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DIPUTADO DEL COMUN DE CANARIAS LAW 1/1985 (12th February) pertaining to the OMBUDSMAN OF THE CANARY ISLANDS (BOE -Official Stale Bulletin- N° 71,23rd March,
1985)
BACKGROUND This present Law passed by the Parliament of the Canary Archipelago develops upon Article 13 of the Constitutional Law 10/82 as foreseen in the Statutes legislating Autonomy in the Canary Islands, wherein the institutional figure of the "Dipulado del Comùn" (Ombudsman, hereinafter referred to by the Spanish denomination) is established. This institutional figure is empowered by the Parliament of the Canary Islands to act as a High Commissioner in defence of the intrinsic civil and public rights and freedom of all the citizens residing within the Autonomous Community. The institution of the Diputado del Comùn dales far hack in time in the history of the Canary Islands. The procurudores del Comùn (Commoner's Advocate) and the personero (Commoner's Delegate), both figures which existed in the Cabildos (Island Government) from the XVIlh through to the XVIIIth century, and who were the direct representatives of the ordinary citizen in these first systems of autonomous municipal organisation were to become the Diputados del Comùn (Ombudsmen) under the Royal Decrees, first dating from the 5th May 1766 for the Islas Realengas (i.e. the islands immediately under Crown control) and from the 14th January, 1772 lor the remainder of the islands. It was this title, then, the Dipulado del Comùn which was chosen by the Autonomous Government in the Canary Islands and included in the Statutes. It was felt that the Dipulado del Comùn was a traditional figure with firmly entrenched historical roots in the Archipelago besides being linked to another institution, peculiar to these islands and of great importance in the same -that is, the Cabildos. The Dipulado del Comùn represents, therefore, this long established tradition in the islands of an advocate for the defence of civil rights whilst offering also a common and characteristic reference point for all the separate islands which make up the Archipelago. It is an institution which draws the Canary islanders together in their awareness that each and every citizen of each and every one of the islands has the right to air his grievances and demand redress or request the intervention of the Authorities which act at the level of the Autonomous Community. In short, the institution was designed to represent and defend the interests and rights of the general public and as such holds an enormous and weighty responsibility. There is no other post which holds such a privileged responsibility in that the Diputado del Comùn embodies the Canary islander's feeling of belonging yet "otherness", his national identity yet right to self-government. The institution of the Diputado del Comùn is inseparable from that of the Ombudsman at national level in that the former is a copy on Autonomous level of the duties conferred upon the people's representative at a Slate level. This figure, as has been mentioned previously, is traditional in the Canary Islands where the erstwhile Personero or Procurador (the People's Advocate) was the political representative of the Archipelago in the various Slate Councils. In 1494, the Decree of the Catholic Monarchs with respect to the Canary Islands makes specific reference to the election of two Procuradores del Comùn (Commoner's Advocates). These Personeros had to defend their independence in order to serve the general interests of the people in the face of tierce criticism and opposition from the regidores (aldermen) and local mayors of the times. In the 15th century, Tenerife still had its own general Personero. The fact that this somewhat liberal figure had always existed on an institutional level in the Region meant that it was easier for the Archipelago to adapt to the situation produced by Democracy in Spain and the appointment of a State Ombudsman. The Diputado del Comùn in the Canary Islands draws on this long history of representation of the ordinary citizen to enforce his independence as a mediator between Administration and the people who are administrated or even, under Comparative Law, between parliamentary representatives and the general electorate. The name of Diputado del Comùn was established by the Royal Decree of the 5th May, 1766 which is the nearest reference in time to the post as it was established under the Estatuto de Autonomía Canaria (Statutes legislating Autonomy in the Canary Islands) The institution was fell to he vital to the Canary Islands on account of its longstanding tradition and history in the Region as exclusive to this part of Spain, in the same way as the Cabildos are unique to the Archipelago. The overriding aim of this Institution should be the traditional defence of the general public's freedom and rights, in order to safeguard against excessive abuse of authority and to offer a guarantee of independent mediation between the Parliament and the electorate. besides representing one of the differentiating yet cohesive elements of the Canary Archipelago. In short, an Institution designed at serving the interests of the people of the Canary Islands and hearing an enormous responsibility in ensuring the correct implementation and control of public rights and duties. There is a section of the Spanish Constitution of 1978 devoted to the description of the institution of the Defensor del Pueblo (the Ombudsman) thereby enforcing in Spain a figure which already existed in analogous form in other countries. The Ley Orgánica (Organic Act) 3/81 of the 6th of April pertaining to the Defensor del Pueblo (Ombudsman) gave substance to the figure foreseen in the Constitution and described the