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Note: this is an unofficial translation Download in Word format Law 5/1996 of 8 July on the Ombudsman for Children of the Autonomous Community of Madrid PREAMBLE Regulating the institution of the Ombudsman for Children is a goal of all spheres of society concerned with offering enhanced legal security to the development of social interests and participation of minors. Since the adoption in 1989 of the Convention on the Rights of the Child by the United Nations, a variety of doctrinal and professional groups have pointed out the importance of searching and laying down the guarantees for the actual and effective exercise of those rights. There are indeed certain international procedural safeguard systems laying down reference frameworks for the implementation and enforcement of these rights of the child, which had taken so much time and effort to be recognised, and become a reality in our legal system by the Law 6/1995 of 28 March of the Autonomous Community of Madrid on securing the rights of the child and adolescent. However, the creation of legal forms such as the Parliamentarian Commissioner to uphold the rights of minors constitutes an effective and specific instrument for the fostering and social recognition of the Rights of the Child. In keeping with the above, there are a number of examples. The Recommendation 1121 of the Parliamentary Assembly of the Council of Europe, adopted on 1 February 1990, on the rights of children, the Resolution A3-314/91 of the European Parliament on the problems of children in the European Community, and the Resolution A3-0172/92 of the European Parliament on the European Charter on the Rights of the Child are among the international documents which should be noted. The work as Parliamentarian Commissioners of the Swedish Child Ombudsman, created in 1973, the Norwegian Child Ombudsman, created in 1981 and the Danish Child Advocate, as well as other experiences in a number of countries in Europe and abroad, such as the United Kingdom, Belgium, Austria, Israel, New Zealand, Canada and Costa Rica, are worth highlighting. There are examples within our own tradition, such as the "Curadores de Huérfanos", created in Valencia on 6 March 1337 by Royal Decree of King Peter IV of Aragon, who in 1407 is designated "Padre de los Huérfanos" by Martín el Humano, and in 1447 is established as the "Tribunal de Curador, Padre y Juez de Huérfanos de la Ciudad de Valencia", which was subsequently extended to the Kingdoms of Aragon, Navarre and Castile. There is already at the national level the precedent of the Adjunto al Síndic de Greuges of Catalonia for the protection of the rights of minors, created by the Law 12/1989 of 14 December of the Parliament of Catalonia. This institution, which was created in our Autonomous Community under the Law on securing the rights of the child and adolescent, has recently been granted a specific and distinct legal status to become fully operational. The institution of the Ombudsman for Children is governed based on a fundamental model of our political and legal context - the Ombudsman. The Law is divided into six Titles; the first of which is devoted to issues related to its legal status. The catalogue delimiting the power of the Ombudsman for Children is of particular significance as its provides the versatility required to undertake preventive actions and to mediate in the event of an infringement of the rights. Titles Two and Three are highly technical, providing descriptions of the procedures and resolutions. Title Four sets out the preventive actions and guidance that should be at the heart of the institution, so that it is not perceived as a simple complaints office. Title Five of the Law sets out the contents of the Annual Report to the Assembly and the conditions for its drafting. Lastly, Title Six regulates its organisation and determines the material and human resources necessary for its proper functioning, and the creation of a Technical Committee, which in its advisory capacity, will contribute towards decision-making with its highly qualified and objective input. The Law concludes with detailed provisions which, inter alia, forecast regulatory development. TITLE I CHAPTER I The Ombudsman for Children is the High Commissioner of the Assembly of Madrid for safeguarding and fostering the rights of minors living in the Autonomous Community of Madrid pursuant to the powers commissioned under this Law. Article 2. A Standing Committee of the Assembly shall be responsible for liaising with the Ombudsman for Children and reporting to the Plenary at every opportunity. The Ombudsman for Children shall address the Assembly through the Chairman of the said Committee. Article 3. 