The Ombudsman criteria


The mission of an institutional Ombudsman is to deal with cases of "poor governance". But what is actually meant by good or poor governance?

The Federal Ombudsman has from the outset focused on drawing up a transparent list of rules and criteria used to process the complaints received.

 

1. Proper application of the rule of law

The administrative authorities act in compliance with the general legal rules and regulations and with respect for fundamental human rights.

When a rule is not clear, the administrative authorities see to it that it is applied in the spirit of the law or in the meaning that is usually recognised by case law and legal doctrine.

The administrative authorities must moreover comply with their own administrative instructions and circulars, provided they do not run contrary to the legal and regulatory provisions.

 

2. Equality

The administrative authorities must treat all citizens equally without creating any illicit distinction between them.

Citizens who find themselves in the same circumstances must be treated in the same way. Citizens in different situations are accorded different treatment. The situation is assessed in regard to the measure considered.

A different treatment may be established between categories of persons provided it is based on an objective criterion and is reasonably justified in view of the purposes and the effects of the measure criticised. The equality principle is violated when there is no reasonable proportional relation between the means used and the end pursued.

 

3. Impartiality

The administrative authorities may under no circumstances favour one party at the expense of the other. This impartiality presupposes an objective treatment of the case file and entails an absence of interest – even the appearance of interest – of the officiating civil servant.

When the administrative authorities process a case file, they may not be influenced by any form of personal, family or national interest, nor by any external pressure or by religious, political or philosophical convictions. No one from the administrative authorities may be involved in a decision in which he or one of his close relations has -- or may be perceived as having – interests. A civil servant may not be involved in an appeal of a decision if he helped to take that decision.

The administrative authorities must avoid having their decision influenced by the fact that it might cause inconvenience for one of the parties.

 

4. Reasonableness and proportionality

The administrative authorities must make sure that their decision is appropriate, proportional and fair.

The principle of reasonableness is violated when the administrative authorities use their freedom of assessment in a manifestly unreasonable manner. The decision of the administrative authorities may be qualified as being manifestly unreasonable when it is not that which would have been taken by any other normally prudent and diligent civil servant under the same circumstances.

To comply with the principle of proportionality, a normally diligent civil servant makes sure to take the measure that seems concurrently most respectful of the citizen’s interests and of the general interest objectives pursued by his department.

When a citizen finds himself in an unfair situation as a result of an administrative rule or practice, the administrative authorities must spare no effort to put things right. Equal treatment of all citizens under the same circumstances must be ensured in such a case too and abuse of power must be avoided.

 

5. Legal certainty

Legal certainty entails that citizens should be in a position to know the positive law that is applicable to them. Citizens must be able to assess beforehand the legal consequences of their conduct and actions. They must be able to rely on certain consistency in regulations and administrative practices.

To preserve legal certainty, the administrative authorities must endeavour to familiarise the citizen, within a reasonable period, with the rules applicable to him.

The principle of legal certainty entails that the citizen may not be expected to take account of rules that are made known late if at all, or of decisions of an individual scope that were not notified to him.

Legal certainty entails that the retroactive application of legal and regulatory provisions is prohibited.

Legal certainty offers guarantees for equal and impartial treatment, thereby setting limits on the freedom of action of the administrative authorities and doing away with arbitrary decisions.

 

6. Legitimate confidence

The administrative authorities honour the legitimate confidence that their constant attitude, promises and previous decisions have instilled in citizens.

The expectation aroused must be legitimate. Barring particular exception, legitimate expectation cannot be deduced from the silence of the administrative authorities.

 

7. Right to be heard

Everyone has the right to have his observations asserted orally or in writing when he has to defend his interests, even if this right is not expressly stipulated in the legislation or if the legislation does not require the administrative authorities to hear the citizen before they take a decision. This right must be assertable at every stage of the decision-making procedure, including, insofar as reasonable, after the decision is taken.

This principle is intended to protect the interests of the citizen and the administrative authorities alike, as the former can thereby present his or her case, and the administrative authorities can be certain of taking a decision with full knowledge of the facts.