Defensor del Pueblo as a high Parliamentary Commissioner whose duty it was to defend the rights specified under the Tí'tulo Primero (First Heading) of the Constitution and thereby ensuring adequate supervision of the General Administration and Public Authorities as foreseen in article 103.1 of the Constitution. This Organic Act also made provision for the existence of analogous figures and institutions in the Autonomous Communities. The Estatuto de Autonomía de Canarias indicates in Article 13, "The Parliament will proceed to the election of a 'Diputado del Común' whose function will be to defend the basic rights and public freedom of all the citizens and to scrutinise the activities of the Public Administration within the Autonomous Community in pursuance of the duties established for the Defensor del Pueblo in the Ley Orgánica del Defensor del Pueblo. The Parliament of the Canary Islands will pass a Law which will further define the organisation and functions of the same". The fact that the Ombudsman receives the name of Diputado del Comùn in the Estatuto de Aulonomía de Canarias stems from the desire of the legislating bodies to establish the traditional links with the historical figure which had already existed in the islands and had defended the commoners in times of great social need. Therefore, the figure of the Diputado del Comùn, in pursuance of the Statutes and principles of self-government in the Canary Islands, was institutionalised in the shape of a delegate commissioned by the Canary Parliament to investigate the resolutions and acts of the Public Administration in the Canary Archipelago inasfar as these affect the common people as foreseen in Article 103.1 of the Constitution and most specifically the respect lor natural justice and fair practice as proclaimed in the Tilulo Primero (First Section). The effective and efficient safeguarding of the individual and collective rights of the people and the constitutional rights of all Spanish cilizens are thus guaranteed to an extent which is not always possible via the normal legal channels, even more so since the aforementioned post was given substantial legal standing on being included within the Constitution. It is evident that the vulnerability of the citizens was a reality in the pre-Constitutional times in Spain and that this situation has continued to give rise, even nowadays, to daily procedures in the Public Administration which contravene the Constitution in word and deed. The implementation of the institution of the Diputado del Común in the shape of a high Commissioner appointed by the Canary Parliament established a new external control over the Administration thereby safeguarding both the inlegrily of the rights of the ordinary citizen and ensuring the correct functioning of the Public Administration in the genera! interest of the common good as prescribed in any democratic Slate. It can be said, therefore, that the Diputado del Comùn exists in the Autonomous Community of the Canary Islands in order to dissuade the Public Administration from irregularities in their functions. FIRST SECTION PART I Article 1 1. The Diputado del Común (Ombudsman) is the High Commissioner of the Canary Parliament, appointed by the same to ensure that natural justice and fair practice is administered to all the the citizens as foreseen in the Spanish Constitution. To this effect, he may monitor the activities of the various levels of Autonomous and Local Administration in his position as representative of the Autonomous Community and will report upon the same to the Parliament. 2. In the exercise of his duties as conferred upon him by the Estatuto de Autonomía de Canarias and the present Law, he will coordinate his activities with those of the State Defensor del Pueblo (ombudsman) as designated by the Cortes Generates (Houses of Parliament) and will collaborate with and seek collaboration of the same in the pursuance of his responsibilities. Article 2. The Diputado del Común (Ombudsman) is to establish his headquarters in the City of Santa Cruz de La Palma. Article 3. 1. The Diputado del Común (Ombudsman) is elected by the Parliament for a period of five years. His contact with the Parliament is to he established through the Presidency of the same. 2. The Comisión de Justicia e Interior (the Select Commission) of the Parliament will meet with the Diputado del Común and inform the Members of the outcome of those meetings whensoever required. 3. The aforesaid Commission will propose a candidate or candidates for the post of Diputado del Común to the Pleno del Cámura (the Chamber Session in full). All Commission agreements will be reached by straight majority, on the basis of votes cast. 4. Once the candidate or candidates has been proposed, Parliament will be convened at a minimum of a fortnight's notice in order to proceed with the election . The candidate elected will require the favourable vote of three fifths of the members of Parliament. 5. Should this majority not be obtained, the Commision will proceed within the maximum period of one month towards the proposal of other candidacies. Article 4. All adult citizens in full exercise of their civil and political rights and who, under the Estatuto de Autonomía, are politically considered to hold the status of Canary citizens, are eligible for the post of Diputado del Común. Article 5. 1. The President of the Parliament of the Canary Islands will ratify the appointment of the Diputado del Común with his signature. The appointment will be published in the Boletín Oficial de la Comunidad Autónoma (the Official Bulletin of the Autonomous Community of the Canary Islands). 2. The Diputado del Común will swear allegiance to his post and promise to fulfil the duties of the same in Parliament.
