Documento RES_Annual_Reportd_final

PORTUGUESE OMBUDSMAN Report to the Parliament 2011 SUMMARY The Ombudsman’s Office Rua do Pau de Bandeira, 7-9, 1249-088 Lisboa Portugal Telefone: +351 213 92 66 00 | Fax: +351 21 396 12 43 provedor@provedor-jus.pt http://www.provedor-jus.pt PORTUGUESE OMBUDSMAN Report to the Parliament 2011 SUMMARY Lisbon 2012 O PROVEDOR DE JUSTIÇA Her Excellency President of the Parliament I take this opportunity to convey my availability to be present before the competent Par- liamentary 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 – 2011 - Summary Published by – The Ombudsman´s Office – Documentation Division Design – Pedro Lages Photographs – Nuno Fevereiro ISSN – 0872-9263 Print run – 120 (Cromotema) 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 14 3. THE OMBUDSMAN’S ACTIVITY IN 2011 17 3.1. Statistical Comment on Global Data 17 3.2. Recommendations of the Ombudsman 23 3.3. Review of the Constitutionality 27 3.4. Cases and Inspections of the Ombudsman´s own Initiative 29 3.5. International Relations 33 3.6. The Ombudsman as National Human Rights Institution 36 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 of having examined 36 requests I decided to present 3 to the the Portuguese Ombudsman (Law 9/91, of 9th April) I have Constitutional Court. In one of the cases, a judgement has the honour to present to the Parliament the 2011 Annual already been issued, considering my request well-founded Report of Activities. and thus declaring the unconstitutionality of the provision of the Portuguese Bar Association Regulation which deter- mined the impossibility, for a three year period, of renew- 2011 in large numbers ing registration in a traineeship that is mandatory to access the profession of lawyer, after having failed the previous In 2011 I decided to open 5812 cases following com- traineeship. In the three judgments of the Constitutional plaints presented by 7753 claimants. Court delivered in 2011 pursuant to requests for review of About 1673 citizens brought to my knowledge facts or constitutionality from previous years, the Court granted my general situations that did not contain a specific request and requests. In the cases I decided not to request the review of thus did not lead to further proceedings. the constitutionality I founded my decision in the case law In addition to the cases opened pursuant to a complaint, of the Constitutional Court. I decided to open on my own initiative 16 other cases, one Throughout 2011, I issued 15 recommendations, 9 of of them an inspection to the detention places of the Public which had been accepted by the end of that year. Of the Security Police (PSP), the National Republican Guard (GNR) remaining 6, 3 were not accepted and for the other 3 the and the Judiciary Police (PJ). Three other inspections took deadline for a reply is still running. place during 2011, to the Institute of Legal Medicine and These figures allow me to conclude that the normal Forensic Sciences, to Employment Centres and Homes for activity of the Ombudsman maintained the upward the elderly. The last two ended in 2011. trend of closed cases and the reduction of the backlog Still regarding inspections, mention should be made to from the previous year. the 16 visits to prisons carried out in the context of cases opened on the basis of a complaint. Of the 5812 cases that were opened, 4124 were closed in The amendment to the Statute of the the same year. In total, in 2011, 6098 cases were closed. At Ombudsman the end of 2011 there were 1996 pending cases (13% less than in 2010). Of the 6098 cases closed, 4451 cases were The first eighteen months of my term as Ombudsman closed within six months (3/4). allowed me to identify the need to introduce specific amend- Of the 5812 cases that were opened, 2439 resulted from ments to the Statute of the Ombudsman. These changes written complaints, 2824 from complaints submitted elec- would recognise new activities that have been committed to tronically and 533 from complaints presented in person. It the Ombudsman within the European Union, United Nations should be noted that, for the first time, electronic com- and Council of Europe, namely in his capacity as National plaints are at the top of the chart, representing 49% of Human Rights Institution. These changes were also necessary the complaints received. due to the reorganization of public administration and inter- Issues related to social rights and rights of workers lead nal reorganization of the Ombudsman’s Office. On the 29th the chart of complaints issues. The central public administra- February 2012 I issued a Recommendation to the Parliament tion is targeted in more than 50% of cases. Within central proposing the amendment of the Statue of the Ombudsman. public administration, the Ministry of Solidarity and Social In the first semester of 2011 the legislative work on the Security, followed by the Ministry of Finances, was at the top draft Organic Law of the Ombudsman’s Office was almost of the table. Concerning local administration, the municipal- concluded. With the investiture of the new government ity of Lisbon was the most targeted entity, with 10% of the and the decision of making changes to the Statute of the total of complaints. Ombudsman I decided not to resume this initiative, adjourn- In what refers to the review of the constitutionality, after ing it until the amendment of the Statute. 08 Reorganisation of the services that assist purpose, I renewed the IT resources, acquiring new comput- the Ombudsman ers and updated software as well as 3 new servers. During 2011 the necessary procedures to create the new site Within the reorganisation of my services I revised the way of the Ombudsman were also initiated. This website intends to of functioning of the local offices of the autonomous regions be friendlier, but also to have additional features and greater of Madeira and Azores. On those regions 2 local offices oper- capacity to store essential information about the Ombudsman’s ated in their own facilities and I had two legal advisers there activity, making it accessible to all citizens. It also intends to permanently. allow the citizens to perform free-text searches and file com- Due to the strong budgetary constraints in 2011 and the plaints electronically. The complaint form was improved in following years, a significant rationalization of expenditures order to promote and facilitate the online submission. had to be made, including in those local offices. Therefore, The next step, already underway, is to improve the case taking also into account the growing trend of electronic sub- registration system and workflow services of the Ombudsman. missions of complaints, I decided to reorganize those ser- vices. With this aim I celebrated two protocols, respectively with the Representative of the Republic for the Autonomous The facilities of the Portuguese Region of Madeira, Judge Counsellor Antero Monteiro Diniz, Ombudsman and with the Representative of the Republic for the Azores, Judge Counsellor José António Mesquita, who made avail- In 2011 the necessary works in the building where the able an autonomous space within their own facilities, free of Ombudsman’s services are situated came to an end. They charge (Palace of S. Lourenço, in Funchal and Solar da Madre were essential for the safety of the people who works here de Deus, in Angra do Heroismo). Furthermore, I decided that and for the maintenance of the facilities. the legal advisers leading each local office should return I should recall that, when I took office, I found structural to Lisbon, keeping here the same assignments. A techni- problems in the main building and asked the National Labora- cal assistant was maintained locally in order to receive tory of Civil Engineering (LNEC) for an inspection to the build- and inform citizens who want to submit a complaint to the ing and its stability. The opinion of the LNEC concluded that Ombudsman. The legal advisers previously working there the building had structural problems which affected its stabil- will be traveling regularly to the autonomous regions, with ity and also detected an infestation by subterranean termites. prior information in the media, to learn about the local office’s work and provide information on the pending cases. Also in 2011, I decided to implement new procedures, Dissemination and promotion of the developing new Rules of Procedure for the organiza- Ombudsman’s actions tion of departments and the work of coordinators and legal advisers, as well as their coordination with the In order to promote awareness to and dynamisation of Ombudsman’s Cabinet and Secretary-General. These new the Ombudsman’s action, the means of action available to rules, which came into force in 2012, are available on him and how to appeal to him, on 19th March 2010 a Pro- the website of the Ombudsman, to ensure that complain- tocol of Cooperation was signed between the Ombudsman ants know the procedure used to assess their complaints, and the National Association of Portuguese Municipalities. thereby ensuring greater transparency of the activity of In 2011, training actions took place among the adhering Ombudsman. municipalities, designed to inform the employees of munici- These Rules of Procedure aim to accelerate and make less palities of the mission and tasks of the Ombudsman. Under bureaucratic the processing of complaints at both the stage this Protocol, the adhering municipalities (today approxi- of preliminary examination and the stage of investigation. mately 90) provide free use of computers to the citizens, It also includes a Code of Good Administrative Behaviour, enabling access to the Ombudsman’s website, where thus anticipating in my services the implementation of the they can find the electronic complaint form. Leaflets on Recommendation that I addressed to the Parliament. the Ombudsman’s mission and duties, on the theme «The In 2011, the Citizens with Disabilities’ Hotline began oper- Ombudsman and the Defence of the Citizen», were also sent ating on an experimental basis. to these municipalities. In order to promote human rights and citizenship education, on 9th May I signed a cooperation Protocol Project to modernize the ICT with the Minister of Education. This Protocol aims at infrastructure promoting and publicizing the Ombudsman, namely as National Institution of Human Rights, as well as at promot- My goal of reshaping the Ombudsman’s information sys- ing and disseminating information on citizens’ fundamental tems is not finalized. Based on the budget assigned for that rights and freedoms and the means of action that citizens, 09  especially children, can use to complain to the Ombudsman. Paris Principles, with representatives from eight Portuguese- Based on this Protocol and on a work plan developed in the Speaking Countries. meantime, awareness-raising actions about human rights, The chapter dedicated to International Relations provides the powers of the Ombudsman and the means to reach him a more detailed description of the events I took part in or will be carried out in schools. In turn, I will be available to those where I was represented. receive visits of education establishments. On the 13th of April, a Protocol of Cooperation between the The Ombudsman and the Parliament Ombudsman and the Law Faculty of the Lisbon University was signed in order to promote cooperate between these two insti- Collaboration with the Parliament is essential for the tutions, namely through the organization of joint seminars. development of the activity of the Ombudsman. The Ombudsman is elected by the Parliament and in order to With the same goal I attended and ensured representa­tion deal with matters within his competence, may take part in in several events at national level, held by civil society organi- the work of parliamentary committees when he deems it sations, in particular organizations representing and defending appropriate and where his/her presence is requested. Since the rights of groups of citizens in a more vulner­able situation. his recommendations are not binding, if the Administration doesn’t act according to them or refuses the requested col- laboration, the Ombudsman may address himself to the Par- International Relations liament, stating the reasons for his position. In compliance with Article 23 of the Statute of the Portu- As regards international relations, I tried to resume the guese Ombudsman, on 6th July 2011 I personally presented work of continuity and deepening of the cooperation to the President of the Parliament the Annual Report of with counterpart institutions, whether bilaterally or within the activ­ity of the Ombudsman for 2010, while expressing the international fora of Ombudsmen and National Human my entire availability to be present before the Parliamentary Rights Institutions, in line with the so-called Paris Principles. Committee for Constitutional Affairs, Rights and Liberties, Thus, I set out to strengthen the role of the Ombudsman as during the discussion and assessment of the Report. I pre- National Human Rights Institution, promoting the institu­tion sented this report on the 28th September 2011, before the amongst NGOs and other civil society actors and establishing Committee on Constitutional Affairs, Rights, Freedoms a link between the national and the international level. and Guarantees. This Commission issued an opinion on 9th As part of my participation in Portugal’s evaluation under November 2011, and the Annual Report of the Ombudsman the Universal Periodic Review mechanism of the United was discussed in the Parliament plenary on the 13th Janu- Nations Human Rights Council, I reiterated my availability ary 2012. to take on the function of National Pre­vention Mecha- In 2011 I also went to the Parliament on the 15th March nism for the Prevention of Torture, based on the powers 2011, to present the annual report for 2009, having also already conferred to the Ombudsman and the extensive accompanied the European Ombudsman on his visit to the work carried out on the penitentiary system and the rights President of Parliament on the 21th November 2011. of inmates. I also considered that such designation should be In order to promote good administration I resumed in made simultaneously to Portugal’s ratification of the Optional 2012 a previous initiative, recommending to Parliament the Protocol to the United Nations Convention Against Torture. adoption, under Article 41 of the Charter of Fundamental I continued to make efforts with a view to fostering Rights of the European Union, of a Code of Good Administra- the establishment and effective appointment of an tive Behaviour, inspired on a similar initiative of the Euro- Ombudsman in all the countries of the Community of pean Ombudsman. Portuguese-Speaking Countries, in order to promote