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The Ombudsman of Spain contemplates the possibility of letting children outdoors in a limited way and with the necessary precautions

The Ombudsman of Spain contemplates the possibility of letting children outdoors in a limited way and with the necessary precautions

04-17-2020

The acting Ombudsman of Spain, Francisco Fernández Marugán, is in permanent contact with all the administrations (state, autonomous and local) to transmit the citizens’ complaints and concerns received by the Insitution in regards to the Covid-19 health crisis.

The Institution conveyed to the Minister of Health, Salvador Illa, his concern for the situation of children who are confined in their homes, especially since the exceptional measures have been maintained for a long period of time.

The Ombudsman understands and shares the concern expressed by many citizens for the physical and mental health of children. He also notes that living conditions for children and their families are very difficult when the number of family members is high and housing dimensions are small.

Even though the Institution appreciates the effectiveness of movement restrictions to stop the epidemic from spreading, it believes that as long as it is possible and there are no technical objections, minors should be allowed to leave the house with their parents. Such freedom of movement should be limited in space and time, in a controlled manner, as it is already the case in some of our neighbouring countries.

Freedom of movement restrictions recommendations

The Ombudsman has made three recommendations to the State Secretariat for Security to protect citizens facing rights restrictions established in the state of alarm decree that ensures equal treatment throughout the territory (in spanish)

The Institution received a complaint from the Human Rights Association of Andalusia claiming that the lack of administrative information prevents citizens from knowing in advance the restrictions imposed on their fundamental right to freedom of movement. In the opinion of this association, the rule may generate legal insecurity for citizens since it establishes that the agent of authority is the one who has the power to decide whether or not a person is legitimately leaving the house and, therefore, whether or not the person can be sanctioned.

To prevent these rights violations from happening, Fernández Marugán recommended that internal instructions be drafted for the Directorate General of the Police and the Directorate General of the Guardia Civil. This instruction should clarify the cases in which certain activities carried out by citizens cannot be sanctioned because they are covered by the exceptions set in the Royal Decree declaring the state of alarm.

In addition, the Ombudsman has requested that instructions be made public so that citizens are aware of the limits and restrictions of their fundamental rights that have been affected by the state of alarm, guaranteeing, as established by current regulations, the “integrity, veracity and updating of the information”.

After noting that some local authorities have established new restrictions to those already imposed by the state of alarm decree, the Institution recommended local entities to quickly eliminate any statement or public annoucement that contains greater restrictions than those already contemplated in the Royal Decree in order to guarantee equal treatment of citizens throughout the national territory.

Given the significant figures for arrests (2.845 people) and sanctions (330.135) published by the Ministry of the Interior between 15 March and 4 April, the Ombudsman also asked the Ministry of the Interior for information about the sanctioning files initiated by the National Police Force and the Guardia Civil – the sanctions imposed by agents of both bodies – and the instructions issued to unify criteria on the treatment of sanctioning files. The objective of this data request is to carry out a global analysis of the sanctioning regime during the state of alarm, in order to certify whether correct and proportional action has been taken.

Retirement homes

The Ombudsman has been warning for years about the lack of means and personnel in many retirement centers spread throughout the country. These are structural problems that have resurfaced in all its severity with the current crisis.

In the Institution’s opinion, the residential system that provides general healthcare in Spain should not prevent residents from being referred to the appropriate public health system if problems are detected or more specialized care is needed. Another model of retirement homes focused on socio-sanitary healthcare with broader and more extensive medical and nursing care would be possible in Spain, however this has not been regulated nor organised in a general way for the whole system. With the current pandemic, the dramatic situation lived in many centres reflects the model’s difficulties in adopting sufficient measures of prevention and reaction and requires an in-depth review of the system.

In this context, the Institution is closely following the situation in retirement homes and has opened an ex officio action for all the regional councils with competence in the matter.

The Ombudsman asked them for information on aspects such as the measures adopted to provide or reinforce health care in public or private retirement centres, the protocols followed in referring residents to hospital centres, or the setting up of public or private centres of monographic assistance for Covid-19.