Article 6. 1. The Diputado del Común will not be subject to any mandate whatsoever. He will not receive instructions from any Authority and shall pursue his duties with total autonomy. 2. The Diputado del Común is immune before the law. He may not be arrested, sanctioned, fined, prosecuted or judged for any action or opinion resulting from the pursuance of the functions pertaining to his office, not even when he no longer holds the same. 3. In any case whatsoever and whensoever the Diputado del Común is pursuing the duties of the post, he cannot be arrested or detained unless when caught in the act of a serious crime. In such event, only the Tribunal Superior de Justicia de Canarias (The High Court of Justice in the Canary Islands) may be called upon to decide upon his incrimination, trial and/or imprisonment. Outside the Canary Islands, criminal responsibility may be judged, in the same terms, in the criminal court of the Tribunal Supremo (Supreme Court). Article 7. 1. The post of Diputado del Común is incompatible with any other representative mandate, political post or activity pertaining to political propaganda, active service in any post whatesoever in the Public Administration, affiliation to any political party, trade union, association or Trust or any employment relating to the same, legal practice or employment in Inland Revenue or any other liberal, mercantile or productive employment. 2. Previous to the oath of allegiance and incorporation in the post, the candidate chosen as future Diputado del Común must renounce any existing situation of incompatibility, within ten days of his public appointment. Should this not be the case, another candidate will be elected. 3. If any such situation of incompatibility should occur after the date of public appointment, the renunciation will be taken as dating from the time of the same. 4. The Statutory Commission of the Members of Parliament (Comisión del Estatuto de los Diputados del Parlamento ) is the only body with competences in any case of doubt or controversy with respect to situations of incompatibility which might affect the Diputado del Común. Its decision will he presented before the Parliament. PART III Article 8. 1. The Diputado del Común may cease to exercise in his functions for any one of the following reasons: 1. Renunciation 2. End of term of office 3. Death or permanent disablement. 4. Loss of political condition of recognition as Canary islander. 5. If found guilty without right of appeal of a serious criminal offence. 6. If found to act with extreme negligence in the pursuit of his duties. 2. Should the post be left vacant for any of the reasons described in the first five headings, said vacancy shall be announced by the President of the Parliament. In such case as the circumstances described under the sixth heading should prevail, the dismissal will he decided in private session after the implicated Party has been heard in the Chamber, and will require the majority vote of three fifths of the members. 3. Once the post has been declared vacant, the procedure leading to the appointment of a new Diputado del Común will be initiated in a period of under one month. 4. In case of death, cessation and temporary or permanent disablement and until such time as the Parliament appoints a new candidate, the various Deputies will assume the responsibilities of the post, by rigorous order of rank. PART IV Article 9. 1. The Diputado del Común will be aided in his functions by an Adjunto Primero y Adjunto Segundo (First and Second Deputy) in whom he may delegate and who will substitute him, by rigorous order of rank, in his duties should he suffer temporary disablement or cease in the post. 2. The Diputado del Común will appoint and designate rank to his Deputies after approval by the Comisión de Justicia e Interior (Select Commission). 3. The appointment and cessation of the Adjuntos (Deputies) will be published in the Boletín Oficial de la Comunidad Autónoma de Canarias (the Official Bulletin of the Autonomous Community of the Canary Islands). 4. The provisions made in Articles 4,6 and 7 of this Law regulating the activities of the Diputado del Común will apply to the Deputies thereof. Article 10. 1. The Deputies will cease automatically in their functions as of such time as a new appointment to the Diputado del Común is made. 2. Article 8 (4) in the present Law foresees the permanence in their posts of all back-up staff in the Office of the Diputado del Común in such case as he is temporarily or permenently absent from his post. The Deputy who is covering the interim period may not dismiss any of this staff without the previous approval of the Comisión de Justicia c Interior del Parlamento (Select Commission).
