National Ombudsman Act of February 4, 1981

(amended on 23 December, 1993

and on April 26, 1995)

We, Beatrix, by the grace of God, Queen of the Netherlands, Princess of Orange-Nassau,

etc. ...

Considering that the need exists for a special provision for investigating the way in which government has acted in a particular matter towards the individual citizen and that it is desirable in this connection to proceed to the establishment of the office of National Ombudsman ...;

So be it, etc. ...

National Ombudsman Act

Definitions

Section 1

In this Act:

a) Ombudsman means: the National Ombudsman referred to in section 2;

b) public servant means: a public servant, a former public servant, a person employed by an administrative body under a contract of employment governed by civil law, a person formerly so employed, or a conscript either before or after termination of the period of a compulsory military service.

Section la

1. This Act is applicable to acts of the following administrative bodies:

a) Our Ministers;

b) the administrative bodies working within the area of responsibility of Our Ministers;

c) the Royal Commissioners and burgomasters, in so far as they are charged by law with any duties regarding the police;

d) other administrative bodies designated by order in council.

2. Contrary to the first subsection this Act is not applicable on acts which are supervised by the judiciary nor on acts of the Equal Treatment Commission referred to in the Equal Treatment Act.

3. An act of a public servant in the exercise of his duties shall be deemed to be an act of the administrative body which employs him.

CHAPTER 1. THE NATIONAL OMBUDSMAN

Section 2

1. There shall be a National Ombudsman.

2. The National Ombudsman will be appointed by the Lower House of Parliament. For that the vice-president of the Council of State, the president of the Supreme Court and the president of the General Chamber of Audit jointly draw up a recommendation containing the names of at least three persons.

3. The appointment shall be for a term of six years.

4. If the Lower House wishes to re-appoint the current Ombudsman, it may stipulate that subsection 2 shall not apply.

5. If it proves to be impossible for the Lower House to appoint a new National Ombudsman in time, the Lower House shall provide for the temporary occupation of the office of Ombudsman. Section 10, fifth to seventh subsection is applicable.

Section 3

1. The Lower House shall terminate the employment of the Ombudsman at the commencement of the first month following that in which he reaches the age of sixty-five.

2. The Lower House shall also terminate the employment of the Ombudsman:

a) at his request;

b) if he is permanently unable to carry out his duties because of illness or disability;

c) if he accepts an office or post declared by this Act to be incompatible with the office of Ombudsman;

d) if he loses Netherlands' citizenship;

e) if he is convicted of a crime, or is deprived of his liberty by a final and irrevocable sentence of a court;

f) if he has been made the subject of a guardianship order, has been declared bankrupt, has obtained a moratorium for the payment of his debts or has been imprisoned for debts by final and irrevocable sentence of the court;

g) if, in the opinion of the Lower House of Parliament, he seriously undermines the confidence placed in him as a result of his acts or omissions.

Section 4

1. The Lower House shall suspend the Ombudsman if:

a) he is remanded in custody;

b) he is convicted of a crime or deprived of his liberty by sentence of a court of justice which is not yet final and irrevocable;

c) he is made the subject of a guardianship order, or is declared bankrupt, or obtains a moratorium for the payment of his debts, or is imprisoned for non-payment of debts by sentence of a court of justice which is not yet final and irrevocable.

2. The Lower House may suspend the Ombudsman if he is the subject of a preliminary judicial examination instituted in respect of a crime, or if there is a strong suspicion of the existence of facts or circumstances which would lead to dismissal, other than those referred to under section 3. subsection 2 (b).

3. In the case referred to in subsection 2 of this section the suspension shall end after three months. The Lower House may however extend the suspension for periods of three months at a time.

4. The Lower House shall lift the suspension as soon as the reasons for suspension cease to exist.

5. The Lower House may order, when suspending the Ombudsman, that he will receive no salary, or only a specified part of his salary, during his suspension.

6. If the suspension ends otherwise than by dismissal, the Lower House may decree that all or a specified part of the salary the Ombudsman has not received shall be paid to him.

Section 5

1. The Ombudsman may not:

a) be a member of a public body for which elections are prescribed by law;

b) hold public office for which he receives a fixed salary or remuneration;

3. be a member of a permanent government advisory body;
1. act as an advocate, solicitor, or notary.