Moreover, the Institution believes that users’ relatives have the right to obtain complete and updated information on their health status. In addition, given the impossibility of visits, the Ombudsman wishes to emphasize the need to use practical and technological tools that allow users to communicate with their loved ones.

Other groups

The Ombudsman also carried out actions with the Secretariat of State for Security in order to tackle the problems that celiac people encounter when acquiring products suitable for them. The Federation of Celiac Associations suggested to the Institution that occasionally the establishments that sell these products are far from their homes and if they travel to obtain them they risk being fined.

After receiving a complaint from the association Plena Inclusion in which they denounced the harassment that some people with intellectual disabilities suffer when they go for therapeutic walks, walks that are allowed by the decree that regulates the state of alarm, the Ombudsman initiated another action before the Secretariat of State for Security. In his brief, Fernández Marugán proposed to the aforementioned administration that, given that from the regulatory point of view there is no impediment to these movements, it should carry out a campaign to disseminate and publicize the existence of these exceptions so that persons with disabilities are not victims of harassment or aggression. Furthermore, it calls for the punishment of those who, through their uncivil behaviour, violate the right of these persons to exercise their freedom of movement during the confinement decreed in the state of alarm.

Education

These days the Institution is receiving complaints for shutting schools down. Fernández Marugán is aware of the academic consequences that this health crisis will have on students, especially on those who cannot access e-learning systems because they do not have the necessary technical means or because of the lack of accessibility measures, which constitutes a factor of social inequality that compromises access to education under equal conditions.

The Ombudsman is checking on the guidelines agreed by both local and national governments in the Sectorial Conference so that no student is affected by this exceptional situation.

Fernández Marugán is in favour of establishing measures to help those students who have limited or no access to online training and considers it necessary to carry out educational reinforcements in future courses to make up for the training deficiencies that would have arisen. In his opinion, these reinforcements should be offered in this current situation and should be available for all students, not only for those with particular needs.

In some specific cases, the Institution already carried out actions to guarantee that minors with some type of disability can receive the support they need. The Ombudsman recalls that the various educational administrations must guarantee universal access to virtual education by complying with accessibility measures, so that all students can access the teaching content and carry out the proposed activities.

Situation in Ceuta and Melilla

The Ombudsman has takes into account the situation in the temporary stay centres for immigrants (CETI) in Ceuta and Melilla. Fernández Marugán has conveyed to the Ministry of the Interior and the Ministry of Inclusion, Social Security and Migrations his concern for the typical over-occupancy of these two centres where it is not rare to find a significant number of minors. He advocates continuing with the transfers to the peninsula to avoid contagion in premises that, in his opinion, are not prepared for such eventuality.

The Ombudsman is particularly concerned about the situation of families with children in these centres. Fernández Marugán has made a suggestion (in spanish)  to the General Commissioner for Aliens and Borders to urgently authorize the transfer to the peninsula of a Moroccan woman and her three children who have been in the CETI in Melilla for seven months. According to the complaint presented to the Institution by the Association for the Rights of Children, the woman is a victim of gender violence and suffers from chronic asthma, which makes her especially vulnerable to Covid-19. The woman’s brother, a legal resident, lives in the peninsula so they could be taken in immediately.

Moreover, the Institution knows about the situation of a young man who was placed in the “Gota de Leche” minors’ protection centre in Melilla; he recently reached adulthood and was left in street situation. The young man is waiting for a kidney transplant and undergoes dialysis every three days, in spite of staying in the tents located in the outskirts of the city. These facilities do not meet the required conditions to accommodate a patient with these characteristics.

Fernández Marugán made a suggestion to the Department of Economy and Social Policy of the city of Melilla to readmit the young man in the minors’ centre in accordance with the recommendations issued by the State Secretariat for Social Rights. The recommendation specifies that the stay of young people under guardianship who reach the age of majority will be extended, provided that they voluntarily decide to continue, until the end of this emergency period. In this sense, the Ombudsman emphasizes the special vulnerability of this young person due to his serious illness.

