Defensor del Pueblo Andaluz
ACT 9/1983, DECEMBER 1 st , REGARDING THE ANDALUSIAN OMBUDSMAN
The President of the Autonomous Government of Andalusia, to whom may read this, you must know that:
The Parliament of Andalusia has approved and I, on behalf of the King of Spain and the authority vested in me by Constitution and the Statute of Autonomy, enact and order the release of the following
The Spanish Constitution of 1978 includes among its decrees the institution of Ombudsman, thereby gathering the experience of similar figures already approved by other countries. The Organic Act 3/1981, April 6 th, regarding the Ombudsman, develops that constitutional provision configuring the Ombudsman as high Parliamentary Commissioner for the rights established in Title I of the Constitution, supervising for that purpose, the activity of the Administration, as established in the provisions of Article 103.1 of the Highest Legal Text. That same Organic Act considers the possibility of having similar bodies to the State Ombudsman on the Autonomous Communities.
The Statute of Autonomy for Andalusia, for his part, as far as it is concerned, states in Article 46 the following: “An Act shall regulate the Institution of Ombudsman, as Commissioner of Parliament, appointed by it to defend the rights and freedoms established in Part I of the Constitution”.
Consequently it will proceed the further Statutory development and institutionalization of andalusian autonomous government, regulating the Ombudsman, as Commissioner of the Parliament of Andalusia, for the clarification of the actions and decisions of the Administrations that make up the Autonomous Community, regarding to the citizens, as established in the provisions of Article 103.1 of the Constitution, and the respect to the rights and freedoms proclaimed in the Part One.
By this way, with the Ombudsman and his intervention, as high commissioner of the Parliament of Andalusia, it is secured the existence of a new external control upon the Authorities, ordered both to the rights and freedoms of citizens and the functioning of Public Administration, at the service of the general interests that represents, as a result of democratic legitimacy.
PART ONE
Appointment, functions and term of office
Nature and Appointment
1. The Andalusian Ombudsman is the Commissioner of Parliament, appointed by it to defend the rights and freedoms established in Part I of the Constitution, for which purpose he may supervise the activities of the Autonomic Administration and report thereon to Parliament.
2. The Andalusian Ombudsman shall exercise the functions entrusted to him by the Statute of Autonomy and this Act, and shall coordinate its functions with those of the National Ombudsman, to extend their cooperation when requested and obtained from that for the same purpose.
1. The Andalusian Ombudsman shall be elected by Parliament for a term of five years, and shall address it through the Speaker.
2. The Committee on Home Affairs and Human Rights, by article 48 of the Standing Orders of the Parliament, will be responsible for liaison with the Ombudsman and report thereon to the Plenum whenever necessary.
3. The Committee, referred to above, shall propose to the Plenum of the House, the candidate or candidates for Andalusian Ombudsman.
The Committee’s decisions shall be adopted by simple majority, by a weighted voting system.
4. Once the candidate or candidates have been proposed, a Plenum of the Parliament shall be held once no less than fifteen days have elapsed in order to elect him. The candidate who obtains the favourable vote of three-fifths of the Members of Parliament shall be appointed.
- If this majority is not reached, the Commission, within a maximum of one month, will meet again to formulate new proposals.
6. Once got the majority referred to in paragraph 4 of this article, the candidate will be appointed Andalusian Ombudsman.
May be elected Ombudsman any citizen who is in full enjoyment of their civil and political rights and that, under article 8 of the Statute of Autonomy for Andalusia, enjoys the political status of andalusian.
1. The Speaker of the Parliament shall authorize with his signature the appointment of the Ombudsman, which shall be published in the «Official Gazette of Andalusia».
2. The Ombudsman shall take office in the presence of the Bureau of the Parliament, and shall take oath or promise to perform his duties faithfully.
- The Andalusian Ombudsman shall be relieved of this duties in any of the following cases:
2) Expiry of this term of office, subject to extension in the exercise of its functions as provided in paragraph 3 of this article.
3) Death or unexpected incapacity.
4) Flagrant negligence in fulfilling the obligations and duties of his office.
5) Non-appealable criminal conviction involving penalties that entail absolute or special disqualification for public office.
6) Non-appealable criminal conviction of a willful crime involving penalties that do not entail absolute or special disqualification.
- The post shall be declared vacant by the Speaker of Parliament in the event of resignation, expiry of the term of office, death or unexpected incapacity and absolute or special disqualification. In all other cases, it shall be decided by a three-fifths majority of Deputies, following debate and the granting of an audience to the person concerned.
- In the case of expiry of his appointment, the Andalusian Ombudsman will continue in the exercise of his duties until the person designated for the next term takes office.
