Organic Act concerning the Defender of the People
(Defensor del Pueblo), of 6th April 1981

PART I - Appointment, term of office and conditions

CHAPTER I - Nature and election

Art. 1.

The Defender of the People is the high commissioner of the Cortes Generales, appointed by the latter to defend the rights included in Part 1 of the Constitution, for which purpose he may supervise the activity of the Administration, reporting to the Cortes Generales. He shall exercise the funetions entrusted to him by the Constitution and this Act.

Art. 2.

1. The Defender of the People shall be elected by the Cortes Generales for a five-year term: he shall address Parliament through the Speakers of Congress and of the Senate, respectively.

2. A Committee shall be appointed in both, the Congress and the Senate, entrusted with relations with the Defender of the People, informing the Plenum whenever necessary

3. Both Committees shall meet jointly when so be resolved by the Speaker of Congress, and in all events, and under his chairmanship, to propose the candidate or candidates for Defender of the People to the Plenum of the Chambers.

Committee resolutions shall be adopted by simple majority.

4. After the candidate or candidates have been proposed, the full session of Congress shall be convened to elect him, within no less than ten days. The candidate obtaining the favourable vote of a three-fifths of the members of Congress shal1 be appointed: subsequently, with a maximum of twenty days, the appointment must be ratified by the same majority in the Senate.

5. Should these majorities not be reached, a further joint session of both Committees, shall be held with a maximum of one month, to formulate subsequent proposals. In these cases, once the three-fifths majority has been obtained in Congress, the appointment shall be made when absolute majority is reached in the Senate.

6. When the Defender of the People has been appointed, the Committees of the Congress and Senate shall meet again in a joint session, to grant their prior consent to the appointment of the assistants proposed by the Defender of the People.

Art. 3.

Any Spanish citizen, who has reached legal age and enjoys his full civil and political rights may be eligible to be elected Defender of the People.

Art. 4.

1. The Speakers of Congress and the Senate shall evidence jointly with their signatures the appointment of the Defender of the People, which shall be published in the "Boletin Oficial del Estado".

2. The Defender of the People shall take office in the presence of the table of the Houses in a joint session, taking oath or promising to fulfill his functions faithfully.

CHAPTER II - Term of office and rcplacement

Art. 5.

1. The Defender of the People will be relieved of his duties in any of the following cases:

a) Resignation.

b) Expiry of the term of office.

c) Death or incapacity.

d) Acting with notorious negligence in fulfilling the obligations and duties of the post.

e) Being sentenced through nonappealable judgement for a fraudulent offence.

2. The post will be declared vacant by the Speaker of Congress in the cases of death, resignation and expiry of the term of office. In other cases, it shall be decided by a three-fifths majority of the members of each Chamber, after a debate and having heard the party concerned.

3. When the post falls vacant, proceedings to appoint a new Defender of the People shall commence within a period of one month.

4. In case of death, end of term of office, or temporary or permament incapacity of the Defender of the People, his Assistants in their respective order, shall fulfill his duties, until Parliament makes a new appointment.

CHAPTER III - Prerogatives and Incompatibilities

Art. 6.

1. The Defender of the People shall not be bound by a compulsory mandate and shall not receive instructions from any Authority; he shall perform his functions with autonomy and according to his own criterion.

2. The Defender of the People shall enjoy inviolability. He cannot be arrested, placed under enquiry, fined, prosecuted or judged on account of the opinions he expresses or the acts he carries out within the scope of his duties.

3. In other cases, and while he exercises his functions, the Defender of the People cannot be detained or arrested, except in case of flagrante delicto; the decision regarding his accusation, prison, prosecution and trial falls exclusively to the Penal Division of the High Court.

4. The foregoing rules will be applicable to the Assistants of the Defender of the People in the fulfillment of their functions.

Art. 7.

1. The condition of Defender of the People is incompatible with any elective post; with any political post or political propaganda activity; with remaining in active service of any public administration; with belonging to a political party or performing management functions in a political party or trade union, association or foundation, and with employment at the service of any of them; with the exercise of judicial and fiscal careers and with any professional, commercial or labour activities.

2. Within ten days following his appointment, and before taking possession, the Defender of the People must eliminate any situation of incompatibility which may affect him; it will be understood that he does not accept the appointment if he does not do so.

3. If incompatibility arises once possession of the post has been taken, it will be understood that he renounces the latter on the date when the incompatibility has occurred.

CHAPTER IV - Assistants of the Defender of the People

Art. 8.

1. The Defender of the People shall be aided by a First Assistant and a Second Assistant, in whom he may delegate his functions and who will replace him, in their order, in the exercise of his duties, in cases of temporary impossibility and end of term of office.

2. The Defender of the People shall appoint and dismisss his Assistants upon agreement of both Houses of Parliament, and as stipulated in their Rules.

3. The appointment of the Assistants shall be published in the "Boletin Oficial del Estado".

4. The provisions for the Defender of the People in article 3, 6 and 7 of this Act shall be applicable to his Assistants.

PART II - Procedure

CHAPTER I - Beginning and contents of investigation

Art. 9.

1. The Defender of the People may commence and continue any investigation, ex officio or at the request of the party concerned, that leads towards the clarification of acts and resolutions of the public administration and its agents in relation with citizens, according to article 103 1, of the Constitution. And to the respect due to the rights proclaimed in its first Part.

2. The Defender of the People's attributions affect to the activity of ministers, administrative authorities, civil servants and any person who acts in the service of the public administration.

Art. 10.

1. Any individual or body corporate who invokes a legitimate interest may address the Defender of the People, without any restriction whatever. Nationality, residence, sex, being under age, legal incapacity of the subject, being interned in a penitentiary or confinement centre, or in any special relationship of being subordinate or dependent on an administration or public power cannot constitute an impediment.

2. Deputies and Senators individually, investigation committees or those related with the general or partial defence of public rights and liberties and, particularly the committees related with the Defender of the People constituted in Parliament, may apply for the intervention of the Defender of the People, through a brief stating the grounds, to investigate or clarify acts, resolutions and specific behaviour of the public administration, within the scope of his competence which affect a citizen or group of citizens.

3. No administrative authorities may lodge complaints with the Defender of the People in matters within their scope.

Art. 11.

1. The Defender of the People's activities shall not be interrupted in cases in which the Parliament has not met, has been dissolved or its term of office has expired.

2. In the situations mentioned in the previous paragraph, the Defender of the People shall address the Permanent Committees of the Houses.

3. The declaration of states of emergency or siege shall not interrupt the Defender of the People's activities, nor the citizens right to address him, notwithstanding the provisions of article 55 of the Constitution.

CHAPTER II - Field of competence

Art. 12.

1. In all events, the Defender of the People may supervise the activity of the Regional Government in the field of competences defined by this Act either ex officio or at the request of the party concerned.

2. For the purpose of the situation mentioned in the previous paragraph, similar bodies of the Regional Governments shall coordinate their functions with those of the Defender of the People, who may request their cooperation.

Art. 13.

When the Defender of the People receives complaints regarding the performance of the Administration of Justice, he must address them to the Public Prosecutor who will investigate whether they are justified and adopt the relevant measures according to the law, or will forward them to the General Council of Judicial Power, according to the type of claim concerned; this is all notwithstanding the reference the Defender of the People may make to the subject in his general report to the Parliament.

Art. 14.

The Defender of the People shall watch over the respect of the rights proclaimed in the first section of the Constitution in the field of military Administration, without this involving interference in the command of National Defence.

CHAPTER III - Complaints procedure

Art. 15.

1. All complaints presented must be signed by the person concerned, indicating his name, surnames and address, in a letter stating the grounds, in ordinary paper and within a maximum of one year from the moment he is acquainted with the facts object of the complaint.

2. All action by the Defender of the People is free of charge for the person concerned, and the assistance of a Lawyer or Attorney shall not be compulsory. All complaints shall be acknowledged.

Art. 16.

1. The correspondence addressed to the Defender of the People and sent from any detention, internment or custody centre cannot be the object of censorship of any kind.

2. Neither can conversations between the Defender of the People or his representatives and any other person mentioned in the previous paragraph be listened to or be the object of interference.

Art. 17.

1. The Defender of the People shall record and acknowledge receipt of the complaints raised to him, which he shall handle or reject. In the latter case, he shall do so in a justified letter; he may inform the party concerned about the most suitable way of exercising action if, in his opinion, there is any, and without preventing the party from using whatever other action he deem more relevant.

2. The Defender of the People shall not examine the case aspects of complaints pending judicial resolution, and shall suspend his action if once he has commenced it a claim or appeal is lodged by the person concerned to the Ordinary Courts or the Constitutional Court. However, this will not prevent investigations on general problems posed in the complaints presented. In any event, he shall watch over the administration's express resolution, in time and form, of the petitions and appeals which have been formulated to him.

3. The Defender of the People shall reject anonymous complaints and may reject those in which bad faith, lack of grounds, or non-existence of pretension can be observed. He may also reject those whose proceedings infer damages to the legitimate rights of third parties. His decisions are unappealable.

Art. 18.