coop- eration between counterpart institutions in the area of Por- tuguese language and enhance their participation in other Council of State international fora. With this aim, on the 26th September 2011 I attended an In my capacity as member of the Council of State I was event that took place on the sidelines of the 18th Session present at the meeting that took place on the 31st March to of the Human Rights Council, about the implementation of take a position on dissolution of the Parliament. resolution 65/207 of the United Nations General Assembly. Concerning this subject I intend to organize in 2012, in col- laboration with the Office of the United Nations High Com- missioner for Human Rights, a seminar on the establishment of National Human Rights Institutions in accordance with the 10 1. THE OMBUDSMAN’S MANDATE The institution of the Ombudsman, directly inspired by the The Ombudsman’s main function is to defend and promote Swedish Ombudsman set up in the early 19th century, was the rights, freedoms, guarantees and legitimate interests of introduced in Portugal by Decree-Law 212/75, of 21st April. citizens, guaranteeing, through informal means, the justice In 1976 the Ombudsman was consecrated at constitutional and legality of the exercise of public powers (Articles 23 of level, in Article 24 of the Portuguese Constitution, current the Constitution and Article 1 of the Statute). Article 23. At a subjective level, the scope of his/her activity covers, in The consecration of the Ombudsman in the general prin- particular, the services of the central, regional and local public ciples of Part I of the Portuguese Constitution relating to fun- Administration, the Armed Forces, public institutes, public damental rights and duties gives this State body increased companies or the companies whose capital is mostly public protection. Indeed, the Ombudsman has been established and the concessionaires operating public services or exploiting within the framework of constitutional values as a funda- state property (Article 2, paragraph 1 of the Statute). mental right of the people, thus benefiting of the general The scope of the Ombudsman’s activity does not include regime of fundamental rights and the special regime of sovereign bodies (President of the Republic, Parliament, rights, freedoms and guarantees, instead of a simple institu- Government and Courts), or the Regional Parliaments and tional guarantee. So the Ombudsman is, de jure, a constitu- Regional Governments of the Autonomous Regions of the tional body due to ensure the fundamental rights and, more Azores and Madeira, except in issues associated to their generally, human rights. administrative activity or acts of supervision of the Adminis- Thus, it was the responsibility of the Portuguese legis- tration. As a result, the Ombudsman’s supervision and control lator to establish the respective Statute, by Law 81/77, of powers do not extend to the political activity, in the strict 22 November, that in the meantime has been revoked by sense of the term, nor to the judicial activity (Article 22, Law 9/91, of 9th April, and subsequently amended by Laws paragraph 2 and 3 of the Statute). 30/96 of 14th August and 52-A/2005 of 10th October. On the other hand, the Ombudsman’s remit is no longer In essence, the Constitution and the Law define the restricted solely to the public authorities, although this does Ombudsman as a single person body of the State, irremov- configure its main scope. Since 1996, the Ombudsman may able, completely independent1 and impartial in the exercise also intervene in relations between private entities, but only of his functions, and endowed with parliamentary legitimacy. when there is a special relation of power and if this falls The mandate holder is designated by the Parliament, by a within the scope of protection of rights, freedoms and guar- qualified two-thirds majority of MPs present, provided that antees (Article 2, paragraph 2 of the Statute)2. this is higher than the absolute majority of MPs effectively The Ombudsman acts, as a general rule, pursuant to citi- in functions. The Ombudsman’s mandate is four years, and zens’ complaints (Article 23, paragraph 1, of the Constitution may only be renewed once. His/her functions cannot ter- and Article 3 of the Statute). Nonetheless he/she may also act minate prior to the end of the period for which he/she has on his/her own initiative (Articles 4 and 24, paragraph 1 of been designated, except in the cases specified in the law the Statute), in response to facts that he/she becomes aware (Articles 23, paragraph 3, and 163, indent i) of the Constitu- of by any other means, either via: the media; alerts issued tion and Articles 5 to 7 of the Statute). by a NGO’s and reports from International Organisations; his/ Furthermore, the Ombudsman is exempt from civil and her sensitivity in diagnosing more problematic situations of criminal liability for the recommendations, comments or national scope and also by the special depth with which he/ opinions that he/she issues or for the acts that he/she prac- she analyses complaints and withdraws the common denomi- tices in exercise of his/her functions (Article 8, paragraph 1 nator that resides therein, classifying and analysing issues or of the Statute). questions that require more in-depth analysis3. 2 Legal provision introduced in the Ombudsman’s Statute by means of Law 30/96, 1 The constitutional revision of 1989, approved by Constitutional Law 1/89, of 8th of 14th August. July, clarified the Ombudsman’s degree of independence (1st part of paragraph 3 of 3 The Ombudsman may, in particular, after studying a complaint, analyse the dys- Article 23 of the Portuguese Constitution). functional aspects of the respective system or sector of the Public Administration. 11  In the exercise of his/her functions, the law attributes In the performance of his/her duties, he/she may carry broad powers to the Ombudsman as a national constitu- out investigations and inquiries as he/she deems neces- tional fundamental rights’ protection body. In summary, in sary, make inspections4 (Article 21, paragraph 1, indents accordance with Articles 20 and 21, 23 and 38 of the Stat- a) and b)) and is entitled to order any civil servant or any ute, the Ombudsman can: official of any public body to be present at his/her Office (Article 29, paragraph 5 of the Statute). Correspondingly, the · address recommendations to the competent bodies with bodies and agents of public entities, civil and military, have a view to correcting illegal or unfair acts of public authori- a duty of cooperation, also defined in broad terms (Article ties or to improving their services (administrative recom- 23, paragraph 4, of the Constitution and Articles 21 and 29 of mendations). If recommendations are not accepted, and the Statute). Given that this is a legal duty, non-compliance whenever the collaboration requested is not forthcom- constitutes a crime of disobedience, liable for a disciplinary ing, the Ombudsman may address the Parliament, or procedure (Article 29, paragraph 6 of the Statute). if applicable, Regional Parliaments, stating the reasons The Ombudsman is a member of the Council of State. behind his actions. · point out shortcomings in legislation, issue recommen- The right to present a complaint to the dations concerning its interpretation, amendment or Ombudsman revocation, or suggesting the drafting of new legislation (legislative recommendations); Citizens’ access to the Ombudsman is broad, direct and free of charge. All citizens are entitled to present complaints · request the Constitutional Court to declare the unconstitu- to the Ombudsman, regardless of their age, nationality5 tionality or illegality of any legal provisions, or to rule on or residence. The complaint may be presented by citizens, cases of unconstitutionality due to a legislative omission; either individually or jointly, and depends neither on the complainant’s direct, personal and legitimate interest nor on · issue opinions, upon request of the Parliament, on any any time limits (Article 24, paragraph 2 of the Statute). The matter related to its activity; If he/she deems it conveni- complaints must concern illegal or unfair actions or omis- ent, and at their request, the Ombudsman may participate sions by public authorities, that the Ombudsman is responsi- in the work of parliamentary committees for the purpose ble for redressing or preventing (Article 23, paragraph 1, of of dealing with matters within his/her competence; the Constitution and Article 3 of the Statute). Complaints may be presented in writing or orally, iden- · promote the divulgation of the content and the meaning tifying the identity and address of the complainant and, of each of the fundamental rights and freedoms, as well whenever possible, his signature. When presented orally, as of the aims of the Ombudsman, the means of action a record of the complaint must be drafted, which the com- at his/her disposal and how to appeal to him; plainant will sign, if he/she knows how to, and is capable of doing so (Article 25, paragraph 1 and 2 of the Statute). · intervene, in accordance with the applicable law, in the Citizens may send their complaints by letter, telephone or protection of collective or diffuse interests whenever a fax, and also by electronic means, by filling in the specific public entity is involved. form available at the Ombudsman’s website (http://www. provedor-jus.pt/queixa.htm). They may also present their · make, with our without prior notice, inspection visits complaints in person at the premises of the Ombudsman. to any area of activity of the central, regional and local In addition to the possibility of sending a complaint administration, including public services and civil and directly to the Ombudsman, they may also be sent to the military prisons, or to any other entities under his/her Public Prosecution Service, who shall immediately forward control, hearing their bodies and officials and requesting them to the Ombudsman (Article 25, paragraph 3 of the such information, and the exhibiting of documents, as Statute). he/she may deem adequate; · Undertake such investigations and enquiries as he/she 4 Either by exercising his right to take own initiatives, or after a specific complaint, may deem necessary or convenient; the Ombudsman may carry out, without providing any prior notice, inspection visits to all and any activity sector of the central, regional and local Administration - specifically public services and civil prison establishments and military personnel · Search, in cooperation with the competent bodies and 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. services, the solutions which best allow the protection of 5 As a result of the constitutionally-established principle of equivalent treatment (Arti- the legitimate interests of citizens and the improvement cle 15, paragraph 1, of the Constitution), the Ombudsman is an institution that is open to foreigners and stateless persons, regardless as to whether or not they have of the Administration’s activity. regularised their legal situation. 12  The Ombudsman is not bound by the complaint itself, or decision, highlighting the justice and legality of the position by the exact terms in which it is formulated. He/she may, assumed (Article 31, indent b) of the Statute). first and foremost, reject complaints that he/she objectively If pursuant to the inquiries made it is demonstrated that considers to be unfounded; he/she may check facts and the complainant has a well-founded complaint, the case may issue recommendations beyond the terms of the request; still be closed if the illegality or injustice has been redressed or even, propose measures that stand in opposition to in the meantime (Article 31, indent c) of the Statute). the interests of the complainants, given that he/she is a In other cases, unless measures are adopted to restore defender of both the legality and the justice of the activity legality or overcome the injustice cited in the complaint, of the public powers. the Ombudsman may issue recommendations to correct Within the fairly diversified range of communications the illegal or unfair act, or the irregular situation (Articles received on a daily basis by the Ombudsman, the first 20, paragraph 1, indent a), and 38 of the Statute). In other relevant task consists in qualifying the communication as situations, he/she may make suggestions or formulate pro- a «complaint», or as a simple statement of facts. Next, the posals to the public powers, in order to restore the legality complaints are subject to a judgement of admissibility, in of the act against which the complaint has been submit- order to ascertain whether their material scope lies within ted. He may also, in less serious cases, of a one-off nature, the Ombudsman’s sphere of powers. In all circumstances, it simply issue a warning to the body or service against which is always the substance, rather than the form, of the com- the complaint has been submitted or terminate the subject munication, that must be considered. with the explanations provided, in which case the case will In this context, a complaint is considered to be any be closed (Article 33 of the Statute). communication, regardless of its form, that is presented by one or more complainants, in which the Ombudsman is requested to intervene in relation to questions falling within his scope of competence. In relation to any complaint, the parameters determin- ing the possibility of the Ombudsman’s intervention include both the mission and competencies legally attributed to this body; and respect for the principle of separation of powers, consecrated in Articles 2, 110, and 111, paragraph 1, of the Portuguese Constitution; and also the purely recommendatory nature – rather than a binding nature - of his/her intervention. A complaint that fails to respect the scope of the Ombuds- man’s attributions will be preliminarily rejected. There is also the possibility that the Ombudsman will conclude that the complainant has access to acts of grace or legal remedies, as specified in the law, and the complaint may therefore be forwarded to the competent body (Article 32, paragraph 1 of the Statute). If the complaint is neither preliminarily dismissed nor simply forwarded, a case will be opened (to be sequentially numbered) and inquiries carried out. The Ombudsman operates in an informal manner. In other words, the Ombudsman is not bound to strict proce- dural norms, nor to specific procedural norms in relation to the production of evidence (Article 1, paragraph 1, and Arti- cle 28, paragraph 1 of the Statute). Indeed, the Ombudsman frequently recourses to telephone calls or organises meet- ings between the entities addressed and complainants, in order to foster consensus and conciliation of the interests involved, and thereby resolve or overcome the dispute. After investigation of the case, the Ombudsman may conclude that the complaint is unfounded, due to lack of due grounds, in which case the case will be closed, and the complainant will be informed of the reasons underlying this 13  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 2011) 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 40 Legal Advisers (Advisory Service). The work is organ- Ombudsmen ized in 6 main departments, according to the nature of the Advisory Legal Service 45 fundamental rights in question: Environment and Life Qual- ity Rights; Rights of Taxpayers, Consumers and Economic Directorate of Technical Services and Administrative 45 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 2011 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 2010): 5 348 511,00 €. on promoting and disseminating information on the rights of these particularly vulnerable groups. Since its creation, Current services and goods 4 937 351,00 € the N-CID has brought together two specialized and toll- free telephone services of the Portuguese Ombudsman: the Investment expenses (new technologies and 411 160,00 € Children’s Hotline and the Elderly Citizens’ Hotline. In 2011, repairs of the building) the Citizens with Disabilities’ Hotline began operating on an Total 5 348 511,00 € experimental basis. The Ombudsman also has a Directorate of Technical and Administrative Services, under the supervision of the Secretary-General. 