- In the other cases of vacancy in the office of Andalusian Ombudsman, until Parliament makes a subsequent appointment, the Deputy Ombudsmen who to determine the Committee on Home Affairs and Human Rights, shall fulfil his duties temporarily.
Prerogatives, Immunities and Incompatibilities
The Ombudsman shall not be subject to any binding terms of reference whatsoever. He shall not receive instructions from any authority. He shall perform his duties independently and according to his own criteria.
Art. 7.
1. The post of Andalusian Ombudsman is incompatible with any elected office; with any political position or activities involving political propaganda; with remaining in active service in any Public Administration; with belonging to a political party or performing management duties in a political party or in a trade union, association or foundation, or employment in the service thereof; with practising the professions of judge or prosecutor; and with any liberal profession, or business or working activity.
2. Within ten days of his appointment and, in any case, before taking office, the Andalusian Ombudsman shall terminate any situation of incompatibility that may affect him, it being understood that in failing to do so he thereby rejects his appointment.
3. If the incompatibility should arise after taking office, it is understood that he shall resign therefrom on the date that the incompatibility occurs.
4. The Committee on Home Affairs and Human Rights established by Article 48 of the Standing Orders of the Parliament, shall be competent to rule any doubt or controversy about the situations of incompatibility that may affect the Andalusian Ombudsman. Its opinion will be elevated to the Plenum of the Parliament.
The Deputy Andalusian Ombudsmen
1. The Ombudsman shall be assisted by four Deputy Ombudsmen to whom he may delegate his duties and who shall replace him, and among those appointed to assist him in exercising the functions assigned as Andalusian Children's Ombudsman.
2. The Ombudsman shall appoint and dismiss his Deputy Ombudsmen, following approval by the Committee on Home Affairs and Human Rights.
3. The appointments of the Deputies shall be published in the «Official Gazette of Andalusia».
4. The provisions contained in articles 3, 6 and 7 of this Act regarding the Ombudsman shall be applicable to his Deputies.
1. Deputy Ombudsmen and advisers and collaborators attached to the Ombudsman’s office shall automatically be relieved of their duties when a new Ombudsman, appointed by Parliament, takes office.
2. The case referred to in article 5, paragraph 4 of this Act, requires the maintenance of their responsibilities to the advisory staff of the Ombudsman's office, which may not be removed by the Deputy to cover the interim without the approval of Committee on Home Affairs and Human Rights.
Initiation and Scope of Investigations
1. The Ombudsman may instigate and pursue, ex officio or in response to a request from the party concerned, any investigation conducive to clarifying the actions or decisions of the Autonomic Administration and its agents regarding citizens, as established in the provisions of Article 103.1 of the Constitution and the respectful observance it requires of the rights and freedoms proclaimed in Part I thereof.
2. The Ombudsman has authority to investigate the activities of members of Autonomic Cabinet, administrative authorities, civil servants and any person acting in the service of the Autonomic Administration in Andalusia.
1. Any individual or legal entity who invokes a legitimate interest may address the Ombudsman, without any restrictions whatsoever. There shall be no legal impediments on the grounds of nationality, residence, gender, legal minority, legal incapacity, confinement in a penitential institution or, in general, any special relationship of subordination to or dependence on a Public Administration or authority.
2. Individual Deputies, investigatory Committees or the Committee on Home Affairs and Human Rights referred to on article 2.2 of this Act, may, in writing and stating their grounds, request the intervention of the Ombudsman to investigate or clarify the actions, decisions or specific conduct of the Andalusian Autonomic Administration which may affect an individual citizen or group of citizens and which fall within his competence.
3. No administrative authority may submit complaints to the Andalusian Ombudsman regarding affairs within its own competence.
1. The activities of the Ombudsman shall not be interrupted in the event that Parliament of Andalusia is not in session or its mandate has expired.
2. In the cases the Ombudsman shall address the Permanent Deputation of Parliament.
3. The declaration of a state of emergency or siege shall not interrupt the activities of the Ombudsman, nor the right of citizens to have access to him, without prejudice to the provisions of article 55 of the Constitution.
1. The activities of the Ombudsman shall not be interrupted in the event that Parliament of Andalusia is not in session or its mandate has expired. For the purposes of the provisions in Article 12 of Organic Law 3 / 1981 of April 6, regulating the Ombudsman, shall coordinate its functions with those designated by the Parliament and cooperate with it in all that is necessary.
2. The Ombudsman may supervise the activities of the Autonomic Administration, within the scope of competence defined by this Act. For the purposes of the provisions in article 12 of Organic Law 3/1981, April 6th, regarding the Ombudsman, shall coordinate its functions with those designated by the National Parliament and cooperate with it in all that is necessary.
