During 2016, the Ombudsman submitted to the Constitutional Court three petitions
for the reviewing of the constitutionality of norms, all of them still without decision at
the end of the year.
The Ombudsman argued a rule contained in a 2013 amendment of the Law on Organization of the Judicial System, providing the ability to the Higher Council of the Judiciary to, based on the proposal of the president of a court, to reassign judges, respecting
the principle of specialization of magistrates, or to change the allocation of case files to
another court. The Ombudsman considered that this rule violated the principle of the
natural judge, the right to a fair trial, the principle of the irremovability of the judges
and the principle of independence of the courts. The said rule was amended by Law No.
40-A/2016, of December 22, the initiative on its origin using an argumentative line consistent with the reasoning of this request from the Ombudsman.
Another initiative of the Ombudsman had as object a legal rule requiring, for a professional activity in the private security field, the inexistence of any prior conviction for an
intentional crime.(42) The Ombudsman found this solution to be incompatible with the
constitutional prohibition of any automatic effect of criminal sanctions.
The third initiative was held over a set of rules limiting compensation for damages for
accidents in service or occupational diseases in the public sector, thus infringing the fundamental right of workers to fair compensation and the principle of equality.(43)
As of cases not endorsed to the Constitutional Court in 2016, a reference should be
made to the doubts raised about the new Regulation of the Advocates and Solicitors Social
Security Fund, approved by Decree-Law No. 119/2015, of June 29. Considering the jurisprudence of the Constitutional Court in this matter, with regard to the right to social
security and having an impact on the principle of the protection of legitimate expectations, the allegations of unconstitutionality did not proceed. However, the Ombudsman
found suitable to approach the Government on another level, stressing the need to several
improvements to the system.(44)
Likewise, in a complaint based on parameters of constitutionality, the Ombudsman
decided to address the Minister of Interior regarding the solutions contained in current
Police (PSP) Disciplinary Regulations, regarding the subjection of retirees to disciplinary
power, the application of preventive measures and the rehabilitation regime. In response,
(42) The Portuguese full text of this initiative may be read at http://www.provedor-jus.pt/site/public/?idc=46&idi=16444
(43) The Portuguese full text of this initiative may be read at http://www.provedor-jus.pt/site/public/?idc=46&idi=16664
(44) Complaint Q-4114/15.
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