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Ombudsman: protection of the rights of minorities in Portugal and best
international practices
João Tiago Silveira
Seminar on Constitutional Reform and the Institution of Ombudsman
(Ashgabat, Turkmenistan, December 2014)
EU Rule of Law Initiative for Central Asia
Summary of presentation
1.Ombudsman in Portugal and other countries
2.Protecting minorities: five best practices
3.Conclusions
1. Ombudsman in Portugal and other countries: what is an
Ombudsman?
• What is an Ombudsman?
Independent public entity entitled to assess if Public Administration is complying with the law and acting with fairness.
Ombudsman is independent from the Government, Parliament, President and from other public entities.
Constitutions may recognise the existence of the Ombudsman (France, Portugal, Sweden and Spain).
Head of the Ombudsman may be one or several persons (one in Portugal; four in Sweden).
• Generally appointed by the Parliament (Portugal, Sweden and EU Ombudsman);
• In some cases appointed by the Government (France).
1. Ombudsman in Portugal and other countries: what is an
Ombudsman?
• What is an Ombudsman?
Examples of Ombudsman’s activity:
Ex1: A citizen presents a complaint to the Ombudsman because his pension was not calculated by the Social Security according to the rules set forth in legislation. The Ombudsman may convince the public department to recalculate the pension. If this does not happen, the Ombudsman may recommend to the Social Security services to recalculate the pension.
Ex2: After an inspection by is own initiative, the Ombudsman considered that the tax department was taking too long to deal with citizens’ tax declarations. The Ombudsman may recommend new procedures to the tax department.
Ex3: A citizen presents a complaint to the Ombudsman because a public hospital has caused injuries to a patient because of medical error in a surgery. The Ombudsman may recommend the public hospital to compensate the harmed patient.
1. Ombudsman in Portugal and other countries: competences
• Competences
To request explanations from public authorities
• Penalties may be applied, if requests for information are not responded;
• A criminal offence may occur if the public entity does not respond.
To perform inspections before public entities
Ex: to inspect prisons and the way offenders are treated
To assess public authorities’ procedures and decisions and suggest amendments when they are unlawful or unfair
1. Ombudsman in Portugal and other countries: competences
• Competences
To issue recommendations to public entities to amend legislation or to modify administrative practices
To start criminal or disciplinary procedures against officers or to submit reports to entities able to revoke licenses or permits for professional purposes
To publicise reports and recommendations
1. Ombudsman in Portugal and other countries: competences
• Competences
Competences may be exercised on the basis of an unlawful procedure/decision or an unfair procedure/decision of public authorities
Ombudsman may act by its own initiative or on the basis of claims presented by any person or company
• Complaints presented by citizens are free of charge and there are no formalities
• Speedy procedures to decide claims presented by citizens/companies
1. Ombudsman in Portugal and other countries: other
competences
• Other competences
To file constitutional cases before the Constitutional Courts to dispute the validity of a law (Portugal and Spain)
To promote the alternative resolution of conflicts by mediation and promote transactions between the parties regarding discrimination cases
To protect child’s rights
1. Ombudsman in Portugal and other countries: jurisdiction
• Entities subject to Ombudsman jurisdiction:
Administrative entities:
• Includes all public administration departments
• Includes armed forces
• Includes police, prisons and other security departments or investigation agencies
Ex: An Ombudsman may perform an assessment of the human rights’ conditions of the prisons.
1. Ombudsman in Portugal and other countries: jurisdiction
• Entities subject to Ombudsman jurisdiction:
Public companies (Portugal)
Private entities, when human rights are affected and there is a dominant party (Portugal)
Ex: The Portuguese Ombudsman (Provedor de Justiça) accepts claims against private companies with monopolies or a relevant share of the market concerning the supply of essential services (gas, electricity, water)
1. Ombudsman in Portugal and other countries : jurisdiction
• Entities subject to Ombudsman assessment:
Courts (Portugal and Sweden)
• The majority of Ombudsman does not take any intervention over courts’ procedures or decisions
• Some Ombudsman decide over certain courts’ action (Sweden and Portugal)
- Fairness of courts’ procedures
- Public hearings held by the courts
Ex: decision of a Swedish court prevented a group of women to attend a detention hearing as spectators because they were wearing a niqab.
- Time to take a decision
2. Protecting minorities: five best pratices
Ombudsman has been used as a way to protect minorities rights:
1st best practice: To accept claims in different languages
Ex: Acceptance of claims in other languages than the official ones before an interpreter in the Ontario Ombudsman (Canada).
2nd best practice: To visit the regions where minorities population live or to open a special department on distant regions
Ex: Aboriginal agencies in Saskatchewan Ombudsman (Canada) where claims may be presented (First Nation and Métis agencies).
2. Protecting minorities: five best pratices
3rd best practice: To create special units to deal with minorities’ issues
Ex: New South Wales Ombudsman’s special unit to deal with aboriginal issues (Australia).
4th best practice: To create a special Ombudsman for minority issues
Ex: Ombudsman for Minorities in Finland (Roma and Saami people)
5th best practice: To allow the filing of claims before Constitutional Courts
Ex: During the 70s there was a provision in Portugal stating that the police should pay special attention to gipsies behavior. The Portuguese Ombudsman filed a case before the Constitutional Court and the provision was considered unconstitutional.
3. Conclusions
• The creation of an Ombudsman:
Is an effective instruments for a better Public Administration
Improves the rule of law and the fairness of the public authorities decisions’
Is considered to be an important tool to improve human rights
• The origins of the Ombudsman:
• The origin: the swedish parliamentary Ombudsman (1809)
• The source of inspiration: the medieval muhtasib محتسب of islamic countries