Likewise, the Andalusian Ombudsman, in the exercise of their duties, may apply to the State Ombudsman or Ombudsmen or similar institutions in other Autonomous Communities, to coordinate actions that exceed the territory of Andalusia.
Whenever the Ombudsman receives complaints regarding the functioning of the Administration of Justice in Andalusia, he must refer them to the Public Prosecutor or to the General Council of the Judiciary, independently of any express reference in the Annual Report to be submitted to Parliament of Andalusia.
1. All complaints submitted must be signed by the party concerned, giving his name and address in a document stating the ground for the complaint, on ordinary paper and within a maximum of one year from the time of becoming acquainted with the matters giving rise to it.
2. All action by the Andalusian Ombudsman shall be free of charge for the party concerned, and attendance by a lawyer or solicitor shall not be compulsory. Receipt of all complaints shall be acknowledged.
1. The Andalusian Ombudsman shall record the complaints made, which he shall either proceed with or reject. In the latter case, he shall do so in writing, stating his reasons. He may inform the party concerned about the most appropriate channels for taking action if, in his opinion, these exist, independently of the fact that the party concerned may adopt those it considers to be most pertinent.
- The Andalusian Ombudsman shall not investigate individually any complaints that are pending judicial decision, and he shall suspend any investigation already commenced if a claim or appeal is lodged by the person concerned before the ordinary courts or the Constitutional Court. However, this shall not prevent the investigation of general problems raised in the complaints submitted. In all cases, he shall ensure that the Autonomic Administration, in due time and manner, resolves the requests and appeals that have been submitted to it.
- The Andalusian Ombudsman shall reject anonymous complaints and may reject those in which he perceives bad faith, lack of grounds or an unfounded claim, and in addition those whose investigation might infringe the legitimate rights of a third party. His decisions may not be appealed. In any case the name of the person instituting the complaint be kept confidential.
1. Once a complaint has been accepted, the Ombudsman shall begin appropriate summary informal investigations to clarify the allegations contained therein. In all cases he shall report the substance of the complaint to the pertinent administrative agency or office for the purpose of ensuring that a written report be submitted within fifteen days by its director. This period may be extended if, in the opinion of the Ombudsman, circumstances so warrant.
2. Refusal or failure on the part of the civil servant or his superiors responsible for sending the initial report requested may be considered by the Ombudsman as a hostile act which obstructs his functions. He shall immediately make such an act public and draw attention to it in his annual or special report, as the case may be, to Parliament of Andalusia.
Obligatory Cooperation of Bodies Requested to do so
1. All public authorities and agencies of the Autonomous Community are obliged to give preferential and urgent assistance to the Andalusian Ombudsman in his investigations and inspections.
2. During the stage of verifying and investigating a complaint or in the case or proceedings initiated ex officio, the Ombudsman, his Deputies, or the person delegated by them may present himself at any establishment of the Autonomic Administration or attached thereto or responsible for a public service, in order to verify any necessary information, hold relevant personal interviews or examine pertinent records and documents.
3. In the pursuit of this objective he may not be denied access to any administrative record or document related to the activity or service under investigation.
1. Should the complaint to be investigated concern the conduct of persons in the service of the Autonomic Administration in connection with the duties they perform, the Andalusian Ombudsman shall so inform them and the immediate superior or body to which the former are attached.
- The person concerned shall reply in writing, supplying whatever documents and supporting evidence they may consider appropriate, within the period established, which in no case may be less than ten days and which may be extended at their request by half the period originally granted.
- The Ombudsman may verify the veracity of such documents and propose to the civil servant concerned that he be interviewed, in order to furnish further details. Civil servants who refuse to comply may be required by the Ombudsman to submit to him in writing the reasons justifying their decision.
- The information a civil servant may furnish through personal testimony in the course of an investigation shall be treated as confidential, subject to the provisions of the Criminal Procedure Act regarding the reporting of acts which may constitute criminal offences.
- While under investigation by the Ombudsman, this and the procedural steps are carried out with the utmost discretion with respect to individuals and other public agencies not related to the act or conduct investigated.
Should a hierarchical superior or entity forbid a civil servant under his orders or in its service from replying to a demand from the Andalusian Ombudsman or from holding an interview with him, he or it must state such prohibition in writing, justifying such action, both to the civil servant and to the Ombudsman himself. The Ombudsman shall thereafter direct whatever investigatory procedures may be necessary to the aforesaid hierarchical superior.
Responsabilities of Authorities and Civil Servants
Should the investigations conducted reveal that the complaint was presumable the result of abuse, arbitrariness, discrimination, error, negligence or omission on the part of a civil servant, the Ombudsman may request the person concerned to state his views on the matter. On the same date he shall send a copy of this letter to the civil servant’s hierarchical superior, accompanied by any suggestions that he may consider appropriate.
