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Provincial Law No. 3 of February 4, 2010

Provincial Law No. 3 of February 4, 2010

"The Office of the Ombudsman of South Tyrol" (1)

Art. 1

Establishment

  1. The Office of the Ombudsman of the Province is established with the South Tyrolean Provincial Parliament.
  2. The services of the Office of the Ombudsman are free of charge and are available to all persons.
  3. This Law regulates the duties and authority of the Office of the Ombudsman and the procedure for appointing the Ombudsman.

Art. 2

Duties

  1. The Ombudsman intervenes at the simple request of the directly affected parties or when required ex officio in the context of measures, acts, facts, delays, omissions, or any irregular behavior on the part of the following public corporations or legal entities:
    1. the Provincial Government,
    2. public corporations dependent upon the Provincial Government or for whose regulation the Provincial Government is responsible, even if only by delegation,
    3. licensees or concessionary companies of the Province's public services.
  2. The Ombudsman performs his/her functions by providing information, advice, and mediation in arbitrating conflicts with regards to issues or procedures of the public corporations or legal entities specified in Paragraph 1.
  3. DFurther, the Ombudsman intervenes in order to safeguard the exercise of the right of accessing records and documents of the public corporations or legal entities specified in Paragraph 1 in accordance with the relevant regulations. This duty is exercised in accordance with the provisions of Article 3, where applicable.
  4. The Ombudsman draws the attention of the Landeshauptmann (head of the Provincial Government) and of the legal representatives of the public corporations which have concluded an agreement in accordance with Article 12 to any delays, irregularities, and deficiencies and to their causes and makes proposals as to how they can be remedied.

Art. 3

Procedures

  1. Citizens who have matters pending before a corporation or legal entity specified in Article 2 are entitled to inform themselves either in writing or verbally from these agencies about the current status of the matter. If they receive no reply within 20 days of their inquiry or if the reply is not satisfactory, they can apply for the aid of the Ombudsman.
  2. The Ombudsman shall inform the responsible agency and request, from the responsible official, an investigation of the matter and a verbal or written statement within five days. The Ombudsman and the responsible official shall mutually determine the time-frame within which the matter which gave rise to the complaint can be settled – through joint analysis, too. In the event that this time-frame exceeds one month, this must be separately justified and communicated to the affected citizen.
  3. In the measure decreed as a consequence of the intervention of the Ombudsman, a justification of why the presented views held by and/or conclusions reached by the Ombudsman are not shared is to be included.
  4. Appeals lodged and objections raised through courts or administrative bodies do not exclude an involvement of the Ombudsman in that same matter; neither can the responsible agency refuse to cooperate and/or provide information.
  5. If the responsible personnel hinder the work of the Ombudsman by actions or omissions, the Advocate can report this to responsible disciplinary agency. This disciplinary agency is then, in turn, obligated to inform the Ombudsman about the measures it implements.
  6. The Ombudsman shall forward complaints, the investigation of which is not within his/her purview, to the corresponding responsible agencies. If there is no such corresponding agency responsible for a given matter, the Ombudsman shall, in accordance with the goals of Article 97 of the Constitution, report the alleged matters to the affected agencies and cooperate with them. With regards to matters affecting governmental bodies domiciled in Rome or Brussels, the Ombudsman can make use of the services of the South Tyrolean foreign offices in Rome and Brussels and/or the public agencies of the E.U.
  7. The Provincial Government and the public corporations which have concluded an agreement in accordance with Article 12 shall provide the Office of the Ombudsman with the necessary venues for convening meetings and consultations.

Art. 4

Status

  1. The Ombudsman operates in complete freedom and independence.
  2. In accordance with Article 2, the Ombudsman can require, verbally or in writing, a copy of documents – deemed by the Ombudsman as useful for carrying out his/her duties – from the head of the public agency of the Provincial Government, public corporation, or legal entity affected by the complaint; furthermore, he/she can require access to all documents pertaining to the matter, irrespective of the confidentiality of official secrets.
  3. The Ombudsman is bound by official secrecy.
  4. The Ombudsman has the right to commission the elaboration of expertises with the agencies of the Provincial Government and the South Tyrolean Provincial Parliament. In special cases, he/she can commission external experts with the elaboration of expertises.

Art. 5

Report on Activities

  1. The Ombudsman shall submit an annual report on his/her activities to the South Tyrolean Provincial Parliament; this report shall list the lack of or deficiencies in the cooperation received from public agencies and legal entities specified in Article 2 and shall include proposals on how his/her activities can be made more effective and the impartiality of the government and its agencies safeguarded. He/she shall present the report on activities to the members of the South Tyrolean Provincial Parliament on a date determined by the President of the South Tyrolean Provincial Parliament within the first five months of each year.
  2. The Ombudsman shall provide a copy of the report specified in Paragraph 1 to the Landeshauptmann (head of the Provincial Government), the mayors, the presidents of the district communities, the public agencies, or the legal entities specified in Article 2 if they were affected by the intervention of the Office of the Ombudsman in the corresponding year, as well as to all who request such a copy.
  3. The report of the Office of the Ombudsman shall be published on its Internet website.