SECTION II Article 11. The Diputado del Común is empowered to scrutinise the activities of the Local and Autonomous Administration in the area of competences foreseen within this Law. To the ends foreseen in the Organic Act regulating the functions of the National Ombudsman (Defensor del Pueblo) he will coordinate his functions with the latter and will cooperate with him in whatsoever manner as is required. Article 12. In the pursuance of his duties, the Diputado de Común may call upon the National Ombudsman (Defensor del Pueblo) or analogous Institutions in other Autonomous Communities to allow for coordination of activities which extend beyond the boundaries of the Canary Islands. Article 13. Any complaints received by the Diputado del Común with respect to the Administration of Justice in the Canary Islands must he made known to the Procurator Fiscal (Ministerio Fiscal) or to the Consejo General de Poder Judicial (General Council for Judicial Control of the Executive) without said representing impediment to their being given express mention in the general report presented by the Ombudsman before Parliament. Article 14. In such case as there should he reasoned grounds for seeking redress due to maladministration on the part of any Institution, Authority, civil servant or agent of the Autonomous Community or the presentation of a habeas corpus appeal or accusation of unconstitutional practice, the Diputado del Común will refer said to the National Ombudsman for the corresponding resolution of the same. PART II Article 15. 1. In pursuance of article 103.1 of the Constitution and 21.2 of the Estatuto de Autonomía and with the due respect for the natural justice and fair practice provided for under the first section of the Constitution, the Diputado del Común may initiate and pursue the necessary investigations into the activities of the Local and Autonomous Administration and the agents of the same on presentation of a founded complaint with respect to maladministration by any of the citizens. 2. The Diputado del Común is empowered to investigate the administrative activities of the Consejo de Gobierno de Canarias (the Executive Council of the Canary Government), authorities, civil servants or any other agent dependent upon the Local and Autonomous Administration in the Canary Islands. Article 16. 1. Any person or legal body with a legitimate grievance may call upon the Diputado del Común for him to intercede on his/her behalf. No person is restricted to this effect by reason of nationality, residence, administrative jurisdiction, sex, age, legal inhabilitation, imprisonment or penitentiary sentence or, in general, any special circumstance of dependence on, or subjection to any area of administration or public authority. 2. The Members of Parliament, Appeals Commission and Select Commission may demand, via written justification, the intercession of the Diputado del Común in investigations directed at clarification of acts pursued by the Local and Autonomous Administration in the Canary Islands which may affect any person or group of persons belonging to the area of his responsibility. 3. No complaint pertaining to their own area of responsibility may be lodged before the Diputado del Común by any administrative authority. Article 17. 1. The activity of the Diputado del Común will not be suspended in the event of the Canary Parliament not being met in session or should their period of mandate have expired. In such event, the Diputado del Común will present his report to the Standing Committee of Parliament (Dipulación Permanente del Parlamento) 2. Declarations of states of emergency or siege will not preclude the activity of the Diputado del Común nor the access of the citizens to the same without breach of the contents of Article 55 of the Constitution. PART III Article 18. 1. All complaints will be signed by the complainant or his legal representative and will state all personal data including address to which correspondance is to be sent, besides presenting a written justification of the grievance lodged in a period of under one year from the time of the occurrence of the events giving rise to appeal. 