14 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 15  THE HEADQUARTERS OF THE OMBUDSMAN 16 3. THE OMBUDSMAN’S ACTIVITY IN 2011 3.1. Statistical Comment on Global Data Graph I There was another increase on the number of com- plaints received by electronic means, 2011 being the first year where this procedure was the most used by citizens to address the Ombudsman. 49% of the complaints that origi- Cases opened nated a formal case were presented through these channels. 13 18 5000 17 16 6948 6731 6488 5796 Table 3 – Number of cases closed 0 2008 2009 2010 2011 Main cases from 2005 1 Pursuant to a complaint On the Ombudsman's own initiative Main cases from 2006 2 Main cases from 2007 8 Main cases from 2008 23 Main cases from 2009 230 In 2011, 5812 cases were opened, 16 by the Ombudsman Main cases from 2010 1710 on his own initiative and the remaining following a com- Sum of cases prior to 2011 1974 plaint. From February 2011 onwards it was decided not to Cases opened in 2011 4124 open a case if the situation at stake was deemed inadmissi- Total of cases closed 6098 ble, namely due to falling outside the Ombudsman’s jurisdic- tion. There were 654 such instances. This change of criteria Table 4 – Number of cases pending on 31 December explains the number of cases formally opened, which is sub- Main cases from 2005 0 stantially lower than in 2010 and previous years. Main cases from 2006 0 Main cases from 2007 1 Table 1 – Number of complainants Main cases from 2008 0 Main cases from 2009 14 Natural persons 7341 Main cases from 2010 293 Legal persons 412 Sum of cases prior to 2011 308 Total of Complainants 7753 Cases opened in 2011 1688 Total of pending cases 1996 Regarding the number of complainants, there were 7341 individuals and 412 legal persons, making a total of 7753. These figures are similar to those recorded in 2010 (less 82 Graph II individuals and less 14 legal persons). A further 1019 com- munications were also received, without elements allowing Cases opened and closed a specific intervention of the Ombudsman. 8000 6961 6893 6749 6505 6790 5935 5812 6098 Table 2 – Number of cases opened 4000 Written complaint 2439 Oral / in person complaint 533 Electronic complaint 2824 0 Ombudsman’s own initiative 16 2008 2009 2010 2011 Opened Closed Total of cases opened 5812 17  Graph III Any analysis of the reasons for closing cases, compared to previous years, must take into account the aforemen- tioned new criteria, as the number of cases closed due to absence of jurisdiction or any other grounds for inadmissibil- Evolution of the total number of pending cases ity became residual. In any case, to a total absolute number 3000 of cases closed which was lower in about 700 units than 2567 2500 the previous year corresponded a sharp rise in the num- 2282 2000 1996 ber of cases resolved with an essential intervention of the 1752 Ombudsman (446 more than in 2010), which means also a 1500 significant increase in relative terms. In 11 cases, the inter- 1000 vention involved a formal recommendation (26 cases in 500 2010). The opposite situations, i.e. of non-compliance with 0 recommendations of the Ombudsman, remained in equally 2008-12-31 2009-12-31 2010-12-31 2011-12-31 low numbers. The number of cases closed due to the com- plaint being unfounded declined slightly from 2011. Graph V Although the number of cases closed decreased, it is noted that, unlike previous years, this figure does not include the complaints considered non-admissible. At the end of 2011, Duration of cases closed in 2011 there was a drop of 286 units in the number of cases still in 2000 progress (a drop of 13%). 1800 1738 N = 6098 1658 1600 1400 Table 5 – Summary of case activity 1200 1155 Total of cases from 2010 2282 1000 800 Total of cases opened 5812 586 600 Total of cases closed 6098 400 365 323 200 153 120 Cases opened and closed in 2011 *4124 0 Cases pending on 31 December 1996 Between 31 Between 91 Between 181 Between 271 Up to 30 days Over 2 years Between a year and Between a year and a **Corresponding to 71,0 % of the total of cases opened and 90 days and 180 days and 270 days and 365 days a year and a half half and two years The number of new cases closed in the same calendar year was of 4502 in 2011, accentuating the tendency felt in the previous year. The comparison with the values of 2010 presents, at first Graph IV sight, a sense of continuity. The same 3/4 of cases closed lasted less than a semester, the same 30% did not go beyond the first month after their entry. Again, the modi- Grounds for Closing a Case fication of criteria regarding the decision on inadmissibility 2107 2000 1831 of complaints affects this simple reading, as previously a 1800 N = 6098 1600 significant number of the cases with shorter durations cer- 1400 tainly corresponded to situations of early rejection of the 1200 1000 complaint as inadmissible. Therefore, it is reasonable to infer 800 586 589 from the available data a significant acceleration of the pro- 600 400 252 352 gression of most cases. Control of the older backlog is also 209 200 11 6 38 3 27 87 evident in the halving of the number of cases with a longer 0 duration. Referral to another entity (C) Solved with an accepted Solved through the Unsolved (H) Solved without the intervention Unsolved (recommendation Unsolved (complaint Request for a Administrative Lack of competence of the Complaint inadmissible (A) Unfounded (B) Ombudsman found during Not yet benefiting from this observation, the indicator on grounds (K) investigation (L) withdrawn) (I) the percentage of new cases in 2010 that received a final recommendation (D) not accepted) (G) constitutionality review (J) investigation of the case (E) of the Ombudsman (F) Impossibility to adopt any decision in less than twelve months shows an increase, other procedure (M) inverting the trend of the previous year, this value being now 90.4%. 18  Graph VI Graph VIII Distribution of complaints by Ministry Subject-matter of complaints 1200 1133 1400 N = 5955 1273 N = 3234 1200 1000 1000 800 686 800 699 600 600 530 492 551 400 344 313 400 367 323 251 203 241 240 211 199 200 188 162 162 161 156 200 98 71 57 78 0 0 Social Security Nationality Law Penitentiary Issues Environment and Public Employment Relationship Territorial Planning Consumer Rights Health Education Others Administration of Justice Foreigners' Law Tax Affairs Financial Affairs Traffic Issues Urban Planning and Housing Ministry of Solidarity Ministry of Education Ministry of Agriculture, Sea, Ministry of Justice Ministry of Health Ministry of Internal Ministry of Economy Ministry of Foreign Affairs Others Natural Resources Ministry of Finance Administration Environment and and Social Security and Science and Employment Territorial Planning There was a large drop in cases relating to Justice and The Ministry of Solidarity and Social Security and the Financial Affairs. Social Security and Public Employment Ministry of Finance remain in the top positions, with sharp issues were on top of the list, with the third place being strengthening of the position of the first. The large drop in occupied by complaints relating to Taxation. In absolute the weight of complaints against the Ministry of Justice, in terms, there was a significant increase in Social Security, a continuing movement since the previous year, led to the Health and Traffic Affairs. On the other hand, the greatest exchange of positions with the Ministry of Education and Sci- decreases are felt in Financial Affairs, Justice and Law of For- ence, although the latter also had a decline in the number eigners Affairs and, more slightly, in Nationality issues. of complaints. There was a significant decline on complaints against the Ministry of Foreign Affairs, here including con- Graph VII sular services. Graph IX Entities concerned in the complaints Distribution of Complaints by Ministry (excluding the complaints on public employment relationship) 3500 3234 1200 1087 N = 6147 N = 2702 3000 1000 2500 800 2000 644 1436 600 1500 400 302 1000 762 436 215 500 200 46 57 176 118 109 90 76 61 0 0 Açores Regional Madeira Regional Central Administration Indirect and Autonomous Local Administration Independent Entities Private and Foreign Entities Ministry of Solidarity Ministry of Internal Ministry of Justice Ministry of Health Ministry of Foreign Ministry of Economy Ministry of Finance Ministry of Others Administration Administration Administration Affairs and Social Security and Employment Education and Science Administration There was a natural decline in the proportion of com- Excluding the complaints filed by employees of each plaints against private and foreign entities (5% less) and government department connected with the employment independent entities (2% less). The rise of 3% in cases relationship, the only change in the ordering of ministries against the Central Administration may just be due to this is the descent of two positions by the Ministry of Education factor, although the same explanation cannot be sufficient and Science. This Ministry, in fact, is the only case in which to clarify the strong increase (6%) of complaints against the proportion of complaints in employment is more than entities within the Autonomous and Indirect Administration. half (65%), being closely followed by the Ministry of Health 19  (42%). The generality of other departments, also because The number of cases addressed against individuals or for- of the smaller number of its labour force, comes with values eign entities dropped strongly. In relative terms the trend below 15%, more accentuated in the case of the Ministries previously observed persisted, with an increase in the relative of Solidarity and Social Security, Finance and Foreign Affairs, weight of complaints against a bank or a private health facility with less than 10% (4%, 6% and 8% respectively). and a decline in the cases against other kind of companies. Graph X Graph XII Nature of primary complainants in cases opened 6000 N = 5797 Complainants 5404 Distribution of complaints against municipalities 5000 500 N = 646 447 450 400 4000 350 300 250 3000 200 150 100 68 2000 50 19 15 14 14 13 13 12 11 10 10 0 a tra rto a s ai a iri uz s ve as a or ha l rs 1000 bo Sin Po ad sc Le Cr Sil el ad nc he Lis m Ca a iv Fu Ot Al Od Am nt Sa 393 0 Legal Persons Natural persons The 11 most targeted municipalities continue to rep- Graph XIII resent nearly 1/3 of complaints against local authorities, once more Lisbon being the top case, although with a slight decrease in the number of complaints received. In absolute Type of legal person complainant values, there was also a significant drop in the number of 140 complaints against the Municipality of Funchal (to 1/3 of 120 122 123 N = 412 the value recorded in 2010), of Oporto (to 2/3 of the value 100 85 recorded the previous year) and of Almada (falling below 80 50% of the figures recorded in 2010). 60 40 24 20 13 17 13 Graph XI 11 4 0 es -u Trad tio ns s ni ni e on uas io so s n n he r pa cia an tio d Ot m socia Re sid Pu bl i c b ns od Co en ts 'C ie s As Pr ofes om m itt sio na lA ee s W ss oc ia tio or ke rs'C ns om m itt Po lit ee s de ica lP ar tie s tra Complaints against private and foreign entities 80 N = 176 70 67 60 57 50 40 The proportion of legal persons in the universe of com- 30 plainants (first subscribers only) has increased slightly. A 20 20 15 descent in the number of companies that presented a com- 10 8 4 1 4 plaint was compensated by a symmetrical growth on com- 0 ks s ie es en ts ts en ions ie s s ie plaints presented by associations, in a trend already enunci- Ba n pa ni en tit ated in previous reports. n pa ish hm un tit en co m om bl m bl is de te re e rc es es Tr a iv a ig n nc he ta ta pr Fo ur Ot a ng th al Ot he In s hi He r ac Te 20  Graph XIV Graph XVI Evolution of the distribution of natural persons complainants by gender Number of complaints from the Autonomous Regions 70,0% 172 177 180 65,8% 65,5% 65,0% 158 160 62,0% 60,9% 61,3% 61,6% 145 61,1% 59,8% 60,0% 58,5% 140 121 55,0% 56,8% 120 107 100 50,0% 80 45,0% 43,2% 60 40,0% 41,5% 40,2% 40 38,0% 38,9% 39,1% 38,7% 38,4% 35,0% 20 34,2% 34,5% 30,0% 0 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Açores Madeira Men Women 2009 2010 2011 The predominance of male complainants persisted, with The most significant growth of complaints was recorded a slight decrease of 2%, compared to 2010. The number of in the districts of Beja, Vila Real, Lisbon, Viana do Castelo responses received to the questionnaire sent to complain- and Viseu. On the other hand, the most significant break ants after acceptance of the complaint was similar to that occurred in the Azores and the districts of Portalegre, Bra- of 2010. As in previous years, this response was obtained gança, Guarda and Évora. from about 1/3 of the complainants. Among those who replied, the proportion of those presenting a complaint for Graph XVII the first time declined slightly. The response rate of indi- viduals remained much higher than the figure concerning legal persons. The number of replies received from women increased. Almost half of the respondents were aged Number of complaints from abroad or with unidentified origin between 40 and 59 years, 30% being more than 60 years 1000 old. The percentage of those responding without college 900 education decreased 4%, the number of responders with BA 800 700 or above being now about 50%. Regarding the employment 600 471 status of respondents, in absolute and relative terms, there 500 400 were significant increases in the number of unemployed 300 258 288 208 178 188 200 and workers on the public enterprise sector. The number 100 of answers from workers on the private sector diminished, 0 Not identified Abroad with an increase of the figures relating to liberal profession- 2009 2010 2011 als or workers in the public administration. Graph XV Demonstrating its volatility already mentioned in the Number of complaints in mainland districts 2400 2010 Report, the decline of complaints coming from abroad 2200 2000 is explained by a decrease, of about 30%, of cases relating 1800 1600 to the nationality of persons born in the former Portuguese 1400 State of India. 