1. After the complaint has been admitted, the Defender of the People shall arrange the relevant summary informal investigation to clarify the case. In all events, he shall inform the relevant Organisation or Administrative Office of the general contents of the application, so that a written report can be issued by the concerned head of the department within a maximum of fifteen days. This period may be extended when circumstances occur which, in the opinion of the Defender of the People, make it advisable.

2. Refusal or negligence on the part of the civil servant or his superiors in charge of sending the initial report requested may be considered by the Defender of the People as hostile and interferring with his functions. He shall make it public immediately and tress this situation in his annual or special report to Parliament, if necessary.

CHAPTER IV - Obligation of organisations requested to cooperate

Art. 19.

1. All public powers are obliged to assist the Defender of the People preferentially and urgently, in his investigations and inspections.

2. In the checking and investigation stage of a complaint or action initiated ex officio, the Defender of the People, his assistant, or the person in whom he delegate, may appear in person at any centre of the public administration depending on it, or depending on a public service, to check whatever data be necesary, to conduct the relevant personal interviews, or to study the files and necessary docurnentation.

3. For this purpose, access to any file or administrative documentation which is related with the activity or service being investigated, cannot be denied to them, notwithstanding the provisions of article 22 of this Act.

Art. 20.

1. When the complaint to be investigated affects the behaviour of people in the service of the administration in connection with the function they perform, the Defender of the People shall inform the person affected thereof and his immediate superior or organisation on whom he depends.

2. The person affected shall put in writing his reply furnishing whatever documents and evidence he considers relevant, within the term fixed to do so, which in no case may be under ten days, and may be open to prorogation, at the request of the party concerned, by half the time granted.

3. The Defender of the People may check the veracity of the said documents and propose an interview for the civil servant affected to give further details. Civil servants who refuse to do so, may be summoned by the Defender of the People to state in writing the reasons which justify that decision.

4. The information which a civil servant may furnish during an investigation through his personal testimony shall be of a reserved nature, notwithstanding the provisions of the Criminal Proceedings Act in case of denouncing facts which could be of a criminal nature.

Art. 21.

The immediate superior or organisation which forbids the civil servant under his orders or service either to reply to the requisition of the Defender of the People or to have an interview with him, must state this in writing, duly justified, addressed to the civil servant and to the Defender of the People himself. Following that, the Defender of the People shall address whatever investigation action is necessary to the said superior.

CHAPTER V - Reserved documents

Art. 22.

1. The Defender of the People may request the public powers for all the documents he considers necessary to perform his function, including those classified as secret according to the law. In the latter case, a nondispatch of these documents must be decided by the Cabinet of Ministers and shall be accompanied by a certificate evidencing the refusal resolution.

2. Investigations carried out by the Defender of the People and personnel depending on him, together with the relevant formalities, shall be performed within the utmost secrecy with respect to individuals, offices and other public organisations, notwithstanding the considerations which the Defender of the People deem fitting to include in his reports to Parliament. Special measures of protection shall be taken in connection with documents classified as secret.

3. When he feels that a document declared as secret and not sent by the administration could decisively affect the progress of his investigation, he shall notify of it to the Committees of Congress and the Senate to which article 2 of this Act refers.

CHAPTER VI - Responsibilities of authorities and Civil servants

Art. 23.

When action carried out reveals that the complaint has presumably been caused by the abuse, arbitrary action, discrimination, error, negligence or omission of a civil servant, the Defender of the People may request the person concerned to state his criterion on the subject. On the same date he shall forward the said letter to his superior, formulating whatever suggestions he deem fitting.

Art. 24.

1. Persisting in a hostile attitude or hindering the Defender of the People's investigation work by any organisation, civil servant, executive or person in the service of the public administration, may be the object of a special report, in addition to stressing this in the respective section of his annual report.

2. A civil servant who hinders the Defender of the People's investigation through refusing or neglecting to send the reports which the latter requests, or to assist access to files or to the necessary administrative documentation for investigation, shall be cornmitting an offence of disobedience. The Defender of the People may forward the necessary records to the Public Prosecutor to take the relevant action.

Art. 25.

1. If during the exercise of functions inherent to his post, the Defender of the People becomes acquainted with presumably crirninal behaviour or facts, he shall immediately notify the General Public Prosecutor of it.

2. In any event, the General Public Prosecutor shall inform the Defender of the People, periodically or whenever the latter so requests, of the proceedings of the action initiated at his request.

3. The General Public Prosecutor shall notify the Defender of the People of all those possible administrative irregularities with which he is acquainted in his Department in the exercise of his functions.

Art. 26. The Defender of the People may, ex officio, exercise liability action against all authorities, civil servants and agents of the government or administration, even the local administration, without in any event requiring a prior demand to be put in writing.

