman, realizing the impossibility under which were found serious irregularities in the invoic- to perform the loading of travel passes16 with social signa- ing of water in the municipality of Santiago do Cacém as ture at ATM. During the case’s inquiry and in response to the well as the collection of fees related to its consumption in Ombudsman, that entity reported it had entered in nego- the city of Reguengos de Monsaraz. tiations with SIBS [operator of payment systems], to allow The settelement of these cases had the good co-operation cards with social tariff to be charged at ATM. of the targeted entities and is of particular relevance insofar As for toll collection in the former SCUT, 11 cases were as the decision to recognize the reason behind the Com- opened in the last quarter of the year, whose complaints plainants in these cases was accompanied by the extension, prompted the sending of a request for clarification to the to all citizens from each of those counties, of the corrective Ministry of Public Works, Transport and Communications in measures of mistakes (i.e., in both cases the amounts paid order to assess the need / usefulness of intervention on the in excess were reimbursed to all the citizens affected by the questions most frequently addressed in these complaints. same invoicing errors subject of complaints to the Ombuds- These are the alleged disproportionate nature between the man). length of (sub)sections of motorways driven and the amount The complaints related to the electricity supply and the of toll rate charged, the difficulties experienced in the acqui- provision of telephone service reached the same levels as sition and operation of equipment needed for the electronic in previous years and the co-operation provided by EDP and collection of toll rates and also the difficulties related to the PT in its settlement continued to deserve a frankly positive practical implementation of those fees’ exemption system. note. The request for clarification was outstanding by the end of On the contrary, the conduct of inquiries before the the year. Turismo de Portugal, I.P. [Tourisme Institute] – as a rule, in Continuing on the subject of public passenger transport, cases involving complaints related to the actions of travel the Ombudsman opened an own-initiative case in order agencies and other tour operators – is still excessively to intervene in the process of revising the penalty system lengthy. In fact, the requested clarification arises only after applicable to collective passenger transport infringements. implementation of various reminder arrangements and not This is so because various recurring cases examined by the always the depth of the responses is proportional to the Ombudsman showed a marked disproportionate nature waiting time. between the amount of fines and the severity of the infringements or a manifest injustice arising from the lack of possibility of the defendant to present a defense for having, meanwhile, paid the fine. The case was still in the inquiry phase by the end of the year. As in the previous year, the problems with the public water supply system and billing thereof gave rise to a sig- nificant number of cases (43). They also gave rise to back- ground interventions on recurring themes, namely the deci- sion by some providers of this essential public service to condition the water supply contracts with the tenants to the 13 http://www.provedor-jus.pt/recomendarvore_sum.php?refPasta=103 14 New and respective replacement cards. 15 See page 48 of the Report 2009. 16 Once again, the «Andante» cards in use at the Porto’s collective passenger trans- port were at stake. 17 Municipalities of Óbidos and Mora, Águas do Porto, E.E.M., Águas de Gaia, E. E.M. 49  Rights of economic and financial operators Other issues Citizens continue to lodge complaints with the Ombuds- man on a frequent basis, regarding civil liability of the state 2009 2010 and other public or utility entities. 180 166 160 Notwithstanding the difficulties in evidence gathering of 140 120 105 disputed facts that often are felt, it should be noted that 100 80 some suggestions directed to those entities were well 60 40 received. This included the recovery of damages from traffic 18 22 22 16 20 0 11 7 8 4 12 7 accidents (namely, verified evidence of signaling deficien- du stry e ad Tr lm ket su ra nc e eo u s cies of roads in a poor state of conservation or subject to In ar O ella works), tree falling and also loss of registered correspond- g tiv th iti re n in ita In es ec M nk Ca /p on ro om isc Ba p fe i ence or luggage. ss c io ns ac Particular attention has been paid in 2010 to the manage- ment, allocation and monitoring of the use of European and Despite the decrease in the number of complaints related national funds, in a very specific way – in the last quarter to the banking activity (on charges, bank cards, deposits, of the year began the preparation and implementation of transfers), this remains the most targeted subject of com- several inspections visits to job centres to ascertain on the plaints that make up the sub-group in question. It should spot situations that, for some years, had been brought to be noted that the 105 cases revealed by the above graph the attention of the Ombudsman. This related to support have as targets Caixa Geral de Depósitos, S.A. and Banco projects for the creation of jobs, as well as monitoring and de Portugal. Indeed, the private nature of the vast majority control of the implementation actions of such projects. 19 of credit institutions operating in the market places them outside the scope of intervention of the Ombudsman. That is why complaints against their actions do not generate as Summary of some interventions of the the Ombudsman a rule, inquiries. A similar situation occurs in the insurance and capital mar- kets, where the inquiries takes place mainly with the regu- Case R-1148/10 lators from each of these sectors, the Instituto de Seguros Entity addressed: Municipal Services of Loures de Portugal (ISP) [Insurance and Pension Funds Supervisory Subject: Consumer. Suspension of public water supply. Authority] and the Comissão do Mercado de Valores Mobil- iários (CMVM) [Securities Market Commission], respectively. It is fair to point out that in both cases good cooperation Summary: was obtained – excellent, even in the case of CMVM, both as In February 2010, the Ombudsman received a complaint regards speed in the provision of clarification, both in rigour against the municipal services of Loures («MSL»), which, for and depth of its contents. about 20 days ago, had suspended the public water supply In the chapter on financial affairs has been made rec- to the Complainant, for late payment of an invoice. ommendation on the re-privatization process of the BPN, According to the complaint, the required value respected, suggesting to the Minister of Finance to take measures to almost totally, to consumption made between 12/04/2006 ensure that the operation included a capital reserve on and 18/09/2008, being this accumulation exclusively attrib- behalf of small investors, meeting the requirements of the utable to the managing entity, who was required to meter Framework Privatization Law. 18 reading (placed in an accessible position to the reader) at In late 2010, once the tender procedure had no response a maximum interval of four months and make the corre- at all, the case was closed. In fact, there was no further need sponding billing adjustments after each reading cycle. Oth- to proceed with the Recommendation formulated. erwise, it forfeits the right to receive the price difference, in terms of paragraph 2 of Article 10 of Law 23/96, 26.07. Given the nature of the problem posed, the case was clas- sified as urgent, in order to quickly clarify the situation and, where appropriate, to the reestablishment of the essential public service. Not having informal contacts, promoted in the days immediately afterwards, led to a due co-operation 18 Full text of the Recommendation available at: http://www.provedor-jus.pt/ of the targeted entity, a visit was made to MSL premises and recomendafich_result.php?ID_recomendacoes=463&&documento=Recomenda ção nº 8/B/2010 19 See Chapter Cases and Ombudsman own-iniciative inspections – Proc. P-13/10. 50 to the site of consumption, in order to collect the evidence The bones were placed in the Municipal Ossuary of Carnide and testimony considered essential for the inquiry. Cemetery, the Complainant chose the mode of occupation of This inquiry confirmed that the meter, placed on the 5 years, and for that purpose he paid the fee for that period. outer wall of the user’s property, had a glass that allowed Upon renewal of the contract, and in terms of calculating the meter reader to collect the registration of consumption. the time, the Complainant learned that the understanding of Hence, MSL concluded by the undue interruption of the pub- the Lisbon Municipal Council (CML) was that the start-date lic service and restored it immediately. and the end-date always corresponded to January 1 and December 31 respectively, regardless the day and month in which it was charged, and/or the date on which the tax Case R-3650/10 act occurred. Entity addressed: Direcção-Geral dos Impostos (General Tax According to this interpretation, the contract with the Directorate). Complainant ended on 31 December 2008. In turn, the Com- Subject: Taxation. Fiscal enforcement required to the Director plainant was of the opinion that in calculating the time the of a company. rules laid down in the Civil Code (CC) should be applied, end- ing therefore the contract on 22 September 2009. The Ombudsman has addressed the CML, arguing that the Summary: interpretation it was making was neither in line with the Fee The Complainant had been a managing partner of a com- Chart nor the CC. Also, there is no real consideration for the pany inactive for several years. Several fiscal enforcement payment of the fee when there was no coincidence between cases against the company were pending, for debts of cor- the period of the contract and the calendar year(s). This could porate income tax (assessed by tax authorities) and fines, lead it to degenerate from fee into tax, the last being within from years prior to 2000. the competence of legislative powers of Parliament. In the absence of corporate assets, the liability was trans- The CML has undertaken the arguments made by the ferred to the managing partner, as subsidiary liable, hav- Ombudsman and upheld the claim of the Complainant. As a ing the tax authorities seized him part of the salary. Also, result of this intervention, the understanding adopted by the taking into account his debt situation, tax authorities have targeted entity may in future be able to benefit more citi- cancelled his tax benefits and issued additional assessments zens. Finally, according to the information provided by the of personal income tax. CML, the heeded interpretation is incorporated in the new On the basis of the information contained in the com- Regulation of Fees, Prices and Other Receipts. plaint, the head of the tax office of ​​the company’s head office was asked to report on the dates of the enforced tax assess- ments as well as the dates of their notification to the manag- Case R-4845/09 ing partner. Also, he was asked to consider that the statute Entity addressed: Postal Services of Portugal (CTT); of limitations has expired if the notifications were shipped Inspectorate-General of Finances; Directorate of Treasury. more than five years after the dates of the assessments, pur- Subject: European and national funds. Social mobility suant to paragraph 3 of Article 48, of the General Tax Law. allowance. The Ombudsman’s intervention allowed the termination of the fiscal enforcements, since the statute of limitations has expired, and the situation prior to the liability transfer Summary: restored. This included the immediate termination of the The presentation of the complaint was motivated by the attachment of his salary, the repayment of seized amounts fact that the complainant, as a resident in Madeira and thus and cancellation of the additional assessments of personal receiving the mobility allowance for return flights between income tax, which were originated by the cancellation of this archipelago and the mainland, has seen the granting and tax benefits. payment of the allowance refused. In fact, CTT considered that the deadline was exceeded by the time it was requested. With the analysis and preliminary inquiries on the issue, Case R-4656/09 it was found that the computing platform used by CTT in Entity addressed: Lisbon City Council. this matter – created under the technical instructions of the Subject: Taxation. Occupancy fee in municipal ossuary. Directorate of Treasury – not only started the calculation of the time on the day of the trip to subsidise (when it should be from the day following this event), but also did not trans- Summary: fer the expiry of the period to a working day, when the expi- The Complainant requested the exhumation of the ration ocurred on a non-working day. This was in breach of remains of his mother, which took place on 22 March 2004. the general rules on deadlines. 51  The ascertainment of that computing platform mistakes/ Case R-58/10 weaknesses, has led the Ombudsman to convene a third Addressed entity: General Directorate of Tax. entity – the Inspectorate-General of Finance, responsible for Subject: Taxation. IMI. Tax benefits. Low-asset value property ensuring compliance with the legislation concerned. belonging to a taxable person of low icome. After several inquiries with the three entities involved, in a concerted effort, the case was concluded as follows: Summary: - The acknowledgement (and payment) of the claimed A taxpayer has requested, in 2010, the Ombudsman’s allowance; intervention with the tax authorities by not having recog- - The commitment to give the same treatment to all cases nized exemption from Municipal Property Tax (IMI) for the in the meantime verified; and years 2005 and 2006, under the provisions of Article 48 of - The new computing platform, to become operational in the Statute of Tax Benefits, on the grounds of late submis- early 2011. sion of the request. The rule in question requires that requests for exemption should be submitted by 30 June of the year in which the Case R-3557/10 benefit should start.Hence, although meeting the require- Entity addressed: Postal Services of Portugal (CTT) ments for the benefit to be taken into account, property Subject: Consumer. Priority service right at post offices. owners, which made the acqusitions after that date, as was the case of the Complainant, were harmed. By order of 15.12.2008, the Deputy Director General of Summary: Taxes for the Wealth Area has recognized a gap and set the A complaint was lodged with the Ombudsman whereby a understanding that in those situations, the deadline to apply CTT user complained that a particular post office refused to for the benefit should be 60 days from the date of acquisition acknowledge the right of priority service to a lady carrying of the building. The Ombudsman informed the competent a newborn. Tax Office of that position. So this entity has cancelled the Heard by the Ombudsman, CTT started to deny any obliga- IMI assessments for the years 2005 and 2006, promoted the tion to comply with the provisions of Decree-Law 135/99, refund of the amounts collected, meanwhile, in the scope of of 22.04, which enshrines the right of priority attendance the fiscal enforcements as well as their termination. for certain individuals, including «elderly, patients, preg- nant women, disabled people and caregivers of infants». CTT argued that the scope of the rule is restricted to central, regional and local government services and public institutes, while admitting that, when so requested by these people and without creating nuisances among other clients, priority treatment could be granted to people with certain physical limitations, on a case by case basis. Given the public nature of the service provided by CTT and based on the understanding that the suggested pro- cedure did not constitute a solution capable of preventing and resolving conflicts between its users, the Ombudsman’s office has insisted on their being adopted internal rules which can impose on local post services genuine respect for the principles of the priority service. As a result of this intervention, CTT approved the imple- mentation of internal rules and signage to allow the enforce- ment of the priority service at post offices. 52 2.2.3. Social Rights Concerning social rights complaints, the intervention of The breakdown of Social Security-related complaints is the Ombudsman focused on several subjects related to the virtually unchanged in comparison to 2009, maintaining different social security regimes, social housing and profes- practically the same relative weight of each sub-issue. It sional training. is nonetheless important to emphasize a slight increase of In 2010 continued the trend of a large number of cases complaints in relation to unemployment benefits and citi- in these issues (1004), similar to what has been happening zenship social protection benefits (in particular social action, over the last years. insertion social income and family protection). There was The high number of complaints received is mainly due to also an increase in the number of complaints related to the impact of legislative changes that have occurred in the social security registration, contributions and debts at the recent years, either within the social security schemes or in social security system. the system of social protection scheme for State employ- It is important to note that a large proportion of com- ees. This impact occurred namely with regard to the access plaints takes an emerging social nature, thus requiring, a conditions and calculations of pensions and other social fortiori, swift handling in order to ensure that the desired benefits, but also in the organization and operation of the useful effect and the social right in question is duly and managing services. promptly guaranteed. In effect, in relation to complaints on Within 1004 new cases, 805 were completed in the same access to unemployment, parental or sickness benefits, to year, which means that 80% of total cases had an investiga- family allowance, to insertion social income, to the social tion in less than a year, being a good indicator of the speed complement for senior citizens, old age or invalidity pen- in processing them. This fact clearly demonstrates the effort sions (in particular, social pensions) or the situation of elderly made in order to get closer the moment when the citizen people, it is easy to understand that this involves situations requests the intervention of the Ombudsman and the time of social emergency that are often linked to the immediate of approximate final decision about his claim. economic subsistence of the complainants and respective The following table provides a breakdown of the main family households. As a result, emphasis is placed, whenever issues for which complaints were presented in 2010: possible, on drawing up cases informally - through recourse NO. OF ISSUES CASES OPENED 1. SOCIAL SECURITY 948 1.2. CIVIL SERVANTS PENSION SCHEME 236 1.1. SOCIAL SECURITY SYSTEM 698 1.2.1. Retirement due to old age 144 1.1.1. Old age pension 133 1.2.2. Retirement due to invalidity 20 1.1.2. Invalidity pension 34 1.2.3. Death benefits 12 1.1.3. Death benefits 16 1.2.4. Other pensions (price of blood, relevant services, 12 etc.) 1.1.4. Unemployment benefits 101 1.2.5. Registration, quotas and counting of time of 1.1.5. Parental benefits 21 37 service 1.1.6. Sickness benefits 47 1.2.6. Several affairs 11 1.1.7. Family Benefits (e.g. family allowance) 50 1.3. PROFESSIONAL ILLNESSES 8 1.1.8. Insertion social income and social action 93 1.4. SOCIAL SECURITY OTHER ISSUES 6 1.1.9. Other benefits 23 2. SOCIAL HOUSING 18 1.1.10. Social establishments 33 3. PROFESSIONAL TRAINING 17 1.1.11. Social security registration, contributions 126 5. SEVERAL 21 and debts 1.1.12. Several affairs 21 TOTAL 1004 53  to rapid means of consulting the entities addressed (e.g. counting the period imposed registered leave, for the pur- telephone contact, fax and e-mail). Informal drawing up of pose of retirement or pension1- come to be accepted and cases avoids the inherent delays associated to exchanging the Ombudsman has been informed that was under way correspondence, which is often unfruitful. Or, in the event the legislative process to amend; (b) already with regard to that formal consultation of the Administration is justified, legislative recommendation 4/B/2007, adressed to the Sec- or it is necessary to formulate a suggestion, observation or retary of State Adjunct and of the Budget - which focused on recommendation, prior informal contacts make it possible separate issues:the termination of the award of the Lifetime to retrieve suitable elements in order for the Ombudsman Allowance (under Decree- Law 134/79, 18th May) by the to take a position. Civil Servants Pension Office; and the relevance of length of Many of the complainants’ objectives were satisfied in service in the former Overseas Public Administration under this manner. In other cases, after concluding that there were the unified pension by amending the Decree-Law 361/98, insufficient grounds for the complaint, informal contacts 18th September - it was found that it has not obtained a make it possible to ensure that clarification to the complain- definitive answer yet. ant is swift and well-founded, thereby ensuring a pacific solution, in the majority of situations, for the relationship between citizens (complainants) and the Administration. Social Security Explanation is also a key characteristic of this Department’s intervention. When confronted with the diversity and com- Regarding the subject of complaints about Social Secu- plexity of the set of norms associated to the attribution of rity (in a broad sense2), the Ombudsman’s intervention social benefits and the administrative procedures of services, focused in particular on: (a) lack of merit of acts refusing, many citizens (above all those with a lower level of educa- terminating or suspending pensions and other benefits; tion) feel unprotected, mistrustful and angered, because (b) errors in social security earnings records and insurance they don’t understand the reason for rejection or termina- careers relevant for access and calculation of pensions and tion of a specific social benefit or the refusal of any other other benefits; (c) inaccuracies and delays in the granting form of social support. In these cases, after drawing up the of benefits; (d) lack of decision, insufficient or inadequate case and checking the regularity and legality of the decision information provided to stakeholders; (e) delays from the of the services in question, the Ombudsman’s Office takes regional Disability Determination Services in the treatment special care to explain the grounds underlying the decision of disability claims; (f) inaccurate information provided by and the applicable legal regime or, when appropriate, will the social security information system, with consequences forward the complainant towards any other suitable social on areas such as allocation of benefits, collection of social response for this issue. security taxes or debt notifications; (g) improper debt On the other hand, drawing up the cases cannot be enforcement actions; (h) delays in the repayment of over- restricted to providing a clarification and resolution of the paid social security taxes; (i) untimely or incorrect claims specific and individual situation of the complainant. When for refunds of benefits paid wrongfully by the services; (j) appropriate, the Administration is contacted in order to lack of coordination between the several services within ensure that an identical procedure is adopted in other similar the structure of the Institute of Social Security, IP; (k) lack situations to that of the complainant (e.g. adoption of tech- of coordination between the National Pensions Centre and nical guidelines by the Institute of Social Security, IP in order the Civil Servants Pension Office in the attribution of the to harmonise and standardise procedures in the respective so called «unified pensions» causing delays in the grant- district centres). In other cases, the Ombudsman may con- ing of such pensions; (l) delays in the analysis of claims sider that an alteration to the law is just and appropriate and under the Portuguese Armed Forces Compensation Scheme; will suggest or recommend to the Government the adoption (m) operating conditions of nursing homes for the elderly of legislative measures to this effect, in order to achieve (private as well as public-private partnerships «IPSS»). better protection of specific social rights. In effect, by virtue For a better overview of the Ombudsman’s action in this vast of the wide array of complaints submitted, the Ombudsman field of Social Security, we will point out some of the inter- achieves an advantageous viewpoint, which enables him to ventions made in this area: pursue an activity that goes far beyond the simple treatment Given the general concern about the rights of institutional- of individual and specific cases, and his intervention may fos- ized elderly, the Ombudsman undertook on its own initiative ter fine-tuning of the law or administrative procedures. an investigation concerning the quality of service provided Regarding the recommendations of the Ombudsman that, by social establishments for the elderly (nursing homes), after reiteration, were awaiting final answers from the gov- ernment, it is important to mention the following: (a) the 1 www.provedor-jus.pt/restrito/rec_ficheiros/R565_08.pdf legislative recommendation 8/B/2008 addressed to the 2 Including complaints about benefits granted by the Institute of Social Security («Instituto da Segurança Social, IP») and benefits granted by the Civil Servants Minister of National Defence – concerning the problem of Pension Office («Caixa Geral de Aposentações»). 54 including the corresponding public inspection services inte- ongoing claims in the various district centres of the Institute grating the Institute of Social Security, IP3. Considering the of Social Security, IP, ensuring uniform legal procedures and need for preservation of the dignity of institutionalised decision criteria to be adopted by all of them.7 This issue elderly persons and considering in addition that the public was also echoed in the press.8 services are both service providers (owning their own equip- Also noteworthy is the acceptance of a suggestion made by the ment managed directly or indirectly) and supervisory bodies Ombudsman last year, as part of an investigation filed on his own in this field, their activity is deemed to serve as an example, initiative (P.04/09) listed in the previous report to Parliament9, since the public entities should only require from individu- in order to ensure social protection for unemployed workers als what they themselves are able to fulfil. Therefore, the who become ill during the period allowed for requesting first part of the inspection focused on public nursing homes the unemployment benefit (which would not benefit either (managed directly by the State) and on the so-called inte- from the sickness benefit or the unemployment allowance).10 grated establishments (nursing homes managed by Private Finally, it is important to underline that the Institute of Social Social Solidarity Institutions, true public-private partner- Security, IP accepted various suggestions on harmonization ships) and the second part included the control of the activ- and standardization of procedures followed by its depart- ity of the Social Security supervisory bodies responsible for ments (district centres), by issuing technical guidelines the surveillance of private and public-private nursing homes. related to situations and cases presented by the Ombudsman. Moreover, the Ombudsman has also addressed with particu- lar attention and concern the delay from the Government (in particular from the Secretary of State for Social Security) Social Housing in promoting the adoption of legislative measures towards the regulation of the activity of private childminders, the The complaints about social housing were based mainly regulation of family protection in the field of disability and on situations of claims for housing presented by households dependence and the changes to the system of the special in an alleged situation of economic and social vulnerabil- education benefit. The Ombudsman is awaiting definitive ity: delays from the local community entities in assessing answers to the suggestions made in due time on these issues applications for allocation of social housing units or in reject- of major importance, given the rights and interests at stake. ing some of such requests. Whereas the allocation of social In the case of childminders, the intervention focused rather housing is constrained by the availability of such rental units on the absence of legislation governing the licensing of the and by the evaluation and ranking of priorities (following activity of these so called «private nannies» who look after the criteria established in the applicable regulations), in children (up to 5) in their own homes in return for a pay- these cases, the Ombudsman can only aim to ensure that ment, in order to assure the effective monitoring of their the entities concerned evaluate the demands properly and business. The Ombudsman has highlighted the serious- grade them correctly according to the priority and severity ness and the risks inherent to such a legislative loophole, grade of the personal situations involved. There were some a circumstance all the more disturbing as it concerns the successful interventions, especially in cases of households safeguarding of the physical and moral welfare of chil- with children suffering from serious chronic illnesses. In dren.4 This intervention had special resonance in the press.5 these situations, proper housing is not just a matter of com- In relation to family protection in the field of disability fort, but an essential element to their health and survival. and dependence, the Ombudsman urged the Secretary of In the social housing domain, we would like to highlight State for Social Security to legislate according to the legisla- a best practice from the Municipality of Lisbon consisting tive suggestions issued early in 2006, which were consid- of the publication on its website of the lists containing the ered pertinent at that time.6 provisional classification of applications for social housing For the special education benefit scheme, the Ombuds- received each month, giving greater transparency in the man suggested, on the one hand, more transparency and allocation of municipal houses. swiftness in the allocation of the allowance for attending special education establishments, proceeding to urgent review of legislation governing such social benefit, and on the other hand, while this review has not been carried out, the Ombudsman defended the need to clarify the current system of allocation, to enable immediate resolution of the 7 www.provedor-jus.pt/restrito/rec_ficheiros/Oficio_R1834_10.pdf 8 www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=389 and www.provedor-jus.pt/restrito/recortes_ficheiros/DNeducacaEspecial.pdf 3 See Chapter «Actions and Investigations from the Ombudsman’s initiative» – P-7/10. 