Documento RES_Annual_Report2012

PORTUGUESE OMBUDSMAN Report to the Parliament 2012 SUMMARY PORTUGUESE OMBUDSMAN Report to the Parliament 2012 SUMMARY Lisbon 2013  O PROVEDOR DE JUSTIÇA Her Excellency President of the Parliament 2. I take this opportunity to convey my availability to be present before the competent Parliamentary Committee in order to present the report and provide all clarifications that are deemed necessary. 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 – 2012 - Summary Published by – The Ombudsman´s Office – Documentation Division Design – Lagesdesign, Unipessoal, Lda Photographs – Nuno Fevereiro 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 MESSAGE FROM THE OMBUDSMAN 08 1. THE OMBUDSMAN’S MANDATE 11 2. THE OMBUDSMAN AND HIS TEAM 15 3. THE OMBUDSMAN’S ACTIVITY IN 2012 18 3.1. Statistical Comment on Global Data 18 3.2. Recommendations of the Ombudsman 24 3.3. Review of the Constitutionality 39 3.4. Cases and Inspections of the Ombudsman´s own Initiative 41 3.5. International Relations 44 3.6. The Ombudsman as National Human Rights Institution 47 05  ALFREDO JOSÉ DE SOUSA (Ombudsman - (2009/....) Alfredo José de Sousa was born on 11 October 1940, in Póvoa de Varzim. 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 Judge Counsellor 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). 06  The Ombudsman 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. 07  Message from The Ombudsman In compliance with Article 23, paragraph 1, of the Statute administration was targeted in more than 50% of cases, of the Portuguese Ombudsman (Law 9/91, of 9th April) with the Ministry of Solidarity and Social Security, fol- I have the honour to present to the Parliament the 2012 lowed by the Ministry of Finance, at the top of the table. Annual Report of Activities. Concerning local administration, the municipality of Lis- bon was the most targeted entity, with 17% of the total of complaints. In what refers to constitutionality review, having 2012 in large numbers examined 65 requests to seize the Constitutional Court, I decided to request the declaration of unconstitutionality In 2012 I decided to open 7027 cases, 12 of which on in 2 cases. In one of them, a judgment has already been my own initiative and the remainder pursuant to com- issued, upholding my request. plaints presented by 27218 complainants. In total, in 2012 In 2 of the 3 judgments delivered in 2012 pursuant to I opened 1215 cases more than in 2011. requests for review of constitutionality from previous years, About 1430 citizens submitted communications that, due the Court complied with my requests. to their anonymous or generic nature, were deemed inad- Throughout 2012, I issued 35 recommendations, 20 of missible. The same happened with 1290 complaints that which had been accepted by the end of that year. Of the did not fall within the Portuguese Ombudsman’s scope of remaining 15, 4 were not accepted, 3 had no reply and for jurisdiction. In both cases the communications did not lead the other 8 the deadline for a reply is still running or discus- to the opening of a case. sions are still ongoing with the entity concerned. Of the 7027 cases that were opened, 2198 resulted from written complaints, 4162 from complaints submitted elec- These figures allow me to conclude that, despite the tronically and 655 from complaints presented in person. increase in the number of cases that were opened, Electronic complaints remained at the top of the chart, the normal activity of the Ombudsman maintained representing 60% of the complaints received. the upward trend of closed cases and the reduction of Of the 7027 cases opened in 2012, 5027 were closed in the backlog from the previous years. the same year. In total, in 2012, 6824 cases were closed, 5342 of which within 6 months. At the end of the year there were 2199 pending cases. The amendment to the Statute of the In 2012, in about 40% of the 6824 closed cases there Portuguese Ombudsman was at least partial agreement with the complaint and a so- lution that was fair and in conformity with the request was On 29 February 2012, pursuant to article 20, paragraph reached still during the investigation of the case. In 39% of 1, indent b) of the Statute of the Portuguese Ombudsman, the cases the complaints were considered unfounded or an I addressed a recommendation to the Parliament with a adequate solution was not, or could not, be reached, with view to introducing specific amendments to that instru- the pursuit of further measures being deemed not useful. In ment, in order to recognize the new activities that have other cases, in which it was not possible to restore the le- been committed to the Ombudsman within the European gality or justice in dialogue with the administration, I drew Union, the United Nations and the Council of Europe, as well the attention of the competent bodies or services (185 cas- as in his capacity as National human Rights Institutions, and es), issued 35 recommendations (30 cases) and requested also to extend the scope of competence of the Ombudsman the intervention of the Constitutional Court (5 cases). to services of general economic interest. This recommenda- tion resulted in the adoption of Law 17/2013, of 18 Febru- Issues related to social rights and rights of workers ary, which was the third amendment to the Statute of the led the chart of complaints issues. The central public Portuguese Ombudsman. 08 Rules of Procedure of the Portuguese The facilities of the Portuguese Ombudsman Ombudsman On 10 February the Rules of Procedure of the Portu- In 2012, after the necessary works in the building where guese Ombudsman, concerning the organization of de- the Ombudsman’s services are situated came to an end – partments and the work of coordinators and legal advisers, works which were essential for the safety of the people as well as their coordination with the Ombudsman’s Cabinet who work here and for the maintenance of the facilities and Secretary-General, came into force. These new Rules of – small maintenance works were carried out, namely the Procedure, which came into force in 2012, are available on replacement of the front windows of the main build- the website of the Ombudsman, to ensure that complain- ing, with a view to improving the quality of temperature ants know the procedure used to assess their complaints, regulation in it. thereby ensuring greater transparency of the activity of Om- budsman. The Rules of Procedure also integrate the Code of Good Administrative Behaviour, thus anticipating the imple- Dissemination and promotion of the mentation of the Recommendation that I addressed to the Ombudsman’s actions Parliament in 2012 and in relation to which I still have no information as to any follow-up given to it. Pursuant to the To promote and disseminate among the immigrant recent amendment to the Statute, which I have just community the Ombudsman’s action, the means of action mentioned, the Rules of Procedure of the Portuguese Om- available to him and how to appeal to him, on 3 May 2012 budsman should be published in the Official Journal. I celebrated a Collaboration Protocol with the High Com- missioner for Immigration and Intercultural Dialogue (ACIDI). Project to modernize the ICT Through this Protocol the ACIDI commits to disseminating infrastructure to the citizens that seek it information on the mission and mandate of the Portuguese Ombudsman, informing them In 2012, I continued to pursue my goal of reshaping the of the available means to submit a complaint. The ACIDI Portuguese Ombudsman’s information systems. also makes available, in National Immigrant Support Cen- tres, adequate means and free access to the website of the On 20 March a new electronic complaint form came into Portuguese Ombudsman, assisting in the filling in of the force, introducing additional fields in the pre-existing form, complaint form, if so requested. In turn, the Ombudsman so as to simplify and improve the preliminary assessment of provides to the ACIDI all the relevant documents to dissemi- complaints; elements to improve the reliability and safety of nate his mission and mandate, and will refer to the Legal the information that is gathered were also introduced. Support Offices of the National Immigrant Support Centres the citizens that contact him and that need guidance that On 1 June 2012, on the occasion of the celebration the ACIDI is especially competent to provide. of Children’s Day, the Child Friendly Page of the Ombudsman’s website was launched. The prior Cooperation Protocols celebrated with the National Association of Portuguese Municipalities, the The new website of the Portuguese Ombudsman started Minister for Education and the Law Faculty of the Univer- its operation on 19 November and, further to being more sity of Lisbon remained in force, with the aim of promoting user-friendly, it also has additional features, such as the and disseminating the Portuguese Ombudsman, namely possibility to perform free-text searches and a larger capac- his role as National Human Rights Institution, as well as ity to store essential information about the Ombudsman’s to promote and disseminate the fundamental rights and activity, which should be accessible to all citizens. freedoms of citizens, and the means through which citizens may appeal to the Ombudsman. Throughout 2012 the project for the implementation of a With the same goal I attended and ensured representa- case management system was continued. The system will tion in several events at national level, held by civil society provide support to the main proceedings used by the in- organisations, in particular organizations representing and stitution, namely the handling of complaints, and aims to defending the rights of groups of citizens in a more vulner- improve the case registration system and workflow services able situation. of the Portuguese Ombudsman. 09  International Relations and, in order to deal with matters within his competence, may take part in the work of parliamentary committees With regard to international relations, I tried to resume when he deems it appropriate and where his/her presence the work of continuity and deepening of the cooperation is requested. He may also issue an opinion, at the request of with counterpart institutions, whether bilaterally or within the Parliament, on any matter related to his activity. Since the international fora of Ombudsmen and National Human his recommendations are not binding, if the Administration Rights Institutions, in line with the so-called Paris Principles. does not act according to them or refuses the requested Thus, I continued to pursue my goal to strengthen the collaboration, the Ombudsman may address himself to the role of the Ombudsman as National Human Rights Institu- Parliament, stating the reasons for his position. tion, promoting the institution amongst NGOs and other civil society actors and establishing a link between the In compliance with Article 23 of the Statute of the Por- national level and the international human rights system. tuguese Ombudsman, on 17 May I personally presented to the President of the Parliament the Annual Report of Pursuant to the efforts and contacts employed with a view the activity of the Ombudsman in 2011, while expressing to the promotion and creation of Ombudsmen / National my entire availability to be present before the Parliamen- Human Rights Institutions in the countries of the Commu- tary Committee for Constitutional Affairs, Rights and Liber- nity of Portuguese-Speaking Countries (CPLP), I organized, ties, during the discussion and assessment of the Report. I in collaboration with the Office of the United Nations High presented this report on 27 June 2012, at the Committee Commissioner for Human Rights, from 15 to 17 October, in on Constitutional Affairs, Rights, Freedoms and Guarantees. Cape Verde, a seminar attended by representatives of National In 2012 I addressed 3 recommendations to the Parliament, Human Rights Institutions, Governments and Parliaments among which the one related to specific amendments to of the eight Portuguese-speaking countries. In the seminar, the Statute of the Portuguese Ombudsman, described the Praia Declaration was adopted, calling on the creation of above in greater detail, and the recommendation concerning National Human Rights Institutions that are effective and in- the adoption of a Code of Good Administrative Behaviour, dependent, in conformity with the Paris Principles. As a side with a view to recognizing the right to good administration, event, in the presence of His Excellency the President of the established in article 41 of the Fundamental Rights Charter of Republic of Cape Verde, a Memorandum of Understanding the European Union. In this context, I welcome the adoption was signed between the Ombudsmen of Angola, Mozam- of Law 17/2013, of 18 February, which amended the Statute bique, Timor-Leste, the Procurador Federal para os Direitos do of the Portuguese Ombudsman, not only by recognizing the Cidadão Adjunto of Brazil and the Ombudsman of Portugal, role of National Human Rights Institution, but also by broad- with a view to organizing, within a short delay, a meeting to ening the scope of activity so as to cover services of general promote the creation of a Network of Ombudsmen / National interest. I regret, however, that no follow-up was given to Human Rights Institutions of the CPLP countries. It is my inten- my recommendation envisaging the adoption of a Code of tion that this meeting, to be organised in collaboration with Good Administrative Behaviour. the Executive Secretariat of the CPLPL, takes place in Lisbon, On 29 May I attended a hearing of the Subcommittee still during the first semester of 2013. on Equality of the Parliamentary Committee of Constitu- tional Affairs, Rights, Freedoms and Guarantees, and on Still at the international level, I once again reiterated my 7 November a hearing of the Parliamentary Committee on availability to take on the function of National Prevention Environment, Spatial Planning and Local Authorities, re- Mechanism for the Prevention of Torture, considering that garding the revision of the Framework Law on Environment. this appointment should have been made at the time of the On two occasions I addressed myself to the competent ratification by Portugal of the Optional Protocol to the United Parliamentary Committee, expressing my opinion on mat- Nations Convention Against Torture, based on the powers ters being assessed by the Parliament; on 31 August with already conferred to the Ombudsman and the extensive work regard to the approval for ratification of the Optional Proto- carried out on the penitentiary system and the rights of inmates. col to the United Nations Convention against Torture and on 22 October on the legal regime of professional associations. The Ombudsman and the Parliament Council of State Collaboration with the Parliament is essential for the development of the activity of the Ombudsman and it is, in In my capacity as member of the Council of State I was fact, a natural result of the close relationship that exists be- present at the meeting that took place on the 21 Septem- tween the two entities. The Ombudsman is elected by the ber, to analyze the European response to the crisis of the Parliament, must submit to it his annual report of activities Euro zone and the Portuguese situation. 10 1. THE OMBUDSMAN’S MANDATE The institution of the Ombudsman, directly inspired by The Ombudsman’s main function is to defend and pro- the Swedish Ombudsman set up in the early 19th century, mote the rights, freedoms, guarantees and legitimate inter- was introduced in Portugal by Decree-Law no. 212/75, of ests of citizens, guaranteeing, through informal means, the 21st April. In 1976 the Ombudsman was consecrated at con- justice and legality of the exercise of public powers (articles stitutional level, in article 24 of the Portuguese Constitution, 23 of the Constitution and article 1 of the Statute). current Article 23. With the publication of Law 17/2013, of 18th February, The consecration of the Ombudsman in the general prin- the Ombudsman can also carry out the functions of in- ciples of Part I of the Portuguese Constitution relating to dependent national institution for the monitoring of the fundamental rights and duties gives this State body in- implementation of international treaties and conventions creased protection. Indeed, the Ombudsman has been es- on human rights, whenever appointed to that effect. The tablished within the framework of constitutional values as Ombudsman also has the competence to ensure coopera- a fundamental right of the people, thus benefiting of the tion with counterpart institutions and with organizations of general regime of fundamental rights and the special re- the European Union and other international organizations in gime of rights, freedoms and guarantees, instead of a sim- the context of the protection and promotion of the rights, ple institutional guarantee. So the Ombudsman is, de jure, freedoms and guarantees of citizens (article 1, paragraphs a constitutional body due to ensure the fundamental rights 2 and 3 of the Statute). and, more generally, human rights. At a subjective level, the scope of his/her activity cov- Thus, it was the responsibility of the Portuguese legisla- ers, in particular, the services of the central, regional and tor to establish the respective Statute, via Law 81/77, of local public Administration, the Armed Forces, public insti- 22 November, that in the meantime has been revoked by tutes, public companies or the companies whose capital Law 9/91, of 9th April, and subsequently amended by Laws is mostly public and the concessionaires operating public 30/96 of 14th August, 52-A/2005 of 10th October, and, services or exploiting state property (article 2, paragraph more recently, 17/2013 of 18th February. 1 of the Statute). In essence, the Constitution and the Law define the The scope of the Ombudsman’s activity does not include Ombudsman as a single person body of the State, irremov- sovereign bodies (President of the Republic, Parliament, able, completely independent1 and impartial in the exercise Government and Courts), or the Regional Parliaments and of his functions, and endowed with parliamentary legitimacy. Regional Governments of the Autonomous Regions of the The mandate holder is designated by the Parliament, by Azores and Madeira, except in issues associated to their a qualified two-thirds majority of MPs present, provided administrative activity or acts of supervision of the Admin- that this is higher than the absolute majority of MPs ef- istration. As a result, the Ombudsman’s supervision and fectively in functions. The Ombudsman’s mandate is four control powers do not extend to the political activity, in the years, and may only be renewed once. His/her functions strict sense of the term, nor to the judicial activity (article cannot terminate prior to the end of the period for which 22, paragraph 2 and 3 of the Statute). he/she has been designated, except in the cases specified On the other hand, the Ombudsman’s remit is no longer in the law (articles 23, paragraph 3, and 163, indent i) of restricted solely to the public authorities, although this does the Constitution and articles 5 to 7 of the Statute). configure its main scope. Since 1996, the Ombudsman may Furthermore, the Ombudsman is exempt from civil and also intervene in relations between private entities, but only criminal liability for the recommendations, comments or when there is a special relation of power and if this falls opinions that he/she issues or for the acts that he/she within the scope of protection of rights, freedoms and guar- practices in exercise of his/her functions (article 8, para- antees (article 2, paragraph 2 of the Statute)2. graph 1 of the Statute). 1 The constitutional revision of 1989, approved by Constitutional Law 1/89, of 8th July, clarified the Ombudsman’s degree of independence (1st part of paragraph 3 of 2 Legal provision introduced in the Ombudsman’s Statute by means of Law 30/96, article 23 of the Portuguese Constitution). of 14th August. 