Art. 6

Prerequisites and Appointment

  1. The minimum requirements for holding the office of the Ombudsman are as follows:
    1. a university degree,
    2. evidence of knowledge of the Italian and German language, with regards to the university degree (Certificate "A" of Bilingual Proficiency), and
    3. with regards to the exercise of the duties and responsibilities of the office of the Ombudsman, experience in the areas of law or administration based upon at least five years of corresponding activity in the last ten years.
  2. The procedure for electing the Ombudsman shall be initiated with a public announcement in the region's Official Gazette, to be initiated by the President of the South Tyrolean Provincial Parliament within 30 days of his/her election, which public announcement must specify the following:
    1. the intention of the Provincial Parliament to fill the office of the Ombudsman,
    2. the necessary prerequisites for filling the position,
    3. the remuneration,
    4. the deadline of 30 days from the publication of the public announcement for the submission of applications of candidacy to the Executive Committee of the South Tyrolean Provincial Parliament.
  3. Prior to the election of the Ombudsman, the candidates who fulfill the prerequisites specified in Paragraph 1, letters a) and b) and the prerequisite regarding the duration and time-frame of the professional experience specified in Paragraph 1, letter c) and who document this with appropriate evidence or self-declarations, shall be called before the Provincial Parliament for a hearing. In the context of this hearing – in which all members of the Provincial Parliament can participate – the candidates shall present their experience in the areas of law and administration and thus demonstrate that they fulfill the prerequisites specified in Paragraph 1, letter c). Simultaneously, they can also present their views and plans about areas of special concern for the future and about the administration of the Office of the Ombudsman.
  4. The Ombudsman is elected by secret vote of the South Tyrolean Provincial Parliament from among those candidates who have participated in the hearing specified in Paragraph 3. The appointment is made by decree of the President of the Provincial Parliament after submission of the declaration as specified in Article 8. That candidate shall be elected who has received two-thirds of the votes of the members of the Provincial Parliament.

Art. 7

Grounds for Ineligibility for the Office of the Ombudsman

  1. Members of the European Parliament, of a national parliament or national government, of a regional council, of a provincial parliament or of a regional or provincial government, as well as mayors, municipal council department heads, or municipal council members are ineligible to hold the Office of the Ombudsman.
  2. Self-employed persons, employed persons, entrepreneurs, as well as those exercising any other profession are ineligible for the Office of the Ombudsman. While holding office, the Ombudsman may not exercise any other offices or function with parties, federations, public corporations, or companies.
  3. If the Ombudsman intends to run for office in elections for municipal councils, provincial parliaments, national parliaments, or the European Parliament, he/she must resign from office at least 6 months before the election date.

Art. 8

Procedure for Determining Ineligibility

  1. The Ombudsman is obligated, prior to his/her appointment, to declare to the President of the South Tyrolean Parliament which offices, functions, and occupational activities he/she exercises and that there are no grounds or no longer any ground for ineligibility as specified in Article 7.
  2. If the President of the South Tyrolean Parliament nevertheless has reasons to believe that there are any grounds for ineligibility, he/she shall notify the Ombudsman of this in writing. The Ombudsman can present his/her objections or remedy the grounds for ineligibility. The President of the South Tyrolean Parliament shall notify the Provincial Parliament during the next parliamentary session of the remedying of the grounds for ineligibility. If, after receipt of the objections and after jointly discussing the matter, the President of the South Tyrolean Parliament is nonetheless still of the opinion that grounds for ineligibility exist, he/she shall submit a report with justifications to the Provincial Parliament and proposes to it that the Office of the Ombudsman be declared vacant. The provisions of the procedural rules of the South Tyrolean Provincial Parliament pertaining to the confirmation of election apply to the procedure in the Provincial Parliament insofar as they are in conformance with this law. If the Provincial Parliament determines that grounds for ineligibility are present, the President of the South Tyrolean Parliament declares the office vacant.
  3. If, in the course of his/her term of office, changes concerning the declaration made in accordance with Paragraph 1 occur, the Ombudsman must notify the President of the South Tyrolean Parliament of them within fifteen days of their occurrence. If the President of the South Tyrolean Parliament has reason to assume that grounds for ineligibility have thus subsequently appeared, procedures as specified in Paragraph 2 shall be undertaken.