1200 1000 800 600 400 200 0 Aveiro Beja Braga Bragança Castelo Branco Coimbra Évora Faro Guarda Leiria Portalegre Porto Setúbal Viana do Castelo Vila Real Lisboa Viseu Santarém 2009 2010 2011 21  Table 6 – Complaints and Population The five highest values 2007 2008 2009 2010 2011 1 st Lisboa Lisboa Lisboa Lisboa Lisboa 2nd Açores Santarém Madeira Madeira Madeira 3rd Santarém Faro Santarém Açores Setúbal 4 th Setúbal Madeira Setúbal Setúbal Faro 5th Faro Setúbal Faro Faro Santarém Graph XVIII Complaints 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 Portalegre Porto Santarém Aveiro Beja Braga Bragança Castelo Branco Évora Faro Coimbra Guarda Açores Madeira Leiria Lisboa Setúbal Viana do Castelo Viseu Vila Real 2009 2010 2011 Comparing the number of complaints with the resident population, the five top places were occupied by the district of Lisbon, in the first position, followed by Madeira. Return- ing to the scenario occurred in 2009, albeit with different relative positions, the districts of Setúbal, Faro and Santarém followed. 22 3.2. Recommendations of the Ombudsman The Ombudsman has the competence to address recom- B: That the transition to the new careers and grades should mendations to the competent bodies, with a view to cor- be made according to the legal regime of public servants; recting illegal or unfair acts of public powers or to improving C: That the new remuneration levels should be defined their services. according to Law 12-A/2008, of February 27. The addressed body must, within 60 days, inform the Status: Accepted. Ombudsman of its position on the issue. The decision not http://www.provedor-jus.pt/restrito/rec_ficheiros/ to accept the recommendation must always be grounded. Rec_1A2011.pdf If the Administration does not act according to the recom- mendations or if it refuses to cooperate as requested, the Ombudsman may address him/herself to the Parliament, Recommendation 2/A/2011 stating the reasons for his/her initiative. Target entity: Mayor of Vizela In 2011, 15 Recommendations were issued, 2 of which Subject: Regulation of Parking Zones. concerning the need for amendments to legislative acts Data: 14.04.11 («B» recommendations). These recommendations were Summary: The Municipal Council decided to investigate and addressed to the following entities: Minister of State and decide cases of parking offenses under the Municipal Regu- Finance (1); Minister of Agriculture, Sea, Environment and lation on Parking Areas with Limited Duration Controlled by Land Use Planning (1); Minister of Interior (1); Secretary of Parking Meters. The Ombudsman recommended the repeal State Assistant to the Minister of Health (1); Secretary of of that municipal regulation, because it contained provisions State of Science (1); Vice President of the Regional Autono- contrary to the Road Code, and that all cases be closed, mous Government of Azores (1); President of the Board of because only the National Road Safety Authority can pro- the Municipal Public Enterprise for Mobility and Parking of cess and impose fines for illegal parking, while municipal Lisbon (1); President of the Board of the Municipal Public councils do not have such a competence. Enterprise for Mobility and Parking of Lisbon (1); Mayor of Sequence: Accepted. Vizela (1); Mayor of Ponta do Sol (1), Mayor of Portimão (1); http://www.provedor-jus.pt/restrito/rec_ficheiros/ Mayor of Santa Cruz (1); Mayor of Sintra (1); Mayor of Santa Rec_2A2011.pdf Cruz das Flores (1); General Director of Human Resources do the Ministry of Education (1). Recommendation 3/A/2011 Target entity: Chairman of the Board of the Municipal Public «A» Recommendations (Article 20, paragraph 1, indent Enterprise for Mobility and Parking of Lisbon (EMEL) a) of the Statute of the Ombudsman) Subject: Titles of parking improperly positioned in the vehicles. Date: 29.04.11 Recommendation 1/A/2011 Summary: Recommendation 3/A/2011 was addressed to Entity addressed: Vice-Presidency of the Regional Govern- the Chairman of the Board of EMEL and had to do with the ment of the Azores titles of parking improperly positioned in the vehicle and the Subject: Civil servants tenure, careers and salaries legal possibility to rebut the presumption of non-payment. The regime. Transfer of competences from the Institute of Financ- Ombudsman recommended that EMEL should issue instruc- ing for Agriculture and Fisheries (IFAP) to the Autonomous tions so that records of administrative offences are not drawn Region of the Azores. Transition of legal and labour relations. up in relation to drivers who actually prove having paid. Date: 19.01.2011 Sequence: Since EMEL did not follow the recommendation, Summary: The Ombudsman recommended: the Ombudsman referred the matter to the Lisbon City Coun- A: The revocation of Order 1046/2010, of October 28, of the cil and is waiting for a response. Vice-President and of the Regional Secretary for Agriculture http://www.provedor-jus.pt/restrito/rec_ficheiros/ and Fisheries, on the grounds of its illegality; Rec_3A2011.pdf 23  Recommendation 4/A/2011 Recommendation 7/A/2011 Target entity: Minister of the Interior Target entity: Mayor of Santa Cruz Subject: urgent public interest service. Subject: Consumer rights. Guarantee deposit for access to Date: 12.05.11 public water supply. Summary: Recommendation 4/A/2011 was addressed to Date: 04.11.11 the Minister of the Interior on the issue of driving official Summary: The Ombudsman recommended that the nec- cars in violation of traffic rules by reason of public service. essary administrative measures be initiated to ensure that It was recommended that the Minister issue guidelines for the complainant is paid an amount equal to the value of the police forces so that the police agents who, in the per- the guarantee deposit whose refund he requested under formance of supervisory functions, witness traffic offences Decree-Law 195/99, of June 8, which established the committed by official vehicles, draw up a record of such regime on deposits in contracts for the provision of essential offences. Then, it will be for the National Authority for Road public services to consumers, as amended by Decree-Law Safety to analyze the compliance with the requirements of 100/2007, of April 2. the urgent public interest service. Status: Awaiting response. Sequence: Accepted. http://www.provedor-jus.pt/restrito/rec_ficheiros/ http://www.provedor-jus.pt/restrito/rec_ficheiros/ Rec_07112011.pdf Rec_4A2011.pdf Recommendation 8/A/2011 Recommendation 5/A/2011 Entity addressed: Director-General of Human Resources of Entity addressed: Mayor of Ponta do Sol the Ministry of Education Subject: Environmental Law. Insalubrity. Subject: compensation for the termination of contracts. Date: 17.08.11 Date: 09.11.11 Summary: The Ombudsman recommended that a building Summary: The Ombudsman recommended the amend- owner should be notified with urgency, in order to promote ment of the interpretation disclosed in circular B11075804B, the immediate cessation of unauthorized use of the facili- of June 8, 2011, whereby the termination of contracts ties identified above, according to Article 109 of the Legal concluded under special hiring teachers regimes does not Regime of Urbanization and Construction. He also recom- confer the right to compensation established by the Legal mended that the transfer of the structure to an alternative Regime of the Contract of Employment in Public Functions. space duly authorized be pondered, upon the application of The Ombudsman considered that the right to compensation safeguard measures provided by the Legal regime for the occurs whenever the expiry of the term contract does not activity of cattle raising and, if necessary, in cooperation derive from the will of the worker and he/she does not get with the competent services of the Regional Direction of a new position that will ensure the maintenance of a pub- Agriculture and Rural Development. lic employment legal relationship. It was therefore recom- Sequence: Accepted. mended that the decisions refusing such compensation to http://www.provedor-jus.pt/restrito/rec_ficheiros/ teachers whose contracts expired without having obtained Rec_5A2011.pdf new employment should be reviewed. Status: Not accepted. http://www.provedor-jus.pt/restrito/rec_ficheiros/ Recommendation 6/A/2011 Rec_8A2011.pdf Entity addressed: President of the Board of the Executive Directors of the Azores Electricity Company SA (EDA) Subject: Union leaders. Meal allowance. Recommendation 9/A/2011 Date: 07.09.2011 Entity addressed: Mayor of Portimão. Summary: The Ombudsman recommended that EDA should Subject: Access to and pursuit of the activity of itinerant recognize the complainant’s right to receive the unpaid trader. Restriction of access to non-residents in the munici- meal allowances corresponding to the period between pality. 17.04.1997 and 31.12.2003, plus interest arrears since the Date: 10.11.11 maturity date, an amount due for the four days of release Summary: The Ombudsman concluded that article 4, para- regarded as effective work that he was entitled to as a union graph 2 of the Regulation on the Activity of Itinerant Trader worker. of the Municipality of Portimão went beyond the limits of Status: Accepted. the enabling law (Decree-Law 122/79, of May 8, which http://www.provedor-jus.pt/restrito/rec_ficheiros/ regulates the itinerant trade) and imposed an unacceptable Rec_6A2011__1.pdf restriction of access to the activity of itinerant trader to the 24 non-residents in the municipality. The aforementioned pro- Recommendation 12/A/2011 vision was invoked to substantiate the refusal to issue the Entity addressed: Mayor of Sintra itinerant trader’s card to the non-residents in the munici- Subject: Payment after the trial period pality. The Ombudsman recommended that such rule, as Date: 17.11.11 well as all those that in the same way imply the granting or Summary: The Ombudsman addressed a recommendation restricting of rights to itinerant traders based on their resi- to the Mayor of Sintra, following a complaint by a Munici- dency within or outside such municipality, be removed from pal Police Officer who continued to receive the salary of a the Regulation. trainee, despite having completed the traineeship in Janu- Status: Accepted. ary 2011. Considering that the approval in the traineeship http://www.provedor-jus.pt/restrito/rec_ficheiros/ may not be recognized without producing effects in terms Rec_9A2011.pdf of pay, it was recommended that the municipal agents who completed the traineeship successfully be paid as 2nd class municipal agents, with effect from the date of the act that Recommendation 10/A/2011 recognized the approval in the traineeship. Entity addressed: Secretary of State for Science Status: Accepted. Subject: Research grants. Scholarships for doctoral and post- http://www.provedor-jus.pt/restrito/rec_ficheiros/ doctoral studies. Teaching functions. Rec_12A2011.pdf Date: 11.11.11 Summary: The Ombudsman recommended that the Sec- retary of State for Science should ensure the modification Recommendation 13/A/2011 of decisions that have denied the grant or the renewal of Entity addressed: Mayor of Santa Cruz das Flores scholarship, in the case of accumulation with teaching activ- Subject: Performance evaluation. ities, by applying criteria not present in the current legal Date: 15.12.11 framework or at least violating the confidence created by Summary: The Ombudsman recommended that the Mayor, former rules of procedure, without adequate justification. It as regards performance evaluation, should assign one point was also recommended, for the future, that a proper consid- to a worker that, in 2008, did not have six months of ser- eration of conditions of accumulation of teaching with the vice rendered in actual contact with her evaluator, as estab- receipt of a research grant should be enacted as law, as part lished by Regulatory Decree 18/2009, of September 30, that of an overview of the national scientific system and in con- adapted to the local administration the Integrated System junction with the legislative framework which provides the for Performance Assessment in Public Administration (SIA- framework for teaching careers. DAP). Status: Accepted. Status: Not accepted. http://www.provedor-jus.pt/restrito/rec_ficheiros/ http://www.provedor-jus.pt/restrito/rec_ficheiros/ Rec_10A2011.pdf Rec_13-A_R_1910_10.pdf Recommendation 11/A/2011 Entity addressed: Secretary of State for Health Subject: Update of health fees. Time of collection. «B» Recommendations (Article 20, paragraph 1, indent Date: 15.11.11 b), of the Statute of the Ombudsman) Summary: As new amounts owed by the issuance of cer- tificates of disability and other medical certificates were established by Decree-Law 8/2011, of January 11, the Recommendation 1/B/2011 Ombudsman recommended to the Secretary of State for Entity addressed: Minister of Agriculture, Sea, Environment Health to standardize criteria as to when the collection of and Land Planning fees was due and the issuance of guidelines to ensure that Subject: Forestry. National forests. no doubling of payment occurred. It was also recommended Date: 02.11.11 that the new values should not be charged if a consider- Summary: Pursuant to a complaint against the undue able delay of a procedure previously initiated was due to removal of one part of Monsanto’s Park, around Lisbon, the Administration. in order to build an electrical substation, the Ombudsman Status: Partially accepted. noticed very severe gaps on forestry statutes, mainly those http://www.provedor-jus.pt/restrito/rec_ficheiros/ concerning national forests. In essence, the National For- Rec_11A2011.pdf estry Authority argues that national forests prior to 1901 can be removed without Council of Ministers approval. The 25  Ombudsman recommended that the Government should Summary: The Ombudsman recommended to the Minister improve the Forests’ Code. Actually, there are more than one of Finance the amendment of article 56 of the Statute of hundred