11  The Ombudsman acts, as a general rule, pursuant to citizens’ • intervene, in accordance with the applicable law, in the complaints (article 23, paragraph 1, of the Constitution and protection of collective or diffuse interests whenever a article 3 of the Statute). Nonetheless he/she may also act on public entity is involved. his/her own initiative (articles 4 and 24, paragraph 1 of the • make, with our without prior notice, inspection visits Statute), in response to facts that he/she becomes aware of to any area of activity of the central, regional and local by any other means, either via: the media; alerts issued by administration, including public services and civil and a NGO’s and reports from International Organisations; his/ military prisons, or to any other entities under his/her her sensitivity in diagnosing more problematic situations of control, hearing their bodies and officials and requesting national scope and also by the special depth with which he/ such information, and the exhibiting of documents, as she analyses complaints and withdraws the common denomi- he/she may deem adequate; nator that resides therein, classifying and analysing issues or • Undertake such investigations and enquiries as he/she questions that require more in-depth analysis3. The Ombuds- may deem necessary or convenient; man therefore has complete autonomy to act on his own ini- • Search, in cooperation with the competent bodies and tiative, investigate, inspect, denounce irregularities and rec- services, the solutions which best allow the protection of ommend changes, aimed at improving public services. In this the legitimate interests of citizens and the improvement context, the Ombudsman may guide his/her activity in order of the Administration’s activity. to prevent incorrect conduct by the public powers and instil an administrative culture, and also monitor the public policies. In the performance of his/her duties, he/she may carry The Ombudsman’s activity is independent of any acts of out investigations and inquiries as he/she deems necessary, grace or legal remedies specified in the Constitution and make inspections4 (article 21, paragraph 1, indents a) and in the laws (article 23, paragraph 2 of the Constitution and b)) and is entitled to order any civil servant or any official articles 4 and 21, paragraph 2 of the Statute). of any public body to be present at his/her Office (article In the exercise of his/her functions, the law attributes 29, paragraph 5 of the Statute). Correspondingly, the bod- broad powers to the Ombudsman as a national constitu- ies and agents of public entities, civil and military, have a tional fundamental rights’ protection body. In summary, in duty of cooperation, also defined in broad terms (article 23, accordance with articles 20 and 21, 23 and 38 of the Stat- paragraph 4, of the Constitution and articles 21 and 29 of ute, the Ombudsman can: the Statute). Given that this is a legal duty, non-compliance • address recommendations to the competent bodies with constitutes a crime of disobedience, liable for a disciplinary a view to correcting illegal or unfair acts of public authori- procedure (Article 29, no. 6 of the Statute). ties or to improving their services (administrative recom- The Ombudsman is a member of the Council of State. mendations). If recommendations are not accepted, and whenever the collaboration requested is not forthcoming, To ensure greater transparency of his activity and that the Ombudsman may address the Parliament, or if appli- complainants know all the internal procedures that are cable, Regional Parliaments, stating the reasons behind necessary to it, in February 2012 the Ombudsman adopted his actions. new Rules of Procedure, which can available on his web- • point out shortcomings in legislation, issue recommen- site and which, pursuant to Law 17/2013, of 18th February, dations concerning its interpretation, amendment or shall be published in the Official Journal (article 17, para- revocation, or suggesting the drafting of new legislation graph 2 of the Statute). (legislative recommendations); • request the Constitutional Court to declare the unconstitu- tionality or illegality of any legal provisions, or to rule on The right to present a complaint to the cases of unconstitutionality due to a legislative omission; Ombudsman • issue opinions, upon request of the Parliament, on any matter related to its activity; If he/she deems it conveni- Citizens’ access to the Ombudsman is broad, direct and ent, and at their request, the Ombudsman may partici- free of charge. All citizens are entitled to present complaints pate in the work of parliamentary committees for the pur- to the Ombudsman, regardless of their age, nationality 5 pose of dealing with matters within his/her competence; • promote the divulgation of the content and the meaning 4 Either by exercising his right to take own initiatives, or after a specific complaint, of each of the fundamental rights and freedoms, as well 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 as of the aims of the Ombudsman, the means of action - specifically public services and civil prison establishments and military personnel at his/her disposal and how to appeal to him/her; establishments, or to any entities subject to its control - and also undertake all the investigations and inquests that it considers to be necessary or convenient. 5 Result of the constitutionally-established principle of equivalent treatment (article 15, no. 1, of the Constitution), the Ombudsman is an institution that is open to 3 The Ombudsman may, in particular, after studying a complaint, analyse the dys- foreigners and stateless persons, regardless as to whether or not they have regu- functional aspects of the respective system or sector of the Public Administration. larised their legal situation. 12 or residence. The complaint may be presented by citizens, evant task consists in qualifying the communication as a either individually or jointly, and depends neither on the «complaint», or as a simple statement of facts. Next, the complainant’s direct, personal and legitimate interest nor on complaints are subject to a judgement of admissibility, in any time limits (article 24, no. 2 of the Statute). The com- order to ascertain whether their material scope lies within plaints must concern illegal or unfair actions or omissions the Ombudsman’s sphere of powers. In all circumstances, it by public authorities, that the Ombudsman is responsible is always the substance, rather than the form, of the com- for redressing or preventing (article 23, paragraph 1, of the munication, that must be considered. Constitution and article 3 of the Statute). In this context, a complaint is considered to be any com- The right to present a complaint to the Ombudsman is munication, regardless of its form, that is presented by one therefore also subject to same constraints and limitations or more complainants, in which the Ombudsman is request- that should be explained in further detail. ed to intervene in relation to questions falling within his A specific example is the regime governing complaints scope of competence. filed by military personnel to the Ombudsman, regulated in In relation to any complaint, the parameters determin- a special and autonomous manner by Law 19/95, of 13th ing the possibility of the Ombudsman’s intervention include July and by the Law of National Defence, approved by the both the mission and competencies legally attributed to Organic Law 1-B/2009, of 7th July (article 34). In accordance this body; and respect for the principle of separation of with these legal norms, military personnel, prior to pre- powers, consecrated in articles 2, 110, and 111, paragraph senting an individual complaint to the Ombudsman, must 1, of the Portuguese Constitution; and also the purely rec- exhaust all other forms of hierarchical appeal and com- ommendatory nature – rather than a binding nature - of plaint within their respective chain of command. In 2009, his/her intervention. the Ombudsman opened a case, on his own initiative, to A complaint that fails to respect the scope of the Om- appraise this issue, due to the fact that he disagreed with budsman’s attributions will be preliminarily rejected. this regime, in light of the relevant constitutional provisions, There is also the possibility that the Ombudsman will above all Article 270 of the Portuguese Constitution. On the conclude that the complainant has access to acts of grace or same topic, in 2010, he issued a recommendation to Parlia- legal remedies, as specified in the law, and the complaint ment, to eliminate negative discrimination against military may therefore be forwarded to the competent body (article personnel, which constitutes a barrier to the Ombudsman’s 32, paragraph 1 of the Statute). activity as the protector of justice, rights and freedoms of If the complaint is neither preliminarily dismissed nor all citizens6. simply forwarded, a case will be opened (to be sequentially Public bodies or entities cannot however present com- numbered) and inquiries carried out. plaints against other bodies or entities of the same nature. The Ombudsman operates in an informal manner. In oth- This is because the Ombudsman is a body intended to defend er words, the Ombudsman is not bound to strict procedural citizens against the exercise of public powers, against abuses norms, nor to specific procedural norms in relation to the practised by the Administration and other public powers, production of evidence (article 1, paragraph 1, and article rather than a body designed to mediate institutional con- 28, paragraph 1 of the Statute). Indeed, the Ombudsman flicts between these powers. On the contrary: a characteristic frequently recourses to telephone calls or organises meet- quality of his/her function and the powers conferred to him/ ings between the entities addressed and complainants, in her is to foster initiatives of concertation and mediation, in an order to foster consensus and conciliation of the interests attempt to find, in collaboration with the competent bodies involved, and thereby resolve or overcome the dispute. and services, the most suitable solutions to protect citizens’ Another essential characteristic of the Ombudsman’s ac- legitimate interests and to improve administrative action (ar- tivity is the speed with which complaints are processed. ticle 21, paragraph 1, indent c) of the Statute). Suitable mechanisms and instruments are adopted in order The Ombudsman is not bound by the complaint itself, or to ensure that the Ombudsman may respond promptly to by the exact terms in which it is formulated. He/she may, the question submitted to him - effectively and efficiently - first and foremost, reject complaints that he/she objectively and ensure its swift resolution. considers to be unfounded; he/she may check facts and issue The Ombudsman is a control body based on the princi- recommendations beyond the terms of the request; or even, ple of cooperating, that fosters prior hearings with the en- propose measures that stand in opposition to the interests of tities addressed, prior to taking any position on the issue the complainants, given that he/she is a defender of both the or formulating any conclusions (article 34 of the Statute), legality and the justice of the activity of the public powers. listening to their arguments and permitting them to provide Within the fairly diversified range of communications all 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- est will be weighed against the right claimed by the citizen. 6 Recommendation no. 1/B/2010, of 3rd February. 13  After investigation of the case, the Ombudsman may In this context, he/she does not have any coercive pow- conclude that the complaint is unfounded, due to lack of er, or power to make impositions or annulments. The force due grounds, in which case the case will be closed, and the of the Ombudsman’s intervention fundamentally resides in complainant will be informed of the reasons underlying this the power of persuasion and what has been called «mag- decision, highlighting the justice and legality of the position istrature d’influence», i.e. the Ombudsman’s authority is assumed (article 31, indent b) of the Statute). moral and its effectiveness depends on being demonstrably If pursuant to the inquiries made it is demonstrated that impartial and non-partisan. the complainant has a well-founded complaint, the case may Complaints may be presented in writing or orally, identify- still be closed if the illegality or injustice has been redressed ing the identity and address of the complainant and, when- in the meantime (article 31, paragraph c) of the Statute). ever possible, his/her signature. When presented orally, a re- In other cases, unless measures are adopted to restore le- cord of the complaint must be drafted, which the complain- gality or overcome the injustice cited in the complaint, the ant will sign, if he/she knows how to, and is capable of doing Ombudsman may issue recommendations to correct the il- so (article 25, paragraph 1 and 2 of the Statute). legal or unfair act, or the irregular situation (articles 20, no. Citizens may send their complaints by letter, telephone or 1, paragraph a), and 38 of the Statute). In other situations, fax, and also by electronic means, by filling in the specific he/she may make suggestions or formulate proposals to form available at the Ombudsman’s website (http://www. the public powers, in order to restore the legality of the act provedor-jus.pt/queixa.htm). They may also present their against which the complaint has been submitted. He may complaints in person at the premises of the Ombudsman. also, in less serious cases, of a one-off nature, simply issue In addition to the possibility of sending a complaint direct- a warning to the body or service against which the com- ly to the Ombudsman, they may also be sent to the Public plaint has been submitted or terminate the subject with Prosecution Service, who shall immediately forward them the explanations provided, in which case the case will be to the Ombudsman (article 25, paragraph 3 of the Statute). closed (article 33 of the Statute). When a complaint is incorrectly submitted its replacement will be ordered (article 25, paragraph 4 of the Statute). 14 2. THE OMBUDSMAN AND HIS TEAM In exercising his functions the Ombudsman is assisted by Staff in functions in the Ombudsman’s two Deputy Ombudsman and by a Cabinet with a Head of Services Cabinet, Advisers, Secretaries and a Press Adviser. (as of 31 December 2012) In what concerns the work related to the investigation of complaints the Ombudsman is assisted by 6 Coordinators Ombudsman’s Cabinet and Deputy 12 and 46 Legal Advisers (Advisory Service). The work is organ- Ombudsman ized in 6 main departments, according to the nature of the Advisory Legal Service 46 fundamental rights in question: Environment and Life Qual- ity Rights; Rights of Taxpayers, Consumers and Economic Directorate of Technical Services and Administrative 44 Supports Operator, Social Rights, Worker’s Rights, Right to Justice and Security and Other fundamental Rights. Contracted Staff 1 Matters concerning the rights of children, elderly persons and persons with disabilities are currently handled by a spe- cialized structure – the Department on Children, Elderly Per- sons and Persons with Disabilities (N-CID) – which has been in operation since late 2009 and is placed under the direct 2012 Budget supervision of a Deputy Ombudsman. In addition to defend- ing the rights of children and young people, elderly per- Budgetary execution was based on policies of restric- sons and persons with disabilities pursuant to complaints, tion of the current expenses. Initial budget (inferior to the it also seeks to develop more proactive action, by focusing budget of 2011): 5 241 897,00 €. on promoting and disseminating information on the rights of these particularly vulnerable groups. Since its creation, Current services and goods 5 141 897,00 € the N-CID has brought together two specialized and toll- free telephone services of the Portuguese Ombudsman: the Investment expenses (new technologies and 100 000,00 € Children’s Hotline and the Elderly Citizens’ Hotline. In 2011, repairs of the building) the Citizens with Disabilities’ Hotline began operating on an Total 5 241 897,00 € experimental basis. The Ombudsman also has a Directorate of Technical and Administrative Services, under the supervision of the Secre- tary-General. 15  Organisational Chart OMBUDSMAN Deputy Ombudsman Secretary-General Cabinet 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 16 THE HEADQUARTERS OF THE OMBUDSMAN 17  3. THE OMBUDSMAN’S ACTIVITY IN 2012 3.1. Statistical Comment on Global Data Graph I Table 2 – Number of cases opened Written complaint 2198 Oral / in person complaint 655 Cases opened Electronic complaint 4162 8000 Ombudsman’s own initiative 12 7000 18 17 12 6000 Total of cases opened 7027 16 5000 4000 6731 7015 6488 5796 3000 2000 The increase of complaints received by electronic means 1000 0 persists. In 2012, about 60% of the complaints leading to the 2009 2010 2011 2012 opening of a case were received this way, with a corresponding Pursuant to a complaint On the Ombudsman's own initiative decline in other written media (regular post and fax). The proportion of complaints presented verbally was identi- cal to the previous year, at about 9%. 7027 cases were opened during this year, 12 of which by the Ombudsman on his own initiative and the remaining Table 3 – Number of cases closed following a complaint. This represents an increase of 1215 Main cases from 2007 1 cases (i.e. 21%) in relation to the previous year, consider- Main cases from 2008 0 ably strengthening a growth trend already observed in the Main cases from 2009 12 last few years. Main cases from 2010 283 In addition, 1290 complaints were deemed inadmis- Main cases from 2011 1501 sible, due to not falling within the scope of jurisdiction of the Ombudsman. Another 1430 communications were also Sum of cases prior to 2012 1797 immediately dismissed, due to their anonymous or generic Cases opened in 2012 5027 nature. Total of cases closed 6824 Table 1 – Number of complainants Natural persons 26 745 Table 4 – Number of cases pending on 31 December Legal persons 473 Main cases from 2009 2 Main cases from 2010 10 Total of complainants 27 218 Main cases from 2011 187 The number of individuals submitting complaints to the Sum of cases prior to 2012 199 Portuguese Ombudsman rose significantly, from 7341 to Cases opened in 2012 2000 26745. This was due to the concentration of many thou- Total of pending cases 2199 sands of complaints on issues such as those arising from the legal solutions enacted by the State Budget for 2012, about Graph II the suspension of Christmas and Holiday allowances to civil servants and pensioners. As they addressed the same sub- Cases opened and closed ject, these complaints were incorporated into a single case, 8000 6749 7027 6824 6505 6790 which explains why the number of complainants is much 5935 5812 6098 higher than the number of cases opened. 4000 The increase in the number of legal persons submitting complaints to the Ombudsman was much less significant (473 in 2012, compared with 412 in 2011). 0 2009 2010 2011 2012 Opened Closed 18 Graph III In 2012, a new table of grounds for closing a case was introduced. In around 40% of all closed cases, a fair and consistent solution was achieved still during the inves- Evolution of the total number of pending cases tigation stage. Besides this, 185 cases were closed with 3000 2567 an appropriate proposal, 30 cases with a formal recom- 2500 2282 2199 mendation and 5 cases through the intervention of the 1996 2000 Constitutional Court. 1500 In 39% of the cases, the complaints were deemed 1000 unfounded or it was considered that no further useful measures could be adopted with a view to reaching an 500 adequate solution. 0 2009-12-31 2010-12-31 2011-12-31 2012-12-31 Graph V Duration of cases closed in 2012 The number of cases closed rose by 11% in comparison 2500 2387 with 2011 (6824 cases closed). However, this increase was N = 6824 not enough to compensate the increase of new cases, there- 2000 1798 by causing a rise in the number of pending cases at the end 1500 of the year, which nevertheless was still inferior to the figure 1157 recorded at the end of 2010 (2199 pending cases). 1000 536 500 384 284 191 87 Table 5 – Summary of case activity 0 Up to Between Between Between Between Between Between a Over Total of cases from 2011 1996 30 days 31 and 91 and 181 and 271 and a year year and a 2 years 90 days 180 days 270 days 365 days and a half and two year and years Total of cases opened 7027 a half Total of cases closed 6824 Cases opened and closed in 2012 *5027 In comparison with the values of 2011, a visible reduction Cases pending on 31 December 2199 occurred in the duration of the cases. 