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15Jan14

Evaluation Report on the Corruption Prevention in respect of Members of Parliament, Judges and Prosecutors in Spain
Fourth Evaluation Round

TABLE OF CONTENTS

EXECUTIVE SUMMARY

I. INTRODUCTION AND METHODOLOGY
II. CONTEXT
III. CORRUPTION PREVENTION IN RESPECT OF MEMBERS OF PARLIAMENT

IV. CORRUPTION PREVENTION IN RESPECT OF JUDGES

V. CORRUPTION PREVENTION IN RESPECT OF PROSECUTORS

VI. RECOMMENDATIONS AND FOLLOW-UP

EXECUTIVE SUMMARY

1. In spite of the many measures taken in recent years to introduce regulation to better fight corruption, to strengthen the resources and specialisation of law enforcement bodies dealing with economic crime and ultimately to indict offenders, there has been growing concern about corruption in Spain. The recent scandals besetting political life in the country are severely eroding the credibility of its institutions. The breadth of public disillusionment and mistrust has been further aggravated by the economic crisis.

2. Pollsters reserve the lowest levels of trust for politicians and political parties. Well aware of the lack of confidence they face, the Spanish authorities have initiated several reforms to recast trust levels, i.e. a draft transparency law is currently under debate in Parliament, there is broad access to information regarding the legislative process, a financial declaration system is in place for parliamentarians and open to public scrutiny on the websites of the respective Chambers. The present report takes account of all these positive measures and further supports the on-going reflection in the country as to how to regain institutional credibility. Additional steps are recommended to instill, maintain and promote a strong culture of ethics among parliamentarians, including through the adoption of a code of conduct and the introduction of targeted awareness measures on integrity matters. Likewise, it would also be important to heighten transparency around MPs' contacts with third parties, to provide more detailed and up-to-date information in financial declarations, and to significantly strengthen supervision and enforcement mechanisms in Parliament.

3. The judiciary and the prosecutorial service in Spain are of high quality and, with the exception of some isolated cases, there is no substantial evidence of corruption of individual judges or prosecutors. However, concern exists about the efficient functioning of the justice system, with its overburdened courts that are thus not always in the best position to elucidate matters with real speed. Likewise there are some weaknesses in the judicial and prosecution systems which have led to reiterated criticism as to risks from political influence. More particularly, while the independence and impartiality of individual judges and prosecutors have been broadly undisputed to date, much controversy surrounds the issue of the structural independence of the governing bodies of the judiciary and the prosecutorial service - the primary concern being the appearance that partisan interests could penetrate judicial decision-making processes. This is particularly dangerous at a time when cases involving political corruption are on the rise. The mere existence of this shadow of doubt is undesirable, and steps should be taken to ensure that the justice system is not only free, but also seen to be free, from improper external influence. Moreover, flaws in the structural independence of the government of the judiciary can only become, in the long term, detrimental to the independence and impartiality of individual judges; conditions which must be assured, promoted and protected at all times for justice to be, and be perceived to be, fair and effective.

4. Spanish judges and prosecutors have a strong spirit of public service and dedication to public duty. However, codes of conduct are yet to be adopted for both prosecutors and judges. Likewise, further mechanisms could be introduced to open channels for the discussion of ethical dilemmas shared by the professionals concerned and to provide for dedicated advisory services and guidelines in relation to conflicts of interest and other integrity-related matters. More can also be done to enhance the professional and public accountability of judges and prosecutors. It is essential that the public is made aware of any future efforts taken in each of these areas as they can all serve to strengthen citizens' confidence in the justice system.

I. INTRODUCTION AND METHODOLOGY

5. Spain joined GRECO in 1999. Since its accession, the country has been subject to evaluation in the framework of GRECO's First (in June 2001), Second (in May 2005) and Third (in May 2009) Evaluation Rounds. The relevant Evaluation Reports, as well as the subsequent Compliance Reports, are available on GRECO's homepage (www.coe.int/greco).

6. GRECO's current Fourth Evaluation Round, launched on 1 January 2012, deals with "Corruption prevention in respect of members of parliament, judges and prosecutors". By choosing this topic, GRECO is breaking new ground and is underlining the multidisciplinary nature of its remit. At the same time, this theme has clear links with GRECO's previous work, notably its First Evaluation Round, which placed strong emphasis on the independence of the judiciary, the Second Evaluation Round, which examined, in particular, the executive branch of public administration, and the Third Evaluation Round, which focused on the incriminations of corruption (including in respect of parliamentarians, judges and prosecutors) and corruption prevention in the context of political financing.

7. Within the Fourth Evaluation Round, the same priority issues are addressed in respect of all persons/functions under review, namely:

  • ethical principles, rules of conduct and conflicts of interest;
  • prohibition or restriction of certain activities;
  • declaration of assets, income, liabilities and interests;
  • enforcement of the applicable rules;
  • awareness.

8. As regards parliamentary assemblies, the evaluation focuses on members of national parliaments, including all chambers of parliament and regardless of whether the members of parliament are appointed or elected. Concerning the judiciary and other actors in the pre-judicial and judicial process, the evaluation focuses on prosecutors and on judges, both professional and lay judges, regardless of the type of court in which they sit, who are subject to national laws and regulations.

9. In preparation of the present report, GRECO used the responses to the Evaluation Questionnaire (Greco Eval IV Rep (2013) 5 REPQUEST) by Spain, as well as other data, including information received from civil society. In addition, a GRECO evaluation team (hereafter referred to as the "GET"), carried out an on-site visit to Spain from 10-14 June 2013. The GET was composed of M. Yves Marie DOUBLET, Deputy Director at the National Assembly, Department of Public Procurement and Legal Affairs (France); Mr James HAMILTON, Retired as Director of Public Prosecutions, President of the International Association of Prosecutors (Ireland); Mr Hans NELEN, Professor of Criminology, Criminal Law and Criminology, University of Maastricht (the Netherlands); and Mr Djuro SESSA, Associate Justice at the Supreme Court (Croatia). The GET was supported by Ms Laura SANZ-LEVIA and Mr Yuksel YILMAZ from GRECO's Secretariat.

10. The GET held interviews with representatives of the Ministry of Justice, the Congress of Deputies and the Senate, the General Council of the Judiciary, the Prosecutor General's Office and the Prosecution Council, the Centre for Legal Studies and the Ombudsperson. The GET also interviewed judges and prosecutors, and some of their respective professional associations. Finally, the GET spoke to representatives of Transparency International, journalists and academics.

11. The main objective of the present report is to evaluate the effectiveness of measures adopted by the authorities of Spain in order to prevent corruption in respect of members of parliament, judges and prosecutors and to further their integrity in appearance and in reality. The report contains a critical analysis of the situation in the country, reflecting on the efforts made by the actors concerned and the results achieved, as well as identifying possible shortcomings and making recommendations for further improvement. In keeping with the practice of GRECO, the recommendations are addressed to the authorities of Spain, which are to determine the relevant institutions/bodies responsible for taking the requisite action. Within 18 months following the adoption of this report, Spain shall report back on the action taken in response to the recommendations contained herein.

II. CONTEXT

12. Spain has been affected by a significant number of corruption cases concerning prominent political figures, high officials and business leaders. An extensive public debate on corruption issues is taking place at present partly due to the economic debacle which began in 2008 and has severely eroded citizens' trust in their government and the financial system.

13. It is to be noted that, until 2008, citizens perceived corruption levels in Spain to be low and the country figured among the least corrupt 20 countries of Transparency International's yearly corruption perception index (CPI). The trend reversed dramatically when the Spanish economy entered into recession after almost 15 years of sustained economic growth. Starting from 2009, the perceived level of corruption in Spain has increased for three consecutive years. By 2012, Spain had dropped down ten places to the 30th position in Transparency International's latest CPI. A recent national poll, published in 2012, highlights that the Spanish citizens rank corruption, fraud, political parties and politics in general among their main concerns together with their biggest disquiet, i.e. unemployment |1|.

14. In terms of the focus of the Fourth Evaluation Round of GRECO, back in 2007, members of the Spanish Parliament were enjoying higher rates of trust than the average levels recorded in relation to their EU-27 peers |2|. According to a recent special survey (Eurobarometer) issued by the European Commission, this relatively positive image of the national politicians deteriorated markedly in the following years and the percentage of Spaniards who think that corruption is widespread among national politicians reached 78% (EU average 57%) in 2011 |3|. Furthermore, the same survey revealed that 40% of those Spaniards questioned believed that the erratic action of politicians (Government and Parliament) is one of the main issues feeding corruption within the country. The GET was told that there has been no single case in which an MP has been convicted for a corruption-related offence committed in relation to his/her parliamentary functions; when MPs have been convicted for corruption, the corrupt act in question was related to the dual mandate held by the MP concerned in local government.

15. In so far as members of the judiciary are concerned, although their credibility ratings are better than those of politicians, the downfall trend since 2007 is similar to that observed regarding politicians. The 2011 Eurobarometer reveals that 41% of those Spaniards surveyed think that corruption is widespread among members of the judiciary (EU average 32%), whereas those sharing this view was only 17% in 2007. In addition to the effects of the worsening economy, the widespread belief of the Spaniards that their justice system functions poorly seems to have exacerbated this credibility loss in the judiciary |4|. A recent national report published in April 2013 brings more positive results, with an important increase in the levels of trust in the judiciary to 47% which probably finds its cause in recent decisions of judges and prosecutors defending citizens' right to housing and protecting them from facing "express eviction" |5|.

16. Spain has nevertheless introduced a number of positive measures over the last two decades to better detect and ultimately punish corruption. An important milestone in the system was the establishment of the Special Prosecution Office against Corruption and Organised Crime (and its corresponding subnational units) in 1995. Since then, specialisation of law enforcement bodies has only increased and GRECO has expressly paid tribute in some of its previous reports to the proactive attitude of judges and prosecutors alike to try and adjudicate corruption offences |6|. The sense of scandal surrounding political life, and the many different corruption investigations in course, have recently led Parliament to agree upon a resolution aimed at developing a legislative/policy package to better fight corruption (so-called "pacto de regeneración democrática"), notably, through adopting legislation on transparency (draft Law on Transparency), amending party funding regulations, strengthening the controls performed by the Court of Audit, providing for a specific offence of illicit enrichment, increasing sanctions for corruption offences and stepping up criminal procedures in order to render investigations more efficient and expeditious. The authorities conceded during the on-site visit that additional efforts had to be devoted to corruption prevention aspects.

17. GRECO trusts that the present report, with its in-depth analysis and recommendations, assists the Spanish authorities in their efforts not only to regain but also to raise the level of integrity of and the public's trust in some of its crucial institutions and their individual members.

III. CORRUPTION PREVENTION IN RESPECT OF MEMBERS OF PARLIAMENT

Overview of the parliamentary system

18. Spain is a constitutional monarchy in the form of a multi-party parliamentary democracy. Its Parliament (Cortes Generates) is made up of two elected chambers: the Congress of Deputies (Congreso de los Diputados), which holds the primary legislative power |7|, and the Senate (Senado), which is the chamber of territorial representation. The two-chamber system does not mean that Congress and the Senate operate on the same level. The Constitution has endowed Congress with a series of duties and powers that demonstrate its supremacy. In this way, Congress authorises the formation of the Government, has the power to cause its cessation, is the first to know about procedures concerning bills and budgets, and must confirm or reject amendments or vetoes that the Senate may approve concerning these legislative texts |8|. Pursuant to section 72 of the Constitution, each chamber of the Parliament has institutional, budgetary and operational autonomy, i.e. they lay down their standing orders, adopt their budgets and regulate the statute of their staff without any interference from the other branches of government. The internal organisation and conduct of work of the Congress and the Senate are articulated in their respective Standing Orders.

19. The 350 deputies in the Congress are elected by a d'Hondt system of party list proportional representation. Senators are elected through two different methods: 208 are elected by a majority-direct system (province level) and another 58 are appointed by the respective regional legislatures (Autonomous Community |9|) through a proportional-indirect system |10|. The Congress and Senate serve concurrent terms that run for a maximum of four years. There are 139 women in Congress (out of 350) and 89 women in the Senate (out of 266), respectively; therefore, the ratio of women in Parliament is around 35%.