2. The Ombudsman shall not hold any position which is incompatible with the correct performance of his official duties or with his impartiality and independence or with public confidence therein.

Section 6

The provisions of the General Pensions (Holders of Political Office) Act (Act of 10 December, 1969, Bulletin of Acts, Orders and Decrees 1969, 594) shall apply to the Ombudsman, in such a way that he is treated as a member of the Lower House of Parliament, but that his income is settled according to section 9 of the said Act.

Section 7

We shall lay down rules by order in council governing claims in case of illness, and the other rights and duties of the Ombudsman which pertain to his legal status, in so far as the same are not prescribed by law.

Section 8

Before accepting office the Ombudsman shall swear on oath or solemnly affirm in the presence of the Speaker of the Lower House of Parliament:

a) that he has not given or promised anything on any pretext whatsoever to any person, either directly or indirectly and either in his own name or that of any other person, to obtain his appointment, and that he has not accepted and will not accept any present or any promise from any person, either directly or indirectly, to do or to refrain from doing anything in the exercise of his function;

b) to observe faithfully the Constitution.

Section 9

1. At the request of the Ombudsman the Lower House shall if necessary appoint one or more persons as Deputy Ombudsman. For that the Ombudsman draws up a recommendation containing the names of at least three persons.

2. Any Deputy Ombudsman shall be appointed for the term of office of the Ombudsman requesting his appointment. On the recommendation of the new Ombudsman the Lower House can extend the term of office of the Deputy Ombudsman by a period not exceeding six months.

3. If the Lower House wishes to reappoint a Deputy Ombudsman, it may stipulate that subsection one, the second sentence shall not apply.
1. Sections 3 to 8, 18 to 24 and 27, subsection 5 shall apply mutatis mutandis to a Deputy Ombudsman.

5. The Ombudsman shall determine the activities of the Deputy Ombudsman.

6. The Ombudsman can delegate the powers mentioned in the sections 25, 26, 27, subsection 1 to 4, and 28, subsection 3, to a Deputy Ombudsman.

The Ombudsman can draw up directions for the exercise of those powers.

Section 10

1. The Ombudsman shall make arrangements for his replacement by a Deputy Ombudsman, in case he is temporarily not able to exercise his duties.

2. If no Deputy Ombudsman is present or available, the Lower House shall provide for the replacement of the Ombudsman as soon as possible. In that case the replacement will end as soon as the Ombudsman is able to resume his duties, or if the Ombudsman has been suspended, the moment the suspension is lifted.

3. If the Ombudsman dies or is removed from his office under section 3, the Deputy Ombudsman will stay on, contrary to the rule stated in section 9, subsection 2, the first sentence, until the moment on which a new Ombudsman takes up his duties. In that case the Lower House shall provide for the temporary occupation of the office of Ombudsman.

4. If no Deputy Ombudsman is present or available, the Lower House shall provide for the temporary occupation of the office of Ombudsman as soon as possible.

5. The replacement will ipso jure end at the moment on which a new Ombudsman takes up his duties.

6. Section 2, subsection 2, second sentence and subsections 3 and 4, section 3, subsection 1, and sections 6 and 9 of this Act, as well as section F2, subsection 4 (e) of the General Civil Pensions Act (Bulletin of Acts, Orders and Decrees 1986, 540) are not applicable on the one who replaces the Ombudsman or temporarily holds his office.

7. If the one who replaces the Ombudsman or temporarily holds his office as referred to in the sixth subsection accepts or is going to accept an office or a membership as indicated in section 5, subsection one, under b and c, he shall ipso jure be suspended for the time he holds that office or the duration of that membership.

Section 11

1. The Ombudsman shall be provided with a secretariat.

2. The personnel of the secretariat shall be appointed, promoted, suspended and dismissed by Us on the recommendation of the Ombudsman.

3. We shall decide in which cases members of the secretariat's personnel are appointed, promoted, suspended and dismissed by the Ombudsman.