Art. 9

Term of Office, Dismissal, and Provisions for the Election of a Successor

  1. The term of office of the Ombudsman corresponds to a legislative period of the Provincial Parliament. The Ombudsman shall fulfill his/her duties on a provisional basis until a successor is appointed, subject to Paragraph 2 and Article 8. 2)
  2. The Ombudsman can be dismissed by the President of the South Tyrolean Parliament upon resolution of the Provincial Parliament if serious reasons in the context of the discharge of the duties of the Ombudsman are present; the aforementioned resolution must be made in secret vote with a two-thirds majority of the members of the Provincial Parliament.
  3. If the Office of the Ombudsman becomes vacant for any reason except for the expiration of the term of office, the President of the South Tyrolean Parliament shall commence the procedure specified in Article 6, Paragraph 2 within 30 days.

Art. 10

Remuneration for Duties and Reimbursement for Expenses

  1. For the duration of his/her term of office, the Ombudsman is entitled to remuneration for the performance of his/her duties, this remuneration to commensurate with that paid to the members of the South Tyrolean Parliament, not including their daily allowance. The remuneration for field work and the reimbursement of travel expenses shall be according to the provisions valid for the members of the South Tyrolean Parliament. The corresponding expenses shall be borne by the budget of the South Tyrolean Parliament.

Art. 11

Personnel

  1. In fulfilling his/her duties and obligations, the Ombudsman employs personnel assigned in agreement to him/her by the South Tyrolean Parliament. He/She has the right to manage them and issue them directives. The right of citizens of all three language groups to use their native language shall be guaranteed.
  2. In order to better fulfill the duties borne by the Office of the Ombudsman on the basis of agreements specified in Article 12, the public corporations and their interest groups mentioned in Article 12 can place their own personnel at the disposal of the Ombudsman. This provision of personnel shall be regulated in a separate agreement, and it is also treated by the determination of any flat expenses specified in Article 12, Paragraph 2. These personnel is subject to the management and directives of the Ombudsman, but retain their existent administrative status, salary category, and social security status, and the associated costs shall be borne by the public corporations specified in Article 12.
  3. The public corporations and legal entities specified in Article 2 can likewise place their own personnel at the disposal of the Office of the Ombudsman. In this case, the provisions specified in the final sentence of Paragraph 2 shall be applicable.
  4. The Ombudsman can entrust individual staff members placed at his/her disposal with specific matters concerning public hygiene and health as well as environmental and nature protection.

Art. 12

Agreements with Other Public Corporations for the Purpose of Exercising the Office of the Ombudsman

  1. The Ombudsman can conclude agreements with district communities, with municipalities, intermunicipal associations, or with municipal consortia for the purpose of fulfilling the duties of the Ombudsman on the municipal level as specified in Article 19, Paragraph 3 of Regional Law No. 1 of January 4, 1993.
  2. The Executive Committee of the South Tyrolean Parliament can, in agreement with the affected public corporations with which an agreement as specified in this Article has been concluded, determine a lump-sum contribution which said public corporations must pay to the South Tyrolean Parliament in order to cover the extra costs arising from the activity of the Office of the Ombudsman on behalf of said public corporations.

Art. 13

Planning and Implementation of Activities

  1. By September 15 of each year, the Ombudsman shall present the Executive committee of the South Tyrolean Parliament an activity plan, including a corresponding price estimate.
  2. The management of the expenses associated with the activities of the Office of the Ombudsman shall be effected in accordance with internal administrative and accounting regulations of the South Tyrolean Parliament.
  3. For the payment of the expenses associated with the activities of the Office of the Ombudsman, the President of the South Tyrolean Parliament authorizes – and charges to his/her own appropriations from the budget of the Provincial Parliament, the opening of credit lines for the benefit of an authorized civil servant selected from the civil servants of the South Tyrolean Parliament. This civil servant executes the expense payments in accordance with the provincial regulations valid in the civil servant's area and on the basis of the directives of the Ombudsman and provides the billing statements on the payments charged to the credit lines together with the appropriate documents and receipts to the Administrative Affairs Agency of the South Tyrolean Parliament so that they can be audited in accordance with internal administrative and accounting regulations.

Art. 14

Financial Provisions

  1. The expenses of the Office of the Ombudsman shall be charged to the budget of the South Tyrolean Parliament. These expenses shall be covered in accordance with the modalities set forth in Article 34 of Provincial Law No. 1 of January 29, 2002.

Art. 15

Repeal

  1. Provincial Law No. 14 of July 10, 1996, as amended, is hereby repealed.

Art. 16

Enactment

  1. This Law shall become effective on the day after its promulgation in the region's Official Gazette.

This Law shall be promulgated in the region's Official Gazette. All persons concerned are obligated to comply with it as a Provincial Law and to ensure that it is complied with.

1) Promulgated in Ordinary Supplement No. 1 of the Official Gazette No. 6. of February 9, 2010.
2) Article 9, Paragraph 1 was thus replaced by Article 1, Paragraph 1 of Provincial Law No. 10 of September 19, 2011.