20. The independence of Parliament is stipulated by Article 66 of the Constitution and members of Parliament (MPs) are expected to represent the national public interest. That said, most of the interlocutors with whom the GET met stressed that the closed and blocked list election system, which was designed after the adoption of the 1978 Constitution to set in place a cohesive political system after years of dictatorship, has led in turn to very strong and rigid internal structures of political parties where party leaders keep key decision-making powers over individual members. Such a system thus favours party loyalty over loyalty to the electorate and results in parliamentary groups keeping firm control and exercising strict internal discipline over individual MPs |11|. The GET heard during the on-site visit that discipline was decisive for inclusion in a candidate list for election purposes. Some tools (e.g. secret vote) are in place to better allow MPs to make decisions by their own convictions rather than because they follow a given party line, but interlocutors deemed these to be insufficient to overturn the aforementioned party-dominated scheme.

21. MPs lose their mandate through (i) a judicial decision annulling the election or proclamation; (ii) death or incapacity; (iii) termination of the mandate; and (iv) relinquishment.

Transparency of the legislative process

22. The Constitution expressly enshrines the principle of publicity of legislation -Article 9 (3). Draft legislation is published when submitted by the Government and then as it undergoes the different consultative stages in Parliament, i.e. when amendments occur and after discussion at committee and plenary level. Information on laws adopted and other parliamentary activity is provided through the official bulletins (Boletín Oficial) and journal of debates (Diario de Sesiones).

23. Plenary sessions are public as a general rule. However, they may be closed to the public if thus decided by a majority of members or if they relate to internal matters (e.g. statute of deputies/senators, suspension, etc.). The composition of parliamentary committees is a matter of public record. Committees' sessions - standing committees, enquiry committees or special committees - are not public, but media representatives may attend, unless it is decided by a majority of members that sessions are to be held in closed chamber. Witness/expert hearings are public, unless the matters at stake relate to reserved matters, as established by law (e.g. national security), or on-going judicial proceedings. The debates held in plenary and committee sessions (except for closed sessions) are published in the journal of debates and are broadcast on internet and sometimes on television.

24. The Congress of Deputies' Modernisation Plan (2006) has paved the way for some significant measures to improve the transparency of legislative work, e.g. a new website with a dedicated citizens' portal, individual webpages for deputies (although only a limited number of them have actually developed their personal sites), an information service for citizens, details on procurement and contracting processes, etc. The Senate has also taken measures to improve its website and facilitate information on legislative drafts and procurement/contracting matters.

25. Political decisions of special importance have to be subject to public consultation by means of a referendum (Article 92, Constitution). It is possible to consult experts and representatives of economic groups when draft laws are being examined at committee level. For some sectors, the law establishes mandatory consultation of interested parties (e.g. consumers' protection, telecommunications).

26. The GET acknowledges and commends the Spanish authorities for the positive steps taken to assure a high level of transparency in the legislative process. The GET deems this to be one of the key strengths of the system clearly representing an asset in the prevention of corruption, notably, by better enabling public scrutiny of MPs work and contributing to ensuring accountability. The GET had the opportunity to test the swiftness and helpfulness of the feedback provided by the general information services of both Chambers. The GET was made aware of some particular areas where the current level of information available to the public could be improved, for example, with respect to the studies and research that form the basis of or have been commissioned for a legislative proposal, or in connection with detailed schedules of ongoing legislative proposals, or regarding MPs agendas and, more particular, information on the meetings they held with third parties, etc. |12| More can also be done to improve the transparency of the legislative initiatives coming from the Government: despite the formal requirements to consult provided by law (i.e. Law 50/1997, Law 30/1992), the GET was made aware that the organisation of public participation processes largely varies in practice and depends on the ministry concerned. The GET understood during the on-site visit that transparency is high nowadays in the parliamentary agenda with additional initiatives in the pipeline (e.g. with respect to lobbying, see also paragraph 50).

Remuneration and economic benefits

27. The average yearly gross salary in Spain is 22,899.35 EUR |13|.

28. MPs are expected to work full-time. MPs receive a salary of 2,813.87 EUR per month and have the right to receive benefits, tax exemptions, and compensation for expenditures in connection with their duties. A bonus applies for a number of specific categories in Parliament (i.e. Speaker, Vice-presidents, Secretaries, Spokespersons and their Deputies, Presidents and Vice-presidents, Secretaries, Spokespersons and their deputies in committees).

29. Members also receive additional allowances, including (i) a tax exempt compensation of 1,823.86 EUR (or 870.56 EUR for those MPs elected in Madrid) to cover expenses incurred in performing parliamentary duties; (ii) transport (either public transport, 0.25 EUR per kilometre if a private car is used, or 3,000 EUR per year to cover taxi expenses); (iii) subsistence allowance when on official mission (150 EUR abroad and 120 EUR in Spain) and communications (a laptop and a mobile phone). The aforementioned levels are similar in the Congress and the Senate. An additional allocation is granted to hire personal assistance staff. Control over these allowances is performed by the responsible supervision services of each Chamber by high rank clerks. Information on MPs' salaries and additional benefits is public and can be consulted on the websites of Congress and Senate, respectively. Any other expenditure (e.g. international trips) must be authorised by the Bureau (Mesa).

30. Because of the economic crisis, salaries have been frozen several times, and so did contributions to an internal pension scheme, which was launched in 2006 but was then suspended in 2012. The remuneration and benefits package of Spanish MPs fall in the lower middle category in comparison with economically similar countries in Europe |14|.

31. The GET did not hear or come across any allegations or cases regarding misuse of the funds allocated to the MPs. The GET was told that it was difficult to misuse parliamentary allowances given the fact that these are not handed over to MPs in cash but in credits utilisable just for the declared expense. For instance, if an MP needs to use a taxi for a parliamentary assignment, he/she will be provided with enough credits that cover the cost of that travel and he/she has to submit the invoice of that expense to the clerks of the Parliament.

Ethical principles and rules of conduct

32. No uniform code of conduct has been issued for deputies or senators. There are, however, some provisions on conduct contained in the Constitution, the electoral law and the respective Standing Orders of the chambers; e.g. these refer to the obligation of confidentiality, to rules on incompatibilities, to the obligation to attend sessions and to act in a respectful manner (to observe parliamentary order, courtesy and discipline). The Speakers of the relevant House, as proposed by the Bureau, may impose sanctions for infringements of the aforementioned rules, which may entail deprivation of rights or temporary suspension.

33. Moreover, the GET was told that the draft Law on Transparency lays out some ethical principles for public officials (including MPs), such as transparency in the conduct of public affairs, full dedication in the performance of official duties, a ban on gifts, the obligation to report misconduct and to prevent conflicts of interest, etc.

34. The GET takes the view that current arrangements regarding ethical principles and standards of conduct are insufficient. While the GET welcomes the recent reform efforts of the authorities aiming to fill the gaps in this regard with the adoption of a transparency law, it firmly believes that a code/set of standards of conduct may have a clear added value both for parliamentarians and for their public image. Such a document is not meant to replace or bring together the various legislative acts, including the draft Law on Transparency imposing obligations on MPs, but to complement and clarify them. Drafting and adopting a code of conduct/ethics would demonstrate the commitment of Parliament towards integrity. It would create joint expectations among the MPs and the public as to what conduct is to be expected from parliamentarians. It would prompt discussions among MPs about acceptable and unacceptable conduct and would increase their awareness about what is expected of them. The GET believes that the educational value of the preparation of a code and of keeping it up to date are important in a Parliament which has been fighting to overcome the recent credibility crisis. The adoption of such a code would additionally demonstrate to the public that their representatives are willing to take action to instil, maintain and promote a culture of ethics in their houses to improve their integrity and that of their peers. This implies of course that such a code of conduct emanates from parliamentarians themselves or, at least, that they take an active part in its preparation.

35. For an ethics and conduct regime to work properly, MPs must themselves develop fair and realistic rules and channels and mechanisms to instil and to uphold strong ethical values. All these call for targeted measures of a practical nature, including induction and regular training, issuing frequently asked questions, hands-on guidance materials, etc. The GET positively values the advisory role played to date by the clerks of the respective Chambers on conflicts of interest related matters; it further believes that the current informal consultation mechanism can work more efficiently, and secure on a long-term basis its key added value, if an institutionalised permanent source of confidential counselling for MPs were to be established. GRECO recommends for each Chamber of Parliament, (i) that a code of conduct be developed and adopted with the participation of its members and be made easily accessible to the public (comprising guidance on e.g. prevention of conflicts of interest, gifts and other advantages, accessory activities and financial interests, disclosure requirements); (ii) that it be complemented by practical measures for its implementation, including through an institutionalised source of confidential counselling to provide parliamentarians with guidance and advice on ethical questions and possible conflicts of interest, as well as dedicated training activities. The specific matters referred to in this recommendation will be examined further in detail in the following paragraphs.

Conflicts of interest

36. There is no general definition of conflicts of interest in the existing legal texts of Spain. The main rules on the issue are those set by the respective Standing Orders on incompatibilities and the general ban on the performance of private sector activities (see chapter on incompatibilities). Detailed procedures have been structured to provide advice on possible incompatibility, to grant exceptions to the applicable bans and to establish sanctions in case of infringement.

37. There is also no statutory provision barring an MP from taking part in a vote on a matter that concerns him/her personally, either directly or indirectly or in which s/he is involved as a representative. Therefore, the question of how a vote relates to any personal interests of an MP is again a matter for the person concerned to decide. In the GET's view, it is logical to provide some common guidelines about issues that might cause conflict of interest problems in Parliament. Under the assistance of guidelines as such, the individual MPs can judge potential conflicts of interest matters more appropriately and protect both their and the Parliament's credibility if questioned over their conduct. The GET invites, therefore, the authorities to specifically deal with this issue and to provide internal rules and guidance to MPs on conflicts of interest in the course of the preparation of codes of conduct, as per recommendation i above.

Prohibition or restriction of certain activities

Gifts

38. There are no specific rules on gifts. At present, MPs are not required to declare gifts or other advantages (e.g. hospitality) they receive in relation to the exercise of their parliamentary mandate. The draft Law on Transparency proposes to ban the acceptance of gifts, with the exception of those of a social, customary or courtesy nature.

39. The GET notes that, in relation to on-going corruption investigations, there is much public concern regarding the "ethical standard" about gifts and how "normal" could it be for politicians to receive them. In this context, the GET recalls the two different trends seen in other parliaments when dealing with the issue of gifts: some parliaments ban the acceptance of gifts above a certain threshold, while others do not ban the acceptance of the gifts at all but ask for those exceeding a certain threshold (usually not very high) to be declared and made public. In short, the issues of gifts and other types of hospitalities are thus regulated in one way or another in many countries. The GET takes the view that it is paramount for the credibility of parliaments to draw a clear line between acceptable (those of a social, customary or courtesy nature) and unacceptable gifts, benefits and hospitality and to explain this to the parliamentarians and to the public. The GET takes note of the intention of the authorities to deal with this important matter in the draft Law on Transparency, but it urges that the issue of gifts and other advantages is specifically tackled when implementing GRECO's recommendations to develop codes of conduct (recommendation i) and to widen the scope of the declaration requirements to also cover other advantages (recommendation iii).

Incompatibilities and accessory activities

40. As a general rule, the principle of "exclusive dedication" to the parliamentary mandate applies in Spain, i.e. MPs are banned from performing additional activities in the public and private sector. However, exceptionally MPs are allowed to engage in a limited number of accessory activities provided by Law. The accessory posts that are incompatible with the parliamentary mandate are regulated by the Constitution and the electoral law. These incompatible posts can be grouped under two main categories:

(a) Incompatibilities of an administrative nature

41. MPs cannot be members of the Constitutional Court, members of the higher levels of public administration (except members of Government who may or may not be MPs), the Ombudsman, judges, magistrates and public prosecutors (when in office), military personnel and members of the security forces (when in active service), a member of an electoral commission (Article 70, Constitution).

42. Electoral law (Organic Law for the General Electorate Regime, so-called LOREG) extends the aforementioned incompatibilities to other institutional offices, including the executive offices of the Prime Minister, Ministers and Secretaries of State, the President of the Court for the Protection of Competition; member of the Management Board of the RTVE public enterprise; delegate of the Government to an autonomous port, waterway confederation or motorway toll authority; president or member of the administrative board, administrator, director-general, manager or equivalent of a public enterprise, State monopoly or enterprise with majority public participation, direct or indirect and of whatever nature, or publicly constituted savings bank; civil servant or holder of any other post at the service of or included under the budget of national, regional or local government or a public body or enterprise.