statutes and other legal provisions about forests the Order of Chartered Accountants and of article 17, para- and too many public agencies working on this subject under graph 2, of the Code of Conduct for Chartered Accountants, different ministers (Finance, Economy, and Agriculture). expressly stating that the existence of a debt to a previ- Nevertheless, one important act on forest guards’ powers, ous professional does not imply the impossibility of another from 1954, was revoked in 2006. Therefore, national forests Chartered Accountant to provide services, notwithstanding are much more vulnerable. The Ombudsman also recom- the need to undertake every adequate effort towards the mended that there should be specific reasons to support clearance of such debt, with an assessment of each indi- removals from national forests. If the reasons given do not vidual situation. become effective, the land should revert to public domain. Status: Awaiting a reply. Status: Partially accepted. http ://www.provedor-jus.pt/restrito/rec_fichei- http://www.provedor-jus.pt/restrito/rec_ficheiros/ ros/617-10.pdf Rec_1B2011.pdf In relation to the 15 recommendations issued in 2011, 9 Recommendation 2/B/2011 had been accepted by the end of the year. In what refers to Entity addressed: Minister of State and Finance the other 6 recommendations, 3 have not been accepted Subject: Chartered Accountants. Debt to a previous profes- and the other 3 were awaiting a reply – the ones issued at sional. Need to terminate the obligation prior to the assump- the end of the year and in relation to which the deadline of tion of duties by a new Chartered Accountant. sixty days for reply had not yet lapsed. Date: 30.11.2011 26 3.3. Review of the Constitutionality The Portuguese Ombudsman, in accordance with Article limit the right of complaint to the Ombudsman by mili- 281, paragraph 2, indent d), of the Portuguese Constitution tary personnel on active duty, in violation of Article 23, and Article 20, paragraphs 3 and 4, of his Statute, may seize paragraphs 1 and 2, and Article 18, paragraphs 2 and 3, the Constitutional Court to declare the unconstitutionality or of the Constitution; illegality of legal provisions and to assess and verify situa- tions of unconstitutionality by omission. He/she may exer- • Provisions of Regulation 52-A/2005, of August 1, as last cise these competences either pursuant to a complaint or on amended by Resolution 3333-A/2009, of December 16, his/her own initiative. of the Bar Association, concerning its traineeship, for In 2011, 36 complaints were received on such grounds, violation of the organic and formal constitutional rules only three less than in 2010. As in the past few years, none about restrictions to fundamental rights, freedoms and of them related to unconstitutionality by omission. The guarantees. Those provisions prohibit candidates, who ground most often invoked was the violation of the princi- previously failed to pass the due examination, from ple of equality. reapplying for a period of 3 years. Concerning previous initiatives of the Ombudsman, the Constitutional Court delivered three judgments in 2011, two UNCONSTITUTIONALITY 36 of them upholding totally, and the remaining upholding par- tially, the requests made by the Ombudsman: CONFIDENCE 1 3% EQUALITY 13 36% • Judgment 3/2011 declared the unconstitutionality of Article 9, paragraphs 1 and 2 of Regulation 52-A/2005, of ORGANIC AND FORMAL DEFECTS 7 19% August 1, as last amended by Resolution 3333-A/2009, of December 16, of the Bar Association, for violation of OTHER GROUNDS 15 42% Article 165, paragraph 1, indent b) of the Constitution. OMMISSION 0 0,0% At issue was the requirement that holders of a degree in law in the context of the Bologna process pass a special examination for admission to the traineeship. During this year three requests were presented by the Ombudsman to the Constitutional Court, asking for a judi- • Judgment 362/2011 declared the unconstitutionality cial review of the constitutionality and/or legality of: of Article 4, paragraph 2, of Decree-Law 211/2004, of August 20, and in consequence of Article 6, paragraph 4, • Article 69-D, paragraph 1, indents a) to j), of the Stat- indent c), Article 25, paragraph 2, indent b), and Article ute of the Chamber of Solicitors, approved by Decree- 44, paragraph1, indent d), for violating the organic and Law 88/2003, of April 26, as modified by Decree-Law formal constitutional rules about restrictions to funda- 226/2008, of November 20, for violation of Article 199, mental rights, freedoms and guarantees. The provisions indent d) and Article 267, paragraph 4, of the Constitu- at stake prohibited the exercise of other commercial or tion and of Article 5, indent b) of Law 18/2008, of April professional activity by real estate salesmen. 21, in what concerns the creation and composition of the Commission for the Efficiency of Enforcement Pro- • Judgment 612/2011 declared the unconstitutionality of cedures; Article 14, paragraph 1, Article 47, paragraph 2, indent a), and Article 58 of Decree-Law 307/2007, of August • Article 34, paragraph 1, of Organic Law 1-B/2009, of 31, for violation of the principle of prohibition of excess July 7, approving the National Defense Law, and Articles (as set out in Article 2 of the Constitution), in conjunc- 2, 4 and 5 of Law 19/95, of July 13, as these provisions tion with Article 63, paragraph 5, of the Constitution. 27  Those provisions imposed on entities in the social sec- • The exclusion of teachers not actually giving classes, tor who wished to own pharmacies the need to create by virtue of their trade union functions, of the specific companies. provisions that facilitate early retirement of first cycle teachers. It was considered that this possibility is directly associated with the effective exercise of a certain func- In several other situations, such as the ones that follow, tion, offsetting the effective added burden endured. The the Ombudsman chose not to present a request to the Ombudsman also considered that the existing legislative Constitutional Court: provisions were, as whole, appropriate to comply with the guarantees provided to trade union activists under • The obligation of the accused in criminal proceedings Article 55, paragraph 6, of the Constitution. to be represented in his defense by a lawyer. According to the complaint received, the possibility of self-repre- • The alleged breach of the constitutional guarantee of sentation would stem from international law, specifi- University autonomy by the legal regime of higher edu- cally the European Convention on Human Rights and the cation institutions (Law 62/2007, of September 10), for International Covenant on Civil and Political Rights. The example Articles 81 to 95 and 96 to 105 thereof. Con- Ombudsman did not uphold this opinion, on the basis sidering the result of the doctrinal debate that occurred of jurisprudence of the European Court of Human Rights in this respect, the Ombudsman found that much of the and of the Portuguese Constitutional Court. criticism concerned the adequacy of the chosen para- digm. As this dimension did not fall within the Ombuds- • The reduction, between 3.5% and 10%, in the total gross man’s scope of action, he explained that he could not monthly earnings of workers in public functions earning make an assessment on the merits of the options over €1500. Since an initiative of successive abstract taken, which rested within the margin of discretion of review of constitutionality had already been undertaken the legislative powers. by a group of Members of Parliament, a further initiative by the Ombudsman was considered unnecessary. • The solution established in Article 154 of the State Budget for 2010 and later enforced by Article 78 and Annex II • The impossibility for a worker in the public sector to of Decree-Law 72-A/2010, of June 18. According to that make pension payments for more than one simultane- solution, local authorities should transfer directly to the ous occupation and have both of them considered in budget of the National Health Service (NHS) the value of the calculation of the pension amounts. This solution is expenses paid in 2009 to the specific health subsystem coherent with the latest trends in the public pensions of civil servants (ADSE) relating to services provided by system, which the Constitutional Court had already con- NHS establishments. This solution was not considered sidered not to be unconstitutional (Judgments 188/2009 as violating the financial autonomy of local authorities, and 3/2010). as it was a consequence of a sustained change in the financial relations between the NHS and public health • The rules of the Autonomous Region of Madeira subsystems. Until 2009, the public entities with finan- (Regional Legislative Decree 16/2010/M, of August 13) cial autonomy would be required to pay these expenses about drug prescription by International Nonproprietary directly to the NHS. From then on, this payment was Name (INN). The complaint was based on a recent veto made, as a forfait, directly by the ADSE to the NHS. This of a piece of legislation with allegedly similar content, new model of financial relationship between the NHS approved by the Government of the Republic, as well and health subsystems simultaneously demanded that as the alleged violation of the «right to public health» it be withdrawn from local authorities the amount that by failing to control the drug effectively prescribed or previously served to comply with the obligations now taken. It has been clarified that the legislation of the missing, namely the cost of health care expenditure of Autonomous Regions did not depend on the validity of the respective workers. a similar law at national level and that the veto did not have any effects on any other diploma apart from the one actually vetoed. Concerning the substantive argu- ment, since the Ombudsman could not provide scien- tific evidence for the discussion about the merits and demerits of the prescription by INN, it was expressly signaled that the said legislation allowed the physician, providing a brief technical justification, to choose a spe- cific brand of drug. 28 3.4. Cases and Inspections of the Ombudsman’s Own Initiative In 2012, 16 cases were opened on the initiative of the Subject: Taxation. Personal Income Tax (IRS). Irreversibility Ombudsman, one of which related to an inspection. of the options taken by IRS taxpayers regarding the com- position of the household. The special situation of depend- P-1/11 ents that can be integrated in the household of parents or Entity addressed: Santo Espírito Hospital of Angra do autonomously taxed. Heroísmo Summary: This ex officio case was opened with the objec- Subject: Support to users of the Hospital affected by serious tive of leading tax administration to change its understand- or painful events that occurred as a result of medical care at ing with respect to the irreversibility of the options taken by the healthcare facility. IRS taxpayers regarding the composition of the household. Summary: This ex officio case was opened following news Through an administrative order, the then called Directorate- that, during a routine visit, a 28 weeks pregnant woman General for Contributions and Taxes (DGCI) issued instruc- was told the foetus was dead and sent home to wait for tions to the services stating that all the options of taxpayers delivery, without any psychological support. The hospital are reversible by filing an administrative complaint against commented that this was a routine procedure. the subsequent tax assessment. However, the following Back in 2003, the Ombudsman had opened a case against exceptions to the rule of the reversibility of options are the same addressed entity. A similar situation was then han- contained in the administrative order: (1) options taken by dled and, at the conclusion of the case, the Hospital had those who, while still meeting requirements to be consid- decided to create a multidisciplinary healthcare team, com- ered dependent, may opt to be autonomously taxed and (2) posed of a psychiatrist, a psychologist and a senior social options taken by those who, being married, are «de facto» service technician, in order to support patients and their separated and who may therefore submit a tax return sepa- families when affected by serious and painful events. The rate from the other spouse’s. news mentioned above seemed to indicate that the com- Because the referred administrative order distinguishes mitment had not been kept. where the legislator does not distinguish, efforts were Now, in the course of these new investigations, the Hospi- started aimed at its revocation. Despite signs of openness tal’s Board of Directors affirmed that the Hospital had a team on the part of the then-called DGCI to a change of position in of psychiatrists available 24/7, as well as senior psychologi- a direction consistent with the position of the Ombudsman, cal technicians and senior social service technicians, who, it makes such change of position dependent on a legislative under the coordination of the Psychiatry Service, supported change, which, however, has been delayed. the users affected by serious and painful events. Status: At the end of 2011 efforts were underway with the From this clarification it follows, on the one hand, that the Secretary of State for Fiscal Affairs to accelerate the resolution Hospital has a team of psychiatrists that resorts to other of this issue, even if it means resorting to a legislative route. technical areas in specific situations, and, on the other hand, that such support was not triggered in this case. P-03/11 The Ombudsman’s suggestion was that a multidisciplinary Entity addressed: Regional Secretariat for Social Affairs of healthcare team be created and its action triggered when- the Autonomous Region of Madeira ever deemed necessary, rather than only at the patients’ Subject: Study on poverty in the Autonomous Region of request. Madeira. Status: Closed; a critical remark was addressed to the Hos- Summary: The case was opened ex officio following a sub- pital Board. mission filed by the Parliamentary Group of the Socialist Party of the Regional Legislative Assembly regarding the P-2/11 implementation of the Regional Plan of Action for Inclusion Entity addressed: Ministry of Finance. Secretary of State for in the Autonomous Region of Madeira [PRAI-RAM 2003]. In Fiscal Affairs. particular, it questioned the omission to conduct a study on 29  «Social exclusion in the Autonomous Region of Madeira», porary titles valid for six months were issued to replace under the responsibility of the Social Security Centre of the driving license of all those who requested to under- Madeira (CSSM) as foreseen in the plan for the three-year take that exam, so that they would not