CHAPTER VII - Expenses caused to individuals

Art. 27.

Expenses incurred or material damages caused to individuals who have not lodged the complaint, on being called to inform by the Defender of the People, shall be compensated; these expenses shall be charged to the Defender of the People's budget, after being duly justified.

PART III - Resolutions

CHAPTER 1 - Contents of resolutions

Art. 28.

1. Although the Defender of the People is not ernpowered to modify or cancel acts and resolutions of the public administration, he may however suggest the modification of the criteria used in producing them.

2. If as a result of his investigations, he becomes convinced that the strict observance of the rules can provoke unjust or harmful situations to citizens, he may suggest to the cornpetent legislative body or to the administration, that they be modified.

3. If action has been carried out on occasion of services rendered by individuals by virtue of a qualifying administrative act, the Defender of the People may urge the competent administrative authorities to exercise their inspection and sanctioning powers.

Art. 29.

The Defender of the People is ernpowered to lodge appeals for unconstitutionality and for relief, in accordance with the provisions of the Constitution and of the Organic Act of the Constitutional Court.

Art. 30.

1. During the course of his investigations, the Defender of the People may formulate warnings, recommendations, reminders of the legal duties and suggestions to adopt new measures to the authorities and civil servants of the public administrations. In all cases, the authorities and officials shall be obliged to put in writing their reply within a maximum of one rnonth.

2. If within a reasonable time after making his recommendations, the adequate measures have not been taken by the administrative authority affected, or the latter does not inform the Defender of the People about the reasons he considers relevant for the nonadoption of them, the Defender of the People may notify the Minister of the Department affected, or the maximum authority of the administration involved of the antecedents of the case and the recommendations presented. If an adequate justification is not obtained either, he shall include that matter in his annual or special report, mentioning the names of the authorities or officials who have adopted that attitude. This will be done in all the cases in which the Defender of the People consider that a positive solution was possible, but it has not been achieved.

CHAPTER II - Notifications and communications

Art. 31.

1. The Defender of the People shall inform the party concerned of the results of his investigations and negotiations, and also of the reply which the Administration or civil servant involved have given, unless these replies be considered of a reserved or secret nature.

2. When his intervention has been initiated according to what is stipulated in paragraph 2 of article 10, the Defender of the People shall inform the member of Parliament or competent Committee requesting his investigations and at the end of them, he shall report them upon the results attained. Likewise, when he decides not to intervene, he shall notify his rejection, with his reasons.

3. The Defender of the People shall convey the positive or negative results of his investigations to the authority, civil servant or administrative department regarding which they arose.

CHAPTER III - Report to the Cortes

Art. 32.

1. The Defender of the People shall annually report to the Cortes Generales on the steps taken in a report which he shall submit to them when they meet in their ordinary period of sessions.

2. He may present a special report when the seriousness or urgency of the facts make it advisable, which he shall address to the Permanent Committees of the Houses if these are not sitting.

3. The annual reports and, if necessary, the special reports, shall be published.

Art. 33.

1. In his annual report, the Defender of the People shall state the number and type of complaints presented; of those which have been rejected, and their causes, and also of those which have been investigated, with their results, specifying the suggestions or recommendations admitted by the public administrations.

2. Personal data which enable public identification of the parties concerned in the investigation proceedings shall not appear in the report notwithstanding the provisions of article 24.1.

3. The report shall also contain an annex, intended for the Spanish Parliament, in which the settlement of the budget of the institution during the respective period shall be given.

4. A surnmary of the report shall be given verbally by the Defender of the People to the full session of each House, during which the different parliamentary groups may intervene to establish their attitudes.

PART IV - Personal and material means

CHAPTER 1- Personnel

Art. 34.

The Defender of the People may freely appoint the necessary advisers to exercise his functions, in accordance with the Regulations and within budgetary limits.

Art. 35.

1. People who are at the service of the Defender of the People, and while they remain as such, shall be considered as being at the service of Parliament.

2. In cases of officials frorn the public administration, the post and destination which they occupied before joining the Defender of the People's Office shall be reserved, and for all intents and purposes, the time which elapses in this situation shall be calculated as being in their regular job.

Art. 36.

Assistants and advisers shall automatically leave the service the moment a new Defender of the People elected by Parliament takes possession for his post.

CHAPTER II - Allocation of funds

Art. 37.

The necessary allocation of funds for the institution to function shall constitute an item in the Budget of the Spanish Parliament.

TRANSITORY PROVISION

Five years after the enactment of this Act, the Defender of the People may propose the modifications he feels should be made to it in a reasoned report to the Parliament.