Foreign unaccompanied minors

The Ombudsman welcomes the fact that the Minister of Inclusion, Social Security and Migration have accepted the recommendations (in spanish) made by the Insitution at the beginning of March to improve the documentation of unaccompanied foreign minors and facilitate their transition towards adulthood under the same conditions as other young people in Spain and abroad.

With his resolutions, Fernández Marugán wanted to guarantee all the rights they have as children and to avoid that once they reach the age of majority they abandon their situation of documentary validity because of the high requirements that are demanded from them.

In his letter, the Minister accepts the recommendations and assures that he shares with the Ombudsman the need to establish mechanisms that allow minors who reach the age of 18 to access the labour market under the same conditions as young Spanish people or foreigners who live with their families.

In this way, the Minister explains that the reform of immigration law he plans to undertake will tackle the streamlining of minors’ documentation system to avoid that once they reach the majority of age they are forced to abandon their situation of documentary validity due to the high demand of requirements.

Fernández Marugán recommended modifications to the Immigration Regulations on the understanding that a strict interpretation of the current law leads to unfair and detrimental situations for these minors.

Throughout the years, the Institution has received numerous complaints that highlight the difficulties of these minors in gaining access to a residence permit and in renewing it once they reach the age of majority. The complaints received also show that an alarmingly high number of unaccompanied foreign minors do not obtain the residence authorization entitled to them while they’re underage.

The Ombudsman welcomes the fact that the Minister agrees with the institution’s arguments to modify the procedure for granting residence to which these minors are entitled, as well as to proceed with its renewal.

Worker protection

Throughout the state of alarm and confinement, the Ombudsman has undertaken several actions to improve the protection of workers, although he recognizes the extent of the measures taken to protect the self-employed, the unemployed and vulnerable groups affected by the Covid-19 crisis.

It is worth highlighting the action taken alongside the Ministry of Labour and Social Economy for the situation of many citizens currently unemployed, who were immersed in a labour change when the crisis broke out.

These are people who voluntarily left their company but were then unable to access the new job or were affected by the company’s termination of their contract during the trial period.

The SEPE denied them unemployment benefit (or assistance where it applies) on the basis of the regulations in force, which reserve such benefit for involuntary losses from work and not for voluntary ones. The regulation also considers the business termination of the contract during the trial period as a neutral situation, which only allows access to unemployment benefit when more than three months have passed since the previous loss of work due to voluntary departure.

As a result, these people are unemployed with no prospect of finding a new job in the short term and with no specific social protection, despite the fact that in many cases they meet the 360-day qualifying period.

The Defensor del Pueblo asked the Ministry of Labour a regulatory modification due to the current circumstances, so that voluntary leave in the cases discribed earlier be considered involuntary. In that case they would be entitled to unemployment protection.

Another noteworthy action undertaken by the Institution occurred after receiving numerous complaints from employees and self-employed workers from the town of Igualada in Barcelona (and other neighbouring municipalities), who were unable to go to their workplaces due to the harsh confinement measures ordered by the Generalitat de Catalunya, even before the state of alarm was declared and with much stricter travel ban requirements.

The Ombudsman asked to equate the rigorous confinement of these workers and the preventive isolation by Covid-19 with the social protection proper to temporary incapacity resulting from an accident at work. The Institution was pleased that its approach had been fully accepted in the Royal Decree Law 13/2020.

The Institution has also acted ex officio so that the period of preventive isolation for Covid-19, is considered a situation of temporary incapacity due to an accident at work by assimilation, instead of temporary incapacity derived from common illness by assimilation. The thesis of the Ombudsman was accepted by the regulations in Article 5 of Royal Decree Law 6/2020, recently modified by Royal Decree Law 13/2020.

Working conditions for civil servants

The Institution has initiated actions to analyse the working conditions in which agents of the State Security Forces and Corps, firefighters and prison officials are performing their work. Thus, for example, after receiving a complaint from the Professional Union of Police and Firefighters (SPPLB), the Ombudsman addressed the State Secretariat for Security to learn about the measures taken to protect their safety and health during the pandemic

A communication from the CSIF union on the situation of prison staff has also been registered by the Institution. In this regard, in a letter to the Minister of the Interior, the Ombudsman stated that these personnel provide an essential service and that, in his opinion, they should be provided with the Covid-19 detection devices, as well as the individual protection equipment necessary for their work.