be prevented period of 2003-2005. After asking the Regional Secretariat from driving to the place of the exam; for Social Affairs for a clarification, the Ombudsman was c) IMTT’s regional services, private centres for driving informed that the CSSM has no technical and human means tests, Citizen Shops and citizen service centres would for studies of this kind and therefore uses partnerships with be provided with panels warning to the validity periods private multidisciplinary entities for this purpose. In this of driving titles and dates of the revalidation; case such partnerships have not been implemented, mak- d) A table was included in the IMTT’s website with the ing it impossible to carry out the study. Furthermore the dates of birth of the drivers and the corresponding Regional Secretariat noted that the study in question would dates on which they should proceed with the renewal necessarily be incomplete, as social policies and its measur- of their licences, to better inform the interested citizens. ing indicators do not correspond only to the data obtained Status: Closed. by the social security services, leaving out other dimensions of people’s life (education, health, employment, profes- P-05/11 sional training, culture, consumption, trade, etc.). Entity addressed: Parliament Status: Closed. Subject: Criminal procedure rules regarding the control of the interception of communications involving high-level P-04/11 political officials. Entity addressed: Institute for Mobility and Transportation Summary: After filing a complaint about the current legal (IMTT) regime concerning the control of the interception of com- Subject: Validity of driving licenses. munications involving high-level political officials (Head of Summary: Following reports disseminated by mass media State, President of the Parliament and Prime-Minister) the and dozens of complaints from citizens, the Ombudsman Ombudsman decided to conduct a study of comparative law opened a case concerning the entry into force of the regime solutions in Spain, France and Italy. No ground for a recom- of Decree-Law 45/2005, of February 23, as amended by mendation towards a legislative change has been found. Decree-Law 103/2005, of June 24, which set a new period Status: Closed. of validity for driving licenses, different from those appear- ing on the licenses that each driver was carrying. P-06/11 Despite the impossibility to argue ignorance of the law, the Entity addressed: Minister of Solidarity and Social Security Ombudsman did not fail to recognize that the subject took and Health Minister on particular gravity and large impact on the social level, Subject: Assessment of incapacity of persons with disabili- because the people involved were carrying licenses with ties. Decree-Law 202/96, of October 23. Inadequacy of the a different expiration date from that determined by new National Table of Disabilities for accidents at work and occu- regime. pational diseases (TNI) to assess citizens with disabilities. Also, the consequence of non-revalidation of the license was Summary: The case was opened ex officio to study the sys- very serious: it led to its expiry, which resulted also in the pos- tem for evaluating disabilities of persons with disabilities, in sible criminal liability of drivers, since the holders of a driving particular the implementation of the TNI for calculating and license expired for lack of revalidation are deemed equiva- fixing the degree of devaluation. The legal regime (Decree- lent, for all legal purposes, to those not entitled to drive. Law 202/96, of October 23) determines that the said evalu- Furthermore, some drivers had been notified of the amend- ation must use the TNI with observance of some special ments and the consequent need for revalidation of the rules. However, from the preamble clearly results that such license before the deadline fixed by it, while others had rules were created transitorily to meet the lack of a specific never been contacted by IMTT. table that should be established for this purpose. The IMTT stated, in summary, that measures were taken in Despite the legislative changes that have occurred in the order to overcome the impediment to drive and thus mini- meantime, both with regard to TNI (Decree-Law 352/2007, mize the inconvenience to all who find themselves in that of October 23, which, although aiming to fix the incorrect situation, including: application of the TNI «as reference table in other areas of a) In relation to drivers whose titles were expired for law in which the disability assessment may be raised, to more than two years, and who should undergo a spe- remedy the absence of specific regulations directly appli- cial exam at the IMTT, it was provisionally authorized cable», in fact, in addition to approving a new TNI, only that they undertook such exam in private centres and created another table targeted for damage compensation on a self-registration basis; under civil law) and to Decree-Law 202/96, of October 23 b) On the decision of the IMTT’s Board of Directors, tem- (with the approval of Decree-Law 291/2009, of October 12, 30 which only adapted evaluation procedures to the new TNI), d) In the case of the Portuguese Public Security Police and the legal framework has remained the same. National Republican Guard, the compliance by agents In light of the study that he carried out, the Ombudsman and military with legal requirements provided for spe- concluded that the TNI, as a table specifically designed to cific procedures, such as the submission of complaints, assess disabilities resulting from accidents at work and occu- the arrest of citizens, the submission of complaints con- pational diseases, is not the appropriate instrument for the cerning domestic violence and the interventions under assessment of people with disabilities. Hence it was sug- the Law on the Protection of Children and Young Peo- gested to the Minister of Social Security and Solidarity and ple in Danger, issues relating to the elderly population the Minister of Health, in conjunction, the adoption of spe- and the Mental Health Act. cific rules to overcome these constraints by creating another Status: The inspection was completed in 2011, but the table that allows the correct evaluation in relation to per- wording of the respective reports moved for the following sons with disability, without having to resort to a table that year. was meant for another purpose. Status: Pending. Awaiting an answer from Minister of Soli- P-10/11 darity and Social Security. The Health Minister informed that Entity addressed: General-Directorate for Treasury and has asked an opinion to the Directorate-General for Health. Finance Subject: Land. Buildings. Unknown owners. P-7/11 Summary: Many urban regeneration operations and many Entity addressed: State Secretary for Public Administration forest clean-ups are not being carried out by the land owner. Subject: Admission to recruitment procedures. Often there are dozens of heirs who are not willing to enter Summary: This ex officio case was opened to investigate into an agreement with each other. Under the Portuguese and clarify the legal regime applicable to the military, law, it is assumed that the Government is the owner of namely the possibility to apply for an internal recruitment the buildings without known owner. As only a very limited procedure when they only had a work contract. number of cases were identified in which the Administration Status: At the investigation phase. resorted to that legal provision, the Ombudsman is looking into why this legal procedure is not being further used. P-8/11 Status: In the investigation phase. Entity addressed: Minister for Economy and Employment Subject: Safety. Children playgrounds. European law. P-11/11 Summary: The Portuguese law on children playgrounds Entity addressed: Lisbon District Centre of the Institute of contains more demanding specifications than those that Social Security, IP (ISS) would result from the implementation of European law. Subject: Social Security debts. Delay in processing com- Many of the requirements do not correspond to increas- plaints of contributors. ing levels of security. The new Portuguese law led to the Summary: The case was opened ex officio due to the high closure of many playgrounds. Schools and other institutions number of complaints about delays of the Lisbon District lack the resources to comply with the conditions imposed. Centre of the ISS in processing complaints submitted by tax- The Government accepted the need to amend the existing payers in the context of proceedings for enforcing payment. legislation. The questions raised concern significant mismatches in the Status: Waiting for the new legislation. current accounts of some companies, who were charged with debts, in some cases, totally or partially non-existent P-09/11 (some had been paid, other found undue). The delay in Entity addressed: Portuguese Public Security Police, the review of the respective current accounts implied rel- National Republican Guard and Criminal Police evant losses for businesses that were wrongly confronted Subject: Inspection to the places of detention of citizens of with outstanding accounts, which, inter alia, is a barrier to the responsibility of the Criminal Police, the Public Security enter in tenders for new works. The significant increase Police and National Republican Guard. in such complaints, in the years 2010 and 2011, led the Summary: The Ombudsman decided to carry out inspection Ombudsman to determine a visit to the Contributions Unit visits to places of detention of citizens in order to assess, and to the Identification and Qualification Unit of the District particularly: Centre and to meet with the leaders of that entity, in Octo- a) The physical conditions (location, accessibility, safety ber 2011, with a view to identifying reasons behind such and service); delays and the suggestions of possible solutions for resolv- b) The working conditions of staff, military and other ing the high backlogs in record. personnel; Following this visit, a meeting was held with the Board of c) The conditions of detention of citizens; Directors of the ISS in December 2011, aiming to convey 31  the Ombudsman’s concerns in respect of this situation so the existing system of positive discrimination in the former harmful for taxpayers, some with outstanding attachments SCUT. The system design itself has been challenged on a and unable to pursue the respective activities, in particular number of complaints received during 2011. Thus, in open- because they cannot access tenders for realization of new ing this case, the intention was to deepen the knowledge projects. of the system and assess the need for intervention of the The Board of Director of the ISS recognized the existence of Ombudsman towards a fine-tuned system and/or improv- the problem and, accordingly, ordered an internal audit to ing the interpretation and practical application that is being the District Centre of Lisbon. made. Status: Pending. The audit has already been completed and Status: At the beginning of 2012, request for information the Office of Audit and Quality of the ISS already prepared was directed to the Secretary of State for Public Works, the respective final report and the file is awaiting submis- Transport and Communications. sion of the aforementioned report and decisions of the Board of Directors of the ISS. P-15/11 Entity addressed: Parliament P-12/11 Subject: Proposal for a Code of Good Administrative Entity addressed: Minister of Education Behaviour. Subject: Quota system of public employment for people Summary: In the framework of this initiative, the Ombudsman with disabilities. reiterated to Parliament a proposal to adopt, by an instru- Summary: This ex officio case was opened to clarify the ment deemed adequate, a Code of Good Administrative implementation of Decree-law 29/2011, of February 3, Behaviour. The proposal now made restates, with minor which establishes a quota system of public employment for changes, the initiative previously addressed to the previous people with disabilities in national competition for teachers Legislature, in 2010. to be hired temporarily. The general rule of preference of Status: Closed. Recommendation issued to the President of the candidate with a disability is not being applied when the Parliament on the 19th February 2012. the number of vacancies is less than three. In these situa- tions, the application of the preference in favour of candi- P-16/11 dates with disabilities should result in the derogation of the Entity addressed: Parliament general rules on tiebreakers, contained in the scheme of the Subject: Amendment to the Statue of the Ombudsman. competition for teachers. Summary: The Ombudsman recommended to Parliament Status: Awaiting reply. some amendments to his Statue in order to recognize his activity in the field of international relations, within the P-13/11 European Union, United Nations and Council of Europe Entity addressed: Ministry of Foreign Affairs and his quality of National Humans Rights Institution. The Subject: Closure of Portuguese consular services in the Prin- amendments were also necessary due to the reorganization cipality of Andorra. of public administration and the internal reorganization of Summary: This initiative was a result of a communication by the Ombudsman’s Office. the Raonador del Ciutadà, the Ombudsman of the Principal- Status: Closed. Recommendation issued to the President of ity of Andorra, transmitting the terms of a protest signed the Parliament on the 28th February 2012. by members of the Portuguese community in that country, against the announced closure of the Portuguese consular services. Status: At the investigation phase. P-14/11 Entity addressed: Secretary of State for Public Works, Trans- port and Communications. Subject: Consumer. Communication routes. Tolls. Former routes without cost to the user (SCUT). System of positive discrimination. Exemptions and reductions in the payment of tolls. Summary: This ex officio case was opened in mid-Decem- ber 2011, after the Ombudsman became aware, through the investigation in several other cases, of various situations of difficulties, doubts and alleged irregularities in applying 32 3.5. International Relations The international activity of the Portuguese Ombudsman • The Ombudsman’s intervention on the International fundamentally derives from two roles this institution plays Human Rights Congress, held in Madrid, promoted by simultaneously: that of Ombudsman, pursuant to the Swed- the Iberoamerican Federation of Ombudsmen, and ish institutional model created at the outset of the XIX organized by the University of Alcalá, on 2nd and 3rd century; and that of National Human Rights Institution, June, on the topics «Organization and Competences fully compliant