1. The Ombudsman for Children of the Autonomous Community of Madrid has the following tasks: 2. In no case may the Ombudsman for Children act in individual settlement procedures where the resolution has been referred to the national courts, nor in cases requiring exceptional protection measures covered by civil law, and where the responsibility devolves upon the Public Administrations. CHAPTER II 1. The Ombudsman for Children shall be elected by the Assembly of Madrid for a five year term. 2. Once the Parliamentary Groups have proposed their candidates to the Assembly, a Plenary Session will be convened, within 10 days, for the election of the Ombudsman by absolute majority of the members of the Assembly. Article 5. The Ombudsman for Children shall be chosen from among persons who are Spanish citizens of legal age, have full civil and political rights, and have the acknowledged professional competence and experience to undertake the duties of Ombudsman. Article 6. 1. The President of the Assembly shall endorse the appointment of the Ombudsman for Children, which shall be published in the Bulletin of the Assembly and in the Official Journal of the Autonomous Community of Madrid. 2. The Ombudsman for Children shall officially take up his duties before the Parliamentary Assembly, and shall take an oath or formally promise to perform his/her duties. Article 7. The Ombudsman for Children shall cease to exercise his/her duties for one of the following reasons: Article 8. 1. The post shall be declared vacant by the President of the Assembly in the event of death, resignation or expiry of the term of office. In all other cases the decision shall be taken by a majority of three fifths of the members of the Assembly following a debate, and the person concerned shall be heard beforehand. 2. The procedure for the appointment of a new Ombudsman for Children shall be initiated within one month after the position is vacant. 3. In the event of a death, removal, temporary incapacity or invalidity of the Ombudsman for Children, the Head of the Technical Department, referred to in Article 39 of this Law, shall temporarily perform the duties of the post until the Assembly of Madrid appoints a new Ombudsman for Children. CHAPTER III 1. The Ombudsman for Children shall not receive a binding mandate. He/she shall not be bound by any instructions from any authority. He/she shall carry out his/her duties with independence and impartiality. 2. The Ombudsman for Children shall enjoy immunity, even after his/her mandate has expired, for the views expressed during the exercise of his/her duties. 3. The Ombudsman shall not be liable to any form of arrest or detention for criminal charges committed in the territory of the Community of Madrid during his/her term, only if found in the act of committing an offence, and in any event, his/her indictment, imprisonment, prosecution and trial remain a matter for the High Court of Justice of Madrid. Criminal liability outside this territory shall be required under the same conditions by the Criminal Chamber of the Supreme Court. Article 10. The Ombudsman for Children shall have the same rank in terms of honours and treatment as the members of the Governing Council of the Autonomous Community of Madrid. Article 11. 1. The office of the Ombudsman for Children is incompatible with: 2. Within ten days following his/her appointment and prior to taking up the post, the Ombudsman for Children shall cease to perform any potentially incompatible duties, on the understanding that, if not, he/she shall decline the appointment. If the incompatibility should arise after taking office, it is understood that he/she shall resign therefrom on the date on which the incompatibility arises. TITLE II CHAPTER I 1. The Ombudsman for Children may initiate and pursue, ex officio or at the request of the party concerned, any investigation. 2. Any individual or legal entity, regardless of his/her nationality, place of residence or age, may address the Ombudsman for Children. 3. Any individual member of the Assembly of Madrid, of the investigative Committees or persons acting as liaison with the Ombudsman for Children, may request, in writing and supported by reasons, the intervention of the Ombudsman for Children to investigate or clarify the actions, decisions or specific conduct of the Public Administration which may affect a minor as defined in the present Law, or by the private entities provided for in Article 14.2 thereof. 4. No administrative authority may submit complaints to the Ombudsman for Children regarding affairs within its own competence. Article 13. 1. The activities of the Ombudsman for Children shall not be interrupted in the event that the Assembly is not in session, has been dissolved, or its mandate has expired. 2. In the circumstances provided for in the previous paragraph, the Ombudsman for Children shall address the Standing Committee of the Assembly. CHAPTER II 1. The Ombudsman for Children may in all cases, either ex officio or at the request of a party concerned, supervise the activities of all the Public Administrations within the Autonomous Community of Madrid, and within the scope of competence defined by this Law. 2. The scope of competence of the Ombudsman for Children shall include any natural person, entity, business, association, foundation or any other legal entity, regardless of their denomination, which provides assistance to minors in the Autonomous Community of Madrid, either permanently or occasionally, and without prejudice to the fact that said services may or may not be its main function. 