Agricultural Workers Decree

The health crisis caused by Covid-19 has coincided with the beginning of the main harvest seasons in Spain. Those harvests do not count with enough labour force to carry them out, which could mean a shortage of certain food products with the consequent increase in prices. In this context, the Ombudsman advocated providing work permits to citizens who are in a regular situation in Spain but who cannot access the labour market because they do not have work permits, on the understanding that they could be incorporated into these tasks.

Last week, the Government adopted a decree approving the granting of work permits to young migrants who are no longer under guardianship, as proposed by the Ombudsman. Fernández Marugán hopes that future regulations will also include the possibility of providing applicants for international protection, holders of the so-called “red card”, with authorisations to work.

The Institution is also carrying out actions to speed up the documentation of people with health training so that they can join jobs that allow them to help in the current health emergency. In this regard, suggestions (in spanish) have been made and in some cases they have been already accepted by the competent administrations. In addition, a recommendation (in spanish) has been made to the Directorate General for Professional Organization and the General Secretariat of Universities to facilitate the incorporation of health professionals who are currently waiting to complete the approval or recognition of their health training.

Taxes

The Institution appreciates the Government’s decision to extend by one month the period that SMEs and self-employed workers have to comply with their tax obligations (quarterly VAT, income tax withholdings and company payments in instalments). In a letter sent to the Ministry of Finance on 31 March, the Ombudsman requested that the tax deadlines that both groups had to face in the immediate future be made more flexible.

Among other measures, the Institution proposed the possibility of transferring the deadline for the above-mentioned obligations to the month of May, so that its presentation can be made when it is foreseeable that the decrease in the number of infections and admissions due to coronavirus will offer some economic hope for those liable for tax.

However, the Ombudsman does not rule out the need for further enlargement, depending on the general evolution of the pandemic.

Moreover, the Ombudsman maintains his request to also extend the deadlines for the 2019 Income and Wealth tax season for as long as the limitations on social contact are maintained or until 30 September. This would give more fiscal margin to all those people who, due to the Covid-19 crisis, may be experiencing difficulties in accessing the documentation and data necessary to present the information.

The Institution believes that relief measures from the Treasury could also be considered, for which it has proposed the possibility of modifying the regulations so that those citizens who renounce to their personal income tax refund for the 2019 tax season can receive it by way of compensation over the next four fiscal years.

Urgent actions for electricity and gas outages

The Ombudsman has long advocated that electric power is essential for the protection of people’s health and for decent living. Light is an essential commodity and in an alarm scenario such as the one we are living in, it becomes even more essential, since its lack endangers the exercise of constitutional rights such as education or the right to receive and communicate information.

Therefore, the Institution asks the administrations to mobilize the necessary resources during this crisis to ensure the continuity and quality of essential energy supplies (light and gas) in the usual homes, as established in Royal Decree 463/2020, of 14 March, which authorizes the competent authorities to adopt extraordinary measures to guarantee energy provision.

The Ombudsman has acted on an urgent basis after receiving complaints about electricic or gas outages throughout the crisis.

This is the case in the northern area of Granada, where many residents of the La Paz district have been suffering from poor service since mid-March. This matter is not unknown to this Institution, which initiated actions in 2019 before the Ministry of Finance, Industry and Energy of the Andalusian Government

Another representative case is that of citizen in Murcia who didn’t have access to electricity for about a month until the intervention of the Ombudsman managed to solve the problem.

The Institution also intervened urgently after receiving a complaint of a power cut to an elderly person living in Alicante. The affected person is surviving with an absolute disability pension of 873 euros and has a debt with an electricity company that only offers him the option of paying the debt in installments, paying an initial installment of 600 euros. The Ombudsman has initiated proceedings with the Ministry of Sustainable Economy, Productive Sectors, Trade and Labour of the Generalitat Valenciana.

The case of a resident of El Molar (Madrid) who suffered a power cut at his home because he could not pay the bills due to his precarious economic situation is also noteworthy. The Ombudsman has opened proceedings with the local Town Hall, with the Vega de Guadalix Social Services Association and with the Regional Ministry of Economy, Employment and Competitiveness of the Community of Madrid and has provided the affected party with a list of reference retailers, which are those that supply electricity at a regulated price and are the only ones that can apply the electricity social subsidy discount.

Lastly, with regards to energy, action has been taken to include the production and distribution of biomass (Pellet) for heating in the catalogue of essential activities during the alarm state.

Ethical Assistance

The Ombudsman has received complaints from citizens about the possible prioritization of patients in this crisis, showing a logical concern for the health care that their relatives receive, especially when it comes to elderly or disabled people.

On this matter, the Institution agrees with the position taken by the Spanish Bioethics Committee, which in a recent report has recalled that prioritization is something inherent to any public health system and universal coverage, such as ours, and not something exclusive to the current crisis situation, although ethical dilemmas acquire a special intensity. The Committee’s report also recalls the need to distinguish between decisions of this nature applied to individual patients.

Furthermore, the Ombudsman reiterates his full confidence in the great professionalism and preparation of the health personnel and in their irreplaceable capacity to take the most difficult ethical and deontological decisions in an extreme situation.

In order for them to carry out this fundamental task, it is necessary to remember that health workers must have all the material means necessary to carry out their job and must also be strongly supported by health authorities.

Therefore, already at the beginning of this crisis, the Ombudsman asked the Ministry of Health for “a clear procedure for action in all health services” (in spanish)“, so that professionals can follow general criteria when having to make medical decisions in extreme situations. Along these lines, the Institution positively evaluates the document published by the Health Department on 3 April which, among other things, rejects any form of discrimination in the assistance of patients for their age or disability.

The Ombudsman also initiated a general action with all the autonomous health administrations to request information on various aspects related to the provision of specialized resources, especially in intensive care units; the provision of protective materials and other necessary products; the performance of diagnostic tests; health care provided in residential centers; the protocol for discharging recovered patients from hospitals; or the reorganization of the autonomous health care network.

Other economic issues

These days the Institution also deals with actions for the blocking of citizens’ accounts, which entails a problem to access money and difficulties in resolving the issue given the limitations decreed by the state of alarm.

Moreover, information has been requested from Correos after receiving citizen complaints denouncing a possible breach of its status as a universal postal service provider during the state of alarm. The Sociedad Estatal has also been asked if it plans to extend the period initially envisaged so that citizens can collect their parcels, given that the state of alarm prevents collection within the time limits initially established.

Lastly, the Ombudsman also devotes special attention to the group of people who need home telecare – mostly elderly people – who do not receive the service properly or whose problems are not solved quickly enough.

Prision facilities

The Ombudsman continues to be in permanent contact with the officials of the General Secretariat of Penitentiary Institutions (SGIP), who have already sent information on the actions they are taking to preserve the health of inmates and officials. This information demonstrates the significant effort that the SGIP is making. However, the Institution has requested more detailed information.

He asked whether they were implementing the recommendations of the World Health Organization and the Council of Europe’s Committee for the Prevention of Torture to address the problem of Covid-19 in prisons.

He also requested data about the changes in the prison classification of vulnerable persons as over 70 years of age, pregnant women or chronically ill persons since the state of emergency had been declared and about the health measures taken to protect these groups. The Institution advocates facilitating the grade progressions of these persons. In this sense, it considers that the holding of telematic treatment boards and the sending of the necessary documentation by electronic means should be promoted.

In addition, he has analysed the communication protocols with families to inform them of the health situation of the inmates. Fernández Marugán considers that at this time it is essential that information flows daily to prevent the spread of false news. He also asked for more information on the measures taken for the adequate protection of officials, the disinfection of centres and the carrying out of tests.

Lastly, the Institution has also opened an ex officio action with the prison administrations to find out how the distribution of mobile phones for videoconferences with family members and lawyers is being carried out. The Ombudsman considers that the number and speed of distribution of these terminals should be increased.

