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M

Barents Sea

Norwegian Sea

Atlantic Ocean

Baltic Sea

North Sea

Bay of Biscay

NATIONAL INTEGRITY SYSTEM ASSESSMENT SPAIN

B l a c k

S e a

Mediterranean Sea

www.transparencia.org.es 420 Miles


Director:

Manuel Villoria Coordinator:

Mike Beke

With the support of:

Prevention of and Fight Against Crime. With financial support from the Prevention of and Fight Against Crime Programme. 1 European Commission - Directorate-General

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This Project has been funded with support from Prevention of and Fight against Crime Programme European Commission – Directorate-General Home Affairs. This publication reflects the views only of the authors, and the European Commission cannot be held responsible for any use which may be made of the information contained therein. 1


Table of Contents I. AUTHORS AND PARTNERS ..................................................................................... 7 II. ABOUT THE NIS..................................................................................................... 9 III. EXECUTIVE SUMMARY ....................................................................................... 13 IV. COUNTRY PROFILE ............................................................................................. 24 VII. THE NATIONAL INTEGRITY SYSTEM ................................................................... 41 1. Legislature ................................................................................................................. 41 1.1. Capacity ........................................................................................................................ 42 1.1.1. Resources (law) ................................................................................................................... 42 1.1.2. Resources (practice) ............................................................................................................ 43 1.1.3. Independence (law) ............................................................................................................. 44 1.1.4. Independence (practice) ..................................................................................................... 45

1.2. Governance .................................................................................................................. 47 1.2.1. Transparency (law) .............................................................................................................. 47 1.2.2. Transparency (practice) ....................................................................................................... 48 1.2.3. Accountability (law) ............................................................................................................. 48 1.2.4. Accountability (practice) ..................................................................................................... 50 1.2.5. Integrity mechanisms (law) ................................................................................................. 51 1.2.6. Integrity mechanisms (practice) .......................................................................................... 52

1.3. Role............................................................................................................................... 53 1.3.1. Executive Oversight ............................................................................................................. 53 1.3.2. Legal Reforms ...................................................................................................................... 55

2. Executive ................................................................................................................... 57 2.1. Capacity ........................................................................................................................ 58 2.1.1. Resources (practice) ............................................................................................................ 58 2.1.2. Independence (law) ............................................................................................................. 59 2.1.3. Independence (practice) ..................................................................................................... 59

2.2. Governance .................................................................................................................. 60 2.2.1. Transparency (law) .............................................................................................................. 60 2.2.2. Transparency (practice) ....................................................................................................... 61 2.2.3. Accountability (law) ............................................................................................................. 62 2.2.4. Accountability (practice) ..................................................................................................... 63 2.2.5. Integrity mechanisms (law) ................................................................................................. 64 2.2.6. Integrity mechanisms (practice) .......................................................................................... 67

2.3. Role............................................................................................................................... 68 2.3.1. Public sector management (law and practice) .................................................................... 68 2.3.2. Legal system ........................................................................................................................ 68

3. Judiciary .................................................................................................................... 70 3.1. Capacity ........................................................................................................................ 71 3.1.1. Resources (law) ................................................................................................................... 71 3.1.2. Resources (practice) ............................................................................................................ 72 3.1.3. Independence (law) ............................................................................................................. 73 3.1.4. Independence (practice) ..................................................................................................... 75 2


3.2. Governance .................................................................................................................. 76 3.2.1. Transparency (law) .............................................................................................................. 76 3.2.2. Transparency (practice) ....................................................................................................... 76 3.2.3. Accountability (law) ............................................................................................................. 77 3.2.4. Accountability (practice) ..................................................................................................... 77 3.2.5. Integrity mechanisms (law) ................................................................................................. 78 3.2.6. Integrity mechanisms (practice) .......................................................................................... 78

3.3. Role............................................................................................................................... 78 3.3.1. Executive oversight ............................................................................................................. 78 3.3.2. Corruption prosecution ....................................................................................................... 79

4. Public Sector .............................................................................................................. 80 4.1. Capacity ........................................................................................................................ 82 4.1.1. Resources (practice) ............................................................................................................ 82 4.1.2. Independence (law) ............................................................................................................. 84 4.1.3. Independence (practice) ..................................................................................................... 85

4.2. Governance .................................................................................................................. 86 4.2.1. Transparency (law) .............................................................................................................. 86 4.2.2. Transparency (practice) ....................................................................................................... 87 4.2.3. Accountability (law) ............................................................................................................. 88 4.2.4. Accountability (practice) ..................................................................................................... 90 4.2.5. Integrity mechanisms (law) ................................................................................................. 91 4.2.6. Integrity mechanisms (practice) .......................................................................................... 92

4.3. Role............................................................................................................................... 92 4.3.1. Public education .................................................................................................................. 93 4.3.2. Cooperate with public institutions, CSOs and private agencies in preventing/ addressing corruption...................................................................................................................................... 93 4.3.3. Reduce corruption risks by safeguarding integrity in public procurement ......................... 93

5. Law Enforcement Agencies ......................................................................................... 98 5.1. Capacity ........................................................................................................................ 99 5.1.1. Resources (practice) ............................................................................................................ 99 5.1.2. Independence (law) ........................................................................................................... 100 5.1.3. Independence (practice) ................................................................................................... 102

5.2. Governance ................................................................................................................ 103 5.2.1. Transparency (law) ............................................................................................................ 103 5.2.2. Transparency (practice) ..................................................................................................... 103 5.2.3. Accountability (law) ........................................................................................................... 104 5.2.4. Accountability (practice) ................................................................................................... 105 5.2.5. Integrity mechanisms (law) ............................................................................................... 106 5.2.6. Integrity mechanisms (practice) ........................................................................................ 106

5.3. Role............................................................................................................................. 107 5.3.1. Corruption prosecution ..................................................................................................... 107

6. Electoral Management Body ..................................................................................... 109 6.1. Capacity ...................................................................................................................... 109 6.1.1. Resources (practice) .......................................................................................................... 109 6.1.2. Independence (law) ........................................................................................................... 110 6.1.3. Independence (practice) ................................................................................................... 111

6.2. Governance ................................................................................................................ 112 6.2.1. Transparency (law) ............................................................................................................ 112 3


6.2.2. Transparency (practice) ..................................................................................................... 113 6.2.3. Accountability (law) ........................................................................................................... 113 6.2.4. Accountability (practice) ................................................................................................... 114 6.2.5. Integrity mechanisms (law) ............................................................................................... 114 6.2.6. Integrity mechanisms (practice) ........................................................................................ 115

6.3. Role............................................................................................................................. 116 6.3.1. Campaign regulation ......................................................................................................... 116 6.3.2. Election administration ..................................................................................................... 116

7. Ombudsman ............................................................................................................ 119 7.1. Capacity ...................................................................................................................... 120 7.1.1. Resources (practice) .......................................................................................................... 120 7.1.2. Independence (law) ........................................................................................................... 121 7.1.3. Independence (practice) ................................................................................................... 122

7.2. Governance ................................................................................................................ 123 7.2.1. Transparency (law) ............................................................................................................ 123 7.2.2. Transparency (practice) ..................................................................................................... 124 7.2.3. Accountability (law) ........................................................................................................... 125 7.2.4. Accountability (practice) ................................................................................................... 125 7.2.5. Integrity mechanisms (law) ............................................................................................... 126 7.2.6. Integrity mechanisms (practice) ........................................................................................ 127

7.3. Role............................................................................................................................. 128 7.3.1. Investigation ...................................................................................................................... 128 7.3.2. Promoting good practice ................................................................................................... 129

8. Court of Audit .......................................................................................................... 131 8.1.1. Resources (practice) .......................................................................................................... 132 8.1.2. Independence (law) ........................................................................................................... 133 8.1.3. Independence (practice) ................................................................................................... 135

8.2. Governance ................................................................................................................ 136 8.2.1. Transparency (law) ............................................................................................................ 136 8.2.2. Transparency (practice) ..................................................................................................... 137 8.2.3. Accountability (law) ........................................................................................................... 137 8.2.4. Accountability (practice) ................................................................................................... 138 8.2.5. Integrity mechanisms (law) ............................................................................................... 138 8.2.6. Integrity mechanisms (practice) ........................................................................................ 139

8.3. Role............................................................................................................................. 139 8.3.1. Effective financial audits ................................................................................................... 139 8.3.2. Detecting and sanctioning misbehaviour .......................................................................... 140 8.3.3. Improving financial management...................................................................................... 141

9. Political Parties ........................................................................................................ 144 9.1. Capacity ...................................................................................................................... 145 9.1.1. Resources (practice) .......................................................................................................... 145 9.1.2. Independence (law) ........................................................................................................... 145 9.1.3. Independence (practice) ................................................................................................... 146

9.2. Governance ................................................................................................................ 146 9.2.1. Transparency (law) ............................................................................................................ 146 9.2.2. Transparency (practice) ..................................................................................................... 147 9.2.3. Accountability (law) ........................................................................................................... 147 9.2.4. Accountability (practice) ................................................................................................... 147

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9.2.5. Integrity mechanisms (law) ............................................................................................... 148 9.2.6. Integrity mechanisms (practice) ........................................................................................ 148

9.3. Role............................................................................................................................. 149 9.3.1. Interest aggregation and representation .......................................................................... 149 9.3.2. Anti-corruption commitment ............................................................................................ 149

10. Media .................................................................................................................... 151 10.1. Capacity .................................................................................................................... 152 10.1.1. Resources (law) ............................................................................................................... 152 10.1.2. Resources (practice) ........................................................................................................ 153 10.1.3. Independence (law) ......................................................................................................... 154 10.1.4. Independence (practice) ................................................................................................. 156

10.2. Governance .............................................................................................................. 157 10.2.1. Transparency (law) .......................................................................................................... 157 10.2.2. Transparency (practice) ................................................................................................... 158 10.2.3. Accountability (law) ......................................................................................................... 158 10.2.4. Accountability (practice) ................................................................................................. 159 10.2.5. Integrity mechanisms (law) ............................................................................................. 160 10.2.6. Integrity mechanisms (practice) ...................................................................................... 160

10.3. Role........................................................................................................................... 161 10.3.1. Investigate and expose cases of corruption practice ...................................................... 161 10.3.2. Inform public on corruption and its impact .................................................................... 161 10.3.3. Inform public on governance issues ................................................................................ 162

11. Civil Society ............................................................................................................ 163 11.1. Capacity .................................................................................................................... 163 11.1.1. Resources (law) ............................................................................................................... 163 11.1.2. Resources (practice) ........................................................................................................ 165 11.1.3. Independence (law) ......................................................................................................... 166 11.1.4. Independence (practice) ................................................................................................. 167

11.2. Governance .............................................................................................................. 167 11.2.1. Transparency (practice) ................................................................................................... 167 11.2.2. Accountability (practice) ................................................................................................. 168 11.2.3. Integrity mechanisms (practice) ...................................................................................... 169

11.3. Role........................................................................................................................... 169 11.3.1. Hold government accountable ........................................................................................ 169 11.3.2. Policy reform ................................................................................................................... 170

12. Business ................................................................................................................. 171 12.1. Capacity .................................................................................................................... 172 12.1.1. Resources (law) ............................................................................................................... 172 12.1.2. Resources (practice) ........................................................................................................ 172 12.1.3. Independence (law) ......................................................................................................... 173 12.1.4. Independence (practice) ................................................................................................. 173

12.1. Governance .............................................................................................................. 174 12.2.1. Transparency (law) .......................................................................................................... 174 12.2.2. Transparency (practice) ................................................................................................... 175 12.2.3. Accountability (law) ......................................................................................................... 176 12.2.4. Accountability (practice) ................................................................................................. 176 12.2.5. Integrity mechanisms (law) ............................................................................................. 177 12.2.6. Integrity mechanisms (practice) ...................................................................................... 178 5


12.3. Role........................................................................................................................... 180 12.3.1. Anti-Corruption policy engagement ................................................................................ 180 12.3.2. Support for/engagement with civil society ..................................................................... 180

VIII. LIST OF ABREVIATIONS .................................................................................. 182 IX. REFERENCES .................................................................................................... 184

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I. AUTHORS AND PARTNERS Research team Research director Dr. Manuel Villoría, University Institute Ortega y Gasset Researchers Dr. Esteban Arribas, University of Alcalá de Henares Dr. Esther del Campo, the Complutense University Dr. Ana Haro, the Complutense University Dr. Fernando Jiménez, University of Murcia Dr. Jose Antonio Portero, University of La Coruña Dra. Marisa Ramos, University of Salamanca Dra. Susana Sánchez, Autonomous University of Madrid ENIS project coordinator and editor Mike B. Beke, Transparency International Spain External reviewer Dr. Paul Heywood, University of Nottingham Executive board of TI Spain Jesús Lizcano Alvarez (Chair) Antonio Garrigues Walker Jesús Sánchez Lambás Manuel Villoria Mendieta TI Secretariat Paul Zoubkov Suzanne Mulcahy Helen Turek Mariya Gorbanova

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Advisory committee José Antonio Martín Pallín

Judge emeritus of the Supreme Court (Chair of the Advisory Committee)

José María Mena Álvarez

Former Public Prosecutor, expert on corruption, urbanization and environmental issues

Mario Garcés Sanagustín

Vice-Secretary of State at the Ministry of Development

Joaquín Estefanía Moreira

Director of the Journalism School UAM-El País

Helen Darbishire

Executive Director at Access Info Europe

Miguel Ángel Cabezas de Herrera

Síndico de Cuentas de Castilla-La Mancha

Xavier Sisternas Suris

Former Director on Prevention at the Catalonian Anti-Fraud Office

José Luis Olivera Serrano

Head of the Central Unit on Economic and Fiscal Crime at the Judicial Police (UDEF)

Jordi Sevilla Segura

Former Minister of Public Administration and Senior Advisor at Price Water House Coopers (PwC)

Enrique Gil Calvo

Professor of Sociology at the Complutense University

Clara Penín Alegre

Judge at the Supreme Court of Cantabria

Eva Desdentado Daroca

Lecturer at the Administrative Law Department of the University of Alcalá

Elena del Tiempo

Compliance Officer at Siemens, S.A. – Spain

Javier Inclán de la Cuesta

Director on Social Affairs at the Repsol Foundation

Manuel Pérez Yruela

Research Professor at the Consejo Superior de Investigaciones Científicas (CSIC)

Cristina Barreno Malapert

Technical Advisor on Multilateral Relations at the Ministry of Industry, Tourism and Commerce

Lourdes Parramon

Head of Institutional Relations of the Catalonian Anti-Fraud Office

Note for the readers Comments and suggestions are welcome and can be forwarded to Transparency International Spain at: transparency.spain@transparencia.org.es Research time-line: The research phase of this project took place from February to June 2011 and was led by Professor Dr. Manuel Villoria.

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II. ABOUT THE NIS A series of high profile corruption cases in the private and public sectors has highlighted the urgent need to confront corruption in Europe. Corruption undermines good governance, the rule of law and fundamental human rights. It cheats citizens, harms the private sector and distorts financial markets. This report is part of a pan-European anti-corruption initiative, supported by the DG Home Affairs of the European Commission. The initiative looks to assess systematically the National Integrity Systems (NIS) of 25 European States, and to advocate for sustainable and effective reform, as appropriate, in different countries. The National Integrity System assessment approach used in this report provides a framework to analyse the effectiveness of a country’s institutions in preventing and fighting corruption. A well-functioning NIS safeguards against corruption and contributes to the larger struggle against abuse of power, malfeasance and misappropriation in all its forms. When the NIS institutions are characterised by appropriate regulations and accountable behaviour, corruption is less likely to thrive, with positive knock-on effects for the goals of good governance, the rule of law and protection of fundamental human rights. Strengthening the NIS promotes better governance across all aspects of society and, ultimately, contributes to a more just society overall. The Spanish NIS country report addresses 12 ´pillars´ or institutions believed to make up the integrity th system of the country. A 13 pillar, anti-corruption agencies, has been removed from this study considering on the Spanish level such an agency does not exist. Table 1: NIS pillars Government

Public sector

Non-governmental

1.

Legislature

4.

Public administration

9.

2.

Executive

5.

Law enforcement agencies

10. Civil society

3.

Judiciary

6.

Electoral management body

11. Political parties

7.

Ombudsman

12. Business

8.

Court of Audit

Media

Each of these 12 institutions is assessed along three dimensions that are essential to its ability to prevent corruption: 1. Its overall capacity in terms of resources and legal status, which underlies any effective institutional performance. 2. Its internal governance regulations and practices, focusing on whether the institution is transparent, accountable and acts with integrity, all crucial elements to preventing the institution from engaging in corruption. 3. The extent to which the institution fulfils its assigned role in the anti-corruption system, such as providing effective oversight of the government (for the legislature) or prosecuting corruption cases (for the law enforcement agencies).

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Together, these three dimensions cover the institution’s ability to act (capacity), its internal performance (governance) and its external performance (role) with regard to the task of fighting corruption. Each dimension is measured by a common set of indicators. The assessment examines both the legal framework of each pillar as well as the actual institutional practice, thereby highlighting discrepancies between the formal provisions and reality on the ground. Table 2: NIS dimensions and indicators Dimension

Indicators (law, practice)

Capacity

Resources Independence

Governance

Transparency Accountability Integrity

Role within governance system

Between 1 and 3 indicators, specific to each pillar

The assessment does not seek to offer an in-depth evaluation of each pillar. Rather, it seeks breadth, covering all relevant pillars across a wide number of indicators in order to gain a view of the overall system. The assessment also looks at the interactions between institutions to understand why some are more robust than others and how they influence each other. The NIS presupposes that weaknesses in a single institution could lead to serious flaws in the entire system. Understanding the interactions between pillars also helps to prioritize areas for reform. In order to take account of important contextual factors, the evaluation of the governance institutions is embedded in a concise analysis of the overall political, social, economic and cultural conditions, the ´foundations´, on which these pillars are based. Methodology The NIS assessment is a qualitative research tool based on a combination of desk research, in-depth interviews and field tests. A final process of external validation and engagement with key stakeholders ensures that the findings are as relevant and accurate as possible before the assessment is published. The assessment is guided by a set of ´indicator score sheets´ developed by the TI Secretariat. The sheets consist of a ´scoring question´ for each indicator, supported by further guiding questions and scoring guidelines for the minimum, mid-point and maximum scores. In total the assessment includes over 150 indicators, approximately 12 indicators per pillar. The guiding questions for each indicator were developed by examining international best practices, existing assessment tools for the respective pillar as well as using TI’s own experience, and by seeking input from international experts on the respective institution. The indicator score sheets provide guidance to the researchers, but when appropriate TI Spain has provided additional information or left some questions 10


unanswered, as not all guidance is relevant to the Spanish context. Due to the broad scope of the NIS assessment, the analysis of each pillar is necessarily brief and in some cases the research reveals a need for further in-depth research on specific issues which are beyond the scope of the NIS assessment. The 2 full toolkit and score sheets are available on TI-Spain’s website. To answer the guiding questions, the lead researcher relied on three main sources of information: national legislation, secondary reports and research, and interviews with key experts. Secondary sources included trusted reports by national civil society organizations, international organizations, governmental bodies, think tanks and academia. A minimum of two key informants were interviewed for each pillar – at least one representing the institution under assessment and one expert external to it. Full citations are included in footnotes rather than endnotes, to be as transparent as possible regarding the sources of information used to justify the conclusions and scores. The assessment represents the current state of integrity institutions in Spain, using information cited from the last two to three years. It reflects all major legislative changes as of 2005. The scoring system While the NIS is a qualitative assessment, numerical scores are assigned in order to summarise the information and help to highlight key weaknesses and strengths of the integrity system. The sheer length of the report can obscure a holistic perspective. Thus the scores are a way to see all 12 institutions, each assessed according to 12 or more indicators, as if from an aerial viewpoint. They prevent the reader from getting lost in the details and promote reflection on the system as a whole, rather than focusing only on its individual parts. The scores are assigned by an in-country researcher on a 5-point scale in 25-point increments (0, 25, 50, 75, and 100), validated by an in-country multi-stakeholder advisory committee and finally vetted by TI Spain. An aggregate score for each dimension is calculated (simple average of its constituent indicator scores) and the three dimension scores are then averaged to arrive at the overall score for each pillar. The difference in practice versus law can also be calculated at both dimension level and for an institution as a whole. While the scoring methodology uses best practice standards in terms of expert selection, comparative anchors, transparency and validity checks, it gives the country teams the ultimate say about the scores. This fits also with the overall purpose of the assessment, to build momentum for anti-corruption policy change in the individual country. Since there is no international board which reviews and calibrates all scores to ensure that the same information, methodology, and judgment process have been used across countries, we do not produce any country rankings and do not recommend using the raw scores for cross-country comparisons. Consultative approach and validation of findings The NIS assessment process in Spain had a strong consultative component, seeking to involve the key anti-corruption actors in government, civil society and other relevant sectors. This approach had two aims: to generate valid evidence and to engage a wide range of stakeholders with a view to building

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More information here. 11


momentum, political will and civic demand for reform initiatives. The consultative approach had two main parts: a high-level Advisory Committee and a National Stakeholder Workshop. The members of the Advisory Committee met twice in March and September 2011. The second meeting was entirely dedicated to the discussion of the key findings of the draft report and indicator scores. The meeting resulted in a number of further adjustments to scores and evidence. Final discretion over scores remained with TI Spain. In October 2011, TI Spain presented the methodology and emerging findings of the assessment at a National Stakeholder Workshop. The draft report was available in advance to participants and the workshop drew significant attendance from representatives of public and key governance institutions. Part of the workshop was dedicated to working groups, where participants interacted with each other to provide feedback on each chapter and to discuss the overall scores. The workshop helped to further refine the report, particularly by adding and prioritising recommendations. Finally, the full report was reviewed and endorsed by the TI Secretariat, and an external academic reviewer provided an extensive set of comments and feedback.

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III. EXECUTIVE SUMMARY Spain’s economic crisis may deepen without an overhaul of political parties’ internal workings and their ability to influence independent watchdogs. This study warns that instruments already in place to strengthen integrity and confront corruption, such as public spending control authorities, are pressured by political parties defending short-term interests over long-term reform. Given the important role of the political parties in Spain, the fight against corruption and the promotion of integrity should take place in the political arena. Considering the weak institutional framework in Spain, an absolute political majority guarantees almost absolute control over public institutions, and this creates a great corruption risk. This National Integrity System assessment report assesses the strengths and weaknesses of 12 Spanish institutions: legislative, executive, judiciary, public sector, law enforcement agencies, political parties, supreme audit institution, the ombudsman, the electoral management board, civil society, media and corporate sector. National Integrity System assessment A series of high profile corruption cases in the private and public sectors has highlighted the urgent need to confront corruption in Europe. Corruption undermines good governance, the rule of law and fundamental human rights. It cheats citizens, harms the private sector and distorts financial markets. This report is part of a pan-European anti-corruption initiative, supported by the DG Home Affairs of the European Commission. The initiative looks to assess systematically the National Integrity Systems (NIS) of 25 European States, and to advocate for sustainable and effective reform, as appropriate, in different countries. The NIS assessment approach used in this report provides a framework to analyse the effectiveness of a country’s institutions in preventing and fighting corruption. A well-functioning NIS safeguards against corruption and contributes to the larger struggle against abuse of power, malfeasance and misappropriation in all its forms. When the NIS institutions are characterised by appropriate regulations and accountable behaviour, corruption is less likely to thrive, with positive knock-on effects for the goals of good governance, the rule of law and protection of fundamental human rights. Strengthening the NIS promotes better governance across all aspects of society and, ultimately, contributes to a more just society overall. The Spanish NIS country report addresses 12 ´pillars´ or institutions believed to make up the integrity th system of the country. A 13 pillar, anti-corruption agencies, has been removed from this study considering on the Spanish level such an agency does not exist.

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Figure 1: Overall score of the Spanish NIS

LEG. Legislature

SAI. Supreme Audit Institution

EXE. Executive

ACA. Anti-Corruption Agencies

JUD. Judiciary

PP. Political Parties

PS. Public Sector

MED. Media

LEA. Law Enforcement Agencies

CS. Civil Society

EMB. Electoral Management Body

BUS. Business

OMB. Ombudsman

Overview Spanish National Integrity System assessment The Spanish institutional framework prioritizes governance over ensuring representativeness. This provides for strong institutional support to governments but in practice this is no guarantee for effectiveness. Spain has an electoral majority system that in practice created an imperfect party bipartisanship, dominated by the Spanish Socialist Workers Party (Partido Socialista de Obrero Espa単ol) and the Popular Party (Partido Popular). The smaller regional parties, often deeply rooted in nationalism, only are able to influence decision-making when one of the two major parties fails to win an absolute majority. This combined with closed and blocked voting lists favours a system in which the party leaders maintain strong control over the representative bodies on the national, regional and local level. Whoever controls the party also controls the representatives, which in turn incentivizes strong 14


party discipline. Besides, in case this person wins the election, he or she decides on the Council of Ministers and can even appoint thousands of senior positions in the public administration. Finally, consistent with the above, the electoral campaigns have been increasingly becoming a battle between the two leaders of the major parties. This creates scenarios similar to presidential debates, in which the candidates feel they are running for the job as prime minister despite a motion of investiture before installing a new government. The Spanish political system is characterized by: presidentialism; single party executives; an imperfect bipartisanship; a spoils system effecting the top of the public administration; a stronger executive as opposed to a legislative capacity; and two political party leaders deciding on the members of the Constitutional Court, Court of Audit, Ombudsman, Central Bank, regulatory agencies and the Attorney General, strongly influencing the judicial system. Spain scores strong on governance, but the country shows certain weakness in the system of representation and checks and balances. However, the country is highly decentralized which provides for regional counterweight. Nevertheless, it has to be noted that the majority of the regions are controlled by the two major parties meaning the party discipline also operates here when necessary. The system´s characteristics could not fail to have an effect on civil society, business and especially the media. The media sector does not represent all the ideologies of the political spectrum. There is variety of content but only within the two very specific ideological axes, coinciding with the two major political parties. Precisely because of the pervasiveness of bipartisanship, it is common to find forms of 'advocacy journalism' in which journalists tend to position themselves according to two main political dividing lines. Civil society heavily relies on public funding which links the non-profit sector strongly to public administrations. This reduces the autonomy of Non-Governmental Organizations and jeopardizes their ability to independently monitor public authorities. With regard to the business sector one should not underestimate the influence of the government, not only as a regulator but also as an important investor and consumer. Strong links can be seen between the two major parties and the banking sector in the party financing. This connection is a source of concern in relation to political capture. The consequences of this on the integrity assessment are not positive. The institutional independence is always in danger. The influence of the two major political parties on the legislative, executive and to a certain degree the judicial branch can be strong whenever their interests are at stake. The transparency itself remains mainly a symbolic reference rather than real, complicating the acting of the government in its controlling function rather than providing services. Accountability mechanisms might complicate government´s strategic behaviour and improving this could go against certain party interest. The integrity can be considered a symbolic declaration as the real implementation of the norms often collides with the immediate interests of power and its networks. All of this causes the major political parties to lack political will to change. When in the role of opposition they do call for improvements, however these demands have little legitimacy. The global picture is a model that provides for the adequate legal norms, constitutional requirements, the European Union and its institutional isomorphism (copying the institutional trends of leading countries). Nevertheless in practice a large amount of risks can be observed, especially a model in which an absolute majority guarantees an almost absolute control over the institutional mechanisms. On top of that, the system seems to reduce and discourage the participation of citizens in public decision-making.

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From the perspective of the NIS, the changes needed in Spain could collide strongly with the interests of the major political parties. They strongly believe, and are institutionally supported, that governance needs stability, efficiency and order. Changes in the system could jeopardize this. The origin of this belief lies in the peaceful transition of Spain to a democratic model in combination with a history of failed democracies heavily politicized (especially the first and second Republics). The key therefore lies in changing the preferences of the major political parties and showing them that it is precisely integrity that will be the main guarantee for order, efficiency, stability and justice. Not a simple task. Therefore, this assessment prioritized ten key recommendations to strengthen the national integrity system. Key recommendations The Spanish NIS assessment resulted in ten key priorities for action in order to improve integrity, as well as 43 specific recommendations based on the full analysis of the system, which will be given at the end of the executive summary: 1.

It is necessary to promote a national pact to fight corruption consisting of the government, political parties, trade unions, NGO´s, business associations and the media. This national pact should aim to prioritize adequate implementation of existing legislation, underline those measures needed to strengthen sanctioning, assure independence of the bodies fighting corruption and coordinate joint-activities. This pact should be monitored and evaluated in order to ensure effectiveness. 2. It is necessary to improve the rules concerning party financing and to ensure that an independent supervisory agency oversees this process. 3. It is necessary to modify the electoral system (unlock the closed voting lists, improve proportionality and improve the delivery of information on the system´s functioning to the voters). 4. It is necessary to stimulate the internal democracy of the political parties. 5. It is necessary to ensure depoliticization of the supreme bodies of the judicial power and the Constitutional Court. 6. It is necessary to approve a strategic plan for open government in which a Law on Access to Information guarantees effectively the transparency of the Spanish public institutions. The strategic plan should also entail measures that improve response, accessibility, participation and citizen´s participation in public affairs. 7. A ´Senior Executive Service´ is needed, guaranteeing the quality of appointment of top civil service positions, protecting from political interference. It is important to eliminate the free designation as an instrument of appointment and capture of the public administration. 8. It is necessary to pass a national law on external control (Ley Nacional de Control Externo), which coordinates the work of external control bodies and promotes cooperation between them. 9. It is necessary to pass a law protecting ´whistle blowers´ in both the public and private sector. 10. It is necessary to regulate lobby activities according to the OECD guidelines. This could all be part of the strategic plan for implementing the UN Convention against corruption, under the supervision of an Anti-Corruption Agency /Office of Government Ethics (temporarily placed under the office of the Ombudsman). Key weaknesses and strengths of the NIS assessment Below follows a summary of the key weaknesses and strengths of the various pillars resulting from the analysis, highlighting the most notable findings of the research: 16


Legislature The system of closed and blocked voting lists that favour party loyalty over loyalty to the voters, threatens the Spanish legislative branch´s accountability. In any case, the capacity to control the executive (especially in case of an absolute majority) remains a key strength. Besides, internal mechanisms of control in parliamentary groups ensure some form of discipline and reduce the risk for corrupt behaviour. Executive The executive branch has a serious problem with transparency, mainly due to the lack of a law on access to information and a traditionally existing culture of opacity. Its main strength, consistent with the over-protection of governance, is institutional independence. The government, especially in case of an absolute majority, enjoys a strong control over the internal system. On the downside, the government has limited control on external factors, i.e. over the international financial markets, something painfully visible in times of economic and financial crisis. Judicial The judiciary´s strongest characteristic is its independence, explicitly recognized constitutionally and legally guaranteed. In practice, the judges have the possibility to fully exercise their independence despite a heavily politicized control body and a system in which members of the higher courts are appointed with relative political influence. In other words, in order to advance in their careers there is a certain incentive for judges to give up some independence by committing politically. The major weaknesses are above all the lack of resources and a high workload. There is weak accountability in practice despite improving norms. The judges act with integrity, responsibility and rigor. Nevertheless opposite behaviour is not sufficiently sanctioned. Public Sector Independence is the public sector´s strongest characteristic in line with the institutional protection of governance. Above all, the independence should be understood as fairness. Spain has a Weberian th model of bureaucracy in its central administration since the early 20 century. This favours fair or impartial application of rules and an implementation not excessively subject to clientelism and patronage (problems that do occur often at the local administrative level). Norms concerning contracting are in general terms adequate; however in practice this has been abused due to legal ambiguities in case of directly allocated and modified contracts. The most evident weaknesses have to do with opacity (as with the Executive there is not yet a law on access to information in place) and accountability, especially in practice. Inefficiency, mal practice and corruption are not sufficiently controlled or sanctioned. Also remarkable is the lack of concern to educate the public to address the problem of corruption. Law Enforcement Agencies The law enforcement agencies stand out for the independence, neutrality and professionalism. Also there is an acceptable level of accountability, especially related to corrupt and unethical behaviour. The hierarchic culture of these organizations strengthens ethical behaviour despite the danger of esprit de corps. The main weakness of the law enforcement agencies is the resources made available to develop cases, but also the opacity that comes with the type of work. The Electoral Management Body This institution received the strongest evaluation in the NIS assessment. This is rather remarkable due to the fact that this body has a large part of its members chosen randomly. Through a random pick, judges and citizens sit together with the political parties. This leaves the major parties without 17


full control, favouring integrity. Nevertheless it is recommendable for this body to introduce a code of ethical conduct and improve on regulations concerning conflicts of interest. The Ombudsman This institution enjoys and acts with sufficient independence. The Ombudsman could improve its system of accountability in practice as their internal management is not transparent in terms of efficiency and effectiveness. Despite not having internal problems with corruption, the institution should have a code of ethics and internal rules of integrity. Unfortunately the Ombudsman has not been sufficiently used in order to promote integrity in the public sector. The Court of Audit This is the only supreme body charged with auditing government accounts and financial management. Besides, it is also an organ that prosecutes financial responsibility and controls the financing of political parties and the electoral processes. Legally and constitutionally, the Court of Audit is an organ of great independence. However, in practice it is influenced by the two major political parties whom could not allow such an important body to stay outside of their control. There are sufficient resources and a high level of professionalism. But the body is not very effective in controlling the efficiency and effectiveness of the public sector. Controls seem to be more of a formality. The norms on internal integrity should be improved as well as the internal system of accountability. The control on financing of political parties is rather formal, mainly because the existing rules do not permit for more thorough evaluation. In order to combat effectively corruption, the latter should be addressed. Political Parties The political parties, essentially the two major ones, have strong independence. They themselves define their public resources. This tends to create inequalities among them. The main weakness of the political parties in the NIS assessment comes from the lack of transparency and accountability of the internal organization. Also oligarchization, professionalization and the lack of political will to combat corruption are concerns for the integrity system. Given the important role of the parties in Spain we could say that the fight against corruption and the promotion of integrity should take place in the political arena. Media The media has successfully and effectively investigated and communicated corruption cases in Spain. Nevertheless the assessment has found problems with transparency, accountability and independence of the different media channels. Pluralism is not guaranteed. There is no national institution regulating and holding accountable the activities of the audio-visual media, creating ethical standards or mechanisms for integrity and transparency. Civil Society Spanish civil society is weak and its capacity to control the government and influence politics in limited. Nevertheless, civil society manages to obtain some resources and enjoys a certain level of independence. The NIS assessment identified improvements in transparency, accountability and integrity. However, in practice the organizations rely too much upon public funding. Business The Spanish business sector enjoys great independence when defending their private interests. This varies from sector to sector and depending on the size of the company. The sector is improving its norms of governance but, with the exception of some. However, the main weakness in the NIS assessment has been the low social engagement to fight corruption. 18


Overall the Spanish NIS assessment shows that the normative framework is sufficiently developed, apart from the fact that a law on access to information has not yet been adopted. However, the implementation of these norms is far from adequate. Therefore this study has set up an extensive list of recommendations to complement the key priorities for action. Full list of recommendations The following is a broader list of detailed recommendations that have been collected throughout the full assessment: Legislature 1.

2.

3.

Some pillars in the NIS assessment, like the Legislature (but also the Judiciary), lack sufficient resources. This should be improved. However, taking in account the financial and economic situation of Spain we reckon that an increase of resources is perhaps politically not reachable. In times of austerity we believe that the pillars of the legislature, judicial and of the law enforcement agencies should be shielded from these measures and remain either on their current level or slightly increase when reallocating public funds. The independence of the legislative branch should be improved as well as the accountability towards the voting districts. However, an improvement should not resort to an unpredictable and chaotic system when supporting the government. In order to do so, some changes could be made to the electoral system (i.e. unblocking the closed voting lists, improvements on the proportionality), which stimulates a more democratic internal functioning of the political parties, and favours accountability of representatives to their constituents. A code of ethics for the deputies should be created. There is also need for an update of the rules on incompatibilities and conflicts of interest of the legislators.

Executive 4.

5.

A law on access of information is needed to guarantee effectively transparency of our public institutions. Added to this, an independent body needs to be established guaranteeing the effective implementation of this law. In order to reduce costs, this body could fall under the existing Agency for the Protection of Data (Agencia de ProtecciĂłn de Datos). However under the provision that it is established under two separate sections. Under the framework of this law on access to Information a public transparency portal should 3 be created.

3

This Transparency Portal should include: Statistics on public employees (amount of civil servants and distribution by category, etc.), including the financial picture. A list of buildings (offices, shops, etc‌), either owned or leased, used or linked to the respective public entity. Information on salaries and curriculum of elected officials and senior public officials as well as third parties collaborating directly with public entities. The number of credit cards and bank passes of the public entities. The number of phone lines and cell phones of public entities. The number of official vehicles of public entities All expenses occurred on official travels. The number of temporary contracts. -

19


6.

The Spanish government should strengthen open government policies as well as participatory and accountable policies. For this, the full implementation of the Law 11/2007 on Electronic Access (Ley 11/2007 de Acceso Electr贸nico) is very important. 7. It is recommended to pass a Government Performance Act (Ley de Rendimientos del Gobierno), requiring all public bodies to develop a strategic plan and submit it to Congress with an annual accountability compliance report. 8. It is necessary to pass a National Law on External Control (Ley Nacional de Control Externo) that coordinates the work of external control bodies and promotes cooperation between them. 9. The government should elaborate on a strategy to implement the United Nation Convention against Corruption. This means both incorporating key strategic actors for the implementation and educating the citizens on corruption. 10. Each government agency should have an ethics committee responsible for analysing the performance of existing codes, provide expert consultation, develop a network of best practices and promote organizational frameworks of integrity. These committees should report to a form of Anti-corruption Agency or to a similar organization. Judiciary 11. The supreme bodies of the judicial power should be depoliticized. A judicial career path should be established with clear meritocratic criteria and objectives in order to obtain positions in the supreme courts. 12. The norms on conflict of interest for the judges, magistrates and prosecutors should be updated, regulating inter alia, the organization of leaves of absence and post-judicial employment. 13. It is necessary to pass a law on judicial accountability. This would incorporate existing practices like the annual appearance of the President of the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) in front of the Chambers and/or the development of judicial statistics, regulating in an effective manner the responsibilities for mistakes and undue delays. 14. The CGPJ should be depoliticized which is no simple task. The members should be appointed by lot and chosen from a list of qualified magistrates, professional lawyers and jurists. It could be considered to organize public hearings for the Congress and Senate as a form of selection interview. Public Sector 15. Cost accounting and calculation and publication of actual costs for public service activities should be promoted. 16. Policy and program evaluation and analysis of costs and benefits provided by each of the various public institutions to citizens should be promoted. 17. Empowerment systems to civil servants should be promoted through an open platform of proposals and suggestions on costs saving in public institutions (this could include the creation of awards in order to incentivize initiatives).

-

Information on public investments and construction, including reports on the added-value of such projects. The annual budget of each public entity, including the final report of budget execution. Information on the public debts on all governmental levels. Information on all grants and subsidies allocated by the public entities. 20


18. Sufficient independence of the Office of Conflict of Interests should be guaranteed and for that some form of budgetary independence is needed, and management appointment based on merits and protection from political interference. 19. A ´Senior Executive Service´ is needed, guaranteeing the quality of appointment of top civil service positions, protecting from political interference. It is important to eliminate the free designation as an instrument of appointment and capture of the Public Administration. 20. It is necessary to introduce into the different educational levels training on ethical behaviour and values against corruption. Law Enforcement Agencies 21. The Prosecutors Office should strengthen its independence with respect to the government, especially when working on criminal cases. Also the anti-corruption Prosecutor needs somehow to step up protecting its independence. The law enforcement agencies that investigate corruption, and especially the top of the units, should be protected from unfair professional dismissals. 22. Procedural improvements are needed to prosecute more effectively corruption. Perhaps the prosecutors entrusted with the investigation would make the system more viable. In any case, a reform of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal) seems essential. Electoral Management Board 23. It is desirable to introduce an Ethical Code and to improve the norms concerning conflict of interest for bodies such as the Electoral Boards, the Constitutional Court, Ombudsman and the Court of Audit. The bodies also require public auditing and annual evaluations. Ombudsman 24. The politicization of the appointments at the Constitutional Court, Ombudsman and Court of Audit is a serious problem for the integrity of the system (and for the legitimacy of the respective bodies). To find a solution for this is difficult. An option could be to avoid re-election and extend in return the mandate. 25. It is necessary to form an Anti-Corruption Agency or some kind of body that promotes ethics and develops preventive mechanisms, coordinates activities, disseminates information and proposes improvements. Given the economic and financial situation it might be an option to include such a body within the structures of the Ombudsman. 26. A law protecting the ´whistle blowers´ of corruption, fraud and abuse is needed. The Ombudsman could create an internal body following up on this. Court of Audit 27. The Court of Audit should incorporate an annual audit of the economic-financial state and effectiveness of public organs. This at least for the organs budgetary-wise most relevant in order to avoid chronic delays of such audits. Political parties 28. It is necessary to change the rules on the financing of the political parties as indicated by GRECO. Although political parties are private associations, they receive large amounts of public

21


29.

30.

31. 32.

money. It is desirable that they were legally obliged to publish their accounts in detail, timely and easily understood by voters. The financial control over political parties is extremely weak when looking at income from private sources and incomplete when looking at public sources (lack of information on local organizations, their foundations, businesses and youth organizations). Loopholes need to be addressed through an independent supervisory body with the legal capacity, resources and human capital. The internal democracy of the political parties should be reformed by demanding primary systems, obligated consultations and other instruments in order to avoid oligarchization. To this effect a fast-track arbitration system should be in place to resolve intra-party conflicts that have to do with internal democracy. The political parties should publically declare that they will not include persons on the voting list previously processed for corruption. The government, political parties, trade unions, businesses and the media should enter into a national pact aiming to improve transparency and integrity by taking key measures in preventing corruption.

Media 33. The State Council for Audio-visual Media (Consejo Estatal de Medios Audiovisuales, CEMA), regulated in articles 44 y seq. Law 7/2010, should effectively regulate and require accountability of audio-visual media, create ethical standards and mechanisms of integrity and transparency as well as a consistent disciplinary system. 34. It is necessary to depoliticize the process of granting audio-visual licenses and to promote the informative independence of the public broadcasters. Civil society 35. It is necessary to develop a grand pact between NGO麓s in order to fight corruption and coordinate joint activities. Corporate sector 36. It is necessary to strengthen the implementation of corporate social responsibility policies, strengthen compliance with the ethical code of the CNMV (Comisi贸n Nacional del Mercado de 4 Valores ) and encourage companies to join the Global Compact and consistent with their commitments. 37. It is necessary for the government to ensure compliance with the Plan of Action for Reducing Administrative Burdens (Plan de Acci贸n para la Reducci贸n de Cargas Administrativas) and ensure actions corresponding regulatory improvements. 38. Establish a system of official accreditation in order to develop the activity of lobbyists in public buildings. Improve the transparency through mandatory public disclosure of key aspects of lobbying activity, such as objectives and target beneficiaries. 39. Incentivize a culture of integrity by distributing ethics guides and rules of conduct lobbying, directed both to the lobbyists as well as to the lobbied. 40. Money laundering present two types of risks: social, as in favouring indirectly crime by allowing delinquents to legitimize their criminal products, and economic, as in producing distortions in 4

The CNMV is the Spanish government agency responsible for regulating the financial securities markets. The agency falls under the Ministry of Economy and Finance of Spain. 22


41. 42.

43. 44.

the financial flows. Given these risks, it is of utmost importance not only to repress money laundering, but also its prevention through the imposition of a series of obligations and administrative actions directed to certain financial and non-financial players (financial institutions and professionals such as notaries, lawyers, auditors, real estate, jewellers, antique dealers, etc.) that may be more exposed to this risk. Therefore, it is necessary to implement rigorously the Law 10/2010 on the prevention of money laundering and terrorist financing (Ley 10/2010, sobre prevenci贸n de lavado de capitales y financiaci贸n del terrorismo). We consider that the additional privileges should be eliminated, the possibility of getting a special lawyer and extra protection do not reflect reality. It is necessary to promote full implementation of Article 39 of the Sustainable Economy Act on Corporate Social Responsibility (Ley de Econom铆a Sostenible sobre la Responsabilidad Social de las Empresas). It is necessary to promote compliance among Spanish multinationals to the OECD Anti-Bribery Convention. It is necessary to seriously combat the shadow economy.

23


IV. COUNTRY PROFILE Political-institutional foundations Spain began to take shape as a nation-state at the end of the fifteenth, beginning of the sixteenth century. In the early nineteenth century, the Peninsular War against Napoleon revives the notion of the Spanish nation-state and in 1812 the first Constitution is promulgated by the national legislative 5 assembly of Spain (Cádiz Cortes). The bloody nature of the Spanish Civil War (1936-1939) severely scarred the country. The Nationalist victory against the Republicans gave way to the dictator Francisco Franco to rule Spain for several decades (1939-1975). After his death, the country began a transition to democracy, promulgating a new Constitution in 1978. In 1981, a failed military coup in the national congress indicated just how fragile and uncertain the emerging democracy of Spain was. King Juan Carlos intervened and positioned himself on the side of the elected government. The new democratic Spain began to crystallize and opened up to the world. The country joined the European Union in 1986, and it adopted the euro as its currency in 2002. Precisely the idea of the Spanish nation with efforts of governmental centralization and cultural unification resulted by the end of the nineteenth century in the emergence of Basque and Catalan nationalist movements. These movements aimed to defend their autonomy and/or independence from Spain. The rise of peripheral nationalism is important to discuss when addressing political-institutional characteristics of the country. Contemporary Spain can be defined as a highly decentralized state, with 17 autonomous regions, two north-African enclaves (Ceuta and Melilla), and 8111 Municipalities (of which 85% have less that 5,000 inhabitants). The NGO Freedom House recognizes that Spain: 1) Is an electoral democracy through free and fair political competition for government offices; 2) Allows for a free and lively press; 3) Guarantees freedom of religion through constitutional and legal protections; 4) Has a government that does not restrict academic freedom; 5) Guarantees freedom of assembly through constitutional and legal protections; 6) Allows workers to freely organize, join unions of their choice and to strike; 7) Provided constitutionally for an independent judiciary; 8) Highly values gender equality with emphasis on the legal protection of women against rape, domestic abuse, and sexual harassment in the workplace. According to the World Bank Governance Indicators, Spain has scored good results in ´voice and 6 7 8 accountability (VA) ´ , ´rule of law (RL) ´ , ´government effectiveness (GE) ´ , and ´regulatory quality (RQ)

5

The 1812 Constitution established the principles of universal male suffrage, national sovereignty, constitutional monarchy and freedom of the press. The constitution supported land reform and free enterprise for which it was later considered as a cornerstone of European liberalism. 6 VA captures perceptions of the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media. 7 RL captures perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence. 24


9

´ . On a scale from 0 to 100, Spain received a score of 85 in 1996 and 87 in 2009 on VA, a score of 88 in 1996 and 85 in 2009 on RL, a score of 91 in 1996 and 78 in 2009 on GE (it is important to notice the significant decrease of 13 points), and a score of 82 in 1996 and 85 in 2009 on RQ. Due to attacks of national and international terrorist organisations, Spain did not score high on “Political Stability and 10 Absence of Violence/Terrorism (PV)”. Spain has suffered not only the terrorist attacks from ETA, but also the 2004 bombings from the salafist jihadist group Al Qaeda. The score in PV was 50 in 1996 and 38 11 in 2009. The National Security Strategy Report stresses energy dependency as another important security risk (Spain imports 74% of its basic energy). According to the Constitution, the Spanish state is democratic, social and should promote general welfare. Besides, it should respect the rule of law, horizontal accountability (Ombudsman, audit institution) and a meritocratic civil service. All these institutions are supportive of an effective national integrity system, but they do not suffice. Political parties have also a very important role to play. The two main parties (the centre-left Spanish Socialist Workers’ Party -PSOE- and the conservative Popular 12 Party -PP- ) to date did not include relevant integrity reforms as a key element of their political strategy. The support for democracy in Spain is very high, from 1985 until today always over 80% of respondents 13 unconditionally supported the principle. However, more interesting is the perceived performance of the incumbent government. In June 2011, 40% of the respondents to a survey of the Sociological 14 Research Council (CIS) were unsatisfied with the functioning of democracy in Spain. The results were 15 even worse for 2009, when 56% declared themselves unsatisfied. Socio-political foundations In Spain, the main regional groups with their own language include Catalans (7.5 million), Galicians (2.8 16 million) and Basques (2.1 million). Another important Spanish minority is the Roma/Gypsies population, estimated between 650,000 and 800,000 in 2005 (INE), a group considered native to Spain. Large minorities not native to Spain are Rumanians (864,278), Moroccans (769,920), Ecuadoreans 17 (390,880), Brits (359,076) and Colombians (271,773). 8

GE captures perceptions of the quality of public services, the quality of the civil service and the degree of its independence from political pressures, the quality of policy formulation and implementation, and the credibility of the government's commitment to such policies. 9 RQ captures perceptions of the ability of the government to formulate and implement sound policies and regulations that permit and promote private sector development. 10 PV captures perceptions of the likelihood that the government will be destabilized or overthrown by unconstitutional or violent means, including politically‐motivated violence and terrorism. 11 Claves del Consejo de Defensa Nacional, 30 May 2011. More information here. 12 The mainstream national political parties are the Spanish Socialist Workers´ Party and the People´s Party. The two parties seat together roughly 80% of the 2008 Congress of Deputies. The remaining political parties (in 2008 approximately 20% of the seats) almost all have a regional agenda or affiliation (except Union, Progress and Democracy which supports a decentralization of the State): United Left - Initiative for Catalonia Greens; Convergence and Union; Basque Nationalist Party; Republican Left of Catalonia; Galician Nationalist Bloc; Canarian Coalition; Nafarroa Bai; and Navarrese People's Union Conservatism (Congreso de los Diputados). More information here. 13 Torcal, M. y Magalhaes, P.C. (2010): “Cultura política en el sur de Europa: un estudio comparado en busca de su excepcionalismo”, en Torcal, M. (ed.) La ciudadanía europea en el siglo XXI, CIS, Madrid. 14 June Barometer, Study nº 2.905, CIS, June 2011. More information here. 15 Ética Pública y Corrupción, Study nº 2.826, CIS, December 2009. More information here. 16 Instituto Nacional de Estadística, INE 2010 population of Autonomous Communities. 17 INE 2011. 25


Conflicts with the regional minorities tend to focus on demands of self-governance and are, as we have seen above, historically and culturally deeply rooted in society. The problems with immigrant populations are of a more recent nature and catalysed by the economic and financial crisis. Difficulties in enforcing immigration law in combination with several decades of economic growth have boosted the 18 number of immigrants in Spain. The recent rise in unemployment has greatly affected these minorities 19 and one could observe the first signs of reverse migration. The societal conflicts relating the regional minorities are channelled through the territorial embodiment of Spain’s autonomous communities, a model of territorial organization labelled by the Spanish Constitutional Court as a ´State of Autonomies´. The Spanish Constitution of 1978 declares the indissoluble unity of the nation but at the same time guarantees the right to self-government of nationalities and regions (Article 2). The process of federalization, initiated by the 1978 Constitution, fuelled separatist debates. However, the federal model’s objective is to realize the principle of solidarity among the communities and is based on a notion of ´holding together´ the country. Despite transfers of competences to Cataluña and Basque Country in order to uphold the constitution’s principles, the country’s unity has been under pressure. The most dramatic outbursts of nationalism are on the account 20 of the Basque terrorist organisation ETA. Today, strong policing efforts of Spain and France in combination with a ceasefire gave opportunity to the organisation’s demise. While class, ethnic and religious divisions between the regions are inexistent, the main differences are 21 of a linguistic nature. With language as a key characteristic for certain regional identities, the conflict often focuses, besides fiscal policy, on more autonomy in education. However, socio-economic differences between the regions have also resulted in more active advocacy for independence, i.e. in the 22 case of Catalonia and Basque Country. Besides constitutional guarantees to self-governance, the regional communities manage to have solid representation on the national level through the political party system. The societal conflicts relating the immigrant populations are of a different nature. The Spanish Constitution guarantees civil liberty and equality by law but the large increase of immigrants over the last decades placed pressure on legislators to respond to growing societal unrest. Civil society voices that the policy coming from the national level disadvantages weak groups in society. Despite problems with the immigrant population, Spaniards are with 78% the seventh highest community in tolerance of

18

Spain has the highest per capita immigration rates in the world. With a foreign population of 5,730,667, immigrants make up about 12.2% of the total population of 47,021,031 (INE 2011). 19 While the unemployment rate in Spain is about 20%, the immigrant minorities value a rate well above national average with 30% (OECD Statistics 2011). 20 ETA stands for Euskadi Ta Askatasuna or Basque Fatherland and Freedom. The organisation was formed in 1959 with the aim to establish independence for the Basque region. ETA carried out a campaign of terrorist bombings and other illegal activities. Since 1968, ETA has been blamed for killing 829 individuals. More information here. 21 Spaniards are the main ethnic group in the country but strong regional populations complicate the demography. With Castilian Spanish as the country’s official language, Catalan/Valencian, Basque and Galician are regional languages with a co-official status. The vast majority (73%) of the country considers themselves Roman-Catholic (Centro de Investigaciones Sociológicas, 2010). 22 Basque Country often dominates the debate due to the violent approach of the terrorist organization ETA. The political wing of ETA was called Batasuna, a party outlawed in 2003. In 2011 a party called Bildu, alleged to have ties to Batasuna, participated in the Spanish Municipal Elections. The Spanish Constitutional Court lifted a ban on the party, the day the election campaigns started. Bildu won 26% of the votes in the Basque region and became the second biggest party after the Basque Nationalist Party (PNV). 26