CHAPTER II. THE INVESTIGATION

Section 12

1. Any person has the right to petition the Ombudsman in writing to investigate the way in which an administrative body has acted towards a natural person or legal entity in a particular matter, unless more than a year has elapsed since the conduct in question.

If the act in question has been submitted to the judgement of a judicial body or has been referred for judgement to another body pursuant to a statutory provision of administrative law within one year of the date on which the act took place, the term of one year shall end one year after the date on which the court gives a judgement against which no appeal is open, or after the proceedings have ended in some other way.

2. Before submitting the petition referred to in subsection 1, the petitioner shall inform the appropriate administrative body, agency or department or the appropriate company operating under the aegis of that body, or the public servant, as to his complaint regarding the way in which that body or public servant has acted, and give that body or public servant an opportunity to explain its or his point of view. If the body or public servant has been so informed within one year of the date on which the act took place, the term of one year referred to in subsection 1 shall end one year after the date on which it or he was so informed.

3. The petition should contain:

a) the name and address of the petitioner;

b) as clear as possible a description of the act concerned and the name of the person whose actions are complained of and the name and address of the person against whom the act was directed;

c) the reasons why the petitioner believes the complaint to be justified;

d) the name of the person who was informed as described in subsection 2 and the manner in which that person was informed and, if that person has explained his point of view on the matter, a statement of that point of view.

4. Unless section 16 applies, the Ombudsman shall be entitled, and, unless section 14 applies, shall also be obliged to grant a petition as referred to in subsection 1.

Section 13

If some other statutory remedy is available to the petitioner under administrative law regarding the act complained of in the petition, the Ombudsman shall refer the petitioner forthwith to the competent authority and shall submit the petition to such body after the date of receipt has been noted on it.

For the purposes of the rules governing the remedy available, the petition shall be deemed to satisfy the provisions of such rules governing the way in which the petition should be lodged and completed. Moreover, the date of receipt of the petition by the Ombudsman shall be deemed to be the date on which proceedings are initiated before the body referred to in such rules. The said body shall allow the petitioner thirty days (from the date of notification), to complete or amend the petition in accordance with the relevant rules and to pay such fees as may be owed for the case to be heard.

Section 14

The Ombudsman shall not be obliged to institute or to continue an investigation as referred to in section 12, subsection 1, if:

a) a petition is filed too late or does not meet the requirements listed in section 12, subsection 3;

b) the petition is manifestly unfounded;

c) the interest of the petitioner or the seriousness of the act is manifestly insufficient;

d) the petitioner is not the person affected by the act in question;

e) a petition concerning the same act is either being considered by himself or by a parliamentary committee empowered to deal with petitions, or - unless a new fact or a new circumstance has come to light which might justify a different evaluation of the said act - has been dealt with by him or has led to a proposal to the Upper or Lower House of Parliament or to a joint session of either House of Parliament by the parliamentary committee;

f) a statutory remedy under administrative law was available to the petitioner but was not used;

g) judgement has been passed by a judicial body other than pursuant to a statutory provision of administrative law;

h) the administrative body, agency or department or the appropriate company operating under the aegis of that body, or the public servant, was not informed of the complaint against the act by the petitioner or the person against whom the act was directed and was not given an opportunity to explain its or his point of view;

i) if a case is pending before a court or tribunal concerning an act by an administrative body, which act is closely related to the substance of the petition, or if such a case is pending before any other body invested with judicial authority under statutory administrative provisions.

Section 15

Unless section 16 applies, the Ombudsman shall be entitled to institute an investigation on his own initiative into the way in which an administrative body has acted in a particular matter.

Section 16

The Ombudsman shall not be entitled to institute an investigation as referred to in sections 12, subsection 1, or 15:

a) concerning matters of general government policy, including general policy on the maintenance of law or matters which fall within the ambit of the general policy of the administrative body concerned;

b) concerning binding regulations of a general scope;

c) if a statutory remedy is available under administrative law in respect of the act in question, unless section 6:12 of the General Administrative Law Act is applicable, or proceedings have been instituted to obtain such a remedy;

d) if proceedings concerning the act in question have been instituted before a judicial body other than pursuant to a statutory provision of administrative law, or if appeal is available against a judgement given in such proceedings;

e) if a judgement has been given by a judicial body in respect of the act in question pursuant to a statutory provision of administrative law;

f) in matters relating to taxes and other impositions if a remedy has been available under administrative law in respect of the act in question.

