A State Act to Establish the Office of an Ombudsman in

Rhineland-Palatinate

3 May 1974, as amended on 5 November 1974

§ 1

Duties

(1)  The Ombudsman has the duty to strengthen the position of private individuals when they interact with public authorities by performing a role of legislative oversight over those public authorities under the parliamentary control of the State Parliament.

(2)  The Ombudsman acts in accordance with his or her duties under this Act if complaints addressed to the State Parliament or the Petitions Committee, or any other source provide him or her with reasonable grounds to believe that the settlement of citizens’ matters by bodies under the parliamentary control of the State Parliament is or has been contrary to law or inefficient.

(3)  Complaints addressed to the State Parliament or the Petitions Committee shall be referred to the Ombudsman.

§ 2

Right to submit complaints

(1)  Any person may apply by written or oral complaint to the Ombudsman to investigate a grievance, who shall accept these complaints on behalf of the State Parliament.

(2)  Where a letter written by a person imprisoned or otherwise restricted in his or her liberty is addressed to the Ombudsman, it shall be immediately forwarded unopened to the Ombudsman.

§ 3

Limits of the right to investigate

(1)  The Ombudsman shall decide not to investigate because

a)   there is no competence or legal basis in the matter for a State authority to intervene;

b)   an investigation must not relate to pending legal proceedings or a judicial decision must not be reviewed; nothing in this Act shall, however, interfere with the right of the Ombudsman to investigate the behaviour of the bodies referred to under § 1 subsection (2) when they are involved in pending proceedings or the decision has become final and absolute;

c)   the complaint is based on a decision that is final and aims at a revision or abrogation of judgement;

d)   the case is the subject of a preliminary investigation conducted by a prosecutor; the Ombudsman may, however, decide to investigate if there was unreasonable delay in the dealing with the subject matter of the complaint;

e)   the case is being or has been investigated in accordance with Article 91 of the State Constitution.

(1)   The Ombudsman may decide not to investigate because

a)   the complaint does not state the full name or address of the petitioner or is illegible;

b)    the complaint is trivial or incoherent;

c)    the subject matter of the complaint relates to an offence;

d)   the case referred to has already been examined and the complaint does not provide any further information.

(1)  If the Ombudsman decides not to investigate, he or she shall inform the citizen of his or her decision stating the reasons therefor and report the decision to the Petitions Committee; in case of subsection (1) a) he or she may refer the complaint to the appropriate body for consideration.

§ 4

Powers

As permanent agent of the Petitions Committee, the Ombudsman is empowered to require that the State government, all State authorities, the bodies, institutions and foundations established under public law, insofar as they are subject to the control of the State, permit him or her

a)      to obtain oral and written information,

b)      to examine files and records,

c)      to gain access to the public institutions under their management.

The Ombudsman has the same powers in matters where legal entities established under private law, non-incorporated associations, and natural persons are involved, insofar as they perform public activities under State jurisdiction. If the entities referred to under this section refuse to co-operate, the members of the Petitions Committee shall decide if they want to avail themselves of the rights vested in them by the Constitution in accordance with Article 90 a of the State Constitution.

§ 5

Investigation

(1)  Prior to launching an investigation, the Ombudsman shall give the appropriate authority an opportunity to remedy the grievance. He or she shall seek a friendly solution. For this purpose, he or she may make a recommendation and state the reasons therefor; the recommendation shall also be referred to the responsible Minister. The Ombudsman shall inform the Petitions Committee at its next session of the friendly solutions.

(2)  The appropriate authority shall report to the Ombudsman in due time or upon request upon the steps taken, the continuation and the outcome of the investigation.

(3)  Where no friendly solution can be found, the Ombudsman shall bring the complaint before the Petitions Committee and make a suggestion on how the case could be solved. Prior to forming a final opinion, the Petitions Committee may also instruct the Ombudsman to complement his or her investigations.

(4)  The Ombudsman may decide not to act in accordance with subsection (1), if the facts of the case and the legal status suggest that the case should be examined by a court; § 3 subsection (3) of this Act applies analogously.

(5)  The Ombudsman shall inform the citizen in writing of the steps taken by his or her office or the appropriate authority.

§ 6

Assistance

The State government, all State authorities, and the bodies, institutions and foundations established under public law and placed under State jurisdiction shall render the Ombudsman assistance in carrying out all enquiries he or she deems necessary.

§ 7

Presence and duty to report

(1)  The State Parliament and the Petitions Committee may request the Ombudsman’s presence at any time.

(2)  The Ombudsman may take part in all sessions held by the Petitions Committee. He or she must be heard at his or her request.

(3)  The Ombudsman shall make a written overall report annually to the State Parliament upon the exercise of his or her functions by 31 March. He or she must be present when the annual report is discussed by the State Parliament and the individual committees and is obliged to report on demand.

(4) At the request of the Petitions Committee, of a parliamentary party or of one fifth of the members of the State Parliament, the Ombudsman must report at any time to the Petitions Committee upon individual cases.

§ 8

Confidentiality

(1)  The Ombudsman’s obligation to maintain confidentiality in respect of all matters that come to his or her knowledge in performing his or her duties under this Act stretches beyond the end of his or her term of office. The Ombudsman is pledged to the same secrecy concerning all information received by him or her as Ombudsman and concerning facts that are obvious or insignificant to such an extent that they do not require confidentiality.

(2)  Even after leaving his or her office, the Ombudsman must not, without foregoing consent, give evidence in a court or out of court or make statements. The consent is given by the Speaker of the State Parliament after hearing the citizen concerned and the member of the State government responsible in the matter.

(3)  Nothing in this Act shall affect the legal obligation to prosecute an offence or avert an imminent danger to the existence of the free democratic basic order.

§ 9

Election and term of office

(1)  The State Parliament shall elect the Ombudsman by secret ballot with the majority of its members. There is no debate.

(2)  Every German who is eligible to the House of Representatives and has attained the age of thirty five years is eligible for election.

(3)  The Ombudsman shall hold office for a term of eight years. He or she may be reelected.

§ 10

Employer/employee relationship

(1)  In accordance with this Act, the Ombudsman is a member of the public service of the State Rhineland-Palatinate.

(2)  The Ombudsman becomes a member of the public service upon delivery of the appointment instrument by the Speaker of the State Parliament. The Ombudsman is sworn to office by the State Parliament.

(3)   The Ombudsman ceases to be a member of the public service

a)      if he or she is no longer eligible for office,

b)      if his or her term of office terminates,

c)      if he or she dies,

d)      if he or she is removed from office (§ 11 subsection 1),

e)      if he or she resigns the office (§ 11 subsection 2),

f)        if a new Ombudsman is appointed because the Ombudsman is impeded
    (§ 13 subsection 2).

(1)  The Ombudsman must not be member of a government or legislative assembly of the Federation or a State, or of a representative body at a municipal level. No person while holding office shall engage in any other occupation, business or profession or be a participant in the management or administration of an enterprise operating for profit.

§ 11

Removal and resignation

(1)  The State Parliament may remove the Ombudsman from office with a majority of two thirds of its members upon a motion of a parliamentary party or of one third of its members. The members of the State Parliament shall vote on the motion of removal at the earliest within two weeks and at the latest within four weeks of the motion’s arrival at the office of the Speaker of the State Parliament.

(2)  The Ombudsman may, at any time, tender his resignation. The Speaker of the State Parliament shall pronounce the resignation.

§ 12

The office of the Ombudsman

(1)  The Ombudsman shall have his or her office at the State Parliament.

(2)  The Ombudsman may demand such employees as he or she considers necessary for the efficient operation of his or her office. The Ombudsman is empowered to exercise supervision over his or her staff. Upon his or her recommendation, the officials are appointed and dismissed by the Speaker of the State Parliament.

(3) The Ombudsman’s budget shall be charged to the budget of the State Parliament.

§ 13

Prevention from holding office

(1)  If the Ombudsman is prevented from performing the functions of his or her office, the senior member of the senior service shall act for him or her until the Ombudsman is able to hold office again.

(2)  If the Ombudsman is prevented from performing the functions of his or her office for more than six months, the State Parliament may elect a new Ombudsman.

§ 14

Remuneration

(1)  The Ombudsman shall receive the salary laid down in the grade B 9 of the German Higher Civil Service, including generally granted allowances added to the basic salary, and a monthly expense allowance provided for in the budget. In addition, the Ombudsman is entitled, in analogy to the legal provisions applicable to civil servants, to be paid a local weighting allowance and dependent child’s allowance, separation allowance, travelling and removal expenses, as well as allowances in the events of illness, birth and death.

(2)  The Ombudsman is also entitled to be annually paid an extra benefit in analogy to the State Act on the Grant of an Annual Extra Benefit (Extra Benefit Act) of 19 November 1970 (GVBl. p. 407), as amended by the State Act of 15 December 1972 (GVBl. p. 373), BS 2032-16, as amended.

(3)  In all other instances sections 10 to 18 of the State Act on the Legal Relations of the Members of the State Government of Rhineland-Palatinate of 17 July 1954 (GVBl. p. 91), as amended by the State Act of 24 February 1971 (GVBl. p. 58), BS 1103-1, shall apply analogously with the provision that the term of office shall not be of four years (§ 12 of the Minister Act) but of eight years.

§ 15

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§ 16

List of posts

Subject to the consent of the Budget and Finance Committee of the State Parliament, the Minister of Finances is empowered for the financial year 1974 to create as many posts as are necessary for the enforcement of this Act. The next budget proposal shall determine whether the number of posts remains the same or not.

§ 17

Entry into force

This Act enters into force on the day after its publication.