9 www.provedor-jus.pt/restrito/pub_ficheiros/Relatorio_ar_2009. 4 www.provedor-us.pt/Imprensa/noticiadetalhe.php?ID_noticias=295 pdf and www.provedor-jus.pt/restrito/rec_ficheiros/P04_09.pdf 5 www.provedor-jus.pt/restrito/recortes_ficheiros/JN_20100809.pdf 10 www.provedor-jus.pt/restrito/recortes_ficheiros/JNegocios27092010.pdf 6 www.provedor-jus.pt/restrito/rec_ficheiros/R2155_09.pdf and www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=332 55  Professional Training Tourism of Portugal was, in fact, a labour contract, but decided that this contract was void. Nevertheless, in Although the number of complaints received on this accordance with the labour law (Article 115, paragraph subject is not significant, it is important to point out the 1, Labour Code), the Court also considered that the Ombudsman intervention regarding several complaints sub- mentioned contract was legally effective during the scribed by trainers, concerning the excessive delays of the time it was held, and, therefore, produced all its legal Employment and Professional Training Institute (IEFP), both effects, during that period. on issuing and renewing the Certificates of Pedagogical Apti- 3. Accordingly, the parties were required to fully comply tude (CAP). In view of those complaints, the Ombudsman with all the obligations that result from the existence of addressed IEFP an inquiry, asking for detailed information a labour contract, maxime, the registration of workers on the reported delays, concerning all Regional Delegations in the social security and the payment of contributions of IEFP. Having analysed the requested elements, it was con- arising therefrom. However, the Tourism of Portugal firmed the existence of significant delays, in particular on refused to proceed that way. the North Regional Delegation of the Institute. 4. The Ombudsman reported the fact to Social Security Considering that in the case of renewals, such delays jeop- Institute (ISS, I.P.), poiting out the necessity of demand- ardize not only the continuity of the trainers activity, but also ing to the Tourism of Portugal for payment of the con- the planning made by the training bodies and the accom- tributions corresponding to salaries earned by employ- plishment of training actions already scheduled – causing ees during those periods. obvious damages also for the learners - the Ombudsman 5. The Social Security Institute (ISS,I.P.),accepted the called the attention of the IEFP’s Board of Directors, to the Ombudsman’s understanding about the subject, and, necessity of taking urgent measures to tackle the problem, not only, resolved the reported cases, but also issued- especially regarding the CAP renewals.As a result of the guidelines determining that, in the future, similar situ- Ombudsman intervention, a new law was adopted (Regu- ations should automatically be legalized. lation 994/2010, of 29th September), ending up with the CAP’s periodical renewal obligation, which ceased to have an expiration date. Case R-2429/09 Entity addressed: Ministry of Labour and Social Security Subject: Reflection of holiday and Christmas bonuses in parental Summary of some interventions of the Ombudsman allowance calculation. Adoption of legislative measures. Case R-154/09 Summary: Entity addressed: Institute of Social Security, IP (ISS). 1. In a complaint addressed to the Ombudsman, about the Subject: Regularisation of registration and payment of social calculation of the parental allowance, two issues were security contributions regarding the period of work provided raised: The problem of discrimination created by the under an employment contract, which wasjudicially declared way those allowances are presently calculated, and the void. Access to unemployment benefits. question of determining the entity responsible for the payment of Christmas and holiday bonuses to workers who enjoy the parental leaves legally established. Summary: 2. Indeed, it was noted that the calculation of parental 1. The Ombudsman received a complaint signed by a allowance determined by law results in an unfounded former employee of the Tourism of Portugal Institute, discrimination with regard to the allowance amount which challenged the refusal of that Institute to carry paid to beneficiaries, since that amount varies accord- out his registration in the social security, during the ing to the moment of the year when the birth occurs, period in which he served, and the consequent pay- and, therefore, may include, or not, the holiday and ment of social security contributions concerning such Christmas bonuses. period. That refusal prevented the claimant and other 3. Moreover, it was also noted, that the problem of parental former employees in identical situation, of accessing to allowance calculation, above mentioned, has a close con- unemployment benefits. nection with the issue of determining the employer lia- In fact, between 2002 and 2008, the claimant and sev- bility for paying Christmas and holiday bonuses to work- eral other colleagues, worked for the Tourism of Portu- ers who enjoy the parenting leaves legally established. gal, as self-employed workers (Independent Workers). 4. The Ombudsman addressed the Minister of Labour 2. The Labour Court of Lisbon considered that the rela- and Social Security on those matters, inviting him to tionship established between those workers and the adopt appropriate measures to clarify the rules under 56  consideration, aiming a standardization and equity of themselves unrewarded by the retirement pension to treatment given to these situations. The Ombudsman which, after all, they are entitled due to their old age. presently awaits the Minister position on the matter. 6. Therefore, the Ombudsman suggested to the ISS that the right to the retirement (old-age) pension was granted to interested persons with effect as of the date Case R-3183/09 on which they had completed 65 years of age, thereby Entity addressed: Institute of Social Security, IP (ISS) avoiding the mentioned gap of lack of social protec- Subject: Error of the ISS services in the allocation and tion. It was also requested that the ISS identifies and maintenance of benefits, refund requests and fulfilment of proceeds to correct all similar situations. Furthermore it reporting obligations to beneficiaries, generating situations was suggested to modify the computer software used of lack of social protection. to manage the allocation of benefits, so that the ben- eficiaries in this type of situation (with pending unem- ployment benefits), could be identified in a timely Summary: manner and duly notified for timely submission of their 1. Several social security recipients filed complaints at the application for the retirement (old-age) pension. The Ombudsman challenging the conduct of the ISS ser- suggestions made by the Ombudsman have been fully vices (district centers and the National Centre for Pen- complied with. sions), in respect of the service requests for refunding of unemployment benefits received after completing 65 years of age by persons who were not allocated a Cases R-5392/09 and R-1680/10 retirement pension with effect as of the date on which Entity addressed: Civil Servants Pension Office such an age was completed. (CGA – Caixa Geral de Aposentações) 2. According to the allocation rules of unemployment ben- Subject: Citizens with disabilities. Allowance for attending a efits – Article 55, Paragraph 1, point c) of Decree-Law third person. 220/2006 of 3rd November – the right to perceiving the benefits of unemployment ceases where the benefi- ciaries reach legal age for access to pension age (65 Summary: years) and have also completed the qualifying period 1. The petitioners are mothers of youth with disabilities for the same assignment. – and allegedly in a situation of dependency which 3. In the cases of the complaints, it was found that, requires continuous monitoring by a third person – who according to the date on which the right to the unem- have complained to the Ombudsman that the CGA had ployment benefits was granted to the beneficiar- dismissed their applications of allowance for attending ies, they would complete 65 years of age during the a third person, as provided for in the Decree-Law 133- period in which they would receive said subsidy. How- B/97, of 30th May. The CGA grounded such decisions ever, from the contacts made with the various district on the advice of its Chief Medical Officer who under- centers of the ISS, it was concluded that the national stood that the cases did not evidence a situation of computer software of the ISS was not programmed to dependency. identify and prevent cases such as those claimed, ie, 2. The allowance for attending a third person is intended to unemployment benefits were always granted without compensate for the additional family expenses result- limitation, whether, during that period, the beneficiary ing from dependence of the descendants (or equiva- would be able to complete the age of access to the lent persons) of the beneficiaries, requiring constant retirement pension. monitoring by a third person. CGA is the institution in 4. Consequently, the beneficiaries would only request charge of family benefits management for beneficiar- their retirement pension many months after reach- ies who are pensioners, where the retired persons or ing the legal age to do so, convinced that they should pensioners are under the scope of this institution [Arti- exhaust their period of unemployment benefit, as noti- cle 46, paragraph 2(b)]. fied and paid by the district centers of the ISS. 3. The allocation of this social benefit should depend, 5. After the detection of these situations, the ISS services inter alia, of a certification performed by multidiscipli- demanded the refund of the unemployment benefits nary medical evaluation teams, which however were paid beyond the date on which the beneficiaries have never put in place. In the absence of such teams the completed 65 years of age. This would entail an unrea- certification rests with a specialist in the concerned sonable and unjust gap of lack of social protection for disability or, failing that, the medical doctor assistant the interested persons, since they would not only lose [Article 62 paragraph (b)]. the unemployment benefits for that period but also see 4. The CGA, as managing entity of the allowance, has no 57  legal powers through its Chief Medical Officer, to com- 4. Additionally, welcoming also a suggestion of the ment on the evidence of dependency. Ombudsman, IEFP is revising the Regulatory Circular 5. Accordingly, the Ombudsman intervened with the CGA 17/2003, of 21st March, relating to the non-subsidized in order not only to undertake the review of the specific unemployed. Meanwhile it was adopted the Regula- cases claimed by the petitioners, but also to change the tory Circular 13/2010, of 30th July on the control of procedures of CGA in dealing with similar cases, since candidates not receiving unemployment benefits by the decisions taken on the above referred ground were post, which partly reflects the suggestions made by the illegal. The CGA complied with the position taken by Ombudsman in this regard. the Ombudsman. 5. Another issue concerning the relationship of users with the IEFP employment centres that has been the sub- ject of complaints to the Ombudsman, is the advance Cases R-5793/08, R-2878/08 and R-2209/10 time of sending summonses to users often not fulfill- Entity addressed: Institute of Employment and Professional ing what is provided in Article 15, paragraph 3, of the Training (IEFP) Decree-Law 135/99, of 22nd April which states that Subject: «the notice shall set a date for an appearance with a I - The rules applicable to the unemployed and not subsidized minimum period of eight working days». with regard to their registration, cancellation, suspension and 6. The question is of paramount importance given that the reinstatement in the employment centres. Amendment of lack of appearance of an unemployed person following regulatory circulars. a notice issued by the centre results in the cancellation II - The advance time of sending summonses by employment of his registration at that centre and consequently the centres to their users. The termination of unemployment termination of the unemployment benefits. benefits. The compliance of Article 15, paragraph 3, of the 7. The Ombudsman stressed to the IEFP that the merits Decree-Law 135/99 of 22nd April by the employment centres. of the legal provision establishing said term was not in question. It was noted that if the application of this rule was indeed an obstacle to the performance of services, Summary: then the IEFP should propose to its supervision Minis- 1. In recent years the Ombudsman has been tackling with try the adoption of legislative measures to amend the complaints filed by users of the employment centres term of the summonses. Until then, however, employ- of the IEFP in which the issue raised is the manner ment centres could not fail to be bound by the law, and how users receive information concerning the registra- should meet the established deadline of eight working tion, cancellation, suspension and reinstatement of the days. unemployed in their respective employment centres, 8. The IEFP accepted the position of the Ombudsman and namely the unemployed who are not receiving unem- reported that instructions had been given to all employ- ployment benefits. ment centres in order that the eight days deadline, as 2. The question is relevant not only for the unemployed established in Article 15, paragraph 3, of the Decree- who receive a subsidy, since a cancellation results in Law 135/99, of 22nd April, is fully complied with. the termination of the unemployment benefits that they receive, but also for the non-subsidized unem- ployed, because their registration in the employment centres generate some benefits, albeit indirectly, for example when dealing with situations of long-term unemployment (a situation which is always assessed through proof of registration at the centre for a speci- fied period). 3. After the intervention of the Ombudsman, the IEFP revised its Regulatory Circular 10/2006, of 29th Decem- ber, aiming in particular to elucidate users with regard to their rights and duties in relation to employment centres. Furthermore the IEFP produced a document for information purposes to be delivered to users at the time when an application for unemployment benefits is submitted. Moreover the information content in the websites of IEFP and ISS was updated as well as the «Practical Guide». 58 2.2.4. Worker’s Rights During the year of 2010, 718 cases were opened concern- A common problem, during the year of 2010, has been ing workers rights, which means a non significant increase, the possibility of an academic degree in a specific area to compared to the previous year. Most of them (84,3%) be accepted as an admission requirement in a competition were based on complaints related to public employment process. The requirement of academic qualifications is, by matters. Recruitment and career matters (21% and 18%, Law 12-A/2008 (LVCR) restricted to the ownership of an aca- respectively) were prevalent, in spite of the verification of demic degree, which specific area can only be mentioned in a tendency to a slight increase of the number of complaints the advertising notice of the competition when this proves related to remuneration and performance appraisal system to be absolutely indispensible to the exercise of the activity (which became closely connected). Matters concerned pri- that characterizes the job. Furthermore, the respect for the vate employment relations, while matters of the adminis- principle of free circulation of workers (Article 45 of Treaty trative organization represented 10,2% ,most of which may on the Functioning of the European Union) obliges to the be generically aggregated under the subject «omission of comparability of degrees and prevents the fulfillment of reply/decision», understood here in as including the viola- academic requirement to be examined in the light of the tion of the duty of information or response from the Admin- designations of diplomas awarded by the school system of istration to private individuals, as well as the breach of the respective Member States. Therefore, areas have to follow duty to make a decision (in the administrative procedure). the international and European parameters, as they are fixed Recruitment complaints show, as in previous years, no in the Ordinance 256/2005, of 16th March, that approves the relevant improvement in the way Public Administration actualization of National Classification for Areas of Training deals with competition procedures, often going against the and Education. grain of case-law that has been built up over several years, Though academic and professional qualifications are thus revealing insufficient respect for the principles that required to work in a body or service of the Public Admin- assure the right to a fair competitive examination. istration, the narrowing of the requirement of qualifications NUMBER Regular work mobility 34 SUBJECT OF CASES Work 45 OPENED Recruitment 128 ADMINISTRATIVE ORGANIZATION 73 Collective labour relations 3 Administrative bodies 3 Remunerations 81 Omission of reply/decision 58 Job attachment 46 Others 12 Others 39 PUBLIC EMPLOYMENT RELATIONS 605 PRIVATE EMPLOYMENT RELATIONS 38 Disciplinary action 13 Labour State Administration / Work diseases 10 Work accidents and diseases 14 Work contract formation 3 Performance appraisal system 67 Work 3 Directors 10 Collective labour relations 4 Career 111 Remunerations 3 Guarantees of impartiality (incompatibilities and 3 Others 15 impediments) Equality and non-discrimination 6 OTHER BUSINESS 2 Special work mobility 5 TOTAL 718 59  to a concrete diploma, besides its non accordance with the been accepted, was addressed to the Parliament and com- spirit of the law, may easily become un instrument to reduce prehended issues underlying the Law of National Defense, or adequate the universe of candidates, thus in violation of promoting the elimination of the negative discrimination the principle of impartiality and equalization. that is incumbent on the military and is an obstacle to the Also in matters of recruitment, several complaints have pursuit of the activity of this body of the State, as guarantor been presented by candidates that were excluded on the of justice, rights and freedom of all citizen. The other two ground of lack of presentation of documents that were Recommendations are still waiting for the final decision. required by the advertising note of the completion proce- Another Recommendation has been renewed and dure. These exclusions resulted from the wrong interpre- accepted about the fundamental right of access to records tation of Article 28, paragraph 9, indent a) of Ordinance and administrative archives. 83-A/2009, of 22nd January, that regulates the procedure of A special reference is due to several positions taken in the competition for occupation of work posts in bodies or ser- context of cases opened in the wake of complaints, in sense vices of Public Administration. It is a fact that Administration that came to be accepted in subsequent legislation. Such as: still does not separate the admission requirements from the a) A special career of the Foreign and Frontiers Service was instrumental proof of their fulfillment. extinguished and its staff was integrated into another Formality problems and lack of correct information were that substantially reduced the possibilities of progres- also reported and motive of several complaints. Resulting sion in terms of salary. After examining the case, the from the law that established professional probation pro- Secretary of State of Public Administration was com- gram in Public Administration, several complaints were mended to reappraise the changeover, because it reported by excluded applicants, mostly due to insufficient seemed more appropriate the integration in a higher notification, in the course of electronic application proce- category as requested by the complainants. This correc- dure. The legislative option for electronic notifications, very tion has come to be realized in a later diploma. often realized during the night and at week end, and for very b) Several complaints have been sent to Ombudsman short terms for the applicants’ intervention, as well as lack about administrative decisions based on an interpre- of adequate support from the Administration in the mat- tation of the Legal Regime of the Contract of Employ- ter of solving informatics problems, led to significant levels ment in Public Functions, that considered unjustified of conflict in the course of these selection process. So, the absences that were motivated by the assistance of a informality and quickness that the legislator aimed at were relative to carry out medical consultations and com- compromised by the necessity of solving several problems plementary exams of diagnosis. In spite of considering and the examination of the complaints of the applicants. that a different interpretation of the Law was perfectly Another important question that gave matter to a lot acceptable, it was suggested to the Secretary of State of of complains is related to the performance appraisal sys- Public Administration a formal clarification in this area, tem. Most of complaints were based on the late fixation by a legislative amendment, which has been made. of parameters of appraisal, wrong definition of goals, and c) The issue of the application of the same or different meth- absence or insufficiency of instruments of measure. ods of selection to the candidates in a competition proce- Performance appraisal system, based on goals and results dure, as they have already or not the quality of civil serv- exists, in Portuguese Public Administration, since 2004. It ants, gave reason to several complaints from excluded has been based upon the idea of the performance appraisal candidates that considered themselves wronged by the of civil servants as part of a strategic organizational complex, selection method that was applied to them. being, both as a management tool and a way to motivate As a result of these complaints was recommended  staff. Law 66-B/2007, of 28th December, that approved the to the Secretary of State of Public Administration the new system, reinforced these principles, clearly establishing elaboration of a circular to clarify these matters. The the connection between the cycle of administration and the problem has been solved through a subsequent legisla- appraisal of services, chiefs and workers. tive amendment. In spite of all these good intentions, we can verify an d) Several cases were opened as a result of complaints of inadequate application of these principles, mainly those civil servants who were denied the possibility, either of coherency and integration, which were needed to join to return to their services of origin (hospitals that were the action of services, chiefs and workers towards the same transformed into public business entities) or to be con- objectives, due either to a lack of organizational planning sidered in a situation of special mobility after a situation or its poor achieving, that compromised the result of the of long term unpaid leave. The Secretary of State of Pub- global objectives of performance appraisal system in Public lic Administration has been alerted to the necessity of Administration. repair this injustice, which has been done trough legisla- During 2010 the Ombudsman issued three Recommenda- tive solution to regularize the situation of those workers. tions related to worker’s rights. The first one, which has not In addition, a case has been opened, by Ombudsman 60 initiative, to clarify the competences of the Authority for 2. The issue was aroused by deliberations of the Direc- the Conditions of Work to intervene with the public entities tive Counsel of ESTV that, in 2007 declared the nullity «whenever labor relations ruled by the Labor Code and its of the appointments of the complainants. After that, complementary legislation are concerned». This was due to the President of the IPV declared the nullity of these the fact that, although the supervision of violation of labor deliberations – as far as the appointments were con- standards on the part of private entities is safeguarded by cerned – but the ESTV never changed its position Law, the ACT has considered – in a non uniform way – that its towards the recognition of the complainants’ category. competence, as far as public entities were concerned, was 3. After having examined the complaint, conclusion was restricted to «monitoring the compliance with the legislation that the orders of appointment were valid, in spite on safety and health at work». As a result of this initiative, of some illegalities that were detected in the course of the ACT assumed within the scope of its competence all the the respective contest procedures to teacher coordina- labor relations established by public companies, as they are tor. However, having not the aforementioned orders of ruled by the individual employment contract scheme. appointment being judicially challenged or repealed, the As far as the cooperation of the entities concerned in the acts in question were consolidated in the legal system. instruction of the cases, during the year of 2010, there is 4. So, the President of the Directive Counsel of ESTV nothing to refer beyond the fact that, most of times, it is was alerted to the need of correction of the proceed- not done within a reasonable time to protect the rights or ings formally adopted concerning the recognition of interests of the parts. the professional category of the complainants. After Even so – and because the behavior of some entities con- several formal and informal demarches, a new order cerned aroused doubts about their understanding of the has been signed by the President of the IPV, in Janu- duty to cooperate with this body of the State- it is impor- ary of 2010, recognizing the validity of the appoint- tant to clarify that the fulfillment of the duty to cooperate ments of the complainants as teachers coordinators with the Ombudsman is measured by his mission, i.e. by the and authorizing them to have their salaries corrected objective of «assuring the justice and legality of the exercise from the moment of the first appointment. The ESTV of public power». Whenever the public entities are restricted complied with this position1. to reiterate their positions, without arguing the Ombudsman suggestions, they are not respecting their duty to cooperate. During the year of 2010 this happened, mostly, with some Case R-6259/09 services of the Ministry of Education (which is particularly Entity addressed: Secretary of State for Education serious, knowing the fact that this ministry has been cause Subject: Registration and renewal of registration in private of 29,4% of the opened cases). schools for higher education. Simple contract: subject However, it is only fair to consider the cooperation of the and powers of the public obligor. Sanction imposed on concerned entities as globally positive as it is fundamental the pedagogical director of Oficinas de S. José – Educative to the achievement of a success rate in solving processes. Association. Summary of some interventions of the Ombudsman Summary: 1. The intervention of the Ombudsman was requested concerning the legality of the sanction imposed by deci- Case R-285/09 sion of the Secretary of State for Education (6.11.2009) Entity addressed: Polytechnic Institute of Viseu and on the pedagogical director of Oficinas de S. José – Edu- Technology College of Viseu cative Association.A fine was imposed, considering that Subject: Teacher coordinator – Category. «In the 2nd quarter of 2008,the defendant, in his qual- ity of pedagogical director, refused the renewal of the registration of M…..» which he was obliged to accept Summary: it, by virtue of the application of the legal rules applied 1. A complaint has been addressed to the Ombudsman to the registration and renewal of registration on public from two professors of the Technology College of Viseu schools. (ESTV), because the validity of their orders of appoint- 2. After the analysis of the complaint and after extensive ment in the category of teachers coordinators, signed legal discussion with the entity concerned, conclusion by the President of the Polytechnic Institute of Viseu was that the punitive decision violates the principle of (IPV) in 2005, was not recognized by the ESTV. The legality by mistake in the identification of the illegal- aforementioned recognition has been denied several times and in different circumstances. 