35% of all cases were *Corresponding to 71,5 % of the total of cases opened closed in the first month and 78% in the first six months. As an assessment for the full year of 2011, the proportion The proportion of cases opened and closed in the same of cases closed within a year from their opening remained at calendar year was equal to that of 2011, with a natural in- the same level of 2010, with a value of 90.5%. crease in the absolute number, from 4124 to 5027 cases. Graph VI Graph IV Subject-matter of the cases Grounds for Closing a Case N = 6824 1800 1715 N = 7156 3000 1600 2744 2635 1400 2500 1200 1000 796 2000 800 654 597 702 600 428 1500 400 293 283 259 241 229 229 196 195 189 200 150 1000 685 0 500 290 146 185 Social Security Nationality Law 30 104 5 Public Employment Relationship Education 0 Tax Affairs Urban Planning and Housing Case closed after preliminary Critical remark to the competent investigation body or service Administration of Justice Territorial Planning Illegality/injustice made good Lack of competence of the Ombudsman Consumer Rights Environment and natural resources during the investigation found during investigation Foreigners' Law Penitentiary Issues Issuing of a recommendation by the Complaint unfounded / Uselessness Traffic Issues Financial Affairs Ombudsman of further measures Health Others Request for constitutionality Express or tacit withdrawal or legality review of the complaint Referral to another entity 19  The distribution of cases by subject replicates, as a rule, The distribution of cases by ministry follows, in relative the distribution observed in 2011, with a significant increase terms, the pattern of 2011 (although the Ministry of Educa- in the top categories. Thus, the higher values continued to tion and Science and the Ministry of Internal Administration refer to Social Security, Public Employment, Taxation and switched positions). Administration of Justice. In 2012 the difference between the two ministries in the top There was a significant reduction of complaints concern- position was strongly accentuated, due to the large increase in ing nationality issues, a variation once again attributable to cases relating to the Ministry of Solidarity and Social Security the situations concerning the former Portuguese State of and a small decrease in the cases relating to the Ministry of India. Finance. Graph VII Graph IX Distribution of cases by Ministry Entities concerned in the cases (excluding the cases on public employment relationship) 4500 1500 1443 N = 3286 4000 3895 N = 7603 1250 3500 3000 1000 2500 2069 750 2000 570 1500 500 930 397 1000 460 246 500 130 250 173 138 66 53 124 75 120 0 0 Central Administration Madeira Regional Administration Ministry of Solidarity and Social Ministry of Health Security Indirect and Autonomous Local Administration Ministry of Education and Science Administration Ministry of Finance Independent Entities Ministry of Foreign Affairs Açores Regional Ministry of Internal Administration Private and Foreign Entities Ministry of Economy and Employment Administration Ministry of Justice Others The complaints addressing the Central Administration The weight of labour issues in the total number of cases declined (about 2%) in relation to the previous year. In an aimed at the Ministry of Education and Science becomes evi- opposite trend, the growth of complaints against the Indi- dent when we consider that, if that subject is disregarded, rect or Autonomous Administration (over 4%) is, especially the ministry falls two positions. in the latter case, coherent with the figures of 2011. In fact, comparing 2012 with the previous year, this weight rose from 65% to 70%. There was an opposite trend in the case of the Ministry of Health (42% to 30%). Among the most targeted ministries, the proportion of Graph VIII complaints concerning labour issues is smaller in the Min- istries of Internal Administration (8%), Foreign Affairs (4%), Finance (3%) and Solidarity and Social Security (2%). Distribution of cases by Ministry 1600 1469 N = 3895 1400 1200 Graph X 1000 800 586 Distribution of cases against municipalities 600 458 433 400 600 N = 765 273 254 129 129 521 200 93 71 500 0 400 Ministry of Solidarity and Social Ministry of Health Security 300 Ministry of Foreign Affairs Ministry of Finance Ministry of Economy and Employment 200 Ministry of Education and Science Ministry of Agriculture, Sea, Ministry of Internal Administration Environment and Territorial 92 100 Planning 27 17 15 15 15 15 15 Ministry of Justice 11 11 11 Others 0 Lisboa Braga Funchal V. F. Xira Cascais Porto Matosinhos Santa Cruz Amadora Sintra Barreiro Others 20  37% of the cases targeting municipalities were concen- Graph XIII trated on 11 local authorities. The municipality of Lisbon remains the most targeted, with a significant increase. In comparison with 2011, the municipalities of Barreiro, Braga, Type of legal person complainant Matosinhos and Vila Franca de Xira entered the group of the 180 175 160 N = 473 most targeted, while the municipalities of Almada, Leiria, 140 Odivelas and Silves are no longer included in that group. 120 109 100 86 80 60 40 33 Graph XI 21 14 18 15 20 2 0 Companies Residents' Committees Cases against private and foreign entities Associations Professional Associations 60 Trade unions and trade-union Workers' Committees 54 N = 130 associations Political Parties 50 Public bodies Others 41 40 30 20 14 As regards legal persons, there was a relative decline 10 8 7 in the number of complaints submitted by companies and 2 3 1 0 trade unions, in the first case also a decline in absolute value. Following a previous trend, the number of cases Banks Health establishments Insurance companies Trade unions opened pursuant to complaints from associations contin- Other companies Other private entities ued to rise. Teaching establishments Foreign entities Graph XIV Pursuant to the new rule stipulating that no formal case Evolution of the distribution of natural is opened if the issue at stake does not fall within the ju- persons complainants by gender 70,0% risdiction of the Ombudsman, the number of cases against 65,5% 65,0% private or foreign entities persisted at low levels, even more 62,0% 61,1% 60,9% 61,3% 61,6% 60,7% 60,0% 58,5% so than in the previous year. There was a significant drop in 59,8% 55,0% 56,8% the number of complaints against banks. 50,0% 45,0% 43,2% 41,5% 40,2% 40,0% 38,0% 39,1% 39,3% Graph XII 35,0% 34,5% 38,9% 38,7% 38,4% 30,0% 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 Men Women Nature of primary complainants in cases opened 7000 N = 7015 6570 Complainants These data are collected from a questionnaire sent to the 6000 complaints after their complaint is accepted. In 2012 the 5000 proportion of responses to the questionnaire remained at about 1/3, always with a lower level of collaboration from 4000 legal persons. The breakdown by gender showed no significant change 3000 in relation to the previous year. 2000 Nearly 3/4 of respondents stated that it was their first complaint to the Ombudsman; half of the remainder had 1000 445 already done it previously from two to five times. The complainants’ age distribution remained broadly 0 Legal persons Natural persons the same as in previous years, with 46% of complainants between 40 and 59 years old and 14% over 65 years old. 21  About 80% of respondents hold more than the 1st cycle of Graph XVII basic education, 50% with a college degree. There was a decrease in the number of respondents Number of cases from abroad who qualify themselves as pensioners or public servants, or with unidentified origin compensated by an increase of the unemployed, farmers, 500 students and private sector workers. 400 300 Graph XV 200 100 0 Number of cases in mainland districts Not identified From abroad 2600 2010 2011 2012 2400 2200 2000 1800 1600 1400 1200 Continuing the trend already seen in 2011, the volume 1000 800 of cases opened pursuant to complaints about national- 600 400 ity issues submitted by naturals of the former Portuguese 200 0 ei State of India continued to decline, thus explaining the fact ro that the number of cases based on complaints coming from B Ca rag a Br Beagja ste an lo Br aan ç Av Co co im Év br or Fa aa Gu o Lear r da abroad decreased to almost 1/3 of those from the previous Li Po sboa rta iri a le Po Sa rto nt gr e Vi an Set a do ar ém úb a Ca l Vi elo la st Re al Vi se year. u 2010 2011 2012 Table 6 – Complaints and Population The five highest values Graph XVI 2008 2009 2010 2011 2012 1.º Lisboa Lisboa Lisboa Lisboa Lisboa Number of cases from the Autonomous Regions 2.º Santarém Madeira Madeira Madeira Santarém 180 3.º Faro Santarém Açores Setúbal Madeira 160 4.º Madeira Setúbal Setúbal Faro Setúbal 140 120 5.º Setúbal Faro Faro Santarém Açores 100 80 60 40 20 0 Açores Madeira 2010 2011 2012 In a year of strong growth in the number of cases, only the districts of Beja, Faro and Viseu recorded a reduction, although of negligible value. This growth was particularly felt in the districts of Lisbon, Porto, Santarém and Setúbal. In relative terms, with a growth level well above the national average, there are the districts of Évora (83%), Bragança (47%), Santarém (46%), Coimbra (41%) and the Autono- mous Region of Azores (29%). With a growth level below the national average, there are the cases of the Autono- mous Region of Madeira (13%) and the districts of Guarda (11%) and Portalegre (8%), to which we must add the cases of decrease mentioned above (Viseu, Beja and Faro). 22 Graph XVIII Cases per 10 000 inhabitants: districts and autonomous regions 11,0 10,0 9,0 8,0 7,0 6,0 5,0 4,0 3,0 2,0 1,0 0,0 Aveiro Beja Braga Bragança Castelo Coimbra Évora Faro Guarda Leiria Lisboa Portalegre Porto Santarém Setúbal Viana Vila Viseu Açores Madeira Branco do Real Castelo 2010 2011 2012 The district of Lisbon remains in the first position. In comparison with 2011, the exclusion of the district of Faro and the return of the Autonomous Region of Azores should be noted. 23  3.2. Recommendations of the Ombudsman The Ombudsman has the competence to address Date: 04.01.2012 recommendations to the competent bodies, with a view to Summary: Residents in areas subject to parking restrictions correcting illegal or unfair acts of public powers or to improv- are exempted from parking taxes. Nevertheless, the grant- ing their services, as well as to point out deficiencies in the ing of this exemption depends on the payment of admin- legislation, recommending its interpretation, amendment or istrative fees and user charges. The Ombudsman consid- revocation, or suggesting the adoption of new legislation. ered that there was no justification for the increase of user The addressed body must, within 60 days counting charges in cases where more than one vehicle exists per from the date of reception, inform the Ombudsman of its address, as the number of family members should be taken position on the issue. The decision not to accept the recom- into consideration. Furthermore, the municipal regulations mendation must always be grounded. on this matter did not comply with the general provision If the Administration does not act according to the recom- according to which all taxes must be economically and fi- mendations or if it refuses to cooperate as requested, the nancially justified. The Ombudsman recommended, in com- Ombudsman may address him/herself to the Parliament, pliance with article 8, paragraph 2, indent c), of the General stating the reasons for his/her initiative. Framework of Local Taxes, that all taxes and charges es- In 2012, 35 Recommendations were issued, 16 of which tablished by Municipal Regulations on traffic and parking concerning the need for legislative amendment («B» rec- should be justified before the Municipal Assembly. ommendations). These recommendations concerned the The Town Councilor responsible for traffic met with the following subjects and were addressed to the following Ombudsman and informed that the Regulations would be entities: President of the Parliament (3); Minister of State changed in order to comply with the recommendation. and Foreign Affairs (1); Minister of National Defense (1); Status: Accepted. Minister of Internal Affairs (2); Minister of Justice (5); Minis- http://www.provedor-jus.pt/site/public/archive/doc/ ter of Economy and Employment (2); Minister of Health (1); Rec_1A2012.pdf Minister of Solidarity and Social Security (2); President of the Regional Government of Madeira (1); Secretary of State for Public Works, Transport and Communications (2); Secre- Recommendation 2/A/2012 tary of State for Culture (1); Secretary of State for Solidarity Entity addressed: Chairman of the Board of Directors of and Social Security (1); Secretary of State for Education and Caixa Geral de Depósitos School Administration (1); Mayor of Lisbon (4); Mayor of Subject: Financial issues. Banking Industry. Cheque pre- Anadia (1); Mayor of Lagos (1); Mayor of Santa Cruz (1); sented for payment after the deadline. Returned Cheques. Mayor of Câmara de Lobos (1); Chairman of the Board of Undue payment. Debt without previous notice. Estradas de Portugal, EP (2); Director-General of the Tax and Date: 06.01.2012 Customs Authority (1); Chairman of the Board of Directors Summary: The complaint was submitted to the Ombuds- of Caixa Geral de Depósitos (1); Chairman of the Board of man by a company and concerned the procedure adopted Directors of Institute for the Financial Management of Social by Caixa Geral de Depósitos (CGD) following the deposit of Security (1); Chairman of the Board of the Institute of Reg- a cheque in one of its agencies. CGD released the funds of istries and Notaries (1). that cheque, making them available in the account of the complainant. Later, however, after the cheque had been «A» Recommendations (Article 20, paragraph 1, returned when submitted to the clearing system, with the indent a) of the Statute of the Ombudsman) justification that the drawee bank had refused its payment on the grounds of it being «past the deadline», CGD, without informing the complainant of such return, as well as with- Recommendation 1/A/2012 out previous notice, launched a debit on the account held Entity addressed: Mayor of Lisbon by the complainant, to redeem the funds of the cheque that Subject: Spatial planning. Public domain. Parking tax. was paid. Subsequent to such redemption, and as a result Resident parking tax exemption. Progressive tax. thereof, CGD considered the complainant’s account to be in 24 an overdraft situation and reported this information to the a public employment contract with non-fixed term. They Central Credit Register. Several preparatory inquiries were argued that, since 2005, they had completed all stages of promoted, with a view to leading the bank to assume the the process of training and traineeship for the career of reg- damage caused to the complainant with such a conduct. istrar and that, since 4 years ago, no competitions had been CGD disagreed with this view and, as a result, the opened allowing them to access such a career. Ombudsman recommended to the Chairman of the Board After analyzing the underlying legal issue, the Ombudsman of Directors of CGD that: concluded that: a) CGD assume the liability for the improper release of a) The deputy registrars should be transferred to the modal- funds of the cheque and the debit bank account that fol- ity of public employment contract for an indefinite pe- lowed without any previous notice; riod and that, on the same day, the experimental period b) CGD make enquiries with the Bank of Portugal aiming should be considered as successfully concluded (since to reconstitute the record that should be available in they had all been approved in their final tests). the Central Credit Register on behalf of the complainant b) Once the transition to that type of contract is operated, if the incident related to returning the cheque had not the previous regimes of expiry of the legal relationship occurred. of public employment should be applied to them, as CGD informed that it would credit the amount of the cheque provided for in Article 91, paragraph 3, and Article 88, and make enquiries with the Bank of Portugal in order to paragraph 4, of the Law on Employment Relationships, reconstitute the registry available in the Central Credit Careers and Salaries. This means that the public employ- Register. ment relationship may not be ended by considering that Status: Accepted. the deadline of extension of the validity of final exams http://www.provedor-jus.pt/site/public/archive/doc/ has expired. Rec_2A2012.pdf c) As holders of a public employment contract for an in- definite period, the deputies occupy work posts corre- sponding to the «category» of deputy until they come to Recommendation 3/A/2012 be placed as registrars, after a documental competition Entity addressed: Chairman of the Board of EP – Estradas procedure. de Portugal S.A. (Portuguese Roads Concessionaire) d) The general mobility regime provided for in Articles 58 to Subject: Spatial Planning. Expropriation on the grounds 65 of the Law on Employment Relationships, Careers and of public interest occupation. Agreement. Delay in perfor- Salaries should be applied to the deputies. mance. This opinion was communicated to the Minister of Justice, Date: 24.01.2012 who did not take any position on the matter. As such, the Summary: The Ombudsman verified that the Portuguese Ombudsman recommended that: Roads Concessionaire had occupied several land parcels be- a) The functional and legal situation of the deputy regis- fore concluding the expropriation procedure and that the trars be reassessed in order to recognize that they are area covered by the declaration of public utility had been holders of public employment contracts for an indefinite exceeded. The Ombudsman concluded that there was no le- period, with effect from the date of entry into force of gitimate title to the Concessionaire’s possession of the plots the new Law on Employment Relationships, Careers and and recommended the payment of the price to be settled Salaries. with the former owner. The Chairman of the Board informed b)In case of disagreement with this position, a legal meas- that the expropriation procedure would be concluded and a ure be adopted to put an end to the situation of labor pre- deal with the complainant would be concluded. cariousness of the deputy registrars. This measure should Status: Accepted. expressly determine that they are holders of a public em- http://www.provedor-jus.pt/site/public/archive/doc/ ployment relationship for an indefinite period and that Rec_3A2012.pdf the mobility rules that apply to other civil servants are also applicable to them. The Minister of Justice informed that efforts are ongoing to Recommendation 4/A/2012* resolve the matter by way of legislation. Entity addressed: Ministry of Justice Status: Accepted (the need for legislative amendment has Subject: Deputy Registrars. Type of public employment been acknowledged). relationship. http://www.provedor-jus.pt/site/public/archive/doc/ Date: 02.03.2012 Rec_4AB2012.pdf Summary: A group of deputy registrars submitted a com- * The same issue was addressed in Recommendation 4/B/2012. plaint about the type of public employment relationship applied to them by the Institute of Registries and Notaries: 25  Recommendation 5/A/20102 Recommendation 7/A/2012 Entity addressed: Chairman of the Board of EP – Estradas Entity addressed: President of the Regional Government de Portugal S.A. (Portuguese Roads Concessionaire) of Madeira Subject: Spatial Planning. Public domain. National roads. Subject: Environmental Law. Testing and acoustic measure- Advertising. Taxes. ments to check the limits set by General Noise Regulations. Date: 10.05.2012 Date: 20.07.2012 Summary: The Ombudsman concluded that the Portuguese Summary: Following a complaint, and after the necessary Roads Concessionaire had no competence to charge and col- preparatory inquiries, the Ombudsman concluded that the lect taxes for advertising licenses and permits in the vicinity Autonomous Region of Madeira did not have any public of national roads. This competence held by the preceding entity accredited to perform activities of supervision and public roads concessionaire was transferred to the recently control of noise pollution, in accordance with General Noise restructured Institute of Public Roads Infrastructure, without Regulations. prejudice to the municipalities’ competence in these mat- Thus, the Ombudsman recommended to the President of ters. Moreover, there were no legal grounds to support that the Regional Government of Madeira that: advertising licenses, authorizations or permits expire within a) The necessary measures be employed to establish a one year and that taxes should be annually repaid. public laboratory accredited in Madeira, able to perform The Ombudsman recommended to the Chairman of the Board activities of conformity assessment calibration, testing, that the Concessionaire abstain from charging an annual ad- inspection and certification, in accordance with Decree- vertising tax. In view of the Concessionaire’s disagreement, Law 9/2007, of 17 January, and Decree-Law 125/2004, the Minister of Economy and Employment was requested to of 31 May; take a position on the matter. The Minister acknowledged it b) For this purpose, contacts be ensured with all the munici- was convenient to amend the Concessionaire’s Statutes. palities of the Autonomous Region; Status: Accepted (the need to amend the Portuguese Roads c) Until the completion of the procedure mentioned in the Concessionaire’s Statutes has been acknowledged). previous indent, the municipalities of the Autonomous http://www.provedor-jus.pt/site/public/archive/doc/ Region of Madeira be warned of the mandatory hiring of Rec_5A2012.pdf an accredited company to carry out any tests and acous- tic measurements necessary to verify compliance with the limits set by the legislature. Recommendation 6/A/2012 The President of the Regional Government of Madeira re- Entity addressed: Chairman of the Board of the Institute of ported that the Regional Laboratory of Civil Engineering Registries and Notaries would be the accredited entity in the Autonomous Region Subject: Horizontal property. Public Services. Innovation. of Madeira providing acoustic measurement tests and ser- Co-owner consent. vices and that the Regional Direction of Spatial Planning Date: 09.07.2012 and Environment would provide the necessary equipment Summary: The complaint was filed against a sign affixed in and training, with the process being completed in 2013. a co-owned building facade indicating the existence of a reg- Status: Accepted istry department. The Ombudsman concluded that neither http://www.provedor-jus.pt/site/public/archive/doc/ the State nor the Institute of Registries and Notaries could Rec_7A2012.pdf impose innovations deemed of public utility in a building fa- cade without the consent of the co-owners, for this would correspond to an unlawful administrative easement or the Recommendation 8/A/2012 right-of-ways. Even if the innovation is not relevant for con- Entity addressed: Mayor of Anadia struction purposes the co-owners’ approval is required. Subject: Urban planning. Construction works. Compulsory The Ombudsman recommended to the Chairman of the measures. Administrative offence sanctions. Review of the Board of the Institute of Registries and Notaries that the master development plan. Primacy of substance over mere consent of 2/3 of the co-owners be obtained. Additionally, form. Pursuit of public interest principle. Legalization. it was recommended that this orientation be given to all Date: 01.08.2012 registry departments installed in co-owned buildings. Summary: The Ombudsman considered that, for safety and The Chairman of the Board reported that he would endeav- salubrity purposes, a decision should be taken in respect or to obtain the required permission from the majority of of the legalization or demolition of unlicensed construction the co-owners. works in the National Ecological Reserve area. And while a Status: Accepted. court ruling had suspended the fine imposed for the works, http://www.provedor-jus.pt/site/public/archive/doc/ on the grounds that they would be in compliance with the Rec_6A2012.pdf upcoming master development