23

minority groups (ethnic minorities, migrants, and gays and lesbians) in the OECD (OECD average is 24 61%), and the fourth highest in tolerance in OECD-Europe after the Netherlands, Ireland and Iceland. In contrast to the regional populations, the ´non-native´ minorities do not have clear-cut representation through the political party system. The debate on the electoral system and the privileges of the politicians has recently been reignited due to the movement Real Democracy Now! A feeling of lack of political representation, inter alia, motivated the movement to convene large protests in March 2011. While political parties are criticized to fail absorbing the voter’s discontent, the civil society tends to close this gap. Spanish legislation offers strong protection to civil society. By registering, the organisations can receive fiscal benefits and enjoy public funding. Despite criticism that civil society depends too much on this type of funding, the independence from the government is warranted. However, as mentioned in this report (Civil Society Pillar), strong links between civil society and political parties are not uncommon. While cartelization of Spanish political party system caused for an incrementing the gap between the party and the voter, the parties´ links to civil society have strengthened as both in principal depend financially on the State. Socio-economic foundations Since the mid-nineteenth century the aggregate economic activity in Spain grew on average with 2.5% per year and per capita GDP (Gross Domestic Product) experienced an annual growth of 1.9%. Productivity increased with ´GDP per hour worked´ expanding (2.1%) and ´hours of work per person´ 25 declining. According to the OECD (Organisation for Economic Co-operation and Development), the GDP per head (current prices in USD - United States Dollars - , current PPP - Purchasing Power Parity - in Spain) was USD 21.320 in 2000, and USD 32.076 in 2010. The income inequality in Spain, measured by the Gini coefficient, is comparatively low (in 2000 it was 34.6612), although in the six intermediate deciles of the OECD countries. The changes in inequality from 1980 to 2000 have been very positive (see figure 1). Figure 2: Changes in inequality OECD countries

23

OECD stands for Organisation for Economic Co-operation and Development. OECD (2011), Society at a Glance , OCDE Indicadores Sociales. More information here. 25 Leandro Prados de la Escosura and Joan R. Rosés (2008): Proximate Causes of Economic Growth in Spain, 18502000, Working Papers in Economic History, WP 08-12. Universidad Carlos III De Madrid, Departamento De Historia Económica e Instituciones, June 2008. 24

27


26

The total GDP in 2009 was 1.489 billion USD. In a ranking of countries by GDP, taking into account the th th PPP, Spain ranks the 12 (World Bank) or the 13 (International Monetary Fund - IMF -) economy in the world. Table 3: Annual growth rates of Spain in percentage (2000-2010) 2000 2001 2002 2003 2004 2005 2006 2007 5.0

3.6

2.7

3.1

3.3

3.6

4.0

3.6

2008

2009

2010

0.9

-3,7

-0.1

27

This data clearly shows the severe recession suffered in 2009. After an average growth rate of 3.5% for 14 years (above the potential growth rate of close to 3%), the overheated economy was severely hit by 28 the bursting of the Spanish real-estate bubble and the fallout from the global financial crisis. ´Domestic, as opposed to external, demand has long been the driving force of the Spanish economy and, 29 in particular, the construction sector`. It has played a greater role in GDP growth than in the other large EU countries. Consequently, its contribution was more negative during years of recession or low 30 growth. Spain´s position has gradually worsened in the prestigious competitiveness rankings of the World Economic Forum’s (WEF) and the IMD Business School. Respectively, the country fell over the th rd st th th period 2006-2009 from the 28 to the 33 position and from the 31 to the 39 . Spain ranked 10 place 31 (out of 50 countries) in the 2010 Anholt‐Gfk Roper Nations Brand Index (NBI) , third in tourism and 32 sixth in culture. Currently, the most important problem is the public deficit (11,1% in 2009, 9,24% in 2010) and the difficulty to raise money on the global markets to cover it. A priority for the new government of Mariona Rajoy is to address the country´s default. In 2007 the investment in the construction sector accounted for 15.7% of GDP (9% in the US, Germany, France, the UK and Italy). The driving force was residential construction. At its peak it accounted for 10% of GDP, compared with 6.5% in the US. Not surprisingly, the construction sector created one in every five jobs between 2000 and 2007. When the financial and economic crisis hit Spain, by the end of 2009, more than 781,000 construction workers had lost their jobs. The real estate market collapsed and 33 unemployment in Spain rose to 21.29% of the labour force. With the highest unemployment rate in the OECD, youth unemployment scored 20 percentage points higher than the average population (10 percentage points for OECD average). For migrants the difference is 11 percentage points (3 percentage points for OECD average). Unpaid work in Spain is 41% of GDP, the fifth highest in the OECD after Japan (42%), New Zealand (43%), Australia (46%), and Portugal (53%). The gender gap in unpaid work in Spain at three hours and seven minutes per day is the sixth highest in the OECD. The OECD average gap is 2 34 hours and 28 minutes. 26

INE-Spain, 12 October 2011. More information here. In the last 50 years, Spain experience only three times negative growth. The recession of 2009 was clearly the deepest with ‐3.7% against ‐0.2% in 1981 and ‐1.2% in 1993. 28 William Chislett : “The Way Forward for the Spanish Economy: More Internationalisation (WP)”. Real Instituto Elcano, Area: International Economy and Trade, Working Paper 1/2010, 15/1/2010, pp. 2-3. 29 William Chislett : “The Way Forward for the Spanish Economy: More Internationalisation (WP)”. Real Instituto Elcano, Area: International Economy and Trade, Working Paper 1/2010, 15/1/2010, pp. 16. 30 William Chislett : “The Way Forward for the Spanish Economy: More Internationalisation (WP)”. Real Instituto Elcano, Area: International Economy and Trade, Working Paper 1/2010, 15/1/2010, pp. 16. 31 The NBI measures the power and quality of each country's 'brand image. This is done by combining the following six dimensions: exports, governance, immigration and investment, culture and heritage, people, and tourism. 32 More information here. 33 INE, first quarter of 2011 data. More information here. 34 OECD (2011), Society at a Glance , OCDE Indicadores Sociales. More information here. 27

28


The overall population is 46,072.800. The foreign population is almost 12%. Spanish life expectancy is, at 81.2 years, among the highest in the OECD (1 year above the OECD average). Youth population (aged less than 15) was 27.1% in 1950, but in 2020 it will be only 14.1% of the total population. However, elderly population (aged 65 and over) constitutes for 31.6% in 2010 (USA is 33.8%) and will be 47.1% in 2050, the highest in the world after Japan. An inevitable consequence of population aging is that, at current benefit levels, pension spending will have to rise to accommodate the increased number of 35 elderly people. Poverty is another problem. As one can see from the figure 2, more than 20% of the Spanish population is poor (using the relative poverty rates). Anyway, there is a modest but useful social safety net to compensate for poverty and other risks such as old age, illness, unemployment or disability. The public 36 expenditure in pensions is 7.5% of the GDP. Spain’s education system, in the 35 years since the death of General Franco, has become one of the most equitable among industrialised countries, but it has major shortcomings. However, it should not be forgotten that basic secondary education only became compulsory and free 27 years ago. Nevertheless, almost one-third of the people between the ages of 18 and 24 in 2007 are early school drop-outs and did not complete their basic education. Besides, Spain scores poorly in the PISA tests (OECD´s Programme for International Student Assessment) for 15‐year 37 olds on reading, mathematical and scientific literacy. The public spending on education was 4.2% of GDP in 2007. Spain has a good public health system but the increasing demand pressures sustainability. Comparing to 2000, in 2007 there was an increase of output of 22.8% in surgery, and a 24.3% in 38 emergency services. The public spending in health is 6.4% of GDP (the average spending in the EU-27 is 7.4%). Figure 3: Relative poverty rates for different income thresholds, mid-2000s

Note: Poverty rates are defined as the share of individuals with equivalised disposable income less than 40, 50 and 60% of the median for the entire population. Countries are ranked, from left to right, in increasing order of income poverty rates at the 50% median threshold. The income concept used is that of household disposable income adjusted for household size. Source: Computations from OECD income distribution questionnaire.

35

Aging and Pension Expenditures, World Bank. More information here. OECD, StatExtracts, 2011. More information here. 37 William Chislett : “The Way Forward for the Spanish Economy: More Internationalization (WP)”. Real Instituto Elcano, Area: International Economy and Trade, Working Paper 1/2010, 15/1/2010, pp. 8-9. 38 Informe 01/2010: Desarrollo Autonómico, Competitividad y Cohesión Social en el Sistema Sanitario. Consejo Económico y Social de España. 36

29


th

th

According to the Human Development Index, Spain is ranked the 20 in the world and 17 according to 39 inequality-adjusted HDI (Human Development Index). All this considered (see summary of data below), we can conclude that the socio-economic situation of Spain is supportive to an effective national integrity system. Nevertheless, the recession in 2009 and its consequences will have lasting effects on the Spanish economy. These effects can create risks but also opportunities for the development of integrity issues. 40

41

Table 4: Spain today - Some economic and socioeconomic realities , Global Ranking Description Top 10 Eighth‐largest economy in current dollars, but not a G‐8 member Top 20 Fifteenth in the EIU’s Democracy Index (Economist Intelligence Unit), ahead of the US (18th) Top 5 Eighth‐largest stock of outward direct investment country Top 10 Seventh‐largest stock of inward foreign direct investment th Top 15 15 in the United Nations’ Human Development Index Top 5 Fourth‐longest life expectancy at birth along with Australia, France and Sweden Top 5 Second largest tourist destination in terms of visitors and receipts Top 5 Third largest producer of cars in Europe after Germany and France Top 5 Number one transportation developer Top 5 Fourth in development of renewable energy Top 5 Biggest producer and exporter of olive oil Top 5 Biggest producer and exporter of sparkling wine (cava) th Top 20 17 in the Global Gender Index. Top 500 Thirteen Spanish companies made it into the 2009 FT Global 500 ranking of the world’s biggest companies. Spain has the 10th largest number of companies in the ranking, three more than Italy but 10 fewer than France. Source: IMF, Economist Intelligence Unit, UN Human Development Report 2009, World Investment Report 2009 (UNCTAD), ANFAC, World Tourism Organisation and World Economic Forum. Socio-cultural foundations In Spain, historically, the Roman-Catholic Church has played a significant role as a social institution by providing social security to the population. However, democratization, urbanization and rising GDP shifted society’s focus from the Church to the government as responsible for welfare. Spain has been a very Catholic country, but the process of secularization is strong. In January 1978, almost 91% of the Spaniards defined themselves as Catholics, 20 years later, in 2008 only 77% of them did. According to the same surveys, almost 70% of the Catholics never or almost never go to church. In January 2008, in the CIS Barometer, Spaniards consider religion not important (with 0 as not important at all, to 10 as very important, the mean was 4.4). According to the National Institute of Statistics, almost 50% of the young couples do not want a Catholic marriage. In 2004, almost 80% considered homosexuality a 42 personal and respectable option and 66.4% was in favour of gay marriage. In the Barometer of October 2007, 95% of the respondents were in favour of gender equality.

39

More information here. In William Chislett : “The Way Forward for the Spanish Economy: More Internationalisation (WP)”. Real Instituto Elcano, Area: International Economy and Trade, Working Paper 1/2010, 15/1/2010, p. 26. 41 The figures are the latest available. 42 CIS, Study 2568, 2004. 40

30


A recent democratic audit, following the methodology of the Human Rights Centre (Essex University), 43 shows that the quality of the Spanish democracy is declining, mainly due to corruption. Moreover, this corruption problem is present in a country with historical tendency to mistrust political institutions and 44 politicians. In sum, Spain’s memories of civil war and dictatorship, the early socialization in institutional mistrust, combined with the relative newness of democratic governance, could explain why Spaniards 45 have a thick culture of institutional disaffection. During the global economic and financial crisis, the bail-outs of banks with public money and increases of debt to GDP greatly affected trust in governmental institutions all throughout Europe. In the case of Spain, one could add to this the burst of the Spanish construction bubble, the numerous scandals of corruption and the increasing popular perception of corruption. Therefore, the recent outbreak of corruption cases in Spain may have pronounced consequences on citizens and on the social fabric of the country’s democracy. For example, statistics show in Spain a very strong drop in institutional trust (Standard Eurobarometer, Nos 69-73 and Special Eurobarometer, No. 71.1). The population revealed in 46 the spring of 2008 (before the Lehman bankruptcy) a high net trust level of 20% in the Congress of Deputies. In spring 2010 this dropped to -50%. The social trust has also had a drop between 2004 and 2009 (see table 3). Table 5: Social trust Generally speaking, would you say that most people can be trusted or that you can't be too careful in dealing with people? Scale 0-10

Most are trustworthy (% between 6 and 10)

European Social Survey (2004-2005),

39%

CIS Study 2826 (2009)

34%

Utilizing data from an original survey that followed the 2009 corruption events, Villoría, Van Ryzin and 47 Lavena provide empirical support for the idea that citizens can detect corruption and, moreover, that their perceptions of corruption are associated with lower levels of satisfaction with democracy and government, diminished levels of institutional and interpersonal trust, and a greater acceptance of rulebreaking behaviour. As such, this study suggests that corruption does indeed weaken the legitimacy of government and harm the social fabric of democratic society. Villoría, Van Ryzin and Lavena’s results are thus consistent with previous research on the relationship between corruption and political 48 disaffection. Table 6: Regression analysis of the relationship between perceived corruption and potential social consequences Satisfaction Satisfaction Satisfaction Justifiable Interpersonal Institutional with with with the to break trust trust

43

Estefanía, J. (2010). Informe sobre la democracia en España 2010. Fundación Alternativas, Madrid. Torcal, M. y Magalhaes, P.C. (2010): “Cultura política en el sur de Europa: un estudio comparado en busca de su excepcionalismo”, en Torcal, M. (ed.) La ciudadanía europea en el siglo XXI, CIS, Madrid. 45 Mishler, W and Pollack, D. (2003). On Culture Thick and Thin: Toward a Neo-Cultural Synthesis, in D. Pollack and J.Jacobs (eds) Political Culture in Post-Communist Europe, London: Ashgate. 46 Net trust measures are done by subtracting the percentage of citizens who trust with the percentage of citizens who mistrust (CEPS Working Document 343, June 2010). 47 Villoria, Manuel, Gregg Van Ryzin and Cecilia Lavena, “Consequences of corruption: A study of political attitudes th in Spain”. Paper presented at the 7 Transatlantic Dialogue, Newark, NJ, 22-25 June, 2011. 48 Pharr, Susan J. and Robert D. Putnam, Disaffected Democracies ( Princeton, NJ. Princeton University Press, 2000), and Norris, Pippa, Critical Citizens: Global Support for Democratic Government (Oxford: Oxford University Press, 1999). 44

31


democracy

government

Overall - .111*** -. 126*** corruption Note: *p<10, **p<05, ***p<01

opposition party

the rules

-.111***

.043**

*

-.097***

-.301***

Source: Survey 2826 of the Centre of Sociological Investigations, analysed by Villoría, Van Ryzin and Lavena (2011). Table shows standardized regression coefficients, after controlling for demographic characteristics, socioeconomic status, political ideology, media exposure, and other variables, the coefficients for which are not shown above (see the paper for complete statistical details). Corruption profile Data on Corruption in Spain In a November 2009 public hearing before the Parliament of the Spanish Attorney General, it was revealed that the Public Prosecutor’s Office was in the process of investigating some 750 political corruption cases, with more than 800 individuals involved. At the time of writing, nearly 150 more are 49 also under investigation. The affected politicians belong to the political parties represented in Parliament without exception. Besides that, there have been in the last six years, 50 to 60 sentences per 50 year in which the crime was corruption and the convicted were civil servants. There are cases of bribery, misappropriation and some other violation of rules. However, all these cases mentioned here 51 are merely “unlawful public office related acts by political actors”. They give information on corruption only from a legalistic point of view. It is ‘broadly recognized that the legalistic view is too narrow: the law itself may arise from corrupt processes, while one could easily point to cases where behaviours that 52 are not explicitly prohibited by law violate the public sense of appropriateness´. In Spain there is no official information and academic research on practices that could be viewed as corrupt, only in unusual cases, as for instance in what has been termed ‘undue influence’ or ‘legal corruption’. The rates of prosecution are as likely to reflect the zeal, competence, and integrity of the police and judiciary, or the political priority placed on fighting corruption, as they are to capture the true scale of the phenomenon. For that reason and others, rates of prosecution or conviction do not constitute a reliable indicator of the extent of corruption in a given situation. The most common method of measuring corruption is by measuring perception. One approach is to measure the subjective perception of citizens. Research on perceptions of corruption can be based on quite simple and straightforward country comparisons of citizens’ opinions of the frequency of corrupt behaviour, 53 typically among politicians and public employees. In Spain the perception of corruption among 54 politicians is very high. For example, according to two recent Spanish surveys , corruption among politicians is seen as:

49

Jiménez, F. and Villoria, M. (2011): "Political finance, urban development and political corruption in Spain” in Jonathan Mendilow, Public Funding of Political Competition and the Future of Democracy, Lexington Books, Forthcoming. 50 Villoria, M. and Jiménez, F. (2011): “Corruption in Spain (2004-2010): Data, Perception and Consequences”. REIS, Forthcoming. 51 Fackler,Tim and Lin Tse-min, “Political Corruption and Presidential Elections 1929 -1992”. Journal of Politics, Vol 57 (1995): 971-93: 972. 52 Mendilow, Jonathan, “Corruption and Campaign Funding: a Burkean Perspective”: 4. 53 Bauhr, Monika, Naghmeh Nasiritousi, Henrik Oscarsson and Anna Persson, “Perceptions of Corruption in Sweden”, QoG WORKING PAPER SERIES 2010:8, Goteborg: 10. 54 CIS, survey number 2826, 2009. 32


Table 7: Perception of corruption among politicians Corruption among Very extensive Quite extensive politicians Survey 2009 39% 41% Survey 2011 46,8 39,8 Source: CIS, survey nº 2826, 2009, and nº 2.905 (Barometer June 2011).

No corruption 0.4 0.4

Some of the most interesting data on the citizens’ perception of corruption in Europe can be found in the Special Eurobarometers on corruption. The Special Eurobarometer on corruption (number 325) stated that in November 2009, 88% of respondents in Spain agree that corruption is a major problem (as against 83% in 2007). And according to the Spanish respondents, corruption is found in all institutions (local, regional and national). Nearly 90% of the Spaniards believe that there is corruption in Spanish local institutions. Spanish respondents are the most likely to believe that their local politicians are 55 involved in widespread corruption (67%). Comparing this survey with that of 2005, we see that all the institutions suffered a serious deterioration (see Table 4). People in Southern Europe are now significantly more inclined to feel that there is rampant corruption in national institutions than was the case in 2005. Spain is one of the Southern European countries where the deterioration has been more pronounced. Table 8: Perception of corruption in local, regional and national institutions Country Year Local institutions Regional institutions National institutions Spain 2005 74% 73% 74% Spain 2009 89% 90% 91% Comparative 2005-2008 + 15% +17% +17% Italy 2005 81% 81% 84% Italy 2009 89% 86% 89% Comparative 2005-2008 +8% +5% +5% France 2005 71% 73% 81% France 2009 79% 80% 83% Comparative 2005-2008 +8% +7% +2% Source: Eurobarometer 245, 2005, and Eurobarometer 325, 2009. Aggregated estimates have been shown to be highly (but not perfectly) correlated with the country’s score on popular corruption indices that are based on expert judgments. In general, all these indices measuring perception have a common problem: they do not have a previous definition of corruption. Be that it as it may, the lack of better alternatives makes these sources of information the more reliable sources of cross-national data. At this point, it is helpful to consider the evolution of the perception of corruption in Spain according to the Corruption Perception Index (CPI). Table 9: Spain in the CPI of Transparency International 1995-2009 Regional Overall Year Score Confidence range Countries Rank Rank (EU15)

Regional Rank (EU25)

Surveys Used

2009 2008

15 14

6 6

6,1 6,5

5,5-6,6 5,7-6,9

32º 28º

180 180

55

12 12

National institutions are considered the most corrupt in most of the EU 27 countries (the mean is 83% vs. 81% of sub-national institutions). In the case of Spain there are different reasons for that, one of them is anti-central government mood. 33


2007 6,7 6.2 - 7.0 25º 2006 6,8 6,3-7,2 23º 2005 7,0 6,6-7,4 23º 2004 7,1 6,7-7,4 22º 2003 6,9 5,2-7,8 23º 2002 7,1 5,2-8,9 20º 2001 7,0 5,8-8,1 22º 2000 7,0 5,9-8,0 20º 1999 6,6 s.d. 0,7 22º 1998 6,1 s.d. 1,3 23º 1997 5,9 s.d. 1,82 24º 1996 4,31 s.d. 2,48 32º 1995 4,35 s.d. 2,57 26º Source: CPI, Transparency International.

179 163 159 146 133 102 91 90 99 85 52 54 41

12 12º 12º 11º 11º 9º 10º 10º 11º 12º 12º 14º 13º

12 12º 12º 11º 11º 9º 10º 10º 11º 12º 12º 17º 13º

6 7 10 11 11 10 8 8 10 10 6 6 4

Types and venues Although the Public Prosecutor did not give the names and positions of the public officials investigated, 56 according to the information gathered, most belong to local level. In one prominent case (Marbella) no less than 20 politicians (2 former mayors and 18 councillors) of the same town were indicted. On the other hand the most important corruption in Spain is grand corruption, not petty corruption. Bureaucratic corruption or petty corruption in Spain is low. This is reflected in surveys that have asked respondents about their own (or their family’s or firm’s) experience with bribes. TI has been conducting a Global Corruption Barometer (GCB) survey of inhabitants from 2004. In that year it included 64 countries; in 2009 it has included 69. As shown in table 6, the percentage of Spanish respondents who claimed to have paid a bribe in 2009 is low and the data have not changed meaningfully from 2004. Table 10: In the past 12 months have you or anyone living with you paid a bribe in any form? Spain Year Yes No Do not know 2004 2% 97% 1% 2005 0% 96% 4% 2006 2% 98% 2007 3% 97% 2009 2% 98% Source: Global Corruption Barometers, Transparency International. As shown in Table 7, this is in line with the data of other highly developed European countries, whose scores in the CPI are better than those of Spain. Table 11: In the past 12 months have you or anyone living with you paid a bribe in any form? Yes No - EU 5% 95% - Austria 2% 98% - Czech Republic 11% 89% - Denmark 1% 99% - Finland 2% 98% - France 2% 98% 56

Villoria, M. and Jiménez, F. (2011): “Corruption in Spain (2004-2010): Data, Perception and Consequences”. REIS, Forthcoming. 34


- Germany 2% 98% - Greece 18% 82% - Luxemburg 4% 94% - Netherlands 2% 98% - Norway 2% 98% - Poland 4% 96% - Portugal 2% 98% - Spain 2% 98% - Sweden 1% 99% - United Kingdom 2% 98% Source: 2009 Global Corruption Barometer, Transparency International. According to the global barometer 2009, the bribes in the police are almost non-existent, and in the education, health, fiscal or judiciary systems are below 2%. Only data related to bribes being paid to land authorities to obtain favourable decisions is higher than 2%. Causes Among the factors explaining why local governments and politicians were so severely affected, three are probably paramount: the urban development system; certain drawbacks in the political parties funding system; and weak accountability. 57

Urban development has been a major source of political corruption in Spain for the last several years. Town council scandals reached news headlines on an almost continuous basis and an on-going stream of complaints have been filed, not only before the courts of justice, but also the Committee on Petitions of the European Parliament and the Ombudsman. Cases pointing to a link between political finance corruption and urban development likewise surfaced on a regular basis. The best example is the Gürtel case in which more than 20 politicians of the Popular Party (one of the two largest parties in Spain) were indicted, among them a regional president, the treasurer of the party at the central headquarters, five mayors, and 12 national and regional parliament members. The case involved the allocation of public construction contracts to firms that paid illegal commissions to individual decision-makers and to the 58 coffers of the Popular Party. Another example is on the Balearic Islands. Of the 21 cases of corruption that were exposed there during the last four years, most involved the nexus between political finance and urban development, and some of the most important regional and local politicians from the former regional and local governments were indicted. The construction boom and flow of money linked to town planning policy are the most important reasons for the connection between political finance and urban development. Up to the recent Land Law of 2007, which incorporates modest but important changes (the effects of 59 which are still to be verified ), the regulation of the urban development activity in Spain ever since the Francoist Land Law of 1956 has generated an increasingly complex and sophisticated urban development model which strongly stimulates land speculation and political corruption. Even the th Plenary of the European Parliament approved on March 26 2009 a very harsh report against the 57

Jiménez, Fernando. “Building Boom and Political Corruption in Spain”, South European Society and Politics 14(3) (2009): 255-272. 58 Villoria, Manuel, “Corrupción, la amarga verdad” (Corruption, the bitter truth). In Informe sobre la democracia en España 2010, edited by Joaquín Estefanía, 81-105, Madrid: Fundación Alternativas, 2010. 59 A complete account of the anticorruption novelties in the new law in Villoria, M. (2007) ‘Las nuevas medidas al servicio de la transparencia, la participación y el control en el gobierno local en la Ley del Suelo’. Ciudad y Territorio. Estudios Territoriales, vol XXIX, no. 152-153, pp. 1-21. 35


Spanish urban planning model that denounced “the greed and speculative behaviour of certain local and regional authorities and members of the construction industry” and the massive environmental damage 60 caused by these actors. 61

Considering the weak accountability , first of all, there is no way to detect and investigate conflicts of interest of local elected, except if there is a crime. For civil servants, detection and investigation should be made through hierarchy, which means that every local government has the responsibility to detect and control conflicts of interest through internal inspection and to sanction violations. In practice the enforcement is very low. In many scandals over the years, secretary generals of the municipalities have worked as private legal consultants of some developers and of many networks of municipal architects working for the local government circumventing formal restrictions of incompatibilities. Besides, in Spain there has not been a system of whistle-blower protection until the recently (May 2010) 62 modification of article 426 of the Penal Code which introduces it for bribe-payers. In general terms there is no body specifically charged with overseeing and evaluating the implementation of conflict of interest rules in local governments. This review of internal controls would not be complete without mentioning the role of the secretary general of the municipality and some other important public officials. Up to the mid- 1980s with the first democratic law on town councils (1985), a group of qualified local public officers (Funcionarios de Habilitación Nacional, FHNs, in Spanish), particularly the secretaries and auditors, had a very important role in the monitoring the town councils. Technical reports carried out by these public officers are still in force for a large number of decisions in urban matters; however their relevance as monitoring devices has substantially decreased. The Court of Audit has made reference to this situation in many of its reports on local entities. The public officers remain integrated within the local civil service, which creates a phenomenon of organic dependence in which the “controlled” fix the salary and working conditions of the “controllers”. Finally, looking at external controls, the principle of strengthening the municipal autonomy affects all aspects of the relationship between the local governments, on the one hand, and the Autonomous Communities and the National Government, on the other. The Law on Town Councils (1985) almost vanished together with the traditional mechanisms of administrative control. It is almost impossible for an Autonomous Community or for the National Government to nullify directly a decision taken by a local government despite all the suspicion a decision may have. The law forces these other administrations to contest in court that decision, so it is only the judiciary whom can suspend a local decision. However, the utmost slowness of the contentious jurisdiction has turned it into a very ineffective monitoring device. According to the Spanish legal framework, urban-planning is a task mainly in the hands of town councils and particularly in the hands of the mayor. It is the mayor who issues building permits (naturally according to the current plans and after receiving technical and legal reports by some local officers such as the secretary general and those in the technical office for urban-planning). It is also the mayor who sanctions all illegal buildings and constructions. In fact, public administrations at the regional or national level have limited power whenever a mayor fails to fulfil its obligations. This system of enforcement has shown to be absolutely inefficient. A large number of town councils have been reluctant to pursue 60

RR\416354EN.doc dated 20 February 2009, rapporteur: Margrete Auken. Approved by the Plenary on 26 March 2009 by 349 votes in favour, 111 against and 114 abstentions. More information here. 61 Jiménez, F. & Villoria, M. “Improving Local Integrity Systems in Southern Europe: The Case of Spain” Paper presented at the EGPA Study Group on Ethics and Integrity of Governance, Toulouse – 8-10 September, 2010 62 In case they denounce the bribe-taker in a two months period. 36


violations in their municipalities, and at most, have just acted ex parte when a claim by a citizen was filed. Along these lines, the demolition of unlawful construction buildings has been almost inexistent, instead being replaced with low fines. A payment that could be seen as de facto legalization. Anti-corruption activities In Spain there is no anti-corruption strategy nor a timetable for its implementation. Anyway, it is important to underline that from 2006 on there have been changes in the system of control, in human resources management, in the fight against environmental and land-planning crimes and in the system 63 of transparency (see table 8). From an institutional point of view, there have been important changes in the field of legal enforcement to fight against urban-planning related corruption: -

-

-

The creation of a specialised public prosecution section on environment and land-planning crimes in all provincial courts of the 50 provinces. All these prosecutors are coordinated by a chief-prosecutor acting as delegate of the Attorney General. The organization of a specialised unit on land-planning crimes at the Operative Central Unit of the Guardia Civil (Spanish Civil Guard). Eight hundred agents in this unit conducted in the first six months 80 operations, 57 arrested people and 126 prosecuted individuals. The strengthening of the Public Prosecutor’s Office against Corruption and Organized Crime which now has the power to investigate and prosecute all significant bribery cases without the intervention of the Attorney General for a case-specific determination of the special significance criteria. It has also duplicated the number of public prosecutors working in this area.

In general terms, there have been improvements in the fighting of corruption. From 2004 to 2009, the 64 police have arrested 943 people and seized goods and properties for more than 3.000 million Euros. Between 2004 and 2008, the Public Prosecutor’s Office against Corruption and Organized Crime almost 65 doubled the number of information and research inquiries from 22 to 42. Add to these proceedings the 246 judicial proceedings pursued by specialized Prosecutors on the central and delegate level. In order to confirm the increase, it should be noted that in 2000 the anti-corruption prosecutor only intervened in 88 proceedings, having now more than tripled the work in the eight years after. In fact, 66 after significant increases in 2009 the workforce has stabilized with 15 main-Prosecutors , 15 delegated-Prosecutors and 26 administrative staff. Besides, added to this should also be the Support Unit of the AEAT with 10 inspectors, the Support Unit of the State Audit Office with 7 Auditors, the unit attached to the National Police and 13 police units attached to the Guardia Civil, with 10 agents. In 2009, new information and research inquiries have decreased slightly from 2008, to 36. Although the legal proceedings have gone to 257. The National Police Corps stresses that compared to previously 10 detainees through 15 investigations in 2004, the operations against corruption in recent years have increased due to the reinforcement of 63

th

For example, a Statute for Public Employees and Civil Servants (Ley 7/2007, from April 12 ), a new Land Act (Ley th 8/2007, from May 28 ) with important novelties in the traditional Spanish land-planning model, a new Political th Parties Funding Act (Ley Orgánica 8/2007, from July 4 ), a new Public Sector Procurements Act (Ley 30/2007, from th th October 30 ) and a new Penal Code of 9 of June 2010 which has improved the anticorruption legislation. 64 Press release of the 10th of December of 2009, Ministry of Interior. 65 See Memorias de la Fiscalía de 2005 y 2009, p. 545. According to the report there were 22 investigations in 2004.This is a significant difference with the 106 in 1999 and 95 proceedings in 2000. However, during that period the special prosecutor was Carlos Jiménez Villarejo. His active approach is recognised among experts. In fact, according to different media reports his active fight against corruption eventually led to his relief of duty in June 2003 (see for example LLuita Obrera of 11 February 2007). 66 The Public Integrity Section of the US Department of Justice has 29 prosecutors. 37


material and personnel coming from the specialized units. This has led, in 2009 alone, to 252 arrests through 54 investigations. All these successes would not be possible if the Public Prosecutor´s Office had not doubled its effective fight against corruption and organized crime and the police had not created a highly specialized unit such as the Unit against Economic and Financial Crimes (Unidad contra los Delitos Económicos y Financieros - UDEF). Stats of the Guardia Civil are similar, with an increase in the number of arrests since 2004 and an increasing focus on specializing in combatting corruption. Table 12: The most important anticorruption reforms or activities with a direct impact on the NIS from the past five years Código Iberoamericano de Buen Gobierno/ Iberoamerican Code of Good Government: this Code affects all the Iberian-American countries; it was a proposal of the Spanish Government for the Summit of Chief of Estates and Presidents of Montevideo, in 22 y 23 June of 2006. Código de Buen Gobierno de los miembros del Gobierno y de los altos cargos de la Administración General del Estado: in regard to the Code of Good Government, it is interesting to note that successive reports of international bodies such as the GRECO of 2001 stated Spain did not enjoy a code of conduct within its public administration. Even though legal norms existed, no codes of conduct were designed and implemented to orientate and help employees. Because of that, the government of Zapatero, following the electoral manifesto, and guidelines of the OECD on this matter, approved in February 2005 a Code of Good Government. Its objective is to offer “to the citizens the commitment that all the high-ranking officials in the exercise of their functions should comply not only with the obligations predicted in the laws, but, besides, its action should be inspired and to be guided by ethical principles of conduct that up to now have not been expressed explicitly in the norms. Ley 5/2006, de regulación de los conflictos de intereses de los miembros del Gobierno y de los Altos Cargos de la Administración General del Estado/ Law 5/2006, the Bill on Conflicts of Interest of the members of the government and of the high-ranking officials of the General Administration of the State: its objective is to establish the obligations that are incumbent in order to prevent situations that can originate conflicts of interest. Registro de Actividades de los altos cargos y la publicación en el Boletín Oficial del Estado de los bienes y derechos patrimoniales de los miembros del Gobierno y de los Secretarios de Estado/ Registry of Activities, Goods and Patrimony: an office is foreseen in the above mentioned Law on Conflicts of Interest. This is a body with functional autonomy, and comprising public officials, though under the Department of Public Administrations. Some of the office’s responsibilities are to demand to the high ranking officials the observance of the law and to report this to the government, to detect and prosecute violations of the law and to approve post-employment activities. The declaration of assets that Secretaries of State and Ministers will have to present in the Registry of Activities, Goods and Patrimony will be published in the Official Bulletin of the State. th A Statute for Public Employees and Civil Servants (Law 7/2007, April 12 ): which includes a code of conduct based on 12 ethical principles (art. 53) and 11 principles of behaviour (art. 54) for all workers in public administration. th La Ley 29/2005, de 29 de diciembre, de Publicidad y Comunicación Institucional / Law 29/2005, 29 of December on Institutional Publicity and Communication: established the normative framework in which institutional promotion campaigns have to be developed for the General Administration, as well as the other public institutions. Focus lies on the protection of equality between political candidates and parties during election campaigns. Royal Decree 947/2006 regulates the Commission for Institutional Publicity and Communication and elaborates an annual plan for the General Administration. With this regulation an attempt is made to avoid that institutional campaigns are used for electoral purposes. th Law 28/2006, July 18 , the Central Government Agencies Act 2006: based on a new model of public

38


management, according to the process of updating and innovation across Spanish government in line with the European Union principles of governance: accountability, effectiveness, participation, openness and coherence. Agencia Estatal de Evaluación de las Políticas Públicas y la Calidad de los Servicios/ the National Agency for the Evaluation of Public Policies and Quality of Services: performs an institutional role combining the goals of improving the quality of public services, rationalizing the use of public funds, and enhancing the public accountability of government bodies. Ley de Contratos del Estado (Ley 30/2007)/ Public Sector Procurements Act transposing Directive 2004/18/CE: see the Public Sector Pillar. th Endorsement, January 4 2000, of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. th Endorsement, April 28 2010, of the Criminal Law Convention on Corruption. st Endorsement, June 1 of 2006, of the UN Convention against Corruption. Ley 8/2007, de 28 de mayo, de suelo/ Land Law 8/2007, 28th of May (In force until 27th of june 2008) after which the Royal Legislative Decree 2/2008, 20th of June, will approve the consolidated text of the Land Law. Fiscalía especial de delitos ecológicos y urbanísticos: specialised public prosecution section on environment and land-planning crimes in all provincial courts Central Operational Unit of the Guardia Civil specialized in urban crimes. Ley 27/2006, de 18 de julio, por la que se regulan los derechos de acceso a la información, de participación pública y acceso a la justicia en materia de medioambiente/ Law 27/2006, 18th of July, that regulated the rights of access to information, public participation and access to legal material on the environment. Ley 11/2007, de 22 de junio, de acceso electrónico de los ciudadanos a los Servicios Públicos/ Law 11/2007, 22nd of June, on electronic access for citizens to public services. Disolution of the Marbella city council due to corruption. Anti-corruption Public Prosecutors: by article 5 of the Organic Statute of the Public Prosecutor through Law 24/2007, 9th of October. Nueva ley de financiación de partidos, la Ley Orgánica 8/2007/ Law on Political Party Funding: All parliamentary political parties agreed to change the 1987 LOPPF in 2007. This legal change was accompanied by an important increase of 20% in the money parties received from the State Budget, from 65 to 78 million Euros. The prohibition of anonymous donations has been a positive change. Nuevo Código Penal, Ley 5/2010 de 22 de junio. This Organic Act amending Penal Code came into force on December 23rd 2010. Therefore, the crime of bribery of a foreign public official is set out as an autonomous crime through the new wording of the Article 445 and there is no need to refer to Articles 419 to 427 of the Penal Code (on national bribery) to determine the penalty; this new regulation increased penalties (2 to 6 years imprisonment and fines) and extended the limitation period (now ten years). Consequently, there should be no doubts that said crime is not within the competence of the Jury Court. In the last amendment of Penal Code by Organic Act 5/2010 of June 22, the criminal liability of legal person is expressly provided for some offences among which the crime of bribery of foreign public officials offence. Specifically, it is established in Article 445 paragraph 2 according to the provisions of Article 31 bis of the Spanish Penal Code. Ley 10/2010, sobre prevención de lavado de capitales y financiación del terrorismo: the most significant change in the AML/CFT (Anti Money Laundering/ Counter Financing of Terrorism) regime was the enactment of the Act 10/2010 on prevention of money laundering and terrorist financing, which th entered into force on April 30 2010 and which transposes the European Directive 2005/60/EC (the Third Money Laundering Directive). As its name indicates, the law unifies the preventive systems for money laundering and terrorist financing, previously split under the AML law 19/1993 and the CFT law 12/2003. With the new regime, all the preventive requirements fall under the scope of the Act 39


10/2010, the compliance supervision being responsibility of the SEPBLAC (FIU) and sanctioning powers relying on the Ministry of Finance. The blocking and freezing of funds potentially linked to terrorism remains ruled by the Act 12/2003 under the authority of the Ministry of Home Affairs through the Commission on Terrorist Financing Monitoring. Source: Own elaboration These changes have produced mixed results for the time being, although it will be necessary to wait to see the effects on the long term.

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VII. THE NATIONAL INTEGRITY SYSTEM

67

1. Legislature Table 13: Final score Legislature Final Score Legislature: 62 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity Mechanisms Executive Oversight Role

Law

Practice 50 50 50 50 50

100 75 75 50 50 75

Legal Reforms

50

Summary This National Integrity System assessment deals only with institutions at the central level of government. Hence, this pillar only includes the Congress and the Senate. Spain's democracy is based on a parliamentary model, meaning that Parliament has a decisive input in the direction of State affairs. Hence Parliament's importance in the country's legislative and essential 68 decision-making processes. However, this restrictive view should be broadened by stressing the value of the many functions carried out by the Parliament: it plays an essential role in overseeing the other powers of the State, in addition to legitimising democracy by ensuring that the work of all parliamentary bodies is transparent and accountable. In Spain's case, the fact that several absolute majorities were 69 attained after 1982 meant that, for many, the Legislative power was subordinated to the Executive power's interests, restricting the former's role to giving its stamp of approval to the Government's decisions. The Government's primacy in the legislative sphere and its control over the majority's deputies through the imposition of parliamentary discipline, with the consequent deficit in parliamentary oversight of the Executive, make it imperative to revitalise Spain's Parliament. There is an enormous scope for improvement in the transparency and accountability of deputies, although articulating and implementing any changes will be hindered by the system's electoral practices, with closed block candidate lists, that favour opacity and the primacy of party loyalty over loyalty to the people. Structure and Organisation The Constitution of 1978 established a two-chamber Parliament (TĂ­tulo III). Spain's Parliament or Cortes Generales comprise the Congress of Deputies and the Senate. The two chambers represent the Spanish

67

For this study only institutions are analyzed on the central government level. Norton, 1990. 69 There were majority governments between 1982 and 1993 (socialist) and 2000-04 (conservative). The overrepresentation of the smaller constituencies gives rise to artificial parliamentary majorities, as shown by the fact that since 1977 no single party has had an absolute majority of votes but have, on four occasions, had a majority of seats. 68

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People (art. 66.1). Parliament exercises the State's legislative power, approves the budget, oversees government action and has all other competences determined by the Constitution (art. 66.2). Nevertheless, bicameralism does not imply complete equality between Congress and Senate. The Constitution reserves for the Congress a whole series of functions and faculties that clearly reveal its primacy. Hence, Congress authorises the formation of governments, can cause their downfall, has the first say in the processing of bills and budgets and confirms or rejects the amendments or vetoes on legislative bills that might have been approved by the Senate. The Congress of Deputies is essentially governed by the dispositions of the Constitution of 1978 and by its own Standing Orders. According to the Constitution, Congress has a minimum of 300 deputies and a maximum of 400, to be determined by the electoral law. The current regulations (Ley OrgĂĄnica del RĂŠgimen Electoral General of 19 June 1985) have set the number of members of the chamber at 350. All deputies are elected by universal, free, equal, direct and secret suffrage. Constituencies are provincial, with a minimum of two seats corresponding to each province and the remainder being assigned by Law in proportion to the size of their populations. In turn, within each constituency candidates are elected by proportional representation, in such a way that each list gains seats in accordance to the votes obtained. Congress is elected for four years and deputies' mandates come to an end four years after their election or on the Chamber's dissolution. In both cases all the Chamber's members are up for renewal. In turn, within each constituency candidates are elected by proportional representation, in such a way that each list gains seats in accordance to the votes obtained. Congress is elected for four years and deputies' mandates come to an end four years after their election or on the Chamber's dissolution. In 70 both cases all the Chamber's members are up for renewal . The Autonomous Communities (the regional legislative assemblies) further designate one Senator and another one for every million inhabitants in their respective territories (see art. 56 bis 1 of the Senate's Standing Orders and the Agreement of the Senate's Permanent Committee on the number of Senators to be designated by each Autonomous Community in the 9th Legislature, of 16 January 2008).

1.1. Capacity 1.1.1. Resources (law) To what extent are the provisions in place that provide the legislature with adequate financial, human and infrastructure resources to effectively carry out its duties? Score: 100 There is a consolidated legal framework to guarantee Parliament's autonomy in institutional, budgetary and operational terms, leading us to assign a score of 5 in this aspect. The Spanish Constitution's article 72.1 ensures the Chambers' full institutional autonomy by recognising that they 'decide on their own Standing Orders and, by mutual accord, regulate the status of the parliamentary personnel' The existence of two Chambers in no way affects the fact that their personnel are considered to be bound by the same rules (Agreement of 27 March 2006, adopted by the Bureaus of the Congress of Deputies and the Senate at a joint session that approved the Statute of Parliamentary Personnel, BOCG 31 March 2006).

70

In the insular provinces, each island or group of them, with Cabildo or Insular Council, consists of a constituency for the purpose of electing Senators, meaning three on each of the major islands - Gran Canaria, Mallorca and Tenerife - and one for each of the following islands or groups: Ibiza-Formentera, Menorca, Fuerteventura, Gomera, Hierro, Lanzarote and La Palma. The cities of Ceuta and Melilla each elect two Senators. 42


The Standing Orders of the Congress of Deputies ensure the budgetary autonomy of Parliament (art. 72 of the Spanish Constitution). It is the Bureaus of the Congress and Senate who draw up a budget, with expenses attributable to each of the Chambers. The Chambers' budgets are debated, amended and approved in the budget commission, usually after being debated in the Bureaus and the Boards of 71 72 Spokesmen themselves. In fact, budgets are normally carried on from one legislature to the next. So far, any unspent amounts are not returned to the Treasury, but retained for future investments. The General Secretariat of the Congress of Deputies gathers the Chamber's various administrative and technical services, carried out by civil servants in a professional capacity. Under the authority of the Bureau and the President, it is the General Secretariat's responsibility to support the organs of Parliament in their activities. Specifically, it provides legal and technical advice, provides assistance and the human and material means for the Chamber to meet and operate. It is headed by the Secretary General, appointed by the Bureau of Congress on the President's advice from among the clerks of Parliament with more than five years of service. Its basic organs are, in addition to the Secretary General himself, two Assistant General Secretary-ships and the following departments: Institutional Relations; Communication; Legal Advice; Auditing; Technical-Parliamentary Support; Commissions; Research, 73 Analysis and Publications; Documentation, Library and Archive; International Relations; Budgets and Procurement; Human Resources and Internal Governance; Infrastructure and Facilities; and IT and Communications Centre. Although no data is available on the Web, Parliament employs around 600 civil servants, of which 190 have university degrees. Around 60 of the latter are Parliamentary Clerks.

1.1.2. Resources (practice) To what extent does the legislature have adequate resources to carry out its duties in practice? Score: 50 Although since 2005 Parliament has been undergoing a significant process of modernisation there is still a certain imbalance between its needs and the challenges it faces as a constitutional institution under permanent evolution and the funds it has available. For instance, there is a need to recruit qualified and 74 specialised personnel in different fields to allow it to support all the activities carried out by the deputies. The Staff Regulations of the Spanish Parliament (Estatuto del Personal de las Cortes Generales) have been modified 13 times since 1983 (nine times since the text was drawn up again in 1989), reflecting the difficulties encountered in attempting to match needs and availabilities. In practice, the shortfall in 75 managerial staff with higher education has led the Parliamentary Clerks (of which there are around 60) to become the main agents of parliamentary activity, improperly taking up management tasks. In any case, it should be made clear that the services pertaining to Congress's General Secretariat support the 71

Interview with a deputy. Interview with the Clerk to the Constitutional Committee. 73 A competence highly valued by all those interviewed. 74 Those interviewed highlight the significant presence of jurists to the detriment of others such as political scientists, economists and sociologists, who would be of great use in legislative tasks. 75 The rate of turnover of Parliamentary Clerks is also high as they lack the visibility and prestige they would be able to enjoy elsewhere. Interview with the Clerk to the Constitutional Committee. 72

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work of the Plenary Bureau and the bureaus of each committee, not of the deputies themselves. As regards budgetary autonomy, in practice Parliament's budgets are carried on from one legislature to 76 the next, although reductions are expected in the next few years. They increased in 2005, 2006 and 77 2007 when the Lower Chamber's modernisation plan was deployed. The Bureau of the Congress of Deputies, in its session of 20 July 2005, approved the Congress of Deputies' Modernisation Plan, made up of eight strategic lines (connectivity and mobility of deputies; citizen access; paper-free parliament; development of technological platforms; knowledge management; communication; integral quality management; support projects) and 37 projects to develop them. Many remain unexecuted due to the lack of funding. In June 2011 the deputies lost one of their few privileges: their pensions. The Presidents of the Congress of Deputies and of the Senate decided to eliminate the pension supplement and that the monthly indemnity for termination established by articles 12 and ff. of the Pension Regulations would be incompatible with any form of remunerated job. Finally, the salaries of Spanish members of Parliament are admittedly quite modest, leading to a high 78 rate of rotation and, in many cases, to a relaxation of the rules on incompatibilities. Nevertheless, the main complaint of Spanish deputies as regards their parliamentary activity is the lack of human resources to support their work, far above any other issues, such as the lack of financial and material means, the lack of advisory or information services, excess bureaucracy and administrative red-tape or 79 the actual functioning of the Chamber's internal services.

1.1.3. Independence (law) To what extent is the legislature independent and free from subordination to external actors by law? Score: 75 The existing legal framework has guarantees to prevent unjustified interference in Parliament's activities by other powers of the State. In any case, it should be borne in mind that Spain has a parliamentary system and that therefore the Executive has a measure of control over the Legislative through the Prime Minister's right to dissolve the Chambers. According to the definition included in the Spanish Constitution, mainly in its article 66, Parliament is a complex organ of a representative, deliberative, inviolable and continuous nature. Article 67.2 forbids

76

Parliamentâ&#x20AC;&#x2122;s General Budget for 2011 totals â&#x201A;Ź216,421,000, down from 2010's. It included a freeze in the salaries of civil servants and personnel employed in Parliament. In 2011, the salaries of Deputies and Senators will be frozen for the third year running, following the 10% cut applied from June 2011. 77 The largest increase in the Congress of Deputies' budget was in 2008 in the personnel expenses item, which rose by 10.43% over 2006 to â&#x201A;Ź39 million, part of which was devoted to paying for 37 new police jobs and the same number of temporary positions for the parliamentary groups. There was also a considerable item for 'Current expenses in goods and services', particularly affecting repairs, maintenance and conservation due, among other things, to the Plan for the restoration of historical-artistic elements in the Session Chamber and the maintenance of IT equipment. 78 Josu Erkoreka regrets that action is insufficiently strict as regards the incompatibilities of Deputies and Senators. Facebook of Josu Erkoreka, spokesman of the Basque group in Congress, Tuesday, 14 June 2011 at 12:57. 79 This was the unanimous opinion of all those interviewed when presented with a range of possible problems. 44


any imperative mandate over members of Parliament. Parliament's representative nature is expressed in art. 66.1 of the Spanish Constitution, which states that 'Parliament represents the Spanish people'. Hence, the laws it approves are self-imposed by the community itself. Deputies and Senators are protected by parliamentary inviolability and immunity. Inviolability is a right that consists in members of parliament not being subject to control, repression or legal proceedings for any opinions expressed in their speeches in Parliament (art. 71.1c of the Spanish Constitution); inviolability is a privilege attached to the function, not to the individual. It is also regulated in the Standing Orders of the Congress and Senate (arts. 10 y 21) that establish sensible limits to the question of inviolability (slander, insults, etc.). Immunity is the right of members of Parliament not to be arrested or tried except when they are caught in the act of committing flagrante delicto. Members of Parliament cannot be charged or prosecuted without prior authorisation of the relevant Chamber (art. 71.2 of the Spanish Constitution). Immunity is also regulated in the Standing Orders of the Congress and Senate (arts. 11 and 22.1). The privilege of immunity protects deputies and senators from any arbitrary acts by the Executive or Judicial Powers and guarantees the pre-eminence of the legislative, which reserves for itself the right, before accepting a 80 request to set aside privilege, of a prior hearing to assess any evidence of common criminality in the conduct of its members. However, in the constitutional state, the dissolution of Parliament has become an instrument to regulate conflicts between the Legislative and Executive Powers. It is a weapon at the Government’s disposal in its relations with the Chambers and can be used to counteract the latter’s influence. The Government's decision can be used as a threat against Parliament. The parliamentary majority knows that in the event of withdrawing its confidence from the Government and causing it to fall, the latter will dissolve the Chambers and call for elections, in which the members risk losing their seats. This could imply a restriction in the Chambers’ independence but is in line with the parliamentary character of the system of government. The Chambers elect their respective Speakers and the rest of the members of their Bureaus. Joint sessions are presided over by the Speaker of Congress and are subject to the Standing Orders approved by an absolute majority of both Chambers (art. 72.2 of the Spanish Constitution). Finally, it should be highlighted that the Speakers of the Chambers exert with full independence and in their name all administrative and policing powers within their respective premises (art. 72.3 of the Spanish Constitution).

1.1.4. Independence (practice) To what extent is the legislature free from subordination to external actors in practice? Score: 50 In practice, the control exerted by the Government through its political party in Parliament, especially when it has an absolute majority, limits the Legislative Power’s independence. The Deputies in the majority almost always vote in support of the Government, fundamentally because they are elected by a

80

By which the Court (the second division of the Supreme Court, art. 71.3 of the Spanish Constitution) requests from the Chamber concerned authorization to prosecute a Member of Parliament for an alleged criminal offence. 45


closed block list system. Their inclusion or not in the lists depends on their party loyalty. In theory, once elected, Deputies and Senators can be independent as regards their judgement and votes, but in practice they are subject to firm discipline from the parliamentary groups to which they belong. In summary, although the legal framework guarantees the independence of the legislative bodies, in practice many of the issues contemplated by the law are difficult to comply with because: 1. the parliamentary system of government provides for the Prime Minister to dissolve Parliament if he does not have its support; 2. Spain’s electoral law stipulates closed block lists for elections to Congress; 3. the parliamentary groups exercise strict internal discipline; and 4. in order to ensure governability it is necessary to ensure that the votes of the deputies supporting the government in the Chambers are foreseeable. All parliamentary dissolutions so far (six plus the first constituent term) have been decreed by the Prime Minister. The relevant decrees have made reference to article 115 of the Spanish Constitution and state 81 that the dissolution has been proposed by the Prime Minister after consideration by the Cabinet. Similarly, on every occasion dissolution has affected both Congress and Senate simultaneously, with no recourse being made to the possibility of separate dissolutions. On being interviewed, deputies 82 recognise that discipline is the key to their inclusion or not in candidate lists in the future. It is quite exceptional for a bill proposed by the government not to be approved, as it is rare for a bill presented by the opposition to be accepted (see chart below).