3. The competences of the Ombudsman for Children include the activities carried out by the highest ranking civil servants, administrative authorities, civil servants and anyone who is at the service of any Public Administration of the Autonomous Community of Madrid. 4. The competences of the Ombudsman for Children shall also be applicable to the activities carried out by any person responsible for the functioning of the organisations and entities provided for in paragraph 2 of this Article, its workers and any other person at their service. Article 15. Whenever the Ombudsman for Children receives complaints regarding the functioning of the bodies of the General State Administration, he must refer them to the Ombudsman, for which purpose he/she should aim to lay down procedures for coordinating their activities, without prejudice to reporting said activities to the Assembly. Article 16. Whenever the Ombudsman for Children receives complaints regarding the functioning of the Administration of Justice, he must refer them to the Office of the Public Prosecutor to allow the latter to investigate their foundation and take appropriate legal action, or else refer them to the General Council of the Judiciary, according to the type of complaint involved, independently of any reference that he may make to the matter in his annual report to the Assembly. CHAPTER III Article 17. 1. All complaints submitted must be signed by the party concerned, giving his name and address in a document stating the reasons for the complaint, within a maximum of one year of the day following discovery of the acts. 2. The complaints submitted directly by minors may also be lodged not only in the manner described above, but also by appearance, or even by telephone, provided that the identify of the person lodging the complaint can be reliably accredited subsequently. 3. All action by the Ombudsman for Children shall be free of charge for the party concerned, and the assistance of a solicitor or barrister shall not be compulsory. Article 18. 1. The Ombudsman for Children shall record and acknowledge receipt of the complaints made, except those that have been declared secret, and following a succinct analysis, 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, such channels exist, independently of the fact that the party concerned may adopt those it considers to be most pertinent. 2. The Ombudsman for Children shall not investigate individually any complaints that are pending judicial resolution, 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. 3. The Ombudsman for Children shall reject anonymous complaints and may reject those in which he/she 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/her decisions may not be appealed. Article 19. 1. Once a complaint has been accepted or the ex-officio procedure has been initiated, the Ombudsman for Children shall begin appropriate informal summary investigations to clarify the allegations contained therein. In all cases he/she shall report the substance of the complaint to the pertinent administrative agency or office for the purpose of ensuring that a written report is submitted by its director within fifteen days. This period may be extended if, in the opinion of the Ombudsman for Children, 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 for Children as a hostile act obstructing his functions. He/she shall immediately make such an act public and draw attention to it in his annual or special report, as the case may be, to the Assembly of Madrid. 3. The same shall apply when the investigation refers to the functioning or activity of a private centre or service, reporting on the content thereof to a Director or officer who will forward the report within the period set, and paragraph 2 of this Article shall also apply, as the case may be. CHAPTER IV Article 20. 1. Under Article 1.2(a) of the Law 36/1985 of 6 November governing the relationship between the Ombudsman and similar legal forms in other Autonomous Communities, all public authorities, and all other private entities providing services to minors, cited in Article 14.2, which are receiving public funding, are obliged to give preferential and urgent assistance to the Ombudsman for Children 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 for Children, or any person delegated by him/her may present himself/herself at any public or private establishment responsible for the verification or investigation, in order to verify any necessary information, hold relevant personal interviews or examine pertinent records and documents. Article 21. 1. Should the complaint to be investigated concern the conduct of persons in the service of the Administration or state-assisted private entity, in connection with the duties they perform, the Ombudsman for Children shall so inform them and the immediate superior or body to which the former are attached. 