plan review, the municipal- 26 ity of Anadia could not invoke this fact to refrain from im- b) In case the measure of protection of urban legality men- posing the legalization of the construction works. The main tioned in the previous indent failed, the takeover by the controverted issue was to establish whether municipal au- State be determined, so as to enable the due enforce- thorities were to abstain from adopting measures in order ment (Article 107 of RJUE). to restore legality (either by legalization or demolition) be- The Mayor of Santa Cruz ordered the demolition of the fore a court decision. porch and drew attention to its coercive enforcement in The Ombudsman considered that the principle of separa- case of non-compliance, in line with the recommendation tion of powers prevented a court decision from affecting of the Ombudsman. the regular exercise of administrative competences. The Status: Accepted. demolition could be avoided, not by extrapolation of the http://www.provedor-jus.pt/site/public/archive/doc/ court decision on the application of the fine, or because the Rec_09A2012.pdf constructions works were previous to the National Ecologi- cal Reserve classification, but in accordance with the prin- ciples of public interest and the primacy of the underlying Recommendation 10/A/2012* substance over mere form. Entity addressed: Minister of Economy and Employment The Ombudsman recommended that the Mayor of Anadia Subject: Gambling. Casinos. Admission. Excluded gamblers. determine the notification of the owner in order to pro- Date: 08.09.2012 mote the legalization of the construction works, regardless Summary: After examining several complaints from fami- of whether they would benefit from the impending review lies of casino gamblers, the Ombudsman confirmed that of the master development plan. the admission and stay in gambling areas is only prevent- The Mayor accepted the recommendation and informed ed by reasons of unsuitable attire or visible inability (mi- that the demolition actions would be suspended for a pe- nors). The traditional European casino – with a separation riod of three years, provided that the construction works between gambling rooms and concert halls, restaurants were legalized within that period. and other tourist attractions – evolved to the American Status: Accepted. model, where gambling areas are not separate. Since http://www.provedor-jus.pt/site/public/archive/doc/ gamblers are not previously identified, their admission is Rec_8A2012.pdf allowed even when they are listed as self-excluded gam- blers or as being banned by administrative authorities or courts. In addition, many compulsive gamblers that have Recommendation 9/A/2012 been banned are lured by targeted advertising due to be- Entity addressed: Mayor of Santa Cruz ing loyal customers. The Ombudsman also noted the need Subject: Urban Planning Law. Illegal construction works. for more information about the so-called «irresistible at- Date: 30.08.2012 traction for gambling», which is an internationally charac- Summary: Following a complaint, and after the necessary terized pathology and requires clinical follow-up. It is also preparatory inquiries, it was found that construction works necessary to support the families of gamblers, who are had been made without being integrated into the architec- deeply affected by high expenses and accumulated debts, tural project of the building previously approved by the Mu- often at usurious rates. nicipality, leading to the completion of works without the The Ombudsman pointed out that recent decisions of Por- necessary license, but which could not be covered by the le- tuguese courts have ordered the casino concessionaires to gal framework concerning «works of little urban relevance», pay the losses suffered by gamblers who should have been under Article 6 of the Legal Framework on Urbanization and denied access to gamble areas. Moreover, the Ombudsman Construction (RJUE). expressed his doubts about the full compliance with the It was also found that the clandestine work could not be anti-money laundering directives and warned against the legalized, since the applicable regulations – the Regulation imperfect translation and transposition of Community Direc- of the Master Development Plan of Santa Cruz – were not tives. The economic downturn, high unemployment levels complied with, in particular with regard to legal distances and social disruption accentuated the need for the Om- provided by paragraph 7 of article 35 of that instrument. budsman to recommend to the Minister of Economic Affairs Given the above, the Ombudsman recommended to the and Employment that legislative and regulatory measures Mayor of Santa Cruz that: be urgently adopted, based upon conclusions from several a) The necessary measures be undertaken to ensure a dem- studies on the so-called ‘responsible gambling’. olition order of the illegal works at X Street, once the Status: Without a reply. impossibility to meet the legal and regulatory require- http://www.provedor-jus.pt/site/public/archive/doc/ ments for urbanization, under Article 106 of RJUE, was Rec_10AB2012.pdf recognized; * The same issue was addressed in Recommendation 8/B/2012. 27  Recommendation 11/A/2012* comply with the recommendation and maintained his pre- Entity addressed: Ministry of Justice vious opinion. Subject: Delays in the completion of medico-legal reports. Status: Not accepted. Implications on the speed of judicial proceedings. http://www.provedor-jus.pt/site/public/archive/doc/ Date: 06.09.2012 Rec_12A2012.pdf Summary: Following the inspection carried out to check the situation of the National Institute of Legal Medicine and Forensic Sciences, regarding the slow progress in respond- Recommendation 13/A/2012 ing to requests from courts, with implications at the level Entity addressed: Mayor of Lisbon of court proceedings, a report was drafted on the topic of Subject: Critical area of urban rehabilitation and conver- «Delays in the completion of medico-legal exams: impli- sion. Acquisition of property. Expropriation. Compensation. cations for the speed of the proceedings - Conclusions of Agreement obligations. Delay in performance. Trust. the inspection visits to delegations to the north, center and Date: 26.10.2012 south of the National Institute of legal Medicine and Foren- Summary: The Ombudsman concluded that the Lisbon sic Sciences». Municipality had not compensated the owners of a property In concluding the case, the Ombudsman recommended which was taken over for 14 years although it had carried that the Minister of Justice promote the regulation, possi- out the demolition works of a building thereon. Neverthe- bly through a Protocol with the Ministry of Health, of the less, these same owners were annually notified to pay the following issues: local property tax. Although the initial proposals for com- c) Ensure that urgency is given to applications for medico- pensation, lower than the tax value, were rejected by the legal examinations at the request of the National Insti- owners, an agreement had been reached in 2010. The mu- tute of Legal Medicine and Forensic Sciences and that a nicipality did not pay the agreed sum considering there was deadline is set for delivery; an obstacle to the conclusion of the public deed due to one d) Ensure that priority is given to requests for information of the heirs being bound by a testamentary trust. Since the made by the National Institute of Legal Medicine and trustee gave up his rights, the inheritance was returned to Forensic Sciences to the establishments of the National the heirs (article 2293, paragraph 3, of the Civil Code) and Health Service. the municipality could have executed the public deed. The Minister of Justice informed that an opinion on the The Ombudsman recommended that the Mayor of Lisbon recommendation had been requested to the competent ser- should take up the necessary measures to formalize the vices of the Ministry and a definitive reply was still awaited. transfer of the property’s ownership and to proceed with Status: Awaiting a definitive reply. payment of the compensation agreed with the owners. http://www.provedor-jus.pt/site/public/archive/doc/ The Mayor of Lisbon informed that the recommendation Rec_9B_11A_2012.pdf had been complied with – the public deed was formalized * The same issue was addressed in Recommendation 9/B/2012. and the compensation paid. Status: Accepted. http://www.provedor-jus.pt/site/public/archive/doc/ Recommendation 12/A/2012 Rec_13A2012.pdf Entity addressed: Mayor of Lagos Subject: Allotment. Spatial planning. Building constraints. Date: 28.10.2012 Recommendation 14/A/2012 Summary: The Ombudsman concluded that the Lagos Entity addressed: Mayor of Câmara de Lobos Municipality has been arbitrarily forbidding an allotment Subject: Urban Planning. based upon unacceptable and illogical legal arguments. Date: 05.11.2012 Although allotments are not permitted outside urban Summary: Following a complaint about the maintaining of perimeters, the delimitation of urban soils is not exclu- a situation of illegality in the urban road of Achada, the sively entrusted to master development plans: in the Ombudsman identified the construction of a «cluster absence of a binding master plan, allotments are subject of buildings» without a license and in disregard for the to favorable opinion of the Committee for Coordination provisions on regulatory distances. and Regional Development (which was issued regard- The Ombudsman also confirmed the existence of illegitimate ing the case in consideration). Furthermore, the master collection of fees for overseeing municipal urban offenses in development plan under elaboration does not dismiss violation of the rules prescribed by the Local Finance Law the allotment. (LFL) and by the General Regime of Local Exchange (RGTAL). The Ombudsman recommended that the Mayor of Lagos Thus, the Ombudsman recommended to the Mayor of should not reject the allotment permit. The Mayor did not Câmara de Lobos: 28 a. That the necessary arrangements and measures be trig- 26 November. Since the legalization procedure of the fuel gered, for the prosecution of administrative offenses station had begun in 2010, it was incorrect to admit that committed by the offender, in accordance with Article it could benefit from the location conditions prior to 2002, 98, paragraph 1, indent a), of the Legal Framework for as a result of administrative procedures that had expired in Urbanization and Construction (RJUE), and that the mu- 2001, for reasons beyond the control of the Lisbon Munici- nicipality adopts, with the due celerity, the mechanisms pality. In fact, the request to license the fuel station, reject- for protection of urban planning, as established in the ed in 2001, could not be used to avoid the application of the referred legislation; current binding location standards, which are much stricter. b. The return of the amounts charged by the municipality of Consequently, the Ombudsman recommended that the Câmara de Lobos as a fee and the repeal of Article 17 of Mayor of Lisbon revoke the license on the grounds of il- Annex I of the Regulation on Fees and Licenses of the City legality and that administrative measures be taken to re- Council of Câmara de Lobos, under the heading «inspec- store environmental safety conditions. The Mayor of Lisbon tions by claims against third parties». disagreed, considering that no illegality had occurred, and Status: Accepted. that, even if it were otherwise, the deadline for revocation http://www.provedor-jus.pt/site/public/archive/doc/ had been expired. Rec_14A2012_.pdf Status: Not accepted. http://www.provedor-jus.pt/site/public/archive/doc/ Rec_16A2012.pdf Recommendation 15/A/2012 Entity addressed: Secretary of State for Culture Subject: Arts and shows. Artistic creation. Subsidy. Public Recommendation 17/A/2012 tender. Regulation. Entity addressed: Chairman of the Board of Directors of Date: 02.11.2012 Institute for the Financial Management of Social Security Summary: After studying a complaint against the Directo- (IGFSS, I. P.). rate-General of the Arts, presented by candidates excluded Subject: Taxation. Tax enforcements. Tax enforcement from the Apoio Pontual 2010 tender, the Ombudsman con- against the person who is secondarily liable («reversão»). cluded that a certain rule had been inaccurately interpreted. Exemption of fees and interest for late payment. Indeed, the reference to specific deadlines did not concern Date: 30.11.2012 the conclusion of the cultural project but rather the proce- Summary: Two cases of fiscal enforcements were initiated dure for choosing the co-contractor. Moreover, the admin- by the Enforcement Section of Lisbon of the IGFSS, I. P., for istrative appeal brought before the Government had been debts of social security contributions from the company C., decided too late. Lda. There was a transfer of liability («reversão») to the Without prejudice to the revocation of the act of exclusion directors T. and J., who had secondary liability. Within the of the public tender, due to its invalidy, although subject to opposition period, the director T. paid the enforced debt, consideration in light of the serious financial situation since free from fees and interest for late payment, under article 2010, the Ombudsman recommended that the Secretary 23, paragraph 5, of the General Tax Law (GTL). However, of State for Culture ensure the authentic interpretation contrary to what was required by the debtors under the of the rule, and that interested parties be notified of the aforementioned law, the tax enforcement was not extin- unfavorable decision, so that they might challenge it before guished and the attachment of individual income tax reim- an administrative court. bursement and bank account balances of J. was maintained. Status: Waiting for a reply. The Ombudsman conducted a hearing to the President of http://www.provedor-jus.pt/site/public/archive/doc/ the Governing Board of the IGFSS, I. P., who confirmed the Rec_15A2012.pdf elements of the complaint, justifying the pursuit of the tax enforcement against J. for the debt of fees and interest on late payment with the fact that the DUC (single collection Recommendation 16/A/2012 document) for the payment of the debt in full, within the Entity addressed: Mayor of Lisbon period prescribed for this purpose, had been issued in the Subject: Flammable, toxic or hazardous products. Fuel sta- name of the other member of the statutory governing tion and fuel storage. Location. Error of law. Application of bodies (MSGB). transitional law. Disagreeing with this opinion and considering that: Date: 02.11.2012 1. Directors of legal persons and fiscally equivalent entities Summary: The Ombudsman considered illegal the licens- are secondarily liable in relation to the those entities and ing of a fuel station as a result of incorrect application of jointly and severally liable between themselves for the the transitional provisions set by Decree-Law 267/2002, of debts to which paragraph 1 of article 24 of GTL refers; 29  2. The implementation of the directors’ secondary liability under article 10, paragraph 5, indent a), of the IRS Code. operates through the transfer («reversão») of the tax en- This was not the opinion of the tax authorities. They forcement. The acquisition of debtor status («executados») invoked the circumstance that the real estate sold was occurs with the service in person («citação pessoal»); owned only by the wife and that the real estate purchased 3. The director who pays the outstanding debt within the is owned by both. Therefore, tax authorities considered that opposition period is exempt from fees and interest on the conditions required to apply the referred law were not late payment, under article 23, paragraph 5, of GTL; met. Tax authorities took the view that there had been a 4. If the payment is made by one of the directors before the partial reinvestment (50%) of the sale value of the first real expiry of the deadline during which the other directors estate and therefore reducing by half the exemption from who have been served can file an opposition, they all taxation of the income. benefit from the prerogative exercised by one of them Disagreeing with this view, namely because it added to (exemption from fees and interest on late payment), article 10, paragraph 5, indent a), of the IRS Code, require- given the fact that they are jointly and severally liable. ments that the legislator did not choose as conditions for The Ombudsman recommended to the Chairman of the exemption of taxation, the Ombudsman recommended to Board of Directors of IGFSS, I. P.: the Directorate-General of the Tax and Customs Authority: a) The closure of the tax enforcement cases …and joined a) That, in deciding the administrative appeals filed by cases …, against the director of company C., Lda., J.; taxpayers with respect to IRS/2009, the tax authorities b) The termination of the attachments on the individual consider included on the exemption foreseen in article income tax reimbursement and bank account balances 10, paragraph 5, indent a), of the IRS Code, the full of the MSGB; proceeds arising from the sale of the real estate that c) Reimbursement to the director of the amounts, arising they previously allocated as their permanent residence from the referred attachments, which have been unduly and that of the members of their household, as it had transferred to the cases … and joined cases …, with the been fully reinvested in the purchase of another real addition of by default interest at the legal rate; estate with the same aim. For the purpose of applying d) Dissemination of the opinion contained in this recom- the rule in question, no requirement which the law does mendation by the tax enforcements section of the IGFSS, not demand should be considered, namely that the real I. P., to be adopted in all future cases of this nature. estate sold should be owned by both tax payers (and not The Chairman of the Board of Directors of the IGFSS, by only one of them); I. P. reported to be making efforts to comply with the b) To consider converting the view expressed in the recom- Recommendation. mendation into an administrative order, with a view to Status: Accepted. providing future guidance to the Tax and Customs Au- http://www.provedor-jus.pt/site/public/archive/doc/ thorities’ offices. Rec_17A2012.pdf Status: Awaiting a reply. http://www.provedor-jus.pt/site/public/archive/doc/ Rec_18A2012.pdf Recommendation 18/A/2012 Entity addressed: Director-General of the Tax and Customs Authority. Recommendation 19/A/2012 Subject: Taxation. Exemption of real estate capital gains for Entity addressed: Secretary of State for Education and individual income tax (IRS) purposes. Sale and purchase of School Administration real estate allocated to the tax payer residence and to that Subject: Teaching staff. Fixed-term work contract. Work ac- of its household. cident. Absolute temporary incapacity. Expiry of the con- Date: 28.12.2012 tract of employment. Right to compensation for temporary Summary: The complaint was addressed to the Ombudsman incapacity for work. by a citizen whose spouse, by the wedding date, was the Date: 28.12.2012 owner of the real estate. They allocated the real estate Summary: The complaint was lodged by three teachers to their residence and to that of the members of their employed under fixedterm contract by the Ministry of household. They sold the real estate in 2009 and reinvested Education and Science. The three have suffered accidents at the proceeds on the acquisition, by both, of another real work which resulted in absolute temporary incapacity and estate which they established as their permanent residence complained that after the termination of their contracts they and also that of the members of their household. They ceased to receive the monetary compensation they were declared such reinvestment in the proper section of the paid (as provided for in Article 4, paragraph 4, indent a) and IRS return, hoping thereby to see the proceeds generated Article 15 of Decree-Law 503/99, of 20 November), in spite with the sale of the first real estate excluded from taxation, of the persistence of the above mentioned incapacity. 30 Due to the fact that those provisions cannot be considered way of a resolution and on the basis of a proposal pre- in isolation, nor can they be literally interpreted, because sented by the European Ombudsman, the European Code they would lead to an unfair result, leaving without com- of Good Administrative Behaviour, which seeks to explain pensation a damage resulting from an accident at work, the in greater detail and a more accessible language what the hearing of the Secretary of State for Education and School right to good administration, established in article 41 of Administration was requested, in order to find an urgent the Fundamental Rights Charter of the EU, means in prac- solution for these cases. tice. Against this background, the Portuguese Ombudsman Within the framework of the constitutional right to assis- considered that in the Portuguese legal order it was also tance and fair compensation of workers who have been justified to promote an initiative similar to that of his Euro- victims of work accidents, of the principle of equality and pean counterpart, with a view to strengthening the qual- also of the general regime on the compensation for work ity, transparence and citizen-oriented service of the Public accidents and occupational diseases, the right to monetary Administration. compensation should be recognized while the inability per- To that effect, the Ombudsman recommended to the Presi- sists and until the time of discharge, in accordance with dent of the Parliament that a Code of Good Administrative the law. Behaviour be adopted. The ombudsman annexed the cor- In response, it was defended that monetary compensation responding proposal, in an initiative that follows a similar shall be payable only in the exact terms laid down in the suggestion submitted to the 11th legislature, in 2010, and law and, therefore, only for the period of absence from which led to the Ombudsman being heard, in that year, by work while there is a right to the payment of remunera- the Parliamentary Committee on Labour, Social Security and tion. Otherwise, there would be unjustified enrichment of Public Administration. the worker. The lack of protection created with the expiry Focusing on the protection of the citizens, the intention was of the contract should be covered by Social Security, being to gather in the document submitted to the Parliament the considered as a situation of unemployment. principles of good administration that should guide the con- Nevertheless, considering that: duct of all public agents, in their dealings with the citizens, a) The absolute temporary incapacity due to work-related by affirming fundamental values of public service in the accidents is a responsibility of the employer to be com- conduct expected from the Public Administration. pensated through monetary payments, which can persist Status: Awaiting a reply. beyond the duration of the contract of employment and http://www.provedor-jus.pt/site/public/archive/doc/ might not be covered by the Social Security system; Rec_1B2012.pdf b) These monetary payments are not intended to remuner- ate the worker, but should be considered as compensa- tion for the temporary loss of the ability to work or gain; Recommendation 2/B/2012 c) This position leaves the teachers unprotected as a result Entity addressed: Mayor of Lisbon of the accident that they suffered, Subject: Construction works with similar impact to that of the Ombudsman recommended that the Secretary of State an allotments. Article 6 of the Lisbon Regulation on Urbani- for Education and School Administration ensure to those zation and Construction (RMUEL). teachers the payment of monetary compensation for the Date: 03.02.2012 damage of absolute temporary incapacity, while the in- Summary: The Ombudsman considered unjustified the capacity persists in accordance with the law, i.e., until the equal treatment given by the Lisbon Regulation for Urbani- time of medical discharge. zation and Construction to two different situations and to Status: Awaiting a reply. two types of charges distinguished by the Legal Frame- http://www.provedor-jus.pt/site/public/archive/doc/ work for Urbanization and Construction: on the one hand, Rec_19A2012.pdf the protection of green areas and areas of collective use, infrastructure and equipment that is to be ensured by the construction of adjoining and functionally interconnected «B» Recommendations (Article 20, paragraph 1, indent buildings with impact similar to that of an allotment; on b) of the Statute of the Ombudsman) the other hand, the cession of land imposed on the majority of construction works with relevant urban impact. Although the two impacts may perhaps be treated the same way, it Recommendation 1/B/2012 is not possible either to standardize their conditions and Entity addressed: President of the Parliament effects or to burden the same urban operation with both Subject: Code of Good Administrative Behaviour. charges. Date: 19.01.2012 Accordingly, the Ombudsman recommended that the Mayor Summary: In 2001, the European Parliament adopted, by of Lisbon provide for the amendment of article 6 of the 31  Regulation on Urbanization and Construction, in order to ity of public employment contract for an indefinite pe- make it compliant with the Legal Framework of Urbaniza- riod and that, on the same day, the experimental period tion and Construction. should be considered as successfully concluded (since The Mayor of Lisbon agreed with the Ombudsman’s posi- they had all been approved in their final tests). tion and submitted to the Municipal Assembly a proposal to b) Once the transition to that type of contract is operated, amend the Regulation. the previous regimes of expiry of the legal relationship Status: Accepted. of public employment should be applied to them, as http://www.provedor-jus.pt/site/public/archive/doc/ provided for in Article 91, paragraph 3, and Article 88, Rec_2B2012.pdf paragraph 4, of the Law on Employment Relationships, Careers and Salaries. This means that the public employ- ment relationship may not be ended by considering that Recommendation 3/B/2012 the deadline of extension of the validity of final exams Entity addressed: President of the Parliament has expired. Subject: Amendment to the Statute of the Portuguese Om- c) As holders of a public employment contract for an in- budsman definite period, the deputies occupy work posts corre- Date: 29.02.2012 sponding to the «category» of deputy until they come to Summary: The Portuguese Ombudsman recommended to be placed as registrars, after a documental competition the President of the Parliament the introduction of specific procedure. amendments to the Statute of the Ombudsman, published d) The general mobility regime provided for in Articles 58 to in 1991, without changing its overall structure. The need for 65 of the Law on Employment Relationships, Careers and the specific updates results from the activities attributed to, Salaries should be applied to the deputies. or promoted by, this State body in the context of the Euro- This opinion was communicated to the Minister of Justice, pean Union, of international treaties conventions and other who did not take any position on the matter. As such, the instruments or of regional associations. It also results from Ombudsman recommended that: the evolution in terms of reorganization of public adminis- a) The functional and legal situation of the deputy registrars tration and the need to internally reorganize the services of be reassessed in order to recognize that they are holders the Portuguese Ombudsman. The proposed amendments of public employment contracts for an indefinite period, do not have implications as regards added human resources with effect from the date of entry into force of the new or public expense. Law on Employment Relationships, Careers and Salaries. Pursuant to this recommendation, two draft laws were pre- b) In case of disagreement with this position, a legal meas- sented by the parliamentary groups of PSD, CDS-PP and PS, ure be adopted to put an end to the situation of labor which led to the adoption of Law 17/2013, of 18 February precariousness of the deputy registrars. This measure (third amendment to Law 9/91, of 9 April). should expressly determine that they are holders of a Status: Accepted. public employment relationship for an indefinite period http://www.provedor-jus.pt/site/public/archive/doc/ and that the mobility rules that apply to other civil serv- Rec_3B2012.pdf ants are also applicable to them. The Minister of Justice informed that efforts are ongoing to resolve the matter by way of legislation. Recommendation 4/B/2012* Status: Accepted (the need for legislative amendment has Entity addressed: Ministry of Justice been acknowledged). Subject: Deputy Registrars. Type of public employment re- http://www.provedor-jus.pt/site/public/archive/doc/ lationship. Rec_4AB2012.pdf Date: 02.03.2012 * The same issue was addressed in Recommendation 4/A/2012. Summary: A group of deputy registrars submitted a com- plaint about the type of public employment relationship applied to them by the Institute of Registries and Notaries: Recommendation 5/B/2012 a public employment contract with non-fixed term. They Entity addressed: Minister of Internal Affairs argued that, since 2005, they had completed all stages of Subject: Refund of towing taxes. Blocking. Deposit in case the process of training and traineeship for the career of reg- of lapse of the limitation period for administrative offence istrar and that, since 4 years ago, no competitions had been case. opened allowing them to access such a career. Date: 09.04.2012 After analyzing the underlying legal issue, the Ombudsman Summary: The Ombudsman received several complaints concluded that: about the fact that only the amounts paid as fines are re- a) The deputy registrars should be transferred to the modal- funded when cases are not decided by the National Road 32 Safety Authority due to the lapse of the limitation period. Subject: Admission to the Armed Forces and Police of HIV- Indeed, the amounts paid as fees for the blocking, towing positive citizens. and deposit of vehicles are not returned, even if they relate Date: 04.07.2012 to the same offense. Summary: A complaint was lodged against the rules for The Ombudsman recommended to the Minister of Internal accessing the School of Police Science and Internal Secu- Affairs that the Highway Code be amended to allow for the rity, for subsequent entry into the career of police commis- refund of the blocking, removal and disposal fees, when sioned officer. These rules prevented the access of those cases are not decided by the National Road Safety Authority candidates with a positive test for one of several viral infec- due to the lapse of the limitation period. tions. Noting the similarity of such rules also in other law Status: Accepted. enforcement bodies and the Armed Forces, the Ombuds- http://www.provedor-jus.pt/site/public/archive/doc/ man recommended to the Ministers of Internal Administra- Rec_5B2012.pdf tion, Defence and Justice, to revoke such rules and to adopt strict parameters of prevention of risks in the engagement protocols. Recommendation 6/B/2012 The Minister of Justice has recognized the need for legisla- Entity addressed: Secretary of State for Public Works, tive change, however subject to negotiation with the trade Transport and Communications unions concerned. Negative response was received from Subject: Non-registered transfer of ownership of vehicles. the Minister of National Defence, although considering ap- Destruction of vehicles by unauthorized operator. Cancela- plying the principles defended in this recommendation to tion of vehicle registration. future modification of existing solutions. No conclusive an- Date: 22.06.2012 swer from the Minister of Internal Administration. Summary: The Ombudsman found that citizens have no Status: Awaits a definitive reply. means to register the ownership of vehicle that have al- http://www.provedor-jus.pt/site/public/archive/doc/ ready been sold or to prove the destruction of vehicles that Rec_7B2012.pdf have been made by unauthorized operator. In addition to the tax implications, this situation also has important implications in terms of road offenses, since, to Recommendation 8/B/2012* notify offenders by post, the authorities resorted to queries Entity addressed: Minister of Economy and Employment of the database of the Institute of Registries and Notaries, Subject: Gambling. Casinos. Admission. Excluded gamblers. which meant that the responsibility for offenses against the Date: 08.09.2012 Highway Code could be attributed to those who have not Summary: After examining several complaints from fami- committed them. lies of casino gamblers, the Ombudsman confirmed that The Ombudsman recommended that the Secretary of State the admission and stay in gambling areas is only prevented for Public Works, Transport and Communications: by reasons of unsuitable attire or visible inability (minors). a) Promote legislative change in order to adapt the system The traditional European casino – with a separation be- for cancellation of vehicle registrations to the current tween gambling rooms and concert halls, restaurants and system of car taxation; other tourist attractions – evolved to the American model, b) Promote legislative change in order to expedite the pro- where gambling areas are not separate. Since gamblers are cess of registration of transfer of ownership, to allow the not previously identified, their admission is allowed even seller to register the transfer of ownership of the vehicle; when they are listed as self-excluded gamblers or as being c) Approve a transitional regime that safeguards the inter- banned by administrative authorities or courts. In addition, ests of many thousands of vehicle owners already de- many compulsive gamblers that have been banned are stroyed without recourse to an authorized operator or lured by targeted advertising due to being loyal customers. whose property has already been transmitted without The Ombudsman also noted the need for more information the acquirer having made the due registration. about the so-called «irresistible attraction for gambling», Status: Accepted (the need for legislative initiative has which is an internationally characterized pathology and been acknowledged). requires clinical follow-up. It is also necessary to support http://www.provedor-jus.pt/site/public/archive/doc/ the families of gamblers, who are deeply affected by high Rec_6B2012.pdf expenses and accumulated debts, often at usurious rates. The Ombudsman pointed out that recent decisions of Por- tuguese courts have ordered the casino concessionaires to Recommendation 7/B/2012 pay the losses suffered by gamblers who should have been Entity addressed: Minister of Internal Administration, Min- denied access to gamble areas. Moreover, the Ombudsman ister of National Defense and Minister of Justice expressed his doubts about the full compliance with the 33  anti-money laundering directives and warned against the Visits were carried out to those Commissions ad meetings imperfect translation and transposition of Community Direc- were held with their Presidents. The aim was to assess the tives. The economic downturn, high unemployment levels existing facilities and equipments, the adequacy of human and social disruption accentuated the need for the Om- and financial resources, the administrative organization and budsman to recommend to the Minister of Economic Affairs procedural activity and statistical data. and Employment that legislative and regulatory measures After giving the concerned entities the possibility to comment be urgently adopted, based upon conclusions from several on the findings, the Ombudsman drafted a final report, which studies on the so-called ‘responsible gambling’. was submitted to the intervening entities, and in which he Status: Without a reply. recommended to the Minister of Solidarity and Social Security: http://www.provedor-jus.pt/site/public/archive/doc/ a) To ponder the revision of the performance evaluation Rec_10AB2012.pdf system be applied to the various elements that comprise * The same issue was addressed in Recommendation 10/A/2012 the commissions for protection of children and youth, so that the services take into account the work carried out by them in protecting and promoting the rights of chil- Recommendation 9/B/2012* dren and that the assessment is guided by the realization Entity addressed: Ministry of Justice of goals set in advance in this field, according to the prin- Subject: Delays in the completion of medico-legal reports. ciples of equality and prevention of discretion, Implications on the speed of judicial proceedings. b) To consider the amendment of Article 26/2, of the Law Date: 06.09.2012 of Protection of Children and Young People in Danger, Summary: Following the inspection carried out to check enabling the exercise of functions in Commissions for the situation of the National Institute of Legal Medicine Protection of Children and Young People can be ex- and Forensic Sciences, regarding the slow progress in re- tended for more than six consecutive years, in cases of sponding to requests from courts, with implications at the justified public interest, given the primacy of the best level of court proceedings, a report was drafted on the interest of the child, and according to convenience in topic of «Delays in the completion of medico-legal exams: carrying out the tasks conferred upon the commission implications for the speed of proceedings - Conclusions of of protection. the inspection visits to delegations to the north, center Status: Accepted (the need for legislative amendment has and south of the National Institute of legal Medicine and been acknowledged). Forensic Sciences». http://www.provedor-jus.pt/site/public/archive/doc/ In concluding the case, the Ombudsman recommended that Rec_10B2012_0.pdf the Minister of Justice promote legislative changes in order to: a) Standardize the deadlines for the delivery of expert re- ports to courts. Recommendation 11/B/2012 b) Provide that, once the deadline is lapsed, the expert may Entity addressed: Minister of Health. be called directly by the court to provide the missing in- Subject: New system of fees to access the benefits of the formation indispensable to the court decision; National Health Service. Exemption. The Minister of Justice informed that an opinion on the recom- Date: 13.09.2012 mendation had been requested to the competent services Summary: Following dozens of complaints about the new of the Ministry and a definitive reply was still awaited. system of access fees to the benefits of the National Health Status: Awaiting a definitive reply. Service, primarily regarding the conditions of exemption for http://www.provedor-jus.pt/site/public/archive/doc/ financial reasons, the Ombudsman recommended to the Rec_9B_11A_2012.pdf Minister of Health: * The same issue was addressed in Recommendation 11/A/2012. a) The study of the creation of a more gradual system of fees, setting intermediate levels of partial exemption; b) The elimination of user fees when accessing emergency Recommendation 10/B/2012 services in a situation deemed as urgent by medical Entity addressed: Minister of Solidarity and Social Security opinion; Subject: Commissions for the protection of children and c) The establishment of safeguards for cases of sudden young people at risk. Review of the Performance Evaluation negative change in a certain user’s economic situation, Integrated System (SIADAP). apart from the case of unemployment already protected; Date: 14.09.2012 d) The exclusion of the relevant income of the social bene- Summary: The Ombudsman decided to open a case to as- fits expressly designed to support certain specific needs, sess the situation of the Commissions for the Protection of such as the need of another person’s support for carrying Children and Young People of Western and Eastern Sintra. daily activities; 34 e) The consideration in the relevant income of a specific ex- of the contract as set out in the Labor Code that was appli- emption established in the Individual Income Tax Code; cable to the Public Administration in accordance with Law f) The modification of the calculation of rental income, elimi- 23/2004, of 22 June. What the requirements of the public nating the current cumulative effect of the income de- interest and the compliance with the constitutional right of clared and presumed, setting the greatest of these values; access to public functions determined was the impossibil- g) The change of the rules about capitation, giving rele- ity to convert a fixed-term contract in a contract for an in- vance to the actual composition of the household, name- definite period of time, thus resulting the need to adapt to ly children above 12 years old; these circumstance the rules on renewal and expiry of the h) The explicit reasoning for the denial of exemption, clear- contract, provided for in the Labor Code. ly indicating the calculations made by the Customs and Thus, the provisions of paragraph 3 of article 252 of the Fiscal Authority. RCTFP is no more than a transposition mutatis mutandis to It was expressly emphasized that none of these proposals, what is prescribed in paragraph 2 of article 88 of the Labor by itself, carries a negative implication in terms of increased Code, in order to make it more compatible with its spe- spending or reduced revenue, leading only to a clear im- cific arrangements of expiry of contract, arising from the provement in the distribution of benefits and burdens with- absence of automatic renewal and conversion contract. in the universe of the users of the National Health Service. When the Administration, especially the Local Administra- Status: These issues were discussed with the Ministry of tion, reduces the right to compensation by the expiry of the Health and the dialogue is still on-going. contract to a residual expression, transforms into exception http://www.provedor-jus.pt/site/public/archive/doc/ which, in paragraph 3 of article 252 of the RCTFP, clearly Rec_11B2012.pdf intended to establish as a rule. Therefore, the Ombudsman recommended that the Parlia- ment should promote the revision of article 252, paragraph Recommendation 12/B/2012 3, of the RCTFP in order to make clear that there is a right to Entity addressed: Parliament compensation whenever the expiry of a fixed-term contract Subject: Compensation for expiry of a fixed-term contract. is not the consequence of the will of the worker. Date: 17.10.2012 On 31 December 2012, the Parliament adopted Law 66/2012, Summary: The Ombudsman decided to open a case of his which amended Article 252, paragraph 3, of the RCTFP, in ac- own initiative, following the presentation of several com- cordance with the recommendation of the Ombudsman plaints contesting the decisions of many public administra- Status: Accepted. tion bodies and services, namely of Municipal Councils. Ac- http://www.provedor-jus.pt/site/public/archive/doc/ cording to the interpretation of these bodies and services, Rec_12B2012_0.pdf the expiry of fixed-term contracts does not confer the right to compensation provided for in paragraph 3 of article 252 and paragraph 4 of article 253 of the Legal Regime of the Recommendation 13/B/2012 Contract of