Table 14: Bills presented and approved in Spain (1979-2011), with percentages Term: I Leg. II Leg. III Leg. IV Leg. V Leg. VI Leg. VII Leg. Bills: Presented 216 128 160 180 162 328 369 Approved 68 17 13 24 35 35 18 % 31,5 13,2 8,1 13,3 21,6 10,6 4,8 Source: the authors from data provided by the Congress of Deputies’ database.

VIII Leg.

IX Leg.

295 21 7,1

291 10 3,4

A deputy or senator might not accept parliamentary group discipline but in that case, if it should occur again, he would be expelled from the group, although this would not lead to the loss of his seat. Throughout the various terms over the democratic period these incidents have been exceptional, with maintenance of group discipline being the norm. There are pacts between the major parties to prevent deputies or senators from defecting from one group and being accepted into another. Discipline is not as strict in either the regional parliaments or in local government, and anti-defection pacts are usually not strictly applied. Groups and deputies depend on their own technical and administrative teams. As the support is insufficient, the deputies of the majority frequently have to resort to the ministerial teams, with the consequent risk to the effective separation of powers. Worse still, sometimes they need to resort to the technical assistance of lobbies. According to the deputies interviewed, ‘many deputies of the group supporting the government, whatever its orientation, find it more difficult to bear their dependence on ministerial staff, which frequently comprises individuals with no specific ideological or party allegiance, and even with no personal commitment to the political project in question, than to accept their dependence on the party’. On many occasions, the final decision about a parliamentary initiative or an 81

See Royal Decrees 3073/1978, of 24 December, 2057/1982, of 27 August, 794/1986, of 22 April, 1047/1989, of 1 September, 534/1993, of 12 April, 1/1996, of 8 January and 64/2000, of 17 January. 82 Interview with two PSOE deputies, one a member during five parliamentary terms, the other during two terms. 46


amendment to a bill is adopted by the ‘advisor’ to a Minister or a Deputy Director General of no political import, over and above the views of the deputies who owe their allegiance to an election pledge and to 83 being accountable to their electors.

1.2. Governance 1.2.1. Transparency (law) To what extent are there provisions in place to ensure that the public can obtain relevant and timely information on the activities and decision-making processes of the legislature? Score: 75 From a formal point of view, the Constitution and the Standing Orders of both Chambers accept the principle of public access to information. Explicit mention is made of the public character of the ordinary sessions. The Spanish Constitution expressly guarantees the public character of legislation (art. 9.3 of the Spanish Constitution). Bills are debated publicly in Parliament, with each political party openly expressing its position. This is also where the government must explain what it is doing and why, and submit its action to criticism and debate. Thus, political debate reaches the general public, which can then determine its own political opinions. The Chambers themselves have public galleries, to which the media have open access. Furthermore, public access to information is provided through the official bulletins (Boletín Oficial) and journal of debates (Diario de Sesiones). Nevertheless, there are sessions that are not public, as long as it is so decided by an absolute majority of the Chamber or if foreseen in the Standing Orders. Neither are the plenary sessions devoted to internal affairs open to the public or the sessions of the various commissions, although in this case there is media access and the debates are published in the Journal of Debates. Arts. 95 to 98 of the Standing Orders regulate the Congress's publications and the publicity of its activities, indicating that the two official publications are the Official Parliamentary Bulletin (Boletín Oficial de las Cortes Generales) and the Journal of Debates. The proceedings at the secret sessions are recorded in a single written copy under the Presidency's custody, to which deputies can have access if so agreed by the Bureau. An amendment was made in July 2011 to the last but one paragraph of article 160.2 of Organic Law 5/1985, of 19 June, on the General Electoral Regime, by Law 7/2011, of 15 July (BOE, 16 July 2011) which shall henceforth read: “The content of the Register of Interests will be public. The Bureaus of the Chambers, in accordance with the first paragraph of this section shall agree on a procedure to ensure publicity”. The transparency of the agendas of the meetings between deputies and interest groups, of the meetings 84 of the parliamentary groups and of the sessions of the commissions remain to be regulated. 83

Interview with deputies of the majority party. Web page of the deputy José Luis Rascón: “I propose, first, that we identify adequately the pressure groups that play their parliamentary cards. Either publicize the contacts the parliamentary groups have had when debating and approving a law or make known the conflicts of interest of deputies in specific matters dealt with in Parliament. 84

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1.2.2. Transparency (practice) To what extent can be the public obtain relevant and timely information on the activities and decisionmaking processes of the legislature in practice? Score: 50 In practice, although since 2005 a sustained effort has been made to adapt the Chambers to the public’s need for information that is constant, updated and swift, it is still difficult for the public to gain access to the internal information. In this respect, there is no doubt that Congress has made a greater effort than the Senate (which is evident simply from comparing their respective websites). One of the strategic lines of the Congress of Deputies’ Modernisation Plan (2006) sought to bring the Congress closer to the public, for which purpose the following were adopted: -

A new Congress of Deputies website. A Citizens Portal (a specific portal for citizens on the website). An information and citizens´ service office. Easy access was provided to specific groups (preparation of educational material and Internetbased action for specific groups, e.g., the handicapped, etc.). Individual web pages for deputies: creation of individual pages on the Congress website for deputies who request it. Parliamentary group webpage: a page on the website for each parliamentary group.

The Congress of Deputies also has a Parliament Channel and a Congress link to follow each day’s parliamentary sessions live. Similarly, there is a Documentary Archive to see past plenary, Permanent Deputation and Committee sessions, searchable by date or by parliamentary body. Additionally, a citizens´ service office attends to requests for information on the Chamber from institutions, bodies and the general public. As to publicising the work carried out by the members of parliament, only some of them have personal blogs, particularly deputies who are not from Madrid. Much of the contact with members of the public and interest groups and associations is inevitably carried out in an informal and opaque way, even within the Chamber. In any case, the general legislation on access to information in Spain makes it difficult to obtain concrete data on the Chambers’ internal management processes, except on contracting, which appears on 85 Parliament’s website. The procedure to ensure that the interests of deputies are made available to the public will have to be developed over the coming months.

1.2.3. Accountability (law) To what extent are there provisions in place to ensure that the legislature has to report on and be And, what is more important, discuss all these interests openly in the House’. 85 More information here. 48


answerable for its actions? Score: 50 The Spanish Constitution contemplates the existence of a Constitutional Court to act as the paramount interpreter of the Constitution. It is the sole organ of its type, has nation-wide jurisdiction and its powers are defined in article 161 of the Constitution. The Court is independent of all other constitutional organs and is solely subject to the Constitution itself and its Organic Law. Its main function is to ensure the constitutionality of all regulations having the status of law, whether promulgated by the State or by the Autonomous Communities. It exerts its control by means of appeals of unconstitutionality or questions of constitutionality. The former are direct and abstract appeals brought by the Prime Minister, Ombudsman, 50 deputies or senators or the regional governments or parliaments and are heard by the Court in full session and its two benches. This is the most important instrument of institutional control over Parliament. Questions of constitutionality are filed by judges or courts when they consider a regulation having the status of law might be contrary to the Constitution (article 35 of the Organic Law of the Constitutional Court, Ley 2/79). It also resolves constitutional conflicts, either between the State and one or more Autonomous Communities or between two or more Autonomous Communities, or between state constitutional organs. The other key instrument of control is through the elections. Members of Parliament are accountable to those they represent in two ways. On the one hand, by being close to their electors, listening and responding to their needs. On the other, by presenting the results of their action while in office or at the elections. Ultimately, the public decide with their votes whether their representative has fulfilled or not their expectations. But in a system with closed block lists, such as in Spain, it is to a great extent the party and not the individual deputy who is voted for. In most cases, the electors do not know those they are voting for, as revealed by the surveys carried out by the CIS. The deputies remain virtually unknown to their electors, especially in the major constituencies, like Madrid and Barcelona, but also in other medium-sized or smaller ones. As a result, the electoral system fosters a low degree of accountability for each individual deputy in his constituency and makes him highly dependent on his party, which is responsible for including or removing him from the list and, therefore, of his chance to being elected. With their vote, citizens make their representatives accountable for the work they have carried out, electing a new majority or confirming the existing one. But they also select their preferred programme 86 for the future and the politicians who are to implement it. In fact, party preference, previous voting patterns, the type of leadership, ideology and political and social contexts affect the electors’ 87 prospective or retrospective assessments. For an elector to have the fullest information possible it is necessary for him to know what has been done, how it has been done and why it has been done. Hence, a deputy must be permanently in touch with his constituency and provide information, and respond to his initiatives, in the framework of the existing legal and ideological/programmatic constraints. None of this is explicitly regulated or informally incentivised in Spain. As noted by Jiménez (2009), an additional problem regarding accountability in Spain is a lack of intelligibility, meaning that beyond the catchphrases of political confrontation at key moments regarding laws or policies, almost no members of the public is able to explain what decisions are being taken, why and how, since their representatives do not bother to explain them adequately. This has an impact on the public’s assessment of democracy and on increased abstention rates at the elections. It is important to highlight the right to petition Parliament, established in the current Constitution as a 86 87

Crespo y Martinez, 2006:109. Sánchez Cuenca y Barreiro, 1999. 49


variant of the fundamental right enshrined in a general sense in its art. 29. Petitions can be presented in writing, signed individually or collectively, while specific rules cover the prohibition of presenting petitions through demonstrations and the express provision of the Chambers' power to forward the petitions received to the Government. Finally, Congress has no specific legal mechanism establishing its obligation to be accountable to the public as to its expenditure, the type of aid it provides or how it manages its human resources. Nevertheless, oversight is exercised by the auditor general's office and by the internal legal services.

1.2.4. Accountability (practice) To what extent do the legislature and its members report on and answer for their actions in practice? Score: 50 In practice, many deputies and senators make themselves fully accountable for their work, accepting complaints and suggestions from their constituents or from interest groups and taking them to the Chambers. Naturally, this is easier to do in the smaller constituencies. Nevertheless, unfortunately, the work of a Member of Parliament in his constituency is no guarantee that he will continue to be included in his party's lists. The key factors are essentially dependent on internal party politics and on loyalty to the current leadership. Petitions to Parliament have proved to be a highly adequate mechanism with which to place demands from the public before these representative institutions. However, they have had no structural impact on the public's perception about the functioning and quality of democratic institutions, since the underlying problem remains unchanged: deputies have no real need to be accountable to their constituents, as it is the party that decides if they are to continue or not. Once in the lists, the public can vote for the party or not but have no way of eliminating candidates they do not like. As regards the right to petition, although all petitions must be presented in writing, the criteria for accepting them for consideration is highly flexible. Hence, it is common for petitions to be presented in handwritten form and to even be almost unintelligible, although they must comply with some minimum formal requirements, such as being signed originals identifying the author by name and address, as otherwise it would be difficult to acknowledge receipt. Paragraph two of art. 77 recognises the Chambers' right to debate and decide on the petitions received. The Congress of Deputies has a Petition Committee among its non-legislative permanent committees (arts. 46.2 and 49 of the Standing Orders of the Congress of Deputies), comprising one member from each of the parliamentary groups, in opposition to the general rule that requires committees to reflect the numerical importance of the groups in the Chamber (arts. 40 and 48.1). Analysing the activity of the Petitions Committee of Congress, it can be seen that there has been a steady increase in the presentation of petitions, from 760 in the 5th legislature, to 842 in the 6th to 2,156 in the 7th). In summary, the ease and lack of formalities of the right to petition the Chambers make it a recourse complementary to those, of a lesser or greater complexity (arts. 24, 53, 54, 105 of the Spanish Constitution), that are provided by Spanish legislation for citizens to protect their rights and present their demands, in such a way that the Petitions Committee serves to channel petitions to the appropriate recipient.

50


As regards immunity and inviolability, see the section on independence. In any case, it should be highlighted that the Spanish Parliament always authorises the indictment of its members when so requested by a competent court of justice. Finally, according to the deputies interviewed: ‘Access to members of Parliament is generally not difficult, either in the constituencies or in the committees. Perhaps slightly more so when an individual citizen is concerned, although it is rare for an insistent citizen not to be finally received by the deputy concerned. Nevertheless, representatives of sectors, entities, associations, companies or groups affected by a proposed bill generally have easy access to the deputies concerned through institutional or 88 informal meetings, e-mails or telephone calls. Sometimes, “access” can even be excessive’.

1.2.5. Integrity mechanisms (law) To what extent are there mechanisms in place to ensure the integrity of members of the legislature? Score: 50 th

The effort made in the 8 legislature to develop preventive instruments for Parliament to combat corruption by publishing a registry of interests should be assessed very positively. Nevertheless, it is still necessary to approve an ethical code, adequately regulate conflicts of interest, establish detection and monitoring mechanisms and determine a clearer penalisation regime. According to the Constitution of 1978 it is the electoral law that determines the circumstances that are incompatible with being a deputy or senator. Some of them, which are also causes for ineligibility, are listed in article 70 and involve being: -

A member of the Constitutional Court. A member of the higher levels of the Administration, except the members of the Government -who may or may not be members of Parliament-. The Ombudsman. Judges, magistrates and public prosecutors, when in office. Military personnel and members of the security forces, when on active service. A member of an electoral commission.

The Organic Law for the General Electoral Regime (Ley Orgánica de Régimen Electoral General, LOREG) completes the list of incompatibilities for members of Parliament as follows, focusing on specific sectors: The State Administration and Other State Organs The Law extends the Constitution's list of incompatibilities to other institutional offices: To the members of the offices of the Prime Minister, Ministers and Secretaries of State. To the President of the Court in Defence of Competition. To the members of the board of directors of Spanish Radio and Television (RTVE) To the Government delegates in regional harbour boards, hydrographical confederations and tollmotorway concessions. Accumulation of parliamentary office In accordance with law, it is incompatible to be: 88

Interviews with deputies. 51


-

A deputy and a senator simultaneously. A member of a regional parliament and a deputy in Congress simultaneously (although it is possible to be a member of a regional parliament and a senator at the same time).

The law allows members of the Congress of Deputies to stand as candidates in regional elections and members of regional parliaments to stand in national elections. What is forbidden is the accumulation of public office, hence, incompatibility can only come about after the election, which can in no way be invalidated. The only consequence is that the successful candidate must choose between one seat or the other. Public and private activities The electoral law is clear when it establishes that deputies and senators must have exclusive dedication to their parliamentary work. This means that they cannot carry out any other public or private activity or receive any payment from public funds. Nevertheless, the law does establish a number of exceptions that primarily affect: Members of Parliament who are also university lecturers. They may cooperate, within their universities, to educational or research activities in an extraordinary capacity... (157.4 LOREG). The management of merely personal or family assets (159.3 LOREG). Literary, scientific, artistic or technical production and creation, in addition to the publications they give rise to (159.3 LOREG). â&#x20AC;&#x2DC;Private activities other than those specified in section 2 of this article that are authorised by the respective commission of each Chamber, following the express petition of those concerned. Both request and authorisation are included in the Registry of Interests referred to in article 160 of the present lawâ&#x20AC;&#x2122; (159.3 c LOREG). Precisely with the aim of determining incompatibilities, deputies and senators are obliged to declare their assets and activities, that are then recorded in the Registry of Interests of Deputies and Senators (art. 160 of the LOREG; arts. 18 and 19 of the Standing Orders of the Congress of Deputies and arts 15 to 89 19 of the Senate). The plenary session of each Chamber decides on cases of incompatibility, following a report of the Committee of Membersâ&#x20AC;&#x2122; Status, in the Congress, and the Committee of Incompatibilities, in the Senate. Since July of 2011, as indicated above in the section of transparency, the content of the Registry of Interests has a public character. All the interviewees have commented that there is no code of conduct to limit the gifts received by members of Parliament or to establish their obligations in relation to the lobbies and define their post-mandate obligations, although all suggest that further progress must be made in this respect.

1.2.6. Integrity mechanisms (practice) To what extent is the integrity of legislators ensured in practice? Score: 50 Although it should be pointed out that corruption among members of parliament is infrequent, their integrity is far from being sufficiently assured in practice. For this reason, in June of 2011 the speakers of

89

Developed by an agreement between the Bureaus of the Congress of Deputies and the Senate at a joint session on 18 December 1995 regarding the Register of Interests. 52


the Congress of Deputies and of the Senate made the following proposals at the initiative of the parliamentary groups: ‘Regarding the Incompatibilities of Deputies and Senators it is unnecessary to reform the rules, since the law is so clear and demanding that it is difficult to see how incompatibility can be proclaimed more radically than it already is in our current legal framework. It is not therefore a modification of the law that is required but the more rigorous application of the law. For that purpose, the Committee of Members’ Status and the Committee of Incompatibilities should make of the condition of “absolute dedication” proclaimed in the current law the fundamental criterion of their decisions, ensuring that exceptional cases remain so and do not become the norm. Currently, exceptions have ceased to be so and have become a species of general rule, in contravention of the legislators’ original intention’. The proposal is expressly formulated in the following terms: 1. That the preparatory organs of the decisions made in the plenary sessions (Committee of Members’ Status and Committee of Incompatibilities) establish a new doctrine ‘to make effective’ the legal principle of absolute dedication contained in art. 157.1 of the LOREG and that this should be the basic norm to be applied in the terms established in section 2. 2. Those exceptions to the legal principle of absolute dedication are to be limited to those established by law, avoiding general resolutions or those whose motivation is not adapted to each specific case. 3. That these criteria be made known to the current members of Parliament and to those to whom it might concern in future in the 10th legislature so that neither ignorance can be alleged or unjustified expectations be generated. Finally, the speakers of the Congress of Deputies and of the Senate further make the recommendation to the political parties and organisations represented in the Congress and the Senate that the obligation regarding assets, income and interests of deputies and senators should be extended to all public officeholders in Spain, whether elected or designated. As regards transparency, publicity of assets and income, the following is proposed: 1. Modify art. 160.2 of the LOREG (which has already been done by Law 7/2011, of 15 July on the Registry of Interests of Deputies and Senators). 2. Before August of 2011, the joint Bureaus will modify their Agreement of 21 December 2009 so that in September of 2011 the web pages of the two Chambers include the declaration of assets and incomes of the members of Parliament. The appropriate forms for declaring assets will be approved by the joint Bureaus in order to guarantee the maximum transparency, with the only proviso that the declarer's security is guaranteed.

1.3. Role 1.3.1. Executive Oversight To what extent does the legislature provide effective oversight of the executive? Score: 75 Parliament plays an essential role in overseeing the executive, although conditioned by the existence or not of majority support for the government in the chambers. When there is an absolute majority oversight is far weaker. On the other hand, there is a lack of specialised technical advice that makes it more difficult for oversight to be exercised, although the situation has been improving thanks to, for instance, the Budgetary Office. 53


90

As repeatedly indicated, oversight has become increasingly important in parliamentary affairs. The Constitution's art. 66 establishes the basic functions of the two chambers, among which oversight is essential. There are two types of oversight: -

Without political responsibility, that has no immediate consequences for the Executive and does not lead to the government's dismissal. With political responsibility, that leads to the government's dismissal.

Oversight without political responsibility is the function of supervising by which Parliament monitors and verifies that the government's political-administrative activity is in accordance with the values and principles enshrined in the Constitution and with the political pledges on which it was elected (art. 99 of the Constitution). This type of oversight does not endanger the government's continuity at the political helm of the State. Among the instruments of oversight without political responsibility are the following: -

-

-

-

-

-

-

Request for information (art. 109 of the Spanish Constitution): the Chambers and the Committees can request all the information they require from the Government, its departments, any State authority or Autonomous Communities. Appearance of members of the Government, authorities and civil servants (art. 110 of the Spanish Constitution): the chambers and commissions can require their presence in accordance with art. 76.2, which establishes that it is compulsory to appear. Parliamentary questions (art. 111.1 of the Spanish Constitution): these are the chambers’ most traditional oversight instruments, by which they can obtain clarification on the various matters that are the Executive’s responsibility. They are of prime importance, more than for the debate they can give rise to in the chambers, for their public resonance when they refer to matters of general interest. Questions can be answered orally or in writing (art. 188 of the Standing Orders). Formal requests (interpelaciones, art. 111.1 and 2 of the Spanish Constitution): these are similar to questions. The main difference is that formal requests generally refer to matters of special political import and usually give rise to a debate which in many cases can lead to a vote in which the chamber defines its position on the subject under debate (art. 111.2). In fact, both parliamentary doctrine and practice agree that ‘formal requests’ are a ‘powerful’ oversight instrument. Motions or parliamentary discussion papers (art. 111.2 of the Spanish Constitution): these are agreements adopted by the Chamber’s plenary session that do not have the force of law and are directed at the Government because the chamber is not competent to act on the matter. They are not legally binding on the Executive. Investigation committees (art. 76 of the Spanish Constitution; Organic Law 5/1984, of 24 May, on the appearance before the Committees of Investigation of the Congress or Senate or of both Chambers): their object is essentially supervisory and of political oversight. The Standing Orders of both Chambers reiterate what is expressed in the Constitution, which means that investigation committees can be created to carry out surveys or studies ‘on any matter of public interest’. Individual and collective petitions (art. 77 of the Spanish Constitution): the chambers can receive individual and collective petitions, always in writing, which they can forward to the government. The latter has the obligation to explain itself, if required by the chambers.

Oversight with political responsibility is the supervisory function carried out by the Congress of Deputies (imperfect functional bicameralism), by which it contests the Government’s continuity at the helm of the state, demanding immediate responsibility. The main oversight instruments are: 90

García Morillo, J. (1985): El control parlamentario del Gobierno en el ordenamiento español, Madrid, Col. Monografías, Congreso de los Diputados. 54


-

Vote of investiture (art. 99 of the Spanish Constitution). By means of this mechanism the Congress of Deputies can express its confidence in the Prime Minister, who can then form a government. Vote of confidence (art. 112 of the Spanish Constitution), which has a dual nature: It is judicial instrument with which the Congress of Deputies can express disapproval of the Government's policies, withdrawing its confidence and causing its fall. It can be a weapon in the Prime Minister's power to strengthen his position before 91 Parliament at moments of special political difficulty. Confidence is granted by a simple majority. The effects of a vote of confidence are described in art. 114.1 of the Constitution. Motion of censure (art. 113 of the Spanish Constitution): on the initiative of the Congress of Deputies (with at least one tenth of the deputies, 35), it aims to bring about the fall of the government and at the same time its substitution by an alternative government (a constructive motion of censure). Therefore, it must include a proposal for an alternative candidate to the office of Prime Minister. Motions of censure require an absolute majority to be successful and their effects are set out in art. 114.2 of the Constitution. The Congress of Deputies also takes part in the designation of the holders of certain offices of state, thereby giving them the backing of the representatives of the people, for instance, the Ombudsman and the members of the Court of Audit, who are obliged to appear before the Chambers. Parliament has control over the budget. Articles 66 and 134.1 of the Constitution make provision for the legislative power to 'examine, amend and approve' the General State Budget prepared by the government. The plenary session of the Congress of Deputies approved in October of 2010 a law creating the parliamentary Budget Office, dependant on the Congress of Deputies' General Secretariat for technical advice on monitoring and overseeing the execution of the General State Budget (Law 37/2010, of 15 November).

1.3.2. Legal Reforms To what extent does the legislature prioritise anti-corruption as a concern in the country? Score: 50 Parliament has not played a very significant role in combating corruption. In fact, there are no coherent parcels of measures directed at halting corruption, but rather only partial reports concerning the 92 subject. It is only recently that the Mixed Parliamentary group has presented an organic bill on Principles and Measures Against Corruption and for Transparency in the Management of Public Affairs (122/000279) (BOCG 15 April 2011). The plenary session of the Congress of Deputies approved on 21 June 2011 a motion promoted by the ERC-IU-ICV group on measures to strengthen the credibility, transparency, austerity and democratic 93 oversight of the institutions and powers of the State. The initiative has gone ahead as an amendment agreed upon by all the parliamentary groups, with 334 votes in favour and one abstention. It calls on the Executive to process with all speed and diligence the Organic Bill to modify Organic Law 8/2007, of 4 91

There are several reasons for a Government to initiate this procedure: (a) to show public opinion its need to resign, having lost support in Congress; (b) to group together a divided majority; (c) to reinforce its position in Parliament; and (d) to substantially modify the political programme on which it was elected. 92 Interview with a Clerk of the Constitutional Committee. 93 Motion resulting from an urgent question by the Esquerra Republicana-Izquierda Unida-Iniciativa per Catalunya Verds parliamentary group on measures to improve credibility, transparency, austerity and democratic oversight of institutions and powers of the State (number 173/000222), approved by the plenary session on 21 June 2011. 55


July, on the funding of political parties, which was considered by the chamber on 20 April 2010. Similarly, the Congress of Deputies approved on 30 June 2011 a Resolution on Transparency and Open Government, by which it calls on the Executive to present the bill on Transparency and Access to Public Information and to promote an Open Government Strategy. The initiative approved by the Congress of Deputies 'seeks to submit to public scrutiny and debate the decisions that affect all in order to make democracy more participational and additionally to achieve a more effective oversight by the people 94 over the public authorities that represent them'. The Congress of Deputies calls on the government to: -

Present the bill on transparency and access to public information. Promote an Open Government Strategy in the Administration, including: Measures to foster the publication of information and data used by the public sector for the exercise of its responsibilities, for their free use and re-use by society in general, and The creation of channels to interact with the public in which the latter can express their opinions, call on, request, contribute and cooperate with the public sector with the object of enhancing mutual knowledge and promoting public participation and cooperation.

To all this should be added the rules approved over the past few years to prevent and combat corruption, as explained in the section on ‘Anti-corruption activities’.

94

Interview with the Secretary of Innovation and New Technologies, María González Veracruz. 56


2. Executive Table 15: Final score Executive Final Score Executive: 72 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms

Law

Practice 100 100 25 75 50

100 25 75 75

Public sector management

50

Legal system

75

Role

Summary The Spanish Executive operates in a parliamentary monarchy, in which the King is the head of state, but 95 has no executive functions. This assessment will only focus on the central government Executive, not on those of the 17 Autonomous Communities, as Spain has been strongly decentralised (having, in addition to the 17 regions, 8,111 municipalities). The executive has sufficient resources and independence to carry out its task. Nevertheless, its level of transparency is deficient since, among other factors, the deliberations of the cabinet are by law secret. Oversight by the legislative and judicial powers are adequate and the current Executive submits to an appropriate degree. Rules on conflicts of interest, ethical codes and economic and penal responsibility are much more highly developed. There is, however, a certain shortfall in the implementation of rules on incompatibility. In general, the executive has been more concerned about fighting corruption than in preventing it and in promoting integrity in the public sector. Structure and Organisation The Spanish Constitution, in its articles 97 and 98 establishes the government's functions and composition. According to article 97 of the Constitution and article 1 of the government law, the government is comprised of the Prime Minister, Deputy Prime Minister or deputy prime ministers whatever the case, or even none, depending on the wishes of the Prime Minister- and Ministers. The members of the government meet in the cabinet and in Delegated Committees. Title I of the government law details the responsibilities of the Prime Minister and cabinet. The Prime Minister leads the government and coordinates the action of its remaining members, who nonetheless are directly responsible for their ministries. Among other functions, it is the task of the Prime Minister to: 1. represent the government; 2. establish the government's political programme and determine the guidelines for its domestic and foreign policies and ensure their compliance; 3. propose to the King, after deliberation by the cabinet, the dissolution of the Congress, Senate 95

Article 56 of the Constitution establishes that the King is the symbol of the unity and permanence of the State and that â&#x20AC;&#x2DC;arbitrates and moderates the regular functioning of the institutions, assumes the highest representation of the Spanish State in international relations, especially with the nations of its historical community, and exercises the functions expressly conferred on him by the Constitution and the lawsâ&#x20AC;&#x2122;. All the competences attributed to him by article 62 of the Constitution must be endorsed by the Prime Minister, and the dissolution of Parliament, as foreseen in article 99 of the Constitution, endorsed by the President of the Congress of Deputies. 57


4. 5. 6.

or Parliament; propose to the Congress of deputies, following deliberation by the cabinet, any motion of confidence; propose to the King the calling of consultative referendums, after prior authorisation by the Congress of Deputies; and create, modify or suppress, by royal decree, ministerial departments and secretaries of state.

Spain follows the so-called 'chancellor principle' which gives rise to a strongly presidential system as it is the Prime Minister, not the government, who is 'invested' or appointed by the Congress of Deputies, and it is he who appoints the government he considers appropriate. It is the Prime Minister who proposes and submits to votes of confidence, who has the power to dissolve the Chambers, etc. As a result, there is a strong Prime Minister, who can have one or more Deputy Prime Ministers and a minister at the head of each ministry. Ministers are appointed and dismissed at the Prime Minister's discretion. There is also a collegiate structure for deliberating and making decisions: the cabinet. The cabinet has 96 competence over certain decisions and ministers must be convened to the meeting for the corresponding deliberation, although the final decision is in the hands of the Prime Minister. There are also Delegated Committees of the Government, whose object is primarily to examine matters of general interest related to the different ministerial departments that make up each Committee. Prior to cabinet meetings, the committee of secretaries and undersecretaries of state meet to establish the agenda. Cabinet meetings are an important source of support for the executive.

2.1. Capacity 2.1.1. Resources (practice) To what extent does the executive have adequate resources to effectively carry out its duties? Score: 100 It is very difficult to separate the government's resources from those of the Administration. In principle, ministers count on the resources of their departments and these are the result of the budgetary negotiations, with targets that are clearly linked to their policies and programmes. Some ministries have more resources at their disposal than others in accordance with budgetary priorities. Nevertheless, the Prime Minister and the deputy prime ministers have their own resources to carry out the task entrusted to them and those of the cabinet and of the Delegated Committees of the Government as a whole. Therefore, the resources that strictly appertain to the government, excluding those assigned to each ministry, are the sum of those of the Prime Minister, of the activities that are exclusive to the first 96

(a) Approve bills and send them to the Congress of Deputies or the Senate, whatever the case; (b) approve the bill for the General State Budget; (c) approve Royal Law Decrees and Royal Legislative Decrees; (d) agree on the negotiation and signing of international treaties, in addition to their provisional application; (e) send international treaties to Parliament in accordance with articles 94 and 96.2 of the Constitution; (f) declare the states of alarm and emergency and propose to the Congress of Deputies the proclamation of the state of siege; (g) agree on the issue of public debt or subscribe loans, when authorized by law; (h) approve the rules for developing and executing laws, after a prior report by the Council of State, in addition to any other pertinent regulations; (i) create, modify and suppress the governing bodies of ministerial departments; (j) adopt programmes, plans and binding guidelines for all organs of the General State Administration; (k) exercise any other responsibilities established by the Constitution, the law or other provisions. 58


deputy prime minister (that is, the resources not attached to the deputy prime minister’s function as minister) and of some of the resources of the second deputy prime minister and the Ministry of the Presidency. All these resources are incorporated to the budget of the Ministry of the Presidency, which in 2011 totalled €3.064.424.390, although only around €137 million were strictly assigned to the Executive. It also has 13,440 employees, although the number of those directly linked to the cabinet's work number no more than 2,000, of which the 406 advisors of the Prime Minister and deputy prime ministers have pride of place. These resources are sufficient despite the cuts. Resources available to the ministers are dealt with in the section on the public sector. Despite having no executive functions in the strict sense of the word, the Royal Household has a budget linked to the work carried out by the head of state, HM the King. The funds assigned in the budget for 2011 totalled €8.434.280.

2.1.2. Independence (law) To what extent is the executive independent by law? Score: 100 As laid out in the preamble to Law 50/1997, on the government (BOE of 28 November 1997), the 'Constitution of 1978 establishes the basic principles and criteria that should preside over the government's legal framework, its article 97 being the key provision in determining its constitutional position’. Article 97 establishes that the government ‘shall conduct domestic and foreign policy, civil and military administration and the defence of the State. It exercises executive authority and the power of statutory regulations in accordance with the Constitution and the laws’. Subsequently, article 98 further expands on some of these principles and includes a mandate to Parliament to further develop the rules of this constitutional organ. In any case, the government cannot be deprived of any of its attributes that have a constitutional origin unless the Constitution itself is reformed (‘institutional guarantee’). In contrast to an earlier parliamentary model, the parliamentary system of the Spanish Constitution of 1978 does not give Parliament the power to decide on the extent and structure of the other constitutional organs beyond what is expressed in the Constitution. The parliamentary system prior to 1945 considered it was Parliament’s right to determine ministerial structures, prevented the government from reacting against an unconstitutional law and did not regulate the government’s function in the Constitution, leaving such matters to the rules Parliament should decide to apply on each occasion. The Spanish Constitution’s articles 97 and 98 establish the functions and composition of the Government and its article 162, 1, recognises that it is legitimate for the Prime Minister to lodge an appeal of unconstitutionality in the Constitutional Court regarding a parliamentary act. Further, Title I of the Government Law regulates the Government’s constitutional position, in addition to its composition, and makes a distinction between individual and collegiate organs.

2.1.3. Independence (practice) To what extent is the executive independent in practice? Score: 100 Despite the fact that during the political transition to democracy the power of the military closest to the dictatorship was very strong and that they frequently attempted to interfere in the executive’s 59


decisions, Spain overcame even a coup d’etat staged on 23 February 1981 and managed to consolidate its democracy. After the coup failed and the social-democratic PSOE won the elections with an ample absolute majority in 1982, democracy was reinforced and the armed forces were reformed, putting an end to the previous attempts at unconstitutional interference. ETA has also tried to interfere in government decisions by terrorist action but the firmly democratic stance taken by each successive government has prevented blackmail from triumphing. Although it may seem that the Roman Catholic Church is in a very strong position, and still plays an important role, it has no capacity to impose decisions on the Executive. Finally, the role of the King has been extraordinarily important for the consolidation of democracy in Spain, especially as Commander in Chief of the armed forces. Nonetheless, once democracy became consolidated, the King’s influence has been limited to his constitutional role as arbiter and moderator but has never interfered in any way the Executive’s independence. In general, it cannot be said that the Executive has encountered problems regarding its independence. On the contrary, criticism has generally been levelled at its excessive power, at the increasingly presidentialist character of the Spanish political system, at the government’s control over parliament through its majority in the two Chambers and its strict voting discipline, and at the politicisation of the judiciary, given the government’s excessive influence on it. Of all these charges, it is impossible to deny that the Prime Minister has a role of extreme importance in Spain’s political system, since he appoints and removes ministers at will, is generally the leader of the party holding the majority, controls his parliamentary group by appointing its head and influencing nominations to candidate lists for deputies and senators, and plays a decisive role in appointing a large part of the members of the Constitutional Court and of the General Council of the Judicial Power in addition to the President of the Supreme Court.

2.2. Governance 2.2.1. Transparency (law) To what extent are there regulations in place to ensure transparency in relevant activities of the executive? Score: 25 The operation of the government in the Spanish system is based to a large extent on opacity. To start with, the Government Law itself establishes that its internal deliberations are secret (article 5.3). Ministers must swear or promise on taking office that they will maintain the cabinet’s deliberations in secret. There are no established criteria regarding what is to be decided by the cabinet, and it is the Prime Minister or the Minister of the Presidency who decides what is included in a session’s agenda. In any case, brief minutes must be kept, although in accordance with the rule of secrecy. Hence, the minutes are not public. In general, the rule is that neither the government’s agenda, nor the participants or the content of the cabinet meetings should be public. There is, however, information online regarding the Ministers’ and Prime Minister’s agendas, although it is not complete. The budget is public and its parliamentary monitoring is fairly transparent especially since the creation in November 2010, as mentioned above, of the Parliamentary Budget Office. The government must hand over a monthly report on the execution of the budget, another one every six months on the degree of execution of real investments and an annual report with the provisional settlement of the 60


previous yearâ&#x20AC;&#x2122;s budget. From the point of view of budgetary execution (General Budget Law), the General Intervention Board of the State Administration publishes a monthly report in the Official State Bulletin on operations regarding the execution of the State Budget and its modifications, treasury operations and any other considered to be of general interest. Annually it presents a summary of the main statements and documents that comprise the Accounts of the General State Administration. Bodies forming part of the public state sector render their corresponding accounting information to the Court of Audit by way of the General Intervention Board of the State Administration. In accordance with Law 5/2006, regulating the conflict of interests of members of the government and senior civil servants in the General State Administration, Ministers and Secretaries of State and all remaining senior office holders must present a declaration of assets at the commencement and finalisation of their posts and annually a copy of their latest income tax and capital gains tax returns. They must also provide information on the main activities of the companies in which both they and their families have interests. Spouses of senior office holders may voluntarily provide information on their income and assets. This law is supplemented by rules that establish the public character of the Registry of Activities of senior office holders and the publication in the Official State Bulletin of the assets of the members of the government and secretaries of state. The declaration of assets that ministers and secretaries of state must present to the Registry of Assets is published in the Official State Bulletin. Law 5/2006 created the Office of Conflict of Interests, under the Ministry of Public Administrations and with legally recognised functional autonomy. It is the organ entrusted with managing the Registries of Activities and Assets and is responsible for the custody, security and integrity of the data and documents contained in them. It can demand that senior office holders comply with the law. It must inform the government every six months on compliance with the law and the penalties imposed. It can detect noncompliance and investigate, but can only do the latter when there is a formal accusation and is authorised by the Ministry of Public Administrations. Finally, it is the body that opens disciplinary proceedings in accordance with the law and that proposes sanctions or authorises subsequent employment after ceasing to hold office.

2.2.2. Transparency (practice) To what extent is there transparency in relevant activities of the executive in practice? Score: 25 Since it is not compulsory, the Executive's information system does not include data on its agendas or future decisions. Neither is the public given access to draft bills for their opinion. Nonetheless, every Friday, after the cabinet meeting the government spokesman holds a press conference to comment on the most important decisions and respond to media queries. The budget is public and is published in the Official State Bulletin in addition to being available on the Ministry of Economy's website. It is also possible to follow the budget's execution through the State's auditing board. Debates in preliminary and cabinet meetings cannot be made public, as it is forbidden due to their secret nature. Prior to the cabinet meetings there is a meeting of the Committee of Undersecretaries and Secretaries of State, presided over by the first deputy prime minister or the minister of the presidency if the former delegates in the latter. The meeting is important because it decides what is to be passed on to the cabinet and what is not. Although secrecy is not required at the committee's meetings, the opacity of its debates and deliberations is absolute.

61


Ministers are appointed freely and are not required to appear in parliament before their appointment, so they are not obliged to present their plans and projects for their term in office. In practice, the assets of ministers and secretaries of state are in the public domain and have been published in the Official State Bulletin. The government has so far not approved any bill on access to information, so there is no possibility of any requests being presented in that respect. During the past year there has been one appeal from Access Info Europe to Spain's Supreme Court on the basis of a previous denial of access that was ratified by the national criminal court. Subsequently, requests for information by the Coalici贸n Pro Access and by private citizens have been rejected by administrative silence. The Government, in any case, presented Coalici贸n Pro Access Europe in April 2011 with a new draft bill on transparency and access to information for it to study and analyse, and presented another in June. There is concern that simple and easily comprehensible language is used, as required by the rules for Better Regulation, and there is even a manual for writing rules and reports in order to make them comprehensible to the average member of the public. Nevertheless, in practice, the rule is frequently ignored, as proved by the recent law of sustainable economy. In general, there has been an improvement during the last Government's term in office as regards the transparency of statistical and economic information. The General State Administration periodically publishes this information with previously announced calendars, quoting sources, methodological notes and methods.

2.2.3. Accountability (law) To what extent are there provisions in place to ensure that members of the executive have to report and be answerable for their actions? Score: 75 In accordance with article 26 of the Government Law: 1. the Government and all of its actions are subject to the Constitution and the rest of the nation's laws; 2. all Government actions and omissions are subject to oversight by parliament; 3. the action of the Government and of all organs and authorities regulated in the present law can be challenged in the contentious-administrative courts in accordance with the provisions of the law; 4. Government actions can be challenged in the Constitutional Court in accordance with the Organic Law regulating them. The rules regarding the Executive's accountability before the legislative power are: -

The Constitution (Title V; Tit. III; and other specific provisions). The Standing Orders of the two Chambers (Congress, 24 February 1982; Senate 3 May 1994, with amendments introduced by resolutions of the Presidencies). Law 50/1997, of 27 November, on the Government.

Additionally, the Executive is overseen by the judiciary, on the basis of article 9 (submission to the principle of legality), 24.1 (effective protection from the courts) and 103.1 (full subordination to the law) of the Constitution, and may also be called upon to give explanations to judges and courts, since according to article 106.1 of the Constitution the courts oversee the Administration's power to make 62


regulations and their legality. They also ensure the Administration does not act with full discretion, since it must act in a manner coherent with the ends it must serve, which in practice implies controlling its discretion and even presenting a judicial request for the grounds on which decisions have been taken, even in cases where the law recognises the Administration's discretionary powers. In general terms, the Government's administrative acts, according to article 54 of the Law on the Common Legal Framework and Administrative Procedure, should be based on reasoned motives, with a brief outline of the facts and fundamental points of law involved when limiting subjective rights or legitimate interests, resolving ex officio revisions of provisions or administrative acts, appeals or claims against administrative decisions or claims, or departing from the criteria followed on previous occasions or from the decisions of consultative organs or if issued in the exercise of discretionary powers. Oversight of political acts is more complex, since in principle they have a purely political character and affect relations with other constitutional organs, and are as such non-administrative. Oversight of political acts is political and is exerted in Parliament and by public opinion through the media, although it can also be judicial. For instance, it can be controlled by the contentious-administrative courts if the correct procedures have not been taken or legality has somehow been breached. Furthermore, the Constitutional Court can also intervene if it is understood that the government has acted contrary to its constitutional duty. Article 24 of the Government Law lays out the procedure for drafting a bill, in which throughout the process those responsible must take into account, in addition to the required reports, opinions and approvals, as many studies and consultations as may be considered appropriate to guarantee its pertinence and legality. Once drafted, if the bill affects the rights or legitimate interests of the citizens, they must be heard over a reasonable term, never less than 15 working days, directly or through organisations or associations recognised by law to represent them and whose object is directly related to the bill. The procedure chosen to hear the citizens should be duly justified in the file opened by the organ approving the hearing. Furthermore, if the bill's nature makes it advisable, the public must be informed over the appropriate period. Finally, the members of the Government are subject to penal, accounting and administrative responsibility. Nevertheless, responsibility for failing to comply with the ethical code remains fairly diffuse. Although penal responsibility is established in article 102 of the Constitution, it has certain peculiarities. First, Government members enjoy immunity, which means that only deputies can initiate proceedings and obtain authorisation to proceed, although in practice this is just a formality. Penal proceedings against members of the Government are heard in the penal division of the Supreme Court. There is a special procedure for cases of treason or against state security. Additionally, members of the Government who with malicious intent or gross negligence adopt resolutions or carry out acts that infringe the Budgetary Law are obliged to indemnify the Treasury for the damages incurred as a result of them, regardless of the penal or disciplinary responsibilities involved. There are also penalties for noncompliance with the regulations on incompatibilities and conflict of interest.

2.2.4. Accountability (practice) To what extent is there effective oversight of executive activities in practice? Score: 75 Legislative and judicial oversight function adequately and the government normally responds to official 63


requests from both powers. As to the legislative power, there are a whole series of periodic or permanent instruments for controlling the Executive (see legislative pillar). The following data are for this legislature (as at 17/III/2011): Oral control: a) Answers of members of the government to oral questions: at plenary sessions in the Congress: 1,262 (Speaker: 159) at plenary sessions in the Senate: 1,024 (Speaker: 63) b) Formal questions: Congress and Senate: at plenary sessions in the Congress: 200 at plenary sessions in the Senate: 145 c) Appearance of members of the Government, at both plenary sessions and committees: 614 in the Congress and 192 in the Senate. Written control: In the previous legislature 170,000 questions were made and 150,000 answered, while so far in the present one 134,000 questions have been made and 118,000 answered. In practice, interested parties are usually consulted before approving bills or regulations of a general character, although not always. The Executive is audited annually by the Court of Audit and there is no interference in this task. The outcome is published, as are the Court's auditing reports. Recently, in response to questions from the Court of Audit, the information provided in the state accounts has been augmented by including data on national accounting and the clearance of operating and capital budgets in public sector enterprises and foundations. Penal control over the members of the Executive is effective and, in fact, a Minister of the Interior and a Secretary of State were imprisoned on account of the 'dirty war' against ETA (the GAL affair). Administrative control derived from the regulations on conflicts of interest are, however, deficiently applied in practice.

2.2.5. Integrity mechanisms (l aw) To what extent are there mechanisms in place to ensure the integrity of members of the executive? Score: 75 Although there are no rules on ‘whistle-blower protection’, it can be said that the rest of the regulations are in place. There is a Code of Good Score, whose object is to offer ‘the citizens a commitment that all senior office-holders in the exercise of their functions must comply not only with their obligations as laid down by law but must also be inspired with and guide themselves by ethical principles of conduct that have so far not been made explicit in regulations’. Having described their object, we will now look at them in some more detail. The following are some of the principles with which senior office-holders are obliged to comply: 1. Information transparency: They shall provide information to the public on the functioning of the public services entrusted to them, while any information campaign must include nothing but objective data. 2. Custody of documents: 64


They shall guarantee the permanence of documents for their transmission and delivery to those subsequently entrusted with government affairs. 3. Dedication to public service: Senior members of the State Administration shall abstain from accepting employment and senior management positions in organisations that limit the availability and dedication to their political office. 4. Austerity in the exercise of power: They shall avoid any inappropriate or ostentatious external manifestation that is contrary to the dignity with which public office should be exercised. 5. Prohibition on accepting gifts: Any gift, favour or service under favourable conditions should be refused if, beyond the limits of normal courtesy or social convention, they might condition the fulfilment of the tasks entrusted. In the case of valuable presents, they will become the property of the State. 6. Promotion of the cultural environment: Protection of the cultural environment and of linguistic diversity should guide higher office-holders in the exercise of their duties, as well as the protection of the natural environment. 7. Protection of and respect for gender equality: In all administrative tasks and, especially, when making decisions, they shall seek to promote respect for gender equality, removing any obstacles they may encounter in this respect. 8. Objectivity: Higher office-holders shall act on the basis of fundamentally objective considerations in pursuit of the common good, disregarding any other factors that might be motivated by personal, family, corporate or any other interests that might be contrary to this principle. They shall abstain from any type of activity that might compromise the Administrationâ&#x20AC;&#x2122;s objectivity. 9. Impartiality: They shall abstain from any private activity or interest that might risk generating a conflict of interest regarding their public office. 10. Neutrality: They shall not use their influence to speed up or resolve administrative procedures unless it is justified. Annually, in accordance with the Code, the Ministry of Public Administrations must present a report to the cabinet on any infraction of these ethical principles with the object of correcting any erroneous procedures and proposing the appropriate measures to ensure the objectivity of the Administration's decisions. Punitive measures can include dismissal. As regards the Law for Regulating Conflicts of Interest among members of the government and higher office-holders in the General State Administration, its aim is to 'establish the obligations incumbent upon the members of the government and higher office-holders in the General State Administration to prevent situations that may give rise to conflicts of interest'. The most important features of the law, approved by Parliament on 10 April 2006, are as follows: 1. Incompatibilities: stricter, more demanding and clearer: 65


Higher office-holders will be fully dedicated to their posts that will not be compatible with any other office, whether public or private, on their own account or on that of others, and will therefore receive no other remuneration. Furthermore, they must abstain from accepting any position or office, even unremunerated, in organisations or foundations that might limit their availability and dedication to their public responsibilities or that might give rise to a conflict of interest. 2. Limitations on the exercise of private activities: For the two years following the termination of their period in office, higher office holders will not be able to be employed in enterprises or private companies that are directly related with the competences they held. It should be highlighted that in the two years subsequent to leaving public office neither will they be able to sign technical assistance contracts with the Administration. In order to control all these limitations, the law establishes that: (a) on leaving office, higher office holders must inform the Office of Conflict of Interest of the activities they intend to carry out in the private sector before initiating them; (b) the Office must analyse the situation and consider whether the prohibition is being violated; (c) the Office communicates its opinion to the party concerned; (d) the party concerned can provide a reply; (e) the Office submits the proposal to the Minister, who adopts the final decision. 3. Declaration of assets and rights: See above. 4. Declaration of private interests: Higher office holders must provide a detailed declaration of their private interests, including any they may have had or represented during the two years previous to their appointment. The declaration must be sent to the Register of Activities within one month of taking up the appointment. They must also declare all activities, whether remunerated or not, in which they engage directly or through representatives. They have three months to present a declaration to the Register and must also declare any change in the existing situation. The declaration should be complemented with another indicating all activities, remunerated or not, carried out in the two years previous to their appointment. This must also be done within three months. Finally, they must declare all activity, remunerated or not, in which they intend to engage after they leave public office. This must also be done within three months, and in any case before the declared private employment is taken up. 5. Control and management of properties and financial assets: The stocks of higher office holders will be administered in a â&#x20AC;&#x2DC;blindâ&#x20AC;&#x2122; fund, without the knowledge of those concerned. Furthermore, higher office holders may not possess more than 10% of a company with public contracts, that is a concessionary of public services or that receives public subsidies. Should this be the case, they have six months to sell their shareholding. 6. Penalties: Higher office holders are subject to special penalties, the opening of a file and publication in the Official State Bulletin and notification to the employer who breaches the rules of compatibility. Those contravening the rules of compatibility will be dismissed from public office, lose their right to a pension and refund any inappropriately received salaries. The company involved will cease to obtain contracts from the central, regional and local administrations if it decides to go ahead with employing a higher office holder who contravenes incompatibility during the entire period in which it is applicable. 66


Higher office holders who infringe the regulations will be ineligible for further office for a period of between five to ten years.

2.2.6. Integrity mechanisms (practice) To what extent is the integrity of members of the executive ensured in practice? Score: 50 As regards the Code of Good Score there are two aspects that allow for some criticism: the penalties and the monitoring of compliance. The Code's first draft included a penalty system for non-compliance with the principles it listed, including dismissal. Nonetheless, the definitive document failed to include the penalties and only made reference to abstract 'appropriate measures' to be taken by the cabinet in the event of non-compliance. Additionally, according to the Code, the Ministry of Public Administrations must notify the Cabinet on an annual basis on compliance with the Code and of any possible failures to do so by higher office holders with the object of correcting mistaken procedures and proposing improvements. But it says nothing about whether the report must be made public or not. The consequence of these two options is that non-compliance might not necessarily lead to penalties or dismissals, making the Code a dead letter. Furthermore, since the report can be secret, it might not even be made, saving the Minister from the difficult trial of informing his colleagues that they or their teams have acted immorally. After five years in force, there has not been a single notification. Neither have there been seminars or meetings in which those affected have debated the Code or its implications. As regards the law of conflicts of interest, its implementation has also been deficient. The most serious defect has been the final regulation of the Office of Conflicts of Interest. On the one hand, it has been given operational autonomy. On the other, it has been placed under the authority of the Ministry of Public Administrations. In actual fact, dependency annuls operational autonomy, particularly when the latter has not been sufficiently defined. It should be borne in mind that the Spanish model of administration is based on the principle of hierarchy, as constitutionally established and practised formally and informally in daily practice. It must be stressed that the Office: 1. has neither its own budget or staff; 2. has no right of access to fiscal or tax data, controlled by the Tax Office, making it very difficult to detect fraud; 3. can engage in no investigations unless formally authorised by the Minister; 4. cannot impose penalties, only propose them. Its action in two recent cases has been controversial. The first is the case of former Prime Minister Aznar, who apparently received â&#x201A;Ź10.000 per month through his company Famaztella S.L. from the group 97 owned by Rupert Murdoch and, according to some opinions, this was incompatible. The other important case recorded in the past three years involved the head of the Prime Minister's Economic 98 Office, who became the chairman of the construction lobby immediately after leaving public office. There have been no subsequent important cases in this respect.

97 98

More information here. More information here. 67


2.3. Role 2.3.1. Public sector management (law and practice) To what extent is the executive committed to and engaged in developing a well-governed public sector? Score: 50 In accordance with Law 6/1997, of 14 April, on the Organisation and Functioning of the General State Administration, the Prime Minister coordinates and directs the Ministers; in turn, the latter can decide on defining, executing, controlling and evaluating the sectoral policies under their remit. In general, the General State Administration is organised and acts in full compliance with the general principle of legality and in accordance with other principles such as hierarchy, efficacy in meeting the prescribed objectives, efficiency in assigning and utilising public resources, programming and developing targets and controlling their management and results, responsibility for public management, rationalisation and streamlining administrative procedures and the material aspects of management. On the basis of these principles, the Executive should have a results-oriented management system in place, an integrated plan to control the Administration's efficacy and efficiency , in addition to rules to ensure the evaluation of policies and programmes, but to date no such instruments have been created. The approval in 2007 of the Basic Statute for Public Employees established an ethical code, although its 99 implementation and control are clearly in need of improvement. It is also evident that disciplinary regulations are, except on rare occasions, used very sparely, particularly considering that the track record of absenteeism, inefficiency and low performance of some civil servants would certainly call for its application. There are no systematic evaluations of corruption risks, or any programmes for training and advice in ethics. Internal whistle-blowing in cases of corruption is not fomented and neither is there a system in place to protect those who make such accusations.