The Secretariat for Criminal Measures, Reinsertion and Victim Care of the Generalitat of Catalonia has not yet sent information on the measures they have implemented.

Fernández Marugán regrets the two deaths that have occurred since the beginning of the health crisis (one civil servant and one intern). However, he notes that the measures taken so far have been positive in preventing mortality.

The Preventive Work of the NPM

The institution, which also acts as the National Mechanism for the Prevention of Torture (NPM), has continued to monitor the situation in detention centres.

The new contacts made during these days with prisons all over Spain show that the number of personal protection equipment distributed has increased and many of these places have been disinfected. However, the prison staff we communicated with continues to express concern about the delays in carrying out Covid-19 tests.

An uneven distribution of mobile phones for video calls with family members has also been identified. The NPM believes that these terminals need to be urgently delivered to the centres that have not yet received them and that the technical problems detected need to be resolved. In its view, the number of telephones should be increased in order to try to make up for the lack of face-to-face communications in the current situation.

In addition, the Institution is collecting information on the preservation of images from video surveillance cameras. Moreover, special emphasis has been placed on the fact that complaints and letters addressed by inmates to the Ombudsman are processed from the prisons normally or more quickly. Information is also being collected to find out how the measures related to the state of alarm and the celebration of Ramadan inside prisons will be made compatible.

Video calls with prision facilities’ (CP) interns

Technicians from the NPM, using this new video call system, have interviewed seven interns from the Madrid III CP and eight interns from the Caceres CP. All of them have welcomed the video call initiative and believe that it could be positive to maintain this system beyond the current crisis.

In the interviews with the inmates of the Madrid III CP, they reported that the day before the state of alarm was decreed, the director of the centre went to the modules to explain the situation in which they found themselves and the measures that should be adopted (suspension of vis a vis, visiting rooms, permits, etc.).

The persons contacted also explained that the activities of this CP have been suspended but that the schedule for going out into the yard and using the cells has been made more flexible, so that the inmate who wishes to do so may remain in his or her cell for most of the day. According to them, they have not been provided with additional hygiene materials but it should be noted that disinfectant gel dispensers have been placed next to the telephone booths. Some of the inmates interviewed perceive more tension and nervousness in the modules, although they consider that the attitude of the officials during this crisis is correct and agree that most of the services (infirmary, commissary, dining room, etc.) function normally.

At present, the NPM has already contacted 34 places of deprivation of liberty: the prisons of Salamanca, Almería, Antoni Asunción (Valencia), Teruel, Murcia, San Sebastián, Texeiro (A Coruña), Villabona (Asturias), Madrid I, II, III, IV, V and VI; the CIE in Madrid, Tenerife, Valencia and Las Palmas; the first reception centre for immigrants in Tenerife; the central register of detainees, the centres for juvenile offenders Los Alcores de Carmona (Seville), La Alzina (Barcelona), El Lavadero (Madrid); the asylum and unaccompanied persons room at Barajas airport (Madrid); the police stations of the National Police Force Actur Rey Fernando (Zaragoza), Adeje (Tenerife), central district of Madrid; the police station of the Mossos de Girona and the centres San Juan de Dios Ciempozuelos (Madrid), Sanatorio Esquerdo (Madrid), Instituto psiquiátrico José Germain (Madrid), Mentalia Arévalo, Hospital Nuestra Señora del Carmen en Garrapinillos (Zaragoza), Hospital Psiquiátrico de Conxo (A Coruña).

The CIE

Since the beginning of the health crisis, Fernández Marugán asked for the release of the people who were being held in the Alien Detention Facilities (CIE) as in the current situation it was not possible to proceed with their return or expulsion. Fernández Marugán appreciated the efforts made by the General Commissioner for Aliens and Borders and the State Secretariat for Migration to adopt coordination measures that have made it possible to release inmates by referring them to available humanitarian reception resources.

The Ombudsman reiterates his recognition of all the professionals who continue in their positions, enabling citizens to have access to all essential services, and recalls that, although on-site service continues to be suspended, services are still provided at the telephone number 900 101 025 and via the web (in spanish).


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