Law on the complaints commissioner (Ombudsman/woman) of the Canton of Basel-Stadt of March 13, 1986 (Status as of 28 April 2013).
Based on the initiative aimed at better protection of the constitutional rights of citizens and stronger parliamentary control, the Great Council of the Canton of Basel-Stadt proclaims the following Law:
I. Organization and Responsibilities
- Within the range of his/her responsibilities, the Ombudsman/woman of the Canton of Basel-Stadt aims at improving protection of the constitutional and statutory rights of the individual citizen. He/she also seeks to improve parliamentary control over the public administration.
- 2 The Ombudsman/woman fulfils his/her tasks
a) by helping individuals in their dealings with the public administration, namely in maintaining their rights and interests vis-à-vis the administration, and by mediating in disputes.
b) by encouraging administrative agencies to be considerate towards the public, but also by protecting the administration against unjustified criticism;
c) by reporting to the Great Council (cantonal parliament) on his/her activities.
- The Great Council elects the Ombudsman/woman by an absolute majority for a term of six years; the application for this election is put forward by a special commission of persons eligible to vote in cantonal affairs. The activities and the number of members of this special commission are determined by the provisions on the electoral commission for the public prosecutor (§§ 40 and 52 of the Law on the Great Coucil).
- 2 The ranking of the Ombudsman/woman is equal to that of the highest cantonal judges; he/she is domiciled in the Canton of Basel-Stadt.
- 3 The Ombudsman/woman shall not exercise any other public function or engage in any other professional activity, nor be member of the board of directors of an enterprise or take on a leading position in a political party. The Great Council may, however, allow exceptions to this rule.
- The Ombudsman’s/woman’s Office is organizationally subordinate to the Office of the Great Council.
- 2 It prepares its budget independently.
- Unless otherwise provided in this Law, the Ombudsman/woman and all personnel working for the Ombudsman’s/woman’s Office are subject to the cantonal laws on personnel.
- 2 The Ombudsman/woman is responsible for personnel matters pertaining to other employees of the Ombudsman’s/woman’s Office and for any employment law issues relating to his/her staff. Appeal procedure is determined by §§ 40 ff of the laws on personnel (Personalgesetz).
- 3 All personnel of the Ombudsman’s/woman’s Office follow only the instructions of the Ombudsman/woman.
- 4 The Office of the Great Council decides on the classification of personnel into salary categories after consultation with the central Human Resources service. The classification is based on the principles defined by the Salary Act (Lohngesetz) of January 18, 1995.
- 5 Employees may challenge decisions concerning their classification and/or refusal of classification by lodging an appeal with the Office of the Great Council within 30 days. The Office of the Great Council makes its decision after consultation with the Evaluation Committee.
II. Scope of activities
- The Ombudsman/woman has jurisdiction over the activities of all cantonal agencies, organizations and institutions, except where they engage in private enterprise.
- 2 The following are excluded from the Ombudsman's/woman's jurisdiction:
a) the Great Council
b) other authorities charged with the preparation, promulgation, modification and approval of decrees with generally binding effect;
c) bodies with judicial independance, but only as far as their judicial function is concerned;
d) other agencies with respect to their handling of formal complaints against decisions of lower agencies as long as such complaints are pending; the Ombudsman/woman may, however, intervene when the agency refuses to decide, defers a decision unduly or otherwise violates official duties.
e) churches subject to public law, and the Jewish Community;
- 3 Institutions and organizations subject to private law only come within the jurisdiction of the Ombudsman/woman if they exercise public functions or if they are predominantly financed by the canton.
- The services of the Ombudsman/woman are open to anyone who feels aggrieved by illegal or incorrect administrative action. The complaint can pertain to a current or a concluded matter; however, it does not have the effect of suspending the proceedings.
- 2 The Ombudsman/woman may also investigate on his/her own motion or on the initiative of a body within his/her jurisdiction.
- The Ombudsman/woman decides himself/herself to what extent he/she will take on a matter and whether he/she will conduct an investigation.
- 2 He/she will refuse or discontinue an investigation:
a) if a matter is not within his/her competence;
b) if a complainant cannot establish legitimate public or private interest or if he acts vexatiously, recklessly or otherwise not in good faith;
c) if another way of settling the matter appears more reasonable.
- If the Ombudsman/woman opens an investigation, he/she establishes the facts, informs the agency involved and examines whether the latter acted in a lawful, reasonable, and adequate way.
- 2 The Ombudsman/woman is entitled to
a) request oral or written information as well as access to all relevant records and files from bodies within his/her range of competence at any time, notwithstanding official secrecy;
b) question persons who can provide useful information;
c) carry out inspections and make visits to the premises.
d) consult experts on matters which require specialist knowledge.
- Based on the results of his/her investigation, the Ombudsman/woman makes a decision on a matter.
- 2 He/she may
a) give the complainant advice on how to proceed;
b) discuss the issue with the agency in question;
c) issue a written recommendation for the attention of the agency in question. This recommendation will also be made known to the superior agency, the complainant, and, as far as the Ombudsman/woman deems appropriate, to other persons and bodies involved or interested.
- 3 However, the Ombudsman/woman may not take concrete measures or give instructions to authorities, nor is he/she entitled to quash or modify a decision.
The services of the Ombudsman/woman are free of charge.
IV. Professional secrecy
- The Ombudsman/woman is equally bound to confidentiality towards the complainant and third parties as are the agencies involved.
- 2 All members and employees of administrative agencies falling within the authority of the Ombudsman/woman are exempt from professional secrecy towards the latter.
- 3 The following persons and bodies may refuse to give information or deny access to the records:
a) anyone who by giving information might expose him/herself or his/her kin to criminal prosecution. The following are considered kin under this law: the spouse or divorced spouse, relatives and in-laws in ascending and descending order, siblings, brothers-in-law and sisters-in-law, stepparents, stepchildren, stepbrothers and stepsisters, adoptive parents and adopted children as well as foster parents and foster children;
b) members of the clergy, attorneys, notaries, auditors bound to professional secrecy by the Code of Obligations, medical doctors, dentists, pharmacists, and midwives, insofar as answering the Ombudsman's/woman's questions would oblige them to disclose confidential information received in the course of their professional activity; the same applies to their assistants and to third parties enlisted for professional support.
c) representatives of an authority or public servants as far as they would be obliged to disclose confidential information which they received by virtue of their position and which they are bound to keep secret by a special order or decision. The state council may order a refusal to give information and access to records only where security and the common public welfare absolutely warrant it.
V. Report to the Great Council
- The Ombudsman/woman gives the Great Council a detailed report on his/her activities at least once every year. He/she draws attention to shortcomings of the law in force and of the administration, and may also propose ideas for reform on a legal, organizational, or administrative level.
- 2 When the Great Council considers the Ombudsman's/woman's report, the latter cannot be obliged to divulge any information on matters falling within his/her professional secrecy or to disclose any documents he/she was given access to.