Persistence in a hostile attitude or the hindering of the work of the Andalusian Ombudsman by any body, civil servants, officials or persons in the service of the Autonomic Administration may be the subject of a special report, in addition to being stressed in the appropriate section of his annual report.
If, in the performance of the duties of his office, the Andalusian Ombudsman should obtain knowledge of presumably criminal acts or behaviour, he must immediately notify the Public Prosecutor's Office.
The Andalusian Ombudsman may, ex officio, bring actions for liability against all authorities, civil servants and people in the service of Autonomic Administration, without needing under any circumstances to previously submit a written claim.
The Andalusian Ombudsman may request the State Ombudsman of proposing unconstitutionality appeal against the normative issued by the Parliament and the Executive Council of Andalusia.
Reimbursement of Expenses to Individuals
Expenses incurred or material losses sustained by individuals who have not themselves lodged a complaint but are called upon by the Ombudsman to provide information shall be reimbursed; such expenses will be met from the latter’s budget once duly justified.
1. Although not empowered to modify or overrule the acts and decisions of the Autonomic Administration, the Andalusian Ombudsman may nevertheless suggest modifications in the criteria employed in their production.
2. If as a result of this investigations he should reach the conclusion that rigorous compliance with a regulation may lead to situations that are unfair or harmful to those persons thereby affected, he may suggest to the competent legislative body or the Administration that it be modified.
3. If action has been taken in connection with services rendered by private individuals with due administrative authorization, the Andalusian Ombudsman may urge the competent administrative authorities to exercise their powers of inspection and sanction.
1. The Andalusian Ombudsman may, in the course of this investigations, give advice and make recommendations to authorities and officials in the Autonomic Administration, remind them of their legal duties and make suggestions regarding the adoption of new measures. In all cases such authorities and officials shall be obliged to reply in writing within a maximum period of one month.
2. If within a reasonable period of time after such recommendations are made appropriate steps are not taken to implement them by the administrative authority concerned, or if the latter fails to inform the Andalusian Ombudsman of its reasons for non-compliance, the Ombudsman may inform the Autonomic Minister concerned, or the highest authority of the Administration concerned, of the particulars of the case and the recommendations made. If adequate justification is not forthcoming, he shall mention the matter in his annual or special report, together with the names of the authorities or civil servants responsible for this situation, as a case in which although the Andalusian Ombudsman thought that positive solution was possible, it was not however achieved.
Notifications and Communications
1. The Andalusian Ombudsman shall inform the party concerned of the results of his investigations and operations, and similarly of the reply from the Administration or civil servants involved.
2. Should his intervention have been initiated under the provisions of Article 11.2, the Ombudsman shall inform the Deputy or competent committee that requested investigation of the matter and, upon its completion, of the results obtained. Equally, should he decide not to intervene he shall communicate his decision, giving his reasons.
- The Ombudsman shall communicate the results of his investigations, whether positive or negative, to the authority, civil servant or administrative office in respect of which they were initiated.
1. The Ombudsman Andalusian shall inform Parliament annually of the action that he has taken in an annual report submitted to it in ordinary session.
- When the seriousness or urgency of the situation makes it advisable to do so, he may submit a special report that he shall present to the Permanent Deputation of Parliament, if this latter are not in session.
- The annual reports and, when applicable, the special reports, shall be published in the «Official Gazette of the Parliament of Andalusia».
1. The Andalusian Ombudsman shall give an account in his annual report of the number and type of complaints filed, of those rejected and the reasons for their rejection, and of those investigated, together with the results of the investigations, specifying the suggestions or recommendations accepted by the Autonomic Administrations.
2. No personal data that enables public identification of the parties involved in investigation proceedings shall appear in the report, without prejudice to the provisions of Article 23.1.
3. The report shall include and appendix, directed to Parliament, detailing the settlement of the budget of the institution during the corresponding period.
4. An oral summary of the report shall be presented by the Andalusian Ombudsman to the Plenum of Parliament. It shall be open to debate by the parliamentary groups in order that they may state their positions.
Human and Financial Resources
The Andalusian Ombudsman may freely appoint the advisers necessary for the execution of his duties, in accordance with the Regulations of this Act and within budgetary limits.
1. Persons in the service of the Andalusian Ombudsman shall, while so remaining, be deemed as being in the service of Parliament of Andalusia.
2. Civil servants from the Autonomic Administration attached to the Andalusian Ombudsman Office shall be entitled to reserve a place and destination formerly occupied and to the calculation of the time spent in that situation for all purposes.
The financial resources necessary for the operation of the institution shall constitute an item of the Parliamentary Budget of Andalusia.