Section 17

1. If the Ombudsman decides not to grant a petition to institute an investigation on the grounds referred to in sections 14 or 16 or not to continue an investigation he shall inform the petitioner as soon as possible in writing. giving his reasons.

In the event that he does not continue an investigation, he shall also inform the administrative body and, where appropriate, the public servant in question. With a view to the provisions of subsection 3, he shall take into account the last sentence of section 19, subsection 4, of this Act and section 10 of the Government Information (Public Access) Act.

2. If, pursuant to the provisions of section 14, subsection 1 (h), the Ombudsman decides not to institute an investigation or does not continue an investigation, he shall make known to the petitioner the possibility of informing the administrative body, agency or department or the company operating under the aegis of that body, or the public servant, as to his complaint regarding the way in which that body or public servant has acted, giving that body or public servant an opportunity to explain its or his point of view.

3. The Ombudsman shall agree to a request by any person for a copy of or excerpt from the written statement referred to in subsection 1. With regard to the fees for providing such information or the provision free of charge of such information, the provisions of or pursuant to the Civil Cases (Fees) Act (Bulletin of Acts, Orders and Decrees 1960, 541), shall apply mutatis mutandis. The Ombudsman shall also make the statement available for public inspection in a place to be designated by him.

Section 18

1. The Ombudsman shall give the administrative body, the person responsible for the act in question, and in the case referred to in section 12, subsection 1, the petitioner, the opportunity to explain their point of view either in writing or verbally and, at the discretion of the Ombudsman, either in each other's presence or not.

2. The parties concerned may be represented or assisted by counsel. The Ombudsman may refuse to hear as representative certain persons who make it their business to give legal assistance, but who are not advocates or solicitors.

Section 19

1. The Ombudsman shall be entitled to order the attendance of the administrative body and the person responsible for the act in question, witnesses and, in the case referred to in section 12, subsection 1, the petitioner. The person whose attendance is ordered must provide the Ombudsman with the information needed by him for his investigation, and must for that purpose appear in person before him. The same duties rest on any official body, provided always that the body decides which member is to discharge its obligations, unless the summons designates one or more members. Save for witnesses, persons whose attendance is required may be assisted by counsel.

2. The obligation to appear before the Ombudsman shall not apply to Our Ministers. If a Minister does not appear in person, he shall appoint a representative.

3. The Ombudsman may obtain information concerning acts committed on the responsibility of a Minister or an administrative body from the public servants concerned only through the Minister or the administrative body in question.

4. The persons whose attendance is required under subsection 1 may refuse to give information on the grounds that they are under a duty of secrecy by virtue of their office or profession, but only regarding matters which have been disclosed to them in such capacity. Public servants may refuse to give information on the ground of the duty of secrecy imposed by the Public Service Personnel Act, the Military Personnel Act 1931, or the Police Act only if the provision of the information required would be contrary to any other statutory provision concerning secrecy or to the interests of the State.

The Ombudsman may request the body from which information may be sought under subsection 3 to submit a special written confirmation to substantiate the claim of secrecy.

The body may decide that the duty of secrecy will be waived in respect of information to the Ombudsman only on condition that the information remains secret.

5. The body from which information is sought may be represented when the public servants are interviewed.

Section 20

1. The Ombudsman shall be entitled to entrust certain work to experts. He shall also be entitled to obtain the assistance of experts and interpreters to further his investigations. Persons summoned as experts or interpreters shall be obliged to appear before the Ombudsman and render their services.

2. Subsections 3, 4 and 5 of section 19 shall apply mutatis mutandis to experts who are also public servants.

3. Experts and interpreters shall be under a duty of secrecy in respect of matters that have become known to them in the course of their duties.

Section 21

1. Summonses to attend under sections 19 and 20 shall be sent by registered letter.

2. The Ombudsman may order that persons who fail to appear despite an official summons to attend, shall be brought before him by the police to discharge their obligations.