Employment in Public Functions (RCTFP), ap- Entity addressed: Minister of Solidarity and Social Security proved by Law 59/2008, of 11 September, in all cases in Subject: Public road Parking. Parking places for people with which it has been reached the maximum number of re- reduced mobility. Subsidiarity principle. Relationship be- newals or the maximum duration of the contract have been tween Community law and national law. reached. Date: 02.11.2012 In the common labor regime, when the expiry of a fixed- Summary: Pursuant to the refusal of a municipality to term contract is not the consequence of the will of the award a private parking place to a person with reduced mo- worker, he always has the right to the due compensation, bility, it was verified that several municipalities had abol- as results from the provisions of paragraph 2 of article 388 ished that right after he establishment of the Community of the Labor Code of 2003. Parking Card for People with Disabilities. This card, while The RCTFP has incorporated the provisions of the Labor granting additional rights to people with disabilities, did not Code, the legislator limiting himself to «adapt the scheme, intend to remove other protective instruments. In fact, col- within the framework of Public Administration, to the re- lective parking in specific places does not meet the basic quirements of public interest and, above all, to comply it need of a person with disability to have a private parking with the constitutional right of access to the public service, place next to the place of residence or workplace. in conditions of equality and freedom, as a rule by means of Therefore, the Ombudsman recommended to the Minister competition process». However, neither the requirements of Solidarity and Social Security that: a) the above conclu- of the public interest, nor the compliance with the consti- sion should be accepted and conveyed to agencies and local tutional right of access to public function are incompatible government services; b) measures in this respect should be with the statutory scheme of compensation by the expiry taken in the next National Plan to Promote Accessibility; 35  and c) Ministerial Order 878/81, of 1 October, should be re- c) The setting of € 300.00, as maximum value for a fine stored, except for point 8, to ensure that people who meet applicable for the infringement committed on collective the necessary requirements may apply for reserved parking passenger transport collides with the constitutional prin- place, displaying the vehicle registration, at their residence ciple of roportionality of fines vis-à-vis the gravity of the or at work. infringements, arising from article 18, paragraph 2, of The Minister did not comply with the recommendation on the Constitution of the Portuguese Republic; the grounds that the Community Parking Card for People d) When the user chooses to voluntarily pay the fine, he with Disabilities aims to enable the mobility of these peo- does it, in many cases, only to prevent aggravation of ple in any Member State of the European Union and al- its value. However, under the law in force and the pre- lows them to park in specially designated places, whereas liminary draft law known, this payment reflects a true the reservation of a private parking place collides with the assumption of guilt, because it prevents him from de- rights of other citizens with disabilities, regardless of their fending himself; nationality. e) In various constitutional rules (see Article 20, paragraph Status: Not accepted. 4, Article 32, paragraph 10 and Article 268, paragraph 4), http://www.provedor-jus.pt/site/public/archive/doc/ as well as Article 6 of the European Convention on Hu- Rec_13B2012.pdf man Rights, the ability to appeal generic administrative decisions that affect the rights and interests of citizens is enshrined, including of course the legal proceedings in Recommendation 14/B/2012 all phases in which they unfold; Entity addressed: Secretary of State for Public Works, f) Therefore it cannot be accepted the infringements of the Transport and Communications. rights of defense of the passenger fined who pays volun- Subject: Rights of consumers. Collective passenger trans- tarily the fine imposed. port. Process of revising the penalty system applicable to The Ombudsman recommended to the Secretary of State infringements. for Public Works, Transport and Communications that: Date: 28.11.2012 a) In the work of revising law 28/2006, of 4 July, the fol- Summary: Law 28/2006, of 4 July, has implemented a new lowing be included: penalty system applicable to collective passenger transport - Substantial reduction of the maximum value of the fines infringements, which soon raised several concerns about its applied to infringements in collective passenger transport; suitability with regard to passenger rights, constitutionally - The possibility of the defendant to present his/her defence, and legally enshrined. The revision of the law has been im- even after making the voluntary payment of the fine imposed mediately claimed by the users of such transports, the Om- b) Hhigh priority be given to the completion of the prelimi- budsman and the transport firms. This led the (then-called) nary draft review of such law. Institute for Mobility and Land Transport (IMTT) to begin Status: Not accepted. working on a preliminary draft for the law’s review. How- http://www.provedor-jus.pt/site/public/archive/doc/ ever, the only problem that was solved with the changes Rec_14B2012.pdf proposed by IMTT to Law 28/2006, of 4 July, refer to cases of users who have purchased and paid their monthly sub- scriptions and were fined only because they have not vali- Recommendation 15/B/2012 dated their tickets. In accordance with the draft of the pre- Entity Addressed: Secretary of State for Solidarity and So- liminary draft law review, this would no longer constitute a cial Security punishable infringement. As for the two other issues that Subject: Special Education Subsidy most concerned the Ombudsman – impossibility of defense Date: 28.12.2012 after the payment of fines and their exorbitant amount – no Summary: changes were made to the initial project. In the past few years the Ombudsman has been confront- Considering that: ed with a significant number of complaints regarding the a) The penalty is a mere administrative or disciplinary en- attribution of the Special Education Subsidy, which led to forcement measure. This qualification should restrict the several interventions in relation to the Government. Such freedom of shaping legislation when it comes to fixing complaints reflect, on the one hand, the delay in concluding the amount of fines corresponding to each typology of the cases and, therefore, in paying the subsidy, and raise, infringements; on the other hand, several questions related to the analy- b) This freedom to define the limits of the sanction which sis of the requests, to the grounds for their refusal and, in assists the legislator has thus to give in when it involves particular, to how social security services interpret the law. inadequate fines for being excessive compared to the Despite the various interventions made to solve the prob- legal framework affected; lem, at the end of 2010 the Ombudsman received new 36 complaints related to the same subject, which made it of state officials» (Article 2 of Decree-Law 40-A/98) with clear that the problem persisted. Therefore, in 25 October identical category and therefore in «comparable situation». 2010, the Ombudsman addressed the predecessor of the In the context of ensuring the exercise by the officials con- current Secretary of State for Solidarity and Social Security, cerned of their work and the «need to pay particular atten- pointing out that the problems experienced in the attribu- tion to supporting older workers to increase their participa- tion of the special education subsidy had dragged on for tion in active life», the Ombudsman recommended to the years and were due, essentially, to the great difficulty in Minister of State and Foreign Affairs to revise the current the interpretation and implementation of the existing legal legal regime, in order to: concepts (especially the concept of disability relevant for a) adopt a solution that is based on objective criteria, re- this purpose), aggravated by the fact that the applicable gardless of the rank, similar to that which exists in Spain, legal framework was disperse and outdated. Taking into notwithstanding the relevance of the will of the person account the problems identified and their impact in the at- concerned; tribution of the special education subsidy, the Ombudsman b) establish a safeguard clause when the public interest concluded that there was an urgent need to revise the spe- requires a different solution. cial education subsidy legislation. Status: Awaiting a reply. Given the lack of response and in view of the taking of of- http://www.provedor-jus.pt/site/public/archive/doc/ fice of a new government, in 2011 the Ombudsman reiter- Rec_16B2012.pdf ated the issue to the current Secretary of State for Solidarity and Social Security. After several reminders, clarifications In 2012 20 of the 35 recommendations issued by the were provided to the Ombudsman. Those, however, did not Ombudsman were accepted. respond adequately to the aforementioned need of revising the special education subsidy legislation. Of the remaining 15 recommendations, 4 were not ac- Given the standstill, the Ombudsman recommended that cepted, 3 were still awaiting a reply or were still being the the Secretary of State for Solidarity and Social Security: subject of dialogue with the addressed entity. Promote, in articulation with the Secretary of State for Edu- cation and School Administration, a legislative initiative to Follow-up of the 2011 recommendations: fully review and clarify the regulation of the special educa- In relation to the 3 recommendations from 2011 that were tion subsidy. still waiting for a reply at the end of that year, 1 was ac- Promote in the meantime, and until such a review is un- cepted, another was not and the third still awaits a reply. dertaken, the adoption of urgent measures to clarify the current special education subsidy legislation, in order to en- able the immediate resolution of the ongoing cases. Recommendation 7/A/2011 In his reply, the Secretary of State for Solidarity and Social Target entity: Mayor of Santa Cruz Security informed that a proposal had been made to the Subject: Consumer rights. Guarantee deposit for access to Ministry of Education and Science to create a working group public water supply. to review the legislation. Date: 04.11.2011 Status: Accepted (the need of legislative amendment has Summary: The Ombudsman recommended to the Mayor of been acknowledged). Santa Cruz that the necessary administrative measures be http://www.provedor-jus.pt/site/public/archive/doc/ initiated to ensure that the complainant is paid an amount Rec_15B2012_e_Oficio_SEEAE.pdf equal to the value of the guarantee deposit whose refund he requested under Decree-Law 195/99, of June 8, which established the regime on deposits in contracts for the pro- Recommendation 16/B/2012 vision of essential public services to consumers, as amend- Entity addressed: Minister of State and Foreign Affairs ed by Decree-Law 100/2007, of April 2. Subject: Diplomats. Transition to non-operational status. Status: Accepted. Age limit. http://www.provedor-jus.pt/restrito/rec_ficheiros/ Date: 28.12.2012 Rec_07112011.pdf Summary: A complaint was lodged with the Ombudsman re- garding the provision of Decree-Law 40-A/98 regarding the transition to non-operational status on by virtue of attaining Recommendation 8/A/2011 a certain age, depending on the rank held, of diplomatic of- Entity addressed: Director-General of Human Resources of ficials. It was considered that this solution constitutes, un- the Ministry of Education doubtedly, a difference in treatment directly based on age Subject: Compensation for the expiry of fixed-term con- among persons within the same «unique and special body tracts. 37  Date: 09.11.2011 Recommendation 2/B/2011 Summary: The Ombudsman recommended to the Director- Entity addressed: Minister of State and Finance General of Human Resources of the Ministry of Education Subject: Chartered Accountants. Debt to a previous profes- the amendment of the interpretation disclosed in a circu- sional. Need to terminate the obligation prior to the as- lar, whereby the termination of contracts concluded under sumption of duties by a new Chartered Accountant. special hiring teachers regimes does not confer the right to Date: 30.11.2011 compensation established by the Legal Regime of the Con- Summary: The Ombudsman recommended to the Minister tract of Employment in Public Functions. The Ombudsman of State and Finance the amendment of article 56 of the considered that the right to compensation occurs whenever Statute of the Order of Chartered Accountants and of arti- the expiry of the term contract does not derive from the will cle 17, paragraph 2, of the Code of Conduct for Chartered of the worker and he/she does not get a new position that Accountants, expressly stating that the existence of a debt will ensure the maintenance of a public employment legal to a previous professional does not imply the impossibility relationship. It was therefore recommended that the deci- of another Chartered Accountant to provide services, not- sions refusing such compensation to teachers whose con- withstanding the need to undertake every adequate effort tracts expired without having obtained new employment towards the clearance of such debt, with an assessment of should be reviewed. each individual situation. Status: Not accepted. Status: As the case refers to a possible amendment to the http://www.provedor-jus.pt/restrito/rec_ficheiros/ statute of the professional association, the Minister of Jus- Rec_8A2011.pdf tice postponed the assessment of the proposal until the finalization of the legislative procedure that led to the pub- lication of Law 2/2013, of 10 January. http://www.provedor-jus.pt/restrito/rec_ficheiros/617-10.pdf 38 3.3. Review of the Constitutionality The Portuguese Ombudsman, in accordance with Article paragraph 1, indent a) of the Constitution, as a corollary 281, paragraph 2, indent d), of the Portuguese Constitution of the principle of equality enshrined in Article 13 of the and Article 20, paragraphs 3 and 4, of his Statute, may seize Constitution.1 the Constitutional Court to declare the unconstitutionality or • the rule contained in Article 4, paragraph 2 of Decree- illegality of legal provisions and to assess and verify situa- -Law 280/2001, of 23 October, which establishes regu- tions of unconstitutionality by omission. He/she may exer- latory standards for the seafarer profession to the extent cise these competences either pursuant to a complaint or on that, apart from the situation of nationals of other EU his/her own initiative. Member States and the provisions of conventions and other international instruments in force in national law, In 2012, 65 complaints were received on such grounds, 29 it reserves to Portuguese citizens the possibility to enroll more than in 2010, representing a growth of 81%. as a seafarer – which is indispensable to work in that Among the grounds more frequently invoked, one should profession – in violation of article 15, paragraphs 1 and note the lower number of cases concerning the principle of 2, article 18, paragraph 2, and article 165, paragraph 1, equality together with an increase of the number of cases indent b) of the Constitution.2 invoking the principle of confidence. The lack of legislation regulating the organizations of resi- In 2012, in response to the three initiatives presented by dents, provided by articles 263 to 265 of the Constitution, the Ombudsman in the previous year, the Constitutional Court was raised as a possible ground for an initiative of unconsti- handed down three judgments, in two cases upholding all or tutionality by omission. part of the application and denying it on the third case. Thus: • Judgment 25/20123 did not declared unconstitutional or illegal certain provisions of the Solicitors’ Statute, appro- UNCONSTITUTIONALITY 36 ved by Decree-Law 88/2003, of 26 April, in the version given by Decree-Law 226/2008, of 20 November, in the CONFIDENCE 10 15% implementation of the creation of the Commission for EQUALITY 12 18% the Efficiency of Executions;4 • Judgment 89/20125 declared the unconstitutionality ORGANIC AND FORMAL DEFECTS 5 8% of several provisions of a regulation issued by the Bar Association (Regulation 52-A/2005, of 1 August), for OTHER GROUNDS 37 57% breaching organic and formal rules about the system OMISSION 1 2% of rights, freedoms and guarantees, by establishing the impossibility of re-enrollment for a period of three years in case of repeated failure to pass the Bar examination needed to obtain a license to work as an attorney.6 In 2012, the Ombudsman filed two applications with the • Judgment 404/20127 declared unconstitutional Article Constitutional Court, both within the successive abstract 34, paragraph 1, of Law 1-B/2009, of 7 July, approving control of constitutionality, concerning: • the transitional rule contained in Article 8, paragraph 1 See http://www.provedor-jus.pt/site/public/archive/doc/R-6185-10_DI2.pdf 1, of Decree-Law 75/2010, of 23 June, which amended 2 See http://www.provedor-jus.pt/site/public/archive/doc/R-5866-09DI.pdf. the Statute of Educators and Teachers, when applied 3 See http://dre.pt/util/getpdf.asp?s=dip&serie=2&iddr=31.2012&iddip=2012008420. 4 See http://www.provedor-jus.pt/site/public/archive/doc/DI_R6480_09.pdf. to teachers holding a certain rank, to the extent that 5 See http://dre.pt/util/getpdf.asp?s=dip&serie=1&iddr=2012.50&iddip=20120445. it leads to their being superseded, in income terms, by 6 See http://www.provedor-jus.pt/site/public/archive/doc/R-1870-11DI.pdf. teachers with less seniority, in violation of Article 59, 7 See http://dre.pt/util/getpdf.asp?s=dip&serie=1&iddr=2012.194&iddip=20121984. 39  the National Defense Act, due to limiting the possibility of regime of prices to be charged by the concessionaire, to complaint to the Ombudsman about actions or omissions allow for the establishment of prices covering all costs of the Armed Forces to cases where only the complainant’s incurred in. As regards the levy of VAT, it was explained rights, freedoms and guarantees were at stake.8 that no breach of the principle of legality existed and that the solution in question was expressly provided Among the several situations on which the Ombudsman, for by Article 16, paragraph 5, indent a), of the Value throughout 2012, decided not to request the intervention of Added Tax Code. the Constitutional Court, the following should be pointed out: • The alleged breach of the principle of equality by a pro- • After several initiatives were undertaken by other com- vision, included in the State Budget for 2013, increas- petent entities, leading to the review of the constitutio- ing the unemployment benefit only to households with nality of several provisions of the State Budget for 2012, dependent children. The scope of the principle invoked including those suppressing 1/7 of the annual income of was explained to the complainant, framing the solution pension holders and public servants (holiday and Christ- in question within the public tasks to protect families mas allowances) during that year, the Ombudsman con- with children set for the State in Article 67, paragraph, sidered unnecessary further action on his part, but made indent f) of the Constitution several remarks deemed relevant.9 • The repercussion on consumers of gas of the munici- • The alleged unconstitutionality of the requirement of a pal fee for occupying the subsoil and the inclusion of regular tax and social security situation for the exercise the fee under the incidence of Value Added Tax (VAT). of the activity of real estate agents. An overview of the It was explained that charging for a certain use of the previous intervention of the Ombudsman regarding this public domain was not incompatible with the Consti- law was provided to the complainant, namely as regards tution, and that taking into consideration the Constitu- the presentation of an initiative that resulted in Judg- tional Court’s decision specifically on this matter (see ment 362/2011 of the Constitutional Court.10 About Judgment 45/2010), nothing prevented that this cost the specific issue at stake, the freedom of profession is be considered for the purposes of the utility concession not constitutionally established in absolute terms, and contracts concerned. Therefore, it was considered that, the restriction, established by the competent body and within the margin of autonomy available to the Govern- obeying to the due process, was deemed as proportio- ment as grantor, it was legitimate, when delimiting the nate to its aims. 8 See http://www.provedor-jus.pt/site/public/archive/doc/P-9-09%20DI.pdf. 10 See Relatório à Assembleia da República, 2011, p. 108. 