Decree of 7 July 1998 on the Establishment of the Flemish Ombudsman Service

Decree of 7 July 1998 on the Establishment of the Flemish Ombudsman Service

Chapter I. – General Stipulations

Article 1. This decree regulates a matter of the community and the region.

Article 2. With the Flemish Parliament, there is a Flemish Ombudsman for the Flemish Community and the Flemish Region, hereinafter to be called “the Flemish Ombudsman”. If this office is occupied by a woman, she can be called “the Flemish Ombudswoman”.

Chapter II. – The Flemish Ombudsman

Section 1. Remit

Article 3. The remit of the Flemish Ombudsman comprises:

1° to investigate complaints about the acts and the operation of the administrative authorities of the Flemish Community and the Flemish Region and to act as an mediator in them;

2° to refer citizens to other competent agencies, insofar as their request does not constitute a complaint;

3° to formulate proposals and recommendations, on the basis of his findings made in the course of carrying out the tasks mentioned in 1°, towards improving the services provided by the administrative authorities of the Flemish Community and the Flemish Region, and to report in accordance with Articles 16, § 2, and 18;

4° to notify the Speaker of the Flemish Parliament of any violations of the Code of Conduct by Members of the Flemish Parliament which have been brought to his notice.

The handling of complaints with regard to the general policy or about the decrees, resolutions, and regulations, do not belong to his remit.

The Flemish Ombudsman can also exercise his powers with regard to other administrative authorities whenever they are charged with tasks which fall under the competence of the Flemish Community or of the Flemish Region pursuant to decrees or regulations.

In this decree, “an administrative authority” has the meaning defined in Article 14 of the co-ordinated laws on the Council of State.

Section 2. – Appointment

Article 4 § 1. Following a public call for candidates, the Flemish Ombudsman is appointed by the Flemish Parliament, for a period of six years. The mandate can be renewed once for the same period of time.

§ 2. To be eligible for the office of Flemish Ombudsman, the candidate must meet the following requirements:

1° be Belgian;

2° be of irreproachable behaviour and enjoy full civil and political rights;

3° be the holder of a diploma that grants access to a Grade A position with the services of the Flemish Parliament;

4° have at least five years of relevant professional experience, either in the legal, administrative, or social domain, or in another domain that is relevant to the office;

5° pass the comparative selection tests which are organised by or by order of the Flemish Parliament;

6° not have held a public office to which appointment is by election in the period of three years preceding the call for candidates.

In this decree, the following are put on a par with a public office to which appointed is granted by election: the office of burgomaster appointed outside the municipal council; the position of director of an institution of public utility; the office of government commissioner; the office of governor, deputy governor, or vice-governor; the office of federal, community, or regional minister; the office of secretary of state or regional secretary of state; and an office with the European Union.

Article 5. The ombudsman takes the following oath before the Speaker of the Flemish Parliament: “I swear allegiance to the King and compliance with the Constitution and to the laws of the Belgian people.”

Section 3. – Incompatibility

Article 6. The office of Flemish Ombudsman is incompatible with any other office, position, or function, even if it is unsalaried.

Section 4. – End of the Mandate

Article 7. The Flemish Parliament can terminate the mandate of the Flemish Ombudsman:

1° on his own request;

2° when he reaches the age of 65;

3° when his health would pose a serious risk to the performance of his duties.

The Flemish Parliament removes the Flemish Ombudsman from office:

1° when he accepts one of the offices, positions, or functions mentioned in Article 6;

2° for serious reasons.

Section 5. – Administrative Status

Article 8. Within the limits of his powers, the Flemish Ombudsman is completely independent and neutral, and he cannot receive instructions or orders from any authority.

The Flemish Ombudsman cannot be removed from office or be subjected to any investigation on account of any opinions expressed or acts done in the normal performance of his duties.

Article 9. The Flemish Ombudsman, the staff members of the ombudsman service, and the experts mentioned in Article A5, § 3, must observe secrecy with regard to any confidential information that is communicated to them in the course of their duties.

Article 10. If, in the performance of his duties, the Flemish Ombudsman establishes a major shortcoming which could lead to a disciplinary sanction, he brings this to the notice of the competent administrative authority.

Section 6. – Financial Status

Article 11. The Flemish Ombudsman has the financial status of the councillors of the Auditor’s Office. Accordingly, the law of 21 March 1964 concerning the salaries of the members of the Auditor’s Office is also applicable to him.