2.3.2. Legal system To what extent does the executive prioritise public accountability and the fight against corruption as a concern in the country? Score: 75 See the section on anti-corruption activities. To this should be added the Law on Sustainable Economy Law 2/2011, of 4 March- and its measures to foster transparency. On the whole, it can be said that there is an adequate concern for the problem but that the successful implementation of several of these measures is another matter. Finally, members of the government have publicly stated the importance of combating corruption, but it has been especially within Parliament itself that the most important and demanding statements have been made, such as in the Minister of the Interior's appearance on 14 October 2009 (File number 172/000122): 'In any case, it is evident that the State has at this time mechanisms to combat corruption, that these mechanisms can be improved upon and that, therefore, your proposal and the suggestions of your

99

Interview with expert jurists. 68


group are welcome, starting with the modifications to the Penal Code, and I wish all our groups can realise that this problem of corruption affects us all, essentially because it affects the political system itself. Hence the government's concern, shared by its parliamentary group, and hence my gratitude for the question raised by your group'.

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3. Judiciary Table 16: Final score Judiciary Final score Judiciary: 61 Capacity 56 Governance 63 Role 63

Indicator Resources Independence Transparency Accountability Integrity mechanisms

Law 50 100 75 75 75

Practice 25 50 50 25 75

Executive oversight

75

Corruption prosecution

50

Summary The Judiciary is independent, carries out its activities impartially and is usually honest. Nevertheless, there are insufficient human resources and organisational problems. The accountability of both the judicial system and of the judges can be improved, as can the regulations governing their integrity. Structure and Organisation According to the Spanish Constitution, justice derives from the people and is exerted by the Judiciary, made up of the courts of law and tribunals, embodied by magistrates and judges, whose function is to administer justice. The law courts and tribunals have exclusive jurisdiction in civil, criminal, contentiousadministrative, social and military proceedings. Hearing and deciding in these proceedings involves handling and deciding on the merits of cases brought before them by the parties involved, whether institutions or private individuals. Also, in cases where the law permits, courts of law and tribunals hear and decide on cases that do not involve a conflict between parties. Such cases are called voluntary jurisdiction proceedings (adoption, incapacity, etc.). The Constitution guarantees that the essential principles necessary for the correct functioning of the Judiciary are respected. The Judiciary is independent of the other powers of the State. Judges and courts are organised territorially (municipalities, judicial districts, provinces, Autonomous Communities and the State) and by subject matter (ordinary: civil, criminal, contentious-administrative and social; special: military). Courts of first instance have only one magistrate or judge while other courts of law have several and decide by majority vote. The Judiciary is governed by the General Council of the Judicial Power (GCJP), which has nationwide competence. It is presided over by the President of the Spanish Supreme Court and made up of 20 members appointed by the King on the proposal of the Senate and the Congress of Deputies. The GCJP has the authority to select and appoint magistrates and judges, to propose to the King the appointment of Presidents and judges of all the nation's courts of law and to act in administrative matters and questions of inspection and discipline.

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Table 17: Organogram of power

3.1. Capacity 3.1.1. Resources (law) To what extent are there laws seeking to ensure appropriate salaries and working conditions of the judiciary? Score: 50 No specific budgetary endowment, as a fixed percentage of GDP, is defined in the General State Budget for the Judiciary. Salaries and conditions depend on the state of the national economy, as in the rest of the public sector. In any case, the General Council of the Judicial Power prepares and, once approved, executes its own budget. With this it finances its institutional activities, focused on maintaining the 71


Judiciary's independence, although this expenditure only accounts for 2% of the Judiciary's total expenditure. The Government, through the Ministry of Justice, funds the administration of justice throughout the whole country, except in the eight Autonomous Communities to which judicial power has been devolved. But even in the latter the central administration is responsible for the salaries of judges, prosecutors and court clerks. In general terms, the budget for the Judiciary in 2010 amounted to â&#x201A;Ź3,867,828,013, a 7.5% increase over 2009 (â&#x201A;Ź3,598,449,233). This is equivalent to 0.36% of Spain's GDP and represents an expense of â&#x201A;Ź82.30 100 per capita. The Ministry of Justice is responsible for 42% of this amount, while the Autonomous Communities to which competence in the Judiciary has been devolved are responsible for 56%. The GCJP receives 2% of the total budget. The Judiciary's budget has increased steadily since 2004. Table 18: Budget Judiciary Year Year-on-year increase

2005 +12,72%

2006 +4,46%

2007

2008

+10,51%

+14,94%

2004-2008 + 49,57%

There are 3,543 courts staffed by one judge and 307 collegiate courts. There are 4,984 judges, or 10.6 for every 100,000 inhabitants. Of them, 2,373 are men although in the past few years the number of women entering the judicial profession is more than double that of men. Additionally, there are 7,682 magistrates' courts, 4,115 court clerks and 43,743 judicial civil servants. The negotiation of salaries for judges is regulated by Law 15/2003. This law guarantees that the salaries are index-linked and that the remuneration system is changed accordingly, with the participation of representatives of the judges' governing body, the GCJP. With regards to other resources, there is no overall model for common services. Besides, offices are highly dispersed and, according to the experts consulted, there clearly are an insufficient number of them.

3.1.2. Resources (practice) To what extent does the judiciary have adequate levels of financial resources, staffing, and infrastructure to operate effectively in practice? Score: 25 The greatest deficiencies in terms of resources are in the number of judges in relation to the number of courts and the workload. Although auxiliary staff increased over the past few years, there has been a certain bottleneck as the numbers of judges and court clerks have not increased in the same proportion. Furthermore, there is some deficiency in capabilities, compounded on occasion by the lack of specialised training for auxiliary personnel. When looking at the salaries of court clerks, administrative personnel and judges, one could argue that especially the judges are not well paid in relation to the income of practising lawyers or other professionals of similar status in the private sector. In any case, as this is a highly subjective question, a comparison would be necessary with other bodies of the state administration and with the average level of salaries in the country. Salaries of auxiliary personnel vary according to Autonomous Community. An

100

La justicia dato a dato, 2010, CGPJ, June 2011. 72


undesirable consequence is that some of them might be paid more than the judges themselves. Some years ago a labour productivity model was adopted but has not resolved the problems it was designed to correct regarding the improvement of incentives for productivity. In general, judges are unsatisfied with their remuneration, with 57% quite or very unhappy with their salaries. Even so, they are less 101 satisfied by the social recognition they are given, with only 12% quite or very satisfied. As noted before, the greatest problem in terms of resources relate to the workload. This is one of the major weaknesses and deficiencies in Spain's justice system. The excess workload derives from the mismatch between the number of cases brought before the system and its capacity to deal with them. The reasons for this inability to deal with a growing number of cases are both the lack of a sufficient number of judges and courts and of efficient instruments, such as the use of new technologies, the streamlining of procedures or the more intensive use of alternative methods of conflict resolution. In 2010, 9,355,526 new cases were brought to court, of which 9,217,395 were resolved and 3,225,063 left pending. The jurisdiction with most cases pending is the contentious-administrative, followed by the 102 civil courts. These data are in accordance with the opinion of the judges themselves, who point to their workload as the main problem (70% consider it excessive), followed by the lack of time to devote enough study to the cases (65%), the faster than advisable way in which they are processed (55%) and 103 the lack of sufficiently trained staff (53%). The financial resources of the Judiciary are provided by each of the competent territorial administrations (Ministry of Justice or Autonomous Communities), leading to significant inequalities in the resources assigned to each of them. For instance there is a wide divergence in the resources available for supporting services, such as new technologies, whose adoption is still not widespread despite efforts being made to incorporate them to judicial procedures. There are still considerable deficiencies in information technology, with resources becoming obsolete and no significant use being made of newer technologies. Only recently, with the approval of the Justice Modernisation Plan, have digital files and other technological resources started to be adopted. On the other hand, good use has been made of databases, libraries and training, whose management has been entrusted to the GCJP. Infrastructure deficiencies are also a problem. There is significant difference depending on whether the infrastructure is dependent on the Autonomous Communities or the Ministry of Justice. There is an ongoing debate on delivering common services and judicial offices serving several courts at a time. Even so, only 24% of judges consider that this factor hinders their professional activities. Finally, it is important to highlight that he judges depend on three different authorities: the GCJP, the Minister of Justice and the Autonomous Governments. This tends to create management difficulties.

3.1.3. Independence (law) To what extent is the judiciary independent by law? Score: 100

101

V Encuesta a la carrera judicial, CGPJ, June 2010. La justicia dato a dato, CGPJ, June 2011. 103 V Encuesta a la carrera judicial, CGPJ, June 2010. 102

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The rules establish a series of guarantees to ensure the effective independence of judges, which in turn enables them to be impartial. Among these guarantees is a system of access and promotion to a judicial career and the Judiciary governing body. The Spanish Constitution of 1978 recognises the principles of impartiality, independence and that judges are irremovable. In accordance with the principle of impartiality, it is forbidden for judges to hear and decide in cases in which they might be an interested party, either personally or as representatives of others. Judges are obliged to abstain from intervening in such cases and in the event of doing so an objection may be filed by the injured party. In accordance with the principle of independence, the courts of law are independent of any authority or person in the exercise of their jurisdictional powers, even in regard to higher courts and the Judiciary's governing bodies. Finally, in accordance with the principle of judges being irremovable, they cannot be transferred, suspended, dismissed or be made to retire for causes other than those contemplated by the law and with the appropriate guarantees. In the event of disciplinary proceedings being opened, there is a suitably regulated procedure supervised by the GCJP. The judicial career is regulated in accordance with these principles. As regards access to it, judges are chosen by competitive examination, guaranteeing that appointment is based on merit and competence. Nevertheless, there is a reserve process to gain entry to the career for other professionals in the judicial sphere through a civil service examination. Judges are irremovable and appointments are safeguarded against manipulation by establishing seniority as the only criterion for promotion or transfer. There is an exception for the higher appointments where procedures are based on examinations where there is a greater scope for discretionality. Judges are considered to be generalists as they belong to a single corps and are therefore able to serve in all courts and tribunals. As regards the guarantees on authority over the judiciary, the Constitution of 1978 took the independence of judges and their strict subordination to the law as one of its guiding principles. This was in principle a reaction to the norms prevailing in Francoist times. With this object in mind it created the institution of the GCJP, which is responsible for all decisions on the status of judiciary personnel, thereby reducing the risk of direct political interference. Additionally, the appropriate balance in appointments to the GCJP was ensured by leaving it to the representative institutions of the people's sovereignty, i.e. the Congress and the Senate. The Constitution's treatment of the issue of the separation of powers is completed by: -

A strict regime of incompatibilities for judges. The courts being given control over the government's rule-making powers and over the legality of its administrative acts. The creation of the Constitutional Court, which protects fundamental rights against any infringement by the Executive or the Judiciary as well as decides on the constitutionality of laws.

The GCJP comprises 20 members and a President, elected by GCJP itself, who is also President of the Supreme Court, thereby underlining his autonomy. The GCJP is defined as the governing body of the Judiciary. Following a number of reforms, its function today goes beyond that strictly defined in the Constitution. Its responsibilities encompass regulating its own administrative structure, appointing, administrating and managing its staff and budget, the initial and continuing training of judges, producing reports on all laws in force and drawing up an annual report on its own activities. The GCJP is currently made up of 12 members from the Judiciary and eight from other spheres of the legal world. The President of the GCPJ is also from the Judiciary. They are all chosen by the Parliament 74


(Congress and Senate) through a majority vote of three-fifths. In 1985 a new appointment system was proposed, in which it would be the Parliament that would nominate the members rather than the judges themselves. As a result of the refusal of the opposition party and of the judges' largest representative association, in 2001 there was a final reform (State Pact for the Reform of Justice) which led to an intermediate system which allowed the judges' associations to retain a significant power of st appointment. Organic Law 2/2001, 21 of June 2001, modified Article 112 of the Organic Law on the Judicial Power. The law attempted to find middle ground in which the election of the members originated from within the Judiciary. The judges´ associations in cooperation with the active judges present a list of 36 candidates to Parliament. First Congress chooses six members after which the Senate chooses another six from the remaining candidates. Article 113 states that the remaining eight members are to be chosen by both Chambers with a majority of three-fifth. In order to be a candidate, Article 122.3 of the Constitution states that a minimum requirement for candidacy is at least 15 years of outstanding professional legal experience. Currently, all the GCPJ's members belong to one of the judges' associations.

3.1.4. Independence (practice) To what extent does the judiciary operate without interference from the government or other actors? Score: 50 As a result of the system for access to the Judiciary, in practice judges can act with independence, especially in courts of first instance, provincial courts and higher courts of law. It should be highlighted that the existing regulations guarantee the independence of judges and that this is undoubtedly the case in the courts staffed by a single judge. As regards the National Central Court (Audiencia Nacional) and the Supreme Court there are, however, suspicions of a lack of impartiality, attributable to the system for appointing their members. The suspicions regarding their partiality is, on the one hand, difficult to substantiate and, on the other, very serious, as it gives rise to a mistrust in the administration of justice and the discredit of the judiciary as a whole, not only of the judges in these particular courts. Seventy-seven per cent of judges are in favour of proposing a system different from the current one to appoint the governing body of the General Council for the Judicial Power and the members of the Supreme Court, the National Central Court and the Provincial courts. Interference or suspicions of interference are due to the current politicisation of the General Council of the Judicial Power, the organ entrusted with appointing the members of those courts. The Council is currently highly politicised as a result of what can be considered a failure in the method of making appointments, which has proved to be incapable of eradicating the quota system, preserving the possibility of political interference and of blocking practices of the political groups in Parliament. In fact, the current Council took 18 months to be appointed due to the inability of the parliamentary groups to agree on who its members should be. Finally, the appointments were made by quota, reproducing within the Council the competition and polarisation prevailing in the Spanish political party system. Some of those interviewed, however, suggested that the main interferences were not directly from the political sphere but from the media. The greatest risks to independence derive from the increasing judicialisation of politics (with political disputes being resolved in court) and from the consequent politicisation of the judicial system, which the system of appointments to the General Council of the Judicial Power only aggravates. The political 75


parties have infiltrated the process of appointing members to the Council, thereby also influencing the appointments to the courts. In practice, this means that the Judiciary is independent at the base, where there is still a solid culture of independence, but politicised at the top.

3.2. Governance 3.2.1. Transparency (law) To what extent are there provisions in place to ensure that the public can obtain relevant information on the activities and decision-making processes of the judiciary? Score: 75 Statistical information, appointments of judges and their transfers are fully publicised. Court hearings are public except for exceptional and justified reasons or in very specific jurisdictions (minors). The agreements of the General Council of the Judicial Power are also made public and there is also access to information on dissenting votes in the collegiate courts. The examinations for the appointment of judges in the provincial and other higher courts have now also been made public. As regards reports on activities and results, the Council publishes judicial statistics on its web page as well as reports on perceptions and other data, generally of a very high quality. The Council's web page is accessible and user-friendly. In summary, judicial statistics, activity reports, Council decisions and appointments and transfers of judges are accessible to the public on the Council's web page or in the Official State Bulletin. However, there is no specific obligation for members of the judiciary to declare their income or assets.

3.2.2. Transparency (practice) To what extent does the public have access to judicial information and activities in practice? Score: 50 The public's access to information is effective although there are very subtle filters, such as those related with understanding procedures and resolutions and the impossibility of accessing files other than physically (electronic files are not yet in use), that prevent in practice a citizen's easy access to information and that in many cases become an insuperable obstacle. There is transparency as regards jurisprudence. In general, it does not seem to be the Judiciary's intention to conceal information, there is a very strong image of inaccessibility. Even so, there is scope for greater transparency, particularly as regards the General Council of the Judicial Power's functioning and budget. Furthermore, its web pages should be simpler from the citizen's point of view. In summary, the perception of justice being inaccessible to the people affects the Judiciary's image of scant transparency. Another problem related to transparency is the reliability of judicial statistics, since there is no electronic system to collect data, which are frequently gathered by civil servants with the consequent effect on their trustworthiness.

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3.2.3. Accountability (law) To what extent are there provisions in place to ensure that the judiciary has to report and be answerable for its actions? Score: 75 In general, there are basic regulations to ensure that judges report their activity and are answerable for it. This is especially clear in relation to the possibility of citizens being able to channel their complaints about judges and when necessary for the General Council of the Judicial Power to open disciplinary proceedings and impose the appropriate sanctions. If misconduct is particularly serious, penal proceedings can be initiated. But there are no specific regulations for the Judiciary itself to be accountable beyond those affecting all other public institutions, such as the control over its budget exercised by the Court of Audit.

3.2.4. Accountability (practice) To what extent do members of the judiciary have to report and be answerable for their actions in practice? Score: 25 This is probably the issue on which there is a greater distance between what should be done and what is done in practice, since despite the existence of rules and regulations to guarantee responsibility, they are not particularly effective to ensure accountability. There are several indicators that point to this conclusion. First, judicial decisions are usually expressed in language that is not easily accessible to the public, but only to practitioners like lawyers and solicitors. The legal recourse to appeals and complaints allows decisions to be contested before higher authorities -judicial or governmental-, which is more effective than disciplinary proceedings. It is quite difficult for a judicial decision to give rise to an indemnity, partly precisely to safeguard the independence of judges. And it is unusual for one judge to convict another for illegal conduct. According to the experts consulted, disciplinary proceedings should be more rigorous, at least as regards deadlines, since in the case of minor infringements, for instance, rules are applied very laxly with the result that in many cases procedures become void with no decisions having been reached. Furthermore, although there are mechanisms in place to control what is done by the Judiciary, with citizens being able to file complaints, most of them are dismissed, which again leads to a strong perception of corporatism in the Judiciary. Most of the complaints that are upheld concern undue delays and poor service. It is important to mention that complaints do receive replies. Unfortunately the opacity reflects in the fact that these complaints do not get published online. In any case, information is received from the General Council of the Judicial Power through the annual publication of a report on its activities, although it has no obligation to do so. Similarly, the General Council publishes judicial statistics, which are not mandatory either, but which have been issued regularly for years. The Council's President informs the Congress of Deputies of his activities, despite having no obligation to do so. 77


3.2.5. Integrity mechanisms (law) To what extent are there mechanisms in place to ensure the integrity of members of the judiciary? Score: 75 Judges are subject to incompatibilities and prohibitions to simultaneously engage in other activities that might give rise to conflicts of interest or to the acceptance of gifts or other benefits, and are liable to disciplinary or penal responsibilities. They must not divulge their assets. There are procedural mechanisms (recusal and abstention) to prevent a judge from hearing a case if his impartiality is in doubt. There are no restrictions to joining the public sector, but extended leave of absence must be obtained first.

3.2.6. Integrity mechanisms (practice) To what extent is the integrity of members of the judiciary ensured in practice? Score: 75 The vast majority of the members of the judiciary do not carry out any other activity that is considered incompatible (teaching, for instance, is allowed). Cases of non-compliance are generally reported and subject to investigation. They have the same obligation as any other citizen of declaring their income to the tax authorities, but no specific obligation by virtue of being judges to make it public or report it to a special office. There is no code of conduct for judges and neither have the associations of the judiciary promoted them. Nevertheless, there is no 'culture of gift taking' and judges generally carry out their activities with levels of honesty and ethics similar to if not higher than those of the population at large.

3.3. Role 3.3.1. Executive oversight To what extent does the judiciary provide effective oversight of the executive? Score: 75 There is a specific jurisdiction to control claims against the public administrations (the executive power at all its levels). Although the latter enjoy certain procedural privileges recognised by law, their regulated -and even their discretional- decisions are fully subject to supervision by the courts. It is, however, recognised that the administration has discretionary powers that, although capable of being subject to supervision, are not usually evaluated autonomously by judges when they have a high technical content. The contentious-administrative courts function adequately but are overburdened and subject to significant limitations derived from the nature of its jurisdiction. Many of their decisions are unenforceable or affect, because of the tardiness of their rulings, governments different from those whose actions are being judged, with the consequent negative effect on the people as a whole. There is 78


a Court of Audit, that is not part of the Judiciary, that is responsible for overseeing and controlling the public sector's financial activity and for part of the jurisdictional activity as regards those who collect, audit, administer, have custody, manage or utilise goods, funds or public effects, as explained in the corresponding chapter.

3.3.2. Corruption prosecution To what extent is the judiciary committed to fighting corruption through prosecution and other activities? Score: 50 As a general rule, cases of corruption are investigated and tried like any other offence. There are many investigations open in this respect although their complexity means that they are frequently long drawn out, with many abandoned through lapse of time. There is a prosecution service specialising in this type of offence that publishes an annual report on its proceedings and which has significant resources (to be analysed in the corresponding chapter). An important problem in the prosecution of corruption is the high turnover among investigating judges. Reasons could be pressure from the major parties on the judges in case their politicians are involved. After all, a corruption case could jeopardise electoral success. Another reason for the turnover might be the high workload of such cases with on top limited chance of success for the investigating judges. Although there are prosecutions for corruption, there are many acquittals for lack of proof. The main weakness is in the code of criminal procedure itself that fails to adequately regulate the procedural instruments necessary to investigations. Cases of corruption, with the currently existing resources, are difficult to conduct with procedures designed for standard criminal procedures. It is frequently difficult to collect proof due to the complexity of the operations involved that may affect several different countries, the inefficiency of certain procedural instruments and occasionally a certain lack of coordination with the prosecution services and the police. Even so, it cannot be ruled out that there may be cases in which political interference is excessive, as recognised by the experts consulted.

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4. Public Sector Table 19: Final score Public Sector Final Score Public Sector: 53 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms Public Education Role

Law

Practice 75 75 25 25 25

75 50 50 75 25

Cooperation with other actors in preventing and combating corruption

25

Reduction of risks safeguarding the integrity of State contracts

75

Summary The Spanish public sector is part of the continental organisational tradition, heavily influenced by the French model. This implies relatively detailed regulations, multiple formal controls and a fairly professional and impartial application of the law. Nevertheless, the tradition of secrecy and the low conviction of the need to be accountable to the public mean that the model does not guarantee integrity and that it even enables corruption that fails to be detected soon enough. Juridicism makes it difficult to adopt measures that go beyond mere regulatory formality, while there are also problems in implementing and controlling rules to ensure integrity. This analysis is based on judicial and 104 documentary information, existing statistics, interviews and the revision of experts. Structure and Organization It is very difficult to summarise in just a few lines the entire structure and organisation of the public sector. Since Spain has three levels of government -state, autonomous and local-, a detailed review of the public sector would require an analysis of each of these levels, which would be impossible in the space available here. Hence, this analysis will focus on the central government administration (Administración del Gobierno Central, or AGE). In the public sector it is important to distinguish between the general administration and what could be called the instrumental administration, with all its agencies, autonomous bodies and publicly-owned companies. In Spain there are at least 20,935 public entities in the three administrations (central, 105 autonomous and local). In the case of the central public sector, there are 474, of which three quarters are subject to private law. This large number of separate entities are grouped together in bodies whose main function is the construction of public works (Harbours, AENA, ADIF, RENFE, SEITSA, TRAGSA, 104

Interviews and revisions: Juan Antonio Garde, former Director of the Agencia Nacional de Evaluación, Rafael Jiménez Asensio, Professor of Public Law, Alberto Palomar Olmeda, Judge of the Contentious-Administrative jurisdiction, Agustín Torres Herrero, Director General for Administrative Organisation and Procedures, Ministry of the Presidency; Mario Garcés Sanagustín, Auditor General of the State-National Audit Office, and Manel Frade Morera, European Commission.. 105 “La huida del Derecho Administrativo, del Presupuesto y de los controles financieros por los nuevos entes del sector público”, by José Pascual García, Presupuesto y Gasto Público 60/2010: 109-128. 80


Water…). Within the General Administration of the Spanish State, the central administration's structure is based on the large ministries. According to the current Law on the Organisation and Functioning of the State General Administration (Ley de Organization y Funcionamiento de la Administración General del Estado, LOFAGE), the 'State's general administration is organised in ministries, each of them containing one or several functionally homogeneous sectors of administrative activity' (art. 8). All the ministries have a single juridical personality, not individualised, and are part of the government (art. 98 of the Constitution and art. 1 of the Law of the Organisation, Competence and Operation of the Government). Ministerial bureaucracy is responsible to Parliament, through the instruments for controlling the Prime Minister and his ministers, for their acts and omissions. The central administration has the following structure: Table 20: Structure central administration Senior positions

2011 Government

Ministries (with two Vice-presidents)

15

Secretaries of State

25

Undersecretaries and General Secretaries

75

Director Generals

235

Other senior positions without specific rank

28

Total senior posts

380

Deputy Director Generals

1119

Total

1499

Source: Dirección General de Organización administrativa y procedimientos. Ministry of Territorial Policy and Public Administration, June 2011. Depending from the general administration, but with varying degrees of autonomy, there is a complex web of instrumental bodies that help the Government carry out its activities. To take stock of the complexity of the situation we recommend looking at the inventory of public bodies of the State's Auditing Service, which classifies them as: Table 21: Inventory of public bodies States Agencies, Law 28/2006, of State Agencies for the Improvement of Public Services : 7 Consortiums of the State Public Sector, article 2.1.h) Law 47/2003, General Budget: 15 Publicly-owned companies, article 2.1.c) Law 47/2003, General Budget: 14 Management companies and common services of the Social Security, article 2.1.d) Law 47/2003, General Budget: 5 Foundations of the State Public Sector, article 2.1.f) Law 47/2003, General Budget: 59 Mutual Funds for labour accidents and occupational illness of the Social Security, article 2.1.d) Law 47/2003, General Budget: 24 Autonomous State bodies, article 2.1.b) Law 47/2003, General Budget: 68 Other state entities under public law, article 2.1.g) Law 47/2003, General Budget: 57 Other state corporations and similar companies, article 2.1.e) Law 47/2003, General Budget: 184 Source: Ministry of Economy and Finance.

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Finally, as regards the number of public sector employees, the following table shows the general evolution in relation to the private sector, according to the Working Population Survey (Encuesta de Poblaci贸n Activa, EPA): Table 22: Evolution of the number of employees, 2004-2010 Category 1Q04 Q105 Q106 Q107 Employees 14.375,4 14.977,0 15.888,9 16.514,5 Public 2.743,1 2.831,5 2.863,3 2.932,2 Sector employees Private 11.632,3 12.145,5 13.025,7 13.582,3 sector employees Source: EPA

Q108 16.817,4 2.873,2

Q109 15.843,1 3.029,5

Q310 15.456,3 3.175,9

13.944,2

12.813,5

12.280,4

The information provided by the EPA gives a higher number of public sector employees than the data provided by the Ministry of Public Administrations, probably because it includes employees of subcontracted companies and because the Ministry's data do not include the employees of publiclyowned companies. In any case, in the public sector as a whole the administrations of the Autonomous Communities account for more than 50% of employees. It is the central state administration that has the least number of employees and the trend is towards a clear reduction in its personnel and towards an increase in the subnational levels (see the table below). Table 23: Employees in Spain麓s public administrations (1990-2008) January January January 1990 1995 2000 State public administration 1.248.916 918.006 828.786 Autonomous Communities 514.273 625.771 Local Administrations 333.843 371.456 Source: Central Personnel Registry, July 2010.

781.948 531.654

January 2005 540.868

January 2008 561.551

June 2009 583.447 1.345.57 1.190.607 1.300.232 7 563.392 623.214 627.092

The current personnel structure of the State's General Administration is as follows: Table 24: Personnel structure State public administration

Total number

Total General administration - Armed Forces - Administration of Justice - Public Entities and Public Bodies with specific regulations - State Security Forces Source: Central Personnel Registry, July 2010.

4.1. Capacity 4.1.1. Resources (practice) 82

597.021 241.142 131.927 24.534 56.617 142.801

Percentage over total public employees 22,2 9,0 4,9 0,9 2,1 5,3


To what extent does the public sector have adequate resources to effectively carry out its duties? Score: 75 In general terms the Spanish public sector at the central level of government has adequate resources to operate, as we shall now explain. In any case, it is important to make clear that Spain has one of the world's most decentralised systems of public spending, since the central government (AGE) manages only 51% of the consolidated expenditure of all the administrations, including that corresponding to the Social Security system (29.1% of the total consolidated expenditure). Nevertheless, in 2011 Spain's central administration suffered a sharp budgetary cutback due to the need to reduce the public deficit (11.1% in 2009 and 9.24% in 2010) and bring it within the limits set by the 106 European Union (reducing it to 3% by December of 2012). This implies that, temporarily, the Spanish public sector's resources will be cut back and will require improved management, a greater efficiency and maximum productivity. Nevertheless, so far the state public sector has the infrastructure and financial and human resources necessary to operate. In terms of infrastructure for the Court of Audit, the improvements carried out over the past 20 years have been very significant. As for its budget, expenditure has also increased substantially over the past 30 years, although this has been linked to a substantial growth in GDP, with no significant deficits having even recorded surpluses- up to the breakout of the current crisis. In 2005 public spending was equal to 38.2% of GDP, compared with 47.4% for the UE-15 in the same year. Although still significantly below the UE-15 average, public spending in Spain experienced a surge, especially between 1976 and 1986, when it rose from slightly below 25% to 40% of GDP. In 2010 it reached 45% of GDP. As regards Spanish public income, in 2005 it was 39.4% of GDP, compared with the EU-15's 45.1% in the same year. Although still below the EU-15 average, similarly to public spending, the tax burden (i.e., the proportion of public income over GDP) has registered a significant increase from considerably lower levels (for instance, in 1976 it was 24.4%, compared with 40.4% in the EU-15). In 2010 it was 31.5% of GDP. In terms of public employment, Spain's position is within the average for the developed nations, at around 17.5% of the working population (with an OECD average of 18%). In 2000, before the crisis and the surge in unemployment (with a jobless rate in Spain of 20.4% in 2011), the percentage was below 15%, compared with an OECD average of 17%. Nevertheless, the wage burden is above the average, at over 26% of total public spending compared with the OECD's 24%. In summary, the wage burden is hard to sustain in the current economic environment, hence the cut in salaries and the halt in new public sector employment, with regulations in force since 2009 limiting replacements to no more than 10% of terminations. With the current unemployment rate and wage levels, the public sector is a privileged workplace that attracts a large part of the best Spanish talent. 107

The quality of Spanish public services is, according to the World Bank's Score Indicators, significantly below what should be expected given the country's income per capita. Nevertheless, the public's 106

The sharp deficit recorded in 2009 was due to the increase in public spending to 45.8% of GDP and to the reduction in income (34.7%) brought about by the economic crisis. Public debt amounted to 53.2% of GDP (â&#x201A;Ź560,587 million), compared with 39.8% (â&#x201A;Ź432.978 million) in 2008, according to Eurostat. In such a context the government was forced to take drastic action. 107 More information here. 83


perception of the quality of the services provided is reasonably acceptable according to the Agencia Española de Evaluación's Informe de percepción social de los servicios públicos (1985-2008), although of late there has been a certain deterioration and significant divergences between the various services (healthcare is more highly valued than justice).

4.1.2. Independence (law) (understood as impartiality, since the public sector cannot be independent of the executive power) To what extent is the independence of the public sector safeguarded by law? Score: 75 Since 1918 the administration of the Spanish state has had a meritocratic system in place which has been relatively successful in ensuring that public service is exercised impartially. The essential outlines of the Spanish model of access to public employment are laid out in the Spanish Constitution of 1978 which, in article 23, establishes that the right to enter public service is based on equality and, in article 103, that access to public employment should be based on merit and ability. It further determines that the law regulates the status of civil servants, the specific form of their right to unionisation, their system of incompatibilities and the guarantees necessary to ensure they act with impartiality. Equality, merit and ability are the three main principles governing access to public employment in Spain, to which should be added: public access to information, transparency, impartiality, the professionalism of the members of the bodies entrusted with selection, the independence and discretionality of the bodies themselves, the matching of the selection processes with the functions to be carried out, and 108 simplicity. Public sector personnel are recruited and selected on the basis of these principles. The impartiality of civil servants is guaranteed by the stability and permanence of their employment. The status of civil servant can only be lost for very serious reasons, established by law. Impartiality is also guaranteed by the reduction in appointments made for purely political reasons. There are very few positions for political advisors in the State General Administration, numbering 663 in July of 2010 (of which 442 were attached to the Prime Minister's Office) of a total of 597,021 public employees in the State General Administration (the total number of public employees in Spain is just over 2,700,000). Additionally, in general, the holders of higher public office, except ministers and secretaries of state, must be in the higher grades of the civil service in order to be appointed. Another instrument to ensure impartiality is the regulation for civil servants and higher office holders on incompatibility and conflicts of interest, along with the disciplinary rules to punish non-compliance with the law and the lack of objectivity or impartiality. These rules are in accordance with international 109 standards. Furthermore, the bodies entrusted with selecting entrants to the civil service also play an important role in guaranteeing impartiality and specialisation by exclusively considering the merit and ability of candidates, through regulations governing abstention and recusal, and by being excluded from the organs selecting politically-appointed personnel. There is no institution specifically entrusted with ensuring the primacy of merit and impartiality. It is the Judiciary, through the contentious-administrative courts, that deals with the complaints of those concerned. The auditing services also play a role in protecting the principle of impartiality, hearing 108

By virtue of article 55 of the Basic Statute of Public Employees (Law 7/2007 of 12 April), applicable to all Public Administrations (article 149.1.18ª of the Spanish Constitution). 109 See Conflict-of-interest policies and practices in nine EU member states: a comparative review. SIGMA-OECD, GOV/SIGMA(2006)1/REV1, Sigma Paper 36. 84


complaints and, after investigating them, informing the competent authorities. In general, promotion depends on fairly automatic and standardised procedures, except in the case of the higher posts, where ministers have broadly discretional powers to appoint and dismiss civil servants (who on dismissal must be reinstated to their previous category). Civil service careers are currently being readapted on the basis of Law 7/2007 on the Basic Status of Public Employees (Estatuto Básico del Empleado Público, EBEP), which establishes a new performancebased system. In Spain neither lobbying Parliament nor lobbying the Executive are regulated. So far no regulations are envisaged in this respect. However, there are rules for public access to institutional information (see section VI, Anti-corruption activities).

4.1.3. Independence (practice) To what extent is the public sector free from external interference in its activities? Score: 75 The impartiality aimed at by the existing regulations is effectively compromised by the Administration's promotion system, where discretionality prevails in the appointment and dismissal to higher ranks of the administration. In Spain civil servants are not dismissed whenever the government changes, as a meritocratic system has been in place since 1918. Nevertheless, there are numerous dismissals and appointments not only among the higher ranks (director general and above, where dismissals exceed 50%) but also in the higher levels of the administration, with discretional appointments accounting for around 30% in the 110 first six months after a change of government. Even changes in ministerial incumbents lead to a significant number of dismissals in these posts. Those dismissed must be relocated in positions corresponding to their category and are remunerated accordingly if they remain in the position for two years. The selection boards are protected from political interference. Only in the promotions -not the selection- to discretionary appointments and, of course, the senior positions can it be said that there might be a possible -but not generalised- interference by political parties, as recognised in all the interviews. Ministers and higher office holders cannot dismiss civil servants, as it is the sole responsibility of the cabinet in cases of serious disciplinary reasons, nor can they appoint whom they wish but only those who have passed competitive examinations. As for promotion, there is the possibility of favouring political appointees in senior positions that can be freely designated, as long as they are higher-ranking civil servants and comply with the requirements for the post. These appointees can also be freely dismissed but, as we have said, must be appropriately relocated.

110

See the government's answer to the question posed by the deputy Villar García-Moreno, Francisco José (GP), in the Bulletin of the Cortes Generales, Congress of Deputies, of 24 February 2005. Serie D. number 160, pp. 243 and ff. 85


Civil servants may join political parties but may not carry out political activities in the workplace. For instance, it is a case of very serious misconduct to discriminate for reasons of religion or convictions or to try to influence elections. According to those interviewed, civil servants in the State General Administration do not engage in political activities while in office except in exceptional cases for which, if detected, they will be penalised. There is no organ to prevent political interference, apart from -in certain cases- the contentiousadministrative courts or, when appropriate, even the criminal courts. The efficacy of the courts in preventing interference is limited by their dilatoriness in resolving cases. Nevertheless, the courts are quite rigorous in defending the principles of objectivity and impartiality in the administration, as stated by one of the interviewees, who is a judge in a contentious-administrative court, and confirmed by the rest. Of particular interest is the reference in the Estatuto (EBEP) to performance-based evaluations, defined as the processes whereby the professional conduct, efficiency and achievement of results can be measured in accordance with criteria of transparency, objectivity, impartiality and non-discrimination. In any case, four years after the Estatuto's approval it has been neither implemented nor has full advantage been taken of it. The EBEP has not been adapted at all to the State General Administration as a specific law would be required and the necessary bill is still under discussion, while positive aspects such as performance-based evaluations, that promote impartiality, have not been implemented.

4.2. Governance 4.2.1. Transparency (law) To what extent are there provisions in place to ensure transparency in financial, human resource and information management of the public sector? Score: 50 Regulations are insufficient to ensure transparency. There is no general right to access to public 111 information. On the other hand, there are extensive rules for the protection of personal data that further hinder transparency and access to information. Access to public information is not regulated in the state legal system by a specific law but is rather established by a legal framework defined in the Constitution (article 105 b) and in Law 30/1992, on the Common Legal Framework of the Public Administrations and Administrative Procedure. In particular, in the latter, article 37 establishes the conditions necessary to gain access to administrative information on both pending and completed processes (right to access archives and registries, in this case). Hence, as regards processes that are in progress, access to information is guaranteed to all those who are party to them, i.e., those having a legitimate individual or corporate interest as well as those who might be affected by the decision that is taken (article 32 of Law 30/1992). As regards procedures that have been completed, article 37 recognises the general right of the public to know about them, subject to the limitations derived from the laws protecting an individual's right to privacy. Nevertheless, in practice, the absence of specific regulations regarding this right leads to relevant information not being 111

A good example of opacity is that the internal oversight reports of the General Intervention Board of the State Administration are not public, in contrast to those of the Court of Audit. In other European countries financial auditing reports are open to general access to any citizen. In Spain, however, the General Budgetary Law restricts access exclusively to public employees. 86


presented and to a lack of control over finalised procedures.

112

Civil servants are not obliged to declare their income, assets or interests. Higher office holders must do so, but the information does not have to be made public. Only members of the government are subject to publicity, but solely on taking possession or when there are changes in their assets. As outlined in the section on the Executive, the declarations of higher office holders are not investigated systematically. As regards transparency in the access to public office, please see the previous sections. Nonetheless, in general terms, it can be stated that transparency is guaranteed due to the public nature of all the incidents relating to the selection process. At the time of writing this report, the recently approved Law of Sustainable Economy (Law 2/2011, of 4 March) mentions the word transparency 44 times. As regards improving the regulations, the Law establishes that in application of the principle of transparency the object of regulations and their justification must be clearly defined. In any case, the public authorities should try to maintain a regulatory framework that is stable, transparent and as simple as possible, that is easily accessible to the public and economic players, allowing them to know the applicable regulations with no additional burden to citizens and companies than those strictly necessary to satisfy the general interest. In article 20 and those that follow the law establishes rules on transparency and the social responsibility of the regulatory bodies. Each regulatory body must make public by electronic means all regulations, resolutions, agreements and reports issued in application of the laws governing them. Furthermore, the impact of their actions must be evaluated every three years. Additionally, the presidents of the Regulatory Organs and the National Commission for Competition must appear at least annually before the appropriate commission of the Congress of Deputies to report on their activities and their plans and priorities for the future. Transparency is also required from universities, who should improve it, control their finances and balance their budgets as well as allowing the external evaluation of their activities.

4.2.2. Transparency (practice) To what extent are the provisions on transparency in financial, human resource and information management in the public sector effectively implemented? Score: 25 In practice there is considerably more opacity than is desirable in a democratic State. As indicated, the public has little right of access to information and when it does there are significant exceptions to the rule, as proved by the petitions to the government of Access Info Europe on various decisions that have been refused (for reasons of security, economy or otherwise). Even in the case of documents naming individuals (with personal information on a citizen), access can be refused for reasons of public interest or to protect data. And in documents that do not name individuals the most that can be achieved is access to the document itself but not the right of access to the archives. The main problem is that there is no general right to access public information recognised by law. There is a certain promotion of transparency in the environmental sphere, in the health services, town

112

See the study by Sustentia-Open Initiative: “Transparencia y Silencia”, Estudio sobre el acceso a la información en España, Madrid, October 2005. More information here. 87


113

planning and aspects related to e-Government. But in general the incentive is to greater secrecy, since, for instance, there are five offences in the penal code relating to the violation of the rule of secrecy or the custody of documents and there is an Organic Law to protect personal data that is used to reinforce opacity (Law 15/1999 of 13 December). For information on employment contracts please see subsequent questions. There is full transparency and access to information on vacancies for selecting personnel and for promotions.

4.2.3. Accountability (law) To what extent are there provisions in place to ensure that public sector employees have to report and be answerable for their actions? Score: 50 In general, to ensure the Administration is accountable there is a full range of instruments, processes and structures. The best designed are those that control abuses, illegalities, discrimination, corruption and fraud. The worst designed (and those that are least useful) are those that concern efficiency. 114

Complaints and suggestions by the public are covered by a number of rules. They are currently regulated by Royal Decree 951/2005, of 29 July, which establishes the general framework for improving the quality of the State General Administration, with a number of basic programmes to continually improve its services, including the Programme of Complaints and Suggestions. With the aim of unifying the processing criteria for complaints and suggestions in the framework of the State General Administration, in 2006 the Ministry of Public Administrations published a Guide for Processing Complaints and Suggestions that lays out the steps to be followed by both the public and the civil servants involved. Similarly, the Coordinating Commission for the Inspectorates General of Services has drawn up operational criteria for processing complaints and suggestions in order to promote the programme's actions in a coordinated manner. In each organ or body there is a unit responsible for processing complaints and suggestions which must deal with them within 20 working days of being received. Complaints and suggestions can be presented in person, by post or electronically, by virtue of the mandate included in Law 11/2007, of 22 June, on the public's electronic access to public services. Following up complaints and suggestions is the responsibility of the Inspectorate General of Services of each department, while the Observatory of Quality in Public Services presents a joint annual report evaluating the programmes on quality envisaged in Royal Decree 951/2005, of 29 July, which establishes 113

The Land Law (Law 8/2007) improved the transparency in decision on town planning; Law 27/2006 improved the participation in environmental issues; Law 41/2002 improved the right of patients to their own information in the health services. The Consumer Protection Law, Law 26/1984, has established certain rights to access to information for consumers and created a Consumer Advice Office. These laws are being implemented adequately according to the specialists consulted. 114 Royal Decree 208/1996, of 9 February, which regulates the Administrative Information and Citizen Advice Service already envisaged a Book of Complaints and Suggestions for the entire State General Administration to gather and process any questions by citizens about the operation, availability and quality of the public services provided when they considered they had been unfairly treated or detected any irregularity or when they though certain services could be improved. 88


the general framework for improving quality in the State General Administration. Section XIX of the Criminal Code (Organic Law 5/2010, of 22 June) has a very detailed and up-to-date list of offences against the Public Administration, including: bribery (articles 419-427), corruption (articles 404-406), influence peddling (articles 428-431), misappropriation (articles 432-435), fraud (articles 436438) and negotiations that are forbidden to civil servants (articles 439-444). Anyone who knows of offences of this type is obliged to report them. Along with these offences there is a whole range of disciplinary proceedings for misconduct, whether very serious, serious or slight. There are many mechanisms for internal control, of which the main one is the obligation of every superior to control the professional conduct of his subordinates. Also important are the accounting and financial control permanently exerted by the Court of Audit, the inspections carried out by departmental services, the control over legal aspects carried out by the State’s legal counsel and the Evaluation Agency's control over quality of service and evaluation of programmes. Key external controls are carried out by the Court of Audit and the Ombudsman and in penal questions the prosecution service and the judiciary, through the examining magistrates. In the specific case of control over economic and financial matters, the entities forming part of the state public sector are accountable for their operations, whatever their nature, to the Court of Audit through the General Intervention Board of the State Administration. From the point of view of budgetary fulfilment (General Budgetary Law), the General Intervention Board of the State Administration publishes information on a monthly basis in the Official State Bulletin on the execution of the state budget and its modifications, as well as on treasury operations and any others considered to be in the general interest, while on an annual basis it produces a summary on the main statements and documents of the State General Account and of the State General Administration 115 Account. As noted previously, the authorities and other personnel of the entities in the state public sector who with malicious intent or negligence adopt resolutions or carry out acts in contravention of the General Budget Law are obliged to indemnify for damages the Public Treasury or, depending on the case, the 116 entity concerned. Each department develops its own systems of internal control, entrusted to the units dependent on the areas of economy and finance and the General State Auditor's office (Intervención General de la Administración del Estado, IGAE), which in addition to their auditing function are also responsible for efficiency and economic and financial oversight as well as the monitoring of compliance with budgetary objectives.

115

The reporting entities are responsible for their accounting information and must present within the deadlines set for the purpose their duly authorized accounts to the Court of Audit. 116 The following are infringements: Misappropriate public funds; Administrate resources and other assets pertaining to the public finances without complying with the regulations concerning their settlement, collection or payment to the public treasury; Commit expenditure, settle liabilities and order payments with insufficient funds or in contravention of this Law or of the applicable budgetary law; Make refundable payments; Fail to justify the investment of funds in cash advances, payments that require justification and subsidies; and any other act or resolution that infringes this law. 89


Public agencies are not required to report directly to Parliament, but to the Government, although they must respond daily to many parliamentary questions and requests in accordance with parliamentary procedures. Finally, the planned regulations (EBEP) include a performance-based evaluation for public employees, in order to monitor their efficiency and the fulfilment of targets.

4.2.4. Accountability (practice) To what extent do public sector employees have to report and be answerable for their actions in practice? Score: 25 In practice, accountability as regards efficiency is deficient because of the lack of adequate incentives for its development and implementation, in addition to there being informal rules that act as a disincentive, such as the tendency to opacity and the latter’s legal protection (see above). The mechanisms to control the efficiency of civil servants are deficient. Disciplinary procedures are longdrawn and expensive, with the excessive over-protection of civil servants acting as a disincentive, as recognised by those interviewed. There is no centralised source of information on currently open disciplinary procedures, and neither are there regulations to protect those who report corruption, fraud, abuse or squandering. There is no policy offering the incentive to denounce malpractice. In general, the existing culture is typical of countries that have experienced long dictatorships and whistle-blowing is frowned upon. There are procedures to manage complaints even though they are not much used by the public, who do 117 not believe they are effective, according to the surveys carried out on service quality. In any case, in certain bodies, such as the police, the tax inspectorate and the army, oversight functions far more effectively through their own organs of inspection and internal affairs. The penal oversight mechanisms are also very expensive and difficult to commence, except in very serious cases, according to the police and the prosecutor's office. However, each department has its own system of internal control, essentially related to controlling the legality and formally checking the requirements of the procedures. But the fact that those in charge have limited levels of autonomy, that there is no target-oriented management system and that therefore there are no efficiency targets has not helped to develop a culture and practice of evaluating results and costs, as confirmed in our interviews and the debates following up this report. A key element to explain this situation is that there is as yet no generalised performance-based system of evaluation for employees, which would make it necessary to define targets, measure them and act accordingly, leading to changes from the bottom up. 118

In general terms, the State General Administration has not adopted self-evaluation models to 119 measure how efficiently public resources are managed. As a result, neither has it been able to advise 117

See “La percepción social de los servicios públicos en España (1985-2008).” Agencia Estatal de Evaluación y Calidad de los Servicios. Ministerio de la Presidencia, Madrid, 2009. 118 An important exception is the National Social Security Institute (Instituto Nacional de la Seguridad Social, INSS). 119 Measuring management results and the economic resources consumed in each unit, subsequent to having determined management goals and indicators for compliance, is not a practice that has been systematically developed. 90


on how to improve results (either collective or individual) based on best practices.

120

The content of the new management model in the Law on State Agencies for the improvement of public services has been adopted in certain departments, such as the Ministry of Public Administrations, based on the creation and development of the new Agency for the Evaluation of Public Policies and Service Quality (Agencia de EvaluaciĂłn de las PolĂ­ticas PĂşblicas y la Calidad de los Servicios). The new management contracts, that determine targets, results to be achieved and compliance indicators, should make it possible to fully apply new procedures to evaluate each unit's performance; unfortunately, the initial impetus has recently been checked and there is no longer a strict application of the model contracts by the ministries, with certain exceptions, as confirmed in the interviews. After debating with some of those interviewed, the idea is that there is a lack, at the bottom, of a generally adopted system to evaluate the performance of public employees and, at the top, of regulations compelling each department to be accountable before parliament on a periodic basis, to explain its strategic policies, how they will be implemented, its existing management indicators and the impacts achieved. These two instruments would improve accountability enormously.

4.2.5. Integrity mechanisms (law) To what extent are there provisions in place to ensure the integrity of public sector employees? Score: 75 The regulations concerning integrity are in line with international standards. They include both aspects linked to incompatibility and to conflicts of interest. Nevertheless, some further progress is necessary, according to the experts consulted. As regards the General State Administration, the regulations on conflicts of interest are structured in two blocks, depending on whether they affect the members of the government and high office holders or all other public employees. As regards the former group, it is again necessary to make reference to the Agreement approving the Code of Good Score for members of the government and higher office holders of the State General Administration and Law 5/2006, of 10 April, regulating conflicts of interest for members of the government and higher office holders of the State General administration (see Executive pillar). Regarding all other public employees, Law 53/1984, of 26 December, on the Incompatibilities of Personnel in the Public Administrations, likewise contains an exhaustive regime of incompatibilities, preventing them from carrying out activities or holding assets that might lead to a conflict of interests with their public duties. Nevertheless, according to the experts consulted, the regulations on incompatibilities should be updated to include new rules on subsequent employment, the acceptance of gifts, etc. The body ensuring compliance in this case is also the Office of Conflicts of Interest, which has already been described. As for codes of conduct, in addition to the government itself, there are other public bodies with their own codes, such as, for instance, the National Securities Commission, the Official Credit Institute, the bank of Spain. The Ethical Code for public employees is included in the Basic Statute for Public Employees, approved in April of 2007 and which came into force in May of that year. The Code commences with a generic obligation: to carry out diligently the tasks entrusted and to safeguard the 120

Information validated by the Ministry of the Presidency and based on prior interviews with department officials. 91


general interest in accordance with the Constitution and the Law. It subsequently lays down a whole range of principles that are fully in line with the best international practices. It remains to be seen, since the regulations have yet to be developed, how compliance with the Code will be monitored and how it will be linked to the disciplinary regime. Also applicable to all public servants is the rule on abstaining and objecting in the case of personal interests when taking decisions, as regulated by the Law of Administrative Procedures. Finally, as regards the evaluation of the risk of corruption, the Departmental Inspection Services, on the basis of Royal decree 799/2005, of 1 July, which regulates the inspection of ministerial departments, are entrusted among other tasks with the oversight of internal departmental management.

4.2.6. Integrity mechanisms (practice) To what extent is the integrity of public sector employees ensured in practice? Score: 25 Although regulations are relatively well developed, our sources confirm that their implementation is deficient. This is partly because the established procedures are cumbersome or are not sufficiently integrated into the system, partly because the regulation itself fails to adequately tie up the issue of control and to guarantee the independence of the bodies entrusted with monitoring and oversight. Furthermore, there are no incentives to ensure integrity and, on occasion, there are disincentives that prioritise routine controls. As noted above, it is true that it cannot be said that there is a high level of corruption liable to penal prosecution in the Spanish state public sector (e.g., bribery), but this does not imply that the AGE enjoys an entirely acceptable level of integrity. Integrity is more than just the absence of corruption liable to penal prosecution. There are excessive levels of inefficiency, low productivity, noncompliance with disciplinary regulations and ignorance of the code of ethical conduct, according to the interviews carried out, although this is difficult to prove in practice, precisely because they are concealed and not prosecuted. There is no bribery, save exceptional cases, as repeatedly proved by the Bar贸metro Global de la Corrupci贸n, but there is more absenteeism and low productivity than is acceptable. As regards the implementation of the Code of Good Score and the law on conflicts of interest for higher office holders, please refer to our comments on the Executive. The application of the regulation on incompatibility to public employees is also deficient, as confirmed by those interviewed and by our validation meetings. No effective control is exercised and there is certain permissiveness, except in specific and unimportant issues. There is no systematic policy to teach ethics and integrity or specific courses on how to control corruption. Neither is there clear communication on value systems and the Ethical Code. On taking office the commitment is made to comply with the Constitution but nothing is 121 said about the Ethical Code. Public employees have a more or less clear knowledge of its contents, but there are no facilities to interpret, help and advise them when confronted with ethical dilemmas. Neither is there a systematic process of evaluating corruption or integrity risks.