 

8. Reasonable time limit for complaint handling

Every request must be processed by the administrative authorities within a reasonable period of time.

A reasonable period of time is assessed in terms of the concrete situation considered: it will depend on the urgent nature of the request, its complexity, as well as any negative consequences of a late response for the citizen. Consequently, under certain circumstances, the principle of reasonable time requires the administrative authorities to decide within a shorter period than the maximum period provided by law.

In the absence of a legally stipulated such period, the “Charter of Good Governance” serves as a guideline. If the administrative authorities are not in a position to answer a question within three weeks, they must send an acknowledgement of receipt to the interested party informing him accordingly and proposing a period within which to provide such an answer. The administrative authorities must make efforts to take a decision within four months. For a particularly complex case, this period amounts to eight months.

 

9. Conscientious handling

Every administrative authority must proceed and decide conscientiously. This presupposes first and foremost that the administrative authorities obtain sufficient information to decide with knowledge of the facts. They must have all the legal and factual data needed for the decision.

In making their decision, the administrative authorities must rely on verifiable facts, taking into account the applicable provisions and all pertinent elements of the case, and discard those which are not.

The precautionary principle constitutes an integral part of the conscientious handling requirement.

 

10. Effective coordination

The different governmental services must cooperate efficiently with each other. Communication must moreover be smooth within the same governmental service for the sake of optimal information exchange. Citizens may not be asked to provide elements that are already at the disposal of -- or easily obtainable otherwise by -- the administrative authorities.

When different administrative authorities have to work together, efficient coordination entails harmonised procedures and a correct and rapid exchange of information. Reciprocal access to databases, in compliance with privacy protection rules, may be required. No department may hide behind the silence of another department to justify its failure to act and must make every effort to get the department that is responsible for the case to cooperate optimally.

 

11. Justification of administrative acts

Every administrative action must be based on acceptable and reasonable ground, de facto and de jure.

Citizens must understand the reasons for which they receive a given decision, which means that the decision served to them must be reasoned. This requirement nonetheless extends beyond merely formal motivation to the quality of the motivation. A well reasoned decision is an intelligible decision. Standard or excessively general turns of phrases are therefore insufficient. Concise motivation may suffice if it is clear and appropriate to the citizen’s case.

 

12. Active information

The administrative authorities must act in a transparent manner and inform the public, unsolicited, in as clear, objective and extensive a manner as possible within the limits authorised by law.

Active information tallies with the mission of the administrative authorities which consists of making legal and regulatory provisions as well as administrative practices more accessible and intelligible to as wide a public as possible. This information must be correct, complete, unambiguous, efficient and up to date.

The administrative authorities must use clear and understandable language and their communication must be effective. They must make sure to use diversified and adequate channels of communication to reach the largest number of citizens concerned.

 

13. Passive information

Apart from the exceptions provided by law, information requested by citizens must be provided to them.

A request for information and the answer thereto may be made verbally or in writing. Insofar as authorised by law, the administrative authorities give priority to the means and channel of communication preferred by the citizen.

 

14. Courtesy

In his contacts with citizens, in addition to compliance with the elementary rules of politeness generally acceptable in our society, a civil servant must maintain a professional tone in his speech and attitudes, so as to preserve a harmonious, respectful and humane inter-personal relationship.

Where necessary, he must explain why he may not comply with the citizen’s request and try to direct him or her to the competent department. In any event, he must use understandable language, adapted to the situation and characterised by neutrality.

If the administrative authorities have made a mistake and have not acted in accordance with the citizen’s legitimate expectations, they must restore the citizen’s trust and confidence in the administrative authorities by apologising.

 

15. Appropriate access

The administrative authorities endeavour to maximise accessibility to their services, offices and information by making sure that their opening hours are convenient for the public concerned, and that they can be reached by telephone and through various channels of communication. They endeavour to receive citizens in an appropriate working environment, to limit waiting times and to improve the legibility of administrative decisions and documents and access to legal and regulatory information. The administrative authorities try to make such information accessible to as wide a public as possible, without claiming to be exhaustive.

Particular attention must be paid to making offices accessible to persons with reduced mobility.