1 http://www.provedor-jus.pt/restrito/rec_ficheiros/Anotacao_28509.pdf. 61  ity. In fact, it is not possible to apply to private schools Case R-218/10 with simple contract the same legal rules applied to Entity addressed: Foreign Office the registration and renewal of registration on pub- Subject: Diplomatic career. Performance appraisal. lic schools, because simple contracts are concluded in areas not lacking in what concerns public education. Thus, they fall within the framework of the guarantee, Summary: on the part of the State, of the constitutional principle 1. Ordinance 1032/2009, of 11th September, adapted sub- of freedom and of the plurality of education (Articles systems of performance appraisal of chiefs of Public 43 and 61, paragraph 1 of the Portuguese Constitu- Administration to workers of the diplomatic career. It tion). Furthermore, it has been verified a disproportion has been established as date of entry into force the of the notion and administrative action that, though day after its publication and as date of production of recognizing, by virtue of the Constitution, a wide space effects the 1st of July of the same year. As a result of of availability of the private schools in admission and the publication of this diploma, services began to take selection of their students (whose constitutional steps towards its application to the diplomatic career limits, so often disrespected, are not always verified and staff covered by the scope of its application, and guide- sanctioned) excludes it, in what concerns renewal, lines have been issued in late September. The motive using «by approximation», as a block and in a not of the complaint was that the objectives that were specified manner, rules that were been though out subjected to contract and accepted by workers reported forschools of public nature and responsibility. It has the whole year of 2009. also been referred that the punitive decision disre- 2. The ordinance in question is based, among other diplo- garded guilt as essential condition of the punishment, mas, in Law 66-B/2007, of 28th December, in which lacking the accusation, its supporting report and pun- terms, the minimum requirement of service time for ishment itself, any reference to the subjective element the purpose of evaluation are six months of legal rela- of the infraction. tionship of employment cumulatively with six months 3. The General – Inspectorate of Education, whose proce- of effective service. By virtue of these legal require- dure has been sanctioned by the relevant member of ments, evaluation can only be made when the card Government, dealt with this case forgetting that the containing the objectives and competences has been workers in a private school are not members of the signed and formally accomplished until at least six Public Administration and that inspective and punitive months before the term of the period submitted to powers of the Administration upon a private activity evaluation, so that a minimum period of evaluation, have the extent of the legal and contractual duties of (between 1st July and 31st December), with objectives the respective establishments. that were previously fixed, is allowed. 4. The Secretary of State for the Education has been asked 3. On these grounds, it was concluded that nor the option to withdraw his decision, on grounds of illegality, but has contained in the ordinance, nor the subsequent admin- not accepted the proposal. Furthermore, he has been istrative procedure were correct. asked to promote the correction of the system of penal- 4. The Ministry of Foreign Affairs considered that the ties applicable to private schools, viewing the material options contained in the aforementioned ordinance unconstitutionality of the standards contained in Article were not to be applied to the performance appraisal of 99 of Decree-Law 553/80, identified by Constitutional the year of 2009. Alternatively, workers were submit- Court, but again, he has not accepted to promote any ted to the evaluation of their curricula3. reflection concerning the issue. In face of this position, the member of Government has been exhorted to con- sider the necessity of doing so, as well as promoting a Case R-2413/10 reflection concerning the legal and contractual limits of Entity addressed: General Secretary of the Ministry of Health punitive power upon private schools. Subject: Placement in a situation of special mobility (SME) by 5. Finally, it has been registered that appraisal of the situ- voluntary option. ation has always been given to the same technician of the General Inspectorate of Education, no matter the different phases of the case, which led to an appeal Summary: to a greater care in compliance withthe principle of 1. A worker of the Hospital de S. João, E.P.E. complained impartiality2. to the Ombudsman because his request to be placed in a situation of special mobility, by voluntary option 2 http://www.provedor-jus.pt/restrito/rec_ficheiros/Anotacao_R6259_09.pdf. 3 http://www.provedor-jus.pt/restrito/rec_ficheiros/Anotacao_R281_10.pdf. 62  was denied. The request had been made under cover of invoked, among others, to base on the exclusion of 10 Ministerial Order 6303-B/2009, of 23rd February, of the more candidatures). Ministry of State and Finances, that implemented, for 3. This position was found unacceptable, in the view of the year 2009, the option of the Article 11, paragraph 5 the fundamental right to access to the exercise of pub- of Law 53/2006, of 7th December. lic functions, in conditions of equality and freedom, as 2. Given that the aforementioned Law excludes from well as legal regime of recruitment and selection of its scope of application the public business entities workers of the Public Administration and, also, princi- (E.P.E.), the General Secretary of the Ministry of Health ples of proportionality and pursuit of the public interest. considered that Ministerial Order nr. 6303-B/2009 did In truth and in short: (a) admission of candidates to not apply to Hospital S. João E.P.E., so there was no a competition for the constitution of a legal relation- legal basis for the placement in a situation of special ship of public employment can only depend on the mobility. fulfillment of requirements set out in the law; (b) in 3. Nevertheless, the Ombudsman noted that, in accord- the present case, those requirements are set out in ance with the Article 45, Law 53/2006 applies to those Law 12-A/2008, of 27th February (LVCR), (c) Ordinance who previously had the quality of official or agent of 83-A/2009 regulates this Law and, therefore, must in the Public Administration and now works in a public its interpretation, conformed to it; (d) curriculum vitae business entity, so the conclusion was that, in spite of is only relevant (and not evenrelevant in exclusive the exclusion of the E.P.E. from the scope of application terms) in what concerns the application of curricular of the mentioned Law, its dispositions are applicable to appraisal method; (e) the application process may their workers, since all other subjective requirements integrate other documents that reveal what is subject are met, namely those concerning the nature of their of evaluation in the curriculum vitae;(f) the signature employment relationship. Otherwise, the aforesaid and heading of the curriculum vitae mean only that the provision would have no useful effect. candidate is the author of the document and is respon- 4. The General Secretary of Ministry of Health has been sible for it, so, in the present context, its absence is asked to reconsider the request of the complainant, merely a defect, that may be corrected, to favor the which has been done, and the understanding of the participation of candidates;(g) the requirement for sig- Ombudsman has been accepted. As a result of this nature and heading, specially in cumulative terms, cou- new position, the request has been granted by the pled with the threat of exclusion,prevents the participa- Hospital S. João E.P.E. tion of the candidate under no valid justification, (h) 5. The same result has been achieved in the context of the public interest behind the competition is to select another complaint with the same subject4. the best candidate, so, the highest number of available candidatures must be assured. 4. So, the jury has been asked to reconsider their formal Case R-3968/10 position and, having done so, a deliberation was made Entity addressed: Polytechnic Institute of Leiria to include all the candidates whose exclusion had been Subject: Competition for recruitment of workers in drafted on the grounds of lack of presentation of a undetermined-term contract. Legal requirements for signed and initialed curriculum vitae5. admission. Non validity of exclusion caused by lack of presentation of signed and initialed curriculum vitae. Case R-4294/10 Entity addressed: Regional Directorate of Education for Lisbon Summary: and Tagus Valley 1. A complaint was presented to the Ombudsman by one Subject: Absences due to illness. Crossing of the situation of of the candidates to the competition advertised by long term unpaid leave. Return to the service of origin. Notice no. 10797/2010 about the draft decision of the jury that excluded him on the ground of lack of presen- tation of signed and initialed curriculum vitae. Summary: 2. After examining the case, it was found that, based 1. The intervention of the Ombudsman has been requested on this sole ground and under no. 9 of Article 28 of by a teacher who had been prevented to return to her Ordinance 83-A/2009 of 22nd January, and 13 of the school, thus being devoid of any means of subsistence. abovementioned Notice, the exclusion of 60 candi- 2. The understanding of the educative administration was dates was projected (and this same ground was also the teacher had cross the situation of long term unpaid 4 http://www.provedor-jus.pt/restrito/rec_ficheiros/oficio_2413_10.pdf. 5 http://www.provedor-jus.pt/restrito/rec_ficheiros/Anotacao_3968_10.pdf. 63  leave, based on the fact that she had been considered fit for work by medical committee, after what she had not worked more than 30 days in a row (in terms of Article 47, paragraph 5 of Decree-Law 100/99, of 31st March), and, being in the abovementioned situation, her return could not happen until a year would be completed. 3. The competent Regional Directorate has been notified by the Ombudsman that: a) The teacher crossed the situation of long term unpaid leave by virtue of paragraph 3 of Article 47 of the aforementioned diploma, because she did not required to be submitted to a medical committee of the Caixa Geral de Aposentações (CGA), nor did she required the crossing to another situation of leave, within 30 days after 18 months of absence due to illness were completed. b) The situation was not under cover of paragraph 5 of the same Article which concerns deliberations of CGA and not regional medical committees, which was the case; furthermore, regional medical com- mittees are not entitled to make the evaluation of temporary unfitness for work, once the mentioned period of 18 is completed; c) The return to functions, after the crossing of the situ- ation of long term unpaid leave was not subject to any time limit, because teachers are not nominated workers, so they are not under the cover of Article 10 of Law 12-A/2008, to whom applies paragraph 1 of Article 82 of Decree Law 100/99. 4. This position has been accepted by Educative Admin- istration and the return to function of the teacher has been allowed, two months after the presentation of the complaint to the Ombudsman6. 6 http://www.provedor-jus.pt/restrito/rec_ficheiros/oficio_4294_10.pdf. 64 2.2.5. Right to Justice and Security Overall, in 2010 the cases related to the Right to Justice 6488 cases opened, 766 related to the «administration of and Security amounted to nearly 12% of the total number justice», «road safety» and «registers and notaries». of complaints received by the Ombudsman, since, of the NO. OF ISSUES CASES OPENED ADMINISTRATION OF JUSTICE 452 Public Security Police 17 JUDICIAL DELAYS 330 National Republican Guard 9 Judiciary 223 OMMISSION 22 Public prosecutors 29 Public Security Police 9 Court officials 8 National Republican Guard 6 Enforcement agents 32 Other police forces 7 Insolvency administrators 6 WEAPONS AND EXPLOSIVES 16 Social Security / Santa Casa da Misericórdia of Lisbon 5 OTHER PROBLEMS OF INTERNAL SECURITY 1 National Institute of Forensic Medicine 7 ROAD TRAFFIC MATTERS 123 Other judicial delays 20 SIGNS AND ROAD PLANNING 19 OTHER PROBLEMS OF JUSTICE 36 ROAD TRAFFIC OFFENCES 70 Commissions for the Protection Police forces 24 3 of Children and Young People National Road Safety Authority 23 Commission for the Protection of Crime Victims 8 Municipal enterprises 16 Guarantee Fund of Alimony Payments Due to Minors 5 Administrative offences / Others 7 Criminal records 4 DRIVING LICENSES AND SCHOOLS 16 Court fees 8 OTHER ROAD TRAFFIC ISSUES 18 Other administrative problems 8 REGISTERS AND NOTARIES 37 ACESS TO JUSTICE 21 REGISTER 13 BAR ASSOCIATION 20 Land, Commercial and Vehicle Register 6 CHAMBER OF LEGAL AGENTS AND COMMISSION FOR THE EFFICIENCY OF ENFORCEMENT 3 Civil register 7 PROCEDURES JUDICIAL ORGANIZATION AND INFRASTRUCTURES 3 NOTARIES 4 JUDICIAL DECISIONS * IDENTITY CARD 14 OTHER ISSUES OF ADMINISTRATION OF JUSTICE 39 OTHER REGISTERS AND NOTARIES PROBLEMS 6 INTERNAL SECURITY 66 OTHER SUBJECTS 94 ACTION 27 TOTAL 766 * There were 273 complaints, which directly concerned the content of judicial decisions and therefore were dismissed on a preliminary basis. 65  The growth of almost 5% in complaints about judicial Minister of Justice that, in the naturalization procedure, the delays (from 315 to 330) showed a trend already experienced time the beneficiary served in the Portuguese Army be con- in previous years, highlighting the predominance of the mat- sidered as a period of legal residence in the country. ters relating to the «administration of justice» in the relative Recommendation 7/A/2010 was also accepted. It was weight of the different matters dealt with in this area. addressed to the Institute for Mobility and Land Transport (IMTT) and concerned the lack of mechanisms to allow the electronic submission of an application for renewal of the EU-model parking card by people with disabilities who have Distribution of cases by subject matter limited mobility. 500 452 After the Institute for Mobility and Land Transport was 450 400 350 heard, it was concluded that, notwithstanding the imple- 300 250 mentation, under the SIMPLEX programme, of various func- 200 150 123 tionalities for electronic assistance to users, the necessary 100 66 93 50 37 mechanism for submitting those requests was not available. 0 Therefore, it was recommended that the mechanisms to Administration of Registers and Internal security Road safety Others ensure the possibility of electronically submitting the appli- notaries cation for renewal of this document be implemented as justice soon as possible, which was achieved through the publica- tion of Decree-Law 17/2011, of 27th January. In 2010, inquires were also concluded in the case in which Recommendation 12/A/2008 was reiterated. This Recom- mendation was addressed to the Motor Guarantee Fund It should be noted that, in addition to the complaints about (FGA) and in it the Ombudsman sustained that the Fund «administration of justice» shown in the preceding graphic, should pay the compensation owed to a citizen involved in a there were an additional 273 complaints that focused traffic accident with a vehicle that was not insured. Since the directly on the content of judicial decisions and therefore entity in charge of managing the road (a local authority) had did not lead to any inquiries, pursuant to Article 202, para- clarified that the non-insured vehicle had accessed the road graph 2, of the Constitution, and Article 22, paragraph 2, of through private property, the responsibility of its driver was the Statute of the Portuguese Ombudsman, which exclude presumed and thus it was concluded that the Motor Guar- sovereignty bodies from the Ombudsman’s inspection and antee Fund should pay the compensation. However, based monitoring, except as regards their administrative activity. on the reasoning of its technical staff, the Fund argued that Thus, in summary, the matters concerning the «adminis- the way through which the vehicle had accessed the road tration of justice» corresponded to almost 60% of all cases in was public, which changed the conclusion regarding the this area, followed by «road safety» (16%), «internal secu- responsibility for the accident. In any event, the Fund did not rity» (8,6%) and «registers and notaries» (4,8%). accept the Recommendation, even after it was reiterated. Furthermore, in 2010, 875 cases were closed pursuant to Once the insurmountable difference of opinions between investigation. the Motor Guarantee Fund and the Ombudsman became 2010 was also a year marked by some positions taken evident, it was found that no further proceedings would be by the Portuguese Ombudsman in relation to the Right to necessary and thus the case was closed. Yet, the Ombuds- Justice and Security. First, Recommendation 2/A/2010 was man decided to stress that it was not admissible that the addressed to, and promptly accepted by, the Minister of Fund itself could define the nature of the roads and ways Justice. It concerned the situation of a citizen who, having where traffic accidents occur, namely when such a qualifica- served in the Portuguese Army for many years, did not see tion was instrumental to assessing its (lack of) obligation to this period of time taken into account in the procedure for pay compensation. granting of Portuguese nationality by naturalization. Regarding the Ombudsman’s own initiative, in 2010 an This case, which has unusual characteristics, can be sum- inspection was carried out to assess the conditions of the marized in a few words. Due to a manifest error, the foreign temporary installation of persons whose entry into national citizen in question served in the Portuguese Army; but, for territory is refused or who are detained awaiting deporta- the purpose of granting Portuguese nationality, not all that tion from Portugal, and who find themselves in a particu- period of time could be taken into account, which meant larly vulnerable situation, because they are often physically that the foreigner did not meet the requirement concerning and psychologically fragile, diminished by their economic legal residence in Portugal and thus prevented the imme- and legal situation and oftentimes even more at a disadvan- diate granting of Portuguese nationality. The Ombudsman tage by lack of knowledge of the law and the language. The achieved the desired outcome by recommending to the Ombudsman visited the five facilities designed to tempora- 66 rily install the foreigners awaiting the enforcement of the this area in 2010 and that, out of these, the judicial delays expulsion of Portugal (the Residential Unit of Santo António, accounted for 43%. which was the only space that was newly built) and the When the complainants believe they are able to identify facilities in the airports of Lisbon, Faro, Porto, Funchal and the entities responsible for the delay, they complain about Ponta Delgada, which are used to install those who do not judges in 67,5% of cases, the Public Prosecution Service in obtain permission to enter national territory. The hearing of 8,7% of cases and only residually about court officials. But the entities complained against and the drafting of final con- at the end of the investigation it is not uncommon for the clusions occurred already in 20101. Ombudsman to find that the reasons for the delay can be The Ombudsman also opened a case on his own initiative, attributed to the parties. This consideration, however, does under article 4 of the Statute, in order to analyse the situ- not hinder the acknowledgement of the serious structural ation of the National Institute of Forensic Medicine (INML), problems of Portuguese courts, which led, for example, to particularly with regard to the delay in responding to a citizen having had to wait a year for the simple issuing of requests from the courts with implications on judicial delays. a certified copy concerning a case in the Commerce Court At the same time, this case will allow, in collaboration with of Lisbon. the bodies of the Institute, to identify possible shortcomings or constraints and, if needed be, indicate deficiencies in the 330 legislation or reflect on suggestions for the drafting of new 350 300 legislation. This case will only be finalised in 2011. 250 Finally, since several complaints have been received over 200 150 the years concerning the conduct of the Public Municipal 100 36 39 Parking Enterprise of Lisbon (EMEL) or of its staff, continu- 50 21 20 3 3 0 ally raising problems that require an articulated solution, the Chamber of Legal Agents Judicial Organization Bar Association Administrative Other Judicial delays Acess to Justice Ombudsman also decided to open an own-initiative case to address the issue, in light of the great impact it has on eve- Problems Commission for the Efficiency and Infrastructures ryday life for many hundreds of thousands of citizens in the of Enforcement Procedures largest city of Portugal. This investigation is at the inquiry stage and it will be carried on in 2011. Administration of justice Still in the field of judicial delays, two special circum- stances are worth mentioning: firstly, the number of com- As regards the cases pending in the courts, the interven- plaints (32) on the activity of enforcement agents and, tion of the Portuguese Ombudsman is limited to administra- secondly, the major delays in the preparation of expert tive aspects, and to judicial delays, and it is ensured through reports by the National Institute of Forensic Medicine. About the High Councils. Therefore, emphasis should be given – as the first situation, it is noted that the delays in enforcements has been done in recent annual reports – to the excellent already account for 10% of all complaints concerning delays cooperation provided by the High Council for the Judiciary, in the courts. On the problem of persistent delay in the prep- for the promptness of its response and the quality of the aration of expert reports, the Ombudsman has an ongoing monitoring of all the situations that the Ombudsman noted. study whose findings will be publicised in due time. But, in 2010, a word of recognition is also due to the High But the delays have not exhausted the subject of the Council for Administrative and Tax Courts, for the effective «administration of justice», with other problems having follow-up of the situations noted by the Ombudsman, which been submitted to the Ombudsman in 2010. allows the Ombudsman to intervene in cases of judicial The difficulties experienced in accessing the courts delays also in the administrative and tax jurisdiction. prompted 21 complaints, relating both to different forms It was already mentioned that, of the 1038 communi- of legal aid – exemption from or phased payment of court cations addressed to the Ombudsman concerning judicial fees and other charges, appointment of a legal representa- affairs, 26,3% (273) focused directly on the content of judi- tive and payment (or phased payment) of the fees of the cial decisions, and therefore were dismissed on a prelimi- court-appointed or freely chosen legal representative and nary basis. appointment of an enforcement agent – as well as to the It was also pointed out that the «administration of delay of Social Security services in deciding the requests. justice» represented more than half of the cases opened in A word is also needed on the cases against the Portu- guese Bar Association, since 17 cases were investigated regarding the slow progress on completion of disciplinary 1 See chapter «Cases and Inspections of the Ombudsman own Initiative» – Case P-16/10. proceedings against lawyers and three others on alleged 67  delays in replacing the previously appointed legal repre- Registers and notaries sentative. In addition, the delay in deciding the claims for compen- Complaints about problems arising in proceedings of civil, sation made ​​by victims of violent crimes motivated eight land, commercial and motor vehicle registers, as well as of complaints in which, while decision-making powers rested notaries, resulted in 4,8% of the cases in this area. Of these, with the Minister of Justice, the entity addressed was the the largest share (about 38%) had to do with citizen’s cards, Commission for the Protection of Crime Victims, which was especially with the problems of delay in issuing them. in charge of investigating the cases. This Commission lost Also worthy of praise was the cooperation provided by the its President in December 2009 and therefore, did not work Institute for Registers and Notaries (IRN), either as regards throughout 2010, while waiting for the adoption of the the creation of a channel of privileged access or as regards instrument that regulates its constitution, operation and the the quality of the information provided. exercise of its powers and duties. The publication, on 27th October 2010, of Decree-Law 120/2010, will perhaps create the conditions to restore normalcy. In any event, it should 16 14 still be noted that the Commission provided all the coopera- 14 12 tion that it could to the Ombudsman. 10 Also noteworthy is the good cooperation with the Insti- 8 7 tute of Financial Management and Infrastructures of Justice, 6 6 which is the addressed entity in cases of delays in payments 4 4 3 of fees to lawyers in the context of legal aid. 2 1 2 0 Commercial Motor vehicle Land register Notary Citizen’s Other Civil register service card Internal security register register In 2010, cases on internal security represented 8,6% of the total number of cases about the Right to Justice and Security. Of these cases, 40,9% were opened as a result of complaints about the action of the police forces and 33,3% related to complaints about illegal omissions of the Public Road traffic matters Security Police (PSP), the National Republican Guard (GNR) or other police forces. Another 24,2% of complaints had to In 2010 road traffic matters accounted for 16% of the do with weapons and explosives. cases related to the Right to Justice and Security. Considering the various issues related to road traffic, road traffic offenses represented 56,9% of the cases. Upon analy- sis of these 70 cases, one can concluded that the follow- 30 27 ing entities are addressed: police forces (34,2%), National 25 22 Road Safety Authority (32,8%) and municipal enterprises 20 (22,8%). 15 10 10 5 1 Road traffic offences 0 30 Action Omission Weapons and Other explosives 24 25 23 20 16 15 In matters of «internal security» it is necessary to establish regular contacts with the Department of Arms and Explo- 10 7 sives of the Public Security Police and with the National 5 Directorate of this police force and the General-Command 0 0 of the National Republican Guard, in these cases when the Police forces National Road Municipal Private Other Safety Authority enterprises enterprises complaints concern the police action. In all cases collabora- tion is swift and without difficulties. 