2. The persons 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 for a further 10 days maximum. 3. The Ombudsman for Children may verify the veracity of such documents and propose to the person concerned that he/she be interviewed in order to furnish further details. The person who refuses to comply may be required to submit to the Ombudsman for Children in writing the reasons justifying said decision. 4. Should a hierarchical superior or entity forbid a worker or employee, public or private, under his/her orders or in its service from replying to a demand from the Ombudsman for Children or from holding an interview with him/her, he/she or it must state such prohibition in writing, justifying such action, both to the worker or employee and to the Ombudsman for Children him/herself. The Ombudsman for Children shall thereafter direct whatever investigative procedures may be necessary to the aforesaid hierarchical superior. Article 22. The information provided by the persons concerned during an investigation shall be of confidential nature, without prejudice to the provisions under the Code of Criminal Procedure on reporting facts which could constitute an offence. CHAPTER V Article 23. Should the investigations conducted reveal that the complaint was presumably the result of abuse, arbitrariness, discrimination, error, negligence or omission on the part of a civil servant or a worker from the private sector, the Ombudsman for Children may contact the person concerned to state his views on the matter. On the same date he/she shall send a copy of this letter to the civil servant’s hierarchical superior, accompanied by any suggestions he/she may consider appropriate. Article 24. 1. Persistence in a hostile attitude or the hindering of the work of the Ombudsman for Children by any civil servant or worker, official or person in the service of the Public Administration or entity involved in an investigation may be the subject of a special report, in addition to being stressed in the appropriate section of the annual report. 2. The private or public worker hindering the investigation of the Ombudsman for Children by refusal or failure to send the report requested by the Ombudsman for Children, or to facilitate access to the pertinent records and documents, may incur liability. The Ombudsman for Children shall immediately send the pertinent records to the Office of the Public Prosecutor for the adoption of appropriate actions. Article 25. 1. Should the Ombudsman for Children, in the performance of the duties of his office, become aware of presumably criminal acts or behaviour, he must immediately notify the Attorney General of the High Court of Justice of Madrid. 2. The Ombudsman for Children shall lay down, through the Attorney General of the High Court of Justice of Madrid, the appropriate procedures, in full respect with the respective powers, for communicating with the Office of the Public Prosecutor for Minors, for the exchange of information conducive to a better coordination in the defence of minors' rights. Article 26. In accordance with the provisions laid down in the Law 36/1985 of 6 November referred above, the Ombudsman for Children may, ex officio, bring actions for liability against all authorities, civil servants and governmental or administrative agents, including servants of the local administrations, without needing under any circumstances to submit a prior claim in writing. CHAPTER VI Article 27. Expenses incurred or material losses sustained by individuals called upon by the Ombudsman for Children to provide information shall be reimbursed; such expenses will be met from the latter’s budget once duly justified. TITLE THREE CHAPTER I Article 28. 1. Although not empowered to modify or overrule the acts and decisions of the Public Administration, the Ombudsman for Children may nevertheless suggest modifications in the criteria employed in their production. 2. If as a result of his/her investigations he/she should reach the conclusion that the strict fulfilment of a regulation introduced by the Assembly of Madrid or another Regional Administration, may lead to situations that are unfair or harmful to those minors thereby affected, he/she may suggest to the competent legislative body or the Administration that the same be modified. 3. If action has been taken in connection with services rendered by private individuals with due administrative authorization, the Ombudsman for Children may urge the competent administrative authorities to exercise their powers to inspection and impose penalties. Article 29. 