The pension scheme of the temporary civil servants of the Flemish Parliament, as contained in the Statute of the Personnel of the Flemish Parliament, also applies to the ombudsman.

Chapter III. – The Investigation of Complaints

Article 12. § 1. Any natural or legal person can lodge a complaint with the Flemish Ombudsman, orally or in writing, about the acts or the operation of an administrative authority as referred to in Article 3. The person concerned must first seek contact with that authority to obtain satisfaction.

§ 2. If the complaint concerns a different administrative authority than the government referred to in Article 3, the Flemish Ombudsman notifies the complainant without delay that he is not competent to deal with the complaint and informs him which administrative authority or service he considers competent.

Article 13. § 1. The Flemish Ombudsman does not deal with complaints which refer to facts which occurred more than one year before lodging the complaint. If an administrative or judicial appeal has been lodged, this term of one year is extended by the duration of this appeal procedure.

§ 2. The Flemish Ombudsman does not deal with complaints when:

1° the identity of the complainant is unknown;

2° the complainant has manifestly not undertaken any attempt to obtain satisfaction from the administrative authority in question;

3° the complaint is manifestly unfounded;

4° the complaint refers to the employment relations, employment conditions, or the legal status of the personnel of the administrative authority in questions;

5° the complaint refers to facts which constitute the object of a legal procedure.

§ 3. The investigation of a complaint is suspended when an organised appeal or an appeal with a court of justice has been lodged with regard to the facts.

The administrative authority notifies the Flemish Ombudsman of the appeal and of its outcome.

When an appeal has been lodged, the Flemish Ombudsman notifies the complainant without delay of the suspension of the handling of his complaint.

The filing and investigation of a complaint neither suspend nor interrupt the terms for lodging an administrative appeal, which is organised on the grounds of the authority of the Flemish Community or the Flemish Region.

Article 14. The Flemish Ombudsman informs the complainant without delay of whether or not he will deal with his complaint. If he refuses to deal with the complaint, he states his grounds for this refusal.

The ombudsman notifies the administrative authority of the complaint he wishes to investigate.

Article 15. § 1. When the Flemish Ombudsman addresses questions to an administrative authority or to civil servants in the course of his duties, he can impose a mandatory time limit for answering these questions.

§ 2. When investigating a complaint, the Flemish Ombudsman can establish facts on site and demand submission of any documents and information which he deems necessary for dealing with the complaint.

The Flemish Ombudsman can collect all the necessary information on site from the administrative authority in question and hear the persons concerned.

With respect to the ombudsman, the persons mentioned in the previous paragraph are relieved of their obligation of secrecy with regard to facts of which they have knowledge and data to which they have access on account of their status or profession.

§ 3. The Flemish Ombudsman can call in the assistance of experts.

Article 16. § 1. The Flemish Ombudsman acts as a mediator. He tries to reconcile the standpoints of the complainant and the administrative authority concerned.

§ 2. He can make recommendations to the administrative authority to avoid recurrence of the facts which gave rise to the complaint. If the Flemish Ombudsman cannot agree with the final decision of the administrative authority, he can report on it to the functionally competent Flemish minister.

Article 17. The services of the Flemish Ombudsman regularly inform the complainant of the progress of the investigation of his complaint and of any actions which were taken as a result.

Chapter IV. – Reporting to the Flemish Parliament

Article 18. At least once a year, before 30 June, the Flemish Ombudsman submits a written report on his activities to the Flemish Parliament. This report contains the recommendations which the ombudsman deems useful and mentions any problems he has encountered in the performance of his duties.

The identity of the complainants and of staff members of the administrative authorities may not be mentioned in the report.

The report of the Flemish Ombudsman is published by the Flemish Parliament.

Article 19. The Flemish Ombudsman can be heard by the Flemish Parliament at all times, whether or not upon his own request.

Chapter V. – Miscellaneous Stipulations

Article 20. Every year, on the proposal of the ombudsman, the Flemish Parliament fixes budget necessary for the operation of his service.

Article 21. The staffing and the status of the personnel of the ombudsman service are established by the Flemish Parliament on the proposal of the ombudsman.

The staff members of the ombudsman service perform their duties under the direction of the ombudsman.

In the performance of their duties, the staff members of the ombudsman service have the same powers as the Flemish Ombudsman.

Article 22. The Flemish Ombudsman draws up standing rules for the operation of his services. These rules are approved by the Flemish Parliament and published in the Belgian Official Journal.

Article 23. This decree comes into force on 1 September 1998.

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