43. It is also incompatible to be a deputy and a senator simultaneously, or member of a regional parliament and deputy in congress simultaneously. However, it is possible for a senator to be a member of a regional parliament and a senator at the same time. Contrary to the restriction on being a deputy and a member of a regional parliament, MPs may simultaneously hold their elected posts in the local governments (municipalities, town halls). Moreover, pursuant to section 156 of the Electoral Law, MPs may sit in collective executive bodies or boards of directors of organisations, public entities or firms directly or indirectly controlled by the public sector through a majority stake. In both of these exceptions, MPs are only entitled to indemnities and cannot perceive any remuneration from their compatible secondary jobs. As far as current MPs are concerned, most of the secondary public posts that they hold are in local government. For instance, around 74 out of 350 members of the Congress and around 98 out of 266 members of Senate have secondary elected posts in local government, whereas only about 20 members of the Senate hold compatible positions in public entities (e.g. advisors/counsellors in public entities at regional or local level) |15|.

(b) Incompatibilities of a strictly economic nature

44. MPs are banned from engaging in the performance of business, industrial or professional activities. In particular, membership in Parliament is incompatible with the exercise, whether directly or via a substitute, of any other function, profession or activity, public or private, self-employed or as an employee, remunerated by means of a wage, salary, charge, fee or any other payment. Should the person concerned transfer to a different administrative or employment situation, his/her post shall be kept in reserve for him/her under the conditions laid down by the applicable legislation.

45. Exceptions to the aforementioned ban are listed in the electoral law, i.e. (i) University lectures and cooperation in educational or research activities; (ii) management of personal or family assets; (iii) literary, scientific, artistic or technical production; and (iv) other private activities which are not listed explicitly as incompatible in the law and authorised by the respective Committee of each Chamber, following the petition expressed by those concerned. The GET was told that the relevant committees dealing with the incompatibilities have developed written codified criteria that they use in their elaboration of the accessory activities of the MPs. The plenary session of each Chamber decides on cases of incompatibility, following a report of the Committee of Members' Status in the Congress and the Committee of Incompatibilities in the Senate. Both the request and the authorisation are to be included in the Registry of Interests. The number of MPs engaged in private activities are very limited, e.g. out of 616 MPs sitting in both houses only around 30 of them work in private firms, about 40 of them work as lawyers, and about 100 of them are engaged occasionally in lecturing, conference and writing activities |16|.

46. The GET assesses the system of incompatibilities as comprehensive and rather strict in comparison with the regulations applied in other countries. There are three main rules that apply to the incompatibility regime in Spain: (i) exclusive dedication to the parliamentary mandate; (ii) incompatibility with a secondary activity in the public sector (with the exception of a) posts held in local government, but in any case the MP has to opt for one or the other salary; and b) part-time lecturing work in a public university); (iii) incompatibility with a secondary activity in the private sector which may run counter the principle of exclusive dedication referred to above or which could raise a conflict of interest. The GET considers the detailed procedure and the well-developed mechanisms in place for preventing and resolving incompatibility instances to constitute clear assets in the system. More particularly, the public nature of the debate and the vote on accessory activities by the assembly seem to be dissuasive enough to persuade MPs to abide by the rules. To illustrate this, about 40 deputies and 60 senators have resigned from their previous public or private occupations after the elections. The GET recognises the valuable role that the clerks, in both the Congress and the Senate, have been building up when advising individual MPs on incompatibility criteria.

Financial interests, contracts with State authorities, post-employment restrictions

47. MPs cannot hold any share above 10%, acquired wholly or partly after the date of election (unless acquired by inheritance), in firms or companies which hold contracts with public sector entities. This limitation extends to the spouse/partner and minor children. Moreover, MPs cannot enter into contracts which are paid by public funds. MPs cannot hold offices or positions that entail functions of management, representation, advice or the provision of services in companies with a licence or concession of a public monopoly. There are no other restrictions on the financial transactions that MPs may engage in, e.g. buying/selling shares of companies in the stock market, debts and credits obtained from financial institutions.

48. No rules or measures prohibit or restrict the employment options of MPs, or their engagement in other paid or unpaid activities, on completion of their term of office. The GET was made aware of cases where MPs were hired by private companies after the end of their mandate because of their contacts in the ruling party. While it is clear that a parliamentary mandate will not, as a rule, span a whole career, and that MPs should therefore be provided with fair opportunities to seek outside employment, the GET is nevertheless concerned that an MP could use his/her parliamentary position to secure employment in a private company once s/he leaves Parliament. This is a matter that could be further explored when developing a code of conduct, as per recommendation i.

Misuse of confidential information

49. MPs have a duty of confidentiality; they can be deprived of their rights if they fail to observe this obligation. Moreover, the misuse of confidential information is punished under Article 417 of the Penal Code; sanctions consist of fines, debarment and even imprisonment if serious damage is caused or if the secrets of a private individual are involved.

Third party contacts

50. There are no regulations which would address issues that can arise from MPs' interactions with lobbyists or those who engage in similar informational or persuasive activities. The natural result of the absence of any rule regarding lobbying is the absence of any register of lobbyists and the absence of any legal requirement for MPs to disclose any consultations that they have had with interest groups regarding the legislative bills under review in the Parliament. However, the authorities confirmed their intention to regulate on this particular matter and to establish a register of lobbyists.

51. The GET welcomes the plans preconized by the authorities. In Spain, the main issue concerning contacts of MPs with third parties, relates not so much to lobbying firms (there are just a few), but to the influential role played by interest groups and professional organisations (associations, foundations and unions). In a system in which MPs are generally following party discipline when casting votes (see paragraph 20), the trend would be for lobbyists/interest groups to prefer channelling their influence through parliamentary groups rather than through individual MPs. In the GET's view, it is important that there is appropriate transparency on this type of dealings in order to protect the legislative process from improper influence or the mere appearance of so. Improved transparency in this regard can only contribute to boosting the image of and the trust in the Parliament, as well as the individual MPs. Therefore, GRECO recommends the introduction of rules on how members of Parliament engage with lobbyists and other third parties who seek to influence the legislative process.

Declaration of assets, income, liabilities and interests

52. MPs must file two separate forms to declare (i) their financial interests and assets and (ii) their accessory activities. These are to be furnished at the beginning and at the end of the mandate and must be updated, as necessary, whenever changes occur. The obligation to declare does not extend to MPs' spouses/partners or other family members. The Speaker of the Congress/Senate is ultimately responsible for the Registry; the Committee of Members' Status in the Congress and the Committee of Incompatibilities in the Senate are responsible for keeping and controlling declarations on accessory activities. Since 2011, declarations are public and available online.

53. The financial interest and asset declaration form requires the MPs to provide detailed information on land and property, vehicles, any income they receive from their secondary activities and pension plans, financial liabilities (debts, loans financial transactions, etc.) and interest returns from financial investments (stocks and shares).

54. Regarding accessory activities, MPs are asked to submit information on (i) public sector posts or positions; (ii) public responsibilities to which the MP has renounced; (iii) pension payments; (iv) teaching activities; (v) positions in political parties or parliamentary groups; (vi) literary, scientific, artistic or technical productions; (vii) authorised activities in the private sector; (ix) any other activities.

55. In addition to both financial declarations, MPs are not allowed to participate in any official foreign travel without authorisation of the Chamber of the Parliament to which they belong. Starting from 2012, the official foreign trips in which deputies and senators have participated are published on the web-sites of the Chambers, but disclosure forms do not include details on sponsored trips of individual MPs.

56. The GET thinks that there are certain features missing in the current declaration requirements which could prove to be important to better bringing to light potential or actual conflicts of interest. In the GET's view, in a system which has left the control of the accuracy of these forms mainly to citizens and the media, publicly available declaration forms would fulfil their purpose only if they give an image as complete and precise as possible of an individual MP's actual interests. More particularly, the GET believes that adding the market value of the real estate and vehicles, providing the names of the companies to which the shares and stocks belong; disclosing the interest rates paid for the credits obtained from financial institutions; including information on the gifts received and sponsored trips; and inserting the amount of income (even received in the form of indemnities) received from accessory activities in both forms would enhance the preciseness of the information contained in the forms. In the light of the foregoing, GRECO recommends that current disclosure requirements applicable to the members of both Chambers of Parliament be reviewed in order to increase the categories and the level of detail to be reported. Following international experience in this regard and the potential risks of channelling personal financial interests to family members to circumvent the applicable rules, it may furthermore be prudent to consider widening the scope of the declarations to also include information on MPs' spouses and dependant family members (it being understood that such information would not necessarily need to be made public).

Supervision and enforcement

57. Main supervision over compliance with the rules on asset/activities declarations rests with Parliament. With respect to declarations on activities, the responsible committees in the Congress (Committee of Members' Status) and the Senate (Committee of Incompatibilities) play a key role in ensuring abidance by these rules. If questions arise as to the compatibility of an additional activity, the committees are entrusted with requiring the MP concerned to submit further details (e.g. relating to the kind of business, if public or private), as necessary. The committees' clerks provide advice to individual MPs in order to prevent conflicts of interest. As to the verification of asset declarations, these are only checked pro-forma by the presidents of the respective Chambers.

58. The submission of activities declarations is a prerequisite for formally acquiring MP status. Once submitted, the Committee of Member' Status has to complete its control within 20 days and inform the House about incompatible jobs that MPs hold. Once notified, the MP concerned has eight days to decide whether to quit the parliamentary mandate or the incompatible job. Similar verification procedures for accessory activities apply in the Senate. Whenever complaints by the public have been received in relation to incorrect declarations regarding accessory activities, the MP has been requested to rectify, as necessary.

59. The submission and verification of asset declarations is not a prerequisite for MPs to acquire parliamentary status. Nor are there detailed rules on the method and process to be followed in controlling asset declarations filed by MPs. This relatively lenient regulation of asset declarations seems to have taken its toll as some MPs were negligent in submitting their declarations in a reasonable time. For instance, according to a recent article published on a national newspaper, 17 MPs did not deliver their asset declarations even 100 days after they had been sworn in, and at least one deputy submitted her declaration after 8 months |17|.

60. The Speaker of Congress/Senate is to impose disciplinary sanctions for violations of activity declaration requirements, as decided by the plenary and the Bureau upon proposition of the committees responsible, i.e. the Committee of Members' Status in Congress and the Committee of Incompatibilities in the Senate, which are composed of one representative of each parliamentary group. Sanctions consist of temporary suspension (breaches on parliamentary duties, e.g. assistance to sessions, courtesy, confidentiality) or even loss of the parliamentary mandate (breaches of incompatibility rules). Whenever MPs engage in incompatible activities, they must choose between the parliamentary seat or the disqualifying position, and if s/he fails to exercise the said option, s/he is deemed to have relinquished his/her seat (Article 160(3), LOREG). The GET was told that no sanction has ever been imposed; most incompatibility questions are resolved through consultation between the concerned MP and the Chambers' clerks so that conflicts of interest are prevented from the start. The GET was told that, in practice, MPs follow the clerk's advice, even if not in complete agreement with such advice, in order to avoid a potential sanction at a later stage.

61. There is no institution/service in Parliament which is vested with investigative capacity, the only exception being the specific process set in place for suspicions of trading in influence inside Congress. In such cases, at the request of a parliamentary group of the deputy whose reputation is in question, the Committee of Members' Status is vested with investigative capacity. It can conduct hearings and require all necessary cooperation and access to information in order to efficiently perform investigations. The deputy concerned is to be heard once a draft report on the activity of the committee is prepared. The work of the committee and the deliberations held in plenary session are secret, but the final conclusions of the plenary must be published in the official bulletin. The GET was told that although this procedure is limited to trading in influence-related inquiries, in practice, it has also been used to control the activities declared by MPs.

62. The GET has misgiving as to the efficiency, sufficiency and dissuasiveness of the current supervision and enforcement arrangements on integrity-related matters in Parliament. While the system appears to work more effectively for failure to comply with incompatibility requirements, the existing regime is significantly weaker with respect to asset declaration requirements. In particular, there is no authority formally vested with substantial control responsibilities (other than the mere pro-forma collection of forms and its publication on the website) over asset declarations. Moreover, no sanctions are foreseen for the non-submission, the late submission or the submission of false information. The information contained in asset and activity declaration forms submitted at the beginning and at the end of MPs mandates are not cross checked by any authority (e.g. tax authorities). The fact that declaration forms are filled out manually and posted online after being scanned renders it difficult their comparability across time as variations may occur; ways could be explored to utilise technology to improve the effectiveness of disclosure systems in areas such as submission of disclosures, data management and verification. For example, the use of technology could better allow for comparability across time of asset and income variations could well facilitate early detection of potential anomalies and irregularities. Finally, the committees and speakers of the houses responsible for enforcing the rules have no legal tool to force the MPs, who are not re-elected and cease to be MPs, to declare their activities and assets at the end of their term as required by the rules.

63. The system heavily relies on public control. As one of the interlocutors pointed out, an MP who is accused of illicit enrichment has to prove his/her innocence to the public and the Parliament has neither authority nor competence to investigate these allegations. The GET was made aware of some actions led by citizens to scrutinise MPs work, e.g. "adopt an MP" which not only allows for the follow-up of individual MPs, but has also developed an online tool to compare MPs declaration forms |18|. The GET heard that a parliamentary group intended to table an initiative after the summer requiring greater control of asset and activity declarations in Parliament, by vesting the relevant committees with statutory investigative powers.

64. Despite the undisputed importance of the control carried out by the public and the media, the GET takes the view that greater institutional safeguards are needed in order to strengthen credibility and accountability of the integrity system in Parliament. Also bearing in mind the above recommendations to further develop the rules on MPs' conduct and their declaration duties, the GET believes that it is only natural to require some improvement in the monitoring and enforcement of such standards by competent bodies, as several of its interlocutors clearly recognised. Obviously, it is up to the Spanish authorities themselves to decide how appropriate monitoring could best be organised and improved, with due respect of defence rights of MPs. While such a role could be exercised by existing parliamentary bodies, provided they are equipped with adequate resources and investigative powers, the GET sees merit in introducing an element of independence into the supervisory regime of Parliament. This is all the more important in Spain given the troubling level of public unease with its political class. If public trust is to be restored and ensured on a long-term basis, a model that relies solely on politicians regulating themselves is unlikely to retain citizens' credibility. Some procedural elements could be introduced to address the public misgivings about Parliament being too inward-looking and potentially acting as judge and jury when investigating and punishing misbehaviour. In this connection, the GET draws the attention of the authorities to the experience already developed in some other countries to bring in lay expertise and involvement, i.e. to include in the oversight process and mechanism persons or institutions external to Parliament, whose appointment and role are vested with adequate guarantees of legitimacy, transparency and efficacy. This would not only demonstrate to the public Parliament's willingness to adopt a more proactive approach towards upholding the integrity of its members, but also its commitment to continue infusing transparency, independence and accountability in-house. Finally, in order to be credible, the system will have to foresee the imposition of appropriate sanctions in case of infringements of the rules. For the system to operate with broad parliamentary and public support, it must be regarded as independent, legitimate and proportionate. Therefore, GRECO recommends that appropriate measures be taken to ensure effective supervision and enforcement of the existing and yet-to-be established declaration requirements and other rules of conduct of members of Parliament. Such arrangements will also need to be reflected in the codes of conduct recommended before.

65. Criminal liability applies pursuant to the provisions on bribery (Articles 419 to 427) and trading in influence (Articles 428 and 429) of the Penal Code. MPs benefit from non-criminal liability (inviolabilidad) for any opinion expressed or vote cast during a sitting of the Parliament or its working bodies. They also benefit from procedural immunity; notably, no criminal investigation and prosecution can be undertaken against deputies and senators, without prior authorisation by the respective House. The Supreme Court (Section II) retains responsibility for hearing cases against MPs. This is known in Spain as "aforamiento". The GET heard some unease in this regard, namely, in relation to greater exposure of the Supreme Court to risks of political pressure. The issue of politicisation risks in the judiciary is dealt with in detail in the next section of the present report.

66. The GET was informed that all authorisation requests to prosecute MPs had been granted by the chambers since 1998; the Constitutional Court has developed very restrictive jurisprudence in this respect. A detailed procedure has been laid out in the respective statutes of each House. An exception exists in the event of flagrante delicto in which case the beneficiaries of the immunity can be arrested. GRECO concluded in its First Evaluation Report on Spain that the scope of the procedural immunity afforded to MPs was generally acceptable.

Advice, training and awareness

67. At the start of a new session of Parliament, MPs are informed on their duties to declare interests and activities. The clerks of the Chambers are available to advise whenever an individual MP has a query on his/her declaration duties and they are indeed playing a positive role in this respect, as recognised before. Apart from these, no other induction or specific ethical training is offered to MPs.

68. The information gathered by the GET strongly suggests that there is room for improvement in the current arrangements for raising the awareness of MPs about integrity and providing advice when necessary. A more institutionalised training and counselling system would raise the profile of integrity matters within Parliament and sharpen the awareness of MPs; a recommendation has been already issued in this respect (recommendation i). The GET considers this especially important as new rules and mechanisms on integrity are also recommended to be introduced in this report.

69. Finally, as a sign of politicians' commitment to repair their image and recapture public confidence, each House needs to keep exploring ways to instill, maintain and promote a strong culture of integrity in its Members. This requires more than just accountability mechanisms. It needs visible support from leadership, as well as effective opportunities to engage in individual and institutional discussions on integrity and ethical issues related to parliamentary conduct. Furthermore, to support and strengthen public trust in Parliament, GRECO believes it is essential that the public continues to be made aware of the steps taken and the tools developed to reinforce the ethos of parliamentary integrity, to increase transparency and to institute real accountability.

IV. CORRUPTION PREVENTION IN RESPECT OF JUDGES

Overview of the judicial system

70. The judicial system of Spain is organised territorially (municipalities, judicial districts, provinces, Autonomous Communities and the State) and by subject matter (ordinary: civil, criminal, administrative, social; special: military; and specialised: courts dealing with violence against women, juvenile courts, etc.). It consists of the following courts:

  • The Supreme Court (Tribunal Supremo), exercising jurisdiction over all of Spain, is the highest judicial body in all areas of law, except in relation to constitutional rights. It has five chambers: civil, criminal, administrative, social and military.
  • Below the Supreme Court is the National Court (Audiencia Nacional) which also has jurisdiction over all of the nation's territory. It tries criminal cases that transgress regional boundaries, appeals against central administration, as well as certain labour cases.
  • The Higher Regional Courts (Tribunales Superiores de Justicia) are the highest courts within each Autonomous Community. They have four chambers: criminal, administrative, labour and civil. They constitute the final court of appeal in relation to the application of the law of the Autonomous Community in question.
  • The Provincial Court (Audiencia Provincial) has jurisdiction over a province. It tries criminal and civil cases.
  • District Courts (Juzgados) have jurisdiction to deal in the first instance; the different types of district courts are detailed as follows. In particular, examining courts (Juzgados de Instrucción) investigate and prepare criminal cases for other courts. Courts of First Instance (Juzgados de Primera Instancia) hear civil cases that are not designated by law to be heard by a higher court and hear appeals of judgements made by the Justice of the Peace. The Justice of the Peace (Juzgados de Paz) hears minor civil cases. Criminal Courts (Juzgados de lo Penal) try crimes prepared and investigated by the Court of First Instance. Administrative Courts (Juzgados de lo Contencioso-Administrativo) hear administrative appeals. Labour Courts (Juzgados de lo Social) have jurisdiction over work-related cases. Courts of Prison Vigilance (Juzgados de Vigilancia Penitenciaria) have jurisdiction over prisons and detainees. Juvenile Courts (Juzgados de Menores) try criminal cases committed by minors over 14 years old and under 18 years old; they may have jurisdiction over several provinces in an Autonomous Community. Domestic Violence Courts (Juzgados de Violencia de Género) hear criminal cases entailing domestic violence against women. Commercial Courts (Juzgados de lo Mercantil) hear all matters in connection with insolvency proceedings.

71. As regards the single judge or collegiate nature of the aforementioned courts, all are single judge with the exception of the Supreme Court, the National High Court, the Higher Courts of Justice and the Provincial Courts. Collegiate courts decide by majority vote. There are 4,689 judges of whom 2,422 are men and 2,267 are women |19|.

72. The Constitutional Court (Tribunal Constitucional), which has jurisdiction over the national territory, is competent to examine the compatibility of legislation with the Constitution and decide on appeals on alleged breaches of fundamental rights and freedoms (recurso de amparo).

73. The Constitution enshrines the principles of independence, impartiality and irremovability of judges: judges shall be independent, shall have fixed tenure, shall be accountable for their acts and subject only to the rule of law (Article 117, Constitution).

To ensure the principle of impartiality and that of a fair trial, the Spanish system has a clear separation of investigation and adjudication functions. A strict incompatibility regime to shelter the judicial profession from any improper influence is required by the Constitution (Article 127) and subsequently developed by the Organic Law 6/1985 of the Judiciary (LOPJ), the latter being the key instrument regulating the judiciary in detail. The LOPJ the Organic Law of the Judiciary devotes an entire section to judicial independence, addressing such issues as security of tenure, incompatibilities, immunity and economic independence.

74. In particular, the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) is a constitutional, professional, autonomous body mostly consisting of judges, which performs strategic, administrative, inspection and managerial functions with the final aim of guaranteeing judicial independence. The Constitution specifies the core functions of the CGPJ, i.e. appointment, promotion and discipline of judges. Over the years, the CGPJ duties have extended to virtually all organisational matters relating to the judiciary. All administrative decisions of the CGPJ can be subject to review in the Supreme Court.

75. According to the Constitution, the CGPJ consists of the President of the Supreme Court, who presides over the CGPJ, plus 20 individuals, each of whom serves for five years. Of the 20 members, the Constitution specifies that 12 are to be judges; the other 8 are attorneys or other jurists. The Constitution requires that the latter be appointed by a 3/5 majority of Parliament. The Constitution does not specify how the members belonging to the judicial shift are to be appointed and the system of appointment has varied over the years: before 1985, they were elected by judges themselves. However, that system was criticised at the time for generating a rather conservative composition of the CGPJ. The system was then changed with a view to ensuring that the CGPJ composition was more reflective of society as a whole and to avoid self-perpetuating government of judges: from 1985 onwards, Parliament assumed responsibility for appointment among the list of candidates proposed by the judges' associations.

76. At the time of the on-site visit, the manner of selection of the CGPJ members was repeatedly singled out by the representatives interviewed as a source of concern given its susceptibility to "politicisation" - the main criticism being that the method of election enabled political parties to divide the CGPJ seats among those whom they support. After the on-site visit, the GET was informed of the adoption of Law 4/2013 of 28 June 2013 reforming the CGPJ, including some changes in the appointment of the members of the CGPJ belonging to the judicial shift. Accordingly, while Parliament retains responsibility for formal appointment by a 3/5 majority, any active judge can now present his/her candidacy if relying on the support of 25 judges or a judicial association. A minimum requirement for candidacy is at least 15 years of legal experience. The authorities indicated, after the on-site visit, that the new system has enabled a total of 54 judges, including about 18 non-associated judges, to run for election (in the former system 36 was the maximum number of candidates).

77. The GET recalls Recommendation CM/Rec(2010)12 of the Committee of Ministers on judges: independence, efficiency and responsibility, which enshrines the independence of councils of the judiciary and recommends that not less than half the members of such councils be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary. This has also been reiterated by the Council of Europe European Commission for Democracy through Law (Venice Commission) |20|. In this connection, the GET notes that the recent reform in the appointment of CGPJ members opens up candidacy to any judge with sufficient support and not only to those proposed by judicial associations which was the case before. This, in principle, could have the potential of broadening representation of the corps of judges in the CGPJ's composition since half of the judges in Spain are not affiliated to a judicial association. In turn, the number of candidates for election in Parliament could be fairly large and room for political bargaining at the time of the vote thereby increased. Moreover, the required 3/5 vote could easily allow a political party with a commanding majority in Parliament to place its preferred candidate in the post.

78. The GET remains cautious as to the effect that the recent reform could trigger in the future and whether this reform would effectively strengthen the CGPJ's image as a non-partisan body. While understanding that the role of Parliament in the appointment of the members of the CGPJ may have been justified for historical reasons, the GET refers back to the text of Recommendation CM/Rec(2010)12 quoted above, which calls for election of at least half of the council by the judges themselves through a democratic system where all the judges have the right to vote and to be elected. The GET also draws the attention of the authorities to Opinion no. 10(2007) of the Consultative Council of European Judges (CCJE) which more explicitly stresses that political authorities such as the Parliament or the executive should not be involved, at any stage, in the selection process. The GET further notes that the establishment of judicial councils is generally aimed at better safeguarding the independence of the judiciary - in appearance and in practice, the result in Spain seeming to be the opposite as evidenced by recurrent public disquiet in this domain. This is particularly dangerous at a time when cases involving political corruption are on the rise.

79. Another novelty introduced with the LOPJ amendment of June 2013 is that only some of the CGPJ's members (5 out of 20) are full-time. Before the reform, all members devoted themselves solely to CGPJ functions, to the exclusion of any other professional activities. The change in approach has reportedly been justified on efficiency grounds, but some in the profession argue that this reduces the work capacity of the CGPJ and further weakens its independence.

80. In the GET's view, given the key decision-making role that the CGPJ plays in vital areas of the judiciary, including on appointments, promotion, inspection and discipline concerning judges, it is crucial that this body is not only free, but also seen to be free from political influence. When the governing structures of the judiciary are not perceived to be impartial and independent, this has an immediate and negative impact on the prevention of corruption and on public confidence in the fairness and effectiveness of the country's legal system. The GET understands that it is too early to assess the effects of the recent changes introduced in the appointment process of the CGPJ judicial members, but it fears that the perception of politicisation of the CGPJ, given the role of the Parliament in the process, may not be resolved in the citizens' eyes. Moreover, the current reform has also encountered widespread discontent amongst the profession. The first testing experience of the recent reform took place with the election of the CGPJ members in November 2013; this issue having been a major point of contention for years, and in the particular context for Spain, the GET considers it deserves close follow-up. GRECO recommends carrying out an evaluation of the legislative framework governing the General Council of the Judiciary (CGPJ) and of its effects on the real and perceived independence of this body from any undue influence, with a view to remedying any shortcomings identified.

81. The Ministry of Justice (and the relevant executive bodies in the eight Autonomous Communities with devolved judicial competence) retains responsibility pertaining to court administrative personnel and management of buildings and resources. It handles salaries and pensions. The CGPJ has a separate budget, but it only covers the activities of the Council itself. The GET notes that the Ministry's of Justice responsibilities over the budget and the budgetary process, as well as its role to re-allocate funding amongst courts and judicial needs during the budgetary year, are perceived by many in the profession as posing a threat to the independence of the judiciary. Internationally binding texts do not strictly provide for budgetary autonomy of the judiciary. However, in the GET's view, it is important to ensure that there is, at the very least, active and decisive judicial involvement both in drawing up and disbursing the budget, taking into account real needs and priorities as these emerge and with the requisite accountability mechanisms. One form which this judicial involvement could take would be by providing the CGPJ with greater budgetary management functions. This would be in line with the overall aim of economic independence of the judiciary which is enshrined in Chapter V of the LOPJ. This is also in accordance with Opinion no.10(2007) of the Consultative Council of European Judges (CCJE) which stresses that a system in which the council for the judiciary has extended financial competences requires serious consideration in those countries where such is not the case at present; it further states that courts can only be properly independent if they are provided with a separate budget and administered by a body independent of the executive and the legislature. This is an issue that can be taken in due consideration when implementing recommendation v above.

82. There is a comprehensive reform of the judiciary underway aiming at enhancing efficiency. An Inter-institutional Commission (composed of 7 members representing judges, prosecutors, academics and the legal profession) has been created to work in this area. The reform would reportedly look into appointment procedures, the territorial setup of the judicial system and "single-judge" structures, the excessive workload of courts, the centralisation of judicial information, etc.

Recruitment, career and conditions of service

83. Judges are appointed to office, for an indefinite period of time, until the official age of retirement. Judges cannot be transferred, suspended, dismissed or be made to retire for causes other than those prescribed by law (Article 118, Constitution).

84. Access to the judicial career is based on the principle of merit and capacity to perform judicial duties (Article 301(1), LOPJ). The principal route to the judiciary is organised by way of (i) a rigorous public competition open to law graduates of Spanish citizenship with full legal age (18 years old), which is then followed by (ii) a period of training (theory and practice) at the Judicial School. A minority of judges are drawn from experienced lawyers of recognised competence; they must also follow the training course of the Judicial School (Article 301(5), LOPJ). All candidates must present proof of clean criminal records.

85. The selection process is designed to fulfil the goals of transparency and objectivity (Article 301(2), LOPJ); the relevant selection bodies (Selection Committee and Examining Board) have a mixed composition bringing together representatives of the Ministry of Justice, judges, prosecutors and academia. Furthermore, the LOPJ contains provisions encouraging the selection and appointment of disabled persons on the basis of the principles of "equal opportunities, non-discrimination and compensation for disadvantages"; according to these provisions the selection procedures must also respect the principle of "equality between men and women". The initial training and selection course includes a multidisciplinary training programme and practical supervised training targeted at different bodies of the judiciary (Article 307, LOPJ). All selection tests to enter and to be promoted in the judicial career include a chapter on the principle of gender equality, including particular measures against gender violence (Article 310, LOPJ). Candidates who pass the theoretical and practical course are formally appointed judges by the CGPJ, following a proposal made by the Judicial School.

86. In theory, promotion in the judicial career is based on the principles of merit and capacity and also on suitability and specialisation to perform judicial duties (Article 316(3), LOPJ). In practice, according to the relevant rules on merits' contests (Articles 329 and 330, LOPJ), seniority is the main criterion for promotion or transfer. That said, the GET was told that increasing attention was being paid to specialisation in the context of the ongoing reform of the judiciary. Evaluation of judges' performance is based on the achievement of quantitative targets. The evaluation system is currently moving from a court-based to a more institutionalised mechanism.

87. For higher appointments, i.e. Presidents of Provincial Courts, High Courts of Justice, the National Court and Supreme Court, the CGPJ exercises a discretionary power regarding the relevant proposals for appointment. All decisions of the CGPJ concerning this issue must be reasoned and can be challenged by way of judicial review (before the Administrative Chamber of the Supreme Court) by any of the applicants. The appointment of the aforementioned higher officials is made for a five-year period. In order to refine the discretionary power of the CGPJ in this matter, Regulation No. 1/2010 of 25 February 2010, on decisions regarding appointment of holders of high judicial offices, was issued. It contains guidance on the merits and criteria of competence to be assessed when adopting decisions on appointment; all proposals for appointments must be consistent with the principles of merit and capacity in the performance of judicial duties, objectivity, transparency and gender balance.

88. The GET acknowledges the positive steps taken to enhance the skills of justice professionals and to ensure transparency and fairness in their recruitment. The Spanish entry system to the judiciary is said to be one of the toughest across Europe. The GET further notes that, in principle, judges and prosecutors are promoted according to their length of service, particularly at the lower levels of the hierarchy. However, questions were raised on-site concerning the potential of greater discretion by the CGPJ in promotions of some categories of senior judges (i.e. Presidents of Provincial Courts, High Courts of Justice, the National Court and Supreme Court judges) and the possibility of political interference in such promotions which were not perceived to be carried out in a fully transparent manner. Criticism in this regard has been expressed by both civil society and judges themselves: there is a certain impression that while the judiciary is independent at its base, it is politicised at the top in its governing bodies, i.e. the CGPJ and the senior ranks of the judiciary. Some indicated that it was sometimes known beforehand who would be appointed to the senior position in question.

89. International standards are unequivocal in this respect: all decisions concerning appointment and professional career must be based on objective criteria; councils of the judiciary should demonstrate the highest degree of transparency |21|. The GET has difficulty in reconciling such standards with the "discretion" as to how to assess merits and professional qualifications with which the law vests the CGPJ when appointing senior judges. Some attempts have been made in recent years to refine the criteria on which the CGPJ should base these appointments, notably, through a 2010 regulation and a number of Supreme Court decisions. However, the representatives interviewed conceded that it would be preferable for these criteria to be specifically included in the law and indicated that the draft amendments of the LOPJ included provisions in this respect (e.g. requirements to submit CVs, documents/titles certifying merits, performance reports, etc.). The GET welcomes the anticipated regulatory change. When promotions are not based on seniority, but on qualities and merits, these must be clearly defined and objectively assessed. In the GET's view, the promotion of judges is an extremely important issue to instil public trust in the fairness and transparency of judicial processes; any suspicion of undue influence in the promotion of judges to higher positions must be dispelled. GRECO recommends that objective criteria and evaluation requirements be laid down in law for the appointment of the higher ranks of the judiciary, i.e. Presidents of Provincial Courts, High Courts of Justice, the National Court and Supreme Court judges, in order to ensure that these appointments do not cast any doubt on the independence, impartiality and transparency of this process. When implementing this recommendation the authorities should bear in mind the concerns expressed in paragraph 80 (recommendation v) on the perceived politicisation of the CGPJ.

90. Judges cannot be redeployed, even by way of promotion, without having freely consented thereto; an exception to this principle is permitted only when compulsory transfer (traslado forzoso) is provided for and has been pronounced by way of a disciplinary sanction, e.g. in cases of incompatibilities. Both appointments and transfers of judges are publicised.

91. Judges can only lose their position (a) if they renounce their judicial career; (b) if they lose Spanish nationality; (c) by virtue of a disciplinary sanction; (d) if convicted when the sanction entails imprisonment of over six months; (e) if they fall under incapacitating circumstances; (f) when they retire. The prosecution service must be informed if removal occurs in the terms foreseen in indents (b), (c), (d) and (e). Dismissal procedures are the responsibility of the CGPJ and are always carried out with a hearing of the interested party and reporting to the public prosecutor. Proceedings in such cases are entrusted either to the disciplinary committee or the full assembly of the CGPJ.

92. The gross annual salary of a first instance judge at the beginning of career is 47,494 EUR; it amounts to 111,932 EUR for judges of the Supreme Court. Professional incentives are in place for judges who exceed performance targets.

Case management and procedure

93. The premise is that cases are to be assigned to judges on objective grounds. Case allocation is computerised and based on objective criteria, however, these criteria are not homogenised throughout the Spanish territory. Although this was not said to pose any problem in practice (the different courts in Spain were generally following the same sort of criteria), the authorities were looking into establishing a unified system of distribution of cases to judges. The GET considers this to be a positive development which the authorities are encouraged to complete so that consistent procedures in case allocation apply countrywide and are not subject to local variation.

94. As a rule, a judge can be removed from hearing a case only if there are grounds for her/his disqualification (e.g. disciplinary reasons). No court or judge, nor their governing bodies or the CGPJ, may issue instructions to lower courts (Article 12 (3), LOPJ). Any judge who sees his/her independence compromised may report it to the CGPJ in order to initiate the appropriate legal proceedings to preserve such independence (Article 14, LOPJ). Lower court decisions may be appealed to a higher court and, ultimately, to the Supreme Court.

95. Legal proceedings are to be carried out within a "reasonable period of time" (Article 24(2), Constitution). Numerous attempts have been made to streamline the workings of the judicial system, including by increasing the number of judges or amending certain procedural laws; however, the excessive workload of courts puts at risk the capacity of the system to deal with the number of cases they receive, and to do so in a timely manner. In February 2013, over 2,000 judges went on strike to protest worsening work conditions. The ratio of 10 judges per 100,000 population in Spain is one of the lowest in Europe. As a matter of fact, one of the chief problems continuing to affect Spanish justice is undue delay in decisions by the courts |22|.

96. Corruption cases are no exception and there is a great deal of concern over the length of time they take. The GET was told that courts have been swamped with about 800 corruption cases in the last five years and only a few have resulted in conviction or reached conclusion. The problems seem to arise principally at the investigation stage, but there does not appear to be any difficulty with the length of trial themselves. It seems that investigations have a tendency to mushroom and to turn into investigations of every possible aspect of the particular matter being enquired into. The root cause of this seems to be a combination of the legality principle applied in Spain in very strict terms which requires that every offence be investigated and prosecuted, and the control of the investigating judge over the investigation - or, at least, an unclear division of responsibility between the prosecutor and the judge. The ongoing reform of the judiciary is looking into this problem and has proposed several initiatives to curb it, including by resorting to alternative resolution mechanisms, decriminalising certain minor offences (misdemeanours), increasing judicial taxes and restricting free legal aid to persons with low income levels, reorganising judicial structures, prioritising cases, etc. Likewise, the GET was told that proposals had been tabled to place control of the investigation in the hands of the prosecutor in order to empower him/her to choose what charges to investigate and prosecute rather than requiring him/her to investigate and charge a multiplicity of offences which in turn could create an unwieldy and unnecessarily complex investigation and trial. The GET encourages the authorities to tackle this issue, as a priority, since it severely undermines public trust in justice, as polls repeatedly evidence.

97. The CGPJ, in its supervisory capacity, can carry out ad-hoc inspections (which it can also delegate to the superiors responsible for the different courts) to verify the functioning of the administration of justice; the Ministry of Justice may request the CGPJ, as appropriate, to inspect the operation of a given court, as necessary. This inspection is in no way to interfere with the due independence of justice. In relation to the problem highlighted above concerning the excessive length of judicial processes, the GET considers that the current internal audit system could pay closer attention to the efficiency of working methods and procedures in court.

98. As regards publicity of judicial work, court hearings are public unless provided by law for justified reasons, e.g. protection of minors (Article 120(1), Constitution). All judgments must be reasoned and of a public nature (Article 120(3), Constitution). The CGPJ publishes judicial statistics on its website as well as reports on perceptions, on inspections performed, on the functioning of courts, etc. The CGPJ also contains a search engine for jurisprudence. Furthermore, there is a Centre for Judicial Documentation (CENDOJ), under the auspices of the CGPJ, providing a database with Spanish, European and international legal texts, judgements, publications and other legislative materials. There are plans underway to better centralise judicial information through the establishment of a common database.

Ethical principles, rules of conduct and conflicts of interest

99. No code of conduct, nor set of rules or principles in the field of judicial ethics, has been specifically issued for the judiciary in Spain. That said, the LOPJ enshrines the principles of due independence and impartiality of the judicial function, and introduces a strict incompatibility regime for judges. The Constitution establishes core values governing the judicial function, i.e. independence and impartiality of judges, security of tenure, etc. and other principles that apply to judicial proceedings, such as the right to legal remedies, the presumption of innocence, etc. The draft amendments of the LOPJ also include provisions on ethics (independence, respectful treatment) and transparency.

100. Spain has actively participated in the preparation of model codes of conduct in other regions of the world, and more particularly, the London Declaration (2010) |23| and the Latin American Code of Judicial Ethics (2007) |24|, which the GET was told constitute inspirational guidance for the Spanish judiciary. So do other materials on ethics issued by the European Network of Councils of the Judiciary. These documents are available at the CGPJ website. The Spanish CGPJ actively participates in the Latin American Committee of Judicial Ethics which functions comprise (i) issuing non-binding opinions on topics and questions related to judicial ethics at the request of the Summit of Presidents of Supreme Courts of Latin American countries or any of its members (i.e. Supreme Courts or Councils for the Judiciary of Latin American countries; (ii) promoting the development of judicial ethics and discussions on the subject through training activities, seminars, publication of papers and monographs, etc.; and (iii) strengthening the ethical standards and consciousness of judges from Latin American countries.

101. The GET acknowledges the active role taken by the Spanish judiciary to further develop deontological standards for the Ibero-American region. The GET was informed that the Latin American Code of Judicial Ethics is applied in practice although it has never been formally adopted. Many in the profession recognised that it was awkward that the Spanish judiciary had greatly contributed to the development of deontological standards, but that it had not formally adopted a code of its own and that it was probably time to do so. The GET can only share such a view. It further believes that drafting and adopting a code of conduct specific to the Spanish judiciary would enable broad discussion among Spanish judges themselves about the ethical dilemmas and the potential conflict of interest situations they may face in the fulfilment of their tasks. Such discussion in itself could only be beneficial towards agreeing on shared values and to restate the commitment of the profession towards integrity. The adoption of a code of conduct would also represent a key opportunity to translate core values into behavioural norms. Furthermore, the adoption of a clear set of deontological standards would assist in creating joint expectations among judges and the public as to what conduct is to be expected in court. Regarding guidance on deontological matters, the GET was told that these can be referred, through the CGPJ, to the Latin American Committee of Judicial Ethics which can issue non-binding opinions, as per request. This possibility has, however, never been used to date. In practice, judges were turning to other colleagues for advice whenever confronted with integrity questions. The GET takes the view that the establishment of an institutionalised advisory service could not only assist in better advising judges in case of integrity-related dilemmas, but also in bringing coherence to the court's integrity policy and in developing best practice across the profession. Consequently, GRECO recommends that (i) a code of conduct for judges be adopted and made easily accessible to the public; and (ii) that it be complemented by dedicated advisory services on conflicts of interest and other integrity-related matters.

Prohibition or restriction of certain activities

Incompatibilities and accessory activities, post-employment restrictions

102. Judges are subject to a very strict regime of incompatibilities, much stricter than any other public servant. In particular, judges are banned from membership of political parties or unions |25| (Article 395, LOPJ). The aforementioned ban does not apply to judges of the Constitutional Court and the GET notes that such an exception is triggering some debate for conflicts of interest-related allegations in course. On the other hand, judges can be granted "special leave" to take up political activity. In 2012 the law was changed and, under the terms of special leave, judges/prosecutors continue to contribute to health and pension schemes, acquire seniority in service and are able to return to the same post they left. Prior to the said reform, judges/prosecutors who took up a political activity were considered to be on "sabbatical leave" according to which their post could not be kept for their return, nor could the years spent outside the service count for seniority reasons. The GET has doubts about this situation since it raises questions from the point of view of separation of powers and regarding the necessary independence and impartiality of judges in reality and in appearance, all the more so given public concerns as to the risks of politicisation of the judicial function in Spain. The GET was told that the planned reform is looking into this matter: the possibility for a judge to take leave to a join political activity will continue to exist, but the conditions upon return, and more particularly those relating to promotion, would be more restrictive. The GET fears this move may not be sufficient to redress concerns over politicisation of the judiciary.

103. Moreover, judges cannot hold any paid jobs or professions (except teaching and legal research, literary, scientific, artistic and technical papers), nor any position of popular election or political appointment or within the public administration (Article 389, LOPJ). The GET is satisfied that supervision over accessory activities carried out by judges appears to be exercised in an adequate manner.

104. There are no regulations that would prohibit judges from being employed in certain posts/functions or engaging in other paid or unpaid activities after exercising a judicial function. Cases where judges resign from office to assume work in the private sector are rare and not seen as a threat to judicial independence.

Recusal and routine withdrawal

105. It is forbidden for judges to hear and decide on cases in which they may be an interested party, either personally or as representatives of others. Grounds for recusal are extensively listed in the LOPJ (Articles 219, 391-393) and include family relationship, friendship or enmity with the parties and involvement in previous stages of litigation. The ongoing amendment of the LOPJ introduces one more ground as way of a "blanket provision" for judges to abstain in a case where they may have any sort of direct or indirect interest.

106. Judges are required to abstain if a conflict of interest arises and in the event of not doing so an objection may be filed by the injured party. It is possible to review the judicial decision issued by a biased judge in the form of an application of annulment on grounds of illegality of the decision and breach of due process for lack of impartiality of the responsible judge (ordinary appeal or cassation appeal, in accordance with Articles 5(4) and 228(3) of the LOPJ. Furthermore, the matter can be invoked before the Constitutional Court (recurso de amparo) once the available domestic legal remedies provided by ordinary jurisdiction have been exhausted.

Gifts

107. There are no detailed rules on the acceptance of gifts specifically by judges. There was consensus among the different interviewees on-site on the fact that, in practice, there is no culture of making gifts to judges. This should also be clearly stated, in writing, in the code of conduct recommended above.

Misuse of confidential information and third party contacts

108. While court proceedings are, as a general rule, public, confidentiality obligations apply concerning the handling of information in a case. Breach of professional confidentiality is punishable by Article 417 of the Penal Code; sanctions consist of fines, debarment and even imprisonment if serious damage is caused or if the secrets of a private individual are involved. The disclosure of confidential information may also entail disciplinary consequences.

Declaration of assets, income, liabilities and interests

109. There are no specific requirements, duties or regulations in place for judges to submit financial declarations, others than those applying for taxation purposes. The GET was made aware of a case where the Inspection Service of the CGPJ, upon a complaint over illicit enrichment of a judge, had asked tax authorities to access the judge's financial record in order to assess potential irregularities. The GET was further told that the number of cases in which either a judge or a prosecutor has been prosecuted and found guilty of a corruption offence is virtually nil. All interlocutors met stressed that both judges and prosecutors had a strong spirit of public service and dedication to public duty, and that, other than some isolated case, there had been no evidence of financial corruption amongst either the judiciary or prosecutors. While the GET does not see the need to issue a formal recommendation on the establishment of an asset declaration system, it notes the varied and evolving experience being gathered by GRECO member States in this domain and encourages the Spanish authorities to explore the advisability of making judges disclose their financial interests to their relevant hierarchy in order to better safeguard independence and impartiality vis-a-vis parties to proceedings or regarding the outcome of a given case; the existing rules on recusal outlined in paragraphs 105 and 106 are also valuable tools in the system to better prevent conflicts of interest.

Supervision and enforcement

110. Judges are subject to civil liability (Articles 411 to 413 LOPJ) for intentional damages caused in the performance of their duties. Civil action against the judge concerned can only take place once the proceedings where the damage has occurred are closed.

111. Judges are also criminally liable. Criminal liability proceedings against a judge may be filed either by an order issued by the competent court or following a complaint lodged by the prosecutor, the aggrieved or injured party, or by exercising popular action on behalf of public interest. Articles 398-400 LOPJ provide that serving judges may only be arrested by order of the competent court or in case of flagrante delicto. Criminal proceedings against a judge must be instituted, either before the competent higher court of justice or before the Supreme Court, depending on the hierarchical position of the judge in question. Since 1998, there have been eight convictions for abuse of judicial office. From 1988 to 2013, there have been five cases of members of the Spanish judiciary prosecuted for corruption-related offences. In all these cases the CGPJ decided to suspend temporarily the involved judges from office, once the indictment had been filed and the opening of trial had been ordered by the competent court. In one of the five afore-mentioned cases, the indicted judge was acquitted following the final decision rendered by the Criminal Chamber of the Supreme Court.

112. Disciplinary liability for violations of ethical (e.g. incompatibilities) or professional duties (e.g. undue delay) applies. It is regulated in detail in Articles 417 to 419 LOPJ (as amended in June 2013), which distinguishes three categories of infringements: petty offences (e.g. unjustified leave of service for one or two days), serious offences (e.g. disrespect to superiors, hindrance of inspection activities, unjustified recusal, etc.) and very serious offences (e.g. affiliation to political parties or unions, disqualifying positions, abuse of authority, etc.). Petty offences are sanctioned with warnings and/or fines; serious offences are sanctioned with fines of up to 6,000 EUR; very serious offences are punished with removal from office/suspension or dismissal from the judiciary.

113. In principle, the opening of disciplinary proceedings is mandatory for all types of disciplinary offences (including petty disciplinary offences), the only exception being when the sanction of warning is applied. This type of sanction can be imposed directly by either the Presidents of the courts or the Government Boards of the courts by means of a brief proceeding after having heard the judge concerned.

114. For all other cases, Law 4/2013 of 28 June 2013 has introduced the institution of the Commissioner for Disciplinary Action (Promotor de la Acción Disciplinaria) which is now the competent authority to initiate disciplinary proceedings; it can do so ex-officio, upon a citizen's complaint or if requested by the Plenary of the CGPJ. Hence, the Commissioner has responsibility for receiving complaints, for obtaining the representations of the judge concerned and for deciding in their light whether or not there is a sufficient case against the judge to call for the instigation of disciplinary action, in which case it would refer the matter to the Disciplinary Committee. The Commissioner is appointed for a five-year term and can only be a judge from the Supreme Court or a judge with more than 25 years of experience. As regards the adjudication of disciplinary cases, the CGPJ (Disciplinary Committee |26|) is competent to impose sanctions on judicial office holders for serious and very serious violations. The sanction of dismissal can only be imposed by the Plenary of the CGPJ.

115. The decisions of the CGPJ are subject to judicial review before the Third Chamber of the Supreme Court. The disciplinary legal authority of the CGPJ is concerned only with the performance of judicial functions (undue delay, abuse of authority, incompatibilities, etc.) and it can in no way affect jurisdictional matters, that is, the specific content of judicial judgments. If disciplinary and criminal proceedings run in parallel, the decision on discipline needs to await the outcome of the criminal case.

116. The GET welcomes the fact that the initiation and the adjudication phases of a disciplinary case are now separated in line with international standards; the recent reform introduced in this area have the potential of ameliorating the fairness and effectiveness of disciplinary action. The GET however notes that disciplinary proceedings cannot last longer than six months. This short time span has given rise to a number of decisions of the Supreme Court overturning the sanction of the CGPJ on the grounds that the relevant disciplinary proceedings had not respected the statutory 6-month deadline. It is to be noted that the applicable deadline for proceedings against judicial secretaries and civil servants working in the judicial administration is 12 months. In the GET's view this state of affairs calls for further review. GRECO recommends extending the limitation period for disciplinary procedures.