4.3. Role 121

Based upon an extrapolation of the Encuesta de 茅tica y valores del servicio p煤blico Generalitat de Catalunya, that indicated that 64.1% of public employees knew the code and valued it positively, with a score of 8.04 out of 10. 92


4.3.1. Public education To what extent does the public sector inform and educate the public on its role in fighting corruption? Score: 25 On this issue there are neither regulations nor practices to be highlighted and the Government has not so far approved a plan to educate public on corruption and its role in fighting it. There have been public declarations condemning corruption (see Executive pillar), but little else to foster awareness. The reason, according to the interviews, could be precisely a lack of awareness and an excessively legalistic view of the problem.

4.3.2. Cooperate with public institutions, CSOs and private agencies in preventing/ addressing corruption To what extent does the public sector work with public watchdog agencies, business and civil society on anti-corruption initiatives? Score: 25 So far cooperation with civil society and other governments, on the initiative of the AGE, has been minimal. Cooperation has been more frequent in response to demands and activism. The interviews with those directly involved in the drafting and approval of the Code of Good Score or the law on conflicts of interest indicate that the introduction of these regulations has not been easy; however, it is true that both sets of regulations have required an agreement by the government as a whole for their approval; there has also been internal cooperation for the approval of specific measures against corruption in town-planning issues, especially the Land Law. But cooperation in a stricter sense, in the form of joint integrity plans or specific anticorruption programmes, is the exception and, when it does exist, usually involves the police and the Tax Agency (in charge of collecting tax revenues), according to the interviews conducted for other pillars of the NIS. With private enterprises there are certain points of contact in the Ministry of Industry, especially as regards foreign trade. Corporate social responsibility is part of the Europe 2020 plan and the European Commission issued a CommuniquĂŠ on the subject in 2006, based on the Unionâ&#x20AC;&#x2122;s Green Book on Corporate Social Responsibility of 2001 (which we shall consider below). Finally, there is a development point for the Global Compact in Spain, with the following composition: large non-listed company: 202 signatories, 17% of the total; large listed company: 51 signatories, un 4% del total; small and mediumsized enterprise: 432 signatories, un 36% del total; micro-company: 263 signatories, 22% of the total; public sector: 21 signatories, 2% of the total; educational institution: 49 signatories, 4% of the total; trade unions/employersâ&#x20AC;&#x2122; associations: 55 signatories, 5% of the total; tertiary sector: 125 signatories, 10% of the total. The inclusion in the 2010 Criminal Code of the offence of private corruption and criminal responsibility of companies is giving rise to cooperation initiatives for its implementation.

4.3.3. Reduce corruption risks by safeguarding integrity in public procurement 93


To what extent is there an effective framework in place to safeguard integrity in public procurement procedures, including meaningful sanctions for improper conduct by both suppliers and public officials, and review and complaint mechanisms? Score: 75 Rules and principles 122 Spain’s procurement procedures are based on European regulations. In general terms, there are four types of contract awards: open procedure, restricted, negotiated and competitive dialogue. Exceptionally, service contracts below €18,000 and works contracts below €50.000 can be awarded directly. Normally, contracts above those amounts are the subject of open or restricted awards. 123 Negotiated and competitive dialogue contracts are especially regulated for highly specific cases. In general, regulations lay out the principles and requirements to make awards as objective as possible, avoiding any favouritism or partiality. According to article 1 of Law 30/2007, on Public Sector Contracts, the law seeks to guarantee ‘the principles of freedom of access to tenders, publicity and transparency of procedures, and non-discrimination and equality of treatment among the candidates, and of ensuring, in relation to the objective of budgetary stability and cost control, the efficient utilisation of the funds directed at works, acquisition of assets and contracting of services by requiring a prior definition of the objectives, safeguarding free competition and selecting the economically most advantageous offer’. Article 74 determines that contracts cannot be split up with the object of reducing their amounts and thereby sidestep the requirements of publicity or those of the corresponding awards procedure. Article 123 establishes that the contracting bodies should give equal and non-discriminatory treatment to bidders and candidates and will act in accordance with the principle of transparency. Awarding contracts For the awarding of contracts there are technical bodies that evaluate the tenders. These can be either Procurement Boards or Procurement Bureaus. Procurement Boards, which are not legally compulsory but optional, evaluate and award contracts that are of not of a substantial value or complexity (according to article 291.4, ‘Procurement Boards can be created and acts as procurement bodies, with the limits on the amount involved or the characteristics of the contract as determined by the head of the department involved’). Among the members of each Board there must be a civil servant with the legal or regulatory competence to provide legal advice to the procurement body and a financial controller. Procurement Bureaus are compulsory, except in certain specific cases in which they are optional (article 295). The bureau’s Secretary must be a civil servant or a member of the staff depending from the procurement body and among its members there must necessarily be a civil servant with the legal or regulatory competence to give legal advice to the procurement body and a financial controller. The law lays out a whole set of requirements regarding the drawing up the preparatory documents for the contract (administrative clauses and technical requirements). There are rules standardising these documents. In practice, according to the experts, the recommendations that are followed are those of

122

Directive 2004/18/CE of the European Parliament and Council, of 31 March 2004. The Spanish legislators could have opted for fully applying the LCSP to contracts not subject to harmonized (European) regulations; instead they opted for a more flexible system. This could lead to problems for the public entities subject to private law that are governed by instructions approved by the contracting entity (interview with an expert in public procurement). 123

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124

the Government Contracts Administrative Consultation Board. In general terms, there are no specific anticorruption clauses, be they recommendations for integrity agreements or the requirement for companies or public bodies to have codes of conduct, risk assessments or clear internal policies for combating corruption. Those assessing tenders normally have a high standard of competence and professionalism, are State Legal Councillors and Audit, as well as highly-specialised professional civil servants. There is no rule preventing the civil servants who draw up the documents on technical requirements or administrative clauses from being members of the Procurement Bureaus. Nonetheless, without prejudice to the rules for awarding contracts through competitive dialogue procedures, companies that have taken part in the preparation of technical specifications or preparatory documents cannot present tenders if that can compromise free competition or imply preferential treatment with respect to the other tenders. In general, the individuals (financial controllers) and companies supervising the execution of the contracts do not take part in drawing up the documentation. There is certainly a clear separation between the personnel of the Court of Audit and those who draw up the documentation or assess tenders. Control Oversight of procurement is carried out by three bodies. First, the Spanish system has a preliminary audit before any expenses are incurred, carried out by the Government Audit Office by way of the financial controllers in each department. In accordance with article 93.3, when ordinary procurement procedures are initiated it is necessary to have credit, or a document that can legally substitute for it, and a prior audit as required by Law 47/2003, of 26 November. A subsequent audit is also possible by the national Audit Office. In any case, in practice corruption is not infrequent in procurement processes. 125 For instance, the IGAE does not physically verify contracts in progress, making prior oversight a formality. Physical receipt of the completed order prevents verification of the correct use of public resources. Furthermore, optionally, it is possible to explicitly employ an entity to oversee the execution of the contract. According to article 41.1, the procurement bodies can designate someone responsible for the contract to oversee its execution and take the decisions and deliver the necessary instructions to ensure the correct use is made of the agreed terms, within the competences it should decide to grant. Furthermore, a key factor for an award to be made is the internal quality control exerted by the tendering company. Finally, the senior body responsible for oversight is the Court of Audit. Within three months after formalising a contract, a certified copy must be sent to the Court of Audit along with an extract of the file to which it pertains, as long as the contract exceeds the value specified by law. The Court of Audit has the right to demand any data, documents and background information it might consider necessary in relation to contracts of whatever nature and value. There is also oversight by the European Union when cohesion or structural funds are involved. In general terms, oversight bodies have sufficient independence. The State Auditors enjoy a certain protection in order to carry out their tasks in accordance with the law. And the Court of Audit is a constitutional body whose independence is guaranteed by law. In practice, political influence is always possible, but not to the point of making what is illegal legal, as recognised by the experts interviewed. Centralised procurement 124 125

Information from the General Intervention Board of the State Administration (National Audit Office). Information from the General Intervention Board of the State Administration (National Audit Office). 95


In order to rationalise and order the awarding of contracts, the Public Administrations can conclude framework agreements, create dynamic systems or centralise the contracting of works, services and supplies in specialised services. There is a central procurement body: the General Directory of State Assets. According to article 190, ‘in the sphere of the State General Administration, its autonomous entities, managing agencies and common services for Social Security and other public state bodies, the Ministry of Economy and Finance can declare that the supplies, works and services contracted in a general manner and with essentially homogenous characteristics by the various bodies and agencies will be subject to centralised procurement’. Centralised procurement is very important for the acquisition of IT equipment, as made evident by its resolutions. The General Directory of State Assets has an adequate organisation and has the economic and human resources to operate. It is not by law an independent body, but has high professional standards according to the experts interviewed. In any case, its relation with the bodies for which it carries out procurement activities must be sufficiently smooth to guarantee a minimum level of efficiency. Modifications or alterations So far the Administration could modify contracts for reasons of public interest or unexpected causes. In any case, the possibility of modifications must be included in the documentation, save exceptions. Nevertheless, when a modification is 20% higher than the contract’s original price and the latter has a value of €6 million or more, a report from the Council of State is necessary. The modification must obviously be communicated to the successful bidders, who can rescind the contract if it is in excess of 20% of the value of the tender. Modifications must also be published in the Registry of Contracts. 126 Nonetheless, fraud has been commonplace and for that reason the recently approved Sustainable Economy Law (LES, see above) has completely modified the regulations on contract modifications in accordance with the practices recommended by the European Union, taking particular account with the Commission’s position on unexpected modifications in tender documents and on the consideration of substantial alteration for those that exceed the contract’s initial value by more than 10%. From now on, in accordance with the LES, public sector contracts can only be modified when the possibility is expressed in the documentation or in the announcement of the tender and the conditions and circumstances of the modification have been stated clearly, precisely and unequivocally, in addition to specifying the scope of the alterations that may be agreed, expressly indicating the maximum percentage of the contract’s value they can affect and the procedure to be followed; contracts may not be modified in order to add supplementary items to those initially contracted, to broaden the scope to add purposes that are not in the preparatory documentation to add an item that might be used or exploited independently. Nevertheless, the LES does exceptionally allow unforeseen modifications, but it is understood that tenders and awards are modified in their essential conditions when the alterations exceed in 10% the value of the contract and that they must therefore be tendered again. Bidder profile With the object of ensuring transparency and public access to information on contracting, in addition to any other means required by law (Official Journals of the Autonomous Communities or Official State Bulletin) or voluntarily decided upon, procurement bodies must publicise a bidder profile via the Internet. Bidder profiles can include any data or information relating to the contracting activities of the procurement body, such as the announcements of prior information contemplated in article 125, open or on-going tenders and documentation referring to them, programmed tenders, tenders awarded, cancelled procedures and any other useful information of a general nature, including points of contact and means of communication to contact the procurement body concerned. In any case, the bidder profile must include not only the provisional awards of contracts (article 42) but also the definitive award. Additionally, when the value of a contract is of €100,000 or above, or in the case of a public 126

Interview with an official from the European Commission-OLAF. 96


service management contract, when the budget of initial set-up costs is equal or higher than that amount or if the contract’s duration is more than five years, the definitive award must be published in the Official State Bulletin within 48 days from the date of the award. In the event of contracts subject to harmonised regulation the announcement should be sent, within the term specified in the previous paragraph, to the Official Journal of the European Union and be published in the Official State Bulletin. Registries There are several registries and statistical systems, in theory and in practice. The Registry of Public Sector Contracts is the official central information system on public procurement in Spain and, as such, the main source of information for finding, researching and analysing public contracting, for statistics on public contracts, for compliance with Spain’s international obligations on access to information on public procurement, for communicating data on contracts to other organs of the Administration that might be legally entitled and, in general, for the public diffusion of relevant information, in accordance with the principle of transparency. It is a public registry, but subject to the rules on the protection of personal data. The procurement bodies of all Public Administrations and other entities subject to the Law on Contracts must report contracts, within a maximum term of three months from their signature, to the Registry of Public Sector Contracts in order for them to be recorded, including any modifications, extensions, changes in deadline or prices, final value and normal or abnormal termination. There is also an Official State Registry of Bidders and Classified Companies, held by the Ministry of Economy and Finance and maintained by the technical support departments of the Advisory Board for Administrative State Contracting; the registry is public but only to interested parties. Finally, the Advisory Board for Administrative State Contracting, through its technical support departments has made available to all the public sector’s procurement bodies an electronic platform to publicise tenders and awards via the Internet, along with any other relevant information. We have established that the platform operates efficiently. Invalidity and revisions Chapters IV and V of the law include detailed regulations on invalidity and the revision of decisions concerning contracts, in addition to alternative means of settling disputes. There is a special appeal for contracts, if they are of a substantial value, and ordinary appeals for the rest. In any case, recourse can always subsequently be made to the contentious-administrative courts. Latest modifications Finally, the Sustainable Economy Law has established, compared with the previous situation, a greater transparency as regards information on public procurement, while it also fosters contracts for research and development and the participation of small and medium-sized companies in public tendering. Furthermore, it centralises access to information of state public sector tendering on an electronic platform and simplifies the red tape involved, thereby reducing –according to the authors- the cost involved. Since these regulations have not yet been implemented it remains to be seen if they meet expectations.

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5. Law Enforcement Agencies Table 25: Final score Law Enforcement Agencies Final Score Law Enforcing Agencies: 72 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms Role Combating corruption

Law 75 75 100 50

Practice 50 75 75 75 75

-

75

Summary The State Prosecution Office and the various corps of judicial police, as the leading agents of law enforcement in Spain, have significantly increased their contribution to the fight against corruption over the past few years. Their degree of specialisation, internal organisation and means available have improved markedly. Nevertheless, they are affected by a number of problems that impair their efficiency. First, in terms of capacity, they still have significant shortcomings in relation to technical and human resources. Furthermore, their independence and impartiality need to be put on a firmer footing. Secondly, improvements in transparency and internal integrity policies are necessary. Finally, their role in combating corruption would be extraordinarily enhanced if the current judicial procedures were to be modernised, as they have proved to be inefficient when dealing with organised and complex crime. Structure y Organization This chapter will look at the law enforcement agencies, more specifically the police, prosecutor´s office as well as the Executive Service for the Prevention of Money Laundering (Servicio Ejecutivo para la Prevención del Blanqueo de Capitales, SEPBLAC). At the police there are two specialized units at the national level dealing with corruption, UDEF (part of the national police) and UCO (part of the Civil Guard). SEPBLAC, the financial intelligence unit, was established under the provision of Law 19/1993 of 28 December and Royal Decree 925/1995. SEPBLAC is the working group of the Commission on the Prevention of Money Laundering and Monetary Crimes which falls under the responsibility of the Secretary of State on Economy. Its objective is to prevent the use of the financial and corporate system to laundry money and support the investigation of cases. The Prosecutor´s Office is a body of constitutional significance and as a legal entity integrated with functional autonomy within the Judiciary. Article 124 of the Constitution refers to it in the following terms: The Public Prosecutor, without prejudice to the responsibilities entrusted to other organs, is responsible for promoting justice in defence of the law, the rights of citizens and the public interest protected by the Law, ex officio or at the request of stakeholders, as well as ensuring the independence of the Courts and securing before them the satisfaction of the public interest. The prosecution acts through its own organs in accordance with the principles of unity of action and hierarchical dependency and, of course, legality and impartiality. The basic regulation governing Spain Prosecution Service is the Organic Statute of the Prosecution Service (Estatuto Orgánico del Ministerio

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Fiscal, EOMF), approved by Law 50/81 and modified by Law 24/2007, which reinforced its autonomy and updated its territorial organisation. The Chief Public Prosecutor is at the head of the office and represents the Prosecution Service. He is appointed and dismissed by the King at the Government’s proposal, after hearing the General Council of the Judicial Power and the assessment of the relevant committee of the Congress of Deputies.

5.1. Capacity 5.1.1. Resources (practice) To what extent do law enforcement agencies have adequate levels of financial resources, staffing, and infrastructure to operate effectively in practice? Score: 50 According to the Bulletin of the Central Personnel Agency of July 2010, Spain has 3,111 prosecutors (of which 2,094 are career civil servants and the remainder are in an acting or substitute capacity) and 177,693 members of the security forces (of which 79,586 belong to the Civil Guard, 63,215 to the National Police Corps and 24,892 to the regional police forces, basically in Catalonia and the Basque Country. In comparative European terms, the European Council’s 2010 report on ‘Efficiency and Quality of Justice’ by the European Commission for the Efficiency of Justice (ECEJ, 2010: Table 10.1 on pp. 181182), Spain has 4.8 prosecutors for every 100,000 inhabitants, clearly below the 10.4 average for the 44 European countries for which data is provided in the report. Nevertheless, the relative number of prosecutors is clearly higher in Central and Eastern Europe than in Western Europe. The situation in Spain is slightly worse when considering the personnel supporting the prosecutors. According to the report (ECEJ, 2010: Table 10.1 on pp. 181-182), Spain has 4.4 support staff for every 100,000 inhabitants, while the average for the 44 countries in the report is 12.2. The differences in this case between Central and Eastern Europe and Western Europe are not so sharp, showing that Spain does have a serious deficiency. According to one of the prosecutors interviewed: “One of the problems we have is infrastructure, which is minimal (…) we are fundamentally lacking full-time professional human technical resources, such as architects, engineers, environmental and public administration technicians, among others; similarly we need more police corps (…) We also need a better internal organisation, with civil servants carrying out auxiliary tasks on a full-time basis' (Interview 1). As regards salaries, prosecutors are remunerated by law (art. 33 of the Organic Statute of the Prosecution Service, EOMF) in line with judges. In comparative terms with the other European countries in the ECEJ report (2010), Spanish prosecutors are paid at the beginning of their careers 1.7 times Spain's gross average annual salary (compared with an average of 2.0), while Supreme Court prosecutors receive 4.7 times (compared with an average of 3.9 in the countries included in the report). Hence, the salaries of Spanish prosecutors are reasonable compared with their European counterparts. However, as commented by another of the prosecutors interviewed: 'incentives (vocational) beyond mere remuneration are usually a great personal, psychological or immaterial motivation for civil servants' (Interview 2). The same can be said about the personnel of the security forces, whose salaries are relatively acceptable. All the prosecutors and member of the security forces we interviewed admit that there has been a substantial improvement in the past few years in the IT equipment available although, as one of them 99


says, 'we have to improve both the access to databases on jurisprudence and legislation and to specific information on on-going trials in all the courts' (Interview 1). Since the administration at the service of courts and prosecutors has been gradually transferred over the past few years to the Autonomous Communities, there have been cases of serious coordination problems. For instance, some of the IT systems employed by the prosecution service in some Autonomous Communities (such as the Canary Islands) were incompatible with those of others, giving rise to problems of communication (Annual Report of the Special Prosecution Office for the Environment and Town Planning, 2008). None of those interviewed reported substantial budgetary cuts over the past few years and neither do the annual reports of the State Prosecution Office. Finally, there is no special police unit devoted as such to investigation corruption, although there are certain units that are more active in combating it. The most important are the Economic and Fiscal Crime Unit (Unidad de Delincuencia Económica y Fiscal, UDEF) of the National Police and the Central Operational Unit (Unidad Central Operativa, UCO, and within it the Town Planning Offences Group, GDU) of the Civil Guard. Furthermore, at the end of 1995 a special prosecution office was created to combat this type of crime: the Special Prosecution Service for Corruption and Organised Crime (Fiscalía Especial contra la Corrupción y la Criminalidad Organizada, FECCO). Based in Madrid, it is a multidisciplinary body with 15 prosecutors (attached from the prosecution services in the provinces with the highest incidence of corruption cases), 26 auxiliary staff, a Support Unit from the State Tax Administration Agency (Agencia Estatal de Administración Tributaria, AEAT) with 10 members, a Support Unit from the General Intervention Board of the State Administration (Intervención General de la Administración del Estado, IGAE) made up of seven people, a Unit from the National Police (belonging to the UDEF) made up of 13 individuals and a Unit from the Civil Guard (of the UCO) with 10 personas. A second important body of the Prosecution Service to combat corruption is the network of specialist prosecutors for environmental and town planning issues. Since the FECCO only deals with corruption of 'particular importance' (as defined in sections II.4.1. and II.4.2 of Instruction 4/2006 of the FGE on the competences and organisation of the FECCO), the environmental and town planning prosecutors have had a very high profile since they were reorganised in 2007 (Instruction 4/2007 of the FGE on the Coordinating Prosecutor for the Environment and Town Planning and the environmental sections of the Prosecution Services), since they have dealt with the cases (mainly concerning town planning) that have largely affected municipal authorities and civil servants. None of the members of these police and prosecution units receive a special salary, so their remuneration is fully in line with other members of their profession of the same level and experience. According to the Annual Reports of the FECCO, except for the case of the incorporation of prosecutors attached to different provincial prosecution services, the number of employees in this special prosecution office is the same as when it started operating in 1996 despite the fact that their workload has significantly increased since then. As for SEPBLAC, the staff comes from various related entities dealing with money laundering, i.e. the Bank of Spain, the Tax Authorities, the Civil Guard and the National Police. With a total of 119 highly qualified individuals, SEPBLAC has sufficient means to deliver its services.

5.1.2. Independence (law)

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To what extent are law enforcement agencies independent by law? Score: 75 The independence of the law enforcement agencies is sufficiently guaranteed by law. According to both art. 124 of the Spanish Constitution and the EOMF (art. 59), the work of the prosecutors should be based on the principles of legality, impartiality and objectivity. The principle of legality means that legal action must be taken, whenever appropriate, to the exclusion of 'opportunity', contrary to other European systems which can discontinue proceedings for technical or other reasons. The Prosecution Service's organisation is based upon the principles of unity of action and hierarchy, which underlines the importance of the Chief Prosecutor (FGE) and the heads of the various prosecution offices (including the chief prosecutors of the Autonomous Communities). The FGE is appointed by the King at the Government's proposal (art. 124 of the Spanish Constitution) for a non-renewable mandate of four years, or terminating on the resignation of the Government. The Government can request the Chief Prosecutor to bring an action, but the latter, on the advice of the Prosecution Board, decides on its viability and admissibility (EOMF, art. 7), so that there is no automatic dependence on the Government. The head prosecutor of the FECCO is appointed by the Government at the proposal of the Chief Prosecutor and after hearing the Prosecution Council, a non-binding organ that partially represents the Prosecution Service. The head prosecutor's mandate is for five years, renewable at discretion for further mandates. He should have 20 years professional experience, although the law requires no specific experience with corruption. The other prosecutors in this special service must request the position, have 10 years professional experience and be specialised in corruption, as assessed by the Chief Prosecutor and the Prosecution Council (EOMF, arts. 19, 36 and 37). Given the principles of unity of action and hierarchical dependency, the prosecutors must obey the instructions of their hierarchical superiors and, ultimately, of the Chief Prosecutor. Consequently, in the FECCO, authority lies with the corresponding head prosecutor, who can take on a case or pass it on to another prosecutor, communicating his decision to the Prosecution Council. The law envisages the a prosecutor can be forcibly transferred in the event of a serious dissent with a hierarchical superior. However, the channelling of discrepancies between prosecutors and their superiors, appointed by the government, is very precisely regulated. There is a type of ‘conscientious objection’ to balance the need for a structured hierarchy and the subordinate prosecutor’s ethical or technical convictions. Furthermore, the law allows the latter freedom of oral expression even in the case of open discrepancy with an order from a superior (EOMF, arts. 23, 25, 27 and 40). Access to the career of prosecutor can only be attained through a meritocratic competitive procedure among those holding a law degree. Promotion is strictly by seniority, although in certain specialised field’s merit, capacity and experience are valued. Prosecutors may not join political parties or trade unions (but may join professional associations) and cannot take part in elections except to vote (EOMF, art. 57). As for the police, Spain does not have a specifically distinct judicial police (organically separate from the rest of the police and exclusively dependent from the judiciary), such as there is in Portugal, for instance. The Spanish judicial police id based on a functional model, i.e., the law assigns members of the police or certain units of the security forces the preferential function of investigating crimes and subordinates them to judges and prosecutors, from whom they depend functionally while organically they continue to depend from their senior officers. This double dependency is regulated in various laws: CE arts. 104.1 and 126; art. 548.1 of Organic Law 6/1985, of 1 July, on the Judiciary (LOPJ); art. 31.1 of 101


Organic Law 2/1986, of 13 March, on the Security Forces (LOFCS); art. 10 of Royal Decree 769/1987, of 19 June, on the regulation of the Judicial Police (RDPJ). The law has a number of safeguards to prevent the organic dependence of police units to override their functional dependence on the judges who have entrusted them with a criminal investigation: the exclusive dedication to judicial police functions (art. 549.2 LOPJ, although a discrepancy could arise with art. 33 of the later LOFCS); the irremovability of those employed in the judicial police l (art. 550.2 LOPJ; art. 34.1 LOFCS; art. 16 RDPJ); and the capacity of judges to sanction or reward members of the judicial police (art. 35.d) LOFCS; art. 17 RDPJ).

5.1.3. Independence (practice) To what extent are law enforcement agencies independent in practice? Score: 75 There have on occasion been cases, and they may continue to occur, of political interference in the tasks of prosecutors and police. However, their day-to-day work is usually free of any type of these influences. As commented upon by a police officer with experience in investigating corruption cases, ‘my sincere and honest opinion, based on my experience, is that political interference is very rare and, when it occurs, is not the result of a political guideline or direct order from ‘above’ but rather from the police chiefs’ or prosecutors’ desire to please, or at least to not inconvenience political figures. In the specific case of our own unit, I have never received any indication that I should halt an investigation, not take it up or move in a different direction, but when we have investigated politicians belonging to the party in power I have noticed a certain ‘fear’ or at least undue worry among our superiors, in the sense that everything should be perfectly clear and proved before proceeding, which in any case something we are always concerned about, regardless of who we are investigating’ (Interview 3). It is true that in the past there have been episodes of a certain stressed relation with the FECCO, such as when in 2003 the Government decided not to renew the mandate of the then head prosecutor. The latter had had serious discrepancies with the Chief Prosecutor, who was radically opposed to investigating an alleged case of corruption that would have inconvenienced the Government (El País, 25/07/2003). In the past few years, according to one of those interviewed, ‘there have been no reports of political interference or sniping in the FECCO’ (Interview 2). According to another of the prosecutors interviewed, ‘I cannot say that there have been instances of political interference in on-going investigations, simply because at the first attempt we haven’t allowed it, immediately halting any hint on influence, so they give up. For instance, we return any “gifts” we may receive from companies or politicians’ (Interview 1). Nevertheless, there are certain key moments in investigations where political tension might show through. As interviewee number 3 comments, ‘in general, I believe prosecutors are able to work with a certain degree of independence, but I do not deny the possibility, because I have seen it, that in certain “key moments” one’s superiors may appeal to the hierarchical principle to issue instructions that their subordinates must obey. The clearest example, which happens constantly, is when an injunction is requested to appear before a judge for preventive custody or bail, and which in cases of corruption, however trivial, is rarely decided upon personally by the investigating prosecutor but by his superiors, whose orders he must obey although he may not agree with them (which has occurred)’ (Interview 3).

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5.2. Governance 5.2.1. Transparency (law) To what extent are there provisions in place to ensure that the public can access the relevant information on law enforcement agency activities? Score: 75 Although there are legal provisions, they do not cover all aspects related to transparency of the law enforcement agencies. On occasion (in politically or socially sensitive cases) this gives rise to tension between transparency and the need for secrecy in investigations, sometimes undermining these agencies’ credibility. Nevertheless, the annual reports of some prosecution services provide important information. Those involved in judicial processes have access to on-going procedures unless the investigating judge imposes a gagging order. The prosecution is legally allowed but not obliged to ‘inform public opinion of events, as long as they are within its competence and confidentiality is preserved, along with the general obligations inherent to the position and the rights of those involved’ (EOMF art. 4.5). Nevertheless, as one of the prosecutors interviewed commented, ‘there are no precise indications on the degree to which secrecy applies. All this leads to scant use being made of the power to publicise, in order to avoid problems’ (Interview 2). As another of those interviewed said, ‘in our country, by definition, cases of corruption are criminal investigations and as such are protected by the rule of secrecy, allowing access only to the parties involved until the trial opens, which is the first occasion when any citizen can see for himself how justice is administered. In cases where the investigating judge imposes a gagging order, not even the parties can gain access until the order is lifted, except of course the judicial authorities, the prosecutor and the judicial police carrying out the investigation’ (Interview 3) as established in the Law of Criminal Procedure (Ley de Enjuiciamiento Criminal, LECr, arts. 301 y 649). Contrary to the case with some of the higher offices of the State, both in the central administration and the Autonomous Communities and local authorities, Spanish law does not require the publication of the properties and other assets held by members of the Prosecution Service or judicial police. The parties to a judicial process have the right to know how it is proceeding (art. 302 LECr; art. 140 of the Law of Civil Procedure). They furthermore have the right to initiate any legal action, assisted by their lawyers and at their expense, except in those cases where they are entitled to free legal representation. As commented by one of those interviewed, ‘the legal provision to prove insufficient means borders on indigence, as Law 1/96 for Free Legal Assistance, in article 3, reduces free assistance to those whose income is less than double the minimum salary. Royal Decree 1795/2010, of 30 December, established for 2011 a minimum salary of €21.38/day or €641.40/month’ (Interview 2). Even if the prosecution does not want to proceed, the judge informs the injured party in case he should wish to do so, as long as the judge continues to believe there is evidence of a crime.

5.2.2. Transparency (practice) To what extent is there transparency in the activities and decision-making processes of law enforcement agencies in practice?

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Score: 75 The absence of regulations and the lack of a tradition of transparency in the Spanish Public Administration, in addition to the obligation of confidentiality on questions that are under judicial investigation all go to making the level of transparency in these agencies relatively low. The annual reports of the Prosecution Service and statistical data from the police provide information about the activities they undertake, but say nothing about how decisions were made. The members of these agencies make no public declarations concerning their assets or interests. What the various prosecution services do is to publish an annual report (whose level of detail varies from one to another) of the main activities they have carried out, staff numbers and the main difficulties they have encountered. All these reports are included in the Annual Report of the State Prosecution Office which is public and accessible on its webpage (fiscal.es). Similarly, copies of the indictments that close the investigation stage by the prosecutor are usually made available to the media. Police units normally provide statistics on the operations they have carried out each year and this is normally made available to the media, although the data itself are not easily accessible on their web pages or on the Ministry of the Interiorâ&#x20AC;&#x2122;s, from which they depend. SEPBLAC provided through its webpage systematically information on its activities until the site recently got blocked due to changes through Law 10/2010. This glitch has unfortunately taken too much time given that the law was passed a year and a half ago.

5.2.3. Accountability (law) To what extent are there provisions in place to ensure that law enforcement agencies have to report and be answerable for their actions? Score: 100 Spanish regulations cover accountability to a sufficient degree in the law enforcement agencies. The FECCO must inform the Chief Prosecutor annually of its proceedings and immediately in the event of the caseâ&#x20AC;&#x2122;s importance making it necessary or whenever the Chief Prosecutor makes such a request to the head prosecutor of the office concerned or any of his prosecutors if the matter is urgent. The Chief Prosecutor, in turn, must report annually to Parliament and the Government (EOMF, arts. 9, 10, and 11). The prosecution is obliged to inform the plaintiff of the reason it decides to dismiss a case, and of any action derived from it. If the case is referred to a court of first instance to pursue criminal proceedings, it is the court that has the obligation to inform the plaintiff and allow him to take action. Even the suspect who is being investigated by the prosecution service, and who must be assisted by his lawyer, has to be informed of any action taken (EOMF, art. 5). Uncalled for, irregular or criminal actions that may have been committed by the authorities or officials in the exercise of their duties, whatever their rank, are subject to compulsory investigation and, if merited, prosecution. All citizens have the obligation to report any crime they may witness. This obligation is particularly applicable to anyone with knowledge of an offence that has been committed, when in the exercise of his profession, trade or appointment (arts. 259 and 262, LECr).

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The General Council of the Judicial Power, the State Prosecution Service and the security forces have the Council’s disciplinary committee and internal inspection services to receive complaints against civil servants or other authorities and to send their investigations to those entrusted with taking disciplinary action or, if necessary, to the judicial authority in charge of criminal prosecution (LOPJ arts. 132 and 171; EOMF art. 60; L.O. 4/10 on the Disciplinary Regime of the National Police Corps; L.O. 12/2007, on the Disciplinary Regime of the Civil Guard). Members of the police have no privileged jurisdiction. Prosecutors are under the jurisdiction of the High Court of Justice (Tribunal Superior de Justicia, TSJ) of the Autonomous Community in which they serve, except for senior prosecutors and those of the National High Court (Audiencia Nacional) and the Supreme Court (TS), who are subject to the latter’s jurisdiction (LOPJ, arts. 57.1.2 and 73.3).

5.2.4. Accountability (practice) To what extent do law enforcement agencies have to report and be answerable for their actions in practice? Score: 75 In practice the level of accountability of the members of these agencies in Spain is reasonably acceptable although there is a degree of corporatism when investigating possible offences committed by prosecutors themselves. No data on the results of the Prosecution Inspectorate’s report are publicly available. In accordance with art. 9 of the EOMF, The Chief Prosecutor presents an annual report to the Government on ‘his activity, criminality trends, crime prevention and recommended reforms for enhancing efficiency’. Copies of the report are also sent to Parliament, before which the Chief Prosecutor must appear for its presentation, and to the General Council of the Judicial Power. Similarly, the senior prosecutors in each Autonomous Community also draw up an annual report on their own jurisdictions which is presented to the Chief Prosecutor, the regional government and the Legislative Assembly, before which they must appear for its presentation (EOMF, art. 11.2). The reports are also sent to the media and are available on the Prosecution Service’s webpage. The complaints received by prosecutors must be either sent to the corresponding investigating court in order to continue with the investigation or dismissed when, following the prosecutor’s enquiries, no evidence of criminal activity has been found. In the latter case, the prosecutor must justify his decision and inform the plaintiff for him to proceed if the investigating judge finds evidence contrary to the prosecutor’s opinion (LECr, art. 773). Complaints on the functioning of the FECCO are not accounted separately in the annual report for 2009. It does state, however, that the criminal procedures by all Spain’s prosecutors in that year exceeded 4,700,000, and 257 in the case of the Special Prosecution Office, although it should be borne in mind that these cases are far more complex. In any case, compared with the more than four million criminal proceedings, to which should be added the prosecution service’s other cases, the number of complaints presented to the Prosecution Inspectorate is very small. According to the latest annual report, private individuals presented 90 complaints to the Prosecution Inspectorate, lawyers presented 19, the Disciplinary Committee of the General Council of the Judicial Power 8 and the judiciary 4. The report makes no mention of the outcome of these complaints. Neither does it specify which were dismissed by the prosecution but reiterated before a court, nor of their outcome. There is no information available to determine if this low number of complaints is due to satisfaction with the service provided or just to a 105


spirit of resignation. There is no immunity when investigating crimes committed by prosecutors or police, although those interviewed admit that there may be a certain degree of corporatist protection in the case of the prosecutors. As one of them says: ‘I understand that on the judges part there might be a certain corporatism or ‘closing ranks’ if it is a question of investigating a prosecutor, but I have no doubt in affirming that if the suspect is a member of the police the investigation will be pursued to the full’ (Interview 3).

5.2.5. Integrity mechanisms (law) To what extent is the integrity of law enforcement agencies ensured by law? Score: 50 Although there are regulations that lay down ethical principles for these public employees, in addition to disciplinary codes, there are important loopholes in them that have a fundamental effect on the exercise of private activities while in public employment. Spain does not have, as such, specific codes of conduct establishing ethical principles for the police and prosecutors. But there are a large number of legal and disciplinary rules which include them. First, the Penal Code has the most serious and severe catalogue of forbidden conduct related to corruption, with the corresponding penalties common to all public employees. Secondly, there are disciplinary regulations that establish incompatibilities and prohibitions and the responsibilities and penalties involved (LOPJ arts. 389 and ff., and 405 and ff.; EOMF arts. 60 and ff..; LOFCS, art. 5; L.O. 4/10 on the Disciplinary Regime of the National Police Corps; L.O. 12/2007, on the Disciplinary Regime of the Civil Guard; Cartilla del Guardia Civil of 1852, still in force). Gifts are expressly forbidden in the Penal Code (art. 422, modifying the previous article 426, by Organic Law 5/2010). On its reform in 2010, the prohibition has been further clarified, increasing the severity of the penalty. Currently, the penalty is six months to one year in prison and suspension from duties of from one to three years to any authority or civil servant who for his own gain of for that of a third party should accept directly or through another presents or gifts in consideration of his position or function. The provision does not specify a minimum value for the gifts so the penalty is also applicable to gifts that cannot be quantified economically. There are no restrictions to subsequent employment for these public employees. Prosecutors, the same as judges can request voluntary leave of absence (EOMF art. 47; LOPJ art. 356). The salaries they can expect to receive in certain law firms or private companies are considerably higher than what they receive as public employees. The law specifies no limitations on private activities for them once they cease to hold office.

5.2.6. Integrity mechanisms (practice) To what extent is the integrity of members of law enforcement agencies ensured in practice? Score: 75 The three interviewees coincide in pointing out that in the prosecution service and in the police the 106


rules outlined in the section above are generally effective (and to a far greater extent than in other public spheres such as, for instance, local administration, where the rules on incompatibility are in practice ineffective), in addition to there being a corporate control that rejects internal corruption. Nonetheless, one of them, referring to the prosecution service, admits that ‘could be cases in which they are not applied sufficiently firmly’ (Interview 1). Another, who pointed to the significant disparity – noted above- between the large number of criminal proceedings in progress (more than 4 million in 2009) and the scant number of cases presented to the Prosecution Inspectorate, could be suggesting that ‘the correction system for inefficiency and malpractice is minimal’ (Interview 2). The third interviewee notes that the ‘police are very strict in the application of their disciplinary regimes and quite anti-corporatist’ (Interview 3). This view has been confirmed by Commissioner José Luis Olivera during meetings with the advisory committee. Access to both the careers of prosecutor and different police corps require the knowledge of all these regulations. Furthermore, all these agencies have specialisation courses that cover them all. Nevertheless, although the course is usually of a high quality, ‘there are rules or stable mechanisms to ensure the teaching staff are qualified or to check the results’. On occasion, the diploma, which is in practice simply awarded for attendance, is just a bureaucratic requirement for access to a specialised position (Interview 2).

5.3. Role 5.3.1. Corruption prosecution To what extent do law enforcement agencies detect and investigate corruption cases in the country? Score: 75 There has been a large increase in the number of cases of corruption reaching these agencies and the courts and a more than acceptable ratio of convictions. Nevertheless, there are significant problems with procedural efficiency, especially in corruption ‘mega-trials’. It is very difficult to estimate the success level of police in prosecuting corruption as we cannot compare the number of cases of corruption that are brought to court, or at least that are denounced to the police, the prosecution service or the courts, with the number of ‘real cases’ of corruption, since the latter is, of course, unknown. What has been seen over the past few years is a noticeable increase in the number of cases that are made known to the police, the prosecution service and the courts. It is difficult to determine if this is due to a greater prevalence of corruption in Spain or to an improvement in the efficiency of the law enforcement agencies. In fact there are indications that suggest both may be true. On the one hand, the years of the construction boom (1997-2006) seem to have given rise to a sharp increase in corruption especially in the local and regional spheres (Jiménez, 2009; Fundación Alternativas, 2007-2010). On the other hand, over the past few years the efficiency of the law enforcement agencies has improved with the creation of new and more specialised units or the reinforcement of already existing ones: the FECCO, the Environmental and Town Planning Prosecution Service, the Town Planning Crime Group in the Civil Guard’s UCO and the UDEF (Fundación Alternativas, 2008). Thus, focusing on the data on FECCO’s activity, it can be seen that from 88 proceedings in 2000, it participated in 257 in 2009. In its 14 years in existence, it has achieved 86 sentences of which 74 (86%) have been convictions. In 2010 the Environmental and Town Planning Prosecution Service took part in 107


5,284 judicial proceedings, of which 1,710 were related to town planning, frequently involving corruption. In cases related to town planning, this prosecution service recorded 426 convictions (72%) for 165 acquittals. As regards the police, a press release from the Ministry of the Interior, dated 10 December 2009, quoted in section VI above, summarised police action against corruption between 2004 y 2009 and showed a significant efficiency. As to whether the powers accorded to police and prosecutors (warrants for searches, arrests, access to personal data, etc.) are adequate to combat corruption, the interviewees consider they are, at least on paper: ‘I believe that the powers to investigate, individually considered, are adequate and that in fact there is no other investigative measure employed in other neighbouring countries that we cannot use for lack of a legal basis’ (Interview 3). Nonetheless, all those interviewed agreed that efficiency was a problem derived from the nature of judicial investigations in Spain. As is well known, it is not the prosecutors who direct judicial investigations in Spain, but the investigating judges. Even for the preliminary investigations carried out directly by the prosecutors require judicial authorisation when they might affect fundamental rights (entry and searches, telephone tapping, etc.) (CE arts. 18.2 and 18.3; LECr arts. 569 and 579 and ff.). In the opinion of one of the interviewees, ‘it is the way our ultra-protective system is applied that makes proceedings almost unworkable’ (Interview 3). In issues that are as complex as the large-scale corruption cases, ‘our legal system and judicial procedures are incapable of managing investigations with several dozen suspects, hundreds of thousands of tapped telephone conversations and pages of proceedings so voluminous they have to be stored in hundreds of cardboard boxes’ (Interview 3). The ‘procedural mess’ this gives rise to makes it possible for a whole series of ‘procedural incidents, errors, formal defects, missed deadlines, undue dilatoriness, lack of motivation, etc., to occur, which are very likely to result in the defendants being acquitted (Interview 3). As another of the interviewees commented, ‘Spain needs criminal cases to be handed over to the prosecutors, a well-established practice in many democratic countries, since prosecutors are specialised in a way that judges are not. The latter could act as safeguarding judges, deciding on matters that affect fundamental rights and subsequently to hear the cases and give judgment. The investigation should be started by the prosecution service, with the police under its authority’ (Interview 1). Although, another remarks that if the preliminary investigation is handed over to the prosecutors, ‘I dare say that, from the point of view of combating corruption, a new model of prosecutor-centred investigation could give rise to more problems than solutions if it is not accompanied by corresponding modifications in the statute and career of public prosecutor, making it completely independent of the Executive, starting at the top with the Chief Prosecutor, who should naturally no longer be appointed by the Government’ (Interview 3).

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6. Electoral Management Body Table 26: Final score Electoral Management Body Final Score Electoral Administration: 97 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms

Role

Law 100 100 100 75

Practice 100 100 100 100 75

多Do they regulate the funding of candidates and political parties effectively?

Not applicable (see Court of Audit)

多Can the Electoral Boards ensure the integrity of the elections?

100

Summary Since the first free competitive elections in 1977, the Electoral Administration's performance is evidence over the course of a great many elections that it has never given rise to significant problems, in either legal or political terms. On the contrary, the prestige accrued by the Central Electoral Board shows that it has been decisive in ensuring that every single election so far has been characterised by the transparency, objectivity and equality that should be demanded for any democratic process. Structure and Organisation The Electoral Administration has a fundamental task in election processes. Its supreme organ is the Central Electoral Board, whose members are mainly judges, as is the case in the Provincial and Area Boards. The remaining members of the boards are university professors jointly designated by the parties represented in Parliament. While not a judicial body, the Electoral Boards act in strict subordination to the law and their resolutions can be appealed in the law courts. All the Electoral Boards' activities are exhaustively detailed in the Organic Law of the General Electoral Regime (LOREG), a special law whose approval or amendment requires an absolute majority in the Congress of Deputies.

6.1. Capacity 6.1.1. Resources (practice) To what extent does the electoral management body (EMB) have adequate resources to achieve its goals in practice? (Junta Electoral Central especially) Score: 100 The human resources of the Electoral Boards must have the highest academic and professional qualifications. Their administrative and logistic resources are adequate for them to function and there is nothing to suggest that insufficient resources might have hindered their activities. Their economic

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resources are also sufficient and do not affect how they function. A more detailed explanation follows. Human resources The Central Electoral Board (Junta Electoral Central, JEC), the Provincial Boards (Juntas Provinciales, JEP) and Autonomous Community Boards (Juntas de Comunidad AutĂłnoma, JCA) have a mixed composition but with a majority of members from the various categories of the judiciary: eight judges from the Supreme Court in the JEC, three judges from the Provincial Courts in the JEP, judges of first instance in the JEZ and judges of the high courts in the JCA. The remaining members of the Central, Provincial and Autonomous Community Electoral are university professors and those of the Area Electoral Boards are graduates in law, political science or sociology. The secretaries, without speaking or voting rights, are also university graduates and civil servants. They have higher academic qualifications and sufficiently accredited professional experience, and can count on administrative support personnel. Administrative and logistic resources These are provided, depending on the case, by Parliament, the Government, the local authorities or, alternatively, by provincial or other courts. In the case of the Electoral Boards of the Autonomous Communities, resources are provided by the regional parliament. An adequate number of civil servants and facilities with the necessary equipment (computers, telephones, fax, etc.) are placed at the disposal of the Electoral Boards. The administrative personnel are dedicated to these tasks on an exclusive basis while so required by the Electoral Boards, as are the facilities and equipment. Economic resources The members of the Electoral Boards, -judges and university professors- are civil servants and do not cease to receive their salaries while they are members of one of them. Neither do the graduates forming part of the Area Electoral Boards (JEZ) forfeit their income as professionals while on duty. The members of Electoral Boards do not receive a fixed salary, but allowances and bonuses. The allowances for the Central Electoral Board are established by Parliament in its budget and those of the remaining boards by the Government. Those of the Autonomous Community boards are set by the regional parliaments. Royal Decree 605/1999 of 16 April determines the sums to be paid to the members of the provincial and area boards. Duly updated and converted to today's values, suffice it to say that the bonuses of the presidents of the provincial boards, the highest rank, are not in excess of â&#x201A;Ź3,500 for each election, to which should be added the allowances for each session. The members of the Central Electoral Board receive a greater remuneration, which might be double those noted above, as determined in the parliamentary budget.

6.1.2. Independence (law) To what extent is the electoral management body independent by law? Score: 100 The regulations governing Spain's general elections, elections to the Congress of Deputies and the Senate, local elections and elections to the European Parliament have the force of law. They are specifically included in a special type of law, the organic laws, whose approval, modification and derogation require an absolute majority in the Congress of Deputies, as established in article 81 of the Constitution. In consequence, they are regulations that must be based on the consensus of the forces represented in Parliament and that would be difficult for a single party to unilaterally revise. All the 110


reforms of Organic Law 5/1985 of 19 June, on the General Electoral Regime (LOREG) have been agreed upon by the two largest parties, who together account for more than 80% of the vote and of the seats in Parliament. The LOREG is also applied to the elections of each Autonomous Community, regulating matters like the right to active or passive suffrage, electoral administration, procedures, resources, offences and infractions. Other questions are regulated by the respective electoral laws of each Autonomous Community. The Electoral Boards -Central, Provincial and Area- are regulated in articles 8 to 15 of the LOREG. The mixed composition of the Electoral Boards, made up of judges and academics, but with a majority of judges, guarantees that all their resolutions are in accordance with the law. The fact that the other members, by virtue of the LOREG, are university professors in the Central and Provincial Boards and recognised jurists in the Area Boards and must be jointly proposed by the political parties in Parliament means that they are individuals with independent opinions and knowledge, in which legal criteria prevail over any party preferences. Article 16 of the LOREG establishes the irremovability of the members of the Electoral Boards during the period, one legislature, in which they serve as president or members of the Electoral Boards and they can only be suspended by a decision of a superior Electoral Board or by the Central Electoral Board in the case of one of its members. The President and Vice-president of the Central Electoral Board must be appointed, as established by the LOREG, from among the judges who are its members. The same applies to the Provincial and Area Boards. As shown in the regulations, these matters are dealt with in a very similar manner in the electoral laws of the Autonomous Communities. The members of the Central and Provincial Electoral Boards are public employees of the judiciary and the public universities; in the Area Boards there is a majority of three members of the judiciary and two members who are graduates in law, political science or sociology, who may or may not be civil servants. In any case, the Electoral Boards do not have contracted personnel. The secretaries are, in the Central Board, the Secretary General of the Congress of Deputies, in the Provincial Boards, the Secretary of the Provincial Court, and in the Area Boards the Secretary of the court of first instance. The Secretaries form part of the Electoral Board but have no vote (see article 17 of the LOREG). The administrative support personnel of the Electoral Boards is made up of civil servants from Parliament, the judiciary or local administrations.

6.1.3. Independence (practice) To what extent does the electoral management body function independently practice? Score: 100 Throughout their more than three decades in existence, the Electoral Boards have participated in a fair number of elections of different types: ten general elections, nine local, 43 regional, six for the European Parliament and eight referendums. Specifically, the Central Electoral Board, which is the supreme authority in electoral matters, has a broad and heterogeneous range of competences (see article 19 of the LOREG) which it has carried out, with different groups of members over the years, in a highly correct manner, with no scandals or political conflicts in its agreements, resolutions and instructions. Once again, it is necessary to look back to the members of the Central Electoral Board and the other 111


Boards to explain the absence of scandals and conflicts. Most of their members are serving judges, who are independent and impartial and uninvolved in political activity, or jurists who, despite being jointly designated by the political forces in Parliament, are not necessarily members of them or are at the forefront of political life and, consequently, are not bound by party discipline. In their routine functioning, the members of the Electoral Boards and, of course, the Central Electoral Board, act as a jurisdictional body: bound by the law and legal criteria, avoiding political confrontation. Their agreements, when agreement is impossible, are taken by majority vote, with those dissenting being able to express their opinions by way of a dissenting vote which can be used, as in court proceedings, to prepare an appeal if they should consider it appropriate. The Central Electoral Board's resolutions can be criticised in accordance with the principle of freedom of expression, but normally they are accepted unopposed by the political forces they might affect. A resolution from the Central Election Board against a political party competing in an election is always obviously taken as a corrective, but its decisions are usually respected by the parties involved, and this is perceived by public opinion and by analysts as proof of its neutrality and impartial application of the electoral law. Its resolutions, can be appealed in the ordinary courts and, if necessary, in the Constitutional Court.

6.2. Governance 6.2.1. Transparency (law) To what extent are there provisions in place to ensure that the public can obtain relevant information on the activities and decision-making processes of the EMB? Score: 100 Information on the activities of the Electoral Boards is accessible to the public. Given the public and political nature of the matters which it examines, decides upon and is consulted, those qualified to access information vary according to the subject matter: candidates, parties, electors, the media. Furthermore, the information obtained can be made available immediately to the public, without it being unlawful to do so. The deliberations of the Electoral Boards are recorded in the minutes prepared by their secretaries and are at the disposal of the members. The representatives of the candidatures competing in the elections in progress are immediately informed of the resolutions, so that it can be said that there is a constant and fluid relationship between the Electoral Boards and the contenders, the media and public opinion. The Electoral Boards' function is to guarantee the transparency and objectivity of the elections and the principle of equality and, specifically, the Central Electoral Board has significant competences to carry out the task in its capacity as the paramount body in the entire electoral administration. Hence, the information provided by the Central Electoral Board on election processes is of the highest importance, whatever the issue involved. It should be highlighted that the LOREG is extremely detailed in its treatment of electoral procedures and the organisation of elections, in such a way that it regulates the functioning of the Electoral Register Office, the distribution of polling stations, their opening and closing times, the presentation of candidate lists, their proclamation, the presentation of appeals, their resolution, the distribution of timings and places for election campaigns, the supervision of the design of envelopes and ballot papers, the counting of votes cast and the proclamation of those elected and other matters, while the Central Electoral Board is the paramount body of the electoral administration (article 8 of the LOREG), entrusted with the supervision of the entire electoral process. Naturally, the public information provided by the Central Electoral Board is of the greatest importance because its 112


resolutions have the highest legal efficacy, subordinate only to the rulings of a court of law if they are appealed. As regards the funding of elections, the Central and Provincial Electoral Boards only have a limited power of oversight, since financial oversight as such pertains to the Court of Audit (article 132 of the LOREG).

6.2.2. Transparency (practice) To what extent are reports and decisions of the electoral management body made public in practice? Score: 100 In Spain, the rule of State confidentiality affects a restricted group of activities amongst which are not those of the Electoral Boards. All information concerning their activities during elections are made available to the parties concerned and the media, normally through the Central Board as the paramount body of the electoral administration. The Central Electoral Board's website is accessible to any member of the public seeking information on 127 its past or present activities. Naturally, its calendar of activities for each election is public and available beforehand to both citizens and political parties. Its internal deliberations are not public, and neither are its minutes, as is customary in jurisdictional organs, although the Board is not one strictly speaking.

