Role of the Defensor

Role of the Defensor

Fundamental rights would not be effective if there were no guarantees. Therefore, the Constitution and the laws provide a complete system of controls that allow the anticipation, prevention or rectification of cases and situations in which a right is at risk or lost.

The first guarantee is so-called non-delegable legislation: only by law can the exercise of rights and freedoms be regulated, law which, in addition and in any case, must respect its essential content. Other special guarantees are judicial protection, even in the case of certain preemptive and summary rights, as well as the appeal for legal protection before the Constitutional Court.

The Defensor del Pueblo is established as an institutional guarantee of constitutional rights. The Defensor del Pueblo is a High Commissioner of the General Courts, i.e. they are commissioned and appointed by them to protect and defend the rights of citizens recognized in the constitutional text (article 54 of the Constitution).

Among their functions is supervising the activity of all public administrations (ministries, councils of the Autonomous Communities, municipal governments, etc.). Their supervision also covers the activities of public companies and of agents or collaborators of the administrations when they execute public acts or services.

In 1981 the General Courts approved Organic Law 3/1981 of April 6 on the Defensor del Pueblo, and the institution became active on December 28, 1982, after the first holder of the position was elected.

Any Spanish or foreign national, individual or legal entity, regardless of their age or legal situation in Spain, may file a complaint, individually or collectively, with the Defensor del Pueblo if they feel that Spanish public administrations have violated the rights recognized in the Constitution.

In addition to submitting complaints, citizens may request that the Defensor del Pueblo lodge an appeal of unconstitutionality or an appeal to the Constitutional Court in those situations and under the requirements of the law.

If the Defensor del Pueblo is not legally responsible for investigating a complaint, they shall communicate this to the citizen by letter stating the reason or causes, but shall try to orient them on the alternative channels of action whenever possible.

Once the complaint has been admitted, the Defensor del Pueblo contacts the administration involved to obtain information about the case. Throughout the process the citizen is kept informed about the investigation and responses received from the administration. After the investigation, the conclusions are communicated to the interested party.

The Defensor del Pueblo may not modify or annul the acts and resolutions of public administrations, nor can they give orders thereto, but if they do conclude that constitutional rights have been violated, they may suggest or recommend with any administration that they take steps to alleviate or correct the situation. If, as a result of their investigation, the Defensor del Pueblo is convinced that the rigorous application of a standard can lead to unjust situations, they may request the amendment of such regulation.

The Defensor del Pueblo may not intervene if a judge or court is already judging or has issued judgment on the issue raised in a complaint. The reason for this limitation is the respect for the Judicial Power, since once a matter has been submitted to the control thereof, it is under the exclusive judgment and execution of the court. In addition, any discrepancy with court rulings must be brought before the courts and tribunals themselves through the channels provided for in the procedural laws, without the intervention of the Defensor del Pueblo being applicable in this case.

On the other hand, the Defensor del Pueblo can also act ex-officio, i.e. without the need for a previous citizen complaint. Every year they prepare a report on their activity to be submitted to the General Courts, as well as case reports on specific issues relating to the exercise of constitutional rights. There are more complete descriptions of their functions in other sections of the website. The Defensor del Pueblo, in addition to being the High Commissioner of the General Courts for the defense of constitutional rights, is also officially in Spain the national Institution of Human Rights (NIHR).

National human rights institutions are bodies whose purpose is to protect and promote these rights in a particular country. They must comply with the rules laid down by the so-called Paris Principles and must be recognized by the United Nations as NIHRs.

The Paris Principles are contained in a document defined in the French capital in October 1991, were adopted by the United Nations Commission on Human Rights in 1992 and by its General assembly in 1993. They consist of the general requirements of the NIHR, i.e. requirements in terms of their competence and responsibilities, their composition and guarantees of independence and pluralism and their methods of operation, in addition to other principles.

For a national body to be designated as an approved NIHR by the United Nations it must comply with the Paris Principles.

The Defensor del Pueblo of Spain has been recognized by the United Nations as a National Human Rights Institution.

Information about national human rights institutions and the Paris Principles can be found at the following web addresses:

National Human Rights Institutions
The Paris principles
Human Rights Institutions around the world