68  The Public Municipal Parking Enterprise of Lisbon continues The National Road Safety Authority merely informed the to represent an important slice of the cases on road traffic Ombudsman that the defences registered in the electronic offenses that are investigated by the Ombudsman. While system were «ready to be attributed to a legal professional» the subjects considered are very different, two main types and that the «National Road Safety Authority has two years of problems can be identified: first, the malfunctions in park- to decide on road traffic offence proceedings, under article ing-meters and the means available to the users to report 188 of the Road Code, a moment which coincides with the them and to obtain reimbursement of amounts inserted in analysis of the defence». the parking-meters without the corresponding ticket being Against this position of the National Road Safety Authority, issued; secondly, the issuance of a certificate of offence in the Ombudsman made use of article 33 of the Statute of the those cases where the parking was paid but the title was Portuguese Ombudsman and formulated a critical remark. incorrectly placed in the vehicle (without being visible). In fact, on the subject under consideration, article 188 of Other issues brought to the consideration of the Ombuds- the Road Code provides that «road traffic offence proceedings man had to do with bureaucratic problems, such as the are extinguished, due to the lapse of the limitation period, complaint related to gross errors in the texts of notifications once two years have passed since the time at which the for road traffic offences in use by Lisbon Municipal Police. offence was committed». This should be understood as the As was found in the course of the inquiries, the three tem- final deadline for closing the proceedings and not as an plates of certificate of offence in use by this police force indicative deadline. had undergone changes in 2008 and 2009. It was sought In summary, the Ombudsman sustained that the defend- to incorporate the new contents in the pre-existing certifi- ant had a «right to swift proceedings», since the delay in cates of offences, pre-printed and produced by the Portu- the administrative offence proceedings, as in criminal pro- guese Mint and Official Printing Office. The addressed entity ceedings, «in addition to possibly resulting in illegitimate promptly recognised the incomplete nature of the text, restrictions to the rights of the defendant, would eventually which also rendered it incomprehensible, and ensured that deprive of any content or usefulness the principle of the pre- it would analyse the irregular documents, so as to annul sumption of innocence». And the principle of the presump- those that were drafted incorrectly. tion of innocence of the defendant will include, for these Account should be taken of the good cooperation that purposes, the «preference for a decision of acquittal over the has been possible to obtain from the National Road Safety mere closing of the case». Authority (ANSR) in the many cases in which it is the Due to all of the above, the Ombudsman drew atten- addressed entity. The informality achieved has allowed tion to the necessity of internal procedures being adopted for an expedite resolution of the cases submitted to the to ensure a swift assessment and decision of the adminis- Ombudsman, in the interest of the complainants. trative offence proceedings attributed to the National Road On the contrary, some difficulties remain with the Public Safety Authority, so as to ensure that, safe in very excep- Municipal Parking Enterprise of Lisbon, perhaps due to poor tional cases, the assessment and decision is made within 12 understanding of the duty of cooperation enshrined in Arti- months – a deadline which was considered sufficient, as a cle 29 of the Statute of the Portuguese Ombudsman and rule, to assess and close those cases. also some resistance to the changes suggested by external and independent entities. Case R-1669/10 Entity addressed: Public Security Police Summary of some interventions of the Ombudsman Subject: Vehicles. Towing. Fee. Payment. Case R-70/10; R-6343/09 Summary: Entity addressed: National Road Safety Authority The Ombudsman received a complaint about a removal fee Subject: Administrative offence. Procedure. Decision. Statute required to a citizen pursuant to a fine to which he was subject. of limitation. The complainant challenged the payment of such fee, since the vehicle had not been towed, despite the fact that the necessary equipment for transporting it was present Summary: at the place where the offence was committed. The com- The Ombudsman received several complaints against the plainant considered that the solution established in the law delay of the National Road Safety Authority in analyzing the should be reviewed, to ensure that, once a towing vehicle is defences presented in due time in traffic offense proceed- called, the costs are proportional, since the payment for the ings in which the documents had been confiscated in light trip of a towing vehicle is destined to cover the cost of the of the offence committed. service and not to punish the offender. 69  As regards proportionality, the Ombudsman sustained ing to the registration and the amount corresponding to the that the legal instrument expressly addressed these doubts, fine, as well as the applicable legal provision. by setting different amounts according to the distance to The Institute of Registers and Notaries announced that it be travelled in each removal. Additional, the Ombudsman had accepted the Ombudsman’s reasoning and that steps noted that the legislator had in some way tried to establish had been taken to change the software so that the receipts a more favourable mechanism for offenders, since it had issued by the Land Register would specify each value and provided for the possibility of offenders not being deprived indicate expressly the legal provision under which the pen- of their vehicles, by allowing the immediate suspension alties were charged. of the removal to a tow pound, thus avoiding any related inconvenience. However, the Ombudsman drew attention to the fact that, Case R-3678/09 while the actual removal of the vehicle had not been carried Entity addressed: Institute of Registers and Notaries out, the supervisory body was bearing the costs associated Subject: Citizen card. End of additional fees in case of theft with moving of the towing equipment necessary for that or robbery. purpose, and their staff, so that the payment by the offender was justified. Finally, the Ombudsman explained that, in relation to Summary: the fine, the defendant could pay it as a deposit, and then The Ombudsman suggested to the Institute of Registers challenge it by addressing the National Road Safety Author- and Notaries not to charge an additional fee of 10€ in cases ity. If this pleading were to be considered well-founded in which it was requested to issue a new Citizen Card due to and it was concluded that an erroneous application of the the previous one having been stolen. relevant legal provisions had taken place, the Authority The Institute of Registers and Notaries welcomed this pro- would determine the reimbursement of the fees paid, thus posal and determined that no payment of additional fees ensuring the right to a defence that all citizens have in this would be due if the issuance of a new Identity Card was regard. requested by a citizen who had been victim of theft or rob- bery, provided that the cancelation of the previous card had been requested and that proof was presented to attest that Case R-2479/09 the matter had been reported to the police. Entity addressed: Institute of Registers and Notaries Before the suggestion of the Ombudsman was accepted, Subject: The Ombudsman suggests to the Institute of whoever requested the issuance of an Identity Card due to Registers and Notaries that receipts concerning registration theft or robbery would always be subject to the aforemen- expressly indicate the amount of fines to be paid and the tioned 10€ fee. legal provisions that establish them. Case R-3737/10 Summary: Entity addressed: Institute of Registers and Notaries After analysing a complaint, the Ombudsman argued Subject: Collection of the Identity Card by the parents. against the fact that the receipts issued by the Land Register Offices did not expressly indicate the values to be charged as penalty for expiry of the deadline for registration. Summary: The problem arose with the changes introduced in the The Ombudsman received a complaint against the Insti- Land Register Code, deriving from the implementation of tute of Registers and Notaries because one of the parents the SIMPEX programme. These provided, among other was prevented from collecting their child’s identity card. measures, that the land register be mandatory and, in some In compliance with the duty of prior hearing, the compe- situation, the same register be made by credit institutions tent services of the Institute of Registers and Notaries were within a very short deadline set by the law. Once the dead- heard. line had lapsed, whoever came forward to require registra- The public institute reported that internal guidelines tion would be forced to pay double, as a pecuniary penalty. were released, under which – and in accordance with the The Ombudsman considered that the information pro- Ombudsman’s position – nothing shall preclude the parents, vided in the receipts did not allow the citizens to fully under- as legitimate representatives of the minors, from being able stand which amounts were to be paid for the registration to collect the document in question. itself and which were the result of fines. Therefore, he sus- The Ombudsman drew attention to the fact that the exer- tained that, in order to provide information to the citizens, cise of parental responsibilities belongs to both parents, the receipts should clearly indicate the amount correspond- regardless of whether they are married or living in condi- 70 tions similar to those of spouses, with the legal effects natu- rally associated to that fact. For that reason, the requests for collecting the identity card, made by either parent (irrespective of whether or not they are married) shall be accepted provided, of course, that they are legally entitled to do so. Case R-4791/10 Entity addressed: National Republican Guard Subject: Seizure of driving license. Article 173 of the Road Code. Summary: The Ombudsman received a complaint from a citizen who had been fined by a member of the National Republican Guard for lack of the mandatory periodic inspection of the vehicle he was driving, even though he was not the owner. The defendant’s driving license was seized because he did not intend to immediately carry out the payment of the pen- alty nor of the deposit. The seizure of these documents as guarantee for pay- ment of the certificate of offence is provided for in Article 173, paragraph 4, of the Road Code, which, in indent b), determines that if the payment of the penalty or deposit are not carried out immediately, and if the penalty concerns the holder of the vehicle identification document, then the vehi- cle identification title and the vehicle ownership registration title should be provisionally seized. Thus, the Ombudsman concluded that the driving docu- ment had been unlawfully seized, since the offense for lack of inspection concerns the holder of the vehicle identifica- tion document and not the driver. The Ombudsman drew attention to the need to enhance instructions to control staff of the National Republican Guard about the seizure of documents in the act of checking offences, in the following terms: a) If the penalty concerns the driver, the seizure should focus on the driving license; b) If the penalty concerns the vehicle owner, the identifi- cation documents of the vehicle should be seized; c) If the penalty concerns the driver and he is also the vehicle owner, all documents(driving license, vehicle identification document and vehicle ownership regis- tration title) should be seized. 71  2.2.6. Other Fundamental Rights In what concerns other fundamental rights in 2010 HEALTH 148 complaints where investigated related to Foreigners Law, NATIONAL HEALTH SERVICE 14 Nationality, Penitentiary Issues, Education, Health, and SCOPE OF ACTION 8 subsidiary in relation to other areas, a wide range of issues ENROLLMENT IN A LOCAL CENTER 3 centred on the Rights, Freedoms and Guarantees. ARTICULATION BETWEEN LOCAL CENTERS 3 AND HOSPITALS FEES 4 NO. OF SPECIFIC HEALTH SYSTEMS 23 ISSUES CASES OPENED ENROLLMENT 11 CONTRIBUTION 12 POLITICAL CONSTITUTIONAL AFFAIRS 12 MALPRACTICE 37 SCIENCE 2 NHS HOSPITAL 27 MEDIA 6 LOCAL CENTER 10 RIGHTS, FREEDOMS AND GUARANTEES 55 EMERGENCY SERVICES AND TRNSPORTATION 9 EDUCATION 166 ADMINISTRATIVE PROCEDURES 40 PRESCHOOL EDUCATION 5 SUPERVISON AND REGULATION 5 PRIMARY SCHOOL 25 DRUGS 5 JUNIOR HIGH SCHOOL 24 OTHER ISSUES 11 HIGH SCHOOL 19 OTHER ISSUES 29 UNIVERSITIES AND POLYTECHINAL INSTITUTES 73 TOTAL 1246 OTHERS 20 FOREIGNS LAW 259 DELAY 213 SUBSTANCE 40 In 2010, the increased number of new cases refers to OTHERS 6 cases of Nationality of foreigners, because in other matters, NACIONALITY 423 or there was stabilization of the number, or even a decline, DELAY 413 the latter being seen in the case Education (63 units less or -28%) and Health (47 units less or -24%). The number SUBSTANCE 10 of complaints about the legal status of foreigners was sta- PENITENTIARY ISSUES 146 ble, as compared to previous years. In 2010, particularly in FOOD 6 its second half, there was a new upsurge in the number LODGING 6 of complaints about the situation of the persons originated MAIL/PHONE 5 from the former Portuguese State of India with regard to FLEXIBILITY 9 their nationality status OCUPATION 12 In 2010 the Portuguese Ombudsman issued five recom- ADMINISTRATIVE ORGANIZATION 8 mendations. Recommendation 2/B/2010 was addressed to the Minister of Justice, asking for the enlargement of court HEALTH 22 fees exemption to all workers with the same low resources, SECUTITY AND DISCIPLINARY ISSUES 21 regardless of being represented by the District Attorney TRANSFER 13 or by a chosen lawyer. Recommendation 3/B/2010, also VIOLENCE 16 addressed to the Minister of Justice, proposed the enlarge- VISITS 13 ment, under criteria suggested by constitutional jurispru- OTHERS 15 dence, of the system of legal protection to enterprises. 72  Recommendation 4/B/2010 was addressed to the Parlia- Nationality ment and reiterates several previous recommendations, on electoral matters, but innovating in the equal treatment of The complaints with regard to Nationality law are mainly independent candidates1. This Recommendation has been made by or on behalf of citizens from the former Portuguese partially accepted, as regards the conditions for early voting. State of India, who, pretending to be accorded their Portu- The parliamentary intervention was also sought, simul- guese nationality, claim against the delay in the transcrip- taneously with the request for review of constitutionality tion of relevant records by the Central Registry. of the internal rules of the Portuguese Bar Association that The Ombudsman reports of the last decade illustrate the limited the right of access to the training period (Recom- effect this issue (due to the existence of an exceptional cri- mendation 5/B/2010).2 terion for granting nationality, opposite to the general rule Recommendation 9/B/2010 was addressed to the Min- in the context of the decolonisation process of the 70’s) has ister of Education, stressing the need to avoid any negative had on the functioning of the Ombudsman’s Office and of discrimination of teachers of preschool education in insti- the Central Registry. tutions run by the social sector, compared to other teach- Recommendation 9/B/2009 was accepted and originated ers, both in the public and private sector, in relation to their the issue of Decree-Law 85/2010, of July 15. The treatment retirement benefits3. of these complaints is made more difficult due to the com- Among the recommendations mentioned in the 2009 plaints’ lack of knowledge of the Portuguese language and Report, Recommendations 5/B/2009, 6/B/2009 and the clear existence of intermediaries, that draft complaints 7/B/2009, identical in substance but adapted to each case, and receive replies, presumably in the context of their pro- about the regulatory solutions, in the municipalities of fessional activity. Câmara de Lobos, Funchal and S. Vicente, affecting political In the naturalization process, the most frequent cause for propaganda, were accepted. Similar initiative (Recommen- delay is the need for consultation of several public entities. dation 4/B/2009) directed to the municipality of Santa Cruz The greatest difficulties have been felt within the judicial failed to be accepted. system. The reiteration of Recommendation 1/B/20034, on the To a speedy and more efficient treatment of this high remuneration regime of judges and prosecutors resulted number of complaints, informal means of communication fruitless. Recommendation 1/B/2009, about some nec- were arranged with the Central Registry, privileging the use essary adaptation of the rules on contracting,5 although of electronic media and the direct reply on a spreadsheet, expressly accepted, did not endured any practical measures which have functioned properly. The same efforts were for implementation. Instead, information was provided on introduced within the Ministry of Foreign Affairs, for their further work to enable the effective implementation of respective central headquarters and the consulates. These Recommendation 2/B/2009, regarding the situation of simplified mechanisms of contact allowed the elimination total loss in a car accident, in the framework of an insurance of large numbers of pending cases in the New Delhi consu- contract6. lar services, these being receptive to suggestions about the Recommendation 7/B/20077, on setting the compensa- improvement of procedures. It also should be emphasized tion to local radio stations for issuing political broadcasting the excellent cooperation received from the consular ser- time during a campaign for national referendum was reiter- vices in Bissau. Meetings were held with the Immigration ated, but no answer was received on this regard. and Borders Service that has always provided very good The Ombudsman, on his own initiative, opened an inquiry cooperation. on the conditions offered by the security forces for housing detained persons when this situation lasts more than 48 hours. During 2010, 21 visits were carried to 14 prisons, with a Foreigns law predominance of those of a larger size. Two primary schools and one junior high school were also visited. There was a The complaints regarding the legal status of foreigners in visit to a local health centre and to another specialized unit Portugal reflected the change in applicable law, its imple- (rehabilitation). mentation and its effects in the migration reality. Thus, the proportion of complaints against the Immigra- 1 http://www.provedor-jus.pt/restrito/rec_ficheiros/REC_4B2010.pdf tion and Borders Service declined, focusing on the applica- 2 http://www.provedor-jus.pt/restrito/rec_ficheiros/REC_5B2010.pdf. tion (now more restrictive) of the exceptional mechanisms 3 http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec_9B2010.pdf of regularisation provided for in Articles 88, paragraph 2, and 4 http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec1b03.pdf 5 http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec1B2009A6.pdf 89, paragraph 2 of Law 23/2007. Beyond these issues, the e Relatório de 2009, pg. 72. renewal of temporary residence permits, notably in what 6 http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec2B2009.pdf e Relatório de 2009, pg. 72. refers to the proof of livelihood and lack of simulation in the 7 http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec7B07.pdf employment status, is another subject for conflict. 73  Many complaints are presented against the functioning A number of issues were pointed out to the Government, of Portuguese consulates, in general for denying or delaying involving the requirement of presenting a pupil card for the granting of visas to relatives of citizens (some foreign- entry into a primary or junior high school and the exigency ers, others Portuguese) living in Portugal. A few consulates of the payment of a certain amount at enrollment, these concentrate the majority of these complaints, namely those being incompatible with the compulsory schooling regime in Guinea-Bissau and Senegal, Pakistan and India, and China. and its gratuity. The response received was concordant with The closure of the Portuguese Consulate in Islamabad led to the observations made. natural disturbance in the treatment of new request as well There has been good cooperation with most of the enti- in the pending ones. ties contacted, the governmental offices, the Inspective bod- ies and local structures. The same is also true about schools contacted, some problems occurring with larger universities. Education The number of complaints on Education issues declined Penitentiary Issues since 2009, but kept above the figure recorded in 2008. The marked drop was mainly due to the disappearance of Although the level of complaints remains the same as in several grounds of complaint specific to the previous year 2009, a significant decrease persistently occurred in com- (implementation of programs of access to computers and of plaints relating to temporary leaves of absence, certainly new arrangements for the management of schools). There due to the legal improvements meanwhile introduced. was also a decrease in the number of complaints in pre- Similarly, there has been a decreased of complaints in what school education and higher education, returning in both concerns transfer to another prison. With an opposite trend, cases to the 2008 figures. In contrast, we are seeing a con- an increase in the figures of complaints was felt in the issues tinued increase in complaints in the junior high level. of Security and Discipline, specifically to situations involving In what refers to preschool education, besides complaints the use of force, Lodging, Visits and Occupation. about social support or handicapped support, the interesting There is an increasing number of inmates pursuing a uni- issue of facilitation of oral hygiene practices in public versity degree. This led to complaints about failure to facili- kindergarten, after lunch, was raised. After the collection of tate access to computers. specialized technical information, measures adequate to the Concerning the use of force, a particularly relevant age group concerned were proposed, in order to the creation case was submitted to the Ombudsman in October 2010, of hygienical routines. although it has only been of public knowledge in February At Junior High and High School education level, there has 2011. In the operation of removal of a certain inmate from been an increase in complaints about the condition of facili- his cell, a taser gun was used. In the preliminary comments ties and the safety of students. Two schools have been vis- addressed to the Directorate General of Prison Services, reg- ited within this framework. istering a prompt response with the opening of an inquiry, An increase in complaints referring to grading was noted several remarks have been made, looking forward to the in Superior Education institutions, usually invoking a breach strengthening of the control of how coercive means are of procedures. Also, about the enrolment conditions, com- used, the availability of documentary evidence being of the plaints were made about the special regime for high stand- utmost importance for review of procedures and account- ing athletes and the special quotas for candidates of the ability, specially in an enclosed environment. Autonomous Regions. Although the alleged illegality was The increased level of external control made possible by not confirmed, the Ombudsman drew the attention of the the new penitentiary Code has been beneficial in the issues public authorities responsible about the need to disclose, as of security and discipline, although some resistance was felt, far in advance as possible, the criteria for candidacy. This assuming the impracticality of the new rule’s implementa- proposal was accepted. tion prior to the issue of a further regulation. This trend, felt Following Recommendation 2/B/2007, Decree-Law in specific cases such as the persistence of the mandatory 204/2009, of 31st August, enlarged the scope of college use of uniform, was duly criticized. scholarships to every foreign citizen with a permanent resi- As mentioned above, 21 visits were carried, without prior dence status (5 years). However, this new legislation led to notice, to prisons in Alcoentre, Carregueira, Caxias, Linhó, the presentation of some complaints, either by citizens who, Lisbon, Monsanto, Pinheiro da Cruz, Sintra, Vale de Judeus, in any case would not be covered by either scheme, or by the Prison Hospital and smaller prisons such as Aveiro, Mon- citizens who would benefited from maintaining the previ- tijo, Setúbal and near the Judiciary Police in Lisbon. ous regime (like European citizens not living in Portugal for Rather than simply checking the physical structure, it is more than 5 years). The rationale behind the legal solution important to maintain a close contact with inmates and was duly explained. prison officers, including management, education services, 74 guards and clinical staff. The knowledge of the reality, based Health on the direct observation and the testimony thus collected, was oriented in particular to the exercise of disciplinary The number of complaints decreased, compared to 2009, power, with the analysis of random chosen files, handled in returning to the level occurred in 2008. This decline is mainly recent months and culminating with more severe sanctions. due to the reduction in complaints relating to the adminis- These visits were made to accommodation spaces, can- trative procedures used in the National Health Service and, teens, kitchens, security and disciplinary sector, clinical in a lesser degree, of the complaints against specific health facilities, living rooms and playgrounds. This year the conse- systems or in respect of fees charged. quences of an increased prison population were felt, which, The downward trend, previously noticed in complaints together with the unequal distribution of population, has related to specific health systems, continued in 2010, more caused considerable overcrowding, as exemplified by the effective on issues related to registration and titling of bene- Lisbon Prison. The conservation status was highly variable, ficiaries rather than about the contributions received or due. mainly regarding the infiltration of moisture. The setbacks in The effects resulting from the reorganization that occurred in the process of construction of new prisons are obstacles to recent years in this sector seem to be less endured, despite the announced renewal of the system. a resurgence, but very limited, at the end of 2010, due to The increased of application of the measure of weekend the termination of the system concerning several workers of detention, had consequences in the need for separation of the Ministry of Justice. inmates. This situation had the special attention of the Direc- Complaints relating to care provided in health facilities did tors of the facilities, adapting the existing infrastructure and not decrease significantly. by creating separate spaces. The co participation of the State on the cost of medically The food, often the subject of complaints, either in quality prescribed drugs, to low income citizens was challenged, or quantity, was also observed in these visits. In two prisons, as the current mechanism provides protection to pension- it was detected the distribution of food on the plates with- ers with low income, but not to citizens, of the same age out utensils, ie, with exclusive use of the hand, although group and income level, however not entitled to any pen- gloved. Both for hygiene and for the maintenance of dignity, sion. This injustice was stressed to the Ministry of Health, this issue was raised to the attention of the warden, who this issue being articulated with the Ministry of Labour and immediately put a stop to this. Social Solidarity. In what refers to healthcare there was an improvement The problems of citizens receiving cochlear implants were resulting from the uniformity of approaches adopted in the scrutinised, especially in what concerns their maintenance Manual of Procedures for the Provision of Health Care in Pris- and replacement. Several concrete proposals were made ons. There is a very significant participation of contracted to the junior minister responsible for Rehabilitation. The healthcare companies, establishing, at least, daily nursing Government replied this matter would be subject to new services and medical attendance three times a week. The regulations soon. complaints of detainees were reduced in this respect, as The case of so-called orphan drugs, for patients with rare they were heard during visits to prisons, with the excep- diseases, was and still is being subject to contacts with the tion regarding access to dental care. Just like in the outside Drug Authority (INFARMED) and the Ministry of Health. community, the complaints are more often directed against Concerning the Health Administration compliance with delays in accessing the National Health System. the duty of cooperation, a few difficulties persisted with The excess of inmates working in internal repairs and the Medical Association. The General Inspectorate of Health maintenance persists, as well as the lack of human resources was seldom requested, but always responded adequately. to propose further activities. The school attendance remains The ministerial offices quickly responded, as did the Central defective, despite the incentives created. Administration of the Health System (ACSS). More difficult The analysis of randomly chosen disciplinary proceedings was found on obtaining responses from the Drug Authority did not raised serious doubts or concerns, as the entry into (INFARMED). The quality of cooperation of the local health force of the new Penitentiary Code resulted in an increase services varied greatly. The ADSE (specific system for civil of guarantees, with a overload to the penitentiary services. servants), with one exception duly noticed, was always The cooperation received was good, as in the previous ready to cooperate. year, and the close collaboration of the Penitentiary Audit and Inspection Service should be highlighted. The collabora- tion of the various prisons was variable, also depending on Other issues the demands made. Linhó prison should be commended for its cooperation, as a significant number of complaints were 17 complaints were made against the limitation of access presented during 2010, with multiple contacts and visits, to administrative documents, in many cases with a previous always satisfactorily answered. intervention by the Commission on Access to Administrative 75  Documents. Resistance to the principle of open administra- Case R-4949/10 tion is often felt through the establishment of high values ​​of Entity addressed: Immigration and Border Service (SEF) reproduction fees. Subject: Foreigners Law; Family reunification; common-law A complaint was lodged against a particular parish council marriage. as it had in its capacity of administration of a legacy modi- fied the periodic criteria ofdistribution of certain sums to resi- dents of low income. Beyond personal knowledge, the coun- Summary: cil chose as an exclusion criterion the condition, alternative 1. A complaint was lodged regarding the refusal of the or cumulative, of landowner, employee or pensioner. It was Immigration and Border Service (SEF) to grant the noted that, rather than the adequacy of such qualification, it application for family reunification formulated in favour was the true economical situation of each case that should be of a certain foreign citizen, unquestionably living in inquired. Attention was also raised to the need for a proper common-law marriage for more than two years with a reasoning and communication with potential beneficiaries. Portuguese resident, allegedly based in terms of Article 100, paragraph 1, indent a) of Law 23/2007, of 4th July. 2. As the marriage of the resident in question was only Summary of some interventions of the Ombudsman dissolved by divorce, in April 2009, SEF concluded that it would not be possible to consider «the applicant [liv- ing] under conditions similar to that of marriage for Case R-0325/10 more than two years,» starting this minimum delay Entities addressed: Open University, Ministry of Education. from the divorce date. Subject: Education, Professional qualifications; Equality. 