Recommendations for the proper functioning of state authorities and regional policy makers
The European Network of Human Rights Institutions (ENNHRI), the network that brings together National Human Rights Institutions (NHRIs) from across Europe to improve the promotion and protection of human rights in the region, has compiled information provided by the Spanish Ombudsman on the quality of our rule of law and made a series of recommendations.
By way of contextualising the figure of the Ombudsman, its main function is to supervise the activity of all public administrations, both central, regional and local. Likewise, among other things, it also supervises the activity of public companies, can file appeals of unconstitutionality or appeals for protection before the Constitutional Court and monitors any violation of rights, being able to act on its own by opening actions or consultations without having to wait for complaints from any person.
The Ombudsman appointed for the defence of human rights, who is now Ángel Gabilondo, after his regular supervisions, has determined that, in general, the rule of law, the separation of powers, as well as its checks and balances are functioning optimally in our country.
Specifically, with regard to the separation of powers, Gabilondo reiterates that the legislative, regional and local elections held during 2023 were carried out without any notable incident. Likewise, no laws or other types of regulations have been adopted that have provoked the opening of unconstitutionality appeals or recommended amendments.
Nevertheless, the ombudsman has identified some irregularities in certain local regulatory processes, such as in urban planning. Even so, these irregularities are not significant, and administrations have been reminded of their obligation to involve civil society in the drafting of laws through public consultation.
The Ombudsman has detected that, in terms of the quality of access to information, there are numerous litigations in this regard. This indicates a clear lack of respect for the culture of transparency among the country’s public administration. In particular, these disputes are often based on environmental issues, urban planning or selection processes, among others. In order to improve this lack of transparency, NHRIs have carried out a series of recommendations on issues of publicity and transparency, and the obligation of the administration to respond to requests for information from the different subjects has been reiterated.
Regarding the independence and effectiveness of independent institutions (other than NHRIs), the Ombudsman recalls that Law 15/2022 on equal treatment and non-discrimination, through which an Independent Authority for Equal Treatment and Non-Discrimination should have been established in January 2023. Similarly, Law 2/2023 on the protection of whistleblowers and the fight against corruption, established the Independent Authority for the Protection of Whistleblowers by March 2024. Both institutions have not yet been established.
Despite all this, the Ombudsman has determined that, in relation to human rights defenders and civil society, no serious and widespread structural problems or disproportionate or unjustified actions on the part of the Spanish authorities can be detected. However, there is one issue of concern, namely the so-called strategic lawsuits against public participation (SLAPPs). The Ombudsman does not have the power to assess the courts and investigate this phenomenon, so concerns persist about the impact that these lawsuits may have on the quality of democracy.
After carrying out these various supervisions, among others, the Ombudsman has determined that, in Spain, the rule of law, as well as the separation of powers and its mechanisms of control and guarantees, operate correctly. For this reason, he has not issued recommendations specifically aimed at improving the system of institutional balance, but rather certain supervisory suggestions focused on optimising or adjusting the actions of the administrations in relation to citizens’ rights.
Despite Ángel Gabilondo’s decision, the ENNHRI has elaborated recommendations and suggestions for the proper functioning of state authorities and regional policy makers.
Firstly, they have focused on advancing the implementation of the recommendations and decisions of regional rule of law actors by state authorities in a timely manner and in cooperation with national human rights institutions (NHRIs). They also consider it crucial to support the creation and strengthening of the space for independent and effective NHRIs, as they are a key element in a healthy system of checks and balances. They also recommend protecting and strengthening other checks and balances throughout the region. Furthermore, it is essential to ensure effective implementation of European court judgments, in consultation with NHRIs and civil society. In addition, it is recommended to ensure a human rights-based approach to security measures. Finally, it is urged to address other persistent challenges related to the rule of law, including structural human rights problems, recognising that the rule of law and fundamental rights are mutually reinforcing.