6.2.3. Accountability (law) To what extent are there provisions in place to ensure that the EMB has to report and be answerable for its actions? Score: 100 The electoral administration is hierarchical, with the Central Electoral Board at its head. Against the decisions of the Electoral Boards, candidates and political parties can lodge appeals at the immediately higher Board and ultimately at the Central Board, which among other competences, 'issues legally binding instructions to the Provincial Boards and, if such is the case, the Boards of the Autonomous Communities; decides with a legally binding character on the consultations of the Provincial and Autonomous Community Boards; revokes on its own initiative at any time or at the request of an interested party the decisions of the Provincial and Autonomous Community Boards if they are contrary to the Central Board's interpretation of electoral regulations; and resolves the complaints, objections and appeals submitted to it (article 19 of the LOREG; see also article 20). It must be pointed out that 21.2 of the LOREG established that the Central Electoral Board's decisions in objections to rulings issued by the Area, Provincial and Autonomous Community Boards could not be appealed by judicial means. However, the Constitutional Court's STC 149/2000 of 1 June declared unconstitutional and null the use of the expression 'judicial', so that the Central Board's resolutions can now be appealed in the law courts. 127

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Furthermore, article 49 of the LOREG establishes that appeals can be lodged in the law courts against candidates proclaimed by the Electoral Boards and articles 109 to 120 of the LOREG regulate the procedures to be followed in appeals to the law courts against the proclamation by the Electoral Boards of those elected. In both cases, as well as against the decisions of the courts of law, there is the possibility of appealing to the Constitutional Court. In addition to the judicial oversight to which the Electoral Boards' decisions are subject, the fact that the Electoral Boards' activities are public and open to public knowledge means that they are also subject to control by public opinion. Finally, both the Congress of Deputies and the Senate can request what information they require from any State authority, in addition to creating commissions of investigation on any issue and, therefore, on the Electoral Boards also. In summary, the Electoral Boards' activities can be reviewed by their superior Boards and are additionally subject to the oversight of public opinion, Parliament, the law courts and, if necessary, the Constitutional Court. As regards their economic activities, it should be borne in mind that the Electoral Boards' budgets are determined by Parliament in the case of the Central board and by the Government in the provincial and Area boards. In all cases, financial oversight is carried out in accordance with the current law (article 22 of the LOREG). In an individual capacity the members of the Electoral boards and of the polling stations have the status of civil servants as regards the perpetration of electoral offences and infringements regulated in Chapter VIII of Title I, articles 135 to 153 of the LOREG.

6.2.4. Accountability (practice) To what extent does the EMB have to report and be answerable for its actions in practice? Score: 100 Legislation is always effectively applied in practice. It cannot be otherwise, given the organisation's hierarchical nature and its submission to a whole range of political and jurisdictional controls. All the Electoral Boards' activities are foreseen in the relevant legislation and can be appealed. Accountability before Parliament and public opinion and, in the event, the law courts and the Constitutional Court, is guaranteed. Throughout any election the participants, the media and the public are informed of the daily activities of the Electoral Boards, such as objections presented to them, their resolutions, agreements adopted, clarifications on electoral regulations, authorisation of balloting papers and envelopes, penalties imposed, instructions from the Central Board to the other Boards, etc. And, as explained, appeals can always be brought against them.

6.2.5. Integrity mechanisms (law) To what extent are there mechanisms in place to ensure the integrity of the electoral management body?

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Score: 75 The integrity of the individual members of the Electoral Boards is not required by any regulation or special procedure. There are no special codes of conduct, integrity controls or specific incompatibilities of any type. All of them, whether judges, university professors or graduates, in the case of the Area Boards, have the status of civil servants as established in article 24.1 of the Penal Code: 'Anyone who by immediate application of the law or by election or by the appointment from a competent authority exercises public functions shall be considered a civil servant'. The LOREG itself, in its article 135 establishes more specifically that '1.- For the purposes of Chapter VIII of Title I that regulates electoral offences and infringements, civil servants are all those who have that status according to the Penal Code, who carry out public duties relating to the elections and, in particular, the presidents, members and inspectors of polling stations and their corresponding substitutes. 2.- To the same purposes, the status of official documents pertains to the Census and authorised copies, minutes, lists, certificates, receipts or appointment credentials of those taking part in the election and any others issued by persons to whom the present law should entrusted with their issuance'. The integrity of the members of the Electoral Boards is guaranteed by the Penal Code, which is the ultimate guarantee possible in a nation subject to the rule of law.

6.2.6. Integrity mechanisms (p ractice) To what extent is the integrity of the electoral management body ensured in practice? Score: 75 There are three factors in a democracy that contribute to ensuring the integrity of the Electoral Boards. First, both criminal and electoral law. Criminal law establishes what conduct is forbidden and the penalties to be imposed; the electoral law established in great details all the procedures to be followed in an election and, of course, the composition and powers of the Electoral Boards and the appeals against their resolutions. Secondly, the political parties that compete and play an active role at every moment of the elections. It should be borne in mind that part of the Electoral Boards' members are jointly designated by the parties represented in Parliament. Furthermore, through their candidature representatives the parties know and can appeal against the decisions of the Electoral Boards they consider prejudicial. In summary, the competition between the political parties themselves stimulates their vigilance and contributes to ensure that the Electoral Boards' activities are in accordance with the law. Thirdly, the ultimate guarantee resides in the courts of law and in the Constitutional Court which, in practice, resolve all conflicts of interest that might persist after the Boards' resolutions. Fourth, as in all open societies, public opinion exerts a diffuse but effective control over the Electoral Boards' performance. Information, complaints and criticism all contribute to ensure the integrity of the Electoral Boards. It can be affirmed that the integrity of the Electoral Boards, that is, their compliance with the law, is in practice absolute. This is proved by the fact that over so many years and elections there have been no denunciations before a court of law against a member of an Election Board by either parties or candidates, and the lack of any significant debate in this respect among the general public or among academics or jurists. Nevertheless, perhaps in practice it would be convenient to introduce some specific element of control which in very special cases might prevent any deterioration in the institution's image, such as ethical 115


codes or some control over incompatibilities, assets and income.

6.3. Role 6.3.1. Campaign regulation Does the electoral management body effectively regulate candidate and political party finance? Score: Not applicable The powers of the Electoral Boards and specifically of the Central Electoral Board are very limited in this respect because it is the competence of the Board of Audit, with which the Electoral Boards cooperate (article 132.1 of the LOREG). With a general character, the LOREG's article 19.1.i) establishes that it is the Central Electoral Board's duty to 'Ensure the compliance with the regulations on electoral accounts and expenses by the candidatures during the period extending from the call to elections to the hundredth day after the day they are held'. More specifically, article 124 of the LOREG establishes that the general administrators and those of the candidatures should inform the Central Electoral Board and the Provincial Boards of the opening of an account to which all the funds to cover electoral expenses are to be paid. The Electoral Boards can request at any time from the banks whatever information they may require on these accounts and if their investigations reveal evidence of electoral wrongdoing they must report it to the prosecution service. Additionally, the Electoral Boards can impose fines in the event of infringements that are not of a criminal nature (LOREG, article 132). Article 127.bis establishes that it is the Central Electoral Board that receives requests for advances on State subsidies for the campaign and their delivery to the State General Administration. In summary, it can be said that the role that electoral legislation assigns to the Electoral Boards as regards the funding of candidates and parties is minimal, being limited to verify that there are exclusive accounts for election purposes. The Electoral Boards have no technical control over the accounts, which is the competence of the Court of Audit.

6.3.2. Election administration Does the EMB ensure the integrity of the electoral process? Score: 100 Spain has had, in addition to the constituent elections of 15 June 1977, ten general elections to Parliament, the Congress of Deputies and the Senate; nine local elections (the last held on 22 May 2011); more than 43 regional elections; six elections to the European Parliament; three general referendums and five regional referendums. All have been held with the political normality habitual in consolidated democracies; with all the conditions of freedom of expression and universal active and passive suffrage; with guaranteed competitiveness and equality of opportunities among the parties involved. Ultimately, with all the conditions required for democratic and conflict-free elections. As a result of these elections power has alternated several times, absolute majorities have been gained on many occasions and simple majorities on others but in all cases the results have been accepted by the 116


parties participating and by the public. Hence, it can be affirmed that the electoral system as a whole has functioned satisfactorily because it has regularly allowed the representation of minority interests without excessively fragmenting the chambers or the party system, which has varied very little since the first free elections in 1977; has not hindered the achievement of majorities so that the formation of stable governments that have endured to the end of their legislatures has been the norm in Spain and in the Autonomous Communities. In all elections the Electoral Boards have functioned correctly, satisfactorily performing all the responsibilities assigned to them by the electoral laws. The right to active suffrage is a fundamental right which has the maximum legal protection: an organic law, preferential protection before the courts and the possibility of appeal before the Constitutional Court; it is recognised in Spain to those of full age over 18), with no more restrictions than those affecting persons deprived of that right by a firm court order on incapacity to exercise it (article 3.1 of the LOREG). The only requirement for exercising the right to vote is to be included on the electoral roll (article 2.2 of the LOREG). Everything relating to the electoral roll is the responsibility of the Electoral Census Office, which is part 128 of the National Statistical Institute and operates under the direction and supervision of the Central Electoral Board (article 29.1 of the LOREG). The electoral roll is published before the elections and each elector is sent a census card informing him of the constituency and polling station where he can vote. If the data are erroneous or the citizen does not appear in the roll, this can be rectified through a simple procedure. Appeals can be lodged against the resolutions of the Electoral Census Office before a judge of first instance (article 40.1 of the LOREG). The Electoral Census Office can provide a copy of the electoral roll to the representatives of each candidature. The LOREG devotes articles 29 to 41 to the detailed regulation of the Electoral Census Office, its responsibilities, the conditions and types of inscription in the roll -which is compulsory to be able to vote-, the drawing up of the roll, its amendment and access to census data. The number of voters who are unable to exercise their right to active suffrage due to causes beyond their control and attributable to errors or deficiencies in the organisation of elections has been practically irrelevant for the elections held since 1977. With sufficient advance warning, of around a month, advertising campaigns are carried out to advise the public to examine the electoral roll s with the aim of detecting mistakes and correcting them in good time. Both the procedures for voting at the ballot box and for postal voting are explained in these campaigns, in which the public is also warned against manipulations that could lead to ballot papers being declared void, along with other matters of 129 interest. The public can access information such as this on the Ministry of the Interior's web page. Articles 70 and 71 of the LOREG entrust the Electoral Boards with the approval of the official models for ballot papers and with verifying that the papers and envelopes prepared by the parties are in line with the officially established model. Article 81 of the LOREG establishes that in every election each polling station should have a ballot box, a polling booth to allow votes to be secret and a sufficient number of ballot papers and envelopes in accordance with the official model of all the candidatures that take part.

128 129

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The voting procedure is also regulated in detail in articles 84 to 94 of the LOREG and the public count in each polling station and the general count, which is also public, carried out the third day after the election by the Electoral Boards are regulated in articles 103 to 108 of the LOREG. Furthermore, as mentioned above, appeals against the agreements of the Electoral Boards can be lodged before the law courts (article 109 of the LOREG). Finally, in 2011 the LOREG has been modified in order to improve the system. Organic Law 2/2011, of 28 January, which modifies Organic Law 5/1985, of 19 June, on the General Electoral Regime, has introduced technical improvements in the following sections: a) as regards the electoral roll, for instance, it reinforces the safeguards to prevent fraudulent inscriptions or inclusions of convenience from being successful; b) it reforms the voting procedures for Spaniards resident abroad to guarantee their freedom to vote and prevent irregularities; c) in election campaigns it prevents interferences from the public authorities by way of institutional campaigns or the inauguration of public works, and on the other hand reducing advertising and propaganda during the run up to elections; d) as regards advertising and electoral information in the media, it extends the prohibition of contracting advertising space, so far limited to publicly-owned media, to privately-owned television channels; e) in modifications affecting the election day, it lowers the age limit for becoming a member of a polling station without making it a new obligation. It implements measures to ensure that, without detriment to currently existing safeguards, casting a vote is a personal process up until the envelope is placed in the ballot box. It clarifies the circumstances in which a vote can be considered void and establishes the scope of the Government's competence to regulate the voting procedures for the blind or visually impaired.

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7. Ombudsman Table 27: Final score Ombudsman Final Score Ombudsman: 72 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms

Law

Practice 75 75 100 50 75

100 75 75 50 75

Investigation Role Promoting best practices

50

Summary The Ombudsman has a good, stable, and well-paid staff with full time dedication to the institution. His independence is well preserved by law, so he can adequately develop his responsibilities. The problem is that despite the efforts taken by the Ombudsman in order to improve the transparency and accessibility of the institution, there is a general lack of awareness of the role of the institution among the population. Though the website of the Ombudsman is informative, there should be an outreach programme in place to make the Ombudsman’s services better known to the public. Finally, parliamentary oversight of the Ombudsman has been more focused on analysing the content and procedural matters of the complaints handled by the Ombudsman than on the internal operation of the Ombudsman’s Office himself; this should be changed. The internal operation of the Ombudsman should also become a permanent preoccupation of Parliament. Structure and Organization The institution was established in 1978. Article 54 of the Spanish Constitution states that an organic act shall regulate the ‘Defensor del Pueblo’ (People’s Defender), under the high commissioner of Parliament, appointed by it in order to defend basic rights, and authorized to supervise the activities of Public th 130 Administrations. Organic Act 3/1981, April 6 , regulates the institution’s functioning and organization. The Ombudsman is elected by the parliament for a term of 5 years. The parliament appoints a joint Congress-Senate commission responsible for the liaison with the Ombudsman and for reporting to the plenary sessions. The People’s Defender may appeal to the Constitutional Court with regard to the issue of conformity between the Constitution and the laws and may lodge a complaint against the violation of 131 the basic civil rights before it. Although the Ombudsman does not exercise executive power, his auctoritas suffices to control the administration who must give him an answer on whether his recommendations have been implemented or not. The publication of the ombudsman’s report with all the information about the procedures carried out by the Ombudsman is a very useful tool in order to achieve a change in the behaviour of the administration and actually those reports are really complete. Until now, however, the Ombudsman has 130 131

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not directed the focus of his recommendations to the ethical behaviour of the personal working for the administration or on promoting principles of good administration or rules on effective complaint handling.

7.1. Capacity 7.1.1. Resources (practice) To what extent does an ombudsman or its equivalent have adequate resources to achieve its goals in practice? Score: 75 According to the Secretary General of the Ombudsman’s office, the funding of the Ombudsman is 132 generally adequate. The Ombudsman has been traditionally well treated in the Budget. The amount of funding has increased steadily during the last years, with a substantial increase in the funding during 133 the years 2004 to 2009. Due to the economic crisis, the budget of the Ombudsman has suffered a 134 decreased in the years 2010 and 2011 (decrease of 2.11% in 2010 and 4.87% in 2011). The Ombudsman was appointed as National Preventive Mechanisms of the Subcommittee on Prevention of Torture in November 2009. This implies a new operational function, i.e. visiting all places of detention in the country. This meant an increase in the amount of work but this had no reflection in the Ombudsman Budget. The Secretary General calculated that this new function would cost the office around one 135 million Euros but only EUR 187,000 were added for this new area in the annual budget. According to Antonio Rovira (former deputy Ombudsman and acting Ombudsman) the office has enough resources to deal with this new function. He stresses that the ombudsman has to be a flexible institution, agile and efficient, with the just resources not reproducing administrative structures and the defects of structures 136 in terms of lack of efficiency, bureaucracy etc. . The staff working for the office is qualified and experienced. This is due to the Ombudsman’s power to freely employ whoever it considers best for the office (art 27.3 of the Ombudsman’s Organizational and Running Code, OORC). The office must only respect the merits and capacity principle, and when there is more than one candidate for the same position, they must select the civil servant with preference to non-civil servants. As a result, civil servants constitute the majority of the personnel. The consequence is that someone who enters the office is normally already trained in human rights issues. The Ombudsman office only trains its workers in languages and TICs, and additionally, some of the employees take part in 137 a Masters on Human Rights course offered by educational institutions. On top of this, employees have very competitive salaries, even compared to the private sector. According to the Secretary General of the Ombudsman, the office is probably one of the best places to work inside the Spanish administration: the wages are high, there is a high degree of stability (only around two employees were dismissed in the last years, the average duration in a position is 16 years), and all the employees, except those providing services, are considered civil servants (whether they are in origin or not). Moreover, civil servants working for the Ombudsman, keep not only their category, but also their actual position, which gives

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Interview with Bartolomé José Martínez (Secretary-General of the Ombudsman), Madrid, May 23, 2011. More information here. 134 More information here. 135 Interview with Bartolomé José Martínez (Secretary-General of the Ombudsman), Madrid, May 23, 2011. 136 Interview with Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman), Madrid, June 15, 2011. 137 Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011. 133

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them room to develop their activities without restrains. The only negative point is that there are not many incentives for the staff. There are basically three different positions at the office: advisors, technical advisors and area responsible advisors (Article 29 OORC). The positions available are too 139 scarce for the Secretary General to carry out real career development inside the institution. 140

There are 182 employees , which compared to the Spanish population (including the immigrants and visitors) is not a high number, but all of them must exercise their functions in an exclusive dedication regime and count on enough material resources and infrastructure to develop their work in good conditions.

7.1.2. Independence (law) To what extent is the ombudsman independent by law? Score: 100 The Spanish Constitution in art. 54 contains the main regulation of the Ombudsman. The law developing this regime must be approved by an absolute majority in Congress. Article 6 of the Ombudsman’s Organic Act (OOA) emphasizes that the Ombudsman is not subject to compelling instructions of any kind, and will exercise the powers entrusted to him by the Constitution and following its own discretion. The person will only be accountable to Parliament (art.3.1 OORC). Parliament appoints the Ombudsman with a strong majority of 3/5 in Congress and 3/5 in Senate in a first round, or 3/5 in Congress and an absolute majority in Senate in successive rounds (art. 2 OOA). This implies that at least the main two political parties in Spain must agree on the best candidate for the position, which also in a way weakens the ties of the candidate with just one of the main political parties. The Ombudsman is free to select his own staff (art. 27.3 OORC). The Ombudsman’s independence is reinforced by the limitation of the mandate to 5 years (Article 2 OOA). This differs consequently to that of the MPs mandate which is 4 years. There is a rigid system of incompatibilities in place. The position is incompatible not only with any party membership, but also with directing any union, or association or foundation, holding any public office, being a Judge, Prosecutor or MP or developing any professional activity. This rigid incompatibility regime also applies to the Ombudsman’s deputies and advisors (Articles 7 and 8.4 OOA, Article 31.2 OORC). If the incompatibility arises once they are holding the position, it is expected that they resign. This rigid system of incompatibilities is compensated by a salary not only comparable, but higher than those of other 141 high-level officials. In order to protect the Ombudsman and its deputies from arbitrary dismissal, Article 5.1 OOA (Article 16.1 OORC for the deputy ombudsman) establishes the procedures and valid reasons for dismissal. Early removal requires a parliamentary decision by a 3/5 majority and can only happen in case of notorious negligence in the exercise of its functions or in case of conviction for malicious offences. On the other hand, the Ombudsman and its deputies may not be prosecuted criminally for acts performed under the law (art. 6 OOA). The Ombudsman has the power to appeal to the Constitutional Court in order to protect the fundamental rights of the citizens, even asking for a declaration of invalidity of the law (Article 162 of the Spanish Constitution) and can ask for responsibility of any authority of the 138

Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011. Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011. 140 Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011. 141 More information here. 139

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administration in the courts (art. 26 LODP). Against the decisions of the Ombudsman there is no judicial 142 review, and this makes sense, as it exercises mainly a persuasive power. There are no special requirements to be eligible as Ombudsman. Any Spanish citizen of legal age and in full possession of his rights can take up the position. Though the law does not contemplate any requirements to become Ombudsman, Parliament has always named experienced and qualified lawyers 143 for the position. The Ombudsman is not part of the judicial power and the person must just be a good mediateur and have auctoritas. Probably because of that, no particular professional training is needed. 144 Parliament must judge the capacities of the candidate. There are no post-employment restrictions 145 applying to the Spanish Ombudsman when he leaves his post.

7.1.3. Independence (practice) To what extent is the ombudsman independent in practice? Score: 75 Most of the times, the Ombudsman has been independent and has not been engaged in political activities during their term of office. The last Ombudsman had a very strong political background (he was eight times MP for the socialist party in Congress and Minister of Justice with the socialist government). In any case, he was elected for the position during the Government of the conservative Popular Party, and re-elected for the post by the socialist government in 2005 (and it was the first time in which the Ombudsman was re-elected for the post). Some of his decisions were interpreted from a political perspective and viewed as favouring the government or a specific political party. In fact, his decision not to submit a constitutional complaint against the immigration law promoted by the Popular Party just one year after his appointment as Ombudsman was object of bitter criticism; one of the main newspapers in Spain said that “The Ombudsman would have to explain Parliament why he did not appeal to the Constitutional Court asking for the invalidity of the immigration law in order not to cause any inconvenience to the government that imposed the law and his own appointment as 146 Ombudsman”. There were voices among political parties and unions asking for his resignation (given that there had been nearly 800 petitions to the Ombudsman asking him to appeal to the Constitutional 147 Court in this case). The European Ombudsman had to stand up for him and ask for the external 148 pressure to cease and let the Ombudsman work independently. Even the Ombudsman brought the press together to explain that the decision not to apply to the Constitutional Court had been taken being 149 respectful to his neutrality. On the other hand, in 2006, for the first time in the Spanish democracy, Parliament was asked to decide whether to remove the Ombudsman from office. The initiative had its origin in the political party IU-Iniciativa per Cataluña/Verds, after the Ombudsman appeal to the

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José Manuel Sánchez Saudinós and Emilio Pajares Montolío, “Artículo 32”, Comentarios a la Ley Orgánica del Defensor del Pueblo, (Antonio Rovira Viñas (director), Navarra: Editorial Aranzadi S.A., 2002): 800. 143 F. Fernández Segado, ‘El Estatuto jurídico-constitucional del Defensor del Pueblo en España’, Anuario de derechos humanos, vol. 2, 2001. 144 Matilde Gurrera Roig: “Artículo 3”, Comentarios a la Ley Orgánica del Defensor del Pueblo, Rovira Viñas, 2002: 106-108. 145 Vid. M. González Jiménez, ‘Prerrogativas e Incompatibilidades del Defensor del Pueblo: algunas propuestas de reforma, Teoría y Realidad Constitucional, 26, 2010. 146 El País (Spain), 24 March 2001, ‘¿Defensor de quién?’ (publishers opinion). 147 El País (Spain), 24 March 2001. 148 More information here. 149 More information here. 122


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Constitutional Court the Statute of Autonomy of Cataluña. It did not prosper but the damage was done. Also that year some political parties (ERC, IU-ICV y CiU, PNV and Entesa Catalana de Progrés) asked the Parliamentary Commission in charge of the relations with the Ombudsman to call him to appear in front of the Commission to explain his decision to appeal to the Constitutional Court. 151 However, the main political parties rejected the initiative. Despite the pressure, the Ombudsman seemed to act always following his own criteria, even if he could be wrong. One problem in practice has been the delay in naming a new Ombudsman after the mandate of the Ombudsman was over. The delay in electing a new Ombudsman could hamper the functioning of the institution, though the Secretary General confirms that the actual acting Ombudsman is carrying out the functions as normal. In fact, in the Annual Report of 2011, it is said that an interim mandate is not equal 152 to inactivity of the institution.

7.2. Governance 7.2.1. Transparency (law) To what extent are there provisions in place to ensure that the public can obtain relevant information on the activities and decision-making processes of the ombudsman? Score: 75 The investigations and procedures performed by the Ombudsman are covered by a veil of confidentiality, not only when concerning private data of individuals, but also concerning any information about the investigations carry out in the Administrative units (Article 22.2 OOA). The information given by civil servants to the Ombudsman in the course of an investigation is classified as reserved (Article 20.4 OOA). Anyone working for the Ombudsman is under a confidentiality clause, not just about private data, but about any matters dealt with by the office. The non-compliance with this clause will be sanctioned (Article 30 OORC). Interestingly enough, the Ombudsman’s Organizational and Procedural Code does not codify the different disciplinary offences in relation with the different sanctions, so that it will be discretionary to consider it as a minor offence, a serious offence or a very 153 serious offence. The Ombudsman has to inform annually to Parliament about the actions taken during the year. The law obliges to publish the report about the annual activities. When there is need, an extraordinary report can be presented and published (Article 32 OOA). In the report the Ombudsman must include the number and type of complaints received; the ones that were rejected and the causes for the rejection; the ones that were investigated and the result of the investigations and the specification of the suggestions and recommendations that were recognized and admitted by the Administration. It will also have an annex with the implementation of the budget. There may be special reports to underline the incompliance of a particular administration with the requests of the Ombudsman, and this will also be included in the annual report of the Ombudsman (Articles 24.1 and 33 OOA). The report must be

150

More information here. More information here. 152 More information here. 153 José María Alonso Seco: “Artículo 35”, Comentarios a la Ley Orgánica del Defensor del Pueblo, Rovira Viñas, 2002: 884 & 887. 151

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presented to Parliament during its ordinary sessions (the most of the times it has been presented during 154 the months of April and June). One of the main weaknesses of the regulation about transparency is that the Ombudsman, unlike other th high-level officials (see the Law 5/2006, of 10 April, about conflict of interests of the Members of Government and High Level Officials of the Administration), is not required by law to declare its assets. Both the Law 7/2001, of 31 July, of the Ombudsman of the Autonomous Community of Canarias (Diputado Común de Canarias), and the Law 16/2001, of 20 December, of the Ombudsman of the Autonomous Community Castilla-La Mancha, have introduced the obligation to make asset declaration 155 for the Ombudsmen and their deputies. Finally, there are no regulations pertaining to the involvement of the public in the activities of the Ombudsman.

7.2.2. Transparency (practice) To what extent is there transparency in the activities and decision-making processes of the ombudsman in practice? Score: 100 Transparency is one of the main focuses of the institution according to the 2010 Ombudsman’s Annual 156 Report. The obligation of the Ombudsman to annually present its activities in a report to Parliament has been followed by the publication of the report in a co-edition by Congress and the Ombudsman. The report is very complete. It contains all the data about individual and collective complaints to the office and own initiative-inquiries, the number of dossiers opened, the number of them already closed, the ones that are still being processed, the causes of rejection of complaints, detailed statistics, the origin of the complaints, the Administrations affected, the recommendations and suggestions made by the ombudsman, etc. The report also contains references to the dossiers from previous years handled in 2010 because they were still opened or had to be reopened. There is also some analysis of the data 157 presented in the report and a section about the services provided to citizens directly or through the telephone or the web page. The only aspect missing is the average time taken to conclude the procedures of complaints, although the numbers of proceedings conclude in a year appear in the 158 statistics. Both the former Ombudsman Enrique Múgica and the actual Secretary-General mention it is difficult to measure the average time taken to solve complaints as they receives a high variety of them, many are incomplete and the Ombudsman must sometimes write to the complainant in order to get more data to begin the investigation. On top of that, sometimes it is the administration who takes its 159 time to answer the queries of the Ombudsman. The Ombudsman is focused on the search of the best channels of communication with citizens, and the institution has improved and modernised the web to that end. It uses free software and offers an electronic registry for the complaints. After being audit it has got the “Double A Technosite WCAG 1.0” for its accessibility. Actually, the web is the first channel of reception of complaints. It can be accessed in any of the official languages of Spain, as well as in English and French. In the web, apart from the annual 154

Sánchez Saudinós and Pajares Montolío, 2002: 802. Francisco M. Bruñén Barberá: “Artículo 7”, Comentarios a la Ley Orgánica del Defensor del Pueblo, Rovira Viñas, 2002: 173. 156 More information here. 157 More information here. 158 More information here. 159 Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011. 155

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reports, there is information about activities carry out by the Ombudsman, visits received, seminars organized, all the information about the Ombudsman published by the press, and a section containing the own press notices of the institution, a review called the Ombudsman up-to-date (El Defensor al día) where, with a more informal language, the citizen is informed about all the activities and news related with the Ombudsman, the recommendations transformed in concrete measures by the administration and the successes in this field, etc. The Ombudsman has a permanent contact with society, organizes expert seminar, receives visits, actively draws upon external expertise for its own investigations, has contact with civil society, the administration and the public in general and attend events related with the protection of human rights. Despite that the Ombudsman does not have the obligation to reveal his salary, the acting Ombudsman 160 has done so for the first time after the insistence of the press. In addition, the Ombudsman and deputies in practice make a declaration of assets that is kept by the Secretary-General of the 161 institution.

7.2.3. Accountability (law) To what extent are there provisions in place to ensure that the ombudsman has to report and be answerable for its actions? Score: 75 The Ombudsman is only accountable to Parliament (art. 3.1 OORC). It has a duty to submit an annual report to the Legislature (see above). On the other hand, the Parliamentary Committee in charge of the relations with the Ombudsman can ask for any information it deems necessary at any time but this obligation is not provided by law, but by the Ombudsman’s Organizational Code. A summary of the report must be presented before the Houses of Parliament and the different political groups can intervene and set out their position (Article 33 OOA). There is a duty of publication of the report but the law does not fix any time limits to fulfil this obligation or any consequences for the violation of it (art. 32.3 OOA). When the urgency or the seriousness of the situation requires it, the Ombudsman can present an extraordinary report to Parliament. The activities of the Ombudsman are not subject to judicial review given that it does not exercise any power and only makes recommendations to the different administrations on the way they must conduct themselves in order not to violate the rights of citizens. The Ombudsman does not exercise any jurisdictional power or administrative power. Its responsibility is mainly a political one. Only when the Ombudsman acts with notorious negligence the Parliament, by a majority of 3/5, can dismiss the person (having previously debated in Parliament and given audience). There are no provisions for whistleblowing by the Ombudsman’s staff on misconduct.

7.2.4. Accountability (practice) To what extent does the ombudsman report and is answerable for its actions in practice? Score: 50 160 161

More information here. Bruñén Barberá, 2002: 173. 125


As mentioned above, the obligation of the Ombudsman to annually present his or her activities in a report to Parliament has been followed by the publication of the report in a co-edition by Congress and the Ombudsman. The reports have been published without delay in the same year that they were 162 presented to Parliament and although the number of volumes edited is low , the report is also 163 published on the webpage of the Ombudsman. The report is very complete. The Organization and Procedural Code of the Ombudsman says that the report will be submitted to the Joint Parliamentary Committee in charge of the relations with the Ombudsman. The procedural rules about this submission before the Committee focus on giving information to MPs about the activities 164 developed by the Ombudsman, rather than facilitating a real discussion or debate on the report. Accountability would be demanded by this procedure. The Ombudsman will first present the report, after which one representative of every political group will have ten minutes to ask questions or ask for clarification of any point of the report. The Ombudsman will answer these questions and then the president of the Committee may allow a new turn of short questions or petitions of clarification fixing the number of them and the time limit for each question. According to the former deputy Ombudsman (1990-1999) and acting Ombudsman (1999-2000), Antonio Rovira Viñas, the Joint Parliamentary Committee in charge of the oversight of the Ombudsman does not exercise a stringent oversight over the activities of the office. On the other hand, Parliamentary oversight of the Ombudsman is more focused on analysing the content and procedural matters of the 165 complaints handled by the Ombudsman than on the internal operation of the office. Looking at the number of meetings by the Joint Committee, one can see that they have not being very active. During the previous parliamentary term, which began in the middle of 2008, the Commission had only met seven times, being the year with more meetings 2010, with a total of three (one dedicated to the discussion of the annual report and the other two dedicated to the discussion of two monographic reports). Finally, there are internal mechanisms of accountability. The Secretary-General is the chief of staff and there are internal investigations when there are complaints about the conduct of any member of the 166 staff. The Ombudsman has the power to dismiss freely the personnel working for him, and can do that as a way to put end to the misconduct of the staff. However, this will not reflect in the annual report, meaning that the Parliament will not know if dismissal is because of misconduct.

7.2.5. Integrity mechanisms (law) To what extent are there provisions in place to ensure the integrity of the ombudsman? Score: 50

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Sánchez Saudinós and Pajares Montolío, 2002: 805. vid. point “7.2.1 Transparency (practice), where we include all the contents of the report. 164 Resolución de las mesas del Congreso de los Diputados y del Senado sobre organización y funcionamiento de la Comisión Mixta de Relaciones con el Defensor del Pueblo, de 21 de abril de 1992 (More information here), modificada por la Resolución de las Mesas del Congreso de los Diputados y del Senado, de 25 de mayo de 2000 (More information here). 165 Interview of Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman) with author, Madrid, June 15, 2011. 166 Interview of Bartolomé José Martínez (Secretary-General of the Ombudsman), Madrid, May 23, 2011. 163

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There is presently no Code of Conduct aiming to ensure the integrity of the Spanish Ombudsman. In Navarra the Ombudsman has approved a Code of Conduct applicable to all the staff of the 167 Ombudsman’s office. These Codes include principles of transparency and lawfulness. There are specific rules on these regional Codes about conflict of interests. The staff must abstain themselves from taking part in any proceedings or decisions that could conflict on their own interests or that of their family or friends as regulated in the rules of administrative proceedings. They are also required by the Code of Conduct to keep the confidentiality of communications and to act in accordance with some elementary rules of courtesy, to identify themselves and inform the citizens about the actions taken in relation with their complaint or request. There are also some rules on the time limits in which the citizen must receive this information as well as the notification of the rejection or admissibility of their complaint. There is no such public written Code of Conduct with regards to the Spanish Ombudsman. However, Article 35 of the Ombudsman Organic Law states that the staff working for the Ombudsman will be considered Parliament staff and they will be subject to the Staff Regulations of Parliament. By law, the Ombudsman must inform the interested party in the matter about the result of the steps and investigations carry out (Article 31 OOA). On the other hand, the Staff Regulations (Article 58) 168 provide that public servants working for Parliament must act lawfully, with impartiality and courtesy. There are rules in order to guarantee the staff independence, in particular, a strong regime of incompatibilities (Article 60, 61 and 62). Parliamentary staff, for example, is not allowed to perform any position, job or task that could compromise their impartiality and independence, including giving advice to political parties, unions or any other association that has any relationship with the functions that they exercise. In the opinion of the former deputy Ombudsman and acting Ombudsman Antonio Rovira, the lack of rules on conflict of interests is not so important, as the Ombudsman does not exercise any real power, he only condemns what he deems an incorrect practice in the administration but has no enforcement 169 powers. There are no rules on gifts and no obligation to make any asset declaration.

7.2.6. Integrity mechanisms (practice) To what extent is the integrity of the ombudsman ensured in practice? Score: 75 According to the Secretary-General of the Spanish Ombudsman, even if there is no written Code of Conduct, there are mechanisms by which any accusation of misconduct by the Ombudsman’s staff is internally investigated. In fact, the Secretary-General is the chief of staff, and refers to some 170 investigations carry out while being in office. In his opinion, these mechanisms work. Any telephone 167

See, for the Ombudsman office in Castilla-La Mancha, the official publication in BOCCLM, núm. 10 (09/10/2003), and for the Ombudsman office in Navarra, Resolución 32/03, de 18 de junio, de la Defensora del Pueblo de Navarra, Boletín Oficial del Parlamento de Navarra V Legislatura - 15 de marzo de 2002 - NUM. 27. 168 Acuerdo de 27 de marzo de 2006, adoptado por las Mesas del Congreso de los Diputados y del Senado en reunión conjunta, por el que se aprueba el Estatuto del Personal de las Cortes Generales (BOCCGG, Serie B, núm. 73, of 31st of March 2006). 169 Interview with Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman), Madrid, June 15, 2011. 170 Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011. 127


call to the Ombudsman office, for example, is recorded to keep track of the complaints received at the institution. The content is not recorded, as the end is just to keep evidence of the call in case it is afterwards needed to verify any complaint by the person calling on the proceedings followed by the office. The Secretary-General as well as the former deputy Ombudsman (and acting Ombudsman) refer that the control over the confidentiality clause is very strict. There is a strong culture of confidentiality and everyone at the Ombudsman office knows that breaking this rule means immediate dismissal. Both 171 agree that inside the Ombudsman office everyone knows that there is little room for misbehaviour. As it comes to gifts and hospitality, the conduct of the ombudsman will depend on his own perception of the correctness of the situation. There are no rules governing this field, only those that the Ombudsman wants to follow. There is no obligation to make asset declarations, although the deputy ombudsman interviewed referred that he and his team made such a declaration and registered it by the 172 Secretary-General. However he does not know whether others did this as well. There is no training of staff on integrity issues.

7.3. Role 7.3.1. Investigation To what extent is the ombudsman active and effective in dealing with complaints from the public? Score: 75 The procedure of lodging complaints to the ombudsman in practice is really simple. The Ombudsman is very accessible. The complaints can be lodged, free of charge and without any formalities, on-site, by telephone, fax or post, or through the website, in Spanish, English, French or any of the co-official 173 languages of Spain, and there is always an advisor on call. The person must only provide essential personal data (the complaints cannot be anonymous) and explain what has happened and why he or she wants the Ombudsman to intervene. At the Ombudsman’s website the citizen can find all kind of explanations about the way to lodge a complaint and what to expect from the service. Despite this easy access to the institution and the important role that the Ombudsman develops and could develop in practice, there is a general lack of awareness of the role of the institution among the population. In the November 2010 CIS Barometer only 11.9% of the respondents said that they understood well the role and functions of the Ombudsman, and 48.1% of those questioned had some idea about it. Only 7.4 % of those polled considered it a very useful institution, 33.9 % considered it to be quite useful, 36.2 % considered it not very helpful, and 9.8 % thought that it was not useful at all 174 (12.8 % did not answer to the question). About the degree of confidence in the institution, it got 4.64 points (0 being no confidence at all and 10 a lot). In the opinion of Antonio Rovira the Ombudsman ought to have a greater presence in the media, by having press conferences explaining his findings in monographic studies, and by pointing out what is being done wrong by the administration. José

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Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011. interview with Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman), Madrid, June 15, 2011. 172 interview with Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman), Madrid, June 15, 2011. 173 Interview of Bartolomé José Martínez (Secretary-General of the Ombudsman), Madrid, May 23, 2011. 174 More information here. 128


Bartolomé points to the difficulty of this possibility with the necessary respect to the confidentiality 175 clause. In 2010, the Ombudsman opened 34674 proceedings, 12387 more than the previous year (55.58% more). This is due to the increase in the number of collective complaints lodged (collective complaints: the same complaint is made by different persons and signed by all of them as a single complaint). On the 176 contrary, the individual complaints suffered a decrease and from 18392 in 2009 to 16759 in 2010. The volume of complaints is still manageable, moreover taking into account that the collective complaints 177 imply less work than the individual ones. In 2009, the Ombudsman opened 269 own-initiative inquiries, and 466 in 2010 (211 of which were a direct consequence of the Ombudsman becoming the National Preventive Mechanism against torture of the Optional Protocol to the United Nations Convention against Torture, OPCAT). The own-initiative inquiries also arise when the different departments of the institution through the 178 analysis of the media come to the conclusion that action is needed (such analysis is made daily) or when there is some topic that particularly worries the Ombudsman. The Ombudsman organizes seminars to deal with some of these problems and invites experts to discuss the roots of the problem and its possible solutions (e.g. seminar on the trafficking in women for the purpose of sexual exploitation). Antonio Rovira comments that the institution does not call in NGOs and experts as much as it should. The NGOs are a source of valuable information underused by the ombudsman.

7.3.2. Promoting good practice To what extent is the ombudsman active and effective in raising awareness within government and the public about standards of ethical behaviour? Score: 50 Article 54 of the Spanish Constitution and article 9 OOA provides that the ombudsman will supervise the activities of the administration and its agents, including that of Ministers, public authorities, civil servants and any other person serving the administration. In practice, the Ombudsman controls foreign services, public undertakings, companies working as contractors for the public administration, local administrations (in cooperation with the ombudsmen of the Autonomous Communities) and administrations of the Autonomous Communities. Despite the lack of reference by law, the Ombudsman also exercises its functions in relation to the Electoral Administration and the General Council of the Judicial Power (in its administrative functions) and even supervises in some occasions the activities of 179 companies that provide services of public interest.

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Interview with Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman), Madrid, June 15, 2011. Interview with Bartolomé José Martínez (Secretary-General of the Ombudsman), Madrid, May 23, 2011. 176 More information here. 177 Interview with Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman), Madrid, June 15, 2011. Interview with Bartolomé José Martínez (Secretary-General of the Ombudsman), Madrid, May 23, 2011. 178 Interview with Bartolomé José Martínez (Secretary General of the Ombudsman), Madrid, May 23, 2011; Enrique Múgica, former Ombudsman, interview by Jesús Rivero, Revista Dintel. More information here. 179 G. Escobar Roca, ‘Interpretación y garantía de los derechos fundamentales por el defensor del pueblo (Análisis empírico, reconstrucción dogmática y propuesta de futuro)’, Teoría y Realidad Constitucional, núm. 26, 2010, pp. 229-257. 129


Article 18 OOA provides that the institution must inform the administration about the complaints. The department or unit involved is then obliged to send a written report to the ombudsman in a short period of time (15 days that can be prolonged). If the complaint regards a particular person, the institution will also contact him or her. The Ombudsman keeps constant contact with both parts (the 180 complainant and the administration). The Ombudsman can make general recommendations to the administration normally about the application of the law, or some changes considered necessary to better the actual situation in different fields, or the interpretation of the law, etc. It also makes particular suggestions to the administration in relation with particular cases of maladministration and controls the administration by controlling whether the recommendation has been implemented or not. However, in general there is no follow up 181 inspection or checking. In any case, these resolutions of the Ombudsman are not particularly focus on the ethical behaviour of the personnel working for the administration or on promoting principles of good administration or rules on effective complaint handling. There are no examples of public campaigns or campaigns for government officials.

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Interview with Bartolomé José Martínez (Secretary-General of the Ombudsman), Madrid, May 23, 2011. Interview with Antonio Rovira Viñas (former Deputy Ombudsman and acting Ombudsman), Madrid, June 15, 2011. 181

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8. Court of Audit Table 28: Final score Court of Audit Final Score Court of Audit: 65 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms

Law 100 75 75 50

Practice 100 50 50 50 75

Effective Financial Audits

50

Detecting and Sanctioning Misbehaviour

75

Improving Financial Management

25

¿Does it effectively regulate the funding of candidates and political parties?

50

Role

Summary The Court of Audit can be said to be an organ with the sufficient resources and independence to carry out its duties; nevertheless, it requires an updated strategy to improve its control over efficiency as well as an improved internal accountability, introducing a greater efficiency. Its integrity mechanisms are the traditional, legally based, ones, but it has no ethical code or training in ethical matters. It is not an organ that substantially improves the Government's financial management, limiting itself to essentially exercising legal and accounting oversight as regards the execution of the budget. In any case, its role judging the accounting responsibilities that might accrue from an inadequate management of public funds, as it is a duty of considerable importance which it carries out with a notable legal and technical ability. Finally, the Constitutional Court supervises the accounts of the political parties and must ensure that regulations are complied with in that respect and impose penalties for any infringement. Precisely, it is in this area that its proposals for reforming the system have always been useful and, according to 182 the experts, correct. Structure and Organisation The Court of Audit is a Constitutional Organ, defined in article 136 of the Spanish Constitution and in article 153 paragraph d). Organic Law 2/1982 (LOT) is the regulation governing the institution. Similarly, the Court's operation, according to the mandate in the Organic Law, is established in Law 7/1998 on the Operation of the Court of Audit (Funcionamiento del Tribunal de Cuentas, LFT). In summary, the Court of Audit's operations are governed by, in addition to the Constitution, the mentioned Organic Law and the LFT.

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Group of States Against Corruption -GRECO-, Council of Europe (2009), Evaluation Report on Spain Transparency on Party Funding. Theme II, Adopted by GRECO at its 42nd Plenary Meeting (Strasbourg, 11-15 May 2009). More information here. Gloria Martínez Cousineau (2005), ‘El control de la corrupción política. El fracaso de la reforma de la Ley de financiación de partidos políticos en España’, doctoral thesis. Department of Political Science, UNED. 131


The Spanish Constitution, the Organic Law and the LFT define the Court of Audit as the paramount organ overseeing the State's accounts and economic management, in addition to those of the public sector (Public Administrations, companies and other public entities); these rules, without detriment to the competences of the Court of Audit, allow, but do not require, the creation of Organs of External Control in the Autonomous Communities (regional courts of audits). Currently, 13 of the 17 Autonomous Communities have an Organ of External Control. The Court of Audit depends directly from Parliament, although it cannot be considered an organ of Parliament. It is made up of 12 Auditors, six of which are designated by the Congress of Deputies and six by the Senate, who are all afforded the same faculties of independence, security of tenure and incompatibilities as judges. This institution's legal framework gives it two clearly defined functions: oversight and jurisdiction. These functions are described in article 2 of Organic Law 2/1982 and are: 'The external, permanent and consumptive oversight of the public sector's economic-financial activity' and 'the judging of the accounting responsibility incurred by those entrusted with the management of funds or public effects'. Furthermore, it is entrusted with the oversight of the accounts of the political parties and the elections through laws specific to those purposes.

8.1.1. Resources (practice) To what extent does the audit institution have adequate resources to achieve its goals in practice? Score: 100 The Court of Audit has sufficient guaranteed resources and manages them autonomously. As indicated 183 by Lozano, '... it would be absurd to talk of independence if the organ of external control's range of activity is limited through its economic endowment'; adding that '... through the budget it is possible to annul the higher oversight bodies of which good proof is that the lack of resources has been an endemic problem of our Courts of Audits... and that is the best instrument to neutralise them'. But this limitation is not at present attributable to the Spanish case, since the Court of Audit has financial autonomy, as stated by article 6 of its Organic Law, that specifies that: 'The Court of Audit shall prepare its own budget, which shall be incorporated to the General State Budget, in an independent section, and shall be approved by Parliament'. We understand that, considering the country's economic circumstances, its budget is sufficient to carry out its duties, even though, as commented by one of the Auditors, a better internal remuneration would be desirable. The Court of Audit has financial and operational autonomy, in such a way that internal decisions on contracting goods and services, organisation and recruiting personnel are attributable to the president, the plenary and the Government Committee, as established in articles 4º, 5º and 6º of the Law on the Operation of the Court of Audit (LFT). If the Court of Audit should consider it requires extra resources it can request them from Parliament, based on the general criteria of the budgetary regulations on extraordinary credit and credit supplements. All the Court of Audit's human resources have stability and security of tenure, which contributes to guarantee its impartiality and objectivity. Essentially, the clerks and Auditors of the Court belong to one

183

Lozano Miralles, Jorge (1996): Configuración e independencia de los órganos de control externo: un análisis comparado. Cámara de Cuentas de Andalucía-Civitas. 132


of the State's most prestigious bodies, access to which requires passing rigorous examinations that guarantee the possession of the necessary knowledge and capacity to carry out their duties effectively. No prior experience is required to join the service, although to become an auditor experience of at least 15 years is necessary. The posts of free designation are filled by civil servants from the higher ranks of the Public Administration. It is possible to have a career in the Court of Audit, but prospects are limited due to its nature and size. 184 Its current staff number 803, of which 633 are civil servants and 170 normal employees. Among the Court of Audit’s staff are highly qualified graduates and administrative personnel from other Public Administrations: tax inspectors, State and Social Security Auditors, lawyers from the Social Security service and higher graduates from the local administrations, among others.

8.1.2. Independence (law) To what extent is there formal operational independence of the audit institution? Score: 100 The existing regulations are a sufficient guarantee for the Court of Audit’s independence. It is obvious that to a great extent the efficacy of oversight bodies depends on their independence. As expressed in the Lima Declaration of Guidelines on Auditing Precepts, in section 5: ‘Supreme Audit Institutions can accomplish their tasks objectively and effectively only if they are independent of the audited entity and are protected against outside influence’. The Spanish Constitution’s article 136 establishes that ‘members of the Auditing Court shall enjoy the same independence and fixity of tenure and shall be subject to the same incompatibilities as judges’. Similarly, the LOT’s article 5 says: ‘The Court of Audit shall exercise its duties will full independence and submission to the Law’. No organ can exert significant influence on the Court of Audit, since it acts with full independence. Nevertheless, Parliaments can influence the auditing programme, as we shall now see. The Court’s plenary session includes a prosecutor, appointed by the Chief Prosecutor, but his influence is, in any case, judicial but not political. The second paragraph of article 136.2 of the Spanish Constitution notes that: ‘The Auditing Court, without prejudice to its own jurisdiction, shall send an annual report to the Cortes Generales informing them, where applicable of any infringements that may, in its opinion, have been committed, or any liabilities that may have been incurred’; the report contains an analysis of the State’s General Accounts, institutional information and the Court’s activities during the year, making it possible to monitor the degree of compliance with the activities foreseen annually in the Court of Audit’s Auditing Programme. Each year the Court of Audit must consequently prepare an Auditing Programme, to be approved by its plenary session in the first quarter of the year and presented the to the Joint Congress-Senate Committee, without prejudice to the audits the Court must carry out at Parliament’s request and, within 185 their competences, the Legislative Assemblies of the Autonomous Communities. As a result, the Court

184 185

As at 30/06/2011. Source: Court of Audit, Staff Registry. Ley 7/1998, de 5 de Abril, de Funcionamiento, Artículo 3º, a. 133


of Audit has an annual programme approved by its plenary session and is sent to Parliament and, furthermore, the latter can request audits in addition to those programmed. In any case, this in no way goes against the Court’s independence. As regards its members, the Auditors must be selected by Congress (six) and the Senate (six) in accordance with very demanding criteria (Organic Law of the Court of Audit, article 30.1): ‘among chartered accountants of the Court of Audit, chartered accountants, judges and prosecutors, university professors, lawyers, economists... all of recognised competence with more than 15 years of professional experience’. The selection of the rest of the personnel should be based on merit and capacity as established by the Constitution for all civil servants. Additionally, article 29 of the LOT establishes that ‘The President of the Court of Audit shall be appointed from among its members by the King, at the proposal of the Court’s plenary session and for a term of three years’. The vote is secret and an absolute majority in the first round is required; if a second round is necessary, a simple majority suffices. In the event of a tie, a final round is held and if it should also end in a tie then the oldest Auditor is appointed. Re-election is possible. Although it depends to a significant degree on those making the appointments, the Court’s independence seems assured. Furthermore, article 33 of the LOT establishes that the Court’s members are subject to the same incapacities, incompatibilities and prohibitions as the judges, as specified in Organic Law 6/1985, of 1 July, on the Judiciary, article 498. This implies, among other things, a total incompatibility with political party activities during their term in office. Additionally, it is forbidden to appoint as Auditors those who in the two years prior to their nomination 186 are included in any of the following: a) Authorities and civil servants entrusted with the management, supervision or auditing of public sector income and expenditure. b) The presidents, directors and members of the boards of directors of autonomous institutions and companies forming part of the public sector. c) Private individuals who are, exceptionally, administrators, collectors or custodians of public funds or assets. d) Those in receipt of subsidies paid from public funds. e) Any other person who must report to the Court of Audit. These restrictions cover not only the designation of Auditors but also disqualify those seeking to be 187 commissioned by the Court of Audit to become experts in questions related to auditing. The President and Auditors cannot be dismissed except in the case of dereliction of duty in accordance with article 35 of the LOT). Article 25 of the LFT establishes the following procedures in cases of disciplinary action: 1. The opening of a disciplinary file by the Court’s plenary session –its paramount body- by a threequarters majority. 2. The designation of an investigator by the plenary session, who then draws up a proposal. 3. The proposal is submitted to the Joint Congress-Senate Committee for Relations with the Court of Audit, which issues a ruling that is presented to the corresponding Chamber (Congress or Senate, depending on whether the Auditor was appointed by one or the other), which then decides on a definitive resolution.

186 187

Organic Law 2/1982, of 12 May, on the Court of Audit, article 33.3. Organic Law 2/1982, of 12 May, on the Court of Audit, article 33.4. 134


The same article also establishes that the Court’s plenary can suspend the President and Auditors in the exercise of their duties, as a provisional measure, in the event of being subject to criminal prosecution and until a final sentence has been passed for the time necessary to decide on a question of incapacity or incompatibility or while a disciplinary file on a serious breach of duty remains open. Finally, article 24 of the LFT protects the Auditors in regard to the opinions they may express in the course of their duties. The LFT itself regulates the inviolability of the Auditors in similar terms to those employed by the Constitution (article71) for Deputies and Senators. Furthermore, they can only be nd prosecuted by the 2 division of the Supreme Court (article 57.1 of the Organic Law of the Judicial Power).