3. The Ombudsman duly noted that, from Article 1, para- graph 2 of Law7/2001, of 11th May, as subsequently amended, the «de facto union is the legal position of Summary: two persons, regardless of gender, living in conditions 1. A complaint was lodged about the organization by similar to that of marriage for more than two years. » the Open University of a course allowing the acquisi- If it is true that, as provided in Article 2, paragraph c) tion, at elementary and secondary levels, of teacher of that statute, the existence of a valid marriage, with- professionalization. The arguments provided indicated out a judicial declaration of separation «preclude[s] the the course was only publicised through a specific trade assignment of rights or benefits, for life or death, based union, the enrolment (only possible during one day) on a de facto union», nothing can suggest, under that was made at the siege of such union and the illegality statute or another, that the minimum duration of a de of the publicised effects of professionalization was only facto union must take place subsequently to the dis- later remedied, by an act of the Government. solution of a previous marriage. 2. These facts were substantially confirmed and the 4. Therefore, the Ombudsman concluded that the rule in Open University was censored about this matter, the question is not an exception to the «constitution of a Ombudsman stressing the need to prevent the comple- de facto union,» but simply of its mere irrelevancy or tion of courses outside the existing legal framework as inadmissibility, as preventing the simultaneous use of well as always ensuring disclosure of its realisation, by the two statuses. the University’s own means and always ensuring the 5. The review of the decision illegally taken was sug- possibility for students to register at the regular Uni- gested and the enforcement of these revised criteria versity desk. should be applied in future cases. This position was 3. The Government, following publication of Order No. upheld by the National Directorate of SEF. 4037/2010, of March 5, that healed the bygone illegal- ity of this course, was also addressed by the Ombuds- man, proposing the promotion of a new opportunity for Case R-4175/10 teachers who, on an equal footing with the beneficiar- Entity addressed: Ministry of Foreign Affairs ies of this process, had not achieved registration in the Subject: Foreigners Law, Visas, Travel insurance. course concerned. 4. This solution was carried out, by the organization of another course sponsored by the Open University, fol- Summary: lowing a protocol established with the Ministry. This 1. In several instances of processing of visa applications, course had adequate publicity, even in the Internet, the requirement of prior presentation of a travel insur- allowing candidates to present to the University their ance, in compliance with Article 52, paragraph 1, indent requests and for an adequate delay for registration. f) of Law 23/2007, was challenged. 76 2. The law requires the possession of travel insurance, to focus upon these particular circumstances, ignoring it covering the expenses necessary for medical reasons, has not been assured, in writing or by a sign language including urgent medical assistance and eventual interpreter, the right to information of this citizen. repatriation. 5. Referring to the social dimension of the constitutional 3. This demand was deemed excessive concerning two principle of equality, it was suggested to ADSE to recon- possible situations. Thus, nothing guarantees that, for sider the issue, admitting the late entry as a beneficiary an applicant presenting an insurance policy valid for of the said citizen. This proposal was accepted, and the the desired dates of travel, he or she person in question was enrolled retroactively to the a) would be granted a visa in due time; end of the term legally established. b) would be granted a visa at all. 4. In the first case, a new insurance policy would be man- datory, in either situation the current legal solution lead Case R-6369/09 to useless spending by the applicants. Entity addressed: Health Authority. 5. The Secretary of State for Foreign Affairs and Coop- Subject: Mental Health; Warrant for coercive examination. eration was thus challenged about the adequacy of Conditions for issuing a warrant to conduct a citizen to a health enforcing another rule of conduct, fully respecting the facility, for examination of a mental condition determining scope of the legal norm, which is to ensure that no for- compulsory medical care. eign national travels to Portugal without having certain risks covered by an insurance contract. 6. It was suggested that applications for visa should be Summary: accepted with a mere warning to applicants of the 1. A citizen complained against being, without warning, need, after a positive decision and before actually issu- detained by military of the National Republican Guard, ing the visa, submit proof of contract of travel insurance and conducted to a hospital for psychiatric observation. for the desired dates of travel. After being observed, no relevant mental problem was 7. This proposal was not accepted, the entity in question found. arguing with the Community Code on Visas. As this 2. The situation was investigated with the proper health issue is relevant in terms of simplifying procedures authorities and it was possible to conclude that the and reducing taxes on beneficiaries, often with limited order carried out by the National Republican Guard resources, it remains on study in order to overcome the (GNR) was issued upon the simple receipt of a letter, obstacles put forward. containing a set of claims about the ordinary behaviour of the citizen concerned. The account given in this let- ter, according to the Health Authority, indicated serious Case R-4561/10 mental disorders, likely to cause imminent danger to Entity addressed: ADSE (Healthcare system of civil servants) property, to the patient and others. In addition to the Subject: Health; Enrolment; termination of the right of content of this letter, the administrative decision was enrolment in the ADSE based only on the consultation of prior clinical data, which contained a generic indication that the patient had suffered from an indiscriminate mental disorder. Summary: The citizen in question was never been called to appear 1. A citizen who for more than six months had begun to voluntarily before the Health Authority, prior to the work in a local council, was being prevented to enrol in issue of the warrant. ADSE, as a result of the legal norm that allowed only six 3. The Ombudsman concluded that the Administration months to the option of being included in this special failed to prove the existence of the legal terms allow- healthcare support scheme to civil servants. ing the issue of a warrant, the conduction to a psychi- 2. This citizen invoked her ignorance of such rule was atric facility carrying itself a high probability of collision aggravated by her hearing impairment, arguing that with the fundamental rights of citizens. the information provided to the persons who took 4. Either in contact with the authority concerned, and with office at the same time was merely oral and, therefore, the regional Health Authority, it was considered that a not suited to her actual condition. widespread recognition of such severity and the iden- 3. The Ombudsman first confirmed with the municipality tification of performance criteria and evidentiary steps in question the version presented as factual, which the to be used as preliminary reference points should be local body promptly did, expressing its full opening to developed. find a suitable solution. 5. Founding an apparent disparity of criteria adopted by 4. Accordingly, it was noted that the ADSE had not seemed the various local health authorities, in the assessment 77  of compliance with the prerequisites required for the b) ensuring impartiality of those conducting the test, compulsory detention, the Ombudsman proposed to stating a mandatory non coincidence between the the Director-General of Health the adoption of a mini- person who determines the test and that who con- mum set of criteria, forming the necessary uniform ducts it; guidelines for this kind of action. c) e nsuring the possibility to another test, at the 6. Thus, within the responsibilities of health authorities, expense of the inmate only if it provides the same responsible for determining the transportation of citi- positive result. zens to a hospital for evaluation, it was suggested the 6. Whilst many of the decisions in which a positive analy- issue of guidelines containing, for example, the pre- sis has relevance are now subject to external scrutiny, vious exhaustion of existing less restrictive measures the Ombudsman made clear that it was very important available to health authorities, before being issued a to dispel any suspicion about the legitimacy of such warrant, including a personal contact with the citizen means of control. targeted for such measure, as well as more in depth concretization of what should be considered as an «imminent danger». Case R-1372/08 Entity addressed: General Directorate of Prisons Subject: Penitentiary affairs; Security and discipline; Detection of drug abuse. Lack of specific regulations on testing inmates for alcohol and drug abuse. Summary: 1. After an inquiry on a specific complaint, the Ombuds- man addressed the General Director of Prisons about the omission of any rules ensuring the proper realiza- tion of tests to check alcohol or drug abuse within the prison population. 2. Taking argument in a long-time existing regulation about the same tests directed to Prison Guards, sev- eral issues were underlined, among them the terms and conditions for realization of these tests, the type of materials used, the identification of a responsible per- sonnel, with preference to health personnel, and the possibility of rebuttal of the results. 3. In response, the addressed entity noted that, the new Code of Execution of Prison Sentences allowing to con- duct these tests (Article 8, paragraph g), this matter would await the completion of the drafting of the Gen- eral Regulation of Prison Services. 4. The Ombudsman replied that, at least from the text of the draft General Regulation that he had knowledge, nothing appeared to be provided to adequately resolve the issues in question. The uncertainty about the date of completion of such a procedure would also advise precaution and a fastest response to the most pressing issues. 5. Therefore, three key aspects that should be, as soon as possible, subject to regulatory framework, were stressed: a) jurisdiction to determine the performance of a con- trol, with possible communication to the Chief of Guards or to the Warden; 78 2.2.7. Rights of the Children, Elderly Persons and Persons with Disabilities Matters concerning the rights of children, elderly persons ments of the Office of the Ombudsman, according to the and persons with disabilities are currently handled by a spe- subject in question. cialized structure – the Department on Children, Elderly Per- sons and Persons with Disabilities (N-CID) – which has been in operation since late 2009, under the direct supervision of Children’s Hotline Deputy Ombudsman Helena Vera-Cruz Pinto. The N-CID aims to be both a specialized and a multidis- In comparison to the previous year, in 2010 there was a ciplinary structure, combining several areas of knowledge, significant increase in the number of calls received by the such as Law, Psychology and Social Work, in order to handle Children’s Hotline (153%). This difference can, in essence, be the subjects under its remit from the most complete and explained by the fact that the operation of the Hotline was comprehensive perspective possible. Thus, in addition to interrupted for almost three months in 2009. defending the rights of children and young people, elderly persons and persons with disabilities pursuant to com- Calls received Calls made plaints, it also seeks to develop more proactive action, by Complainants Entities* 856 focusing on promoting and disseminating information on 146 207 the rights of these particularly vulnerable groups. * This includes both the entities complained against and the authorities from which the staff of the Hotline seeks collaboration. Since its creation, the N-CID has brought together two specialized and toll-free telephone services of the Portu- guese Ombudsman: the Children’s Hotline and the Elderly Citizens’ Hotline. Thus, the additional 298 calls received in 2010 only allow The Children’s Hotline was created in 1993 and aims to to conclude that the regular operation of the Hotline was receive complaints concerning children who are at risk or resumed. Possible trends of increase or decrease of calls danger, submitted either by the children themselves or by may only come to be detected in the future, when the adults on their behalf. The purpose underlying its creation periods being compared are equivalent. was to address the particular difficulties experienced by chil- dren and young people in exercising their right of complaint and denouncing violations of their rights. In 1999, which was proclaimed by the United Nations as the International Year of Older Persons, the Elderly Citi- Main interventions of the Hotline 400 zens’ Hotline was created, in order to disseminate amongst 350 349 elderly people information about their rights, including the 300 250 right to health, welfare, housing, family obligations, social 200 188 150 work, equipment and services, thus contributing to a more 100 50 30 35 active involvement of the elderly in society and enabling 0 1 them to better exercise their rights. In addition to providing Information Opening of a case Intermediation Follow-up information, the Hotline intervenes in cases where elderly Information and referral persons are in a situation of vulnerability and their rights are not respected. Additionally, in 2010, the necessary logistical conditions were met to enable the achievement of one of the essential goals of the N-CID: the creation of the Persons with Disabili- ties’ Hotline (which started to operate experimentally in the The main interventions of the Hotline were, as in previous first trimester of 2011). years, provision of information (in 349 cases) and provision It is important to note that, due to the phased implemen- of information coupled with referral of the case to the com- tation defined for the N-CID, it does not yet handle formal petent entity (188). These were followed by intermediation proceedings. Such task is entrusted to the other depart- and follow up (30 and 35 cases, respectively). 79  Regarding the main issues raised in calls, the exercise In terms of the age of the children and young people con- of parental responsibilities is by far the most frequently cerned, a marked predominance of the group between 3 addressed subject (194 cases), only approached by the and 12 years of age was found(309 calls) , although children issue of abuse, both physical and psychological (110), and under 3 years also motivate many requests (68). by situations of negligence (84). Other situations are also addressed in many calls, but in a more fragmented way in Age of the Children terms of absolute numbers, as shown by the table below. 379 400 350 Main Questions Posed No. 300 250 Exercise of Parental Responsibilities 194 200 Abuse (physical and psychological) 110 158 151 150 Negligence 84 87 100 68 Activity of a Commission for the Protection 43 50 13 of Children and Young People (CPCJ) 0 Protection Measures 37 to 3 to 7 12 16 18 d ow n 3 to to an kn Up 8 13 Un Risk Behaviour 36 Fr m o Fr m o m 17 Fr o Information about the Hotline 35 Information about the Portuguese Ombudsman 34 Economic Need 31 Elderly Person’s Hotline Education and School Problems 31 Exposure to Domestic Violence 25 The growing use of the Elderly Person’s Hotline has been Sexual Abuse 24 frequently highlighted in recent reports of the Portuguese Psychological Counselling 21 Ombudsman. Functioning of Residential Child Care Institutions 19 However, also as regards this Hotline, the fact that its Exposure to Deviant Behaviour 19 operation has been interrupted for nearly three months Health Care 18 in 2009 does not allow for a more complete comparative Activity of Other Entities with Competence in Childhood analysis to be made. 11 and Youth Matters Social Responses / Equipment 11 Calls received Calls made Information on Judicial Protection of Children’s Rights 10 Complainants Entities* 2706 540 402 * This includes both the entities complained against and the authorities from which As regards the characterization of the children and young the staff of the Hotline seek collaboration. people concerned, as well as of the complainants, the avail- able data allows for a few conclusions to be drawn. A more balanced distribution of key interventions in noted Only 40 calls were made by the concerned children or in this Hotline, when compared with the Children’s Hotline: young people themselves. the provision of information continues to be the most fre- Indeed, family members are the main callers to the Chil- quent course of action (in 717 cases). But the simple referral dren’s Hotline (in 344 cases). In approximately 50% of these (297), the referral with provision of information (416) and situations, the parents themselves are the complainants. intermediation (132) also take place often. Relationship Complainant/Child Intervention of the Hotline 400 1200 1104 334 350 1000 300 800 717 250 229 600 416 200 400 297 150 200 132 115 37 3 100 72 0 53 40 Referral Intermediation Follow-up Opening of a case Information Other Information 50 13 0 and referral er m am f r nt s em ilybe r he ified re Co m m Ot nt Pa Ch ild un ity de Ot h hi m /h er Un se lf i Pr of es sio na l 80  Regarding the main issues raised in the calls, reference should be made to home care (246) and issues related to Relationship Complainant/Elderly Person health (234) and abuse (215). On the next level, but still 1200 above a hundred requests, there is the matter of nursing 1081 1000 homes (152) and issues related to abandonment (127). 872 800 As shown by the table below, many other situations 600 530 are also addressed in numerous calls, with three groups 400 197 of situations justifying special reference, due to their obvi- 200 20 ous relevance in the daily life of the elderly population: the 0 6 requirements and judicial procedure for interdiction and Se rvice mem erl hi y p m er /h so Other en ed s be er n se tif i inabilitation, the Solidarity Supplement for the Elderly and rs Co lf id m m Un Fa m Eld un ity ily the Long Term Care Supplement. Main Questions Posed No. In nearly 200 cases the request comes from the community, presuma- Home Care 246 bly with no family connection to the elderly person concerned. Health 234 A characterization in terms of age reveals for the first time a marked predominance of the group between 71 and 90 years of age (nearly Abuse 215 1000 calls), which perhapsdemonstrates the ageing of the Portuguese Homes 152 population. Abandonment 127 Complaints 106 Legal Information 106 Age of the Elderly Persons Social Action 105 1600 1474 1400 Services 74 1200 Neglect of Care 59 1000 800 Housing 57 600 494 457 400 Pensions 52 200 143 47 91 Fundamental Rights 46 0 5 70 80 90 90 n r6 Un to to to er kn Interdiction and inabilitation 41 de Un 65 71 81 Ov ow From From From Solidarity Supplement for the Elderly 26 Long Term Care Supplement 26 Information about the Hotline 21 Day Centre 12 Also here some conclusions should be drawn as regards the characterization of the complainants and the elderly population concerned by the calls. Unsurprisingly, elderly people themselves were the most frequent callers to the Elderly Person’s Hotline (872), although the number of family members calling is also sig- nificant (530). 81  2.3. Azores Local Office The Local Office of the Ombudsman in the Autonomous Distribution of cases by subject matter – 2010 Regions of the Azores handles cases in which the addressed entity is located within the region, regardless of the matter 30 28 24 under analysis. 25 20 23 In 2010, 128 new cases were opened in the Local Office 20 17 16 of Azores, 127 of which pursuant to complaints submitted to 15 the Ombudsman and 1 on the Ombudsman’s own initiative. 10 5 In addition, there were 77 cases from previous years, in a 0 total of 204 cases investigated in 2010. Ri tt o an En gh d vir ts Lif on e mQu en al t ity c f ec on tax o Also in 2010, 115 cases were closed, 41 of which had on su p om me ay ic rs a ers ag n , So en d ts cia lR ig ht Ri gh ts of s been opened in the same year. W or ke rs Ri gh tt an Fr o d ee Se do cu m gh Ot he rF un da rit y Ri m e The number of cases investigated and closed in 2010, and Ri nta gh l ts of cases from previous years, is the following: The number of complaints presented in person at the Investigated in 2010 Local Office (59) bears a close relation to the number of - Pursuant to a complaint 127 complaints originated in the Terceira island (64), where the - On the Ombudsman’s own initiative 1 Office is located. Still, complaints were received from all the -Opened in previous years 77 islands, with the exception of Corvo: São Miguel, with 36, Closed in 2010 and Pico, with 11, stand out. - Opened that year 41 - Opened in previous years 74 Pending on 31.12.2010 - Opened in 2010 86 Geografic distribution of complaints - 2010 - Opened in previous years 3 % 60 48 50 One should firstly remark the balance as regards the 40 number of complaints concerning the different areas of 30 28 activity of the Ombudsman. Notwithstanding the prevalence 20 of the complaints concerning the Rights of Workers (22% of the total), issues concerning Other Fundamental Rights 10 8 5 2 3 3 1 1 1 (nationality law, penitentiary issues, education and health) 0 0 are separated from those related to the Right to Justice and M aria igue l Te ira io ac sa Jo rg e Pico l ia Fa s re Flo o rv Co an nl d tries M rc e ai un Security by only 1 percentage point (19% e 18%, respec- .a S. Gr S. Co St M ign re tively). The same balance is noticeable between the Rights Fo to Life Quality and the Environment (13%), Rights of Taxpay- ers, Consumers and Economic Operators (16%) and Social Rights (12%) are concerned. Complaints aimed at the Autonomous Regional Adminis- tration (38%) are closely followed in number by complaints aimed at the Central Administration (28%). Local authori- ties, public enterprises and courts also motivated a signifi- cant number of complaints. 82  Addressed Entities - 2010 Rights of Workers 60 48 The questions raised with regard to the administrative 50 organization and public employment relations are essen- 40 tially divided around three areas of focus: delay in replying N.º de processos 30 28 and failure to decide; competitions for recruitment of work- 20 ers; and the status of teaching staff. It was with regard to 8 the latter, and specifically to the possibility of accumulating 10 1 1 2 teaching functions, that the Ombudsman recommended the 0 r it Ad rts es cia following: in view of Article 180, paragraph 5, of the Statute ies m Co r is ti Ot ons lA utho Au to no in Ce ist nt ra ra tio l u en terp so he / rs of Teachers In Pre-School and Basic and Secondary Education m n of the Autonomous Region of the Azores, the competent ca o Ad us lic as Lo m Re in g i Pu lic ist on b Pu ra a tio l b n regional department determine that, as regards teachers of the 2nd and 3rd cycles of basic and secondary education, the global limit of teaching hours be successively reduced, pro- Right to Environment and Life Quality portionally to the reduction of the teaching load that these teachers may benefit from under Article 124 of the same As far as these rights are concerned, complaints concern- Statute, rounded off to the unit, and not by mere subtrac- ing the failure of the local authorities to act are recurrent. tion, from the global limit of teaching hours of accumula- That is, the complaints submitted argue that the Adminis- tion, of the number of hours of teaching load reduction to tration, in particular local authorities, are especially lenient which they are entitled due to age and time on the job. towards those who breach laws against noise pollution, who Recommendation 4-A/2010 was accepted with effect in do not ensure salubrious conditions or who build without a 2010-20111. license, while also being slow in the resolution of the prob- The cooperation of the Autonomous Regional Administra- lems that are brought before them in this regard. Still, it tion was also obtained in a case where the application of is possible to point out a case where the intervention of the legal procedure for work accidents was requested, in the Ombudsman contributed to a Municipal Council imme- a situation where, due to manifest lack of care, it had not diately and definitively closing an illegal mechanical work- been applied from the outset. shop, even if an insistence was necessary to ensure effective compliance with its decision. Right to Justice and Security Rights of Taxpayers, Consumers and Economic Operators The number of complaints concerning judicial delays remains important but there were also complaints involving The interventions in respect to these subjects deal mostly the Portuguese Bar Association and the standards of conduct with income taxes and transactions. Thus, a complaint con- of four of its associates. cerning the taxation of vehicles imported from the European Union was investigated. But, in addition, one has to high- light several cooperation requests aimed at public enter- Other Fundamental Rights prises and associations about consumer issues (electricity, telecommunications and tourism). Several cases were investigated following complaints related to the functioning of the penitentiary system, health issues and the law of foreigners and nationality. Social Rights The complaints submitted by prisoners prompted inter- ventions in the prison establishments of Ponta Delgada and In addition to the cases investigated pursuant to com- Angra do Heroísmo that were sufficiently addressed, allow- plaints within the welfare system and the solidarity sub-sys- ing the elucidation of the interested parties. tem, the investigation of complaints concerning social hous- In the area of health one should highlight the interven- ing was also ensured. The good response of the Regional tion carried out at the Espírito Santo Drug Abuse Treatment Autonomous Administration is noteworthy. Centre of the Hospital of Angra do Heroísmo2. 