1. The Ombudsman for Children may, in the course of his investigations, give advice and make recommendations to authorities and officials in the Administration of the Autonomous Community of Madrid, 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 by the Ombudsman for Children, appropriate steps are not taken to implement them by the administrative authority concerned, or if the latter fails to inform the Ombudsman for Children of its reasons for non-compliance, the Ombudsman for Children may inform the Regional Minister concerned, or the Mayor of the town government concerned, as the case may be, of the particulars of the case and the recommendations made. If adequate justification is not forthcoming, he/she shall mention the matter in his/her annual or special report, together with the names of the authorities or civil servants responsible for this situation. Article 30. If the Ombudsman for Children perceives lack of grounds, bad faith or recklessness once the investigation has been completed, he/she can order that the case be removed from the register, referring the case to the Office of the Public Prosecutor should it prove subsequently necessary to hold someone liable. CHAPTER II Article 31. 1. The Ombudsman for Children shall inform the party concerned or the claimant of the results of his investigations and actions taken, and similarly of the reply from the Administration, entity, civil servant or worker involved, except in the event that on account of their nature they should be considered confidential or have been declared secret. 2. Should his/her intervention have been initiated under the provisions of Article 10.3, the Ombudsman shall inform the Member of Parliament or competent committee that requested investigation of the matter, upon its completion, of the results obtained. Equally, should he/she decide not to intervene he/she shall communicate his/her decision, giving his/her reasons. 3. The Ombudsman for Children shall communicate the results of his/her investigations, whether positive or negative, to the administrative office or private entity in respect of which they were initiated. TITLE FOUR In accordance with the provisions under Article 3, the Ombudsman for Children shall carry out studies to provide knowledge on the conditions under which the minors rights are exercised and developed in the Autonomous Community of Madrid, and may conclude scientific cooperation agreements with a variety of research centres. Universities and any other entities may assist in this purpose. Article 33. 1. In order to ensure compliance with his/her role of providing proper information as to the rights of minors assigned it in the Law, the Ombudsman for Children shall promote actions resulting in a better knowledge by society at large of the rights of minors, disseminating, in particular, the Convention on the Rights of the Child adopted by the United Nations, and the Law on securing the rights of the child and adolescent of the Autonomous Community of Madrid. 2. The Ombudsman for Children shall encourage the development of information materials targeting minors, teachers and, in particular, families. 3. He/she shall also foster the dissemination of information on the rights of minors by the Public Administrations and private entities providing services to minors. 4. For the operational organisation of the functions referred to in this Article, the Ombudsman for Children may conclude cooperation agreements with public and/or private entities that has as one of its main aims the defence and promotion of the rights of minors. Article 34. In order to ensure appropriate handling of the rights of minors, the Ombudsman for Children shall conduct timely follow-ups of the legislative works conducted by the Assembly of Madrid, and of the regulatory works developed by the Public Administrations of the Autonomous Community, proposing whatever corrections and modifications he/she may deem necessary to ensure proper defence and development of the rights. TITLE FIVE Article 35. 1. The Ombudsman for Children shall inform the Assembly of Madrid annually of the action that he/she has taken in an annual report submitted to it when meeting in ordinary session. 2. When the seriousness or urgency of the situation makes it advisable to do so, he/she may submit a special report. Article 36. 1. The Ombudsman for Children shall give an account in his/her 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. 2. No personal data enabling the public identification of the parties shall appear in the report, without prejudice to the provisions of Article 24.1 and Article 29.2. 4. The report shall also include financial information detailing the settlement of the budget of the institution. Article 37. 1. An oral summary of the report shall be presented by the Ombudsman for Children to the Plenary Session of the Assembly of Madrid. The parliamentary groups may take the floor to state their positions. 2. The annual report, as well as any special reports, shall be published. TITLE SIX CHAPTER I Article 38. 1. There shall be appointed a Technical Committee, as an advisory board to the Ombudsman for Children, which shall consist of the Ombudsman for Children and a maximum of six expert advisors appointed by the former among professionals of acknowledged repute and experience in the field of assistance to minors. 2. The position of expert advisor is honorary and unpaid. In any event, the expenses incurred by the expert advisors shall be compensated. 