The right of military personnel and militarised agents to complain to the Ombudsman – prior exhaustion of recourses available within the military hierarchy; limitation of complaints to the Ombudsman about actions or omissions of the armed forces to cases in which there is a breach of the constitutional rights, freedoms or guarantees of the complainant military personnel or agents themselves.
Right of complaint
Restrictions on fundamental rights
Principle of proportionality.
RULING No. 404/12
18 of September of 2012
The law requires military personnel and militarised agents to exhaust the various forms of recourse available within the military hierarchy as a prior condition before they can make a complaint to the Ombudsman. This requirement reflects a balanced consideration of the nature of the military institution and its functional demands and the specific statute governing the persons who serve in the military. The fact that access to a protected asset is thereby rendered more difficult does not mean that there is a disproportionate sacrifice of the right of complaint, in its role as a fundamental right of citizenship, and the Court therefore declined to declare the norm that imposes the requirement unconstitutional.
However, restricting the possibility of complaining to the Ombudsman with regard to actions or omissions on the part of the armed forces to cases in which there is a violation of the plaintiff military personnel’s own constitutional rights, freedoms or guarantees was declared unconstitutional, because it was in breach of the constitutional guarantee under which citizens are entitled to complain to the Ombudsman with regard to actions or omissions of the public authorities – a guarantee whose nature is itself that of a fundamental right.
The Ombudsman asked for an ex post facto abstract review of the constitutionality of two norms contained in the National Defence Law. The first of the contested norms says that, before serving military personnel can complain to the Ombudsman, all the forms of recourse within the military hierarchy must have been exhausted. The second of the norms before the Court limited the ability of serving members of the military to lodge complaints with the Ombudsman to cases involving actions or omissions on the part of the armed forces that result in violations of the plaintiffs’ own constitutional rights, freedoms or guarantees or in losses to those plaintiffs.
The Court recalled that when the Constitution instituted the office of Ombudsman as an organ to which citizens can complain against actions or omissions by public authorities, it created an additional guarantee designed to protect the rights and interests of private individuals. The extent of the possible scope of such complaints clearly shows that the office of Ombudsman is an organ whose function is to guarantee the Constitution and is not limited to the defence of fundamental rights, but is also intended to prevent and repair injustices derived from illegalities, or from breaches of constitutional principles that are binding on the discretionary actions of the Administration. The Constitution also states that the Ombudsman’s work is independent of both the non-judicial and the litigious recourses provided for in the Constitution itself and the ordinary law.
Maintaining its previous jurisprudence, the Court was of the view that when the norm before it imposed the prior exhaustion of the administrative recourses provided for by law, as a condition for the exercise of the right to complain to the Ombudsman, the goal was only to make this right autonomous from other rights to make claims or to appeal. This requirement only signifies that a complaint to the Ombudsman must follow on from an action or omission by the ultimate entity in the administrative hierarchy in question.
The fact that the Constitution says that the work of the Ombudsman is independent of the non-judicial and litigious recourses that both it and the ordinary law provide for does not stand in the way of this interpretation, because this formulation refers to the actions of the Ombudsman him/herself and in practice is directly reflected in his/her ability to act on his/her own initiative.
Specifically with regard to the right to complain, the fact that the Ombudsman’s role is independent of any non-judicial or litigious legal recourse simply means that we are in the presence of instruments that together accumulate more than one form of protection, inasmuch as they are subject to different prerequisites and pursue different objectives; resorting to non-judicial or litigious means does not entail any reduction in the ability to exercise the right of complaint. The requirement that a serviceman or woman who wants to complain must first resort to all the means at his/her disposal within the military hierarchy does not preclude the availability of the right of complaint, and when the procedure applicable to the latter is initiated, it is not influenced by the way in which the preceding hierarchical process took its course and was decided.
It is true that by imposing the requirement to resort first to the formats which the law offers within the military hierarchy, the legislator deprives the interested party of a free choice as to which initiative to take, and of the ability to simultaneously pursue the military option and the right of complaint. To this extent, while this rule does not compress the content of the latter right, it does have a disadvantageous effect on the ability of military personnel or militarised agents to activate the constitutional-law position provided to them by the constitutional right to complain to the Ombudsman.
In order to determine whether this solution is constitutional it is thus indispensable to apply the parameters that pertain to a state based on the rule of law – particularly those that fall within the framework of the principle of proportionality. Be that as it may, there can be no doubt that the exact outlines of the categories of parameters applicable to conditioning factors and restrictions are somewhat fluid ones.
The text of the Constitution does not expressly authorise the legislator to restrict the right to complain to the Ombudsman – a restriction which in the present case took the shape of the exclusion of the immediate exercise of the right of complaint.
The Court recalled that both legal doctrine and jurisprudence have been accepting the existence of restrictions on fundamental rights that are not expressly authorised by the Constitution, seeing them as unwritten limits that are made necessary by the requirement to safeguard other rights or assets which the Constitution also guarantees.
In the present case the constitutional-law asset that it is also necessary to safeguard was the defence of the nation, which the state ensures via the armed forces. This is an asset that legitimates important restrictions on fundamental rights.
In its jurisprudence the Court has expressed the view that the specific requirements of the military institution justify the subjection of those who serve in it to a specific statute, with duties in terms of behaviour and limitations on rights that are not imposed on citizens in general.
The Court said that it was necessary to gauge whether service in the military is or is not a good enough reason for the particular regime to which the norms before the Court subject the right to complain to the Ombudsman.
It expressed the view that, from the point of view of constitutional legitimacy, it is justified for a situation in which a serviceman or woman questions a decision that affects him/her to be brought first of all before whoever possesses the power to reconsider and possibly revise that decision, within the respective hierarchical chain of command. In order to safeguard the hierarchical principle, only a definitive decision by the armed forces command structure ought to be binding on those forces where the Ombudsman is concerned.
On the question of the constitutionality of the legal solution that limited the ability to make complaints to the Ombudsman to actions or omissions on the part of the armed forces that result in violations of the plaintiff military personnel’s own constitutional rights, freedoms or guarantees, or in losses to those plaintiffs, the Court held that the norm possessed an efficacy that excluded some contents of the right to complain to the Ombudsman, in a manner that, without reasonable grounds for doing so, contradicted the constitutional design of an institution whose purpose is to control public authorities. As such, the norm excluded violations of those of a plaintiff’s fundamental rights that do not possess the nature of constitutional rights, freedoms or guarantees, the violation of other rights that pertain to the plaintiff but are not fundamental rights, any rights pertaining to third parties, and any damage to interests that are not protected by rights, whether those interests pertain to the plaintiff or to third parties. This compression of the content of the right of complaint is not compatible with the normative indications laid down by the Constitution, which enshrine the right to complain against actions or omissions on the part of public authorities, without any restriction, and the Court therefore declared this norm unconstitutional.
The Ruling was the object of two dissenting opinions with regard to the question of the prior exhaustion of all forms of recourse within the military hierarchy.
Rulings nos. 103/87 (24-03-1987), 662/99 (07-12-1999), and 229/2012 (02-05-2012).