1 http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec_4a2010.pdf 2 http://www.provedor-jus.pt/restrito/rec_ficheiros/acores_21122010.pdf 83  Concerning good practices, one should mention a case of the National Health Service’s user charges where it has regarding the conditions of support to inter-island transpor- referred the patient. In fact, the Regional Health Service has tation of patients. Here the Ombudsman reminded to the yet to adopt regulation regarding the regime and modali- health care centre concerned that demanding from citizens ties of participation of users in the costs, even though user a declaration of commitment not to request an additional charges are envisaged. But, if it would take on such a pay- trip, where the need for it in order to accompany another ment as concerned non-referred users, it would be subvert- sick family member could be anticipated, seemed to stem ing its very reason for existing. As for the fact that the case from lack of trust on citizens’ honesty and also to be an related to a University student, the Ombudsman reminded unnecessary procedure, since the request for a trip could not that the Region has University education with various train- be refused, as this would be manifestly abusive behaviour. ing areas; and that a University student from the Azores In its reply the Autonomous Regional Administration who, in a situation of emergency, would go to a National announced that it would transmit instructions to the Health Service unit would not be in a different situation from addressed service regarding the unnecessary nature of the any other student who, in the same circumstances, needed procedure, in light of the principle of good faith that exists to go to a hospital away from his/her area of residence; and between Public Administration and the citizens. that, in light of a different health situation, it would always In the area of the law of foreigners and nationality, some be possible to refer him to the Regional Health Service. cases were investigated concerning alleged delays in the assessment of requests for the granting of nationality. Case R-131/10 Entity addressed: Regional Directorate for Labour, Professional Summary of some interventions of the Ombudsman Qualification and Consumer Rights. Subject: Administrative procedure. Duties of response, of prior hearing of the interested party and of stating reasons. Case R-3688/09 Entity addressed: University of the Azores Subject: Civil liability. University of the Azores. Injury of a Summary: student. The addressed service refused the carrying out of exams relating to a training action in the area of activity of a cer- tain company, despite having previously authorised it. It also Summary: refused subsequent requests for other training actions. A student who was injured while participating in a sports Specifically, having carried out an inspection to the facili- competition in representation of the University was refused ties of this company, only six months later did it communi- payment of health care expenses by the University and cate its decision to refuse courses for which authorisation school insurance. had been requested in the mean time. It also barred stu- Following the Ombudsman’s intervention the University dents who had already undergone training from undertak- paid the expenses, upon presentation of proof of expenses. ing the exam. In addition, the University of the Azores informed that it Pursuant to investigation, the service admitted to the would reanalyse the special insurance scheme for students, existence of error in the prohibition of exams within the pre- so as to prevent similar situations. viously authorised course, and communicated the revision of its decision. Also, it recognised that it should have previously held a hearing of the interested parties, so it determined Case R-2622/09 that the procedure be resumed at that point. Entity addressed: Regional Secretariat of Health Subject: Regional Health Services. User charges. Summary: In a complaint it was argued that it was illegal and unfair for the National Health Service to request user chargers to a user of the Regional Health Service, which is free of such charges, especially in the case of a University student who was unable to access the services of the Regional Health Service. However, the investigation of the case allowed to conclude that the Regional Health Service bears the cost 84 2.4. Madeira Local Office The Local Office of the Ombudsman in the Autonomous Region of Madeira handles cases in which the addressed entity is located within the region, regardless of the matter Entities Addressed - 2010 % under analysis. 40 38 In 2010, 141 new cases were opened in the Local Office of 35 Madeira, 138 of which pursuant to complaints submitted to 30 25 the Ombudsman and 3 on the Ombudsman’s own initiative. 25 In addition, there were 94 cases from previous years, in a 20 total of 235 cases investigated in 2010. 15 12 13 12 Also that year, 130 cases were closed: after the interven- 10 tion of the Ombudsman, in 62% of these cases the com- 5 plaint was satisfactorily resolved; and a total of 20% of the 0 complaints were considered unfounded following due inves- En ts th Lo in Ce m ur As ter or ca iti l ist nt Ad ous Co so pr es ra ra m Re cia ise tio l in gi tigation. Au m n ist on ra a tio l tio s/ ns Ad no n The number of cases investigated and closed in 2010, and Au to of cases from previous years, is the following: Investigated in 2010 - Pursuant to a complaint 138 - On the Ombudsman’s own initiative 3 The thematic balance in the overall number of complaints -Opened in previous years 94 brought to the consideration of the Local Office of Madeira Closed in 2010 was strengthened, with four main areas of intervention in - Opened that year 49 2010: environment and urban planning (35%)1 traditio- - Opened in previous years 81 nally predominant in the sphere of civic participation and Pending on 31.12.2010 intervention; protection of rights, freedoms and guarantees - Opened in 2010 93 (20%)2; issues relating to financial matters and taxation - Opened in previous years 12 (19%)3; and, finally, issues pertaining to judicial affairs, in fourth place, with 17% of requests4. About 38% of the complaints accepted by the Local Office had City Councils as targets (the Municipality of Funchal leads with 48% of the total complaints received in this con- text), while 13% of cases referred to courts. The consolidation of complaints against the bodies of the Autonomous Regional Administration of Madeira (25%) should be highlighted. Within this number the higher inci- dence of cases related to the Fiscal Affairs Department 1 Regarding urban planning issues, where the interlocutors are most of the times the (31%) and the Social Security Centre of Madeira (21%). local authorities, citizens’ requests focused mainly on the legality of works done by private entities (licensing, breach of rules on the distance between buildings, com- pliance with the urban parameters defined in the Municipal Master Plan). Regarding the environmental sector, a large percentage of the issues addressed focused on situations relating to nuisances caused by noise. 2 Prevailing, as had happened in 2009, issues relating to the breach of duty to respond by public entities, and matters on education and health. 3 The majority of complaints referring to irregular procedures by the Tax Administra- tion. 4 In particular regarding judicial delays. 85  Distribution of cases by subject cular the assessment of compliance with the urban parame- ters defined in the Municipal Master Plans). The case was 60 closed pursuant to acceptance of the recommendation by 52 50 the addressed entity (Municipality of Funchal) and after due investigation. 40 In a different context, having received information on the 30 lack of dignity in the daily life conditions of female inmates 26 27 23 at the Funchal Prison Establishment (FPE), which stemmed 20 from the transfer to that space of inmates previously confi- 10 ned in the Prison Establishment of Viveiros, the Ombudsman opened a new case on his own initiative6, under Articles 4 7 4 2 0 tt o an En d vir Lif on and 24 of Law 9/91, of 9th April. e m After investigative steps undertaken with the Funchal Ri gh ts Qu en al t ity co of t ec n ax on su p om e aym ic rs a ers ag n , en dts So cia lR ig Prison Establishment and the General Directorate of Prison Ri gh ts of ht s W or ke rs Ri gh tt o ghOtherF un an Fr d ee Se do cu m da rit Services, it was found that all the inmates in the Funchal Ri m en ta lR ig y pe e Rig op lde hts ht s le rly o w p f ch ith eo il di ple dre s a a n, bi n lit d ie Prison Establishment lived in grossly inferior conditions s to those currently existing, by virtue of the closure of the Regional Prison Funchal (EPR) in May 2009. In the distribution of complaints as to their geographical Because the transfer in question related to inmates with origin there is a predominance of Funchal (59%) and, at special security requirements, it was decided to occupy a some distance, of Santa Cruz (16%), followed by the munici- ward where until then were four female inmates, subse- palities of Machico (4%) and Calheta (4%). quently relocated to a different ward created specifically for that purpose. The existence of suitable conditions for inmates was also evaluated: the existence of two show- ers was reported, each serving four cells, and all facilities were found to have sanitary facilities and TV. The population Geografic distribution of complaints - 2010 % enjoyed general access to the library and to the multipur- 60 59 pose room of the Establishment. Despite the lack of a room 50 for meals (which were taken in the individual cells), as well 40 as the lack of space for a «nursery» designed for newborns and toddlers, interviews with the inmates allowed to con- 30 clude on their overall satisfaction with the conditions offered 20 16 by the Funchal Prison Establishment. 10 In 2010 investigations were concluded in a case promo- 4 4 ted by initiative of the Ombudsman in 20077. This case had 3 2 2 3 3 2 1 1 0 as object the effective compliance with the mandatory sys- ha a e nt a on iz l lh So an bo R. Br av a Fu et l Vi ce nt Lo M M S.ac hi Cr co nc Ca P. Sa C. P. Sa uz tem for protection of wells and tanks, prescribed by Regio- S. P. M ai nl nt an o d nal Legislative Decree 20/89/M, of 28th July. Currently, the large majority of municipalities within the region has an updated inventory in accordance with Article 3 of the afo- For the first time, the written submission of complaints rementioned Regional Legislative Decree, having progres- was predominant (46% of cases), followed by the presenta- sively implemented more agile supervisory mechanisms, tion in person (35%). In turn, the use of electronic means in compliance with the minimum standards for safety set remains third in preference, with 18%, despite the ever- by Article 36 of the General Regulation of Urban Buildings rising evolution registered in this regard. (Decree Law 38382, of 7th August 1951), as a result of what In 2010, the Portuguese Ombudsman issued a recom- is established in Article 2 of the Regional statute cited above. mendation5 regarding urban planning issues, an area in Also in 2010, the Ombudsman completed an inspection which the intervention of the Ombudsman is frequently to the Homes for Children and Young People and Tem- requested due to the inertia of governmental bodies when porary Placement Centres of the Autonomous Region of responding to the citizens, especially in matters pertaining to the legality of constructions built by individuals (in parti- 5 Recommendation 1/A/2010, in case R-3741/07 (Mad.). http://www.provedor-jus. 6 See chapter «Cases and Inspections of the Ombudsman own Initiative» – Case pt/recomendafich_result.php?ID_recomendacoes=449&&documento=Recomenda P-4/10. ção n.º 1/A/2010. 7 Case P-07/07. 86 Madeira.8The report produced following the inspection facilities included in the National Health System, transferring visits sought to characterize the children in placement and to the Regional Health Administrations the financial respon- the homes, taking into account issues such as sanitary and sibility for reimbursement for medication given to benefi- health care, food, night surveillance, organization of leisure ciaries residing in the mainland and who were not covered and outdoor activities, safety and the quality of infrastruc- by a health subsystem. tures. In parallel, by way of a protocol signed with the National This inspection covered 9 Homes for Extended Placement, Association of Pharmacies (NAP), the pharmacies establi- 3 Temporary Placement Centres, an Autonomy-building resi- shed in the mainland that weremembers of the National dence, and the specific case of the Psychopedagogical Reha- Association of Pharmacies would reimburse users from the bilitation Centre of the Sagrada Família. Autonomous Region of Madeira, charging the cost to the In the final report9, the findings of the inspection stressed region later. In the case of pharmacies that were not mem- the important role played by the various host institutions of bers, the reimbursement of users would be guaranteed by the Autonomous Region of Madeira, in particular, by their the Administration Institute of Health and Social Affairs, officers, technical staff and other staff members. Neverthe- IP-RAM.11 less, the monitoring of everyday life in the homes carried In another case, following the intervention of the Ombu- out by the entities that determine the application of the dsman, the University of Madeira adopted specific internal measure of placement in an institution was considered insu- rules establishing new procedures relating to requests for fficient. The need for regular visits, including the possibility accreditation of courses and recognition of degrees12. of hearing the children, was emphasised. Taking advantage of the geography of the area and the Given the above considerations, the Ombudsman addres- possibility of a closer approach on the various problems pre- sed a set of suggestions to various entities, most notably sented by the complainants, the investigative efforts pro- proposals submitted to the Minister of Justice, the High moted by the Ombudsman continued to enable a quicker Council of the Public Prosecution Service and the Regional treatment of some of the topics discussed, while promo- Secretary for Social Affairs10. ting, with the entities involved, balanced solutions with a Due to the effective recognition of the Portuguese preventive and precautionary nature designed to serve as Ombudsman’s capacity to intervene in relation to the vari- reference and solve similar problems in the future.13 ous bodies of public powers, almost the entire Local Admin- In one of these situations, the Ombudsman analysed a istration, as well as Autonomous Regional Administration complaint submitted by the legal guardians of children with bodies, contributed to speed up the procedural mechanisms hearing impairment who attended the 1st/2nd year of the used, by responding with reasonable promptness to the first cycle of basic school and pre-school, requesting his requests addressed to them. intervention with regard to the Regional Education Depart- As regards good practices it is fair to point out the ment/Regional Directorate of Special Education and Reha- improvement of the response to inquiries by the Municipal- bilitation, and contesting the terms in which the students ity of Santa Cruz, although there is still some inefficiency had been integrated in a class that was already formed and displayed by its departments, occasionally motivating unjus- included also hearing students, to the detriment of their tified procedural delays. learning process. The investigation involved several working The intervention of the Ombudsman as regards the meetings with the presence of some of thecomplainants. Regional Secretariat for Social Affairs and the Ministry The strengthening of preventive mechanisms designed to of Health should also be emphasized, as it made pos- avoid some of the situations described in future school years sible to improve the procedure for covering costs result- was suggested14. ing from provision of health care to users of the National Health Service in the Autonomous Region of Madeira. The users mostly complained that the principle of universal access to health services provided by the services and insti- tutions of the Regional Health Service was not fully guaran- teed, especially with regard to users who stayed temporarily in that archipelago. After investigative steps taken by the Portuguese Ombuds- man, the Central Administration of the Health System, IP, publicized a normative rule directed to all the services and 8 See chapter «Cases and Inspections of the Ombudsman own Initiative»– Case 11 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=320. P-17/10. 12 Case R-2926/10 (Mad.). 9 http://www.provedor-jus.pt/restrito/pub_ficheiros/Relatorio_Madeira_2010.pdf 13 Cases R-3177/09 and R-5435/09. 10 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=360 14 Case R-2518/10 (Mad.). 87  Summary of some interventions of the Ombudsman Article 4 the designated smoking areas in casinos, setting a maximum percentage of 30% of the total area open to the public. The regional regulations regarding the physical Case R-3839/05 boundaries for smokers as well as the rules relating to signs Entity addressed: Regional Secretariat of Environment and and devices for air extraction and ventilation systems exist- Natural Resources; Regional Directorate of Commerce, Industry ing in the Madeira Casino, were to be protected and applied. and Energy; Electricity Company of Madeira. The Ombudsman ordered the closing of the case and con- Subject: Environmental disturbance attributed to the sidered that the complete reintegration of legality had been exploitation of the Vitória Thermal Power Plant achieved. Summary: Case R-4198/09 As regards environmental matters, following the interven- Entity addressed: Directorate of Customs of Funchal tion of the Ombudsman concerning the Regional Secretariat Subject: Public employment. Career of Secretary of Customs. of Environment and Natural Resources/Regional Directorate of Environment, Regional Trade, Industry and Energy and the Operative Unit of Public Health Care in Funchal, the adoption Summary: of administrative measures against environmental pollution The Ombudsman intervened with regard to the Direc- caused by activities undertaken by the Victoria Power Plant torate of Customs of Funchal (Directorate General of Spe- (belonging to the Electricity Company of Madeira, located cial Taxes on Consumption), following a complaint against in Vale da Ribeira dos Socorridos, Funchal) was monitored. the decision to proceed with the integration of employees According to the complaint, the activity pursued by this belonging to the career of Secretary of Customs in a scale of thermal power plant would cause damage to the environ- service regarding passengers/cargo and transport ships15. ment and the peace and welfare of nearby residents, due to The complainants sustained that such functions would be the propagation of noise and the emission of air polluting alien to the functional content of their career. substances. The negative environmental impacts on health The inquiries led to the conclusion that the Customs of and life quality for residents in that area and for agricultural Funchal were an organic unit of regional nature, responsible production were particularly pointed out. for ensuring, in its area of jurisdiction, the continued opera- Following inquiries, the environmental license was tional activities and ongoing management associated with issued, under the applicable law, as was the license for the the tasks of the Directorate General of Customs and Spe- expansion of that Station, in accordance with the rules of the cial Taxes on Consumption, capable of substantiation in the Environmental Impact Statement. Autonomous Region of Madeira. Contrary to what was claimed, the list of duties inherent to the career of Secretary of Customs, established in para- Case R-6484/08 graph 5 of Annex II of Ordinance 531-A/93, of 20th May, as Entity addressed: Regional Inspectorate of Economic Activities; amended by paragraph 2 of Ordinance 390/98, of 9th July, Subject: Games Inspection Service Compliance with Law was not exhaustive but merely illustrative, necessarily invol- 37/2007, of 14th August. ving the performance of other tasks not listed, such as ser- vice to customers. Moreover, the career of Secretary of Cus- toms constituted, for the purposes of Article 1, paragraph 1, Summary: and Article 4 of the Decree-Law 274/90, of 7th September, In the context of economic and financial affairs and taxation with subsequent changes, a career with a special regime, matters, the intervention of the Ombudsman regarding the implying constant availability of the staff16. Regional Inspectorate of Economic Activities and the Games Therefore, it was concluded that the Secretaries of Customs Inspection Service improved the application, by the Madeira had not been appointed for the performance of functions of Casino, of some aspects of the tobacco law (Law 37/2007, other careers in customs, but rather for the performance of of 14th August, adapted to Madeira by Regional Legislative duties similar to those already within their workplaces, their Decree 41/2008/M, of 15th December). The various inquiries own specific career or common careers. undertaken reflected a gradual compliance by the tobacco- selling concessionaire with the creation of alternative smoke- free spaces, following the requirements and providing a con- 15 Case R-2518/10 (Mad.). tinuous assessment within the legal regulations established. 16 To read in more depth about the concept of constant availability, see the Advise It should be pointed out that Regional Legislative Decree of the Consultative Council of the Office of the Prosecutor-General, P000051992, at http://www.dgsi.pt. See also Article 43, paragraph 3, of Law 12-A/2008, of 41/2008/M, of 15th December, expressly defines under 27th February. 88 2.5. Recommendations of the Ombudsman The Ombudsman has the competence to address Recommendation 2/A/2010 recommendations to the competent bodies, with a view to Entity addressed: Minister of Justice correcting illegal or unfair acts of public powers or to improv- Subject: Granting of Portuguese nationality. Legal ing their services. residence in Portugal. Service in the Portuguese Army. The addressed body must, within 60 days, inform the Good faith. Ombudsman of its position on the issue. The decision not Date: 10.02.10 to accept the recommendation must always be grounded. Summary: Recommends that the time the complai- If the Administration does not act according to the recom- nant served in the Portuguese armybe counted as legal mendations or if it refuses to cooperate as requested, the residence in Portugal, in the context of the process of Ombudsman may address him/herself to the Parliament, granting of Portuguese nationality by naturalization. stating the reasons for his/her initiative. Status: Accepted. http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- In 2010 22 Recommendations were issued, 9 of which dacoes=415 concerning the need for amendments to legislative acts («B» recommendations). These recommendations were addressed to the following entities: President of the Por- Recommendation 3/A/2010 tuguese Parliament (3); Minister of Justice (3); Minister of Entity addressed: Mayor of Sesimbra State and Finance (2); Minister of Environment and Land Use Subject: Conservation and sewage treatment fee. Planning (1); Minister of Education (1); Regional Secretary Date: 11.02.10 for Education and Training (1); Secretary of State Assistant Summary: Recommendation seeking to prevent the prac- to the Minister and for Budget (1); Presidents of the Local tice of imposing charges related to the conservation and Authorities (7); President of the Board of Directors of the sewage treatment in cases / time periods in which there Institute for Mobility and Land Transport (1); Chief Executive is no availability of the wastewater public system. Officer of the Intermodal Transports of Porto (1); President Status: Partially accepted. of the Administration Board of the Santarém Hospital (1). h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ recomendacoes=418 «A» Recommendations (Article 20, paragraph 1, indent a) of the Statute of the Ombudsman) Recommendation 4/A/2010 Entity addressed: Regional Secretary for Education and Training Recommendation 1/A/2010 Subject: Teaching service. Teaching load reduction. Entity addressed: Mayor of Funchal Accumulation of functions. Subject: Urban Planning Law. Illegal construction works. Date: 02.06.2010 Date: 12.01.10 Summary: The Ombudsman recommended to the Regio- Summary: Recommendation on urban planning mat- nal Secretary for Education and Training that, in order to ters, aiming to ensure that under Articles 107 and 108 of determine the number of authorized hours of accumula- Decree-Law 555/99, of 16th December, as subsequently tion of functions, in relation to the teaching load reduc- amended, proceedings were initatiated to take adminis- tion, a proportion be used and not just a simple reduction. trative possession of the property at stake and its demoli- Status: Accepted with effect for the academic year 2010- tion carried out at the expense of the offender. 2011 Status: Accepted. http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- dacoes=452 dacoes=449 89  Recommendation 5/A/2010 Recommendation 8/A/2010 Entity addressed: Mayor of Tomar. Entity addressed: Chief Executive Officer of the Intermo- Subject: Land use planning. Public domain. Street names. dal Transports of Porto Numbers. Lack of competence Subject: Guarantee period of «Andante» cards. Date: 23.03.10 Date: 25.06.10 Summary: The Ombudsman concluded that the name of Summary: This Recommendation aimed to extend to two a street had been arbitrarily changed by the civil parish years the guarantee period of «Andante» cards (tickets of Asseiceira, with no powers on the matter, which had valid for the collective passenger transport of Porto). Such caused damages to the public (lost mail, uncertainty in a period was of three to six months, a situation which, identifying land registry and fiscal property). The munici- apart from being illegal, put the Porto’s transport users pality had not acted to address this matter. Therefore the in a situation of inequality vis-à-vis the Lisbon users. In Ombudsman recommended that a decision be taken on Lisbon, also pursuant to an intervention of the Ombuds- the exact definition of two street names and their numbers. man, a 2-year guarantee period was already recognized Status: Not accepted. as regarded the «Lisboa Viva» cards. h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ Status: Accepted. recomendacoes=477 h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ recomendacoes=457 Recommendation 6/A/2010 Entity addressed: Mayor of Vila Nova de Famalicão. Recommendation 9/A/2010 Subject: Environment. Salubrity. Livestock sector. Cow Entity addressed: Minister of State and Finance. farm. Subpoena. Enforcement. Subject: Culture. State assets. Santo António de Campo- Date: 29.03.10 lide church. Antigo Convento de Santa Joana curch. Church Summary: The Ombudsman recommended that a cow assets. Confiscation. Restitution. farm be compulsory closed by removal of the animals. Date: 28.06.10 He did so taking into account that the Municipality of Vila Summary: The Ombudsman recommended that the Nova de Famalicão had recognized for 12 years that this ownership of the Church of Santo António in Campolide farm was installed in a clandestine construction and cau- be transferred back, at no cost, to the Brotherhood of sed disturbance and insalubrity to others. The Ombuds- Nossa Senhora do Rosário and Senhor Jesus dos Passos man also noted that numerous administrative procedures da Santa Via Sacra de Campolide. He did so after beco- and subpoenas had achieved no result whatsoever. ming aware of the sale by the State of the Convento de Status: Accepted. Santa Joana, in Lisbon, which the State never returned to http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- the Brotherhood, thus not conforming to the judgment dacoes=450 rendered by the Supreme Court of Justice in 1927. The res- titution is considered a moral imperative, also in view of the urgent need to rehabilitate the building, which since Recommendation 7/A/2010 1993 is listed as having public interest Entity addressed: President of the Board of Directors of Status: Not accepted. the Institute for Mobility and Land Transport. h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ Subject: European Union model parking card. Renewal. recomendacoes=459 Request. Date: 15.04.10 Summary: The Ombudsman recommended the intro- Recommendation 10/A/2010 duction, as soon as possible, of mechanisms to allow the Entity addressed: Mayor of Grândola. electronic submission of applications for renewal of the EU Subject: Land use planning. Public domain. Municipal roads. model parking card for people with disabilities who have Limitation. Private urban development. Free circulation. with limited mobility. Date: 12.08.10 Status: Accepted. Summary: Usurpation of the public municipal domain was http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- found to exist with regard to a control device placed at the dacoes=480 entrance of a private urban development giving access to the seashore. The aim of this device was to limit traffic and ensure payment of fees for the use of reserved parking spaces. Con- sidering that an allotment is not a closed condominium, the Ombudsman recommended that the collegiate executive 90 body of the Municipality of Grândola order the removal of the «B» Recommendations (Article 20, paragraph 1, device, if necessary resorting to coercive means. indent b), of the Statute of the Ombudsman) Status: Accepted. http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- dacoes=462 Recommendation 1/B/2010 Entity addressed: President of the Portuguese Parliament Subject: Legal framework on complaints presented to the Recommendation 11/A/2010 Ombudsman concerning matters of national defence and Entity addressed: President of the Executive Board of the the Armed Forces, as adopted by Law 19/95, of 13th July, Santarém Hospital and the National Defence Act, contained in Organic Law Subject: Attending physician of Clinical Pathology. 