with the guidelines affirmed by the United of the Ombudsmen» and «Future Challenges of the Nations in the so-called «Paris Principles». Ombudsmen». In this domain, despite the effort of budget limitation required by the adverse economic situation face by the Also to be noted are the efforts made to strengthen the country, 2011 was a year marked by continuity and deepen- Ombudsman’s interaction with the international human ing, with a consolidation of the work done on the thematic rights system, in the exercise of rights deriving from his role priorities chosen by the current Ombudsman at the begin- as A-status National Human Rights Institution, through the ning of his mandate. participation in different examinations, consultations and As regards bilateral cooperation with counterpart insti- meetings promoted in the framework of the United Nations, tutions, work visits were carried out to the Defensora del Council of Europe, Organisation for Security and Cooperation Pueblo of Spain and the Síndic de Greuges of Catalonia. in Europe and the European Union. Visits were received from the European Ombudsman, the To that effect, for example, contributions were sent to a Ombudsman of Thailand, the Ombudsman of Angola, a del- United Nations questionnaire on the role of prevention in egation of the Protector of Citizens (Ombudsman) of Serbia the promotion and protection of human rights; a question- and a delegation of the Ministry of Supervision of China. naire on reproductive rights, developed by the Danish Insti- At the multilateral level, participation was ensured in tute of Human Rights at the request of the United Nations annual meetings and other events promoted by the Euro- Population Fund; a study of the United Nations on children pean Network of Ombudsmen, the Iberoamerican Fed- working and/or living on the street; a global progress analy- eration of Ombudsmen, the Association of Mediterranean sis on the subject of violence against children, promoted by Ombudsmen, the European Network of Ombudspersons the Special Representative of the United Nations Secretary- for Children and the International Coordinating Committee General on Violence Against Children; and a United Nations of National Institutions for the Promotion and Protection of questionnaire to prepare an analytical study on violence Human Rights. against women and girls and disability. The Ombudsman also transmitted information to the competent national authorities in the framework of the Highlight should be given to: preparation of the first national implementation report on the Convention on the Rights of Persons with Disabilities and • The Ombudsman’s intervention at the 8th Meeting of the midterm report on the Universal Periodic Review. the European Network of Ombudsmen, on 22nd Octo- In addition, visits were received from delegations of the ber, regarding «The Relations between Ombudsmen and United Nations Working Group of Experts on People of Afri- SOLVIT»; can Descent and the Congress of Local and Regional Authori- ties of the Council of Europe. In the context of these visits, • The Ombudsman’s intervention on the 5th Meeting of the the Portuguese Ombudsman shared his experience in the Association of Mediterranean Ombudsmen, in Malta, on areas covered by each entity, giving note of his perspective 30th and 31st May, concerning «The importance of Good on the main successes and challenged faced in our country Administrative Behaviour Codes and Quality Charters for in relation to each area. Public Administration in the context of Good Govern- Also to be highlighted is the Ombudsman’s intervention, at ance»; the invitation of the Médiateur of Morocco, in a round table 33  organised on the margins of the 18th session of the Human In fact, throughout 2011 this goal remained one of partic- Rights Council, on 26th September, about the implementation ular priority to the Portuguese Ombudsman, who continued of United Nations Resolution 65/207. There, the Ombudsman to strive, at the internal and external levels, for its imple- pointed out the efforts carried out to promote the appoint- mentation. ment or creation of Ombudsmen in countries of the Commu- The table below provides summarised information on the nity of Portuguese Speaking-Countries in which this institution international events that took place in 2011 and in which is still not implemented or established in legislation. the Portuguese Ombudsman was present or represented: Event Location and Date Participant(s) Workshop on follow-up to the Universal Periodic Review, organized by Brussels, Belgium Ms. Mariana Sotto Maior, Head of the United Nations Office of the High Commissioner for Human Rights 28-29.03.2011 Cabinet to the Ombudsman Workshop on the role of National Human Rights Institutions in the Promotion and Protection of the Rights of Women and Gender Equality, Prague, Czech Republic Ms. Maria José Castello-Branco, organised by the Organization for Security and Cooperation in Europe 29.03.2011 Adviser to the Ombudsman (OSCE) 4th Annual Meeting of the Agency of Fundamental Rights of the Vienna, Austria Ms. Adriana Barreiros, Adviser to the European Union with National Human Rights Institutions 05.04.2011 Ombudsman 3rd Thematic Workshop of the Peer-to-Peer II Project, jointly organised by the European Union and the Council of Europe, on the role of Tallinn, Estonia Ms. Helena Vera-Cruz Pinto, Deputy National Human Rights Structures in the Protection and Promotion of 06-07.04.2011 Ombudsperson the Rights of Children in Care International Conference «The Concept of further deepening of Tashkent, Uzbekistan Ms. Mariana Sotto Maior, Head of democratic reforms and formation of civil society in Uzbekistan» 22-23.04.2011 Cabinet to the Ombudsman 24th Annual Meeting of the International Coordinating Committee of Geneva, Switzerland Ms. Mariana Sotto Mayor, Head of National Institutions for the Promotion and Protection of Human Rights 17-19.05.2011 Cabinet to the Ombudsman Mr. Alfredo José de Sousa, St. Julian’s, Malta Portuguese Ombudsman, and Ms. 5th Meeting of the Association of Mediterranean Ombudsmen 30-31.05.2011 Mariana Sotto Maior, Head of Cabinet to the Ombudsman International Congress «The Protection of Human Rights by the Mr. Alfredo José de Sousa, Madrid, Spain Defensorias del Pueblo», organized by the Iberoamerican Federation Portuguese Ombudsman 02-03.06.2011 of Ombudsmen Meeting of the Statutes and Standards Working Group of the European Brussels, Belgium Ms. Adriana Barreiros, Adviser to the Network of Ombudspersons for Children 07.06.2011 Ombudsman 15th Annual Conference and General Assembly of the European Ms. Helena Vera-Cruz Pinto, Deputy Warsaw, Poland Network of Ombudspersons for Children, on the topic «The respect of Ombudsperson, and Ms. Adriana 14-16.09.2011 the rights of children and young people in institutional care» Barreiros, Adviser to the Ombudsman Round Table with National Human Rights Structures of the Member Madrid, Spain Ms. Mariana Sotto Maior, Head of States of the Council of Europe, organised jointly by the Council of 21-22.09.2011 Cabinet to the Ombudsman Europe and the Defensora del Pueblo of Spain Work visit with the Head of Cabinet to the Defensora del Pueblo of Madrid, Spain Ms. Mariana Sotto Maior, Head of Spain 23.09.2011 Cabinet to the Ombudsman Conference «The Council of Europe’s Social Charter 50 years on: What next?», organised jointly by the French Economic, Social Paris, France Mr. Alfredo José de Sousa, and Environmental Council and the European Economic and Social 23.09.2011 Portuguese Ombudsman Committee Round Table on the margins of the 18th session of the Human Rights Geneva, Switzerland Mr. Alfredo José de Sousa, Council, organised by the Médiateur of Morocco 26.09.2011 Portuguese Ombudsman Mr. Alfredo José de Sousa, Barcelona, Spain Portuguese Ombudsman, and Ms. Work visit to the Síndic de Greuges of Catalonia 01-04.10.2011 Helena Vera-Cruz Pinto, Deputy Ombudsperson Seminar on the Application of the Charter of Fundamental Rights: Handling of Citizens’ Petitions and Complaints on Fundamental Rights, Brussels, Belgium Ms. Mariana Sotto Maior, Head of organized jointly by the European Parliament and the European 06.10.2011 Cabinet to the Ombudsman Commission 34  Event Location and Date Participant(s) Meeting on «How can we build ever better cooperation in Vienna, Austria Ms. Mariana Sotto Maior, Head of communication between FRA, NHRIs and National Equality Bodies?», 12-14.10.2011 Cabinet to the Ombudsman organised by the Agency of Fundamental Rights of the European Union Copenhagen , Denmark Mr. Alfredo José de Sousa, 8th Seminar of the European Network of Ombudsmen 20-22.10.2011 Portuguese Ombudsman Seminar «The defence of rights and good practices in private Barcelona, Spain management of public services: The role of the Ombudsman», Ms. Catarina Ventura, Legal Adviser 21-22.10.2011 organised by the International Ombudsmen Institute 11th Informal Asia-Europe Meeting (ASEM) Seminar on Human Rights, Prague, Czech Republic Ms. Mariana Sotto Maior, Head of dedicated to the topic of «National and Regional Human Rights 23-24.11.2011 Cabinet to the Ombudsman Mechanisms» 6th European Forum on the Rights of the Child, organised by the Brussels, Belgium Ms. Teresa Cadavez, Member of the European Commission 23.11.2011 Ombudsman’s Cabinet 16th Congress and General Assembly of the Iberoamerican Federation Buenos Aires, Argentina Mr. Jorge Silveira, Deputy of Ombudsmen 23-25.11.2011 Ombudsman 5th Annual Meeting of Contact Persons of National Human Rights Ljubljana, Slovenia Ms. Mariana Sotto Maior, Head of Structures, jointly organised by the European Union and the Council of 07.12.2011 Cabinet to the Ombudsman Europe, in the framework of the Peer-to-Peer II Project Brief information is also gathered on the visits of foreign entities received by the Portuguese Ombudsman and/or by members of his staff on his behalf: Entity Date Delegation of the Ombudsman of Thailand, headed by the Chief Ombudsman, Mr. Pramote 02.05.2011 Chotimongkol Working Group of Experts on People of African Descent 18.05.2011 Ombudsman of Angola, Mr. Paulo Tjipilica 01.08.2011 Delegation of the Protector of Citizens (Ombudsman) of Serbia, headed by the Assistant 20.21.10. 2011 Secretary-General, Mr. Robert Sepi Delegation of the Ministry of Supervision of China, headed by the Commissioner for 02.11.2011 Supervision, at the level of Minister, Mr. Li Yufu Delegation of the Congress of Local and Regional Authorities of the Council of Europe 08.11.2011 European Ombudsman, Mr. Nikiforos Diamandouros 28.11.2011 Defensor del Pueblo of Andalusia, Mr. José Chamizo De La Rubia 07.12.2011 35  3. 6. The Ombudsman as National Human Rights Institution What are National Human Rights Institutions The human rights dimension is expressed in several aspects of this institution, starting with its mandate, which The concept of National Human Rights Institution desig- is broadly defined, covering the promotion and protection nates a multitude of administrative institutions (i.e., non- of fundamental rights and not only administrative justice. judicial nor parliamentary) aimed at the promotion and pro- Thematically, this dimension is particularly evident in cer- tection of human rights. By and large, we can speak of two tain areas of activity, such as the penitentiary system and types of institutions: Commissions and Institutes of Human the rights of inmates, the rights of foreigners and migrants Rights and Ombudsmen. and also the rights of children, elderly persons and persons In 1993, with Resolution 48/134, of 20th December, the with disabilities. United Nations General Assembly adopted a set of principles In such areas, the most essential rights often come into concerning the status of these institutions, defining aspects play, those most strictly connected to the principle of human of their composition, mandate and methods of operation dignity and which appear widely established in international and guarantees of impartiality and pluralism. They became instruments such as United Nations and Council of Europe known as the «Paris Principles» and are nowadays consid- Conventions. ered the minimum standard to be respected by all National Let’s look, for example, at the Ombudsman’s recom- Human Rights Institutions, in terms of their full independ- mendations that in 2010 and 2011 were taken on board ence and effectiveness of their action. by the new Code on Enforcement of Sentences and Meas- Also in 1993 the International Coordinating Committee ures involving Deprivation of Liberty and the new General of National Institutions for the Promotion and Protection Regulation on Prisons. Their impact clearly went beyond a of Human Rights (ICC) was created. Its main mission is to merely administrative level, contributing in a horizontal way assess these Institutions’ compliance with those principles, to reinforce the guarantees of inmates. through a process of accreditation and re-accreditation that Similarly, the intervention of the Ombudsman in a case may result in three classifications: A (fully compliant), B (not referring to the use of a Taser weapon not only promoted fully in compliance) and C (not compliant). due investigations by the competent authorities, but also The international community recognizes to National contributed to prevent similar future incidents, contributing Human Rights Institutions with A-status accreditation a key to combating practices that could be considered as torture role in the implementation of national systems of protection or cruel, inhuman or degrading treatment or punishment. and promotion of human rights. Additionally, in a case concerning a delay to schedule vis- Like the Ombudsmen, they are also considered key part- its accompanied by a Social Security team, between a child ners by international human rights entities. and father, pursuant to a divorce, the intervention of the This importance is especially evident at the United Ombudsman was able to overcome administrative obstacles Nations, which has granted them a set of participation rights that stood in the way of a full implementation of the child’s in some fora, especially in the Human Rights Council, such right to maintain contact with both parents. as submitting documents, attending meetings and making In another situation, regarding the lack of a Disabilities autonomous oral interventions. Table adequate to assess the degree of disability of non- professional origin, the Ombudsman’s suggestion will allow to put an end to the omission, ensuring the effective access The Portuguese National Human Rights Institution by citizens with disabilities to the corresponding social and tax benefits, in line with the right to an adequate standard Since 1999, the Portuguese Ombudsman is accredited as of living and to social protection. A-status Portuguese National Human