2. The services of the Diputado del Común will he free of charge for the complainant and will not require the assistance of a legal advisor or solicitor. Notice will he given of each complaint registered. Article 19. 1. The Diputado del Común will certify receipt of all complaints. Should the complaint not be given due course, the reasons for such will he made known to the complainant in writing and appropriate measures for action may be suggested. 2. The Diputado del Común will not investigate individually such complaints as are pending legal resolution nor shall he pursue any investigation during the course of which the complainant lodges an appeal in the Courts of Law or the Constitutional Tribunal. This will not impede, however, pursuance of investigation into the general problems posed in the complaint. Whatever the case, he will safeguard that the Autonomous and Local Administration resolve in time and form such claims and appeals as have been lodged with them. 3. The Diputado del Común will not give course to anonymous complaints and may reject any such complaint as he feels may respond to malice, lack of fundament or justification. His decisions are not open to appeal. Whatever the case, the name of the complainant will be kept secret. Article 20 1.Once the complaint has been given due course, the Diputado del Común will initiate the necessary proceedings and investigation in order to clarify the charges made. To this effect, he may demand the organism or Administrative department to render accounts of the report in a maximum period of fifteen days. This period may be extended should such be deemed necessary by the Diputado del Común. 2. Any refusal or negligence on the part of the civil servant reponsible to remit the required report in the given time will be deemed equivalent to attempted impediment to, or obstruction of the course of justice and as such will he made public immediately or included in the annual report. Should such be deemed necessary, it may he the object of a special report to the Parliament in the Canary Islands. PART IV Article 21. 1. All the public authorities and departments of the Administration are obliged to give urgent priority to any assistance required of them by the Dipulado del Común in pursuance of his duties. 2. The Diputado del Común, his Deputies or the person in whom he delegates his authority may personally visit any department or centre of the Autonomous and Local Administration in order to verify or collate any such data as should be necessary , carry out the pertinent personal interviews required or proceed towards the scrutiny of any files or documents should be needed for the pursuance of the complaint lodged. 3. To this effect, access cannot be denied to any such file or document which has a hearing upon the service or activity under invesligalion with the exception of any document classified as top secret, in accordance with the Law. Article 22. 1. Should the investigation pertain to the conduct of any person at the service of the aforementioned Administration in relation to the function perfomed by them within the same, said will be made known to the person in question and to his immediate superior or to the Department upon which he depends by the Dipulado del Común. 2. The person accused may reply in writing and offer any such documents or evidence as they consider opportune in the period previously established which, under no circumstances, will be under ten days and which may be extended, on petition, by half the given time again. 3. The Diputado del Común may establish the authenticity of the same and proceed to offer the civil servant implicated an interview in order to collate further information. The civil servants who refuse to he interviewed may he called upon to give their reasons for said decision in writing. 4. The information offered by any civil servant in the course of an investigation will always be treated as confidential without breach of the Law of Criminal Procedure in regards indictment of facts which may be of a criminal nature. Article 23. The Diputado del Común may request of the Autonomous and Local Administrations such documents as he deems necessary for the pursuance of his duties, even such documents as are considered highly confidential.