9 See http://www.provedor-jus.pt/site/public/archive/doc/cortes_marco_2012.pdf. 40 3.4. Cases and Inspections of the Ombudsman’s Own Initiative In 2012, 12 cases were opened on the initiative of the Summary: This case was opened following an anonymous Ombudsman. complaint to assert whether some catering and drinking establishments are legally operating in the municipality of P-01/12 Angra do Heroísmo. Entity addressed: Regional Secretary for the Environment The case concerns mainly several bars located near the towns’ and Natural Resources (Autonomous Region of Madeira) marina, which have been the object of several complaints, Subject: Spatial Planning. Planning of the Coastal Zone claiming both illegal operation (in licensing conditions and in Summary: Case opened by the Ombudsman on his own carrying out non permitted activities) and the production of initiative, as it was found that the Autonomous Region of excessive noise, far beyond legal opening hours, from which Madeira had not yet proceeded to the preparation and ap- damage to other businesses and to the quiet and rest of the proval of the Spatial Planning of the Coastal Zone (POOC). surrounding neighbours allegedly ensues. The aim of this case is to know the measures taken by Status: In the investigation stage. the Regional Secretariat for the Environment and Natural Resources regarding this matter. During the investigation the Ombudsman was informed that the preparation of the P-04/12 POOC is part of the current Government program and it is Entity addressed: Commissions for the Protection of Chil- expected that the preparation of POOC-Porto Santo will be dren and Young People of Sintra adjudicated in early 2013, while the best options for fund- Subject: Inspection to the operation of Commissions for the ing are being considered. Protection of Children and Young People of Sintra. Status: In the investigation phase. Summary: An inspection was carried out to the Commis- sions for the Protection of Children and Young People of Sintra, to assess the facilities, the existing equipment, the P-02/12 adequacy of human and financial resources and the admin- Entity addressed: Mayor of Marvão / Chairman of the istrative and procedural activities. Board of the Institute for Nature Conservation and Forests Status: Closed. Recommendation 10/B/2012 was address Subject: Land development. Natural heritage. to the Minister of Solidarity and Social Security, who came Summary: This case was opened upon notice that large fenc- to recognize the need for a legislative amendment. es were being built in the «Serra de São Mamede» National Park, in Portalegre. The initiative aims to assess the control of the construction works by the municipal authorities and by P-05/12 the Institute for Nature Conservation and Forests. The Marvão Entity addressed: General Directorate of Tax and Customs Municipality and the Institute for Nature Conservation and Authority Forests were asked about the nature of the disputed works Subject: Taxation. Municipal Property Tax (IMI). Director- in light of the relevant legal standards of urbanization and General of the Tax and Customs Authority. construction, as well as their compliance with the Regulation Summary: This case was opened on the Ombudsman’s of the «Serra de São Mamede» National Park. own-initiative to monitor the overall evaluation procedure Status: In the investigation phase. of urban real estate, since 1 December 2011, following me- dia reports and a considerable number of complaints from citizens that challenged the way the assessments were car- P-03/12 ried out and/or their consequences as regards the tax val- Entity addressed: Mayor of Angra do Heroísmo ues and IMI assessment of urban real estate they owned. Subject: Catering and drinking establishments. Operating Following a meeting between representatives of the Om- conditions. budsman and the Tax and Customs Authority (AT), a request 41  for clarification and sending of elements was formalized, P-08/12 covering issues such as the number, origin and identifica- Entity adressed: Parliament tion of real estate for which claims have been submitted of Subject: Compensation for expiry of fixed-term contract. evaluations already carried out. Also requested were copies Summary: The Ombudsman decided to open a case on his of manuals/instructions/clarifications produced by the AT own initiative, following the presentation of several com- on the overall ongoing evaluation and clarification of the plaints contesting the decisions of many public administra- criteria used for fixing the rates due for second evaluation tion bodies and services, namely of Municipal Councils. Ac- requests. Lastly, it was requested that a table be completed cording to the interpretation of these bodies and services, to ascertain the universe of real estate already evaluated the expiry of fixed-term contracts does not confer the right and, among it, the one pending of second evaluation and to compensation provided for in paragraph 3 of article 252 the one whose evaluations have been challenged in court. and paragraph 4 of article 253 of the Legal Regime of the Status: In the investigation phase. Contract of Employment in Public Functions (RCTFP), ap- proved by Law 59/2008, of 11 September, in all cases in which the maximum number of renewals or the maximum P-06/12 duration of the contract have been reached. Entity addressed: Secretary of State for Energy Therefore, the Ombudsman recommended that the Parlia- Subject: Construction and housing. Mandatory inspections. ment should promote the revision of article 252, paragraph Lifts. Local charges. 3, of the RCTFP, in order to clarify that there is a right to Summary: The case was opened based on a complaint compensation whenever the expiry of a fixed-term contract against the allegedly arbitrary charges due for the inspec- is not the consequence of the will of the worker. tion of lifts, hoists, escalators and moving walkways, the On 31 December 2012, the Parliament adopted Law study of which has shown significant dysfunctions in the 66/2012, which amended Article 252, paragraph 3, of the application of Decree-Law 320/2002, of 28 December. It RCTFP, in accordance with the recommendation of the Om- was confirmed that the charges due for regular and spe- budsman cial inspections to elevators and other mechanical equip- Status: Closed. ment vary from municipality to municipality and represent a heavy burden for many co-owners and condominiums. P-09/12 The Secretary of State was confronted with the frequently Entity addressed: Institute for Social Security (ISS) exorbitant charges fixed by the municipalities on inspec- Subject: Host families for the elderly not covered by the tions performed by third parties. He informed that Decree- legal framework established in Decree-Law 391/91, of 10 Law 320/2002 was under revision and the conclusions of October. Ombudsman would be taken into account. Summary: This case was opened by the Ombudsman on his Status: Closed. own initiative, pursuant to complaints about host families for senior citizens, up to a maximum of three, not covered P-07/12 by the legal framework established in Decree-Law 391/91, Entity addressed: Portuguese Public Security Police of 10 October, i.e. families who hadn’t submitted applica- Subject: Investigation of an incident at a Police Station. tions nor been selected by the Social Security district cent- Summary: The case was opened to investigate the circum- ers, the Santa Casa da Misericórdia de Lisboa or other Pri- stances in which the detention of a transsexual citizen in a vate Institutions of Social Solidarity with a Protocol with the Police Station in Lisbon occurred. Social Security district centers.. Specifically, it was examined whether the rules of the Code Given the lack of legal basis for this type of elderly care, it of Criminal Procedure and the Legal Regime of Forensic is impossible for the Portuguese State to control the suit- Medicine were fulfilled. ability of the families that provide this kind of support, or The case had to do with the police requiring a medical to ensure that appropriate conditions are provided by them. examination of an arrested person, since, after a search Therefore, the health and wellbeing of the elderly in those conducted in the police station, the detainee accused the circumstances may be at risk. agents of having subtracted an amount of money. In this context, the Ombudsman addressed the ISS, pointing Anticipating the possibility of indictment, the police agents out the problem and asking if its analysis and study had decided to take detainee to the hospital so that a radiologi- already been carried out. The Ombudsman also asked if the cal examination was performed, in order to obtain evidence adoption of regulations or legislation about those situations that the he hid in the body (bowels) the money in question. was scheduled. Status: Closed. A reply from the ISS is still awaited. Status: In the investigation phase. 42 P-10/12 d) The compliance, by agents of the Portuguese Public Se- Entity: Mayor of Amadora curity Police, with legal requirements provided for spe- Subject: Urban planning and housing; slums; eviction; cific procedures, such as the submission of complaints, demolition; rehousing. the arrest of citizens, the submission of complaints con- Summary: The case was opened pursuant to news reports cerning domestic violence and the interventions under in the media, to monitor the demolition of buildings under- the Law on the Protection of Children and Young People taken by the Municipality of Amadora and the rehousing in Danger, issues relating to the elderly population and of families that justified special measures of humanitarian the Mental Health Act. nature, such as temporary accommodation. The investiga- Status: The inspection was completed in 2012, but the tion was concluded in view of the adoption of the required drafting of the corresponding reports will be concluded in arrangements. 2013. Status: Closed. P-12/12 P-11/12 Entity addressed: Parliament Entity addressed: Portuguese Public Security Police Subject: State Budget for 2013. Subject: Inspection to the places of detention of citizens of Summary: This case was originally opened to analyse the the Public Security Police in Lisbon. various issues arising from the expected approval of the Summary: The Ombudsman decided to carry out inspection State Budget for 2013. It was afterwards restricted to the visits to places of detention of citizens in order to assess, provisions concerning changes in the retirement conditions particularly: for teachers who fulfilled a certain period of service as sole a) The physical conditions (location, accessibility, safety and teachers of a class. service); Status: In 2013, the Constitutional Court was seized with b) The working conditions of staff and other personnel; regard to articles 77 and 78 of the State Budget for 2013. c) The conditions of detention of citizens; The specific issue identified above was still under study. 43  3.5. International Relations The international activity of the Portuguese Ombuds- ing Committee of National Institutions for the Promo- man fundamentally derives from two roles this institution tion and Protection of Human Rights, held in Geneva, plays simultaneously: that of Ombudsman, pursuant to the Switzerland, from 19 to 22 March; Swedish institutional model created at the outset of the 19th • The Annual Meeting of the Fundamental Rights Agency century; and that of National Human Rights Institution, of the EU with National Human Rights Institutions, fol- fully compliant with the guidelines affirmed by the United lowed by the 5th Meeting of the Fundamental Rights Nations in the so-called «Paris Principles». Platform, both of which held in Vienna, Austria, on 18 In this domain, while maintaining the budget limitation and 19 April respectively; effort motivated by the adverse economic situation face by • The 8th Seminar of Liaison Officers of the European the country, which manifested itself in a smaller number of Network of Ombudsmen, held from 24 to 26 June, in international participations in relation to the previous years, Strasbourg, France, and during which the Portuguese 2012 was nevertheless a year of further development of Ombudsman’s representative presided over the session the projects and thematic priorities chosen by the current dedicated to the role of the Ombudsman in the protec- Ombudsman at the beginning of his mandate. tion of detained persons; • The 6th Meeting of the Association of Mediterranean As regards bilateral cooperation with counterpart institu- Ombudsmen, held in Paris, France, on 11 and 12 Octo- tions, a work visit was carried out to the Défenseur des ber, during which a presentation was made on the topic Droits of France, on 14 June, and visits were received from «The way Ombudsmen reach out to vulnerable groups the Ombudsman of Angola, on 31 August, the Síndic de (children, disabled persons, women and elderly)»; Greuges of Catalonia, on 1 October, and the Ombudsman • The 10th World Conference of the International Ombuds- of Mozambique, from 8 to 12 October. man Institute, held in Wellington, New Zealand, from Following this latter visit, a work/study visit was organ- 12 to 17 November, during which two presentations ized from 26 to 30 November for a team of technical staff were made on the topics «The Code of Good Admin- from the services of the Ombudsman of Mozambique. Dur- istrative Behaviour» and «The role of the Ombudsman ing this visit, the staff had contact with the different ser- in the Promotion and Protection of Human Rights», and vices of the Portuguese Ombudsman and with their proce- the Portuguese Ombudsman’s representative also pre- dures and work methodologies. sided over the session on innovative practices to im- In addition, and whenever possible, reply was given to in- prove administrative practices; formation requests received from counterpart institutions, • The Annual Meeting of the Legal Working Group of the like the questionnaire of the German Institute for Human European Group of National Human Rights Institutions, Rights regarding the protection function of National Human held in Paris, on 26 November. Rights Institutions, the questionnaire of the Fundamental Rights Commissioner of Hungary concerning benefits and Also to be mentioned are the participations of the Portu- pension systems for persons with disability and/or reduced guese Ombudsman in the international human rights sys- work capacity and the questionnaire of the Defender of Hu- tem, in the context of the efforts employed to strengthen man Rights of Armenia about the scope of intervention of the interaction with that system and to exercise the partici- Ombudsmen as regards the police and judicial authorities. pation rights deriving from the capacity of A-status National Human Rights Institution. At the multilateral level, participation was ensured in an- To that effect, the Portuguese Ombudsman has contrib- nual meetings and other events promoted by organizations uted to various examinations, consultations and meetings and international networks to which the Portuguese Om- promoted in the framework of the United Nations, the budsman belongs, notably: Council of Europe, the Organisation for Security and Coop- • The 25th Annual Meeting of the International Coordinat- eration in Europe and the European Union. This contribution 44 is done both directly and by way of his participation, always of the rights of the child; and also information requests of with the necessary independence, in the meetings and ac- other type of international entities, like the Global Initiative tivities of the National Human Rights Commission (CNDH). to End All Corporal Punishment of Children and the Legal In 2012, the Portuguese Ombudsman had the opportunity Network of Experts for Human European Consultancy. to contribute to the discussion of the 12th to 14th national The Portuguese Ombudsman also had the opportunity to implementation reports on the Convention on the Elimi- contribute to different on-going activities in the National nation of All Forms of Racial Discrimination, by submitting Human Rights Commission, namely regarding business and written information to the CNDH and to the United Nations human rights and the creation of indicators to assess pro- Committee on the Elimination of Racial Discrimination, as gress in the implementation of human rights. well as by participating in the meetings of that Committee Lastly, the Portuguese Ombudsman was represented at of 20 and 21 February, in which the reports were discussed. an International Expert Seminar on relations between Na- An autonomous written contribution was also sent to the tional Human Rights Institutions and Parliaments, which CNDH and to the United Nations Human Rights Committee took place on 22 and 23 February, in Belgrade, Serbia. It on the occasion of the discussion of the 4th national imple- was jointly organized by the Office of the United Nations mentation report on the International Covenant on Civil High Commissioner for Human Rights, the Protector of Citi- and Political Rights. zens of Serbia and the Parliament of Serbia. Pursuant to In addition, the Portuguese Ombudsman has already this seminar, the Belgrade Principles were adopted. Their sent to the CNDH written information to prepare the 15th goal is to provide guidance on how the interaction and co- national implementation report on the Convention on the operation between National Human Rights Institutions and Elimination of All Forms of Racial Discrimination, as well Parliaments should be carried out. as the 8th and 9th national implementation reports on the Concerning visits from international delegations, the Por- Convention on the Elimination of All Forms of Discrimination tuguese Ombudsman received in Lisbon a delegation of the against Women, which will be sent to the United Nations European Committee for the Prevention of Torture, on 7 in due time. February, the Director of the Fundamental Rights Agency Pursuant to his active participation in the Universal Pe- of the European Union, on 14 June, the Human Rights riodic Review, through which the United Nations Human Commissioner of the Council of Europe, on 8 May, and a Rights Council reviewed the overall situation of human delegation of the European Commission against Racism rights in Portugal (see 2009 and 2010 Reports to the Par- and Intolerance, on 26 September. In the context of these liament), the Portuguese Ombudsman contributed to the visits the Ombudsman had the opportunity to share his ex- follow-up launched by the international NGO, UPR Info, by perience in the areas of activity covered by each entity, of- sending written information to enable a better monitoring fering his perspective on the main successes and challenges by that entity of the state of implementation of the rec- identified in relation to them in our country. ommendations addressed by the Human Rights Council to Within the Ombudsman’s international activity, highlight our country. The report produced by UPR Info, in English, is should also be given to the Seminar on Strengthening available at http://www.upr-info.org/IMG/pdf/2012_on_ and Establishing National Human Rights Institutions the_road_to_implementation.pdf. in the countries of the Community of Portuguese- In what concerns more general information requests, speaking Countries, jointly organized by the Portuguese autonomous contributions were sent to different question- Ombudsman and the Office of the United Nations High naires, studies and reports, such as, for example, the United Commissioner for Human Rights, from 15 to 17 October, in Nations questionnaires on the freedoms of peaceful assem- Praia, Cape Verde. This event was the culmination of the bly and association and on racism and sports; the question- repeated efforts employed by the Portuguese Ombudsman naire of the Special Rapporteur on the human right to safe to promote the creation and appointment of Ombudsmen drinking water and sanitation; the Council of Europe report and National Human Rights Institutions in the countries of on the state of local and regional democracy in Portugal; the Community of Portuguese-Speaking Countries (CPLP). the survey of the European Ombudsman on strategy and During the seminar, the Praia Declaration was adopted, governance; the information requests of experts appointed calling on the creation of National Human Rights Institu- by the European Commission, regarding the treatment giv- tions that are effective and independent, in conformity with en to children in judicial proceedings and more specifically the Paris Principles. As a side event, in the presence of His to children and adolescents in criminal proceedings; the in- Excellency the President of the Republic of Cape Verde, a formation request of the Fundamental Rights Agency of the Memorandum of Understanding was signed between the European Union on the role of the Ombudsman in the area Ombudsmen of Angola, Mozambique, Timor-Leste, the of fundamental rights of migrants in an irregular situation; Procurador Federal para os Direitos do Cidadão Adjunto of the survey of the Centro de Estudos para a Intervenção Brazil and the Ombudsman of Portugal, with a view to or- Social, national focal point of that Agency, on the subject ganizing, within a short delay, a meeting to promote the 45  creation of a Network of Ombudsmen / National Human further detailed in the chapter dedicated to «The Ombuds- Rights Institutions of the CPLP countries. man as National Human Rights Institution». We would further note that, in 2012, the process for reac- The table below provides summarised information on the creditation of the Portuguese Ombudsman as National Hu- international events that took place in 2012 and in which man Rights Institution was initiated. This process will be the Portuguese Ombudsman was present or represented: Event Location and Date Participant(s) Meeting of the Committee for the Elimination of Racial Discrimination, United Nations, on the occasion of the discussion Geneva, Switzerland Ms. Mariana Sotto Maior, Head of of the 12th to 14th national reports on the implementation of the 21-22.02.2012 Cabinet to the Ombudsman Convention on the Elimination of All forms of Racial Discrimination International Expert Seminar on relations between National Human Rights Institutions and Parliaments, organized jointly by the Office Belgrade, Serbia Ms. Mariana Sotto Maior, Head of of the United Nations High Commissioner for Human Rights, the 23-24.02.2012 Cabinet to the Ombudsman Protector of Citizens of Serbia and the Parliament of Serbia 25th Annual Meeting of the International Coordinating Committee Geneva, Switzerland Ms. Mariana Sotto Maior, Head of of National Institutions for the Promotion and Protection of Human 29-30.03.2012 Cabinet to the Ombudsman Rights 5th Annual Meeting of the Fundamental Rights Agency of the Vienna, Austria Ms. Adriana Barreiros, Adviser to European Union with National Human Rights Institutions 18-19.04.2012 the Portuguese Ombudsman 8th Seminar of Liaison Officers of the European Network of Strasbourg, France Ms. Catarina Ventura, Legal Adviser Ombudsmen 24-26.06.2012 Mr. Alfredo José de Sousa, Paris, France Portuguese Ombudsman, and Ms. 6th Meeting of the Association of Mediterranean Ombudsmen 11-12.06.2012 Helena Vera-Cruz Pinto, Deputy Ombudsperson Mr. Alfredo José de Sousa, Seminar on Strengthening and Establishing National Human Praia, Cape Verde Portuguese Ombudsman, and Rights Institutions in the countries of the Community of 15-17.10.2012 Ms. Mariana Sotto Maior, Head of Portuguese-speaking Countries Cabinet to the Ombudsman World Conference and General Assembly of the International Wellington, New Zealand Ms. Mariana Sotto Maior, Head of Ombudsman Institute 12-16.11.2012 Cabinet to the Ombudsman 7th European Forum on the Rights of the Child, organised by the Brussels, Belgium Mr. José Álvaro Afonso, Legal European Commission 13-14.11.2012 Adviser Annual Meeting of the Legal Working Group of the European Group Paris, France Ms. Mariana Sotto Maior, Head of of the ICC 26.11.2012 Cabinet to the Ombudsman Lastly, brief information is also gathered on the visits of foreign entities received in 2012 by the Portuguese Ombudsman and/or by members of his staff on his behalf: Entity Date Committee on the Prevention of Torture of the Council of Europe 07.02.2012 Human Rights Commissioner of the Council of Europe 08.05.2012 Director of the Fundamental Rights Agency of the European Union 14.06.2012 Ombudsman of Angola 31.08.2012 Delegation of the European Commission against Racism and Intolerance 26.09.2012 Síndic de Greuges of Catalonia 01.10.2012 Ombudsman of Mozambique 08-12.10.2012 46 3. 