Rights Institution, in Likewise, by defending that the family income to be con- full compliance with the Paris Principles. sidered when fixing the level of family benefit should be 36 the one effectively received on the date of the request, the ent international human rights entities, as well as shared Ombudsman aimed to ensure access to such a benefit by experiences and points of view with the delegations of the children and young people of families in need, defending, in United Nations Working Group of Experts on People of Afri- that way, their right to an adequate standard of living and to can Descent and the Congress of Local and Regional Authori- benefit from social security. ties of the Council of Europe, in the framework of the visits Also to be stressed are the interventions of the Ombudsman that they carried out to our country. in the context of his powers of inspection. In 2011, on his In addition, the Ombudsman continued to promote, own initiative, this State body initiated a set of inspection before the Portuguese authorities, the swift ratification visits to the detention areas of the Public Security Police, and implementation of the Optional Protocol to the United the National Republican Guard and the Judiciary Police. Nations Convention against Torture and Other Cruel, Inhu- These will allow him, among other aspects, to contribute man or Degrading Treatment or Punishment, confirming, to a deeper level of respect for the fundamental rights of on different occasions, his entire availability to take on the citizens who are subject to detention or who resort to these functions of the National Preventive Mechanism envisaged authorities, preventing situations of excessive use of force therein, in view of the competences that he already has and or of disregard for legally established proceedings. Also in the sustained work that he has developed over the years as that year, the Ombudsman continued the inspections to the regards the penitentiary system and the rights of inmates. National Institute of Legal Medicine and Forensic Sciences, to Simultaneously, the Ombudsman manifested his availa- employment centers and to the homes for elderly persons, bility to, together with other entities, integrate the structure all initiated in 2010, the first with reflections on the right to for the promotion, protection and monitoring of the United a fair trial, the second contributing to implement the right Nations Convention on the Rights of Persons with Disabili- to work and to an adequate standard of living and the lat- ties, the creation of which this instrument foresees. ter aimed at protecting, in various ways, the rights of that In the chapter concerning International Relations a more especially vulnerable group of citizens. complete and detailed account is given of the different inter- The Ombudsman’s competence as regards dissemination national events and initiatives in which the Ombudsman of information and human rights education are also not participated or ensured representation, in his capacity as unrelated to his role as National Human Rights Institution. Portuguese National Human Rights Institution. In this context, we would highlight, in 2011, the cel- At national level, the role of the Ombudsman as Portu- ebration of Protocols of collaboration with the Ministry of guese National Human Rights Institution fully compliant Education and the Law School of the University of Lisbon, with the Paris Principles allowed him to participle, according under which several initiates are envisaged to promote the to the subjects under discussion, in the work of the National study and reflection on human rights issues, and to dissemi- Commission for Human Rights. The Ombudsman ensured nate information, amongst the general public, namely the representation in its meetings, including those open to civil younger generations, on the content and meaning of human society, and transmitted relevant information in the frame- rights, as well as the existence of the Ombudsman as an work of the preparation of the first national implementation institution dedicated to their defense. report on the Convention on the Rights of Persons with Dis- The human rights dimension is also reflected on the way abilities and the midterm report on the Universal Periodic in which the powers of the Ombudsman are defined, with Review. the inclusion of the power to issue recommendations – par- Aware of the importance of his functions as National ticularly legislative recommendation – and the power to Human Rights Institutions, but also of some lack of aware- request the intervention of the Constitutional Court. ness that still exists in Portugal in relation to them, the These two prerogatives, in particular, combined with the Ombudsman has sought, whenever possible, to disseminate ability to act on its own initiative, allow this institution to information on this role amongst public entities and civil contribute to the greatest possible alignment of Portuguese society. In this context, in 2011 he developed a set of pro- legislation and practice with international law on human posals to amend the Statute of the Ombudsman, which he rights, as well as with the recommendations issued by the would present already in 2012 in a recommendation to the international bodies monitoring the respect for these rights. Parliament. The proposals included, among others, amend- Conversely, the knowledge and experience gained by ments aimed at explicitly establishing the National Human the Ombudsman in carrying out his functions allow him Rights Institution role, thus contributing to a greater aware- to provide to the international entities an impartial and ness thereof. detailed perspective on the human rights situation in Por- The relevance of the role played by National Human Rights tugal, thus enabling them to carry out their duties in a Institutions fully compliant with the Paris Principles has also more informed way. been affirmed by the Ombudsman at the international In this context, in 2011 this State body contributed to level. In this context, in 2011 the Ombudsman continued several consultations and questionnaires launched by differ- to develop efforts and contacts with a view to promoting 37  the creation and effective appointment of Ombudsman in Principles relating to the Status of National all the countries of the Community of Portuguese-Speaking Institutions (The Paris Principles)1 Countries, so as to promote cooperation between counter- parts in the Portuguese-speaking space and to foster their Adopted by General Assembly resolution 48/134 of 20 participation in other international fora, contributing to the December 1993 realization of the goals of Resolution 65/207 of the United Nations General Assembly, which encourages the crea- tion of Ombudsman, Mediators and other National Human Competence and responsibilities Rights Institutions compliant with the Paris Principles in the States where they do not exist. Among other initiates, the 1. A national institution shall be vested with competence Ombudsman participated in a round table organized on 26th to promote and protect human rights. September, on the margins of the 18th session of the Human Rights Council, concerning actions regarding the implemen- 2. A national institution shall be given as broad a man- tation of that Resolution. In 2012, he proposes to organ- date as possible, which shall be clearly set forth in a ize, in collaboration with the United Nations High Commis- constitutional or legislative text, specifying its compo- sioner for Human Rights, a seminar on the establishment of sition and its sphere of competence. National Human Rights Institutions in conformity with the Paris Principles with representatives of the 8 Portuguese- 3. A national institution shall, inter alia, have the follow- Speaking countries. ing responsibilities: (a) To submit to the Government, Parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institu- tion may decide to publicize them; these opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas: (i) A ny legislative or administrative provisions, as well as provisions relating to judicial organizations, intended to preserve and extend the protection of human rights; in that connection, the national institution shall examine the legislation and admin- istrative provisions in force, as well as bills and pro- posals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures; (ii) Any situation of violation of human rights which it decides to take up; (iii) The preparation of reports on the national situa- tion with regard to human rights in general, and on more specific matters; (iv) Drawing the attention of the Government to situ- ations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, 1 http://www2.ohchr.org/english/law/parisprinciples.htm 38  where necessary, expressing an opinion on the 2. The national institution shall have an infrastructure positions and reactions of the Government; which is suited to the smooth conduct of its activities, (b) To promote and ensure the harmonization of national in particular adequate funding. The purpose of this legislation, regulations and practices with the interna- funding should be to enable it to have its own staff tional human rights instruments to which the State is and premises, in order to be independent of the Gov- a party, and their effective implementation; ernment and not be subject to financial control which (c) To encourage ratification of the above-mentioned might affect its independence. instruments or accession to those instruments, and to ensure their implementation; 3. In order to ensure a stable mandate for the members (d) To contribute to the reports which States are required of the national institution, without which there can to submit to United Nations bodies and committees, be no real independence, their appointment shall be and to regional institutions, pursuant to their treaty effected by an official act which shall establish the spe- obligations and, where necessary, to express an opin- cific duration of the mandate. This mandate may be ion on the subject, with due respect for their inde- renewable, provided that the pluralism of the institu- pendence; tion’s membership is ensured. (e) To cooperate with the United Nations and any other organization in the United Nations system, the regional institutions and the national institutions of Methods of operation other countries that are competent in the areas of the protection and promotion of human rights; Within the framework of its operation, the national insti- (f) To assist in the formulation of programmes for the tution shall: teaching of, and research into, human rights and to (a) Freely consider any questions falling within its com- take part in their execution in schools, universities and petence, whether they are submitted by the Govern- professional circles; ment or taken up by it without referral to a higher (g) To publicize human rights and efforts to combat all authority, on the proposal of its members or of any forms of discrimination, in particular racial discrimi- petitioner, nation, by increasing public awareness, especially (b) Hear any person and obtain any information and any through information and education and by making documents necessary for assessing situations falling use of all press organs. within its competence; (c) Address public opinion directly or through any press organ, particularly in order to publicize its opinions Composition and guarantees of independence and plu- and recommendations; ralism (d) Meet on a regular basis and whenever necessary in the presence of all its members after they have been 1. The composition of the national institution and the duly concerned; appointment of its members, whether by means of an elec- (e) Establish working groups from among its members tion or otherwise, shall be established in accordance with a as necessary, and set up local or regional sections to procedure which affords all necessary guarantees to ensure assist it in discharging its functions; the pluralist representation of the social forces (of civilian (f) Maintain consultation with the other bodies, whether society) involved in the protection and promotion of human jurisdictional or otherwise, responsible for the pro- rights, particularly by powers which will enable effective motion and protection of human rights (in particular, cooperation to be established with, or through the presence ombudsmen, mediators and similar institutions); of, representatives of: (g) In view of the fundamental role played by the non- (a) Non-governmental organizations responsible for governmental organizations in expanding the work of human rights and efforts to combat racial discrimina- the national institutions, develop relations with the tion, trade unions, concerned social and professional non-governmental organizations devoted to promot- organizations, for example, associations of lawyers, ing and protecting human rights, to economic and doctors, journalists and eminent scientists; social development, to combating racism, to protect- (b) Trends in philosophical or religious thought; ing particularly vulnerable groups (especially children, (c) Universities and qualified experts; migrant workers, refugees, physically and mentally (d) Parliament; disabled persons) or to specialized areas. (e) Government departments (if these are included, their representatives should participate in the deliberations only in an advisory capacity). 39  Additional principles concerning the status of commis- sions with quasi-jurisdictional competence A national institution may be authorized to hear and con- sider complaints and petitions concerning individual situa- tions. Cases may be brought before it by individuals, their representatives, third parties, non-governmental organiza- tions, associations of trade unions or any other representa- tive organizations. In such circumstances, and without prej- udice to the principles stated above concerning the other powers of the commissions, the functions entrusted to them may be based on the following principles: (a) Seeking an amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions or, where necessary, on the basis of confidentiality; (b) Informing the party who filed the petition of his rights, in particular the remedies available to him, and promoting his access to them; (c) Hearing any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law; (d) Making recommendations to the competent authori- ties, especially by proposing amendments or reforms of the laws, regulations and administrative practices, especially if they have created the difficulties encoun- tered by the persons filing the petitions in order to assert their rights. 40  PORTUGUESE OMBUDSMAN Report to the Parliament 2011 SUMMARY 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