117. It is possible for citizens to channel their complaints about judges to the CGPJ, which, when appropriate, can open disciplinary proceedings and impose sanctions. The Spanish Ombudsman (Defensor del Pueblo) receives a fair number of applications from citizens complaining about the operation of justice; most of the complaints received refer to undue delays and poor service. The latest report of the European Commission for the Efficiency of Justice (2012) includes the following statistics on disciplinary proceedings and sanctions based on 2011 data |27|.

Number of disciplinary proceedings initiated against judges

Total number (1+2+3+4) 47
1. Breach of professional ethics 30
2. Professional inadequacy 33
3. Criminal offence 4
4. Other 0

Disciplinary sanctions against judges

Total number (total 1 to 9) 41
1. Reprimand 11
2. Suspension 12
3. Removal of cases 0
4. Fine 17
5. Temporary reduction of salary 0
6. Position downgrade 0
7. Transfer to another qeoqraphical (court) location 0
8. Resignation 1
9. Other 0

118. The current system has been subject to civil society complains about its alleged corporatism and opacity. Although it is possible for the public to submit complaints to the CGPJ on a judge's misconduct, the fact is that there is no public record on how many such complaints have been filed, for which type of misconduct and which type of action has been taken by the CGPJ thereafter. In the GET's view, transparency is an essential tool to fostering citizens' trust in the functioning of the judicial system and is a guarantee against any public perception of self-interest or self-protection within the judiciary. Moreover, the dissemination of case law on matters of discipline can be a valuable tool for judicial practice. In order to help identify and further promote corruption prevention within the judiciary and raise public awareness of the action that is taken, the authorities may wish to publish more detailed information on complaints received, types of breaches and sanctions applied.

Advice, training and awareness

119. The Judicial School is in charge of judges' education and training. There are two main objectives to the courses offered at the Judicial School: fostering the specialisation of judges and keeping judges in touch with emerging legal areas. All judges, regardless of seniority, are continuously offered courses in different areas of law. The Judicial School offers mandatory initial training courses on, inter alia, the role of a judge and the functions of the courts, which include sections on independence and impartiality, ethical rules for a judge and basic values. In-service training courses on matters related, inter alia, to the fight against corruption and judicial ethics are also available on an optional basis. Annual training programmes are prepared in coordination between the Judicial School and the CGPJ. It was also mentioned that when preparing for the entrance examination, candidates undergo preparation which lasts for several years and is often provided by a senior judge who acts as a mentor and teaches the candidate not only theoretical knowledge, but also about the high values to which the profession must adhere.

120. Judges can obtain guidance on disqualification and incidental employment from the Department of Judicial Personnel of the CGPJ. As explained before, institutionalised counselling for integrity-related matters is lacking; a recommendation has already been issued in this respect.

121. Efforts are currently being made to better communicate on justice matters and to improve the understanding and confidence of citizens in this domain. A communication strategy has been developed. Likewise, a programme on education in justice in school has been launched. The GET welcomes these efforts which could be critical in building citizens' confidence in the justice system.

V. CORRUPTION PREVENTION IN RESPECT OF PROSECUTORS

Overview of the prosecution service

122. The State Prosecution Service (SPS) is a constitutional body, with legal personality and incorporated with functional autonomy within the judiciary. Article 124 of the Constitution provides that the SPS has the mission of promoting justice in defence of the law, the rights of the citizens and the general interest, as well as contributing to guaranteeing the independence of the courts. It also states that members of the SPS act in accordance, on the one hand, with the principles of unity of action and hierarchical subordination and, on the other hand, with those of legality and impartiality. Under the principle of legality, the SPS acts subject to the rule of law; under the principle of impartiality, the SPS acts with full objectivity and independence in the defence of the interests entrusted to it. The basic regulations governing the Spanish prosecution service are set out in the Organic Statute of the Prosecution Service (OSPS) approved by Law No. 50/81, as amended in 2007. The Organic Law 6/1985 of the Judiciary (LOPJ) supplements its provisions, notably, for a number of career related issues. There are 2,408 prosecutors, of whom, 963 are men and 1,445 are women |28|.

123. The SPS consists of the following bodies:

  • The Prosecutor General
  • The Prosecution Council (Consejo Fiscal)
  • The Board of High Prosecutors and the Board of Superior Prosecutors of the Autonomous Communities (Junta de Fiscales Jefes de Sala)
  • The Prosecutor's Office at the Constitutional Court
  • The Prosecutor's Office at the Supreme Court
  • The Prosecutor's Office at the National Court
  • The Prosecutor's Office at the Court of Audit
  • Special Prosecutor's Offices
    • Special Prosecutor's Office against Illegal Drug Trafficking
    • Special Prosecutor's Office against Corruption and Organised Crime
  • Territorial Prosecutor's Offices
    • Prosecutor's Office at an Autonomous Community
    • Provincial Prosecutor's Offices
    • Area Prosecutor's Office

124. The Prosecutor General is the head of the SPS and has public authority throughout the Spanish territory. Pursuant to Article 124 (4) of the Constitution, the Prosecutor General is appointed and removed by the King, on proposal of the Government, after consulting the General Council of the Judiciary (CGPJ). In 2001, GRECO expressed concerns over the degree of independence and operational autonomy of the SPS and recommended that the nature and the scope of powers of the Government in relation to the SPS be established by law, and that any future exercise of such powers be made in a transparent way and in accordance with international treaties, national legislation and the general principles of law |29|.

125. In 2007, the OSPS was amended (Law No. 24/2007) to introduce additional safeguards enhancing the independence of the Prosecutor General; further amendments followed in 2009 to provide for greater assurances of autonomy to the prosecution service. Several guarantees coexist at present in this respect. Firstly, the choice must be made from among Spanish lawyers of recognised prestige with more than 15 years of active professional practice. Secondly, the mandate of the Prosecutor General is limited to four years (non-renewable) and there is a closed list of objective causes for removal and leave of office (Article 31, OSPS) |30| so that the Government can no longer demote the Prosecutor General solely at its discretion. Thirdly, the proposal of the Government must be subject to consultation with the General Council of the Judiciary (CGPJ) and then the candidate must appear before Congress. The three branches of the State thus participate in the appointment of the Prosecutor General. Fourthly, the involvement of the Board of High Prosecutors (see also paragraph 134) is required whenever the Prosecutor General has to instruct his/her subordinates on any matter affecting members of Government (regardless of their procedural position), as well as when a decision concerning recusal of the Prosecutor General must be taken. Lastly, the neutral statute of the Prosecutor General's Office is preserved through its support and operation by a technical body (see also paragraph 132 for concrete details on how neutrality of the relevant technical services is articulated).

126. Despite all the aforementioned safeguards, there continues to be concern as to the "perceived independence" of the Prosecutor General. The GET notes that Recommendation Rec(2000)19 of the Committee of Ministers on the role of public prosecution in the criminal justice system, allows for a plurality of models, ranging from systems in which the public prosecution is independent of the Government and others where it is subordinated to the executive branch. However, it is essential that at the level of the individual case the prosecution service has sufficient autonomy to take decisions free of executive or governmental direction, or when directions can be given that the process is fully transparent in accordance with the requirements of paragraph 13 of Recommendation Rec(2000)19. Leaving aside the model in place, it is crucial for public confidence that prosecution is, and appears to be, impartial, objective and free from any improper influence, particularly of a political nature. The GET welcomes the steps taken by the authorities to create "safety nets" to better ensure that prosecution is carried out without unjustified interference. That said, the GET can also see why there continues to be public criticism in this area. In particular, the Prosecutor General is chosen by the Government. There is no real input from any other State body. The CGPJ has to approve the appointment, but its role is confined to examining whether the candidate has the necessary qualifications, and thus, it is a purely formalistic role leaving no scope for the CGPJ to form or offer a view on the merits of the rival candidates. Moreover, the Prosecutor General leaves office with the Government that proposed him/her.

127. The GET refers to international standards which could be a source of inspiration for the Spanish authorities for the weaknesses identified above |31|. Concerning the method of selection of the Prosecutor General, it is important that it is such as to gain the confidence of the public and the respect of the judiciary and the legal profession. To achieve this, professional, non-political expertise should be involved in the selection process. Furthermore, the term of office of the Prosecutor General should not coincide with that of Parliament or the continuance in office of the Government as this could create an impression that the Prosecutor General is linked to or a part of the executive branch of Government. The GET additionally considers that the four-year term could be considered short, particularly if a Prosecutor General is expected to carry out a programme of reform within the office, although it must be conceded that such a short term is by no means unusual. The GET welcomes the fact that the Prosecutor General's mandate is not renewable which is an important guarantee for his or her independence.

128. The Government, through the Ministry of Justice, may ask the Prosecutor General to introduce motions in court in order to promote and defend the public interest. The latter is, however, not legally bound to follow such instructions, but will respond to the Government on the feasibility and adequacy of implementing the request after consulting the Board of High Prosecutors. The Government, through the Ministry of Justice, may ask the Prosecutor General to provide information on specific cases being prosecuted, as well as, more generally, on the development of the prosecutorial function (Article 9, OSPS). Parliament may require the Prosecutor General to appear before any of its Chambers to report on matters of general interest. The Government cannot give instructions of a general or specific nature to the Prosecutor General. Public prosecutors may not receive orders or indications concerning how to discharge their functions except from their hierarchical superiors (Article 55, OSPS - see also section on case management and procedure).

129. Doubts were expressed as regards the possibility provided by law for the Government to ask the Prosecutor General to report back on specific cases being prosecuted. Although it was said that this possibility does not pose problems in practice: the type of information being requested was more of a general nature and a public prosecutor could in any case refuse to disclose information on an individual case; many indicated that the law should better define the process by which this communication, between the Prosecutor General and the Government through the Ministry of Justice, is structured. In the GET's view, it is key that communication between the Prosecutor General and the Government is made in a transparent manner, in writing and published in an adequate way subject to the possibility to delay publication where this was necessary to protect the interests of justice, for example where publication could interfere with the accused person's right to a fair trial. The GET recalls the remarks it made in paragraph 126 as to the applicable standards laid out in Recommendation Rec(2000)19 concerning transparency of communication between the Government and the public prosecution.

130. With regard to economic autonomy, the SPS budget is part of the Ministry of Justice budget (and part of the budget of those Autonomous Communities to which competences in judicial administration have been devolved). The issue of economic autonomy of the prosecution services is clearly a live one. In the GET's view, the existing budgetary arrangements for the prosecutor's office are not entirely satisfactory. There should be either a separate budget for the prosecutor's office or it should be covered by a separate heading if it is to remain part of the Ministry of Justice budget. In either event, the prosecutor's office should know how much money is being allocated to the prosecution service and should be able to choose how to spend money allocated to particular purposes subject to adequate budgetary controls, this includes the training chapter. The Centre for Legal Studies is attached to the Ministry of Justice; its budget and programmes are established by the said Ministry after consultation with the prosecution services. The GET considers that training of prosecutors should be controlled primarily by the prosecutors themselves. Likewise, under the existing arrangements it is for the Ministry of Justice to decide on staff allocation in the different prosecutor's offices, including that specialised in the fight against corruption and organised crime, which has recently witnessed a temporary addition of three prosecutors given its increasing workload. The GET is of the opinion that the Prosecutor General should be able to manage his/her own office. It should not be necessary to obtain the approval of the Ministry for detailed items of expenditure provided these are within the overall allocation of funds established by the budget and are subject to appropriate auditing and accounting controls. At present, the Prosecutor General is dependent for funds on both the Ministry and the regions. The GET draws the attention of the authorities to Opinion no.7(2012) of the Consultative Council of European Prosecutors (CCPE) which underscores that autonomy of management represents one of the guarantees of the independence and efficiency of the prosecution services. These services must be enabled to estimate their needs, negotiate their budget and decide how to use the allocated funds. This is an area which merits further follow-up by the authorities.

131. In light of the foregoing considerations, the GET considers that additional efforts could be made to better ensure that prosecution is, and appears to be, impartial, objective and free from any influence or interference from any external source, as well as to enhance its functional autonomy. Therefore, GRECO recommends (i) reconsidering the method of selection and the term of tenure of the Prosecutor General; (ii) establishing clear requirements and procedures in law to increase transparency of communication between the Prosecutor General and the Government; (iii) exploring further ways to provide for greater autonomy in the management of the means of the prosecution services.

132. The Prosecutor General is assisted by technical bodies (Technical Secretariat, Support Unit and Inspection Service), whose staff is banned from running for seats in the Prosecution Council as a way of guaranteeing the neutral, technical and operational conditions of such assisting services.