8.1.3. Independence (practice) To what extent is the audit institution free from external interference in the performance of its work in practice? Score: 50 188

Although there have been complaints about political pressure on its members, the Court of Audit is able to act impartially, since its regulations and procedures protect its independence. Perhaps the fact that its members are appointed by Parliament, and therefore by the political parties, might influence them, but any favouritism towards a political party will be a personal choice, not the result of inappropriate regulations, that do guarantee independence. It is also important to bear in mind that the presence of a prosecutor in the Court strengthens its independence, given that prosecutors enjoy a particularly high level of protection to carry out their duties in accordance with the law. A typical problem of the Spanish constitutional organs is that their renewal requires an agreement between the two parties, and if there is any friction between them this tends to be a long drawn process with the result that existing members must continue to carry out their duties until an agreement is reached. This is precisely the case with the Court of Audit at present, as it should have been renewed months ago were it not for the lack of an agreement. The political influence in the appointments is evident if it is considered that a fair number of the current members have been prominent and active politicians before their designation, although this not imply they are not competent. The political division between those designated by one political party or the other is sometimes reflected internally, even though the secrecy of the Court’s deliberations means that 189 there is no documentary evidence of such positions. One of the problems in guaranteeing independence in practice is re-election, since there are Auditors who have been re-elected three times 188

On this issue, in April of 2011 the Mixed Group in the Congress of Deputies proposed an Organic Law on principles and measures against Corruption and for transparency in public management (published on 15 April 2011 in the Official Parliamentary Bulletin –BOCG- Section B. Number. 314-1). One of the measures proposed by this parliamentary group is the de-politicisation of the Court of Audit (article 7). ’With the object of enhancing the independence of the Court of Audit’ it proposes that the Government send to Congress a bill on this oversight institution’s independence, including the following measures: That the designation of the Audit should be similar to that of the jurisdictional bodies, not by Parliament. That the Audit should be selected by a public merit-based process. That incompatibilities should be established with the exercise of specific public authority in the years prior to joining. 189 Informal conversations with both Audit and Deputies confirm that there is no doubt about this. 135


(which implies 27 years’ service in the Court). The struggle for re-election by Parliament can lead to strategic moves that might compromise independence. In accordance with article 3, K of the LFT, among the responsibilities of the plenary session are ‘freely electing and dismissing the secretary general, director and members of the technical bureau’, which are the most important management positions. But the second-tier posts are held by persons with highlevel technical qualifications and are highly stable positions (secretary general, controller, manager and 190 technical directors), since it is unusual for them to be dismissed for political reasons. The secretary general, for instance, has had the post since 1996. The controllers usually retire from this position.

8.2. Governance 8.2.1. Transparency (law) To what extent are there provisions in place to ensure that the public can obtain relevant information on the relevant activities and decisions by the SAI? Score: 75 The public can obtain information on the results and activities of the Court of Audit, but not regarding their decision-making processes, which are confidential. First, it should be borne in mind that transparency requires, among other factors, the publication by the authorities of relevant data on the functioning of State institutions; in this context, the Court of Audit contributes to the social function of oversight through reports, motions and notes made available to Parliament and society through the Official State Bulletin and its Internet portal, enhancing transparency and contributing to the efficient functioning of the State. The LOT indicates that, in relation to the function of oversight, the following must be publicised: 1. The result of audits must be drawn up in the form of reports, ordinary or extraordinary, motions or notes to be presented to Parliament and published in the Official State Bulletin. When audits concern the Autonomous Communities or bodies subject to them, the report will be presented to the Legislative Assembly concerned and published in the corresponding official bulletin. 2. The Court of Audit shall enumerate all infractions, abuses or irregularities it may have identified, determining the responsibilities incurred and the action to be taken. Additionally, the LFT indicates that: Article 28. 1. The reports, motions or notes approved by the plenary session as a result of its oversight duties, in addition to the allegations presented in each procedure, shall be included in the annual report that the Court of Audit must submit for its parliamentary approval’. The annual report shall contain an account of the jurisdictional actions taken by the Court in the corresponding year. 2. Once the audits have been presented to the Joint Congress-Senate Committee for Relations with the 190

Interview with an Auditor of the Court of Audit. 136


Court of Audit and having been examined by the said commission, the resolutions approved shall be published in the Official State Bulletin, jointly with the report. 3. The Court of Audit shall likewise submit the report to the Government, the cabinets of the regional governments or the local authorities, depending on the case. 4. When so agreed by Parliament or the regional Legislative Assemblies or when in cases of extraordinary or urgent necessity the Court of Audit may consider it appropriate, it shall submit to any of these authorities the result of any of its investigations in an extraordinary report. Nevertheless, in order to contribute to a greater transparency it is not only necessary for the Court of Auditâ&#x20AC;&#x2122;s reports to be available to Parliament and society (by virtue of the requirement to publicise them included in article 28 of the Law on the Court's Functioning), but also that they should be easily comprehensible despite the technical nature of the matters they may deal with, as this effectively enhances society's oversight. In this respect, the Court of Audit's activities could certainly be improved. Nonetheless, as regards transparency in the Court of Audit's decisions, the Law on its Functioning establishes in article 5.1 the confidential character of its plenary deliberations. Furthermore, the minutes of the Court's plenary sessions are secret, although as long as the initial secrecy of the deliberations is respected, they can perfectly well be made public.

8.2.2. Transparency (practice) To what extent is there transparency in the activities and decisions of the audit institution in practice? Score: 50 In practice the public can have access to the reports, decisions and notes of the Court of Audit, essentially because they are published in the Official State Bulletin. The Court operates in accordance with legal mandates and no infringements of its obligations have so far been detected. The Court of Audit submits its programme and report to Parliament through the Joint Congress-Senate Committee. Furthermore, in accordance with articles 10 and 13 of the LOT, the President appears before the Committee to inform it of the Court's activities and answer the questions of the parliamentary groups. Its web page is designed in a user-friendly way and is sufficiently updated. It is a different matter that its reports are subject to a certain delay.

8.2.3. Accountability (law) To what extent are there provisions in place to ensure that the SAI has to report and be answerable for its actions? Score: 75 It is obvious that the Court of Audit has the duty to be accountable to Parliament, from which it depends, as established in the LOT, article 2.1. As commented, the Court submits a general report to Parliament once a year. The report must comply with a range of technical requirements in accordance with the law (articles 13 of the LOT and 28 of the LFT), although not about its internal management. As regards the accountability of its internal management, Spanish law requires no specific obligation; however, some data in this respect can be found in its annual report, while its budget is published on its 137


web page. In any case, the Court has the obligation to supervise its economic and financial management internally, which it does through its own controller. As regards the oversight by those affected by its decisions, once the Court's auditing procedures are complete, and immediately before the corresponding department draws up its report, the action undertaken must be made known to those responsible for the public sector or subsector that has been audited, so that in a term of no more than 30 days, which can be extended for a further 30 if justified, they can make the allegations or present the documentation they consider appropriate. If in view of the allegations and justifications presented, in accordance with what was explained in the previous number, other verifications or procedures are agreed, a new hearing will be granted within the conditions and terms already specified. The failure to allow a hearing to the persons or entities concerned gives them the right to appeal to the Court's plenary session.

8.2.4. Accountability (practice) To what extent does the SAI have to report and be answerable for its actions in practice? Score: 75 In practice, although the Court is accountable as an organ of external control, there is no transparent system of internal auditing to improve its efficiency. Certainly, its report to Parliament is comprehensive and extensive. The Court of Audit submits the reports, decisions and notes approved by its plenary, as a result of its auditing function, as well as its annual report, to Parliament once a year. It does not submit its internal auditing, as it has no obligation to do so. Internal oversight is actually exercised by the Court of Audit's controller in accordance with procedures and a scope regulated in the General Budgetary Law and the Court's own regulations. But this oversight does not include efficiency controls on the Court's own activity. The appeals of the acts of the Court of Audit are done with complete normality.

8.2.5. Integrity mechanisms (law) To what extent are there mechanisms in place to ensure the integrity of the audit institution? Score: 50 The Court of Audit has no specific ethical code or the obligation to have one. There are regulations on incompatibilities and conflicts of interest for the Auditors, which are the same as for judges and therefore relatively stringent. But these regulations should be adapted to current circumstances, for instance as regards overseeing conflicts of interest or periods of incompatibility after being in office. The principles of independence and impartiality are enshrined in its regulations but not in internal training documents or declarations. It has no internal advisory service for ethical dilemmas. It does not analyse internal corruption risks, has no mechanism to protect those who denounce 138


corruption or fraud. But, in accordance with the regulations governing public service, its personnel should respect the ethical code of the Basic Statute of Public Employees and therefore diligently carry out the duties assigned to them and safeguard the general interest. Furthermore, section 3 of the Court of Audit's internal oversight regulations specify the impartiality, objectivity and professional diligence of the civil servants engaged in auditing (rules 12 to 23). Professional confidentiality is regulated in rules 24 and 25. In the event of non-compliance with the rules there are disciplinary measures for those employed by the Court. There are no specific courses on integrity and prevention of corruption, but in all training courses the basic rules for Auditors are analysed and explained.

8.2.6. Integrity mechanisms (practice) To what extent is the integrity of the audit institution ensured in practice? Score: 75 There have been no cases of corruption and therefore no sanctions in the Court of Audit, so it could be said that the existing mechanisms are effective. Nevertheless, integrity is not just limited to the absence of corruption and in that respect it would be advisable to improve regulations or, even, to apply the existing rules more stringently, as it is not always applied, according to some of those interviewed.

8.3. Role 8.3.1. Effective financial audits To what extent does the audit institution provide effective audits of public expenditure? Score: 50 The LOT establishes that the basic oversight function of public activities should be carried out based on the principles of legality, efficiency and economy (article 9.1), but, at present, '... oversight is limited to ensuring the principle of legality, of a preventative character and applied to the execution of the 191 budget'. But according to the Auditor interviewed, this assertion is excessive, since the Court also oversees efficiency, although the principle of legality is the prime consideration. The State General Administration's accountability is effected by way of the General Intervention Board of the State Administration (Intervención General de la Administración del Estado, IGAE); the terms for submitting accounts to the IGAE according to article 139 of the General Budget Law is the seven months following the termination of the economic year and, from that date, a month for their final submission from the IGAE to the Court of Audit. The latter takes into consideration the reports of the IGAE. Noncompliance with the obligation to submit accounts gives rise to liabilities. On some occasions it has carried out management and efficiency audits in public entities, but not on a

191

Jorge Onrubia, 'Modernización de la institución presupuestaria española. La sociedad civil ante el control sobre el sector público', Revista Española de Control Externo, nr 16, pp. 173-174. 139


192

general basis. Audits are carried out regularly, but always late. The following chart summarises the Court of Audit's oversight activities. Figure 4: Oversight activities Court of Audit (in Spanish)

8.3.2. Detecting and sanctioning misbehaviour Does the audit institution detect and investigate misbehaviour of public officeholders? Score: 75 The Court of Audit has the political power, weight and independence to identify the responsibilities of public players and to 'try and execute what is tried' (Sentence 11/1998, of 3 July). Hence, a very important aspect of the Court of Audit is its capacity to try and impose economic sanctions. The Court of Audit, by virtue of its LOT and the LFT, has this capacity and exercises it as regards the accountability of those who collect, oversee, administer or employ public funds. Proceedings are opened when the information obtained points to an accounting liability. Accounting 192

Interview with the Auditor D. Felipe GarcĂ­a Ortiz. 140


liability is described in Title IV of the LOT, distinguishing direct liability, which is 'â&#x20AC;Ś joint and inclusive of all, damages caused', and vicarious liability, which 'is limited to the damages resulting from the acts concerned and which can be moderated in a prudential and equitable manner'. The Court of Audit's trials division engaged in 149 procedures in 2009. Its resolutions are subject to review by the Supreme Court. Figure 5: Sanctioning capacity (in Spanish)

In order to carry out its duties, the LOT endows the Court of Audit with the capacity to demand 193 cooperation from the entities it audits, which are obliged to provide all the data they may require, while failure to comply can result in coercive fines and the lack of cooperation should be made known to 194 Parliament. The LFT also establishes the possibility of imposing disciplinary sanctions on civil servants that fail to cooperate, including dismissal and the accusation of disobedience as specified in article 502 of the Penal Code. These regulations cover the obligation to cooperate of the bodies subject to oversight, but what happens when information is required from public or private entities that although not subject to auditing are in possession of data on the entity that is? In these cases, the regulations are insufficient, and as regards to this limitation, the plenary of the Court of Audit has requested an improvement in the 195 regulations.

8.3.3. Improving financial management To what extent is the SAI effective in improving the financial management of government?

193

Article 7.1 of Organic Law number 2/1982, of 12 May, of the Court of Audit. Article 7.3 of Organic Law number 2/1982, of 12 May, of the Court of Audit. 195 For instance, tax or banking data of the entities or persons audited, in the hands of respectively the tax authorities or finance companies. 194

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Score: 25 Article 28.5 of the LFT requires that the results of the Court of Audit's activities must be included in its annual report in order to correct infringements detect abuses or irregularities and determine the degree of compliance with its recommendations. As a result, the Court of Audit is obliged to specify in its annual report any infringement of the observations included in the reports it submits to Parliament. Furthermore, when the Court, on the basis of the contents of its reports, warns of the reiteration of irregular conducts or practices, can approve motions or notes, in accordance with article 28.6 of the LFT, and propose what it considers would be measures to improve the public sector's economic and financial management. The motions approved by the Court of Audit have, on occasion, given rise to legislative initiatives by the Government to promote laws that reflect measures proposed by the Court of Audit (examples include the oversight of subsidies, the accountability of local entities, accounting systems for local authoritiesâ&#x20AC;Ś). Nonetheless, since the control over efficiency and studies on improved management are not usually incorporated to the Court of Audit's duties, it can be said that the improvement in financial management, thanks to its activities, is very limited.

Annex Oversight of the accounts of political parties and elections Law 8/2007 also attributes the external oversight of the economic-financial activities of political parties to the Court of Audit (art. 16.1, LOT). Political parties, although private entities, are subject to external supervision by the Court, since the law considers that it has oversight over any 'subsidies, loans, guarantees or other aid received by individuals or institutions' (art. 4.2, LOT). Additionally, the Law on the funding of political parties extends the Court's remit to all funds received by both public and private entities: 'Oversight [of economic-financial activities] will be extended to the oversight of the public and private resources of political parties as well as of the accounting probity of their economic-financial activities' (art. 16, Organic Law 8/2007). To the oversight of ordinary activity should be added the extraordinary oversight of activities during the elections by virtue of articles 121 to 134 of the Organic Law on the General Electoral Regime. In general terms, the Court of Auditâ&#x20AC;&#x2122;s reports are submitted to Parliament with a considerable delay, which is shorter in the case of electoral expenditure (on average 3.8 months after the deadline set by law). For the political partiesâ&#x20AC;&#x2122; annual accounts the delay is on average of 23 months (two years after the deadline), with peaks of up to 48 months (a four-year delay). The effective date of publication in the Official State Bulletin is too late for society to have adequate information to consider and demand responsibilities from the political parties involved. Furthermore, the information eventually published only covers accounting data, its legality and regularity. The allegations submitted by the political parties are analyses and assessed by the Court of Audit, which can modify its original report if it considers it appropriate. Similarly, all the Auditors receive the provisional results in order to make their own allegations. Finally, the Court of Audit has the obligation of developing a specific accounting plan for political parties (Eighth Additional Provision, Organic Law 8/2007). Although the deadline set by law to have developed the Plan has expired, its implementation 142


should allow the standardisation of the information provided by political parties, making them more comparable over time and between the different parties. This should enhance the quality of the information available and, no doubt, make the Court’s auditing task easier. Organic Law 8/2007 assigns the Court of Audit the possibility of imposing financial penalties on political parties that infringe the rules in two cases: when it obtains donations in contravention of the principles enshrined in the law itself, the penalty is a fine equivalent to double the amount received, to be deducted from the following annual subsidy payment for the party’s operating costs. If a party fails to submit, without due justification, its consolidated annual accounts of the previous year or if they are so deficient that they prevent the Court from auditing them, the penalty is that it forfeits its annual subsidy for operating costs. Furthermore, electoral regulations establish the possibility of the Court of Audit deciding on the regularity of electoral accounts, and in the event of detecting a violation of the restrictions on electoral income or expenditure it can propose that the party’s subsidy be cancelled or reduced. If it should additionally detect evidence of a criminal offence having been committed it must inform the Prosecution Office. Additionally, the Court of Audit is competent to judge accounting responsibilities incurred by those entrusted with managing public funds or assets. Hence it can demand reparations (generally, the reimbursement of funds for which expenditure is unjustified) if it detects any accounting irregularity in a political party’s economic and financial activities. The Court of Audit imposed a total of 70 penalties for infringement of the rules in the 2007 elections and recommended the forfeiting of subsidies on 35 occasions, with a cost to the political parties of 196 €627,000. According to the GRECO (pp. 22 and 23), the new responsibilities the Court of Audit will take up in auditing and penalising the parties should be accompanied by an increase in its resources.

196

Group of States Against Corruption -GRECO-, Council of Europe (2009), Evaluation Report on Spain Transparency on Party Funding. Theme II, Adopted by GRECO at its 42nd Plenary Meeting (Strasbourg, 11-15 May 2009). More information here. 143


9. Political Parties Table 29: Final score Political Parties Final Score Political Parties: 56 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms Role

Law 100 50 50 75

Practice 50 100 25 25 50

Interest aggregation and representation

-

50

Commitment to combat corruption

-

25

Summary There are currently four nation-wide political parties and a dozen regional parties represented in Parliament. Additionally, there are many others that are only represented in one or other of the 17 regional parliaments and/or in Spain’s more than 8,000 municipalities. Nevertheless, Spain’s citizens show a marked preference for the two major nation-wide parties: the Socialist Party (Partido Socialista Obrero Español, PSOE) and the Popular Party (Partido Popular, PP). Political parties have a dual funding system although, judging by the income they declare at the Court of Audit, the system seems to have a greater bias towards public than private funding. Public subsidies as a percentage of the political parties’ operating costs account for 75% in the case of the PP and PSOE, 60% for Izquierda Unida (IU) and up to 40% for the two main regional parties, the coalition Convergencia i Unió (CiU) and the Basque Nationalist Party (Partido Nacionalista Vasco, PNV). The regulations for this financing system, which cover both normal operating costs and those specific to elections, impose restrictions and controls on the income and expenditure of political parties and give the Court of Audit a very important role in the process. However, the existing regulations have significant deficiencies, which show up the scant commitment Spanish political parties have to transparency and accountability. The implementation of this system of financing has had more to do with the parties’ funding needs (who have sought to increase their income from the public sector) than with a real desire to reduce the risk of corruption, according to our informants. Although a constitutional mandate has materialised in legislation regarding the internal democratic functioning of the parties, in practice most of them have a strongly oligarchic character, as demonstrated by their organisational structure. Finally, according to some authors, although corruption has been mentioned in speeches and programmes, in general terms its prime use by political parties has been as a weapon against its competitors over and above any real commitment to take its control and prevention seriously. Structure and Organisation A political party is an organisation whose objective is to gain political power within a government, generally by means of its participation in election campaigns.

144


9.1. Capacity 9.1.1. Resources (practice) To what extent do the financial resources available to political parties allow for effective political competition? Score: 50 The financing of political parties in Spain is regulated by Organic Law 5/1985 on the General Electoral Regime (for election campaigns) and Organic Law 8/2007 on the financing of political parties (for ordinary operating costs). In both cases the sources of private funding are listed and regulated and various sources of direct and indirect public financing are foreseen. As for public funding, according to accounting data from the parties analysed by the Court of Audit, it accounts for between 80% and 95% of the income of parties represented in Parliament (GRECO, 2008: #69), while its allocation favours the larger consolidated parties and markedly penalises the competitive potential of new or smaller parties. According to the latest financial year supervised by the Court of Audit (2006), public subsidies for the parties’ ordinary operating costs totalled more than €193 million, to which should be added the subsidies granted for the election campaigns of that year (election to the Catalan regional parliament plus some arrears from previous elections) which added a further €5.5 million. The allocation of the various sources of public financing (annual subsidies from the State General Budget to the amount of €82.35 million in 2011; annual subsidies from various regional governments or parliaments; subsidies for the operating costs of the parliamentary groups in the national Parliament and the regional parliaments and of the municipal groups in local government; subsidies for electoral expenditure in the various elections; free time on the air in the various public radio and television channels during elections) is always determined on the basis of the institutional representation of each political party. The parties that failed to achieve representation in the previous elections or that compete for the first time only have the right to a ten-minute slot on public radio and television during the election campaign and to minimal space for their election propaganda on the billboards provided free of charge by the local authorities. As mentioned in the GRECCO report on Spain in the III Evaluation Round (Theme II: Party funding): ‘the impression is that the current funding system mainly benefits the large consolidated parties, since the allocation of public funds is linked to having a winning participation in the elections’.

9.1.2. Independence (law) To what extent are there legal safeguards to prevent unwarranted external interference in the activities of political parties? Score: 100 The freedom to create political parties and for them to operate is fully guaranteed in Spain by the Constitution and the law. Specifically, the rules on the creation, operation and dissolution of political parties are in Organic Law 6/2002 on Political Parties. The procedure to create and register parties is 145


simple and free from political interference from the Government. The law enacts the constitutional mandate on the democratic internal functioning of these organisations and establishes some minimum internal organisation rules to safeguard the rights of their affiliates and the fulfilment of their constitutional function. Finally, it establishes the reasons for outlawing parties, essentially due to their stance on the defence of positions contrary to the fundamental values of the democratic system: the justification of racism, xenophobia or political support to violence and terrorist activities. For this purpose it establishes a judicial procedure so that it is the courts of law and not the Government who have the last word. The law has been backed up by several sentences of the European Court of Human Rights of Strasbourg. For instance, it backed the outlawing of Batasuna and other parties linked to the terrorist group ETA (El PaĂ­s, 30 June 2009).

9.1.3. Independence (practice) To what extent are political parties free from unwarranted external interference in their activities in practice? Score: 100 Reference has already been made to the existence of cases where parties have been outlawed. In all these cases the decisions were taken by courts of law (with final rulings by both the Supreme and Constitutional Courts) and were related to the political support given by these organisations to the terrorist group ETA. As noted, the decisions to outlaw them were backed by the European Court of Justice in Strasbourg.

9.2. Governance 9.2.1. Transparency (law) To what extent are there regulations in place that require parties to make their financial information publicly available? Score: 50 Political parties are not obliged to make their economic reports public, although all those who receive some form of public subsidy for their normal operation must submit an accounting report on their th income and expenditure to the Court of Audit before the 30 of June of the following year (art. 14 of Organic Law 8/2007 on the Financing of Political Parties). Furthermore, an election administrator appointed for that purpose must present a report on income and expenditure for each election campaign to the corresponding auditing authority (Court of Audit or regional chamber in the case of regional elections) within a maximum of 100-125 days after the date of the elections (art. 133 of Organic Law 5/1985 on the General Electoral Regime). The Court of Audit has custody of the accounting reports of the parties but does not make them public. On the other hands, it has the obligation to publish an annual report on the financial state of the parties receiving public funds, which includes information on income and expenditure as well as an analysis of any irregularities it might have detected. Additionally, the Court of Audit publishes a report on the income and expenditure of each election campaign once it is over. 146


9.2.2. Transparency (practice) To what extent can the public obtain relevant financial information from political parties? Score: 25 The only financial data available to the public are what can be obtained from the Court of Audit’s annual and post-electoral reports (or of the regional chambers of accounts). However, the information has several drawbacks, as explained in the following indicator. Furthermore, the Court of Audit’s annual reports on the parties’ ordinary activity are published with a very considerable delay of around four years, making it difficult for them to have much of an impact on the public and the media. Despite the fact that Organic Law 8/2007 established in article 16(2) a maximum term of six months to publish the reports, the problem remains unresolved.

9.2.3. Accountability (law) To what extent are there provisions governing financial oversight of political parties by a designated state body? Score: 50 Organic Laws 5/1985 and 8/2007 lay out an ample set of regulations on the financial oversight of political parties both for elections and their day-to-day operation. Nevertheless, the oversight carried out by the Court of Audit is far from exhaustive. First, the economic reports the parties submit to the Court do not reflect all the consolidated financial information regarding these organisations. They do not include the financial statements of the parties’ local organisations (including data only up to the provincial level) or of other related organisations such as their foundations, companies or youth organisations. Secondly, the legal powers of the Court of Audit allow it to exercise effective oversight regarding the subsidies received by the parties but the same cannot be said of the funds received from private sources, since there is no supervisory body with the requisite capacity. Third, the economic reports submitted by the parties are not based on a common methodology, making it difficult to make a comparative analysis of the financial statements of the various parties or with their own over different years. Therefore, these legal loopholes mean that in practice it is possible for the parties to sidestep some of the restrictions imposed by the law. For instance, Organic Law 8/2007 prohibits companies with any type of contractual relation with the public administrations to donate money to political parties. However, there is no legal restriction on them donating money to the parties’ foundations.

9.2.4. Accountability (practice) To what extent is there effective financial oversight of political parties in practice? Score: 25 The supervision of the Court of Audit is generally sufficiently effective as regards the income parties 147


receive from public sources, although the reports they submit are problematic: they only cover up to their provincial level of organisation, do not include information on their foundations and companies and neither do they cover their youth organisations. Oversight is much more of a problem as regards private sources of funds. In general terms, the only information available to the Court of Audit is the data submitted voluntarily by the parties, since it has no legal power to cross-check the data provided by the parties with other sources (the Treasury, the Bank of Spain, etc.). This despite Organic Law 8/2007 including in its article 19 the obligation of donors and companies providing goods and services to the parties of cooperating with the Court. Furthermore, failure to comply entails no penalty.

9.2.5. Integrity mechanisms (law) To what extent are there organisational regulations regarding the internal democratic governance of the main political parties? Score: 75 Chapter II of Organic Law 6/2002 on Political Parties includes the regulations on the parties' internal democratic governance and the catalogue of its members’ rights and duties. These legal regulations must be included in the statutes of each party so that, at least on paper, internal procedures are in line with democratic principles.

9.2.6. Integrity mechanisms (practice) To what extent is there effective internal democratic governance of political parties in practice? Score: 50 Despite the constitutional and legal mandate on the internal democratic governance of the parties, in practice they have a sharply oligarchic bias. The governing elites have a significant capacity to control their members both as regards the selection of candidates for public office and of drawing up their main policies. This is largely due to the specific features of the Spanish electoral system. In general, except for the largely irrelevant Senate, balloting papers are based on closed and blocked lists and this gives the party leaders significant leverage as the possibility of gaining public office depends on the candidate's place in the list. The party executives usually have a decisive role in drawing up the lists, which gives them a significant degree of internal control. This is even more important in the major Spanish parties, in which public office plays a significant role. Most of the party members who take part in congresses (their main decision-making bodies) are usually public office holders (for instance, 70% at the 34th Congress of the PSOE in 1997, according to Méndez 197 and Santamaría, although the percentage appears to be lower at around 30% in the Catalan parties, 198 according to data for 2004 in Baras). The percentage is even higher in the executive bodies and the parties' governing boards between congresses. 197

M. Méndez and J. Santamaría (2001) 'La ley de la disparidad ideológica curvilínea de los partidos políticos: el caso del PSOE', RECP, 4: 35-69. 198 M. Baras et al. (2010) “Estructuras de opinión en los partidos políticos y competencia multidimensional: el caso de Cataluña”, RECP, 22: 49-70. 148


9.3. Role 9.3.1. Interest aggregation and representation To what extent do political parties aggregate and represent relevant social interests in the political sphere? Score: 50 The turnout in general elections has ranged in the 30 years of democracy between 70% and 80% and has been slightly lower in the other elections (normally above the 60% mark). This shows that the parties have a relatively high power of attraction. Nevertheless, most Spaniards have a highly critical attitude towards the political parties. Around two thirds of Spaniards systematically express their opinion in polls that 'whoever is in power always seek their own interests'. Furthermore, according to the monthly CIS surveys in 2011, one out of every four Spaniards consider politicians to be one of the country's three main problems. In 2010 a poll by Víctor Pérez Díaz for ASP and FUNCAS (ASP 10.048) found that more than 90% of those surveyed thought that 'in general political parties have focused excessively on their own political rivalries, disregarding the country's economic problems'. Such critical survey data also coincide with the professionals interviewed by Fundación Alternativas Medición de la democracia, whose three editions of 2008, 2009 and 2010 gave a score of respectively 4.8, 4.9 and 4.4 (over 10) to the indicator 'political parties listen to the people's problems and interests'.

9.3.2. Anti-corruption commitment To what extent do political parties give due attention to public accountability and the fight against corruption? Score: 25 The presence of corruption in political discourse is related to a greater extent to attacking adversaries than to being truly committed to combating the problem. For instance, as regards party funding, every time there have been institutional innovations (some of which have improved the degree of supervision), they have been linked to an increase in public funds and to a lesser extent to a real attempt to improve the supervision of their finances. Although in the past few years new laws have been approved to promote integrity such as the Code of Good Governance (2005), Law 5/2006 on the regulation of conflicts of interest, Law 30/2007 on Public Sector Contracts and Organic Law 8/2007 on the financing of political parties, all have been disappointing as they have given rise to legal loopholes that have not been addressed, as explained above. The most positive steps forward have been related to changes in the prosecution service and the police, although much remains to be done in this respect also.

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The presence of a fair number of candidates (over 100) accused of corruption in the lists for the municipal and regional elections of 22 May 2011, as well as the lack of a real response to the recommendations made by GRECO in 2008 on party funding, as made shown by the compliance report approved by GRECO at its 50th plenary session of 1 April 2011, make evident the scant political will of Spain's political parties to combat corruption.

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10. Media Table 30: Final score Media Final Score Media: 52 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms

Role

Law

Practice 50 25 25 25 25

75 75 50 75 50

Investigating and exposing in practice cases of corruption

100

Informing the public about corruption and its impact

25

Informing the public about governance issues

50

Summary Pillar 10, on the Media, refers to the tools employed to store and offer news to a wide audience. Nowadays, the media are global multimedia groups whose activities cover print, audio-visual and 199 editorials, etc. The report focuses especially on the audio-visual media, both public and private, since they are the ones to have the greatest impact –through the news– on the citizens’ perception of public affairs. Less reference is therefore made to the print media and Internet, as they have less of an impact than television or radio. The audio-visual media that are restricted to local or regional coverage are not dealt with, for reasons of space and focus. Nevertheless, the state-wide model is replicated at the regional level in practically all aspects reviewed in this report. The Spanish Constitution safeguards freedom of expression, the conscience clause and professional confidentiality as basic rights. There are specific laws for regulating contents and schedules for the audio-visual media (television and radio), fundamentally inspired by European Union rules. A specific law governs Internet content as of 2002. There are no specific laws for the print media. However, contrary to the rest of the countries of the European Union, there is no independent institution at the State level that regulates and makes the audio-visual media accountable, that sets ethical standards and mechanisms to ensure integrity and transparency. In 2005 the Government expressed its wish to create a National Council for Audio-visual Media (Consejo Estatal de Medios Audiovisuales, CEMA). However, so far it has encountered stiff opposition from the media and 200 professional organisations, who are wary of a possible political control. There are no professional bodies with the authority to impose penalties on journalists for unethical 199

Contrary to what occurs in other countries, like the US, there are publicly-funded audiovisual media, that compete with State-owned entities and which are managed by private companies. This is the sense in which the terms 'public' and 'private' are used in this report. Both are the subject of analysis. 200 Strangely enough, at the regional level there are Audiovisual Councils that ensure compliance with the law as regards audiovisual contents, in Cataluña (2000), Navarra (2001) and Andalucía (2004). 151


practice and it is the conventional law courts that decide in these cases. Hence, the assessment shows that the absence of an audio-visual council independent of both economic interests and the government in power, which additionally would have defined ethical standards and integrity and transparency mechanisms, is a decisive factor in asserting that Spain has one of the most fragile media systems in terms of independence, plurality and accountability. The following table shows the scores for the indicators that summarise the assessment of the media as regards capacity, internal governance and their role within Spain’s integrity system. The remainder of this section is a qualitative analysis of each indicator.

10.1. Capacity 10.1.1. Resources (law) To what extent does the legal framework provide an environment conducive to a diverse independent media? Score: 75 The analysis of the legal framework has been carried out on the basis of the General Law on Audio-visual Communication (Ley General de la Comunicación Audiovisual) 7/2010 of 21 March. The reason for highlighting this law is that, as the law itself points out, until then Spain had a ‘fragmented incomplete audio-visual legislation, sometimes out-dated and obsolete, with significant shortcomings in being adapted to the times and, therefore, permanently subject to frequent changes, either by decree or subsumed in other laws of a diverse nature. Hence, we have regulations in force that are far removed from reality and limited in their effects, that originally had a temporary character but which have perpetuated themselves for far longer than intended' (Official State Bulletin, 1 April 2010: 30157). After decades of negligence and the absence of consensus, in addition to pressure from the European Union authorities, it is impossible to analyse the practical effects of such a recently ratified legal framework, since it has only been in force for less than a year. However, it can at least be affirmed that there is now a legal framework that provides the adequate environment for the existence of an independent media, despite the current situation still being hostage to the past in terms of a limited degree of plurality and independence. Nevertheless, restrictions remain through the procedure for granting licences and operating concessions. According to Carmen Rodríguez, in charge of Grupo Antena 3's institutional and regulatory 201 affairs, ‘in practice, these procedures are not apolitical’, meaning that the interests of the government in power can be the primary consideration. Nonetheless, decisions can always be appealed. However, 202 Fernando González Urbaneja stresses the delays in the activities of the Courts. Additionally, according to some experts, such as María Pilar Cousido, Professor of Media Studies at 203 Madrid's Universidad Complutense, ‘the regulations favour the existence of media that are

201

Interview and e-mail correspondence with the author between January and May of 2011. Respuesta de Fernando González Urbaneja por medio de correo electrónico el 25 de octubre de 2011. González Urbaneja es Presidente de la Asociación de la Prensa de Madrid. 203 Interview and e-mail correspondence with the author in April. Professor Cousido is the Director of the Third 202

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dependent on public subsidies’. Cousido adds: ‘the regulations favour the existence of large and powerful media, economically speaking. The regulatory bodies do not dare act on their own initiative’, thereby preventing the diversity that would be in line with democratic criteria on the plurality of ideas. On the other hand, the regulations on journalistic practice date back to the 1966 Press Statute, which is 204 still in force (De la Sierra, 2010: 6). It is paradoxical, but since the democratic Constitution of 1978 there has still not been a consensus or agreement to provide the profession with coherence and certainty, with an evident diminution in the independence of journalists. According to Cousido, ‘the regulations on the journalistic profession are in disuse –there are rules, but no one heeds them–, State competences have been transferred to the Autonomous Communities and civil servants do not know where the registers and archives on the recent past of the profession are held’. In his opinion, ‘it is not known’ whether access to the profession is restricted. Other experts, like Carmen Rodríguez, clearly believe there are no restrictions. 205

For his part, Ángel García Castillejo, of the Telecommunications Market Commission (CMT) says that ‘in Spain there are no restrictions on the creation of media, except for those set by the market itself. In the case of terrestrial television and sound broadcasting by ground waves (TDT and Digital Radio), the restrictions are technical, although this is becoming less of a problem given the possibilities of digital technology. The analogical blackout in Spain has led to a significant increase in the television media in the various areas covered (national, regional and local), both public and private’.

10.1.2. Resources (practice) To what extent is there a diverse independent media providing a variety of perspectives? Score: 50 Spain has a large variety of audio-visual media. However, this does not guarantee plurality, and, furthermore, neither are all political ideologies represented. There is a large variety of content but focused on two very specific ideologies, those of the two parties that have governed Spain at the national level since 1978. It should also be borne in mind that there was no private competition until 1989. Until then it was the State, controlled by the Government in power at the time, which broadcast news through the public entity RTVE. The press, although not the focus of this report, has since the beginning of the last century been far removed from the independence that should be expected from journalists and has tended to favour one ideology or another (De la Sierra: 2010) practising what is known in English as advocacy journalism. At present, the key issue is that the global and national economic and financial crisis has opened a window of opportunity that the media groups have exploited to put pressure on the Government as regards the relationship between public and private media. On the one hand, the public group CRTVE ceased to broadcast advertising for the first time in its history on 1 January 2010, making available to the private sector up to €500 million. Additionally, a new financing system was approved, although an Report on Transparencia del Sector Audiovisual en España (2011), published by the Grupo de Investigación UCM/BS Transparencia, Buena Gobernanza y Comunicación. 204 De la Sierra, Susana, et al. (2010). Background Information Report: Media policies and regulatory practices in a selected set of European countries, the EU and the Council of Europe: The case of Spain. European Commission. Mediadem Project. 205 Correspondence and interviews from February to 10 May 2011. The CMT is the regulatory body for Spain's media and telecom sector. More information here. 153


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appeal against it has been submitted to the European courts. On the other hand, in 2010 the National Commission on Competition (the Spanish anti-trust agency, Comisión Nacional de la Competencia, CNC) approved two mergers that will alter the audio-visual scenario, both in economic and editorial terms. Therefore, plurality must be assesses in light of this scenario, which is obviously related to the existence of a sufficient financial strength to operate efficiently. Furthermore, it is important to distinguish between the public and private media and the new audience segmentation following the analogical black-out and the start-up of Terrestrial Digital Television (TDT) on April 2010. There are currently several channels broadcasting news in TDT format, belonging to different media conglomerates. The figures on viewers show that there is no ideological plurality given the clear dependence between decisions regarding concessions and licences and the government in 207 power at the time. The news on La 1 (CRTVE) has the largest average audience in its two main midday and night-time slots, followed by Antena 3 and then Telecinco. La Sexta is in fourth place and Cuatro in fifth. In editorial terms, CRTVE has still not broken away entirely from the interests of the government in power, although it has moderated its previously brazenly partisan stance. Cuatro, La Sexta and the news on Telecinco are ideologically close to the centre-left represented by the Partido Socialista Obrero 208 Español (PSOE), while Antena 3 is ideologically closer to the centre-right Partido Popular (PP). González Urbaneja, believes that “the various media organisations cover the entire spectrum. Many have sufficient resources and operate professionally; they cover all stories but highlight some. There is a growing polarization of opinions, clashing with each other rather than debating.” The outlook will change in the future when a different party comes to power. The new technologies and their use by the younger generations have still not affected the access to information. But they will in the future. As things are today, it is the open television channels that reach the largest audiences. As regards journalistic training, both Carmen Rodríguez and Pilar Cousido agree that it is inadequate. Carmen Rodríguez answers that ‘a university degree certainly does not guarantee adequate training’. For her part, Pilar Cousido believes that ‘it could be provided, if there were the will to do so, but that the prevailing indifference means that the five years spent at university by most journalists are currently wasted on nothing in particular. They merely do the minimum that is required by the lecturers, who are largely not particularly competent, while failing to acquire the knowledge and interests that might in the long term lead to some form of specialisation’. On 20 September 2010 the Federation of Journalists’ Associations of Spain (Federación de Asociaciones de Periodistas de España, FAPAE) issued its Pamplona Declaration demanding that journalistic practice be more professional since, in its opinion, high-quality 209 journalism contributes to a high-quality democracy.

10.1.3. Independence (law) To what extent are there legal safeguards to prevent unwarranted external interference in the activities of the media?

206

More information here. The data quoted derives from the latest report of Barlovento Comunicación, published on 3 January 2011: ‘2010: Primer año de televisión digital’. 208 Centre-right and centre-left are relative terms that aim to assign as much of the population as possible within a broad ideological grouping, but on which there is no consensus. This is merely a necessary simplification for a report with a specific focus and length. 209 More information here. 207

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Score: 75 Article 20 of the Constitution of 1978 recognises the right to freedom of expression. Additionally, Organic Law 2/1997 has a clause on freedom of thought that could foster editorial independence, according to Pilar Cousido, who agrees with the expert Carmen Rodríguez that there are legal provisions that safeguard editorial independence, who additionally refers to ‘the allusions in the General Law on Audiovisual Communications that neither sponsorship nor location should affect the provider's editorial 210 independence’. Meanwhile, as commented above, Spain is one of the few countries in the European Union not to have a 211 law on access to information. Organisations like Coalición Pro-Acceso have spent years working for the adoption of a law on access to information that, although on the current government's agenda for years, has not yet been developed. This issue is essential to any democracy of quality. Additionally, there are no laws on defamation as such, although the Penal Code and Organic Law 1/1992 protect the honour of those affected by way of other legal provisions. The law allows both public and private media regardless of their format (print, audio-visual, Internet, etc.). Censorship is illegal and unconstitutional. However, according to Pilar Cousido 'judicial and administrative sequestrations are respectively constitutional and legal'. Journalists can, in accordance with the Constitution, uphold the confidentiality of their sources, although there are no organic laws in this regard. This doctrine is directly and efficiently applied. As regards the granting of licences and concessions for audio-visual services, politics are not entirely absent. Professor Cousido's explanation is as follows: 'The requirements are economic-financial and administrative (which can be understood to be political). Objectivity, equality and the transparency of the awarding process are legally guaranteed, but doubts persist in practice'. Carmen Rodríguez's opinion is that 'theoretically, yes. In practice not so much'. There have even been cases that have been taken to court, such as the awarding of TDT licences in the Autonomous Community of Madrid, the Enrique 212 Cerezo case, cases in Andalucía, that of the builder Ulibarri in León or the Eliseu Clement case. On the other hand, the procedure for awarding licences does not focus solely on technical aspects. It also deals with content, 'referring back to Title I of the Constitution'. Furthermore, 'obligations and financial guarantees are also required'. In procedures which are the responsibility of the Autonomous Communities there are also requirements concerning 'local content or the local language' (Carmen Rodríguez). Until the new Electoral Law 2/2011, approved on 28 January, came into force, there were no regulations allowing the Government to control at any time the information broadcast by the media. According to Carmen Rodríguez, the new law 'provides a serious capacity to control the information of the private 213 channels during election periods'. Finally, according to Ángel García Castillejo, Law 17/2006 guarantees the independence of the State210

Articles 16 and 17 of the General Audiovisual Communications Law, 7/2010, of 31 March. More information here. 212 More information here. 213 The new Electoral Law 2/2011, sole article, sections 23, 24, 25 and 26, has given rise to a significant debate in relation to what the operators believe to be an interference with their editorial independence. More information here and here. 211

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owned nationwide-coverage radio-television (CRTVE), but its example has not been transferred to the remaining public radio-television media in the various Autonomous Communities and municipalities. He adds that Spain additionally has an organic law with a conscience clause, which aims to guarantee this right to the information sector's professionals in the event of a change in the editorial line of the media employing them. González Urbaneja believes that ¨warrantees exist but also a notable concupiscence between politicians and journalists, between the media and political parties, between the media and the government and even between advertisers, businesses and the media. Also interest groups and governments regularly try to influence the media, often with success.”

10.1.4. Independence (practice) To what extent is the media free from unwarranted external interference in its work in practice? Score: 25 The history of the relationship between the media and the political and economic powers is hardly an 214 example of independence. Pilar Cousido and Carmen Rodríguez are of the same opinion: there are 'real and effective' interferences. Both of them consider that there is an administrative dependence 215 between the audio-visual media and the government's regulatory bodies. Both experts agree that there is no censorship in Spain. Self-imposed censorship is unconstitutional. Only a judge can restrict the content in the media if fundamental rights are breached. However, although it is difficult to quantify, Pilar Cousido asserts that 'it can be assumed that it is very frequent'. Furthermore, she believes that journalists cannot exercise their freedom of expression without fear, at least 'not entirely. I believe there will be threats and also coercion'. Again, it is difficult to quantify. Carmen Rodríguez believes the opposite to be the case. She considers intimidation and harassment to be almost inexistent. The author's experience is that it is difficult to demonstrate, which does not mean it does not exist. In any case, as will be shown below, the lack of directives and ethical standards for the sector, the lack of transparency and mechanisms to protect the anonymity of journalists reveal a significant weakness which, in turn, have an impact on the final information product received by the public. Pilar Cousido believes that the ‘the Spanish media’s party affiliations are evident and voluntary. The owners of the media make them subservient to the political parties and are unashamed of it’. Carmen Rodríguez is partly in agreement, and believes that there is a party affiliation ‘in so far as the journalist considers it appropriate’. As regards the possible control by the party in power through the contracting of advertising or subsidies, Carmen Rodríguez answers that ‘there are legal regulations to ensure the transparency of advertising contracts. Regarding subsidies, they are only received by publicly owned radio and television, which are generally completely under the control of the central Government or by the corresponding regional government’. Nevertheless, private operators also obtain advertising income from the various branches of the central Government. In 2008, for instance, the Government spent €185 million in institutional

214

On the interference of the public authorities in the audiovisual sector. More information here. It must be borne in mind that Spain is the only EU country that does not have a state audiovisual authority that regulates the sector in an in independent, plural and transparent way. We shall return to this point later. 215

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advertising in the various media, compared €171 million in the telecoms company Telefónica.

216

At the State level there has been a large-scale overhaul of the main public communication group, Corporación RTVE. However, there is a still a clear dependence as regards news broadcasts, the acquisition of content from related companies, etc. Despite this, there is a significant pressure that will probably lead to a change in a trend that started in 1958. Both history and tradition have been broken by pressure from the European authorities and by a combination of windows of opportunity that the Rodríguez Zapatero government took advantage of in its first administration in order to reinforce the neutrality of RTVE’s news broadcasts (2004-08). But at the regional level, the cases of undue influence have been very clear. And there are also cases of influence being exerted by the political authorities on the privately owned media, although it is very difficult to bring them to light. Finally, the process of awarding licences is, according to Carmen Rodríguez, clear and transparent, although Pilar Cousido is not entirely in agreement and believes that although regulated by law, it is not strictly complied with.

10.2. Governance 10.2.1. Transparency (law) To what extent are there provisions to ensure transparency in the activities of the media? Score: 50 The expert, Carmen Rodríguez, believes that both the audio-visual and print media are subject to rules that oblige them to disclose their ownership, although there are no clear regulations on disclosing information about their employees or editorial policies. Ángel García Castillejo says that ‘the ownership of the media in Spain is publicly available and information regarding it is accessible to any member of the public, especially if the company is listed on the stock exchange’. Professor Cousido’s opinion is that the legal regulations to guarantee transparency ‘have been enormously reduced since the first Aznar government and that the process has intensified during the last Zapatero administration by way of the CRTVE and Audio-visual Laws. Despite appearing to be diametrically opposed, the two prime ministers have moved in the same direction’. She suggests the following reasons: (a) on the one hand, audio-visual companies no longer have registered shares; and (b) transparency is only required from companies listed on the stock market (Gestevisión Telecinco and Antena 3, mainly). The General Law on Audio-visual Communication Services 7/2010, of 31 March, has been the result of an enormous effort to ensure that transparency is clear and coherent. However, given its recent 217 implementation and the current controversies, it is still too soon to analyse its effects both quantitatively and qualitatively. Furthermore, although the law itself includes a provision for the creation of a National Media Council to regulate transparency and plurality, nothing has been done in this respect after more than a year. 216

Since the approval of Law 29/2005, of 29 December, on Institutional Communication and Advertising, the Government issues an annual report on expenditure on advertising campaigns. However, it does not provide information on the beneficiaries’ identities or the medium, channel, newspaper or website involved. More information here. 217 More information here. 157


10.2.2. Transparency (practice) To what extent is there transparency in the media in practice? Score: 25 The media, both print and audio-visual, disclose their ownership by way of the Companies Registry. However, the media do not disclose any information on their employees or about their editorial 218 policies. The conclusions of the Tercer Informe sobre Transparency en el Sector Audiovisual (Cousido et al.: 2011: 219 161-164) state that 'the public audio-visual administration in Spain still shows some reluctance as regards transparency. While the private radio and television operators demand more open decisionmaking processes, the Administration considers other aspects of transparency more important'. The report continues that 'although competition in Spain has been favoured by the adoption of European directives on audio-visual matters, this has also led to a reduction of the State's role in governing the sector, which is not negative per se, but which could have an unfavourable impact on the Spanish public, especially as regards access to the media and the creation of news companies. Although the willingness of the audio-visual public administration to make more transparent the criteria for granting private television concessions and administrative licences should be highlighted'. The report confirms the 'noteworthy legislative progress made in Spain over the past few years towards clearer rules as regards contracting and subcontracting institutional advertising and communication campaigns', as quoted in the paragraphs above. However, 'more information is necessary on transparency and how far it goes by the Spanish public audio-visual administration as a whole. In this respect, a specific legal framework, and its application, would help an issue which progresses slowly but which requires a definitive change towards more open information and all that means'. On the same tack, Ángel García Castillejo believes that 'transparency as regards the ownership of the media should perhaps be increased in the print and sound media. There is a high degree of opacity in the Internet media, especially those known as “confidentials”'.

10.2.3. Accountability (law) To what extent are there legal provisions to ensure that media outlets are answerable for their activities? Score: 75 The Spanish legal system is sufficient as regards the accountability of the media. However, although foreseen by Law 2/2010 on Audio-visual Media, the Council on Audio-visual Media (CEMA) has still not been created after more than a year. This is essential, especially if, furthermore, it is guaranteed to be 218

It is worth highlighting the decalogue of the Grupo de Investigación Transparencia, Buena Gobernanza y Comunicación, which provides a good summary of the deficiencies as regards transparency in the audiovisual sector. More information here. 219 Cousido et al. (2011), 'Tercer Informe sobre Transparencia en el sector audiovisual en España', Grupo TRABUCOM, Madrid. 158


independent of both the economic and political powers. Meanwhile, the Ministry of the Interior retains the responsibility for nation-wide radio and television. The Autonomous Communities, or their own audio-visual councils, are responsible for the regional and local media (Navarre, Andalusia and Catalonia). The press is not subject to any specific regulation or to any regulatory or oversight body. The main regulatory organs are (according to their fields of competence): the Telecom Market Commission, the National Commission for Competition and the National and the National Securities Market Commission. But these are regulators of administrative procedures and do not intervene in the final news product. These bodies can act on their own initiative and can demand information in accordance with their field of competence and even impose penalties. They act on questions of procedure and substantive issues. As regards the existence of mechanisms so that an individual or agency subject to criticism by the media can answer and inform the public of his own opinion on a specific issue, Organic Law 2/1984 regulates the right to rectify although, as Cousido explains, ‘it can be exercised only in relation to the item of news. It is not as clear in cases of opinion or propaganda’. The media are obliged to correct erroneous information only by court order and in the event that, in additional to erroneous –in the sense of false– it is prejudicial to the honour of the person concerned. Furthermore, in practice, although the law requires that the correction be easily noticeable, it is frequently placed in the erratum or letters to the editor sections in the case of the print media. Cousido considers that ‘it would be possible to appeal in order to have them replaced, but people have neither the time, money or energy to follow these questions right up to the end’.

10.2.4. Accountability (practice) To what extent can media outlets be held accountable in practice? Score: 25 In practice, accountability systems in Spain are not sufficiently effective, which suggests a lack of interest by the regulators and legislators or a lack of democratic culture. Neither self-regulation, nor regulation, work adequately in practice. According to González Urbaneja, the media almost never discloses their economic activities. The level of internal criticism is low and on the social level practically non-existent. 220

Only recently, in 2005, was a Press Council created. However, according to Cousido, ‘it is limited and politicised’. In Carmen Rodríguez’s opinion, ‘basically, the regulators control and impose penalties for excess advertising’. Ángel García Castillejo believes that ‘the administration’s dilatoriness in the event of rights being infringed by poor journalistic practice in some cases makes the defence of those rights ineffectual’. The right to reply is allowed, and usually without any intervention by an outside agent. Carmen Rodríguez believes that ‘this is not unusual in the strictly news context’. On the other hand, there are forums, blogs and likewise, where the public can interact with the media, although they focus to a greater extent on non-news programmes' (Carmen Rodríguez). The existence of an ombudsman 220

More information here. 159


(whether for the press, television or radio) is only usual in the press and the radio, but according to the experts consulted they are employed by the media concerned, are partial and their work is subject to influence from their employers. In the case of the televisions, it is significant that only the CRTVE has an ombudsman, while no private channel has one. Furthermore, it has been developing since it was created on 29 November 2007, on occasion of the first reform of this public service since 1958, and is Internet based. In general, the media do correct their mistakes, and this is a practice that is becoming more frequent.

10.2.5. Integrity mechanisms (law) To what extent are there provisions in place to ensure the integrity of media employees? Score: 75 Some media, especially the print media, have style codes, but in general they do not deal expressly (and certainly not exclusively) with ethics, according to C. Rodrテュguez. Recently, as mentioned above, the publicly-owned CRTVE has made some progress in, for instance, appointing an ombudsman. Codes in Spain are not strictly such, but usually regulations included in collective bargaining agreements or style guides. In general they do not contemplate a body to oversee compliance. Some refer to future regulations; others simply fail to contemplate the possibility of oversight or penalties. The existence of codes is in itself substantial progress for the profession, but the existing ambiguity and loopholes as regards oversight and the imposition of penalties for non-compliance is certainly not good. The lack of controllers and penalties furthermore places the stricter journalists at a clear comparative disadvantage. As Cousido says, 'it's one thing for there to be ethical codes and another that they actually work, A journalist's ethics should not be determined by the company he works for'. テ]gel Garcテュa Castillejo considers that there is 'a large number of self-regulation and ethical codes for journalists in Spain, but the lack of job security in the sector has a negative effect on their application and effectiveness. On this, Gonzテ。lez Urbaneja states that codes do exist but are not applied. Some professional ethics exists but receives little attention. Guidelines are made but not respected, applied or sanctioned.