3. The expert advisors shall cease automatically at the time that the new Ombudsman for Children appointed by the Assembly of Madrid takes up his/her duties. 4. The competences and operational status of the Technical Committee are set by regulation. Article 39. The Ombudsman for Children shall be provided with a General Secretariat, which will assume economic and administrative functions and personnel management, and a Technical Bureau, which will be responsible for the complaint procedure and shall provide technical, legal and social support, and whatever other assistance to the Ombudsman for Children for the performance of his/her duties, which shall be set out by regulation, and within the limit of budgetary ceilings. CHAPTER II Article 40. 1. Persons in the service of the Ombudsman for Children shall, while so remaining, be deemed as being in the service of Assembly of Madrid. 2. In the case of civil servants from the Public Administrations of the Autonomous Community of Madrid, they shall be deemed to be rendering special administrative services in accordance with the provisions of Article 62.2 of the Law 1/1986 of 10 April on the Civil Service of the Autonomous Community of Madrid. The financial resources necessary for the operation of the institution shall constitute an item of the budget of the Assembly of Madrid. DETAILED PROVISIONS First. For the purposes of this Law, the Public Administrations of the Autonomous Community of Madrid are the Regional and Local Administrations and the entities governed by public law with its own legal personality, which are related to the Regional Administration and satisfy certain limited circumstances provided for in Article 2.2 of the Law 30/1992 of 26 November on the legal status of the Public Administrations and the Single Administrative Procedure. Second. The Ombudsman for Children shall submit, no later than three months after his/her appointment, a draft regulation developing this Law to the Assembly, who shall approve the regulation, following a debate and amendments, if appropriate. FINAL PROVISION. The Law shall enter into force on the day of its publication in the Official Journal of the Autonomous Community of Madrid.
BOCM 17 July
BOE 25 November
Legal Status
Legal nature and powers
Article 1.
The Ombudsman for Children may appear before the said Committee at the request of its members, at his/her own request or if so provided in this Law.
a) to supervise the Public Administrations of the Autonomous Community, and of any other private entities providing child-care and assistance for adolescents within the Autonomous Community, in order to verify the upholding of their rights, and promote actions in defence thereof, reporting subsequently to the Assembly;
b) to receive and pursue, under this Law, any complaint on threats to or infringement of the rights of children and adolescents lodged by any adult or minor;
c) to propose procedural, regulatory and/or legislative reforms, with a view to facilitating a more effective defence of the rights of children and adolescents, and improving the assistance provided within the Autonomous Community;
d) to foster knowledge, dissemination and exercise of the rights of children and adolescents;
e) to develop actions providing information on the manner in which minors exercise their rights and adults uphold them, and the community's level of knowledge.
Appointment, removal and replacement
Article 4.
1. resignation;
2. expiry of his/her term of office;
3. death or supervening incapacity;
4. gross negligence in the exercise of his/her obligations and duties;
5. following conviction for an intentional offence by judgment.
Prerogatives and incompatibilities
Article 9.
a) any elected office;
b) any political position or activities involving political propaganda;
c) remaining in active service in any Public Administration;
d) membership in a political party or holding a management post in a political party, trade union, association or foundation, or employment in the service thereof;
e) performing duties as a judge or prosecutor;
f) any professional, liberal or business activity or employment, other than unpaid teaching, and for periods that do not affect the performance of the duties thereof.
Procedure
Initiation and Scope of Investigations
Article 12.
Scope of Competence
Article 14.
Complaints procedure
Obligation of Cooperation
In the pursuit of this objective he/she may not be denied access to any administrative record or document related to the activity or service under investigation.
Responsibilities of Persons Affected by the investigation
Reimbursement of Expenses to Individuals
Decisions
Content of Decisions
Notifications and Communications
Preventive Actions and Guidance
Article 32.
Report to the Assembly
3. Furthermore, the report shall include a summary of proceedings of the annual outreach activities conducted by the Ombudsman for Children.
Organisation
Organisational Structure
Human and Financial Resources
Article 41.