1-B/2009, of 7th July – Article 34. Contract termination notice. Date: 03.02.10 Date: 08.11.10 Summary: The Ombudsman recommended to the Par- Summary: The Executive Board of the Santarém Hospital liament that the legal framework on complaints presen- terminated an administrative contract with a physician. ted to the Ombudsman concerning matters of national The terms of the termination of the contract were ille- defence and the Armed Forces be amended so as not to gal, so it was recommended that the Hospitalfulfil its restrict in any way the right of complaint of members of contractual obligation, by reintegrating the worker and the military (this legislation was adopted by Law 19/95, paying compensation for the period of non-working time of 13th July, and the National Defence Act, contained in (between 14.10.2007 and the date of reintegration). Organic Law 1-B/2009, of 7th July – Article 34). Status: Awaiting a reply. Status: Not accepted. http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- dacoes=469 dacoes=414 Recommendation 12/A/2010 Recommendation 2/B/2010 Entity addressed: Deputy Secretary of State and for Budget Entity addressed: Ministry of Justice Subject: Extraordinary updating of retirement pension Subject: Regulation on Court fees. Waiver of Court fees. under Article 7 of Law 30-C/2000. Workers. Date: 25.10.10 Date: 23.02.10 Summary: The Ombudsman recommended the extraor- Summary: Application of the same rules on waiver of dinary updating of the retirement pension of a registrar, court fees for workers defending their rights in Court, under Article 7 of Law 30-C/2000, of 29th December regardless of whether their representation is ensured by (Budgetary Legislative Act for 2001). That extraordinary a public prosecutor or a freely-appointed lawyer. updating had been denied due to an incorrect interpreta- Status: Awaiting a reply. tion of the law that was applicable at that time. h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ Status: Not accepted. recomendacoes=416 h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ recomendacoes=468 Recommendation 3/B/2010 Entity addressed: Minister of Justice Recommendation 13/A/2010 Subject: Legal aid. For-profit entities. Entity addressed: Mayor of São João da Madeira. Date: 23.02.10 Subject: Noise measurements. Deposit. Summary: Granting of legal aid to for-profit entities that, Date: 17.11.10 proving their economic failure, demonstrate that the dis- Summary: The Ombudsman objected to the illegal and pute for which this kind of public support is required falls unjustified request for a deposit of € 500.00 as a gua- outside of their normal economic activity. rantee for noise measurements to be carried out follo- Status: Awaiting a reply. wing complaints of inhabitants against noisy activities. He h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ recommended the prompt suspension of the application recomendacoes=417 of that provision as well as its revision in the near future. Status: Accepted. http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- dacoes=482 91  Recommendation 4/B/2010 Summary: The Ombudsman considered that the Moga- Entity addressed: President of the Portuguese Parliament douro Municipal Aerodrome Regulations offended two Subject: Electoral Laws. Early voting. Special disqualifica- basic principles of public services - equality and universa- tions in the election for Member of Parliament. Candida- lity – and recommended they should be amended. cies submitted by groups of voters. It was confirmed that the users of the aerodrome who Date: 01.07.10 were not members of a given local association were Summary: Reiteration of Recommendations 9/B/2005 forced to book its use much earlier than others, which and 3/B/2003, concerning the enlargement of possibi- was not compatible with either principle, because of the lities of early voting and the elimination of restrictions of nature of aeronautics or/and the unpredictability of fore- passive electoral capacity of citizens with dual nationality. casted weather. Recommendation aiming to ensure equal treatment of Status: Accepted. independent candidates and those supported by political h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ parties, with regard to exemption from VAT and the use recomendacoes=481 of freely chosen symbols in election campaigns and ballot papers. Status: Accepted as regards early voting conditions. Awai- Recommendation 8/B/2010 ting a reply on the remainder. Entity addressed: Minister of State and Finance h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ Subject: Banking industry. Reprivatisation operation of recomendacoes=461 BPN. Capital reserve on behalf of small investors. Date: 12.08.10 Summary: The recommendation was formulated since Recommendation 5/B/2010 the Ombudsman was convinced that the bill which appro- Entity addressed: President of the Portuguese Parliament ved the reprivatisation operation of «BPN – Banco Portu- Subject: National exam for access to the traineeship of guês de Negócios, S.A.»should have established a capital the Portuguese Bar Association. reserve on behalf of small investors, something that did Date: 15.07.10 not happen. Summary: Need to clarify the legal academic require- Status: Case closed. Recommendation lost its usefulness ments for admission to the Portuguese Bar Association.. due to the developments on the reprivatisation process Status: Awaiting a reply. of BPN. h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ http://www.provedor-jus.pt/recomendetalhe.php?ID_recomen- recomendacoes=460 dacoes=463 Recommendation 6/B/2010 Recommendation 9/B/2010 Entity: Minister of Environment and Land Use Planning. Entity addressed: Minister of Education Subject: Rented Building Subvention Law (Recria Pro- Subject: Private social welfare institutions. Kindergarten gram). teachers. Enrollment in general pensions scheme. Data: 02.08.10 Date: 15.11.10 Summary: Considering that the RECRIA Program was Summary: Since there were doubts on the part of the established in 1988 and since then many of the rehabili- Caixa Geral de Aposentações on this matter, the Ombu- tated buildings are already in need of further conservation dsman recommended that it be clarified that teachers in works, the Ombudsman concluded that the rule which pre-schools ran by private social welfare institutions are prevented more than one subvention of renovation works included in the same pension system as that enjoyed by in a building should be suppressed. the generality of teachers, whether from the public or the Status: Awaiting a reply. private sector. h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ Status: Disagreeing with the argument that this recom- recomendacoes=478 mendation had lost its usefulness, the Ombudsman insis- ted on the matter, which nevertheless did not yet receive a definitive reply. Recommendation 7/B/2010 h ttp://www.provedor-jus.pt/recomendafich_result.php?ID_ Entity: Mayor of Mogadouro recomendacoes=479 Subject: Sport and leisure. Municipal aerodrome. Public service. Terms of use. Gliders. Date: 11.08.10 92  In relation to the 22 recommendations made in 2010, 10 Recommendation 7/B/2009 had been accepted by the end of the year. It should be noted Entity addressed: Mayor of São Vicente that in what concerns «A» Recommendations, addressed to Subject: Regulation on the display and dissemination of solve concrete cases, with no need for legislative meas- political propaganda ures, with two exceptions, only two recommendations were http://www.provedor-jus.pt/restrito/rec_ficheiros/rec7B09.pdf awaiting a reply – the ones issued at the end of the year and in relation to which the deadline of sixty days for reply had not yet lapsed. Recommendation 9/B/2009 Entity addressed: Minister of Justice Subject: Requests for the transcription of births occurred in the State of India. In 2010, recommendations issued in previous years http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec_9B2009.pdf were also accepted by the authorities addressed: Recommendation 9/A/2006 The following recommendations issued in previous Entity adressed: Mayor of Póvoa do Lanhoso years were not accepted: Subject: Access to registry and administrative archives. http://www.provedor-jus.pt/restrito/rec_ficheiros/Rec9A06.pdf Recommendation 4/B/2009 Entity addressed: Mayor of Santa Cruz Recommendation 8/B/2008 Subject: Regulation on political propaganda. Entity addressed: Minister of National Defense http://www.provedor-jus.pt/restrito/rec_ficheiros/rec_4B09.pdf Subject: Counting of the period of registered mandatory license for the purpose of retirement http://www.provedor-jus.pt/restrito/rec_ficheiros/REC_8B2008.pdf Recommendation 11/A/2008 Entity: Mayor of Cascais Subject: Construction works. Allotment operation. Recommendation 13/A/2008 http://www.provedor-jus.pt/restrito/rec_ficheiros/ Rec11A2008.pdf Entity: Mayor of Mafra Subject: Increase of taxes for legalization of construction works. Recommendation 12/A/2008 http://www.provedor-jus.pt/restrito/rec_ficheiros/13A2008.pdf Entity addressed: Director of the Motor Guarantee Fund Subject: Motor Guarantee Fund http://www.provedor-jus.pt/restrito/rec_ficheiros/rec12A08.pdf Recommendation 5/B/2009 Entity addressed: Mayor of Funchal Subject: Regulation on political propaganda. http://www.provedor-jus.pt/restrito/rec_ficheiros/rec5B09.pdf Recommendation 6/B/2009 Entity addressed: Mayor of Câmara de Lobos Subject: Regulation on political propaganda and other uses of public domain. http://www.provedor-jus.pt/restrito/rec_ficheiros/rec6B09.pdf 93  2.6. Review of the Constitutionality The Ombudsman, in accordance with Article 281, para- was a breach of organic and formal constitutional rules. graph 2, indent d) of the Portuguese Constitution and para- This request was submitted on the 29th October. graphs 3 and 4 of article 20 of his Statute, may seize the Con- In 2010, the Constitutional Court rendered a judgment in stitutional Court to declare unconstitutionality or illegality of reply to a previous initiative of the Ombudsman. Judgment the legal provisions and the assessment and verification of 224/2010 dismissed an application that had been presented unconstitutionality by omission. He/she may exercise these in 2009 to assess the constitutionality competences after a complaint or on his/her own initiative. «of the rule of article 10, paragraph 4, of Law In 2010 the Ombudsman received 39 complaints asking 97/88, of 17th August, when applied to messages for a subsequent abstract review of constitutionality. of political propaganda, as it violated article 37, As in previous years, the main constitutional parameters paragraph 3, of the Constitution, which estab- raised were the principles of confidence and equality. In the lished the need of an independent administrative first case, the consequences of the changes in tax law that body responsible for assessment of administrative were motivated by the financial crisis and occurred at vari- offences in the exercise of rights attached to the ous times in the year 2010 were especially at stake. freedoms of expression and information.» No request was made concerning the review of unconsti- tutionality by omission. Although not directly resulting from a request of the Ombudsman, it is also worth mentioning the Constitutional UNCONSTITUTIONALITY 39 Court Judgment 65/2010, which declared CONFIDENCE 8 21% «unconstitutional for violation of articles 26, EQUALITY 6 15% paragraphs 1 and 18, paragraph 2, of the Constitu- ORGANIC AND FORMAL DEFECTS 2 5% tion, the second part of paragraph 4 of article 1817 OTHER GROUNDS 23 59% of the Civil Code (as amended by Law 21/98, of OMMISSION 0 0,0% 12th May) applicable under article 1873 of the same Code, in that it provides for bringing an action for In 2020 the Ombudsman addressed two requests to the paternity investigation, the period of one year from Constitutional Court, both in the framework of the review of the date on which the treatment as a child has vol- unconstitutionality by action, concerning: untary ceased.» • Request for a review of the constitutionality of the legal As this legal issue was previously raised by the Ombuds- provisions approved by the Portuguese Bar Association man, the Judgment made reference to the views expressed that forced Law graduates, within the Bologna Process in Recommendation 36/B/99. to pass an examination previous to initiating their train- eeship (15th July 2010). It was argued that there was a With regard to situations in which the Ombudsman breach of the organic and formal rules applicable to the decided not to seize the Constitutional Court, the more rel- freedom of profession. In early 2011 the Constitutional evant ones were: Court upheld this request (Judgement 3/2011). • The Ombudsman studied on his own initiative questions • Request for a review of the constitutionality of the regarding changes in tax law, originating in the financial legal provisions of article 4, paragraph 2, of Decree-Law crisis. Thus, the legitimacy of applying new taxes on the 211/2004, of 20th August, that established the incom- Personal Tax Income to the full year of 2010, approved patibility of the profession of estate agent with any by Laws 11/2010, of 15th June and 12-A/2010, of 30th other trade or profession. It was also argued that there June. However, as the President of the Republic seized 94  the Constitutional Court, the Ombudsman considered constitutionality was not the mechanism able to give that any further initiative would be useful; satisfaction to what was intended. The grounds for this decision were duly explained and the complainant was • The modification of the tax on capital gains provided by referred to the regular courts, with the possibility to Law 15/2010, of 26th July, both as regards the applica- appeal to the Constitutional Court. tion of new rules to the period already elapsed in 2010, as in what regards the application in future situations previously exempt from that tax. Although no grounds were found for an abstract review of the constitutional- ity, the possibility of a review being submitted in a con- crete case was mentioned to the complainants; • Complaint against the reporting obligations set out for Banks by Decree-Law 72-A/2010, of 18th June; • Complaints against changing the system of salary sup- plements of the Police Security Police Force officers and the allowances paid to former combatants, once again calling on the principles of equality and confidence; • Complaint against the use by the Government of special rights (golden share) in the decision-making process of Portugal Telecom. Although the specific issue has quickly been surpassed, the complainants were informed of the insufficient grounds of their complaint; • Complaint against the internal rules of the Regional Parliament of the Autonomous Region of Madeira and against the statutory standards of a particular political party, regarding the absence of the formation of lists of candidates for elected bodies by mechanisms of direct democracy; • Complaints against the new regime of autonomy, admin- istration and management of public education schools, approved by Decree-Law 75/2008 of 22nd April, partic- ularly in the framework of the election and legal status of the Director. It was also the subject of attention the way responsibilities were transferred to local govern- ment (preschool and basic education), particularly for non-teaching staff; • Complaint about some provisions of the Statute of Jour- nalists, republished by Law 64/2007, of 6th November, generally referring to violations of freedom of expres- sion and creativity and copyright; • Complaints about the concrete application of a decision of the Constitutional Court that had declared erga omnes as unconstitutional the regulation that limited the right to collect a survivor pension in the case of unmarried couples, from the month on which it was requested onwards. Although the Ombudsman agreed with the perspective of the complainant, the abstract review of 95  2.7. Cases and Inspections of the Ombudsman own Initiative In addition to analysing citizen’s complaints, according to ter. However, measures to safeguard the legitimate rights Articles 4 and 24 of his/her Statute the Portuguese Ombuds- and interests of residents and traders are still required. man may also act on his/her own initiative, in response to facts that come to his/her knowledge by any means. Under Article 21, indent a), of the Statute, the Ombudsman may P-03/10 also carry out inspection visits to any area of activity of the Entity addressed: National Institute of Forensic Medicine central, regional and local administration. Subject: Delays observed in the activity of the National Insti- tute of Forensic Medicine, with implications on judicial delays. In 2010, 17 cases were opened on the initiative of the Summary: Ex officio case opened in order to analyse the Ombudsman, 4 of which related to inspections. situation of the National Institute of Forensic Medicine, in particular regarding delays in responding to requests from courts, which have implications in terms of judicial delays. P-01/10 The Ombudsman tries to identify, in collaboration with Entity addressed: Portuguese Public Security Police Force (PSP) the competent bodies of the National Institute of Forensic Subject: Detention. Accommodation. Medicine, insufficiencies and constraints at the administra- Summary: Ex officio case opened pursuant to a situation tive level. At the same time, he also seeks to identify pos- reported by the media. An investigation was carried out sible shortcomings in legislation or reflect on suggestions to determine how often detainees were held legitimately for the drafting of new legislation with a view to increas- after the standard delay of 48 hours and, in such cases, ing the speed of these proceedings. how adequate was the response provided by police forces Status: At the inquiry stage. to ensure the needs of accommodation and personal hygiene. Status: At the inquiry stage. P-04/10 Entities addressed: Prison Establishment of Funchal, Directorate-General of Prison Services P-02/10 Subject: Treatment of the female population in prison. Entity addressed: Municipality of Lisbon. Summary: Ex officio case opened with the aim of study- Subject: Public road. Restrictions to traffic and parking. ing the conditions of the stay of women inmates trans- Private use of public space. Production of movies and ferred from the Regional Prison of Funchal in May 2009, filming. Residents and traders. to the Prison Establishment of Funchal. It was found that Summary: Ex officio case opened pursuant to complaints appropriate conditions for prison treatment were met and received in previous years, which showed that in the city that all the facilities had sanitary facilities and television. of Lisbon there is no regulation whatsoever in respect Despite the lack of dining room (meals being taken in of traffic and parking restrictions imposed by movies each of the individual cells), as well as the lack of space and filming productions. Residents and traders are often for «nursery» for newborn care, the contact with the informed on the very same day by security forces agents prison population supported the conclusion that there of such traffic conditioning and parking restrictions, which was an overall satisfaction with the conditions provided. results in clear disadvantages to their family and working After inquiries were made to the Directorate-General of lives. In other cases, the movie or advertising production Prison Services, the contents of the report of the Audit companies themselves provide the information to the and Inspection Service made by this entity were commu- public, in a way that is considered insufficient. nicated, affirming the intention of building in 2011 a fully Status: At inquiry stage – the collegiate executive body of separate space for this group of inmate. the Municipality of Lisbon transmitted its views on the mat- Status: Closed. 96 P-05/10 elderly (homes), particularly the integrated establish- Entity addressed: Ministry of Public Works, Transport and ments (homes under the direct management of the State Communications and Institute for Mobility and Land Trans- or under indirect management, through private social port welfare institutions). Furthermore the inspection focused Subject: Penalty regime applicable to collective passen- on the performance of the supervision services of Social ger transport infringements. Security, who are responsible, under the law, for super- Summary: Ex officio case opened with the aim of vising the functioning of social institutions. With regard amending the legal framework in force (approved by to the homes, the main objective was to verify the life Law 28/2006, of 4th July, as amended by Decree-Law conditions offered to the institutionalized elderly, as well 14/2009, of 14th January), since it gives rise to reser- as their comfort and well-being, personal care and health, vations concerning its suitability regarding passenger the personnel engaged in the provision of services, the rights legally and constitutionally enshrined, namely: activities of personal and social development and also a) the large amount of the fines imposed, in view of the the interpersonal relationships among the elderly. With infringements, which may breach the principle of propor- regard to the supervisory activity of the State in this area, tionality; b) lack of possibility of the defendant to pre- the objective was to evaluate the performance of differ- sent a defence after having paid the fine; c) the noted ent supervisory services of Social Security, and the organi- difficulties of users to adapt to the new electronic ticketing zation, operation, intervention, articulation and fulfilment system. The Ombudsman is following the work of revision of obligations that are legally assigned. of that law, which is in progress, to safeguard the rights Status: The inspection visits are completed and the final of users of collective passenger transport, bearing in mind Report is being drafted. the preventive and sanctioning effectiveness related to the imposition of fines. Status: At the inquiry stage, awaiting decision of the P-08/10 entity addressed. Entity addressed: Public Municipal Parking Enterprise of Lisbon (EMEL) Subject: Road affairs. Administrative penalties for improper P-06/10 parking. Entity addressed: Minister of Education Summary: Ex officio case opened taking into account the Subject: Annual competition for the recruitment of frequency of complaints against the EMEL. The case aims teachers to solve temporary needs. to enable the assessment, together with the addressed Summary: Ex officio case opened taking into account entity, of the adequacy of the monitoring procedures in the repercussions of the competition at stake and the place, as well the adequacy of the means employed in advantages of dealing in a more articulated manner with view of the public service that is provided. In particular, the complaints submitted every year to the Ombudsman the following issues are being addressed: malfunctions in concerning the opening and subsequent procedure of this parking-meters and the means available to the users to kind of competition. In this case, some questions were report them; reimbursement of amounts inserted in the discussed with the Administration, concerning issues that parking-meters without the corresponding ticket being could be anticipated by reading the opening notice of issued; the problem of a certificate of offence being issued open competition and confronting it with the develop- in those cases where the parking was paid but the title ments already seen in previous competitions. was incorrectly placed in the vehicle or was not placed in Status: Taking into account the lack of fruitful dialog with a visible manner. the Administration, the fact that the issues raised were Status: At the inquiry stage. submitted to the consideration of the Minister of Educa- tion, the stage reached in the competition and also the pending judicial cases invoked by the Administration, the P-09/10 case was closed for lack of any other useful procedure. Entity addressed: Portuguese Parliament Subject: Unconstitutionality of Article 68, paragraph 1, of the Personal Income Tax Code (Laws 11/2010 and P-07/10 12-A/2010). Additional level of taxation in the Personal Entity addressed: Social Security Institute Income Tax. Subject: Inspection to establishments of social care for Summary: Ex officio case opened pursuant to a complaint the elderly and to the supervision services of Social Security. against the possibility of changes introduced to the lev- Summary: the Ombudsman decided to carry out an els of taxation of the Personal Income Tax being applied inspection to some establishments of social care for the to all income earned in 2010, including income for the 97  period before the entry into force of the legislative acts Summary: Ex officio case opened to verify if, and on what in question. terms, there was compliance with the legal requirements Status: Closed. The President of the Republic, however, for operation of a food and beverage establishment open asked the Constitutional Court to declare the unconsti- to the public at the premises of a sports club. tutionality of these norms. The Court, on its Judgement Specifically, the aim was to ascertain whether the activity 399/10, did not grant this request. of the public entities responsible for monitoring this area was consistent with the general principles of administra- tive activity. P-10/10 Status: Awaits closing of the case. Entities addressed: Ministry of Finance, Ministry of Justice, Ministry of Culture. Subject: Attachment of copyright. Limits of the attach- P-13/10 ment. Entity addressed: Institute for Employment and Voca- Summary: Ex officio case opened for the purpose of ana- tional Training (IEFP) lysing and studying the position of people facing the (full) Subject: Inspection visits to job centres. attachment of income arising from copyright, which often Summary: The Ombudsman decided to carry out an represent their only source of livelihood. Amendments to inspection to deepen the knowledge of the activity of the Copyright and Related Rights Code and in particular to job centres as regards the allocation of support to pro- the Civil Procedure Code are being considered. As regards jects for the creation of jobs, as well as to identify the key the latter, the changes aim to clarify the wording of Article problems in connection with the allocation of support to 824, paragraph 1, indent a), in order to include copyright projects that create jobs, namely regarding: a. delays in and other periodic income that is the only source of liveli- assessment and decision of applications; b. weaknesses in hood of the debtor, by treating them as wages and sala- the technical support that project promoters are entitled ries for the purpose of partial unseizability. to; c. unilateral termination, by the IEFP, of contracts for Status: At the inquiry stage. granting incentives where the failure to carry out the pro- ject does not derive from the will of the promoter. Status: Inspection visits completed. Final report being P-11/10 drafted Entity addressed: Regional Secretariat of Tourism and Transport Subject: Anomalies in the operation of the validation P-14/10 system of the card «Giro». Entities addressed: Directorate-General for Health; Summary: Ex officio case opened pursuant to complaints National Association of Portuguese Municipalities. of users, to analyze the operation of the validation system Subject: Domestic waste. Insalubrity. Mental health. of the card «Giro», following the dissatisfaction shown by Diogenes Syndrome. various users of the urban public transport services pro- Summary: Ex officio case opened after consideration of vided by the company «Horários do Funchal, SA». It was several complaints from previous years revealing the lack found that an electronic system for surveillance and col- of coordination between different public authorities in lection of payment had been implemented, through the monitoring the insalubrity problems caused by sufferers use of contactless technology. It was concluded that, in of Diogenes syndrome. case of malfunction, the consumer paid only once for the This pathology is characterized by intense accumulation service received, not being forced to abandon the trip, of objects and waste within households. The neighbours, according to the rules stipulated by Articles 152 and 188, affected by infestation and by the propagation of smells, indent a), of Decree-Law 37272, of 31st December 1948, are faced with the difficulties of municipal authorities in and Article 2 of Law 28/2006, of 4th July. The case was ensuring public health conditions and with the lack of closed, with no criticism being addressed to the compe- coordination between health authorities, social security tent entity. departments, firefighters and police. Status: Closed. Weighing the need for guidelines on how to respond to these situations and to restore the health conditions inside the building, and the need to respect the patient P-12/10 rights and interests, the Ombudsman decided to initiate Entities addressed: Regional Inspector of Economic an ex officio case. Activities (RAA); Regional Labour Inspector Status: At the inquiry stage – preliminary hearing of the Subject: Lajense Sports Club. Directorate-General for Health. 