CHAPTER 5: LAW 24/2009, THE SÍNDIC DE GREUGES (THE OMBUDSMAN OF CATALONIA)

The Síndic de Greuges (the Ombudsman of Catalonia) is in charge of addressing the complaints of all the people who are abandoned in the face of the action, or lack of action, of the administrations. It watches over the proper functioning of the Administration of the Generalitat and of the local entities of Catalonia, such as city councils, provincial councils or county councils. Therefore, it acts as a supervisor and collaborator of the Catalan Administration, with the aim of helping to improve its functioning.

It also oversees private companies that provide services of public interest, such as electricity, telephony, water, gas, postal service, etc.

On December 23, 2009, the Parliament of Catalonia approved the Law 24/2009, of the Catalan Ombudsman, which replaces the previous regulation.

This law was intended to:

  1. a) Regulate the Sindic de Greuges, defining the functions of protection and guarantee of the constitutional and statutory rights.
  2. b) Attribute the Catalan Ombudsman the condition of Catalan authority for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.

The Catalan institution of the Síndic de Greuges, however, coexists with the figure of the Defensor del Pueblo (Ombudsman of Spain), at the state level. The Defensor del Pueblo has as a mission to guarantee and protect the constitutional rights of citizens against the actions of public administrations. The threshold that separates the competences of both institutions has not always been easy. In this sense, the state law 36/1985 of November 6, which regulates the relations between the institution of the Defensor del Pueblo and similar figures of the different Autonomous Communities. This law clarifies that the original jurisdiction belongs to the Defensor del Pueblo, but the autonomous figures (Síndic de Greuges in the case of Catalonia) can carry out its tasks to monitor the operation of:

– Its autonomic administration

– The local administration (City councils, for example), whenever it is in the exercise of competences that the autonomic administration has delegated to it previously.

In any case, both institutions must specify how they collaborate and cooperate between each other.

In this regard, it is in this case the Defensor del Pueblo who brought an appeal of unconstitutionality against some articles of this law, basically in two senses:

1.- Because it considers unconstitutional that Law 24/2009 attributes to the Síndic de Greuges powers of supervision over the local Administration and the agencies that depend on this administration, without limiting them to those matters in which the Statute attributes powers to the Autonomous Community and that it has also been transferred or delegated to the local administrations.

The Defensor del Pueblo understands that this provision violates, essentially, the powers that correspond to him in accordance with the provisions of article 54 of the Spanish Constitution.

2.- He also opposes the designation of the Síndic de Greuges as “the Catalan Authority for the prevention of torture and other cruel, inhuman or degrading treatment or punishment”. The Defensor del Pueblo considers that these provisions violate the exclusive jurisdiction of the State in matters of international relations (article 149.1.3 Constitution). In accordance with the provisions of the Constitution, the General Courts approved Organic Law 1/2009, of November 3, and designated the Ombudsman National mechanism for the prevention of torture of the Optional Protocol.

The creation of a national mechanism for the prevention of torture was envisaged in the Optional Protocol to the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the General Assembly of the United Nations on December 18, 2002, and ratified by Spain on March 3, 2006.

Well, the Constitutional Court issued a ruling resolving this appeal of unconstitutionality, Sentence 46/2015, of 5 March (Recurso de inconstitucionalidad 2502-2010).

In the first place, it referres to STC 31/2010, of June 28 (the ruling of the Statute of Autonomy of Catalonia), and explains that it was already resolved at that time that any attribution of competence that made to the Síndic de Greuges, will be unconstitutional if done “exclusively”. The Constitutional Court considers that all the functions of the Síndic de Greuges cannot be exclusive powers that only this institution can exercise since this would make it impossible for the Defensor del Pueblo to act with respect to the Catalan Administration, and that would be contrary to article 54 of the Constitution.

Therefore, any reference to the powers of the Síndic de Greuges, if accompanied by the expression “exclusively”, are and will be unconstitutional.

It the ruling also stresses that any references made by this law 24/2009 regarding the relations of collaboration of the Síndic de Greuges with the Defensor del Pueblo should be understood in the sense that they do not impose anything on the State, which can act with full freedom.

Finally, and in regard to considering the Síndic de Greuges as a Catalan Authority for the prevention of torture, the Court is also favorable to the arguments of the Defensor del Pueblo and considers that it is unconstitutional since it is the Defensor del Pueblo who has the jurisdiction and who can assume this condition, and not the Sindic de Greuges.

Please follow and like us: