The Ombudsman (in office), Francisco Fernández Marugán, has delivered this Thursday to the National Parliament the Annual Report that includes the management of the Ombudsman in 2020, a year that has been marked by the global pandemic of COVID-19.
During this period, 29,335 files were processed, including complaints (28,020), ex officio investigations (406) and requests for the filing of appeals of unconstitutionality and protection (909). To this figure must be added the number of citizens who were attended personally: 17,026, of which 1,135 were in person and 15,891 through telephone calls.
The Ombudsman, for its part, formulated a total of 1,447 resolutions to the different Administrations, of which 536 were recommendations, 482 suggestions, 425 reminders of legal duties and 4 warnings.
Matters related to the Administration of Justice headed the list of citizens’ concerns (4,439). This was followed by complaints related to employment and Social Security
(3,493), migration (2,716), education (2,579) and healthcare (2,183).
According to their geographical origin, the largest number of complaints came from the Community of Madrid (7,362 files), Catalonia (3,138), Andalusia (3,117) and Valencia(2,917), in that order.
Throughout 2020, a significant part was, directly or indirectly, related to the effects of the pandemic and the activities to combat it, developed by the different administrations.
For the Ombudsman, this crisis has demonstrated the need to appreciate the role of the State and of public services and assistance. Socioeconomic actions aimed at
protecting workers and the self-employed and alleviating the growth of poverty, unemployment, precariousness and inequality have sought to soften the economic impact
of the coronavirus, while welfare policies have faced the pandemic.
This income protection effort has shown a remarkable capacity to bring about the recovery of multiple sectors and has proven that austerity measures, such as those previously applied in the European Union, were inadequate.
These were the most remarkable actions of the Institution in 2020:
HEALTHCARE
During the past year, the Ombudsman received three times as many files on health matters, most of them related to the crisis generated by COVID-19.
The pandemic has exacerbated many of the shortcomings of the National Health System, which has experienced its worst crisis since its creation and whose healthcare
capacity, made up of the health services of the autonomous communities, was overwhelmed at the worst moments. The Institution has been warning for years about its
weaknesses and shortcomings, including the fragility of primary care and hospital emergency services, the chronic problem of waiting lists, and the insufficient public
attention to mental health.
Significant problems also include a very high pressure of medical assistance, the restriction of some services, the shortage of professionals in some specialties and
territories, especially in primary care, the demotivation of professionals, the aging of technological equipment and the maintenance problems of hospitals, especially the older ones.
In the Ombudsman’s opinion, this crisis should serve to “materialize major agreements and concrete legislative and administrative measures” to solve the weaknesses observed and, at the same time, consolidate the strengths of the system and make its modernization possible, through an intelligent increase in investment
in material and human resources.
At the beginning of the crisis, complaints were received expressing the concern of many people for their own health and that of their loved ones, and expressing dissatisfaction with the saturation of hospital centers and the suspension of routine activity in primary health care centers.
Further grievances denounced the shortage of beds, trained personnel and ventilators, as well as the lack of protective equipment for health personnel. As the weeks went by, and the state of alarm was lifted, complaints focused on the closure of local clinics, difficultiesin primary care, delays in appointments for consultations, tests and operations, accompaniment of hospitalized patients, and protocols for testing for the virus and delays in obtaining results.
Many citizens have also expressed their opinion on public health measures over the past few months.
The Ombudsman decided to open ex officio general proceedings with all the Departments of Health of the Autonomous Communities in order to ascertain their efforts to reorganize their resources and provide means to halt the spread of the epidemic and to be able to determine aspects for improvement. The Ministry of Health was informed of all the relevant issues raised in the complaints and which required a regulatory or coordinated response.
The Ombudsman also initiated actions following specific complaints and has continued to act on those petitions that raised pressing problems unrelated to the pandemic, such as waiting lists, access to special treatments or medications, problems in the recognition of the right to health care at public expense, requests for access to documents or medical records.
Likewise, the Ombudsman opened a file with the Ministry of Health and with all the autonomous communities to know the basic reference protocols for the hospital centers in each region regarding visits and the accompaniment of patients in the emergency situation. In addition, it requested information on the practical problems when traveling to Spain from other countries or on the price of PCR tests in private laboratories.
With all the information gathered, the Ombudsman drew up conclusions on the impact that this health emergency has had and continues to have on the National Health System, and on the needs or shortcomings that have been most exposed. These conclusions were presented in the Spanish Parliament at the end of November and were sent to the Ministry of Health and to all the regional health departments.
Therefore, the Ombudsman highlights the need to invest more, especially in primary care and public health, and calls for more personnel and more material resources, as well as to put an end to the precariousness and temporary nature of healthcare workers. To this end, the Ombudsman believes that it is necessary to ensure the maintenance and reinforcement of the National Health System and guarantee territorial cohesion, by means of a stable State agreement, similar to the existing one for the
sustainability of the Social Security system.
In addition, there is an urgent need to improve public health services, health promotion and disease prevention, as well as health research. The creation of a state public health agency with high management and decision-making capacities, especially in emergency situations, should also be addressed.
Likewise, the autonomous communities must continue to increase their own public health and epidemiological surveillance resources.
In the opinion of the Ombudsman, the reinforcement of primary care centers, their professionals and their technical and organizational resources cannot be delayed,
especially in the areas with the greatest problems of shortage and lack of personnel. This crisis should be an opportunity to solve the problems of underfunding of this level of care.
At the same time, it is essential to consolidate the hospital structure. Thus, the administrations must already have reinforcement plans in place, in the most affected
specialties, to recover care without delay for all patients, in terms of quality and safety, in the face of waiting lists. Special attention must be paid to the increase in demand for mental health care.
Precariousness and temporariness are probably the greatest structural problem for many workers in the National Health System, and in an increasing percentage. For this reason, it is necessary that the administrations undertake an increase in permanent staff in accordance with the structural needs observed and a review of those aspects of the statutory framework that most require it, with social dialogue and with the objectives of rationalization and modernization that are essential.
Lastly, this crisis has shown that the inter-territorial coordination mechanism needs to be more efficient. The joint decision-making procedure of the Interterritorial Council of the National Health System needs to be reviewed and expanded, taking advantage of the recent experience during the health emergency. Aspects such as the adoption of agreements and their binding force or the greater operational capacity of the central services should be addressed and improved.
The agreements of the Council when exercising coordination functions, in certain matters not only related to public health emergencies, should be adopted by majority vote and be binding on all the territories. Moreover, it should be mandatory for these council agreements to be officially published for the information of all the agents involved and the public.
ASSISTANCE TO THE ELDERLY
The model of nursing home care for the elderly presents structural problems that have been revealed in all their crudeness in the current health crisis and about which the
Ombudsman has been warning for a considerable time.
The dramatic situation experienced in the first months of the pandemic in many nursing homes reflects the scarcity of resources and personnel and the difficulties in adopting sufficient prevention and response measures, as it is an assistance model that depends on the autonomous health services for health care, which were overwhelmed.
At the end of April 2020, the Ombudsman sent recommendations to all the autonomous communities to improve health care in nursing homes, information for family members and protection of their rights.
At the same time, the Ombudsman initiated ex officio proceedings with all the Ministries of Social Policy of the Autonomous Communities to ascertain the response given in each territory to the situation caused in the nursing homes by the pandemic and to identify areas for improvement.
As a result of these actions, and after the joint study and analysis of complaints, the official information received, the different regulations and the evolution of the pandemic, the Ombudsman drew up conclusions that were sent at the end of November to the Autonomous Communities and to the Ministry of Social Rights and Agenda 2030.
According to the Ombudsman, the analysis of the replies, together with the work and studies that each entity is carrying out based on the harsh experiences, will make it
possible to address the pending and necessary reforms for the full guarantee of the rights of the elderly in the nursing home setting.
PUBLIC SAFETY
The declaration of the state of alarm had a strong impact on the freedoms of citizens and, in addition, the application of the Organic Law on Citizen Security to sanction those who violated the prohibitions could result in the payment of exorbitant fines.
The Ombudsman has maintained a critical position on the suitability of the Citizen Security Law for situations such as a state of alarm. In this sense, Fernández Marugán reiterates that it is necessary to reform some aspects of this regulation in order to achieve the right balance between freedom and security.
The Ombudsman has processed complaints referring to restrictions on freedom of movement, disagreement with claims received and others which demonstrated a general
disagreement with the effects and limitations imposed on the rights of citizens during the state of alarm.
In order to protect citizens from the restrictions on rights brought about by the state of alarm, increase legal certainty and guarantee equal treatment throughout the territory, the Ombudsman made three recommendations.
On the other hand, the Ombudsman initiated an ex officio action to ascertain the measures in place in the detention facilities of the Security Forces to prevent possible transmission of the virus. Within the framework of this action, resolutions were issued to those responsible for these centers.
The effects of covid-19 have also had an impact on the Traffic and Road Safety Administration. The Ombudsman initiated an ex officio action requesting information on the reorganization of the aptitude tests for obtaining driving licenses and the way in which these tests were to be carried out, adapting them to the guidelines of the health authorities on safety distance and disinfection.
In 2020, elections for two autonomic parliaments have been held, which have highlighted the difficulties to develop these electoral processes in a pandemic situation such as the current one. The Ombudsman insists on the need to modernize the Electoral Law, “inadequate to adequately resolve the vote from abroad, the use of new technologies in electoral processes and, now, a global pandemic with intense repercussions in Spain”.
EDUCATION
Fernández Marugán considers that “education is the main instrument of social mobility and the best aid for overcoming economic and social inequalities”. In the
opinion of the Ombudsman, the pandemic has had negative effects in this area, thus, “it has shown a stagnation of the function of social elevator, which education had been performing, revealing the limiting character with which it acts”.
In the first weeks after the declaration of the first state of alarm, schools were closed and many families informed the Ombudsman of their difficulties in accessing distance
education systems because they did not have access to the network or did not have connection devices to be able to continue with the teaching activity by telematic means.
These concerns were transmitted to the Ministry of Education and Vocational Training so that, once the on-site educational activity was resumed, it would promote the adoption of compensatory measures and specific support that the students might need depending on their personal circumstances, as well as the establishment of evaluation and promotion criteria taking into account the specific problems that the health crisis has caused in all education programs.
In June, the Ombudsman initiated an ex officio action with all educational administrations to learn about their plans and forecasts for the return to the on-site classroom that will take place in September. This action was resumed in 2021 to evaluate the suitability of the plans and protocols applied in the new academic year and to ascertain the actual coverage of teaching positions.
The Ombudsman is aware of the investments that all the autonomous communities have been making in teacher training and in the provision of infrastructures and technological equipment for the teaching-learning process of students (devices, wireless networks, connectivity, access to digital platforms) since the beginning of the health crisis. However, he points out that “the pandemic has shown that greater investment is needed to achieve methodological innovation and the transformation of school organization, which at this time is more essential than ever”.
On the other hand, the Ombudsman also initiated an ex officio action after receiving numerous complaints about the educational care provided to vulnerable students or
students living with people considered at risk of the coronavirus in order to know the educational response for these families.
Although the pandemic has marked most of the complaints received in the area of nonuniversity education, in 2020 there have also been cases related to deficiencies in school facilities, difficulties in gaining access to a particular center, obstacles in obtaining scholarships and financial aid, and problems related to the provision of complementary services, such as transportation or meals.
In addition, this year complaints have continued to come in from citizens stating that the attention given to students with specific educational support needs was not adequate due to the lack of personnel or material resources necessary to guarantee inclusive education, both in basic education and in non-compulsory education levels.
The Ombudsman has continued to insist on the need to establish regulatory and organizational measures to further develop inclusive education.
In the university educational field, the role of the Ombudsman was essentially to serve as a liaison with the universities closed due to the pandemic, to which students were
unable to gain access in order to carry out academic procedures, and also to provide them with updated information on the measures adopted by each of the centers to complete the academic year.
Numerous petitions have also been received this year due to delays in the processing of homologation proceedings for foreign university degrees. Despite the efforts and
measures adopted by the Ministry of Universities, the Ombudsman regrets that during 2020 the situation of collapse has continued, reaching an accumulation of more than thirty thousand files, an unacceptable situation that the bodies involved continue to attribute to being lacking sufficient human and material resources to cope with the proper management of their functions.
To alleviate the lack of healthcare personnel, the Ombudsman made a recommendation to the Directorate General for Professional Management and to the General Secretary of Universities to facilitate the incorporation of healthcare professionals who were still waiting to complete the homologation or recognition of their healthcare training. This recommendation was accepted.
MINORS
In recent years, the Ombudsman has expressed his concern over the high number of children under the care of public administrations who remain in residential centers for prolonged periods of time. Generally speaking, it can be stated that the desirable change towards a model in which family foster care prevails over residential care has not taken place. Last year, the Ombudsman made several recommendations to the Autonomous Communities for the effective implementation of foster care as a preferential and majority measure for the protection of minors.
Regarding unaccompanied foreign minors, for yet another year, numerous complaints have been received in relation to age determination procedures for undocumented
foreigners, whose minority age cannot be established with certainty. The discrepancy with the State Attorney General’s Office on the suitability and sufficiency of the medical tests carried out continues.
Significant differences continue to be detected between the data provided by the regional child protection agencies and those provided by the Registry of Unaccompanied Foreign Minors.
In 2020, through an Instruction, the Directorate General of Migration established the requirements for access to a two-year residence and work authorization, renewable for another two years. The Ombudsman welcomes this measure which, together with the acceptance of the recommendation for the modification of the legal regime of residence permits for unaccompanied foreign minors, will contribute to the necessary improvement of the social and labor integration of this sector of the population.
On the other hand, complaints have been received from children’s organizations requesting the intervention of the Ombudsman to promote measures to eradicate the
proliferation of hate speech against unaccompanied foreign minors. On several occasions, Fernández Marugán has made appeals to combat “intolerant and xenophobic”
messages against these children.
Once again this year, Fernández Marugán must express his concern regarding the actions and lack of collaboration of the Provincial Directorate of Education in Melilla, which, despite repeated requests from the Ombudsman and the opinions of the Committee on the Rights of the Child, continues not to provide schooling for a group of minors who were born in Melilla or have been living in the autonomous city for years. Throughout the year 2020, the Ombudsman has initiated several actions and made suggestions to the General Directorate of Educational Planning and Management of the Ministry of Education and Vocational Training to try to solve this situation.
VIOLENCE AGAINST WOMEN
The COVID-19 crisis has led to an increased risk of gender-based violence. In Spain it has fallen the numbers of fatalities decreased in relation to the previous year but not the violence. Fernández Marugán laments the murder of 45 women and three minors.
The Ombudsman has carried out monitoring actions at all stages of the protection system.
At the end of 2019, recommendations were made to the Ministry of Justice to extend protection against all forms of violence against women, thus introducing the application of the concept of gender-based violence established by the Istanbul Convention. The Ministry has accepted this recommendation, which is pending regulatory development.
Actions concerning the development of individual intervention plans for victims have also continued. The Ministry of Equality has undertaken to draw up a reference protocol to enable the development of these plans within the framework of the Sectorial Conference on Equality.
For a further year, complaints illustrating the problems faced by victims of gender-based violence during judicial proceedings have been received. The Ombudsman has formulated recommendations to the Ministry of Justice to avoid double victimization during the processing of judicial proceedings.
Moreover, the Secretary of State for Territorial Policy has accepted the recommendation made by the Ombudsman regarding the registration status of women victims of gender violence who are in residences, sheltered homes or sheltered housing.
The Ombudsman has also drawn attention to the situation of children who are directly or indirectly victims of gender violence. Fernández Marugán welcomes the approval of the Organic Law for the Comprehensive Protection of Children and Adolescents against Violence, which incorporates the Ombudsman’s recommendations, and trusts that this new law will serve to achieve greater protection for minors who are victims of gender-based violence.
The special vulnerability of foreign women exposed to gender-based violence is of particular concern to the Ombudsman, who has once again insisted on the need to
reinforce protection against the deportation of women in an irregular situation who come to a police station.
The Ombudsman has continued to denounce the challenges in the identification of victims of human trafficking and has called for the improvement of existing protocols for the detection of particularly vulnerable profiles. In addition, he warned of the need to ensure that those few victims who come into contact with the authorities receive a swift and rapid response, taking all necessary measures for their identification and protection.
Problems have also been noted in the identification of child victims of trafficking. The report includes the shortcomings detected by the Ombudsman in the case of two Somaliminors. Fernández Marugán insists on the need for special training for asylum interviews with minors and calls for the identification of suitable centers for the care of this profile of girls with specific needs.
HOUSING
The health emergency situation has had a special impact on citizens in terms of housing.In spite of extraordinary measures such as the suspension of evictions, the temporary and extraordinary deferral of rent payments or the aid granted for the rental of permanent housing, the pandemic has generated a strong economic and social impact that is affecting the income of many citizens who are now unable to pay the rent or mortgage on their homes.
The impact of this crisis has affected certain highly vulnerable groups for whom it is necessary to readapt and adjust social housing policy. In the view of the Ombudsman, it is necessary to adopt immediate alternatives and measures that are effective in addressing the increased housing problems of these families. Therefore, in 2020, the
Ombudsman recommended extending the deadline for applying for rental assistance for permanent housing and also asked to include situations of residential vulnerability derived from the COVID-19 in the allocation of housing for social emergency.
In addition, the Ombudsman is particularly concerned about the high number of complaints received regarding family units composed of persons with minors, single-parent families or especially vulnerable people, who have been evicted from public subsidized housing,without the administration or regional or local public body having provided a housing alternative.
Issues related to the management of the various housing subsidies were the protagonists of the complaints in 2020. Among the ordinary complaints, those related to
rental assistance for permanent housing and those related to problems with applications for reduced rent stand out, a clear symptom, in the opinion of the Ombudsman, that the economic situation of families is in decline, particularly after the health crisis.
At the same time, as in previous years, the Ombudsman continued to receive complaints from people who, driven by necessity, have illegally occupied a dwelling. On many
occasions, these are families with minors, and it is women, mainly with dependent children, who are the most vulnerable and punished group and those who most frequently turn to the Ombudsman’s Office for protection.
BASIC SERVICES AND SUPPLIES
Since the declaration of the first of the states of alarm, the Ombudsman has paid preferential attention to complaints related to the supply of water, electricity and
telephone line cuts (especially in cases of remote assistance to vulnerable people). The Institution was also interested in the extension of the social subsidy to workers affected by employment regulation measures and self-employed workers who had ceased their activity or whose income had been reduced by 75%, and in the creation of the new category of vulnerable consumer.
The availability of an electricity supply under economic conditions that people can afford is a key issue, according to the Ombudsman, who recalls that Spain is one of the
countries where people spend a greater proportion of their income on paying electricity bills, despite having an energy mix that is more favorable to maintaining lower prices than other countries.
According to the Ombudsman, the tax burden affecting the entire bill (VAT at 21% and electricity tax) does not help in this matter, even for supplies covered by the social
electricity voucher, or the impossibility for individuals to adjust their electrical power to their needs, which may change throughout the year due to weather conditions or the state of their home, and which has only been made more flexible during the state of alarm on a temporary and exceptional basis for the self-employed and companies.
Furthermore, the Ombudsman detected problems in the processing of the social electricity voucher for those people who, due to their low income, are not compelled to file a Personal Income Tax statement. For this reason, it initiated an ex officio action before the Secretary of State for Energy and requested information from the National Commission for Markets and Competition, which issued a report in October 2020 that coincided with the postulates of the Ombudsman.
Further noteworthy actions of the Ombudsman in 2020 were the recommendations made to restore electricity in sectors 5 and 6 of the Cañada Real (Madrid) and in the northern area of Granada.
SOCIAL SUBSIDIES AND WORKERS’ PROTECTION
Social Security benefits constituted in 2020 a key tool for the protection of waged and selfemployed workers and vulnerable groups affected by the economic effects of the
pandemic.
Despite the extent of the measures adopted to protect employed and freelance workers affected by the COVID-19 crisis, the Ombudsman detected through complaints situations that remained outside the scope of social protection.
Consequently, the Ombudsman submitted numerous proposals to the Ministry of Labor and Social Economy and the Ministry of Inclusion, Social Security and Migration to improve the protection of employees and freelance workers, many of which were accepted.
For instance, new groups have been included in unemployment protection, some of them at the request of the Ombudsman, such as workers dismissed on test period who
had been on voluntary absence in the previous three months, workers who had left their jobs with an offer of employment in another position that was not effective due to the current situation, the group of discontinuous permanent workers, or the collective of artists.
New specific subsidies have also been established, such as the special compensation for the unemployed who have exhausted the contributory benefit or welfare benefit (and also the active insertion income) between March 14, 2020 and June 30, 2020, and the extraordinary unemployment benefit for taurine professionals, following a recommendation made by the Ombudsman, as well as management improvements in the extraordinary subsidy for domestic workers or the exceptional subsidy for the end of a temporary contract.
In addition, the Ombudsman recommended the recognition of unemployment benefits for workers in a situation of pluriactivity at the time of the declaration of the first state of alarm. These are workers included in the temporary layoff plans of their companies and, at the same time, affected by the total paralysis of their businesses or activities as self-employed, or with a drastic reduction in the income derived from their freelance employment.
Last year there were also numerous complaints about problems in contacting the State Public Employment Service by telephone or through the electronic site, and
about the excessive delay in assigning a date in cases of requests for virtual appointments. Complaints were also received regarding the management of the extraordinary unemployment aid due to a Temporary Employment Regulation Procedure, especially due to difficulties in gaining telematic access to the processing of the application, delays in recognition and payment, and errors in the amount or in the undue termination of the aid.
The Ombudsman opened various proceedings before the Secretary of State for Employment and Social Economy, and made recommendations to improve the management of the extraordinary unemployment benefit due to Temporary Employment Regulation Proceedings and to achieve more accessible communication by different means between citizens and the State Public Employment Service. The response was positive, without prejudice to the enormous difficulty to materialize in practice all these improvements as long as the enormous workload and the inevitable short term insufficiency of the human and technical resources
available to the State Public Employment Service persist.
Within this context, the Ombudsman believes it is necessary for the Secretary of State for Employment and Social Economy and the State Public Employment Service to simplify management as much as possible (mostly by automation, although individual interventions by public employees are necessary), taking advantage of the experience accumulated in recent months.
Meanwhile, the approval, with the unanimous support of Congress, of the minimum living income as a non-contributory Social Security benefit to prevent the risk of poverty and social exclusion, something for which the Ombudsman had advocated in his 2019 report, stands out. In the view of the Ombudsman, this new figure is a hopeful and important step forward that has meant the creation of a minimum income guarantee benefit of the Social Security System, uniform for the whole country and with better adequacy and sufficiency than the autonomous minimum incomes that have existed up to now.
Nevertheless, for the Ombudsman, it is urgent to address the high number of pending files in order to prevent people in the worst economic situation from remaining without coverage. In order to achieve this, it is essential to increase the capacity of the National Social Security Institute, with human and technical resources, and also to simplify the procedure and regulation, which are very complex and demanding.
Additionally, the approval of the minimum living income has also had an impact on the processing of minimum incomes and the Ombudsman is examining this fact in
communities such as Andalusia, Valencia, Castile-La Mancha and Catalonia.
POVERTY AND SOCIAL EXCLUSION
The past year brought an increase in the number of complaints regarding food subsidies, as well as rental subsidies submitted by users of social services, as a
consequence of the economic crisis resulting from the pandemic.
The Ombudsman is concerned about the increase in the number of people who are left without economic resources of any kind, without the right to benefits or awaiting the resolution of the minimum living income or with a recognized unemployment benefit or subsidy that is not sufficient to meet the cost of their family needs.
In this context, the Ombudsman opened an ex officio action to ascertain compliance with the poverty reduction objectives of the Europe 2020 Strategy. In addition, the
Ombudsman asked the Madrid City Council about the management and reasons for the delay in the effective implementation of the Family Card.
Other noteworthy actions in this area had to do with care for the homeless in the health emergency. After receiving complaints at the beginning of the pandemic, the Ombudsman requested information from all the autonomous communities, provincial councils of the Basque Country, the autonomous cities of Ceuta and Melilla, and some city councils such as Madrid or Torrelavega, where the municipal network of resources for the homeless was involved.
Finally, Fernández Marugán also inquired about the precarious situation of seasonal workers in settlements in Huelva and Lleida.
MIGRATIONS
In 2020, close to 40,000 people arrived in Spain in an irregular manner, more than 20,000 of them in the Canary Islands. The Ombudsman has collected all its actions and the visits made to facilities and centers for migrants located in this archipelago in a monograph on the migratory situation in the Canary Islands.
Given the increase in arrivals on the coast, the Ombudsman initiated ex officio actions with the Canary Islands, Andalusia, the Balearic Islands, Murcia and Valencia and with the Ministry of Inclusion, Social Security and Migration to find out what health measures were being adopted in the face of possible cases of covid. The aforementioned Ministry established a protocol that has been followed up by the Ombudsman.
Due to the health crisis, the problems of overcrowding in the Temporary Immigrant Stay Centers increased, especially in that of Melilla. The Ombudsman repeatedly requested the transfer of the most vulnerable people to the peninsula. Some transfers were carried out, but in the view of the Ombudsman they did not resolve the situation in this center.
After the state of alarm was decreed, the Ombudsman began to receive complaints about the situation of the people in the Detention Centers for Foreigners. Fernández Marugán called for the release of these people, since in the current situation their return or deportation could not be carried out. All the inmates held in the Detention Centers for Foreigners were released.
The issue that has most affected resident foreign nationals has been the delays in the procedures for obtaining identity cards as well as documents proving their status as
applicants for international protection. With almost six million legal residents currently in Spain, according to the Ombudsman, the Ministry of the Internal Affairs should urgently review the personal and material resources assigned to the processing of foreigners’ documentation. Fernández Marugán made a recommendation to the Ministry of the Interior to urgently facilitate foreign citizens’ access to the appointment system to apply for international protection and to carry out various immigration procedures at police stations.
The number of asylum applications in Spain during 2020 has fallen significantly compared to the previous year, due to a decrease in the number of foreign arrivals
resulting from border closures and restrictions imposed on international travel by COVID-19. According to data from the Ministry of Interior, as of December 31st, 88,762
people had applied.
Most complaints continue to focus on access to the procedure and delays in obtaining appointments for various procedures. Furthermore, despite the measures adopted to
reinforce reception resources, complaints continue to be received regarding problems of access to the reception system for applicants and beneficiaries of international protection, in different parts of Spain.
In 2020, the Administration has accepted the recommendation made by the Ombudsman, admitting the compatibility between international protection procedures and requests for residency due to roots. The Ombudsman values its acceptance very positively, as it allows for the configuration of a framework that is much more protective and in accordance with international standards.
Despite the measures that have been adopted to rationalize and adapt the reception system to the growing demand for asylum seekers, the Secretary of State for Migration
has recognized that the capacity to reinforce it is limited, as the system is overwhelmed. The Ombudsman insists that formulas must continue to be sought to address the structural shortcomings of the system and respond to the existing emergency and in this regard, calls for the participation of all administrations involved, which must be coordinated to provide a dignified and comprehensive reception to applicants for international protection.
During the first weeks following the declaration of the pandemic, numerous Spanish citizens and foreigners legally residing in Spain, who were outside the country,
requested the intervention of the Ombudsman to return to Spanish territory. The Ombudsman maintained constant communication with these individuals and transmitted to them all the information provided by the Ministry of Foreign Affairs, European Union and Cooperation. In some cases, the Ombudsman formulated resolutions that in most cases were accepted.
TAXES
In tax matters, COVID-19 issues accounted for more than half of the complaints received.
The arrival of the pandemic and the declaration of the state of alarm posed difficulties for the timely fulfillment of tax obligations, so the Ombudsman asked to accommodate the taxpayer’s calendar to the special circumstances being experienced. Thus, it urged the Ministry of Finance to extend the deadline for filing quarterly VAT and Personal Income Tax returns for companies and the self-employed corresponding to the first quarter of 2020 and requested the extension of the deadline for Personal Income Tax and Wealth Tax returns 2019 for those displaced persons, caregivers of the sick, with particularly demanding work regimes and also for the bereaved of deceased persons who had to take charge of filing the returns of the deceased.
Further matters dealt with by the Ombudsman were the saturation of the telephone helpline and other means provided to help taxpayers to comply with their obligations; VAT deferrals for SMEs and freelancers and their compensation with the refunds resulting from the 2019 Personal Income Tax return; and the computation of days of the first state of alarm for the determination of tax residency. In addition, the Ombudsman asked the Government in July for a regulatory amendment to apply the lowest possible VAT rate to masks and hydroalcoholic gels, even 0%, as they have become essential goods.
Besides, the different tax treatment of the reduction of working hours of parents, adoptive or foster parents for the care of minors affected by cancer or other illnesses, led to a recommendation to the Secretary of State for Finance to correct this disparity of treatment and to consider the situation of freelance professionals. An action was also taken to ensure the confidentiality of data on political or union affiliation in the declaration of Personal Income Tax.
Lastly, it should be noted that two out of three of the resolutions issued by the Ombudsman’s Office in this area were reminders of legal duties due to the high and
chronic delays in the review procedures entrusted to the economic-administrative courts. The Ombudsman opened an ex officio action before the Secretary of State for Finance to find out the content of the Improvement Plan for the economic-administrative courts and the impact of such measures on the correction of delays.
ECONOMIC ACTIVITY
As regards matters related to the impact of COVID-19 on economic activity, complaints were received about the excessive harshness and even the lack of effectiveness of the financial mediation lines, conceived as a financial support for the most arduous period of the pandemic. Already in the period of “new normality”, the Ombudsman opened an ex officio action.
A general action was also initiated with the Bank of Spain when complaints were received from foreign citizens, some of them people in vulnerable situations, who are being denied the opening of bank accounts, “for not having the Foreigner’s Identification Card, when the Foreigner’s Identity Number or passport would be sufficient”. From the complaints that have continued to be received, the Ombudsman concludes that the opening of an account for certain categories of persons, even for access to the so-called basic payment account, can be complex. It seems that the banking institutions operating in Spain have a certain tendency to opt for refusal at the slightest added difficulty, instead of managing this risk in a more individualized way. For this reason, the matter remains under study.
Additionally, in 2020, the regulation of commercial communications of gambling activities was approved (R. D. 958/2020). The assessment of the Ombudsman is positive because, although it does not address the absolute prohibition of advertising, whose study the Administration came to accept at the time, it presents clear improvements in guaranteeing the rights of the groups most sensitive to the problem of gambling.
JUSTICE
During 2020, justice, understood as a public service, has suffered the problems derived from the closure of the judicial offices and the suspension of procedural deadlines until the beginning of June. The Ombudsman has handled numerous complaints that have highlighted that the well-known delays in the Administration of Justice have been aggravated by the pandemic.
Since 2017, two young people have died (Melilla and Almería) after being subjected to mechanical restraint in an internment center for minors in conflict with the law. To prevent further deaths in these circumstances, the Ombudsman made recommendations to the Ministry of Justice, the Autonomous City of Melilla and the Regional Government of Andalusia with the aim of abolishing mechanical restraints in these centers throughout the national territory.
Fernández Marugán has asked the Ministry of Justice to repeal the section of the regulation of criminal responsibility of minors in which mechanical restraints are regulated in order to put an end to them as a means of containment and to the communities to suspend their practice while this normative change takes place. The aforementioned Ministry has informed of the constitution of a working group to elaborate a reform of the regulation and to attend to the recommendation of the Ombudsman.
In the current context of sudden pauperization of the population, due to the economic effects of the pandemic, the Ombudsman considers that the proper functioning of the free justice system is essential. In 2020, the Ombudsman’s Office processed complaints in which its reform was proposed in order to attend to all citizens who might need access to it. The Ministry of Justice has announced that it is working on several regulatory projects with an impact on the free legal aid system. Already in 2021, Royal Decree 141/2021, of March 9, approving the new Regulations on free legal aid, has been approved.
CIVIL REGISTRY
For yet another year, the Ombudsman continues to receive complaints both for delays in the resolution of applications for nationality by residence and for delays in the notification of resolutions, in those cases in which electronic notification has not been consented to.
Fernández Marugán insists, once again, on the need to adopt the appropriate measures to resolve the delays in the resolution of Spanish nationality by residence applications, thus avoiding the enormous damage that these delays cause to the people affected. In the Ombudsman’s opinion, “this situation must end and for this to happen, sufficient economic funding is essential”.
The situation of the Central Civil Registry has also been the subject, for yet a further year, of numerous complaints due to delays in the issuance of certificates and in the practice of marriage registrations. After noting that its deficient operation affects the private sphere of individuals, the Ombudsman has formulated resolutions to try to alleviate this situation. Thus, it has recommended to the Secretary of State for Justice to provide the registry with the necessary means to provide a quality, agile and efficient public service. It has also asked to address, as a matter of urgency, the digitalization of the Civil Registry. Finally, it recommended to the Ministry of Justice, Interior and Victims of the Community of Madrid to urgently reinforce the staff that attends the service of certifications and general matters of the Central Civil Registry.
In his annual report, Fernández Marugán points out that the delay in the entry into force of Law 20/2011, of the Civil Registry has caused a slowdown in its modernization. On April 30, 2021 it finally came into force after a wait of almost ten years.
CIVIL SERVANTS AND PUBLIC EMPLOYEES
Public employment has been one of the essential pillars on which the State has relied to face the COVID-19 pandemic. The Ombudsman wishes to thank all public employees for the effort made to guarantee and maintain services and especially the health and nonhealth personnel of the health services who “have responded and respond in an exemplary manner”.
Fernández Marugán reaffirms the value of public employment as one of the basic pillars of the State for the guarantee of the fundamental rights and values recognized in the Constitution and claims to maintain and reinforce it, especially in those sectors that provide and guarantee essential services to the community.
After the declaration of the state of alarm, the Ombudsman initiated actions to inquire about the working conditions in which the agents of the State Security Forces, firefighters and prison officials were carrying out their work. Fernández Marugán requested that they be provided with COVID-19 detection devices and personal protective equipment to be able to carry out their work safely.
Furthermore, in 2020, complaints have continued to be received regarding the delay in the execution and resolution of public employment announcements. In this fiscal year, most of them were motivated by the exceptional measures decreed to face the pandemic.
THE ENVIRONMENT
The crisis provoked by COVID-19 also had an impact on the environment. On the one hand, the lockdown decreed by the Government in March 2020 resulted in a certain
improvement in several environmental parameters such as air quality or biodiversity conservation, caused by the stoppage of economic activities. In addition, the limitations caused noise nuisances generated by economic activities, which are usually the largest number of complaints received, to be sensibly reduced or even abruptly ended with the definitive cessation of the activity of the hotel and catering premises.
At the same time, the delay in processing and the restriction of attention to citizens caused by the overall suspension of administrative procedures decreed during the confinement was the cause of complaints from citizens. Complaints also increased due to the sanctions imposed by the municipal authorities for inadequate practices and irregular deposits of packages and courier remains in general, as the practice of purchases through the Internet has increased enormously.
Among the activities carried out by the Ombudsman in environmental matters, the recommendations to prevent hunting in the Monfragüe National Park and the resolution by which the Ombudsman urged the Regional Government of Extremadura to draw up and approve as soon as possible the wolf recovery plan in the region, in accordance with the provisions of the Law on Heritage and Biodiversity, stand out.
As regards atmospheric pollution, last year new resolutions were formulated to improve the environmental control of activities potentially polluting the atmosphere in the
Community of Madrid and work continued within the framework of the ex officio action initiated in 2019 on the “Madrid Central” low emissions zone.
THE DEMOGRAPHIC CHALLENGE AND EMPTY SPAIN
The Ombudsman continued in 2020 to work on the problem of depopulation in Spain. In the view of the Ombudsman, the high-priority objective of all public administrations when facing the demographic challenge must be to guarantee citizens the existence of quality public services on a universal basis.
Given this context and as a consequence of the pandemic, last year the obligatory permanence of many people at home, including students of all levels who had to attend
classes and do homework, and an unprecedented increase in teleworking, caused an increase in complaints related to network deficits in many areas, mainly in what is known as “empty Spain”. Although cases of absolute absence of signal are becoming less frequent, these complaints show the persistence of areas in which the quality of the available signal is incompatible with the requirements derived from the work and study rhythms that have been implemented.
On the other hand, the problems of accessibility and continuity of electricity supply in rural areas have a common cause with those occurring in urban areas: the lack of investment in the network and a regulatory framework characterized by the absence of effective incentives to provide a quality service. The Ombudsman’s Office has been able to observe a specificity in uninhabited Spain that points to a structural deficit, which compromises the constitutional principle that all Spaniards have the same rights and obligations in any part of the territory of the State.
Along these lines, the Ombudsman recommended that the Department of Industry, Employment and Economic Promotion of the Principality of Asturias pay for the electrical installation in the village of La Prohida, which does not have access to the electricity grid. In addition, the Ombudsman also intervened with the corresponding regional authorities in cases such as the power cuts in municipalities in the province of Leon caused by a snowstorm or the supply interruptions in the area from Villalba de la Sierra to Cañamares (Cuenca).
TRANSPORT
During the past year, the Ombudsman received complaints about the reluctance of some airlines to refund money for tickets for routes cancelled due to the limitations
established during the state of alarm. After opening an ex officio action on this matter, the Ombudsman urged the Aviation Safety Agency to inspect what the airlines were doing. In its response, this agency has communicated that it has opened investigation procedures to nine airlines, and that once the proceedings are concluded, it will analyze whether it is appropriate to open sanctioning procedures. At the same time, the Ombudsman initiated proceedings with the Undersecretariat of the Ministry of Consumer Affairs.
Moreover, the actions promoted by the Ombudsman through the European Ombudsman before the European Commission in relation to child accompaniment services are also noteworthy. The fact that such services are voluntary for companies gave rise to some complaints from separated families with difficulties in maintaining a visitation regime with both parents. In the case of Spain, the fact of being an island poses an additional problem, due to the lack of transportation alternatives. The Ombudsman concluded that, in order to adequately guarantee the right of minors whose parents live apart to maintain contact with both parents, it is necessary, in certain cases, to have facilities for the minor to travel alone, a regulation that is still not adequately guaranteed.
In the field of rail transport, in 2020 the Ombudsman continued the ex officio investigation begun a year earlier to ascertain the overall criteria of Renfe and the Ministry of Transport, Mobility and the Urban Agenda on the strategy to be followed to prevent rural populations far from the main communication axes from becoming progressively isolated, either due to insufficient rail services or their gradual reduction, or due to the lack of connections or the deficient functioning of existing ones.
Besides this general investigation, complaints were processed regarding reductions in railway services that harm specific areas of the national territory, with special incidence in rural localities, such as those denouncing the suppression of lines and stops on the line that connects the municipalities of the region of La Alcarria with Guadalajara and Madrid; the progressive elimination of services on the lines connecting the provinces of Granada and Almería with those of Alicante and Valencia; or the reduction of timetables, the age of the infrastructures and the frequent breakdowns of the units providing service on the Bobadilla-Algeciras line.
CULTURE
The world of culture has been severely affected by the pandemic. Shows of all kinds have had to be cancelled or have seen their capacity very limited, so that the professionals of the sector, as well as the employment derived from or dependent on these activities, has been left in a situation of vulnerability. In his report, Fernández Marugán calls for aid, subsidies and support plans for this sector.
PENITENTIARY CENTERS
In 2020, 939 files were initiated, a very high figure, the previous year there were 722. This increase can be explained by the health crisis and the better knowledge of the institution through the visits it carries out as National Mechanism for the Prevention of Torture.
The most frequent complaints were related to hygiene, health and food (334), transfers (127), communications (112), permits (76), internal separation/classification (59) and illtreatment (43).
In order to preserve the health of the inmates, once the state of alarm was declared, some 3,000 people were released from prison. The Ombudsman, who since the first weeks of the pandemic has kept open an ex officio action to monitor the incidence of the coronavirus in prison, appreciates the measures taken by the prison administrations that served to contain the virus in the centers.
It also recognizes the efforts of prison officials and highlights the commitment of the prisoners themselves, who have had to endure the inevitable limitation of some of their rights for the sake of preserving life and health.
Once the state of alarm was declared, visits to prisons were suspended. In order to enable prisoners to maintain contact with their families, mobile telephones were provided to allow them to make video calls. The Ombudsman applauded this initiative and advocated the extension of this type of terminal to all centers to reach as many inmates as possible. He also called for their use to be extended beyond video calls with family members, allowing access to legal counseling services, religious assistance services, community telephone counseling services currently available to free individuals, etc.
Many of the recommendations made by the Ombudsman in the report “Individuals with Intellectual Disabilities in Prison” were accepted in this exercise. Hence, the Secretary of State for Justice has positively assessed the request to transform custodial sentences into security measures for cases of unnoticed intellectual disability and has undertaken to take it into consideration in the reform of the Penal Code.
For its part, the Secretary of State for Social Rights has accepted the recommendation to include prisoners with intellectual disabilities in the Social Agenda and in the Spanish Strategy and Action Plan on Disability, as a particularly vulnerable group. The Catalan prison administration has also committed to follow the recommendations made by the Ombudsman to improve the situation of these people.
ACTIVITY OF THE NATIONAL MECHANISM FOR THE PREVENTION OF TORTURE
The pandemic also marked the activity carried out by the Ombudsman, in its capacity as the National Mechanism for the Prevention of Torture in the past year. Since the beginning of the health crisis, the National Mechanism for the Prevention of Torture has been in contact with the heads of prisons to learn about the measures taken to protect the health of inmates and staff.
In the first months of the state of alarm, following the recommendations of international organizations, the National Mechanism for the Prevention of Torture carried out remote or non-contact monitoring tasks. A total of 49 non-face-to-face actions were carried out.
As soon as ordinary visits could be carried out with all the guarantees for the technicians who carried them out and for the inmates and staff of the places of deprivation who received the visit, these in-depth inspections were resumed. A total of 115 supervisory actions were carried out, of which 66 were on-site visits to places of deprivation of liberty.
In 2020, 671 resolutions were formulated (57 recommendations, 598 suggestions and 16 reminders of legal duties) for the better prevention of torture, mistreatment and respect for the fundamental rights of persons while deprived of liberty, with regard to facilities and above all to the procedures applied to them during this situation.
All the actions carried out as National Mechanism for the Prevention of Torture will be detailed in the specific report published every year by the Ombudsman.
CONSTITUTIONALITY OF THE STATE OF ALARM
Some citizens requested the Ombudsman to file an appeal of unconstitutionality against Royal Decree 463/2020, of March 14, declaring a state of alarm for the management of the health crisis situation caused by COVID-19 and its extensions.
The Ombudsman decided not to file an appeal since, in his opinion, the restrictions on the exercise of certain fundamental rights were justified by the existence of a serious
pandemic and were adopted within the framework of Article 116 of the Constitution. Fernández Marugán pointed out that “neither the Government declaring the state of alarm, nor the Parliament extending it, wanted to suspend fundamental rights. What they wanted was to confine the population in order to save the lives and preserve the health of as many people as possible”.
After the declaration of the second state of alarm through Royal Decree 926/2020, of October 25, some people asked the Ombudsman to file an appeal of unconstitutionality. Already in 2021, Fernández Marugán announced that he would not file an appeal as he considered that the declaration of the second state of alarm also respected the Constitution.
