Role of the Defensor
Role of the Defensor
The fundamental rights would not be effective if there were no guarantees. Therefore, the Constitution and the laws make provision for an entire system of controls making it possible to foresee, avoid or remedy those cases and situations in which a right is found to be in jeopardy or lost. The first guarantee is what is known as “legal reserve”, meaning that only by law can the exercise of rights and freedoms be regulated, this being a legal principle which must in all cases respect the essential substance thereof. Other special guarantees are “legal counsel”, even in the case of some rights of a preferential or summary nature, as well as the appeal for legal protection of constitutional rights before the Constitutional Court.
The Defensor del Pueblo Institution is configured as an institutional guarantee of the constitutional rights. The Defensor del Pueblo is a high commissioner of Spanish Parliament, in other words is commissioned and designated thereby for protecting and defending the rights of citizens recognized in the text of the Constitution (Article 54 of the Constitution).
One of the Defensor’s most outstanding functions is that of supervising the activity of all of the Government Agencies (Central Government Ministries, Autonomous Community Government Departments, Municipal Governments, etc.) This supervision also encompasses the activity of public enterprises and of the Government agents or collaborators when they are performing public services or achieving public goals.
In 1981, Spanish Parliament passed Organic Law 3/1981 of April 6th on the Defensor del Pueblo, this Institution having commenced its activity on December 28th, 1982 following the election of the first person to hold this office.
Any Spanish or foreign national, natural person or body corporate, of any age or legal status in Spain, may take recourse to the Defensor del Pueblo, individually or collectively, by lodging a complaint should they consider Spain’s Government Administrations to have violated the rights recognized under the Constitution.
In addition to lodging their complaints, citizens may request the Defensor del Pueblo to file an appeal of unconstitutionality or an appeal for legal protection of constitutional rights before the Constitutional Court in those cases and in compliance with the requirements for which provision is made under law.
If the investigation of a complaint does not fall within Defensor’s authority, the citizen having lodged the complaint in question is sent a letter stating the reason or causes for this circumstance, although an attempt is made, whenever possible, to provide guidance regarding the alternative channels to which the citizen in question may take recourse.
Once the complaint has been accepted for processing, the Defensor del Pueblo contacts the Administration involved in order to obtain information on the case. Throughout this entire process, the Defensor del Pueblo keeps the citizen in question informed concerning the investigation and the replies received from the Administration. Once the investigation has been completed, the Defensor del Pueblo informs the interested party as to the findings.
The Defensor del Pueblo Institution cannot modify or nullify the acts or resolutions of the Government Administrations nor can it give them orders, but if the Defensor del Pueblo finds constitutional rights to have been violated, It may then suggest or recommend any Administration to take measures to relieve or remedy the situation. If, as a result of the investigations undertaken, the Defensor del Pueblo is convinced that the strict enforcement of a rule of law can lead to unfair situations, it may then petition the amendment of the rule of law in question.
The Defensor del Pueblo cannot intervene if the judge or court is already judging or has judged the matter put forth in a complaint. This limitation is due to the respect for the Judiciary, given that once a matter is placed under the control of the Judiciary, it falls exclusively thereto to pass judgment and have the judgment passed enforced. Similarly, any discrepancy with court decisions must be brought up with the courts and tribunals proper through the channels provided for this purpose under the laws governing legal procedures, the Defensor’s involvement also not being befitting under law in this case.
Apart from the above, the office of the Defensor del Pueblo may take action on its own account, in other words, without any need of a prior citizen complaint. Every year, a report is prepared on the Defensor’s activity which must be submitted to Spanish Parliament, in addition to monographic reports on specific issued related to the exercise of constitutional rights. Fuller descriptions of our functions are provided in other sections on this Website (“About us” – “Competencies”).