10.2.6. Integrity mechanisms (practice) To what extent is the integrity of media employees ensured in practice? Score: 25 More than codes of conduct, there are style guides, as already mentioned. Neither do journalists receive independent training in ethics. Furthermore, there is no organisation to defend the ethics of journalists and other media professionals. In general, there are no established procedures either for gifts or other benefits, as there are, for instance, in the British Broadcasting Corporation (BBC) in relation to limitations on lodging expenses and the refusal of gifts, etc. Finally, according to Pilar Cousido, journalists do not 'always' use multiple sources or report on both 160


sides of an issue. 'Sometimes, simply because of ignorance. There is a very deficient training, despite the fact that university graduates are increasingly being employed, although they are extraordinarily ingenuous and defenceless. They could excuse themselves for not looking at the two sides of a problem. Clearly, this is an issue that affects the entire Spanish educational system. Students are trained to rely on memorising and not on resolving problems in a critical and independent manner, according to numerous experts. Besides, as mentioned by González Urbaneja, mistakes do not have real severe professional consequences.

10.3. Role 10.3.1. Investigate and expose cases of corruption practice To what extent is the media active and successful in investigating and exposing cases of corruption? Score: 100 Cases of corruption are usually covered both in the news broadcasts of the various television channels and in the written press. However, they are not treated in a plural way and nor is the presumption of innocence respected adequately. As with any other news of a political natured, coverage is biased and partial, save a few exceptions. Some newspapers ‘presume’ (Carmen Rodríguez) to be specialised in investigative journalism. Some television stations occasionally broadcast programmes investigating corruption. This is not at all usual on television, although there have been programmes on the topic, but it must be said that they are used as electoral weapons by media supporting one or the other of the major parties. In any case, the media, although biased, do provide information on corruption cases. The two major newspapers have had corruption as one of their main themes over the past few years. According to a report by the 'Agenda y Voto' working group of the CIS titled 'Número de noticias en portada y porcentaje sobre total', over the past two years 12% of the front pages of the country's main dailies have dealt with corruption (see section V).

10.3.2. Inform public on corruption and its impact To what extent is the media active and successful in informing the public on corruption and its impact on the country? Score: 25 It is rare for programmes or press reports to be independent when informing of cases of corruption and their impact. As mentioned previously, news or programmes appear when they can serve as a weapon during elections, but they are never neutral. The media have no specific programmes to educate the public about corruption and how to combat it. The best information to appear in the audio-visual and print media are interviews with officials from Transparency Internacional España or with experts when required. However, this is usually the result of the success of the organisation itself (TI España) and of the impact of its annual reports on corruption than of the media.

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10.3.3. Inform public on governance is sues To what extent is the media active and successful in informing the public on the activities of the government and other governance actors? Score: 50 The media regularly report on the activities of the government and other public authorities. However, according to Pilar Cousido, 'there is no objectivity'. To this, Carmen Rodrテュguez answers that 'the private media inform in accordance to their editorial line. The public media generally follow the line of the government in power'. Pilar Cousido believes that the media 'in general, merely transmit information, but have no initiative or originality. Information, interviews and reports are in most cases prepared by the functionally illiterate. They lack the boldness required by a commitment to freedom'. テ]gel Garcテュa Castillejo believes that only the publicly-owned CRTVE provides plural and balanced information on the Executive power. The exhaustiveness of a news item is linked to transparency by the way in which it has been prepared and, finally, broadcast. Given the lack of transparency in this respect, it is difficult to determine whether news items really are exhaustive. Hence, the public do not receive an impartial account from the media of the government's regular activities. Although there should be plurality both internally and in the media system as a whole, perhaps the most important thing would be for the system to be plural and accessible to the public on the basis of equality. In Spain, the public is learning to use the media, although there is still far to go in such essential questions as media-literacy policies, which are widespread in other European countries, by both the public authorities and the private media companies. Carmen Rodrテュguez considers that the public do receive an impartial account of the government's regular activities through the media, 'given the plurality of editorial lines of the various media'.

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11. Civil Society Table 31: Final score Civil Society Final Score Civil Society: 66 Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms Holding the government to account. Role Policy reform

Law 100 100 -

Practice 50 75 75 50 75 50 50

Summary Spanish legislation affords significant protection to the right of association. The registration of associations is voluntary and can only be prevented when a criminal offence has been committed. Associations of public benefit and foundations enjoy substantial tax benefits. In practice, non-profit making organisations are highly dependent on public funds. Associations are independent of the government although there frequently relations between political parties and certain organisations involved in cooperation. The levels of transparency, accountability and integrity of non-profit making organisations have improved over the past few years. The non-profit making organisations usually have an up-to-date web page detailing their activities and economic data. There are still certain weaknesses in the publication of their budgets and settled accounts. Accountability has improved but is still weak, especially because of the difficulties faced by small-scale organisations, the limited commitment of donors and the legal loopholes regarding foundations. The third sector has made an effort in recent times to create codes of good practice. The role of civil society in controlling corruption in Spain is low. Academics and activists agree that society leaves that responsibility to the judiciary and the political parties. There are few campaigns demanding greater control and few reforms resulting from popular initiatives. However, a specific study on the role of the social media and the fight against corruption could indeed receive more positive conclusions.

11.1. Capacity 11.1.1. Resources (law) To what extent does the legal framework provide an environment conducive to civil society? Score: 100 There is a consolidated legal framework that protects the right to association, leading us to give this item a score of 5. Registration procedures are simple and cheap. Registration is not compulsory. There are judicial procedures to protect this right and complete liberty to control or criticise the government.

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There are significant tax exemptions for non-profit making organisations that prove they have a social purpose. There are only a limited number of associations of public benefit, given that most of the, have private motivations and that the same exemptions can be gained as foundations. The right of association is recognised in article 22 of the Spanish Constitution, in articles 20 and 21 of the Universal Declaration of Human Rights, ratified by Spain, and in article 50 of the European Convention for protection of human rights and fundamental freedoms, also ratified by Spain. The organisation of civil society in non-profit making organisations is regulated by Organic Law 11/1985 on Freedom to Join a Union, Organic Law 1/2002 on the Right to Association, Law 50/2002 on Foundations and Law 49/2002 on Patronage. Civil Society in Spain is mainly articulated through associations and foundations. Setting up an association is easy and cheap and based on the rules and procedures agreed by its members. Should an association wish to be inscribed in the national or regional Registry of Associations it must comply with a number of simple requirements whose ultimate aim is to ensure greater publicity. In such a case, in accordance with Law 1/2002 on the Right of Association, an association must submit a formal petition, its founding charter and statutes and pay a fee of â&#x201A;Ź35. Registration is automatic. Within the broader category of associations there are those of public benefit, which can claim tax exemptions and legal aid. According to Royal Decree 1740/2003, to be recognised of public benefit associations must prove they have operated for two years, have a clear public purpose and balanced accounts. Finally, to set up a foundation, Law 50/2002 requires that it be engaged in non-profit-making activities, have a board of trustees and have an initial disbursement of â&#x201A;Ź30,000. Associations of public benefit and foundations have the same tax regime. The registration of an association is voluntary. In accordance with Law 1/2002, the right of a citizen to freely associate prevails and non-opposition is taken to imply consent, in such a way that associations are only inscribed when they want a greater degree of publicity or wish to benefit from the tax breaks inherent to being of public benefit. In this respect, the official in charge of the National Registry of Associations holds that the right to free association and to be registered make it unnecessary to have 221 social or administrative bodies to oversee the process. In any case, both associations and the public administration can resort to the contentious-administrative courts or appeal for legal protection when they consider that their right of association has been violated or that an offence has been committed. Freedom House's 2008 report gave Spain the highest marks, 222 indicating that there is complete liberty to criticise the government. Both associations of public benefit and foundations can enjoy tax breaks. Law 49/2002 on Patronage stipulates that the two types of organisation pay only 10% corporate tax (compared with 33% for profitmaking organisations) and can be exempt from local taxes (IBI and IAE) and inheritance tax. These exemptions are a significant incentive for associations and, especially, foundations. Hence, the number of foundations has sharply increased in the past few years, from only 80 in the 1980s to 450 in the 223 2000s. It should be pointed out that only a limited number of associations are eligible for tax 224 exemptions (in 2009 they amounted to 6.49% of the total). According to those interviewed at the National Association Registry, such a reduced number is due to the nature of Spanish associations, as they are mostly devoted to cultural, sporting and leisure, to the detriment of charitable or welfare 221

Interview with the official responsible at the National Register of Associations. Country reports, Spain 2008. More information here. 223 National Association of Foundations (AsociaciĂłn Nacional de Fundaciones). More information here. 224 Yearbook of the Ministry of the Interior, 2009. More information here. 222

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activities.

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11.1.2. Resources (practice) To what extent do CSOs have adequate financial and human resources to function and operate effectively? Score: 50 Spain’s associations and foundations receive most of their funds from local sources, although they are heavily dependent on single donors and on public resources. The membership of associations and voluntary organisations is low compared to the European average. However, the third sector does attract qualified personnel. Spanish associations are of two types: those with private purposes and those with public purposes. Given the greater importance of the associations of public benefit and foundations for the development of civil society and its role in overseeing the government, this analysis will focus on the dynamics and challenges of this type of organisations. According to the academics and activists interviewed, the available literature and accounting data, funding is one of the weak points of the Spanish association scenario. Most associations obtain their funding in Spain, but there is a sharp imbalance between public and private funds. The 2009 report of the Coordinadora de ONG de Desarrollo (CODE-2009) states that 57% of the resources of associations 226 devoted to international cooperation are from public sources while 43% are from private donors. Similarly, the report of Fundación Lealtad, the pioneering organisation that monitors the transparency and activities of Spanish associations, says that 25% of foundations and associations of public benefit have only one donor, while 13% manage to obtain no more than 10% of their funding from private 227 sources. Spain has a low number of philanthropic donors. These trends, as shown by Carmen Marcuello (2007), have become established over the past few decades. The members of associations highlight that, despite being overly dependent on public funds, these funds are provided by different administrations –local, regional and national–, giving them a greater autonomy and freedom of 228 action. However, as stated by some academics specialised in the issue, most organisations obtain, or aim to obtain, funding from all administrations, reducing their scope to oversee or criticise the public 229 authorities. Spain’s associations also have a low number of members and volunteers. According to the European Values Study (Encuesta Europea de Valores, 1999-2000), only 31% of Spaniards belong to a non-profit

225

Interview with the official responsible for the Public Benefit Department at the National Registry of Associations. Coordinadora de ONG de Desarrollo gathers together the organisations committed to protecting the excluded and to the development of the most disadvantaged countries. It is the sector’s sole agent for dialogue with the government. It actively participates in designing the AECID’s strategy and issues an annual report on the operation of the NGOs it represents. More information here. 227 Fundación Lealtad is devoted to improving and fostering transparency in the Spanish third sector. It is a pioneering organization and monitors the sector’s 141 most important organizations. Monitoring focuses on the analysis of their governing bodies, the publicizing of their activities, the strictness of their accounts and their commitment to fostering voluntary work and associative activities. The Foundation publishes its analyses and the responses of the organizations monitored as regards possible weaknesses or criticism. More information here. 228 Interview with the head of Intermon-Oxfam’s communications department. 229 Interview with Joaquin Lopez Novo, Professor of Sociology at Madrid’s Universidad Complutense. 226

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230

making organisation, compared with a European average of 57.6%. This low rate of membership of associations is confirmed by survey 2864/2011 of the Centro de Estudios Sociológicos (CIS), which shows that only 22% of the population admit to having attended meetings related to activities of general 231 interest and only 23% admit to having taken part in an activity for the benefit of their communities. Additionally, the figures for voluntary work are also low in Spain. According to the Encuesta Europea de Valores (1999-2000) only 17% if Spaniards engage in voluntary work for an association, compared with a 232 32.1% European average. This is also confirmed by the CIS’s 2864/2011 survey, which shows that although 70% of the Spanish population consider that volunteers can help resolve many problems, only 233 around 10% admit to having engaged in this type of work. Finally, it should be highlighted that foundations and associations of public benefit do manage to attract qualified professionals. According to José López Rey (2001), 44% of the sample interviewed have a university degree, 24% have a postgraduate degree and 12% have doctorate studies. This feature has been confirmed by both academics and activists themselves, who highlight the increase in the number 234 of those holding master’s degrees in Spain’s third sector.

11.1.3. Independence (law) To what extent are there legal safeguards to prevent unwarranted external interference in the activities of CSOs? Score: 100 The legal framework guarantees the citizens’ right to free association. The administration cannot interfere in the activity of associations. The governing bodies of non-profit making organisations are fully autonomous. According to article 22 of the Spanish Constitution, all citizens have the right to associate freely, regardless of their political or religious ideology. The only limits to this right are related to criminal offences committed while exercising it. As confirmed by an official at the National Registry of Associations, contrary to the Law on Political Parties, which is far more specific regarding the identification of offences related to justifying terrorist violence, the Law on Associations is far more lax, 235 leaving it to the judiciary to decide whether an offence has been committed. Freedom House’s 2008 236 report awards Spain the highest score as regards freedom of expression and association. Associations are independent of both the State and the government. According to article 2 of Law 1/2002 on the Right to Association, to create an association no prior institutional authorisation is necessary. Article 4.2 of the same law establishes that the administration may not interfere in the internal operation of associations. The limitations placed by the administration on the right to association are due, as already mentioned, to the existence of a criminal offence and the withdrawal of 230

Data published in Carmen Marcuello Servón (2007). Survey 2864/2011. More information here. 232 Data published in Carmen Marcuello Servón (2007). 233 Survey 2864/2011. More information here. 234 Interview with the head of Intermon-Oxfam’s communications department and with Rafael Díaz Salazar, Professor of Sociology at the Universidad Complutense. 235 Interview with the official in charge of the registration department at the National Registry of Associations. 236 Freedom of expression and belief: 16/16; right to association and organisation: 12/12. Country reports. Spain 2008. More information here. 231

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any aid from associations that discriminate on the grounds of race, religion or gender or that glorify violence (article 4.6). The governing bodies of associations and foundations are autonomous and have no representation from the administration. The right to privacy also covers non-profit making organisations.

11.1.4. Independence (practice) To what extent can civil society exist and function without undue external interference? Score: 75 According to the Freedom House report (2008), in Spain NGOs can operate with complete freedom from government interference. In general terms, the government does not interfere with the activities of NGOs, although in the academic world there has been some criticism levelled at the fact there are 237 strong links between political parties and certain organisations engaged in international cooperation. 238 This conditioning is not as evident in neighbourhood associations. In Spain there have not been cases of intimidation or attacks on civil society players. The operations carried out by the security forces in encampments or demonstrations are in response to public disturbances. They are, in any case, subject to the possibility of investigation by the Ombudsman and the appropriate judicial organs.

11.2. Governance 11.2.1. Transparency (practice) To what extent is there transparency in CSOs? Score: 75 Non-profit making organisations provide general information about their activities, an annual report and data on their governing bodies. Most organisations make public their accounts, although there are still some that do not provide their full budgets and settlement. The information on non-profit making organisations has improved very much over the past few years, moving towards a greater degree of transparency. Inclusion in the Registry of Associations requires that 239 they make public general information such as their date of creation, domicile and general aims. Furthermore, according to the Fundación Lealtad’s report, foundations and associations of public benefit have made significant efforts to provide more information to the public. All the organisations analysed have an e-mail address and updated web pages. Similarly, all of these organisations have made public their field of activity and target group. In all cases, there is information on the activities carried out by each organisation in relation to its stated aims. The CODE-2009 report confirms the 240 improvements made as regards the information systems of the organisations that are part of it. Specifically, it highlights that 97% of the organisations make public their aims and values, 98% have an updated website and 90% explain their various forms of collaboration. 237

See Carlos Gómez Gil (2005) and interview with Joaquín López Novo. Interview with a member of the executive committee of the Federación Madrileña de Juntas Vecinales. 239 Organic Law 1/2002 on the Right to Association. 240 More information here. 238

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According to Fundación Lealtad, practically all the organisations analysed publish annual reports and make public the funds they manage and their expenditure. Practically all the organisations comply with their tax obligations and prepare their accounts in accordance with the model for Economic Planning of Non-profit Making Associations model. Fundación Lealtad highlights, however, that 13% of associations 241 do not reveal their annual budget settlements or their current budget. This weakness also appears in the CODE-2009 report, which states that 25% of organisations do not make their financial reports public. Finally, according to Fundación Lealtad, 98% of the organisations analysed make public the names of the members of their governing bodies or boards of trustees. Similarly, the CODE-2009 report shows that 80% of organisations within it provide data on positions held and 40% have a guide to expatriate personnel.

11.2.2. Accountability (practice) To what extent are CSOs answerable to their constituencies? Score: 50 Information and oversight systems have improved greatly. Governing boards usually make use of outside agents for advice rather than for monitoring purposes. Limitations are due to the lack of external oversight, the difficulties faced by the smaller organisations and the lack of oversight regarding the activities carried out by foundations. Over the past few years, Spanish associations have made a great effort to improve the level of information provided to their members, donors and the public in general, in such a way that they can monitor and oversee them to a far greater extent. Has a result, according to the CODE-2009 report, 60% of organisations have a clearly defined accountability strategy. This is confirmed by the activists interviewed, who state that organisations are increasingly committed to keep up a regular dialogue with 242 their members and to demonstrate how serious the third sector is. The improvement in both channels of communication and in oversight is also confirmed by Fundación Lealtad. Practically all organisations provide reports on their activities and finances to whoever requests them, publish monitoring reports for those who fund them, submit annual reports to donors and specify the criteria governing their choice of projects and of counterparties to direct the organisation’s activities. Furthermore, practically all organisations can show a strict connection between their advertising campaigns and their stated aims. Many organisations request outside assistance to prepare their action plans. In most cases this is a 243 matter of helping to define objectives rather than in any oversight of the organisation’s activities. Progress in improving access to information and in the dialogue between the organisations, the public and the donors is, however, hindered by limitations that reduce their effectiveness. The academic world criticises the disproportionate growth of NGOs in Spain and the lack of any control over whether they

241

More information here. Interview with the head of Intermon-Oxfam’s communications department and with a member of the executive committee of the Federación Madrileña de Juntad Vecinales. 243 Interview with the head of Intermon-Oxfam’s communications department. 242

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are viable. Non-profit making organisations argue that their oversight systems are limited due to their 245 lack of human resources to reconcile their main activity with ensuring accountability. If to this is added the scant interest of donors in the activities of the organisations to which they contribute and the loopholes regarding oversight and tax exemptions in foundations, it can be concluded that the association scenario in Spain is at an intermediate stage in which accountability has improved but there still remains a significant portion of the third sector that escapes any control.

11.2.3. Integrity mechanisms (practice) To what extent is the integrity of CSOs ensured in practice? Score: 75 Over the past few years the thirds sector in Spain has worked to create codes of conduct that can be shared by the organisations within the same sector. The coordinating body of development NGOs has produced an ethical code for its member organisations. Similarly, the Spanish Association of Foundations (Asociación Española de Fundaciones) has created a code of good conduct that its members must apply and that should inspire their activities. Finally, Fundación Lealtad considers that, by overseeing the activity of Spanish associations, it imposes on them certain standards of behaviour. The members of associations assert that these codes of conduct do highlight certain bad practices that 246 organisations try to avoid. There are no mechanisms to oversee the ethical behaviour of organisations and neither their members nor their donors keep a close control over them, so that a commitment to good practices is essentially up to the associations and of any monitoring they might carry out on each other.

11.3. Role 11.3.1. Hold government accountable To what extent is civil society active and successful in holding government accountable for its actions? Score: 50 Studies on civil society in Spain agree that it is weak and has a low capacity to control and counter the acts of its institutions (López Pintor 1982, Morán et al. 1995, Gunther et al. 2004, Pérez Díaz 2003). According to Subirats (1999), Spain’s democracy is excessively institutionalist and procedural, which reduces and disincentives the involvement of the citizens in the public sphere. Additionally, according to the same author, in Spain strong traditional ties are dominant, so that people tend to feel solidarity with their family, work or local relationships, but do not place confidence in other sector with which they have no direct ties. The passivity of Spain's civil society therefore conditions its oversight responsibilities. It is true that there are sectoral reports produced by organisations that attempt to evaluate the performance of public institutions. In the sphere of cooperation, Medicus Mundi analyses Spanish cooperation policies in the health sector, Entreculturas studies cooperation policies in education and Intermón-Oxfam produces an 244

Interview with Joaquin López Novo. Interview with the head of Intermon-Oxfam’s communications department. 246 Interview with the head of Intermon-Oxfam’s communications department. 245

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247

annual report on Spanish cooperation as a whole. There are also reports of this type on the 248 handicapped. However, they are mainly descriptive analyses of the sectors and beneficiaries favoured by each policy that do not study other government sectors or spheres of activity. The academics interviewed therefore agree on the idea that Spanish society plays a weak role in 249 controlling corruption and monitoring the government's activity. In this respect, they insist that very few cases of corruption have managed to mobilise society or had an effect on elections. This perception coincides with the attitude expressed by Spaniards in opinion polls: 95% of Spaniards consider politicians somewhat, quite or very corrupt but when asked who should control corruption, only 7% 250 consider it should be the citizens themselves. In Spain civil society considers that is the judiciary that must control the activities of the public authorities. The members of the Federación Madrileña de Juntas Vecinales confirmed to us that denunciations are made when news of a case involving corruption has appeared in the media and a 251 judicial process is in progress. Similarly, CIS's 2826/2009 survey shows that the people consider first the government and then the judiciary to be responsible for combating corruption. This perception could be changing with the recently generated movement known as the indignados, which is demanding a greater control over the corrupt.

11.3.2. Policy reform To what extent is civil society actively engaged in policy reform initiatives on anti-corruption? Score: 50 Being conditioned by the same circumstances mentioned in the previous section, Spain's civil society has a residual role in any discussion on reforms to combat corruption. Additionally, Spanish society has no multiple cases of popular anti-corruption initiatives. With the exception of the latest social movements that arose over the past few months, anti-corruption reforms have tended to be initiated by the political 252 parties and the judiciary.

247

Interview with the head of Intermon-Oxfam’s communications department. See Confederación Española de Personas con Discapacidad Física y Orgánica. More information here. 249 Interview with Joaquín López Novo and Rafael Díaz Salazar. 250 Centro de Investigaciones Sociológicas. Survey 2826/2009. 251 Interview with a member of the executive committee of the Federación Madrileña de Juntas Vecinales. 252 Interview with Joaquín López Novo and Rafael Díaz Salazar. 248

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12. Business Table 32: Final score Business Final Score Business Indicator Resources Capacity Independence Transparency Governance Accountability Integrity mechanisms

Law 100 100 -

Practice 50 75 75 50 75

Participation in anti-corruption policies

50

Support / participation of civil society

50

Role

Summary 253

The analysis of the Business pillar focuses on those that are listed on the IBEX-35 stock market index. These are the most relevant to this report given their turnover, size or activity, since they operate both in Europe and on the global market.

In summary, the legal framework provides a favourable environment for the creation and operation of companies. However, the laws on setting up, operating and closing down companies include a number of problems related to the steps, timings and expenses necessary for their creation in practice. There are wide-ranging legal guarantees to prevent unjustified external interference in the activities of private companies. It is unusual for civil servants to request unofficial payments in their relations with private companies. As regards transparency, although companies usually make public relevant information on their activities, it is frequently partial and not frequently updated. On the other hand, there are national codes of good governance which the companies can decide to follow voluntarily on the basis of comply or explain. In this case, it could be said that there is a body of law that is close to the best international practices. In general, the companies in the IBEX-35 follow international standards on financial information depending on the sector in which they are active. Finally, there are regular banking inspections that comply with all the best practices employed worldwide. There are legal provisions for the adequate supervision of corporate governance, including rules on how companies must be run, their creation, the duties of their boards, administration and ownership, insolvency and dissolution. However, existing regulations are not efficient enough to guarantee good governance in an optimal way in certain aspects. The most important regulatory body, the National Stock Market Commission (Comisi贸n Nacional del Mercado de Valores, CNMV) has a proved track record

253

The IBEX-35 is a stock market index made up of 35 stocks representative of all those quoted in the four Spanish stock markets. It is prepared by the Spanish stock market on the basis of three criteria for inclusion: capitalisation, liquidity (trading volume, both in euros and in orders) and free-float (percentage of the capital of a company that can be traded in the stock market as it is controlled by shareholders who aim to be permanent). Inclusion or exclusion of stocks from the IBEX-35 is decided upon by a Technical Advisory Committee that reviews the index's composition every six months, on 1 January and 1 July of each year. 171


up to where its competences allow. All companies in the IBEX-35 have some sort of code of conduct, depending on their activity. However, they have no sectoral codes. Furthermore, these codes of conduct are neither integral nor exhaustive. In general, companies have an unsystematic and reactive focus in guaranteeing the integrity of their employees, including only some of the following elements: application of existing regulations, investigations of alleged irregularities and penalties for malpractice. Not so as regards the training of employees on the issue of combating corruption. Finally, while many companies have subscribed to the Global Compact, in general the question of combating corruption is absent from the agenda for dialogue between the business sector and the government. Furthermore, in general the business sector is neither involved with or provides sufficient support to civil society in its struggle to combat corruption.

12.1. Capacity 12.1.1. Resources (law) To what extent does the legal framework offer an enabling environment for the formation and operations of individual businesses? Score: 50 The legal framework provides a favourable environment for the setting up and operation of 254 companies. The right to intellectual property has recently been updated by the new Law 2/2011on 255 the Sustainable Economy, approved on 4 March 2011, although this involved an intense debate for various reasons, especially related with the conflict between intellectual property and the use of the Internet. The fulfilment of contracts is protected by law. Law 2/2011 changed the Law on Public Contracts, as regards modifications, leading the European Commission to close on 6 April 2011 the file it had opened on Spain due to the previous legislation, which was incompatible with European Union law. However, the laws on setting up, operating and closing down companies entail a number of problems related to the steps, timings and expenses necessary for their creation in practice, as we shall now see. In general, the law generates some kind of legal uncertainties for companies. In any case, the approval of Law 17/2009, of 23 November, on the free access to service activities and their exercise, and Law 25/2009, of 22 December, modifying several laws for their adaptation to Law 17/2009, should involve a substantial change towards a greater simplicity and a significant move forward in the adoption of the â&#x20AC;&#x2DC;one-stop windowâ&#x20AC;&#x2122;.

12.1.2. Resources (practice) To what extent are individual businesses able in practice to form and operate effectively? Score: 50

254 255

More information here. More information here. 172


In the World Bank's annual report titled Doing Business: 2011, Spain has dropped one position compared with 2010 as regards procedures, steps and expenses, down to number 49. Of the Euro Zone, only Italy (80) and Greece (109) are in a worse situation. As regards reducing red-tape and waiting periods for approval, while in Spain ten steps are necessary (the OECD average being 5.6) and an average of 47 days to open up a business, in Portugal the process only requires three steps and three days. Furthermore, one of the characteristic requirements in Spain's case is to have a registered deed of incorporation from a notary, which costs an estimated €475. A municipal opening licence, which can 256 take from 15 days to three months, raises the expense to a further €406. In general, therefore, the incorporation, operation and closure of a company is expensive and timeconsuming in comparison with other European countries and, indeed, on a worldwide basis. Nevertheless, the Action Plan for Reducing Administrative Burdens (Plan de Acción para la Reducción de Cargas Administrativas) approved by the cabinet on 20 June 2008, lays out the procedures and calendar Spain must follow in order to meet the renewed Lisbon strategy. This plan's priority was to reduce before the year 2012 the administrative burden for the self-employed and by companies in relation to the administration, that is, 5% more than the target set by the European Union. To develop the Plan, on 27 June and 14 August 2008 the cabinet approved two parcels of measures (81 in all), that eliminate or reduce the administrative burdens affecting businesses with the aim of saving on time and expenses for both citizens and companies. As a continuation of these two decisions and in execution of the Action Plan mentioned above, in April of 2009 78 new measures were identified to reduce or eliminate administrative burdens. Finally, on 23 December 2010 the cabinet decided to proceed with the Plan.

12.1.3. Independence (law) To what extent are there legal safeguards to prevent unwarranted external interference in activities of private businesses? Score: 100 There are ample legal guarantees to prevent unjustified external interferences in the activities of private companies. Spain is subject to the rule of law and has firmly established guarantees for private property. Nevertheless, it is necessary to improve the quality of regulations to prevent unwarranted and expensive interferences. For several years, the European Union has been promoting initiatives to improve the quality of legal rules and regulations. Additionally, this policy aims to measure and reduce the impact of the approval of any regulation on citizens, companies and the environment. In the European Union there are Impact Assessment Guidelines, SEC (2009), approved on 15 January 2009, as well as an EU Standard Cost Model. In Spain the progress achieved in relation to the Memorandum on Regulatory Impact Analysis (Memoria del Análisis de Impacto Normativo) which is currently compulsory as regards the analysis of administrative burdens prior to the approval of any regulatory novelty. This is a significant improvement towards better regulations.

12.1.4. Independence (practice) To what extent is the business sector free from unwarranted external interference in its work in 256

In Singapore, which is again the country where it is easiest to do business, the cost of online registration to incorporate a company is of slightly over €170, after three steps and a waiting period of three days. 173


practice? Score: 100 There are no unjustified external interferences in the operations of the business sector. for civil servants to solicit unofficial payments in their relations with private companies.

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It is unusual

What should be highlighted is the obsolescence of the current regulations and their juridical inadequacy 258 in the case of property expropriations by the State, particularly considering that the Compulsory Expropriation Law dates back to 1954 (at the height of the Franco dictatorship). On the other hand, it is worth mentioning Law 7/1983, of 29 June, on ‘expropriation for reasons of public benefit and social 259 interest of banks and other companies comprising the Rumasa SA group’. This was a landmark case of how these issues have been resolved and of the guarantees provided by the law so that a company can submit a complaint or bring an action against the conduct of the administration or a civil servant. Nevertheless, it was an exceptional case that does not deny what is obvious: in general terms the State in Spain has not interfered without justification in the business sector, and when it has, there have been adequate judicial mechanisms to protect the rights of those concerned.

12.1. Governance 12.2.1. Transparency (law) To what extent are there provisions to ensure transparency in the activities of the business sector? Score: 50 Although there are a number of laws and regulations, they do not cover all aspects related to the transparency of commercial operations. Furthermore, some of the rules have loopholes. The main weaknesses are very rightly identified in the latest annual report of the Observatorio de la 260 Responsabilidad Social Corporativa published this year: at least 28 companies of those included in the IBEX-35 35 (82%) have subsidiaries or participated companies domiciled in tax havens, suggesting a high risk of tax evasion. 261

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In this respect, both Carlos Cordero , who directed the study, and Orencio Vázquez, the coordinator of the RSC Observatory, believe that 'it is necessary to have a greater regulatory development of the information on taxes and subsidies with the adoption of the “country by country” model used, for instance, in the US extractive industry with the Dodd-Frank Act’. Thus, some of the weaknesses related to the financial information of IBEX-35 companies could be eliminated. Reports audited by external players are, in turn, supervised by the National Securities Market Commission (Comisión Nacional del Mercado de Valores, CNMV), the competent supervisory body, 257

More information here. More information here. 259 Tamames, Ramón (1995). La economía española: 1975-1995. Temas de Hoy. Madrid. 260 Observatorio de la Responsabilidad Social Corporativa. La RSC en las memorias anuales de las empresas del IBEX35. Séptima Edición. Madrid, 2010. More information here. 261 Telephone interview in March 2011. Carlos Cordero is an expert on corporate transparency in Spain. He is managing partner of the consultancy firm Sustentia. More information here. 262 Interview in Madrid, February 2011. Orencio Vázquez is the Coordinator of the RSE's observatory. The organisation belongs to the so-called third sector. More information here. 258

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whose decision-making processes are highly independent and transparent. Article 116 of the Stock Market Law, in accordance with the principle known internationally as ‘comply or explain’, makes it compulsory for listed Spanish companies to state in their Annual Corporate Governance Reports ‘the degree of compliance with corporate governance recommendations or, if it should be the case, an explanation of the recommendations have not been followed’. The Unified Code of Good Corporate Governance (Código Unificado de Buen Gobierno Corporativo), approved in May 2006, lays out the recommendations that listed companies should consider in order to comply with the obligation of providing information in this respect. Thus, Spanish law allows each company to freely decide whether to follow or not the corporate governance recommendations, but it does require that when they decide not to, they must disclose the reasons justifying their decision in order for shareholders, investors and the markets in general can judge. In accordance with its voluntary character, the Unified Good Governance Code (Código Unificado de Buen Gobierno) does not reiterate among its recommendations the applicable legal precepts, thereby omitting recommendations that are necessary in other countries or are included in European Commission recommendations, since they are unnecessary in Spain as they 264 are part of the legal system. En general, IBEX-35 companies follow international standards on financial information, depending on 265 the sectors in which they are active. Finally, there are regular banking inspections that meet all the standards on best practices worldwide.

12.2.2. Transparency (practice) To what extent is there transparency in the business sector in practice? Score: 50 Although companies tend to provide information about their activities, it is frequently partial. Furthermore, it is rarely up to date. General information on companies is available to the public. As already noted, there is third-party verification of financial records. The CNMV is responsible for regularly supervising financial audits and information regulations, monitoring compliance with the laws that affect the companies quoted on the IBEX-35. However, in practice the recommendations of the CNMV's ethical code that are most breached by Spanish companies are those requiring transparency in information on independent board members and 266 their remuneration. On the other hand, although since only recently, it is now normal for the IBEX-35 companies to provide information as regards corporate responsibility and sustainability in their annual 267 reports. Whether they provide quality information is something else. Furthermore, according to the latest report by the RSC Observatory (for 2009, quoted above), ‘there is an inconsistency between the IBEX-35 companies’ public commitment to sustainability and their strategies and business decisions. The analysis reveals the risk of employing strategies that are not fully responsible from the RSC point of view and clearly inconsistent with the message of sustainability and commitment to development that the IBEX-35 companies express in their annual reports’.

263 264

More information here.

More information here. 265 Repsol is a founder member since 2003 of Iniciativa para la Transparencia de las Industrias Extractivas (ITIE). More information here. 266 More information here. 267 More information here, here, here and here. 175


In relation to the fight against corruption, according to the Fundación Ecología y Desarrollo in its report Negocios Limpios, Desarrollo Global: el rol de las empresas en la lucha internacional de la corrupción. Avances en la prevención de la corrupción por parte de las empresas españolas del IBEX-35 2005-2009, ‘it is possible to see a clear change in the implementation of anticorruption policies in the IBEX-35 companies, with 74% of them having an advanced policy in 2009 compared with only 43% in 2005. Or, what is more interesting, 43% of companies in 2005 lacked a policy entirely, compared with only 6% in 2009 (2010: 7). Nevertheless the paucity of the information provided to the public is evident if such ‘basic elements as the implementation of an anticorruption system such as whistle-blowing and employee training’ are analysed (2010: 9).

12.2.3. Accountability (law) To what extent are there rules and laws governing oversight of the business sector and governing corporate governance of individual companies? Score: 100 There are legal provisions for the adequate supervision of corporate governance, including rules on how companies must be run, their creation, the duties of their boards, administration and ownership, insolvency and dissolution. The most significant laws for the purpose of this report are: the Stock Market Law (Ley del Mercado de Valores) and the Law on Public Limited Companies (Ley de Sociedades de Capital), especially article 35 and Chapter VI of the Law on the Stock Market and Royal Decree 1362/2007. The most important further developments of the Law and the Royal Decree are: the standard models for the Annual Corporate Governance Report (Informe Anual de Gobierno Corporativo, IAGC) of the CNMV (noted above), the Ministerial Order on the minimum contents of the Annual Corporate Governance Report 268 269 (IAGC), the Circulars on the standard models for the IAGC, Title XIV of the Law on Public Limited Companies and the 2006 Unified Code of Good Governance mentioned in previous paragraphs. As noted above, the CNMV is the supervisory body for the IBEX-35 companies, having full professional and financial capacities. The Law on Economic Sustainability establishes in article 39 the obligation to strengthen social responsibility policies in companies.

12.2.4. Accountability (practice) To what extent is there effective corporate governance in companies in practice? Score: 50 The existing regulations are not effective to guarantee good corporate governance in an optimal way in certain aspects. According to the CNMV’s latest Annual Report on the Corporate Governance of Entities Issuing Shares (published in 2009), companies do not generally follow the rules concerning the approval and remuneration of their board members. Furthermore, neither do they comply with the rules concerning an adequate balance between internal and independent board members, about having a 268

More information here. More information here. This Circular for listed companies and other issuers was partially repealed by number 4/2007. This year they will be recast as will the Circular. More information here. 269

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sufficient number of independent board members, about their rotation or about having a specified membership of the appointments and remuneration committee. On the whole, the degree of compliance in 2009 of the 58 recommendations in the Unified Corporate Governance Code was very similar to that of the previous year. On average, listed companies implemented 77.3% of the Code’s recommendations (77.1% in 2008), while another 9.5% were partially adopted (9.8% in 2008). Non-compliance accounted for 13.2% of the recommendations. The CNMV warned in its report that the proportion of independent board members remained slightly below the minimum of one third recommended in the Code and also that there had been an increase in the number of companies with less than the recommended number of independent board members (55.1% of companies compared with 54.3% in 2008). The percentage of companies with no independent board members fell slightly from 14.6% to 14.1%. Finally, the most important initiatives as regards incentives from the State in the fight against corruption 270 are the publicly-funded Fundación Carolina and Ecodes through their web portal. They provide information and issue publications both in Spain and Latin America. Nevertheless, this is a very smallscale initiative which has not managed to become a point of reference throughout Spain. Furthermore, comparing the level of activity on this issue in the EU and the rest of the world, it can be seen that Spain the initiatives carried out by the State alongside the business sector are irrelevant in the fight against corruption.

12.2.5. Integrity mechanisms (law) To what extent are there mechanisms in place to ensure the integrity of all those acting in the business sector? Score: 50 As note in previous sections, RSC policies are common to all IBEX-35 companies. Nevertheless, in practice there are significant variations as regards their content and implementation. All IBEX-35 companies have some sort of code of conduct depending on their field of activity. However, 271 the IBEX-35 companies do not have sectoral codes. Additionally, neither are they integral or exhaustive codes of conduct. According to Carmen Valor and Marta de la Cuesta (2007: 25): ‘the codes are not used as a supplementary instrument to supervise the conduct of employees (a results-based focus) nor with the object of creating a moral community (a process-based focus) but are rather the 272 result of external factors , such as complying with the relevant legislation’. As regards the fight against corruption, the study Negocios limpios, desarrollo global: el rol de las empresas en la lucha internacional contra la corrupción. Informe 2006 issued by Fundación Ecología y Desarrollo in cooperation with Fundación Carolina, concluded that only 25 of the 35 IBEX-35 companies 270 271

More information here.

Although not a sector present in the IBEX-35 companies, the pharmaceutical industry is an example in the matter of codes and even has good conduct oversight units.. FARMAINDUSTRIA, which represents almost 100% of the industry, has been entrusted with overseeing their development and compliance. More information here. 272 Further details of the analysis can be seen in Marta de la Cuesta and Carmen Valor (2007). ‘Códigos éticos: análisis de la eficacia de su implantación entre las empresas españolas cotizadas’. INNOVAR 17, number 030. Universidad Nacional de Colombia. Bogotá, Colombia. Pages 19-30. 177


had subscribed to the United Nations Global Compact, whose principle number 10 deals with the issue 273 of corruption. Nevertheless, only 15 of them had designed their own commitment covering all their activities and forbidding generic corruption or the payment of commissions, offering or accepting gifts beyond a certain value or undue counterparts. Of the other 20, 15 still had not yet adopted their own policies and five had a very vague commitment. Therefore, not even half of the companies analysed had a clear anticorruption policy. As indicated in previous sections, the latest report by Negocios Limpios (2009) shows that from 43% of companies in 2005 that had no anticorruption policies, by 2009 there were only 6%. According to the 2009 report, the 43% of IBEX-35 companies that had in 2005 what they 274 called an ‘advanced policy’ had risen to 74% by 2009. Quoting Negocios Limpios’ 2009 report, ‘following the town-planning scandals that have emerged in the 275 past months, it is interesting to stop for a moment and consider the construction sector. Of the five construction companies in the IBEX-35 (ACS, Grupo Acciona, FCC, Ferrovial and Sacyr-Vallehermoso) only one of them, Ferrovial, has a code of conduct with a clear anti-corruption commitment. Although all of them, except for Sacyr-Vallehermoso, have subscribed to the Global Compact’. In addition to the regulations on corruption of the OECD, the UN, the European Council and the 276 European Union, which have been incorporated to Spanish Law, the most significant landmark is Organic Law 5/2010, of 22 June, which modified Organic 10/1995, of 23 November, on the Penal 277 Code, specifically, articles 31bis and 286bis. Article 31bis covers responsibility, both individual and corporate. Furthermore, point 4 of Article 31, on the attenuating circumstances of the penal responsibility of a legal entity, deserves to be highlighted: ‘d) To have established, prior to the commencement of the hearings, effective measures to prevent and discover offences that in the future might be committed with the means or under cover of the legal entity’. This will possibly entail a great change in the way of internally managing the fight against corruption, by probably incorporating in the future the Chief Compliance Officer (some companies already have one with a range of different competences and resources –EADS, for instance, is a good example to follow in terms of organisation, governance, resources, trained professionals and management–. It will be interesting to analyse the first court ruling in this respect to see what is the judicial interpretation of the scope of these measures.

12.2.6. Integrity mechanisms (practice) To what extent is the integrity of those working in the business sector ensured in practice? Score: 50 In general, companies have an unsystematic and reactive focus in guaranteeing the integrity of their

273 274

More information here.

Negocios Limpios includes the following elements under ‘advanced policy’: prohibition to give or receive bribes; commitment to comply with all laws and regulations of the countries in which they operate; explicit commitment to restrict and control facilitation payments; explicit commitment on giving and receiving gifts; available public information; commitment to control irregular practices at the boardroom level; transparency as regards any type of public donation, with procedures to approve and make public the donations; and extension of these policies to their interest groups and supply chain (suppliers, subcontractors). 275 List of cases of town-planning corruption cases as of mid-2008. More information here. 276 Framework Decision 003/568/JAI of the Council, of 22 July 2003, in regard to the fight against corruption in the private sector. It was incorporated into Spanish law through the new Penal Code. Sixth Additional Provision. 277 For greater details on the progress made in Spain in relation to legislation on corruption, see the conclusions of GRECO’s third assessment of 1 April 2011: Greco RC-III (2011) 5E. 178


employees, including only some of the following elements: application of existing regulations, investigations of alleged irregularities and penalties for malpractice. The 2011 European Fraud Survey of Ernst & Young shows higher levels of acceptance towards illegal practices in the Spanish business sector compared to other countries such as the UK and Germany. This shows that legislative changes still bear no correlation to the business culture in this regard. Sanctions from companies to corrupt employees are a new phenomenon and do not necessarily reflect the changes. This distance between formal and 278 real commitment is still relevant. The study by Carmen Valor and Marta de la Cuesta, mentioned above, remarks that it is not usual for there to be mechanisms to adopt the existing codes (2007:27), suggesting that their application in practice is weak. According to the 2009 Negocios Limpios report, ‘no IBEX-35 company has implemented an anticorruption system that is in line with the best international practice in this regard’. As regards bribery as a common practice in the business world, information became available when international standards on transparency started to be adopted as a result of RSC policies. According to an article published by the daily Público on 25 July 2010, ‘the IBEX-35 companies (or at least a large number of them) have decided to break the taboo there was until recently on publicising cases of corruption or fraud among their employees or suppliers. At the beginning of the decade, the Spanish entrepreneurial elite, gathered in the IBEX-35 (34 companies, since Arcelormittal, which is also listed on the Index, is a Luxembourg-based multinational), started to publish their Corporate Social Responsibility Reports (Memorias de Responsabilidad Corporativa, RSC), although what was usual was to side-step the issue or just ignore it. Now most companies have decided for the first time to provide information on 279 the subject, although the extent of the information they offer is still limited’. According to the same article, 'in 2008 and 2009, companies claim to have caught out more than 500 corrupt employees (546), an unprecedented amount. The good part is that the number of incidents (as they are known by many companies) in 2009 (167) is far lower than in 2008 (379)'. However, as the article points out, 'the absence of data might conceal an avalanche of cases'. With the available data, according to the article ‘17% of the companies in the IBEX-35 declared a case in 2009. They are six companies that are not precisely small: Santander, Telefónica, Iberdrola, Repsol, Endesa and Enagás. In 2008 only three companies admitted to the existence of these practices: Telefónica, Iberdrola and Endesa. However, at that time there was a majority of companies (16) did not provide any information'. Furthermore, '11 companies, some of which are leaders in their respective sectors -BBVA (Spain's second largest bank), Inditex (Europe's leading textile group), ACS (Spain's leading building company) and Mapfre, Banesto, Acerinox, Técnicas Reunidas, OHL, Grifols, Sacyr and Ebro Foods', provide no information on cases of corruption. On the other hand, and this is important, the article states that ‘the depth of the information provided varies greatly although there is a common denominator: they almost never explain the nature of the fraud committed despite the fact that on occasion they are simply cases of theft’. Finally, the article summarises the figures for 2009: ‘in 2009 98 employees were dismissed from IBEX-35 companies on account of fraud or corruption (52 at Santander, 38 at Repsol and 8 at Telefónica)’. The rapid action in these cases contrasts the delays in the public administration in such cases due to the complex disciplinary regime laws. In relation to training as a mechanism to combat corruption, not all IBEX-35 companies have training policies on the issue of integrity for their staff. The report published in 2009 by Negocios Limpios (2010: 8) shows that in that year the percentage of companies that trained their employees regarding 278

Aportaciones de Lourdes Parramón, Agencia Antifraude de Catalunya. Corruption is generally limited to bribery of civil servants or illegal practices with companies or individuals, while fraud is far broader: activities, criminal or otherwise, that breach company ethical codes or regulations. 279

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corruption had risen to 48.5% (from 14% in 2005). On the other hand, the Negocios Limpios report explains that â&#x20AC;&#x2DC;only 20% (four companies) guarantee that there will be no retaliation against whistle-blowers and only 35% declare that they produce monitoring reports. Special mention must be made of the establishment of mechanisms for the anonymous denunciation of suspicious conduct. A large percentage of these companies (70%) have already established this type of mechanism, although this has been largely due to the Sarbanes-Oxley Actâ&#x20AC;&#x2122; (2010: 8). While it can be affirmed that the legislation on bribes is applied in Spain, including the relevant penalties, it is not easy for the Anticorruption Prosecution Service to identify possible cases. The internal weakness of companies in terms of transparency is a significant obstacle in this respect. On top, there should be adequate whistle-blower protection not only the public but also in the private sector. However, since this Prosecution Service started operating and, especially, since the approval of the new Penal Code in 2010, companies are taking the problem of corruption more seriously. A different, but related problem is the economy against which there is a certain governmental complacency and insufficient response from the private sector. Finally, Spain does not have a black list of companies that engage or have engaged in corrupt practices and in money laundering.

12.3. Role 12.3.1. Anti-Corruption policy engagement To what extent is the business sector active in engaging the domestic government on anti-corruption? Score: 25 While many companies have subscribed the Global Compact, in general terms, the issue of combating corruption is absent from the agenda of the business sectorâ&#x20AC;&#x2122;s dialogue with the government. A reason could be that in terms of stringent accounting and auditing requirements, the Spanish legal system is quite demanding to the private sector which makes hiding bribe payments quite difficult. However, the obligation to report suspicious accounts or transfers has never really been prioritised which makes Spain a country where money laundering is quite simple. On top of this, there have been difficulties in implementing the OECD Convention against bribery. In fact, according to SEPBLAC the communication of suspicious transactions is among the lowest among developed countries and the collaboration of professionals has been practically zero. From the 2296 suspicious cases in 2005, notaries and registrars issued only 9. The Law 10/2010 on prevention of money laundering and financing terrorism might actually change this. Also important is the fact that the government failed to establish a strategy to promote integrity in the business sector despite that the Penal Code could change dynamics. Mutual public-private support is where the best solutions arise.

12.3.2. Support for/engagement with civil society To what extent does the business sector engage with/provide support to civil society on its task of combating corruption? Score: 25 180


In recent months, following the adoption of the new Penal Code, the business sector has become more active in developing projects involving civil society and addressing the problem of corruption. Some important initiatives may indicate a change that would be successful if the momentum is maintained. For example, Forética, Garrigues and EADS organized on 28 March 2011 a seminar titled ´Fighting corruption through companies´ and TI Spain on 12 April 2011 organized a seminar titled ´Companies for Transparency and against Corruption: an analysis of best practices´. Similarly, on 24 and 25 March 2011, the Fundación para la Investigación sobre el Derecho y la Empresa (FIDE) and the Fundación Ortega y Gasset organized an international seminar on Compliance and Criminal Law. On 19 January, the Red Española del Pacto Mundial presented the ´Guide on Risk Management and Implementation Tools´ which focused on the fight against corruption and promotion of transparency. Finally, within the initiatives of companies and society on responsible buying it is interesting to highlight the III State Conference on Responsible Purchase of 17 June 2010. In the fight against corruption and the strengthening of sustainability, this topic is essential. The conference enjoyed the active participation of important public and private stakeholders.

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VIII. LIST OF ABREVIATIONS ADIF AEAT AENA AEVAL AGE AN ANFAC AP BBC BGC BOCCLM BOCG BOE CCAA CEMA CEPEJ CGPJ CIS CiU CMT CNC CNMV CNP CPI CRTVE CSR EBEP EIU ENIS EOMF EPA ETA FAPAE FCSE FECCO FGE FHN FT FUNCAS GDP GDU GE GRECO IAE IBEX

Administrador de InfraStructures Ferroviarias Agencia Estatal de Administración Tributaria Aeropuertos Españoles y Navegación Aérea Agencia Española de Evaluación Administración del Gobierno Central Audiencia Nacional Asociación Española de fabricantes de Automóviles y Camiones Audiencia Provincial British Broadcasting Corporation Barómetro Global de la Corrupción Boletín Oficial de las Cortes de Castilla-La Mancha Boletín Oficial de las Cortes Generales Boletín Oficial del Estado Comunidades Autónomas Consejo Estatal de Medios Audiovisuales Comisión Europea para la Eficiencia de la Justicia Consejo General del Poder Judicial Centro de Investigaciones Sociológicas Convergencia i Unió Comisión del Mercado de las Telecomunicaciones Comisión Nacional de la Competencia Comisión Nacional del Mercado de Valores Cuerpo Nacional de Policía Corruption Perception Index Corporación Radiotelevisión Española Corporate Social Responsibility Estatuto Básico del Empleado Público Economist Intelligence Unit Evidence-Based Action Against Corruption: The European Integrity Systems Project Estatuto Orgánico del Ministerio Fiscal Encuesta de Población Activa Euskadi Ta Askatasuna o Patria Vasca y Libertad Federación de Asociaciones de Periodistas de España Fuerzas y Cuerpos de Seguridad del Estado Fiscalía Especial contra la Corrupción y la Criminalidad Organizada Fiscal General del Estado Funcionarios de Habilitación Nacional Financial Times Fundación de las Cajas de Ahorros Gross Domestic Product Grupo de Delitos Urbanísticos Governmental Effectiveness Grupo de Estados contra la Corrupción Impuesto sobre Actividades Económicas Índice Bursatil Español 182


IBI IDH IGAE IGAE IMF INE INSS IU LCSP LECr LES LFT LOFAGE LOFCS LOPJ LOREG LOT MAP NBI NGO NIS OCDE OLAF OPCAT PISA PNV PP PPA PSOE PV RC RDP RDPJ RENFE RL RQ RTVE SEITSA SEPBLAC TDT TI UCO UDEF UNCTAD VA WEF

Impuesto sobre Bienes Inmuebles Índice de Desarrollo Humano Intervención General de la Administración del Estado Intervención General de la Administración del Estado International Monetary Fund Instituto Nacional de Estadística Instituto Nacional de la Seguridad Social Izquierda Unida Ley de Contratos del Sector Público Ley de Enjuiciamiento Criminal Ley de Economía Sostenible Ley de Funcionamiento del Tribunal de Cuentas Ley de Organización y Funcionamiento de la Administración General del Estado Ley Orgánica de Fuerzas y Cuerpos de Seguridad Ley Orgánica del Poder Judicial Ley Orgánica de Régimen Electoral General Ley Orgánica del Tribunal de Cuentas Ministerio de Administraciones Públicas Anholt-GFK Roper Nations Brand Index Nongovernmental Organization National Integrity System Organization para la Cooperación y el Desarrollo Económicos European Antifraud Office Convención de las Naciones Unidas contra la Tortura Programa de la OCDE para la Evaluación Internacional de Alumnos Partido Nacionalista Vasco Partido Popular Paridad del Poder Adquisitivo Partido Socialista Obrero Español Political Stability and absence of Violence Reglamento del Congreso Reglamento del Defensor del Pueblo Real Decreto sobre la Policía Judicial Red Nacional de Ferrocarriles Españoles Rule of Law Regulatory Efficiency Radio y Televisión Española Suministros Eléctricos Industriales Antón Teixidó S.A.. Servicio Ejecutivo para la Prevención del Blanqueo de Capitales Televisión Digital Terrestre Transparency International Unidad Central Operativa Unidad contra los Delitos Económicos y Financieros United Nations Conference on Trade and Development Voice and Accountability World Economic Forum

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IX. REFERENCES -

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National Integrity System Assessment - Spain  

No matter how overt and obvious its consequences are for society, corruption is a crime that prefers to remain covert and concealed. It can...

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