Section 22

1. The Ombudsman may order that witnesses shall not be heard and that interpreters shall not be permitted to carry out their duties until they have taken an oath or made a solemn affirmation.

2. In such cases, they shall take the oath, or make the solemn affirmation, in the presence of the Ombudsman; if they are heard as a witness they shall swear to speak the whole truth and nothing but the truth; the interpreters shall swear to carry out their duties meticulously.

3. The experts shall be obliged to perform their task impartially, and to the best of their ability.

Section 23

1. Persons summoned to attend under this Act shall receive, on request, payment of their travelling and accommodation expenses and compensation for lost working hours from government funds in accordance with the provisions of the Fees in Civil Cases Act.

2. Unless provided otherwise by order in council, persons referred to in subsection 1 who are public servants shall not receive any payment as referred to in section 1 if they are summoned to give evidence in their capacity as public servant.

3. The Ombudsman shall determine the compensation to be paid in accordance with this section.

Section 24

1. On the written request of the Ombudsman, documents or papers or copies of documents or papers drawn up in performance of the government's task in the matter concerned, shall be submitted to him for the purposes of the investigation. Section 19, subsections 3 and 4, shall apply mutatis mutandis.

2. If he considers it necessary, in the interests of the investigation the Ombudsman may enter without consent any place other than a dwelling where the administrative body responsible for the act under investigation carries out its duties. He may enter a residence only with consent of the occupier.

3. Our Ministers may deny entry to certain places to the Ombudsman if in their opinion entry would endanger the safety of the state.

Section 25

1. Before closing the investigation, the Ombudsman shall communicate his findings to the administrative body concerned in writing and, in appropriate cases, to the public servant whose actions have been the subject of the investigation, and in the case referred to in section 12, subsection 1, to the petitioner.

2. The Ombudsman shall give the administrative body, the public servant and the petitioner the opportunity to comment on his findings within a period fixed by him.

Section 26

1. The Ombudsman shall determine whether or not the administrative body concerned has acted properly in the matter under investigation.

2. If a judicial body has passed judgement, other than pursuant to a provision of administrative law, in respect of the act to which the Ombudsman's investigation relates, the Ombudsman shall take into account the legal grounds on which the judgement was based either in whole or in part.

Section 27

1. When an investigation has been closed the Ombudsman shall draw up a report of his findings and his judgement. With a view to the provisions of subsection 4, he shall take into account the last sentence of section 19, subsection 4, of this Act and section 10 of the Government Information (Public Access) Act.

2. The Ombudsman shall send his report to the administrative body concerned and, where appropriate, to the public servant whose actions have been investigated. If the investigation was carried out in response to a petition as referred to in section 12 he shall also send his report to the petitioner.

3. If he deems fit, the Ombudsman may notify the body concerned of any measures which he considers should be taken.

4. The Ombudsman shall provide anyone who asks for it with a copy of or an extract of a report as referred to in subsection 1. The provisions of the Fees in Civil Cases Act and provisions made pursuant to it shall apply mutatis mutandis to the assessment of costs or exemption from the payment of costs. He shall also deposit a copy of the report for public inspection at a place to be designated by him.

5. In all other respects, the Ombudsman shall be under a duty not to disclose matters that have become known to him in the exercise of his duties, in so far as the nature of such matters makes this necessary.

Section 28

1. The Ombudsman shall submit yearly a report of his activities to either House of Parliament and to Our Ministers. Section 10 of the Government Information (Public Access) Act shall apply mutatis mutandis, provided always that the Ombudsman may add items to be communicated confidentially to the members of Parliament and Our Ministers.

2. He shall publish the report and make it generally available.

3. The Ombudsman may also notify either House of Parliament of his findings and judgement immediately after closing an investigation, whenever he deems earlier communication necessary or whenever one of the chambers requests such information.

CHAPTER III. TRANSITIONAL AND FINAL PROVISIONS

Section 29

Proposals for decrees implementing this Act shall be submitted to Us by Our Minister for Home Affairs.

Section 30

Section 12 shall not apply with regard to acts performed by bodies designated by order in council as referred to in section 1 a, subsection 1 (d) prior to the date on which the said order in council came into force.

Section 31

This Act may be cited as: National Ombudsman Act.