98  P-15/10 P-17/10 Entities addressed: National Institute for Rehabilitation; Entities addressed: Regional Secretariat for Social Affairs/ Ministry of Interior; National Association of Portuguese /Social Security Centre of Madeira Municipalities. Subject: Inspection to the Homes for Children and Young Subject: Parking and taxed parking. Areas with restricted People/Temporary Placement Homes of the Autonomous access. Citizens with disabilities. Region of Madeira. Summary: Ex officio case opened to study the improve- Summary: The Ombudsman determined this inspec- ment of the legal framework on the elimination of barri- tion covering nine homes for extended placement, three ers preventing the free circulation of persons with reduced temporary placement centres, an Autonomy-building mobility, providing them with reserved parking spaces residence and the specific case of the Psychopedagogical close to their residence – by identifying their car through Rehabilitation Centre of the Sagrada Família of the Auton- the registration plate – even if they are temporarily or omous Region of Madeira. In the final report, the findings periodically residing there or if their place of residence of the inspection stressed the important role played by includes private parking (garage). It is proposed to study the various host institutions of the Autonomous Region the possibility to create a legal framework that estab- of Madeira, in particular, by their officers, technical staff lished the elimination of barriers to the free circulation of and other staff members. Nevertheless, the monitoring of persons with reduced mobility, providing the possibility to everyday life in the homes carried out by the entities that park even in places where parking is restricted, by attrib- determine the application of the measure of placement uting, whenever necessary and possible, duly identified in an institution was considered insufficient. The need reserved parking spaces, in accordance with the National for regular visits, including the possibility of hearing the Plan for the Promotion of Accessibility. children, was emphasised. Given the above considera- Status: At the inquiry stage – analysis of solutions found tions, the Ombudsman addressed a set of suggestions to in other legal systems. various entities, most notably proposals submitted to the Minister of Justice, the High Council of the Public Prosecu- tion Service and the Regional Secretary for Social Affairs. P-16/10 Status: Final report released in December 2010.2 Entities addressed: Immigration and Border Service Subject: Inspection to places of detention of foreigners that are not allowed in Portugal or that are in the process of removal of the national territory. Summary: The Ombudsman decided to make inspec- tions to places of detention of foreign nationals who do not meet the requirements to enter Portugal or who are illegally in the country and who find themselves in a particularly vulnerable situation, because they are often physically and psychologically fragile, diminished by their economic and legal situation and oftentimes even more at a disadvantage by lack of knowledge of the law and the language. Visits were made to five facilities designed to temporarily install foreigners awaiting the enforcement of the expul- sion from Portugal (the Residential Unit of Santo António, which was the only space that was newly built) and the facilities in the airports of Lisbon, Faro, Porto, Funchal and Ponta Delgada, which install those foreigners who do not have a permit for entry into the national territory. Status: Final Report released in March 20111 1 http://www.provedor-jus.pt/restrito/pub_ficheiros/Relatorio_CIT_Marco2011.pdf 2 http://www.provedor-jus.pt/restrito/pub_ficheiros/Relatorio_Madeira_2010.pdf 99  2.8. Other Activities of the Ombudsman In the set of activities developed in 2010, and beyond the On 19th April 2010 the Portuguese Ombudsman sent to Portuguese Ombudsman’s traditional complaints-handling the Parliament a draft Code of Good Administrative Behav- activity and work as National Human Rights Institution, iour, focused on individual guarantees, bringing together the several other actions should be mentioned, regarding principles of good administration that should guide the con- dissemination of information and promotion of human duct of public officials in their dealings with citizens, affirm- rights, drafting of opinions on matters within his compe- ing the basic values of public service in the expected con- tence, training activities and participation in meetings or duct of civil services3. This proposal was subject to a hearing relevant working groups. before the Parliamentary Committee on Labour, Social Secu- rity and Public Administration, on 14th July 20104. To raise awareness to the role of the Ombudsman as protector of fundamental rights, a Conference entitled The At the request of the Minister of Justice an opinion was Ombudsman - The Protector of Fundamental Rights was issued on the preliminary draft of a General Regulation of organized jointly with the Parliamentary Committee for Prisons and on the draft Enforcement Procedure Reform. Constitutional Affairs, Rights, Freedoms and Guarantees, in Highlight should be put on the Portuguese Ombudsman’s the Grand Hall of the Parliament, on 22nd April. The speak- coordination and cooperation work with other national, for- ers were D. Alvaro Gil-Robles, former Defensor del Pueblo eign and international entities, in particular the meeting of Spain and former Commissioner for Human Rights of held on 22nd September between representatives of the the Council of Europe, who presented a paper on the «The Ombudsman and representatives of the national SOLVIT cen- Ombudsman of the Member States and the Charter of Fun- tre, in order to deepen mutual knowledge of the activities damental Rights of the European Union», and D. Rafael Ribó, of both institutions. The initiative aimed to ensure continuity Síndic de Greuges of Catalunya, who spoke about «The Role at internal level of the work started at the joint meeting of of the Ombudsman: Prevention and repair of illegal acts or Liaison Officers and representatives of national SOLVIT Cen- omissions of public authorities towards the citizens, preven- tres, which was promoted in the framework of the seminar tion and redress of grievances.» The session also included for liaison officers of the European Network of Ombudsman speeches by the Vice-President of the Portuguese Parlia- of Member States of the European Union, in Strasbourg5. ment, MP Vera Jardim, by the President of the Parliamen- tary Commission for Constitutional Affairs, Rights, Freedoms Regarding the participation in working groups, the par- and Guarantees, MP Osvaldo de Castro, and by the Portu- ticipation of the Ombudsman in the National Commission guese Ombudsman. A book was published in 20111 with for the Protection of Children and Youth at Risk should be the works of the Conference. stressed. With the same objective of human rights education and The Ombudsman was also present or represented in several dissemination of information on the rights of the child, other events, of which the following should be highlighted: the Ombudsman celebrated the Universal Children’s Day (1st June) with a group of students from a first-cycle • Participation, as speaker, in the meeting of the Com- school. The students participated, at the Office of the mission for Equality and Against Racial Discrimination Portuguese Ombudsman, in an event called «Don’t let go (CICDR), which took place at the seat of the High Com- of your rights», which included an interactive approach mission for Immigration and Intercultural Dialogue, on to the rights of the child and a symbolic moment of 3rd March. The Ombudsman shared the work developed release of balloons inscribed with such rights. The role of in the fight against all forms of racial discrimination6; the Ombudsman was also explained and the existence of the Children’s Hotline promoted2. 3 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=273 4 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=281 1 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=276 5 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=325 2 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=436 6 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=260 100  • The training action «The Convention on the Rights of • The 1st Meeting on Prevention of Abuse, promoted by Persons with Disabilities», held on 19th April 2010, in the the Liga Social e Cultural Campos do Lis, on 26th Novem- auditorium of the National Rehabilitation Institute (INR), ber, in Leiria. An intervention was made on the subject in Lisbon; of «The Portuguese Ombudsman in the Defence of the Rights of the Elderly»; • The 9th Congress of the Portuguese Society of Diabetology, which took place in Vilamoura, from 10th to 13th March • The National Meeting «Accessibilities and Human Condi- 2010, and in which the Ombudsman rendered a speech tion – Bringing to Life the Convention on the Rights of on the topic «Social Rights of Citizens with Diabetes»7; Persons with Disabilities», held on 30th November, under the organisation of the Foundation Liga, in partnership • The 4th European Conference on Missing and Sexually and with the co-financing of the National Institute for Exploited Children, focused on the role of new technolo- Rehabilitation, Subprogram For All; gies as a vehicle for paedophilic content but also as a tool for the search of children. This event was organ- • The master’s course in Legal-Forensic Sciences, of the ised on 25th May 2010, by the Institute for Child Support Law School of the University of Lisbon, specifically the (IAC), which is a member of the European Federation for subject of «Minors Law», in the context of which, on 17th Missing and Sexually Exploited Children; December, a presentation was given on the work carried out by the Portuguese Ombudsman in this domain; • The seminar «Ombudsman Institution and Citizenship», promoted by the Foundation Former Gil Eanes High • The Seminar «Challenging Ageing», organized by the School, with the support of the Portuguese Ombudsman, Municipality of Vila Franca de Xira, in which an interven- on 18th June, and in which an intervention was made tion was made on «Elder Law and Social Participation». on the topic of «Protection of Children, Elderly Persons, Persons with Disabilities and Women» (this seminar was followed by two others of an identical nature, held in the Cape Verdean cities of Praia and São Vicente); • The National Colloquium of the Association of Munici- pal Civil Servants – ATAM (Grândola/Tróia, 28th October 2010), in which a communication was presented on the subject of «Prevention of the Risk of Corruption and Related Crimes – The Assessment of the Plan and the Code of Good Administrative Behaviour», on the basis of the draft Code that the Portuguese Ombudsman recom- mended; • The Conference «The role of the Ombudsman regard- ing Equality», which was held on 15th November, in the framework of a cycle of Conferences for Equality pro- moted by the Students Association of the Law School of the University of Oporto – Foz Campus; • The Seminar «Non-contractual liability of the State», which was promoted by the Portuguese Insurance Academy, which took place on 15th November, in Lisbon, and where a communication was presented on the topic of «Liability of the State: a practical experience»8; 7 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=261 8 http://www.provedor-jus.pt/Imprensa/noticiadetalhe.php?ID_noticias=357 101 3. INTERNATIONAL RELATIONS  3. International Relations Following a period of transition in 2009, which required sent to the Iberoamerican Federation of Ombudsman in an effort to re-establish and bring new dynamic to the the context of the preparation of the 7th Human Rights international activity of the Portuguese Ombudsman, the Report on Persons with Disabilities. stability achieved in 2010 allowed for regular contacts and cooperation ties to be resumed with the various foreign and • The integration of the Portuguese Ombudsman, as a full international entities acting in the area of human rights. member, in the Follow-up and Coordination Committee As anticipated in the chapter concerning the mandate of created at the 1st Meeting of Arab, Iberian and Latin- the Portuguese Ombudsman, the international activity of -American National Institutions for the Promotion and the Ombudsman fundamentally derives from two roles this Protection of Human Rights; institution plays simultaneously: that of Ombudsman, pursu- ant to the Swedish institutional model created at the outset • The development of initiatives of cooperation between of the XIX century; and that of National Human Rights Insti- Ombudsmen in Portuguese-speaking countries, as well tution, fully compliant with the guidelines affirmed by the as initiatives to promote the creation of Ombudsmen in United Nations in the so-called «Paris Principles». the countries of the Community of Portuguese-Speaking In 2010, in the overall international activity carried out Countries (CPLP) where the institution is either not esta- by the Portuguese Ombudsman, the first thing to stand out blished in the law or not implemented in practice. In par- is the work developed to maintain and deepen coopera- ticular, one should recall the joint letter sent in Decem- tion with his counterparts, both on a bilateral level and in ber 2010 by the Ombudsmen of Portugal and Angola to the context of the international fora of Ombudsman and the President of the CPLP, requesting his good offices National Human Rights Institutions in which the Portuguese to promote the creation and effective implementation Ombudsman participates. of Ombudsmen in all the countries of the CPLP. Highli- ght should also be put on the efforts carried out by the Highlight should be put on: Portuguese Ombudsman to encourage the designation in Brazil of one or more entities that could undertake the • The participation in meetings, conferences, seminars, role of Paris Principles compliant National Human Rights general assemblies and other events promoted by the Institution, while also ensuring representation in the coo- organizations of Ombudsman and National Human Rights peration fora of Ombudsmen, such as, for example, the Institutions in which the Portuguese Ombudsman takes Iberoamerican Federation of Ombudsman. This would part (such as the Iberoamerican Federation of Ombuds- also have the merit of strengthening the representative- man, the International Ombudsman Institute, the Asso- ness and efficiency of these areas of cooperation. ciation of Mediterranean Ombudsmen and the European Network of Ombudspersons for Children, to name a few). • The strengthening of cooperation with the Moroccan counterpart, Wali Al Madhalim, by way of a work visit, • The attendance to the ceremony of celebration of the 15th held at his invitation, with a program that included, inter anniversary of the European Ombudsman, which inclu- alia, a work meeting and visit to the seat of the institu- ded the launching of a new visual identity for the Euro- tion; pean Ombudsman and the European Network of Ombu- dsmen, together with a new strategy for the mandate • The regular or occasional collaboration with other coun- 2009-2014. terparts, either by way of official visits, organisation of events or written exchange of information, experiences • The contributions submitted to projects and works pro- and good practices. moted by the aforementioned organisations, as was the case, for example, with the information and comments 104  Another important aspect concerning the international Inhuman or Degrading Treatment or Punishment, as well as activity of the Portuguese Ombudsman – and one which appointment of the National Prevented Mechanism estab- the Ombudsman tried to deepen and disseminate more lished therein. On this topic, the Ombudsman has had the broadly in 2010 – was the taking on of a specific role in opportunity to convey to the various competent Ministries the framework of the international system of protection and his entire availability to undertake such a function. Such a promotion of human rights. The Ombudsman appears as a solution would be justified not only in view of the compe- privileged interlocutor and partner to the various entities tences already attributed to the Ombudsman but also in acting in the area of human rights, in fora such as the United view of the vast and sustained work that he has developed Nations, the Council of Europe, the European Union and the throughout the years as regards the penitentiary system and Organization for Security and Co-operation in Europe, among the rights of inmates. others, offering them an independent and accurate perspec- In 2010 the Portuguese Ombudsman also transmitted to tive of the national reality, as well as supporting and con- the competent national authorities his contributions for the tinuing their action at the internal level. preparation of national implementation reports regarding Thus, the Ombudsman is regularly called by international United Nations instruments, specifically the Optional Pro- entities to provide data on his activity, perspectives and tocol to the Convention on the Rights of the Child on the positions on human rights issues. In 2010, the Ombudsman Involvement of Children in Armed Conflict and the Interna- had the opportunity to contribute, for example, to the work tional Covenant on Economic, Social and Cultural Rights. of the United Nations Independent Expert in the field of At the level of the European Union, 2010 marked a period Cultural Rights and to a study of the Organization for Secu- of intensification of relations with the Fundamental Rights rity and Co-operation in Europe on cooperation between Agency. Participation was ensured in events promoted by National Human Rights Institutions and Civil Society. the Agency, in particular the 3rd Meeting with National In the framework of the United Nations, highlight should Human Rights Institutions, which is an important forum of be particularly put on the participation of the Ombudsman dialogue and collaboration between the Agency and these in the Universal Period Review on Portugal. This process was entities. initiated in 2009 (see 2009 Report to the Parliament) and The table below provides summarised information on the culminated in 2010, with the adoption, at the 13th session international events that took place in 2010 and in which of the Human Rights Council, of the final evaluation report the Portuguese Ombudsman was present or represented: containing recommendations addressed to our country. In his capacity as A-status National Human Rights Institution, the Ombudsman ensured representation in this event and an oral intervention1 was made on his behalf. One of the points highlighted in that intervention was the importance of the Portuguese State ensuring ratification of the Optional Protocol to the Convention against Torture and other Cruel, 1 http://www.provedor-jus.pt/imprensa/noticiadetalhe.php?ID_noticias=265 Event Place and date Participant(s) Conference «Human Rights: Universal Principles and Regional Paris, France Mr. Jorge Silveira, Guarantees», organised by the Médiateur de la République of 01.02.2010 Deputy Ombudsman France, with the Universities Panthéon-Assas and John Hopkins Seminar «The Anti-Discrimination Directives 2000/43/EC Trier, Germany Ms. Catarina Ventura, and 2000/78/EC in Practice», organised by the Academy of 22-23.02.2010 Legal Adviser European Law Seminar «EU law on Equality between Women and Men in Trier, Germany Ms. Margarida Santerre and Practice», organised by the Academy of European Law 08-09.03.2010 Ms. Ana Neves, Legal Advisers 105  Event Place and date Participant(s) 13th session of the United Nations Human Rights Council – Geneva, Switzerland Ms. Adriana Barreiros, Consideration of the Universal Periodic Review evaluation report 18.03.2010 Adviser to the Ombudsman on Portugal 23rd Congress of the Brazilian Association of Magistrates, Justice Promoters and Public Defenders for Childhood and Youth – Brasília, Brazil Ms. Helena Vera-Cruz Pinto, «(New) Frontiers of the Rights of the Child and the Adolescent. 05-07.05.2010 Deputy Ombudsman Interdisciplinary, interinstitutional and international perspectives under the aegis of human rights.» 3rd General Assembly of the African Ombudsman and Mediators Luanda, Angola Ms. Helena Vera-Cruz Pinto, Association – «The Ombudsman and Good Governance» 12-15.04.2010 Deputy Ombudsman 3rd Meeting of the EU Agency for Fundamental Rights with National Human Rights Institutions Vienna, Austria Ms. Adriana Barreiros, 06-07.05.2010 Adviser to the Ombudsman Symposium «Strengthening the fundamental rights architecture in the EU», organised by the EU Agency for Fundamental Rights Ms. Helena Vera-Cruz Pinto, 7th Seminar of Liaison Agents of the European Network of Rabat, Malta Deputy Ombudsman Ombudsmen 05-08.06.2010 7th Seminar of Liaison Officers from of the European Network of Strasbourg, France Ms. Catarina Ventura, Ombudsman 06-08.06.2010 Legal Adviser Mr. Alfredo José de Sousa, 4th Meeting of the Association of Mediterranean Ombudsmen – Madrid, Spain Portuguese Ombudsman, «Challenges posed to Ombudsman by immigration and human 13-15.06.2010 and Mr. Miguel Coelho, rights» Coordinator 1st International Congress of Ombudsman – «Citizenship, Fun- damental Rights and the Limits between Public and Private», Belo Horizonte, Minas Gerais, Brazil Ms. Catarina Ventura, promoted by the Brazilian Association of Ombudsman – Minas 28-30.07.2010 Legal Adviser Gerais Section and the Brazilian Pro-citizenship Institute Seminar on Good Practices of the Ombudsman Offices at Local Level Montevideo, Uruguay, Mr. André Folque, 13-16.09.2010 Coordinator Public session organised by the Parliament of Uruguay, in which the initiative to create a national Ombudsman was discussed Ceremony of commemoration of the 15th Brussels, Belgium Mr. Alfredo José de Sousa, anniversary of the European Ombudsman 27.09.2010 Portuguese Ombudsman 106  Event Place and date Participant(s) Ms. Helena Vera-Cruz Pinto, Conference and General Assembly of the European Region of Deputy Ombudsman, Barcelona, Spain the International Ombudsman Institute – «Europe, an open and 03-05.10.2010 society» Mr. João Portugal, Coordinator Ms. Helena Vera-Cruz Pinto, 14th Annual Conference and General Assembly of the European Strasbourg, France Deputy Ombudsman, Network of Ombudspersons for Children «Listening to children 7-9.10.2010 and and involving them in the promotion and implementation of Ms. Adriana Barreiros, their rights» Adviser to the Ombudsman 1st Meeting of Arab, Iberian and Latin-American National Mr. Alfredo José de Sousa, Institutions for the Promotion and Protection of Human Rights, Casablanca, Morocco Portuguese Ombudsman, and organised by the Consultative Council for Human Rights of 12-13.10.2010 Ms. Adriana Barreiros, Morocco Adviser to the Ombudsman Mr. Alfredo José de Sousa, Work visit to the Moroccan counterpart Wali Al Madhalim, Rabat, Morocco Portuguese Ombudsman, and Moulay M’Hamed Iraki 14-16.10.2010 Ms. Adriana Barreiros, Adviser to the Ombudsman 5th EU Forum on the Rights of the Child, organised by the Brussels, Belgium Ms. Teresa Cadavez, European Commission 14.10.2010 Collaborator Seminar «EU law on Equality between Women and Men in Trier, Germany Ms. Maria Namorado, Practice», organised by the Academy of European Law 25-26.10.2010 Legal Adviser XV General Assembly and Congress of the Ibero-American Cartagena das Índias, Colombia Ms. Jorge Silveira, Deputy Ombudsman, Federation of Ombudsman 26-29.10.2010 and Ms. Miguel Coelho, Coordinator São Vicente, Cape Verde Seminar «Ombudsman and Citizenship», organised by the 02.11.2010 Ms. Helena Vera-Cruz Pinto, Foundation Former Gil Eanes High School, with the support of Praia, Cape Verde Deputy Ombudsman the Portuguese Ombudsman 04.11.2011 Workshop «The Role of National Human Rights Structures in promoting and protecting the rights of persons with mental Bilbao, Spain Ms. Sara Vera Jardim, health Problems», organised in the framework of the Peer-to- 17-18.11.2010 Legal Adviser Peer Project, under the joint responsibility of the EU and the Council of Europe 3rd Fundamental Rights Conference, on the topic «Ensuring Justice and Protection for All Children», organised by the EU Brussels, Belgium Ms. Adriana Barreiros, Agency for Fundamental Rights, in collaboration with the 7-8.12.2010 Adviser to the Ombudsman Belgian Presidency 107  In this chapter regarding international relations, it is also important to consider the visits of foreign entities received by the Portuguese Ombudsman Entity Date Defensor del Pueblo of Spain, Enrique Múgica Herzog 09.04.2010 Síndic de Greuges of Cataluña and President of the European Region of the International Ombudsman Institute, Rafael Ribó, and former Commissioner for Human Rights of the Council of Europe, Álvaro Gil- Robles The visit took place in the framework of their participation in the Conference organised by the Portuguese 27.04.2010 Ombudsman and the Parliamentary Committee for Constitutional Affairs, Rights, Liberties and Guarantees, on the topic «Portuguese Ombudsman – The Protector of Fundamental Rights» Delegation of the Constitutional Court of the Republic of Slovakia, headed by the President of the 18.06.2010 institution, Jože Tratnik Commissioner Against Corruption of Macao, Fong Man Chong 30.06.2010 Authorised Person of the Parliament of Uzbekistan for Human Rights, Sayora Rashidova, and Ambassador of the Republic of Uzbekistan in Portugal, Bakhromjon Aloev 10.11. 2010 The visit ended with the signature of a Cooperation Agreement between the two Ombudsmen Human Rights and Justice Ombudsman of East-Timor, Sebastião Dias Ximenes 14.10.2010 Ombudsman of Angola, Paulo Tjipilica 02.12.2010 108 4. MANAGEMENT OF RESOURCES  4.1. Administrative and Financial 4.2. Public Relations Management In 2010, there continued to be personalised attendance The strategical goals of the Planning Activities were fol- – either in person, or via the telephone. The number of infor- lowed, namely in what concerns the improvement of staff mation requests increased in 2010. A total of 5478 citizens management – through professional promotion – financial submitted their complaints personally or by phone, to the and patrimonial resources. Ombudsman. Staff in functions in the Ombudsman’s Services (as of 31 December 2010) 4.3. The Ombudsman’s portal Ombudsman’s Cabinet and 10 Deputy Ombudsmen The Ombudsman’s portal remained updated throughout Advisory Legal Service 46 2010 in order to provide information on the Ombudsman. Directorate of Technical Services and The highest number of accesses to the portal was recorded 41 Administrative Supports in May. Contracted Staff 5 2010 Budget 4.4. Publishing activity Budgetary execution was based on policies of restric- tion of the current expenses. Initial budget (superior to the budget of 2009): 5 847 381,00 €. The Ombudsman Report to the Parliament 2009 and the leaflet Ombudsman in the Defense of the Citizens that was Staff expenses 4 839 840,00€ sent to the municipalities in the extent of a protocol estab- lished between the Ombudsman and the National Associa- Acquisition of current services and goods 450 333,00 € tion of Portuguese Municipalities (ANMP). Investment expenses (New technologies and 411 160,00 € repairs of the building) 110 5. ANALYTING INDEX  Subject Proc. no./Page no. 10/1044-R - page 45 08/1177-R - page 45 05/3839-R - page 88 06/4286-R - page 45 Environment and life quality rights 09/3476-R - page 44 09/3688-R - page 84 06/1058-R - page 44 06/5252-R - page 44 08/6733-R - page 45 10/4791-R - page 71 09/3678-R - page 70 10-3737-R - page 70 Right to Justice and Security 10/0070-R - page 69 09/6343-R - page 69 09/2479-R - page 70 10/1669-R - page 69 112  Subject Proc. no./Page no. 10/1148-R - page 50 08/6484-R - page 88 09/4656-R - page 51 Rights of Taxpayers, Consumers and 10/3557-R - page 52 Economic Operators 10/3650-R - page 51 09/4845-R - page 51 10/0058-R - page 52 08/2878-R - page 58 08/5793-R - page 58 10/2209-R - page 58 09/5392-R - page 57 10/1680-R - page 57 Social Rights 09/3183-R - page 57 09/0154-R - page 56 09/2429-R - page 56 113  Subject Proc. no./Page no. 10/0218-R - page 62 09/6259-R - page 61 10/4294-R - page 63 10/0131-R - page 84 Workers’s Rights 10/3968-R - page 63 09/0285-R - page 61 09/4198-R - page 88 10/2413-R - page 62 08/1372-R - page 78 10/4949-R - page 76 10/4175-R - page 76 Other Fundamental Rights 10/0325-R - page 76 09-6369-R - page 77 10/4561-R - page 77 09/2622-R - page 84 114  PORTUGUESE OMBUDSMAN Report to the Parliament 2010 Portuguese Ombudsman – Report to the Parliament – 2010 The Ombudsman’s Office Rua do Pau de Bandeira, 7-9, 1249-088 Lisboa Portugal Telefone: +351 213 92 66 00 | Fax: +351 21 396 12 43 provedor@provedor-jus.pt http://www.provedor-jus.pt