6. The Ombudsman as National Human Rights Institution What are National Human Rights Institutions The concept of National Human Rights Institution designates This status, which grants him increased participation rights a multitude of administrative institutions (i.e., non-judicial at the internal and international levels, needs to be periodi- nor parliamentary) aimed at the promotion and protection cally renewed, through a process of reaccreditation carried of human rights. By and large, we can speak of two types out by the International Coordinating Committee of Nation- of institutions: Commissions and Institutes of Human Rights al Institutions for the Promotion and Protection of Human and Ombudsmen. Rights. In 2012, five years after the last reaccreditation, a com- In 1993, with Resolution 48/134, of 20 December, the munication was received from that Committee asking the United Nations General Assembly adopted a set of prin- Portuguese Ombudsman to initiate a new process of reac- ciples concerning the status of these institutions, defining creditation as National Human Rights Institution. This pro- aspects of their composition, mandate and methods of op- cess continued in 2013 and at the time of drafting of the eration and guarantees of impartiality and pluralism. They present report a final decision is still awaited. became known as the «Paris Principles» and are nowadays As noted in previous reports, the human rights dimension considered the minimum standard to be respected by all is expressed in several aspects of this institution, starting National Human Rights Institutions, in terms of their full with its mandate, which is broadly defined, covering the independence and effectiveness of their action. promotion and protection of fundamental rights and not Also in 1993 the International Coordinating Committee only administrative justice. of National Institutions for the Promotion and Protec- Thematically, this focus is particularly evident in certain tion of Human Rights (ICC) was created. Its main mission areas of activity, such as the penitentiary system and the is to assess these Institutions’ compliance with those princi- rights of inmates, the rights of foreigners and migrants and ples, through a process of accreditation and re-accreditation also the rights of children, elderly persons and persons with that may result in three classifications: A (fully compliant), disabilities. B (not fully in compliance) and C (not compliant). In such areas, the most essential rights often come into The international community recognizes to National Human play, those most strictly connected to the principle of hu- Rights Institutions with A-status accreditation a key role in man dignity and which are widely established in interna- the implementation of national systems of protection and tional instruments such as United Nations and Council of promotion of human rights. Europe Conventions. Like the Ombudsmen, they are also considered key partners In 2012, we could recall, for example, the Portuguese Om- by international human rights entities. budsman’s intervention to draw the attention of the Min- This importance is especially evident at the United Na- isters of Justice and of Solidarity and Social Security to the tions, which has granted them a set of participation rights need for urgent measures, in view of the serious situation in some fora, especially in the Human Rights Council, such of delays of the Institute of Social Security in drafting social as submitting documents, attending meetings and making reports requested by the Family and Children Courts, in the autonomous oral interventions. context of cases to regulate the exercise of parental respon- sibilities. It was an intervention with undeniable relevance The Portuguese National Human Rights Institution to the protection of the rights and best interest of the child. Attention should also be paid to the set of inspections car- The Portuguese Ombudsman is accredited since 1999 as ried out, on the initiative of the Portuguese Ombudsman, the A-status Portuguese National Human Rights Institu- to the subway network in Lisbon, to evaluate the conditions tion, in full compliance with the Paris Principles. of accessibility for people with limited mobility, especially 47  people with disabilities and elderly people. Pursuant to organizations that represent and defend the rights of citi- these inspections, several conclusions were addressed to zens in more vulnerable situations. In some of these events, the administration of Metropolitano de Lisboa and to the there was the opportunity to provide information on the President of the City Council of Lisbon. Ombudsman’s activity on the topics addressed. By way of a recommendation regarding the admission into As mentioned in previous reports, the human rights dimen- the Armed and Police Forces of citizens with HIV, the Portu- sion is not only reflected in the mandate of the Portuguese guese Ombudsman urged the Ministers of Internal Affairs, Ombudsman, but also in the way in which the powers of of National Defense and of Justice to expressly ban in the the Ombudsman are defined, with the inclusion of the law discriminatory practices, replacing them with criteria power to issue recommendations – particularly legislative for preventive action, in accordance with national and in- recommendation – and the power to request the interven- ternational best practices. tion of the Constitutional Court. As a last example, we recall the repeated interventions of These two prerogatives, in particular, combined with the abil- the Portuguese Ombudsman to ensure the review and clari- ity to act on its own initiative, allow this institution to contrib- fication of the legislation regarding the special education ute to the greatest possible alignment of Portuguese legisla- subsidy, to address the different insufficiencies found over tion and practice with international law on human rights, as the years, which hindered the full enjoyment and exercise well as with the recommendations issued by the international of the right to education by all children. bodies monitoring the respect for these rights. The Portuguese Ombudsman’s competences as regards dis- Conversely, the knowledge and experience gained by the Om- semination of information and human rights education are budsman in carrying out his functions allow him to provide to also relevant to his role as National Human Rights Institution. the international entities an impartial and detailed perspective In this context, the Ombudsman continued to provide in- on the human rights situation in Portugal, thus enabling them formation and clarification to the users of the Children’s to carry out their duties in a more informed way. Hotline, the Elderly Citizens Hotline and the Citizens with As such, in 2012 this State body had the opportunity to Disabilities Hotline, and, more in general, of the public rela- contribute to several consultations and questionnaires tions services. launched by different international human rights entities, In addition, the Portuguese Ombudsman once again marked as well as to share experiences and points of view with the Children’s Day, on 1 June, with an event that included the delegations of the European Committee for the Prevention delivery of awards of the contest to create a logo for the of Torture, the Director of the Fundamental Rights Agency Portuguese Ombudsman’s Children’s Hotline, which was of the European Union, of the Human Rights Commissioner organized in the framework of the Cooperation Protocol of the Council of Europe and of the European Commission signed with the Ministry of Education. It also included the against Racism and Intolerance. public launch of the Children and Young People’s page of At the national level, the Ombudsman participated, al- the website of the Portuguese Ombudsman. Both initiatives ways with the necessary independence, in the activity of aimed to promote the younger population’s knowledge of the National Commission for Human Rights, ensuring rep- and access to the Portuguese Ombudsman, as a body dedi- resentation in its meetings and transmitting to it relevant cated to the protection and promotion of their rights. information to its activity, inter alia for the preparation of Also pursuant the Protocol with the Ministry of Education, national reports on the implementation of United Nations three actions for education, training and awareness-raising Conventions to which Portugal is a party, as well as for the regarding human rights were carried out in schools around discussion of those reports with the competent interna- the country. tional bodies. The Protocol celebrated with the Law Faculty of the Univer- Lastly, in line with the priority accorded to that domain, the sity of Lisbon also led to the participation of the Portuguese Portuguese Ombudsman reiterated to the Minister of For- Ombudsman in some events through which it was possible eign Affairs and to the Parliament his full availability to take to raise the awareness of different audiences to specific as- on the functions of the National Preventive Mechanism en- pects of his activity, such as the Ombudsman’s action to visaged in the Optional Protocol to the Convention against protect of human rights. Torture, taking into account that this appointment should In addition, with the goal of promoting and raising the have been made at the time of ratification of that instru- awareness of the immigrant community to the action of ment by Portugal, given the competences already held and the Portuguese Ombudsman, the means available to him effectively exercised by the Ombudsman with regard to the and the way to appeal to him, on 3 May the Ombudsman penitentiary system and the rights of inmates. signed a Cooperation Protocol with the High Commissioner In the chapter on «International Relations», a more detailed for Immigration and Intercultural Dialogue. account is given of the various international events and ini- The Portuguese Ombudsman was also represented in tiatives in which the Portuguese Ombudsman participated events promoted by civil society organizations, notably by or was represented, as a National Human Rights Institution, 48 as well as of the contributions that he presented to the At the international level, the efforts and contacts carried National Human Rights Commission in that capacity. out by the Portuguese Ombudsman with a view to the pro- Finally, we should also recall that one of the goals of the motion and establishment of Ombudsmen / National Portuguese Ombudsman has been to promote a greater Human Rights Institutions in the Community of Portuguese- awareness of the importance of the role played by National speaking Countries (CPLP) culminated in the organization of Human Rights Institutions. an International Seminar in Cape Verde, from 15 to 17 Octo- At national level, by way of recommendation 3/B/2012, ber, pursuant to which the Praia Declaration was adopted. This this State body urged the Parliament to amend the Statute Declaration calls for the creation of effective and independ- of the Portuguese Ombudsman to, among other aspects, ent National Human Rights Institutions, in full conformity with expressly establish that dimension of his activity. This the Paris Principles. A Memorandum of Understanding was proposal was included in Law 17/2013, which is the third also adopted, to carry out, within a short delay, a meeting to amendment to the Statute of the Portuguese Ombudsman promote the creation of a network of Ombudsmen / National and was published on 18 February 2013. Human Rights Institutions of the CPLP. 49  Principles relating to the Status of National where necessary, expressing an opinion on the Institutions (The Paris Principles)1 positions and reactions of the Government; (b) To promote and ensure the harmonization of national Adopted by General Assembly resolution 48/134 of 20 legislation, regulations and practices with the interna- December 1993 tional human rights instruments to which the State is a party, and their effective implementation; (c) To encourage ratification of the above-mentioned Competence and responsibilities instruments or accession to those instruments, and to ensure their implementation; 1. A national institution shall be vested with competence (d) To contribute to the reports which States are required to promote and protect human rights. to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty 2. A national institution shall be given as broad a man- obligations and, where necessary, to express an opin- date as possible, which shall be clearly set forth in a ion on the subject, with due respect for their inde- constitutional or legislative text, specifying its compo- pendence; sition and its sphere of competence. (e) To cooperate with the United Nations and any other organization in the United Nations system, the 3. A national institution shall, inter alia, have the follow- regional institutions and the national institutions of ing responsibilities: other countries that are competent in the areas of the (a) To submit to the Government, Parliament and any protection and promotion of human rights; other competent body, on an advisory basis either at (f) To assist in the formulation of programmes for the the request of the authorities concerned or through teaching of, and research into, human rights and to the exercise of its power to hear a matter without take part in their execution in schools, universities and higher referral, opinions, recommendations, proposals professional circles; and reports on any matters concerning the promotion (g) To publicize human rights and efforts to combat all and protection of human rights; the national institu- forms of discrimination, in particular racial discrimi- tion may decide to publicize them; these opinions, nation, by increasing public awareness, especially recommendations, proposals and reports, as well as through information and education and by making any prerogative of the national institution, shall relate use of all press organs. to the following areas: (i) A ny legislative or administrative provisions, as well as provisions relating to judicial organizations, Composition and guarantees of independence and intended to preserve and extend the protection pluralism of human rights; in that connection, the national institution shall examine the legislation and admin- 1. The composition of the national institution and the istrative provisions in force, as well as bills and pro- appointment of its members, whether by means of an elec- posals, and shall make such recommendations as tion or otherwise, shall be established in accordance with a it deems appropriate in order to ensure that these procedure which affords all necessary guarantees to ensure provisions conform to the fundamental principles the pluralist representation of the social forces (of civilian of human rights; it shall, if necessary, recommend society) involved in the protection and promotion of human the adoption of new legislation, the amendment of rights, particularly by powers which will enable effective legislation in force and the adoption or amendment cooperation to be established with, or through the presence of administrative measures; of, representatives of: (ii) Any situation of violation of human rights which it (a) Non-governmental organizations responsible for decides to take up; human rights and efforts to combat racial discrimina- (iii) The preparation of reports on the national situa- tion, trade unions, concerned social and professional tion with regard to human rights in general, and organizations, for example, associations of lawyers, on more specific matters; doctors, journalists and eminent scientists; (iv) Drawing the attention of the Government to situ- (b) Trends in philosophical or religious thought; ations in any part of the country where human (c) Universities and qualified experts; rights are violated and making proposals to it for (d) Parliament; initiatives to put an end to such situations and, (e) Government departments (if these are included, their representatives should participate in the deliberations 1 http://www2.ohchr.org/english/law/parisprinciples.htm only in an advisory capacity). 50  2. The national institution shall have an infrastructure Additional principles concerning the status of commis- which is suited to the smooth conduct of its activities, sions with quasi-jurisdictional competence in particular adequate funding. The purpose of this funding should be to enable it to have its own staff A national institution may be authorized to hear and con- and premises, in order to be independent of the Gov- sider complaints and petitions concerning individual situa- ernment and not be subject to financial control which tions. Cases may be brought before it by individuals, their might affect its independence. representatives, third parties, non-governmental organiza- tions, associations of trade unions or any other representa- 3. In order to ensure a stable mandate for the members tive organizations. In such circumstances, and without prej- of the national institution, without which there can udice to the principles stated above concerning the other be no real independence, their appointment shall be powers of the commissions, the functions entrusted to them effected by an official act which shall establish the spe- may be based on the following principles: cific duration of the mandate. This mandate may be (a) Seeking an amicable settlement through conciliation renewable, provided that the pluralism of the institu- or, within the limits prescribed by the law, through tion’s membership is ensured. binding decisions or, where necessary, on the basis of confidentiality; (b) Informing the party who filed the petition of his Methods of operation rights, in particular the remedies available to him, and promoting his access to them; Within the framework of its operation, the national insti- (c) Hearing any complaints or petitions or transmitting tution shall: them to any other competent authority within the (a) Freely consider any questions falling within its com- limits prescribed by the law; petence, whether they are submitted by the Govern- (d) Making recommendations to the competent authori- ment or taken up by it without referral to a higher ties, especially by proposing amendments or reforms authority, on the proposal of its members or of any of the laws, regulations and administrative practices, petitioner, especially if they have created the difficulties encoun- (b) Hear any person and obtain any information and any tered by the persons filing the petitions in order to documents necessary for assessing situations falling assert their rights. within its competence; (c) Address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations; (d) Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly concerned; (e) Establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions; (f) Maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the pro- motion and protection of human rights (in particular, ombudsmen, mediators and similar institutions); (g) In view of the fundamental role played by the non- governmental organizations in expanding the work of the national institutions, develop relations with the non-governmental organizations devoted to promot- ing and protecting human rights, to economic and social development, to combating racism, to protect- ing particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas. 51 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