Article 24. When, after the pertinent investigation, it can be surmised that there has been abuse, arbitrariness, discrimination, error, negligence or omission on the part of any civil servant, the Diputado del Común may broach aforesaid person and make his criterium known to the same. As of the same date, he will send notice in writing to the civil servant's superior wherein he will detail all suggestions he may deem opportune. Article 25. When the Diputado del Común in pursuance of his duties is made aware of behaviour which is presumably criminal, such will he made known to the Procurator Fiscal. PART VI Article 26. 1. The Diputado del Común is not authorised to modify or annul actions or resolutions decided upon by the Autonomous Administration. However, he may suggest modifications to the criteria on which these resoltions and actions were based. 2. If as a result of the investigation, the Diputado del Común should conclude that the strict application of the norm may produce unfair or detrimental situations for the ordinary citizens, he may suggest to the pertinent legislative body or administration that the same be modified. 3. If said actions have been taken by private individuals offering services under administrative contract, the Diputado del Común may call upon the corresponding administrative authorities to monitor and/or sanction the same. Article 27. 1. The Diputado del Común, in pursuance of his duties, may proffer warnings, recommendations, memoranda of legal responsibilities and advice or suggestions for new measures to be adopted by the Authorities and civil servants of the Local and Autonomous Administrations. Whatsoever may be the occasion, the authorities and civil servants are under the obligation to reply in writing in a period of not over one month. 2. If after formulation of recommendations, there should be no adequate response to the same nor an appropriate measure taken within a reasonable period of time, nor should the pertinent department justify convincingly the reasons impeding adoption of the same, the Diputado del Común will inform the corresponding Consejero (Counsellor), Authority or Administration as to the background to the case and the measures recommended. Should there be no adequate justification, the case will he included in the annual or special report wherein express mention will be made to the authorities and civil servants who are responsible for the actions heretofore detailed, amongst such subjects as the Diputado del Común deemed to be susceptible to solution but as yet unresolved.
PART VII ON NOTIFICATIONS AND COMMUNICATION Article 28. 1. The Diputado del Común will inform the interested party in the result of his investigations and initiatives besides reporting upon the response given by the Administration and civil servants implicated in the matter. 2. When the intervention of the Diputado del Común has been motivated by causes included under section 2 of Article 16, the Diputado del Común will report hack to the Member or Commision which solicited such information as to the results of the same. Should such intervention he deemed inappropriate, notice will he given in writing justifying said decision. 3. The Diputado del Común will communicate the positive or negative outcome of his investigation to the authorities, civil servant or administrative department held accountable for the grievance. PART VIII Article 29. The economic outlay or material damage caused to private individuals as a result of their being called upon by the Diputado del Común to give evidence relative to a grievance for which they are not accountable will be compensated under a separate budget heading, once such has been duly fundamented.
SECTION III PART I Article 30. The Diputado del Común may freely designate any such advisor as he deem necessary for the correct pursuance of his duties in accordance with the Rulings of this Law and the budget constraints. Article 31. 1. The people who are at the service of the Diputado del Común will be considered to be staff at the service of the Canary Parliament inaslong as they remain in the same. 2. The civil servants of the Autonomous Administration who are assigned to the Diputado del Común will be classified under special services.
Article 32. The economic assignation required for the correct functioning of the institution will be included under a special heading in the budget of the Canary Parliament.
SECTION IV Article 33. 1. The Diputado del Común will report yearly to the Canary Parliament. Said report will contain information with respect to all the activities undertaken and will he presented in the normal period of Parliamentary activity. 2. When the grievous or urgent nature of the events demands, the Ombudsman may present a special report to the Standing Committee of Parliament, should the latter not be in session. 3. The report will likewise contain an annexe to be submitted to the Parliament wherein account will be given of the corresponding yearly budget. 4. The annual reports, and in such event as they be necessary, the special reports will be published in the Boletín Oficial del Parlamento de Canarias (The Official Bulletin of the Canary Parliament) Article 34. 1. The Diputado del Común will inform as to number and nature of complaints lodged, including those rejected as lacking grounds plus reasons for the same, recommendations and suggestions adopted by the Autonomous and Local Administration. 2. The report will not give any such personal details as might permit public identification of the parties involved in the investigation, without breach of any of the foregoing provisions of this Law. 3. The Diputado del Común will give an oral summary of the report in Parliament after which the Parliamentary Groups may intervene in order to clarify their stance on the same. SUPPLEMENTARY PROVISION The Chair of the Canary Parliament will, previous petition of the Diputado del Común, pass the Internal Regulations governing Organisation and Function of said Institution. TRANSITORY PROVISION Once this Law has been in force five years, the Diputado del Común may propose modifications to the same in a reasoned report to the Canary Parliament. FINAL PROVISION This Law heretofore detailed will enter into force as of the day subsequent to its publication in the Bolelín Oficial de la Comunidad Autónoma de Canurias (Official Bulletin of the Autonomous Community of the Canary Islands).
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