133. The Prosecution Council (Consejo Fiscal) is the body that represents the prosecution profession. It is chaired by the Prosecutor General and is composed of two kinds of members: (i) ex-officio members (Deputy Chief Prosecutor of the Supreme Court and the Chief Prosecutor Inspector); and (ii) elective members (nine prosecutors belonging to any category within the prosecution profession, elected for a four-year period by all members of the SPS in active service). As a body meant to help the Prosecutor General perform his/her tasks, its main responsibilities are, among others, to give advice on as many subjects as required; to draw up general criteria to ensure the SPS unity of action with regard to the territorial structure and operation of its different bodies; to provide information on proposed appointments for different public offices and promotions; to encourage appropriate reforms for the service and practice of prosecution; to report on draft bills and regulations that affect the structure, organisation and functions of the SPS; to rule on the appeals filed against decisions made by Chief Prosecutors in disciplinary proceedings, etc.

134. The Board of High Prosecutors and the Board of Superior Prosecutors of the Autonomous Communities (Junta de Fiscales Jefes de Sala) are bodies of a technical nature which assist in the interpretation of legal and technical matters and ensure coordination across the national territory.

Recruitment, career and conditions of service

135. Entrance into the prosecution profession is open to Spanish nationals of legal age (18 years old) who hold a degree in law and pass the corresponding open competitive examination process. All candidates must present proof of clean criminal records. Those wishing to follow a career in either the SPS or the courts are first subject to a common examination. After passing the theoretical tests, the candidates choose between being a judge or a prosecutor. Those opting for prosecution must then pass a training course at the Centre for Legal Studies, after which they become members of the SPS by taking the corresponding oath and are assigned a position.

136. Prosecutors are appointed for a lifetime; they may only be removed from office in the cases provided by law (i.e. as a result of disciplinary proceedings for serious breaches of their duties).

137. As to promotion within the SPS, the Prosecutor General plays a predominant role in the appointment of members of those services - specifically established to assist him/her - and of the higher grades of the hierarchy. In particular, Chief Prosecutors and those working at the higher court's prosecution offices or specialised prosecution offices |32| are appointed by the Government on a proposal submitted by the Prosecutor General. The Prosecutor General must previously consult the Prosecution Council (as a representative body of public prosecutors) and the objective requirements concerning length of service/professional experience gained in the SPS, as provided for in the OSPS, must be respected. All other public prosecutors' posts are filled by means of a selection process predominantly based on seniority, although in certain specialised fields, merit, capacity and experience are valued.

138. Transfers generally take place at the request of the prosecutor concerned. Compulsory transfer (traslado forzoso) is possible as a way of sanction, in the event of a conflict of interest, if there is serious dissent with the responsible chief prosecutor or if there are serious confrontations with the competent court. Compulsory transfer can only take place after hearing the concerned prosecutor and subject to a favourable opinion of the Prosecution Council.

139. The GET discussed at length the law and the practice governing the careers of public prosecutors, which are reportedly decided on the basis of known and objective criteria; in addition to seniority, specific experience and specialisation play an increasing role in this context. No question was raised on-site concerning the fairness and impartiality of the existing appointment processes (other than the few misgivings already highlighted with respect to the Prosecutor General). The GET was repeatedly told by the different interlocutors heard that the Spanish prosecution service is a highly professional body. The GET is pleased to note this positive assessment of the profession in the eyes of citizens; this can only strengthen the level of public trust in the criminal justice system.

140. Prosecutors lose their status only in the event of (i) resignation; (ii) loss of Spanish nationality; (iii) dismissal by virtue of a sanction; (iv) disqualification from public office by virtue of a sanction; (v) incapacitating circumstances; (vi) retirement (Article 46, OSPS).

141. Whenever the OSPS does not include specific provisions regarding the acquisition and loss of the status of member of the SPS, incapacity, rights and duties, incompatibilities, prohibitions and responsibilities of prosecutors, the provisions of the LOPJ apply. Prosecutors are therefore generally paired in their status with judges.

142. Ranks and salaries of prosecutors are paired with those of judges. The gross annual salary of a prosecutor at the beginning of career is 47,494 EUR; it amounts to 111,932 EUR for prosecutors of the Supreme Court. Professional incentives are in place for prosecutors who exceed performance targets.

Case management and procedure

143. The chief prosecutor, i.e. the head of the office, distributes the criminal cases to the prosecutors, following consultation with the respective Board of Prosecutors. The criteria for the distribution may be a special competence or specialisation, but the workload of each prosecutor is also taken into account. Working methods are evolving and there is now greater recourse to teams of specialists.

144. The Prosecutor General is empowered to give orders and instructions regarding the service, its internal functioning and the exercise of prosecutorial functions, whether of a general nature or referring to specific matters. General guidelines are deemed to be essential for maintaining the principle of unity of action and are generally issued by means of circulars (general criteria for the operation of the SPS and interpretation of rules), instructions (general provisions on the organisation of matters that are more specific and less important than those referred to in circulars) and enquiries (settling of questions that any Prosecutor's Office may bring to the Prosecutor General's attention about the interpretation of a given rule).

145. As outlined before, public prosecutors cannot receive orders or indications concerning how to discharge their functions except from their hierarchical superiors. Subordinate prosecutors are, in principle, bound to follow such instructions or could otherwise face disciplinary proceedings. Chief prosecutors can also decide to replace one prosecutor by another regarding the assignment of a case. The GET was told that the SPS is very hierarchical in nature. GRECO has always underlined the importance of having clear mechanisms to ensure a proper balance between, on the one hand, the consistency of prosecution policy, and on the other, the risk of undue considerations being introduced into individual cases. During the First Evaluation Round, GRECO expressed reservations as to the strict understanding of the hierarchical principle in the SPS and recommended introducing reforms in order to ensure that instructions were made with adequate guarantees of transparency and equity |33|. In its compliance procedure, GRECO considered that, although there can be no absolute guarantee against a possibly illegitimate order/instruction, both points had been settled through several measures aiming to strike a balance between hierarchical powers and the requirements of legality and impartiality of the SPS |34|.

146. In particular, any public prosecutor who receives orders or instructions that s/he considers contrary to law or wrongful shall notify the chief prosecutor in a reasoned report. The chief prosecutor, after consulting the relevant board of prosecutors decides whether or not to ratify the instruction/order. If s/he confirms the instruction/order, it must be done in a reasoned, written form expressly relieving the recipient of any liability stemming from his/her performance or else decide to entrust the matter to another public prosecutor (Article 27, OSPS). Moreover, public prosecutors remain free to orally submit before the court any legal arguments of their choice even if they are under a duty to reflect in writing the instructions received for a specific case (Article 25, OSPS). These provisions are in line with the requirements of Recommendation Rec(2000)19.

147. Moreover, the GET was informed that the hierarchical powers of chief prosecutors are to be framed in a broader structure and counterbalanced by the action of the corresponding Board of Prosecutors (Junta de Fiscales Jefes de Sala). The latter meet on a regular basis to fix unified criteria and analyse complex cases. Although the views of the chief prosecutor in principle prevail, if his/her opinion contradicts that of the majority of prosecutors of the Board, both opinions will be submitted to the hierarchical superior who will take the final decision (Article 24, OSPS). Participation of the Board of High Prosecutors is now mandatory whenever the Prosecutor General issues instructions to subordinates in connection with any matter involving members of Government.

148. Finally, the principle of mandatory prosecution applies in Spain. Therefore, the SPS must prosecute all crimes that come to its knowledge and cannot receive instructions not to prosecute. Likewise, the SPS is not empowered to drop prosecution or investigation. Even if it considers that there are reasons to do so, the final decision is taken by a judge. All decisions made by prosecutors in criminal cases may be subject to revision, either after a complaint or ex officio. Some changes are envisaged in the system, including by introducing the "principle of opportunity", reviewing the role of the investigative magistrate and giving the leading role in the investigation to the prosecutor in order to tackle one of the most important problems in the Spanish justice system, i.e. the excessive length of trials (for specific details on this, see also paragraphs 95 and 96).

149. Prosecutors are supervised in order to ensure that they act in accordance with the legislative framework. The Prosecution Inspection Service has powers of inspection by permanent delegation of the Prosecutor General, without prejudice to the ordinary inspection tasks of chief prosecutors regarding the prosecutors accountable to them.

There are currently 10 inspectors in charge of both routine controls and disciplinary proceedings.

150. Concerning transparency of the SPS action, the Prosecutor General presents an annual report to the Government on its activity, criminality trends, crime prevention measures and recommended reforms to increase efficiency. This report is also presented to Parliament and the CGPJ. Similar activity reports are prepared at Autonomous Community level. These are all available online.

151. The GET is satisfied with the current arrangements on case allocation, on checks and balances in the interpretation of the SPS principles of hierarchy, unity of action and non-interference in the work of prosecutors and the handling of individual cases, as well as with the tools in place to account for the activities of the SPS to the general public.

Ethical principles, rules of conduct and conflicts of interest

152. There is currently no code of conduct or ethics for prosecutors. The OSPS includes provisions reflecting on the duty of prosecutors to observe the principles of legality and impartiality and to develop their functions in good faith, objectively, independently, promptly and efficiently, as well as requirements concerning incompatibilities and accountability (Chapters V to VII, Title III on Rights and Duties of Members of the SPS). Spanish prosecutors were involved in the formulation of the Budapest guidelines but they have never formally adopted these. The GET was also told that the Charter of Citizens' Rights before Public Administration as well as the Statute for Public Officials provide further inspirational guidance on ethics, although the interlocutors who cited these texts also recognised that they were partial and insufficiently adapted to the specific features of the prosecutorial function. The GET understands that the absence of a code has reportedly not created any difficulty for prosecutors when carrying out their function. Unlike judges, prosecutors are subject to hierarchical control; it is thus common that any doubtful or disputed issue concerning a possible conflict of interest is referred to a superior prosecutor for a ruling. That said, the GET still sees merit in the development of a reasonably broad set of standards aimed at delimiting what is and is not acceptable in the professional conduct of prosecutors. Such a document could be of use not only for the profession itself, but also for the general public as it would constitute a clear public statement on the high standards of decision-making and professional conduct to which the prosecution service adheres. Moreover, the provision of dedicated guidance on the prevention of conflicts of interest and other integrity-related matters would be a further asset. GRECO recommends that (i) a code of conduct for prosecutors be adopted and made easily accessible to the public; and (ii) that it be complemented by dedicated guidance on conflicts of interest and other integrity-related matters.

Prohibition or restriction of certain activities

Incompatibilities and accessory activities, post-employment restrictions

153. Prosecutors are subject to a very strict regime of incompatibilities comparable to that of judges. Prosecutors are also banned from membership of political parties or unions |35| (Article 59, OSPS). The same concerns as regards leave to take up political activity, which were expressed in paragraph 102 for judges, apply to prosecutors.

154. Moreover, prosecutors cannot hold any paid jobs or professions (except teaching and legal research, literary, scientific, artistic and technical papers), nor any position of popular election or political appointment or within the public administration, nor hold any judicial or jurisdictional (e.g. arbitration) function (Article 57, OSPS). The GET heard that the procedure to grant authorisation for secondary activities is rather rigid and shows again the dependence of the prosecution services on the executive given that the pertinent authorisation is to be granted by the Ministry of Justice rather than a specific service within the prosecution itself. The authorities are encouraged to look into this matter when further developing an articulated system on integrity-related matters, as per recommendation x.

155. It is forbidden for prosecutors to hold positions in an office where his/her spouse or partner acts as a prosecutor, or as a lawyer or barrister, or in an office territorially located where the spouse or partner is involved in an industrial or commercial activity that may give rise to a conflict of interest with the prosecutor's post. Likewise, prosecutors are banned from working in an office in whose jurisdiction they practiced as a lawyer or barrister in the two years prior to their appointment (Article 58, OSPS).

156. There are no regulations that would prohibit prosecutors from being employed in certain posts/functions or engaging in other paid or unpaid activities after exercising a judicial function. The interviews conducted in Spain showed that the office of prosecutor was discharged on a lasting basis and that very few left office to work in another field, which limits certain risks. In the very few cases that prosecutors had left for the private sector, generally to work as lawyers, this has not been seen by others in the legal profession as generating a conflict of interest situation. The GET therefore refrains from recommending changes in this area.

Recusal and routine withdrawal

157. Prosecutors must recuse themselves for the same reasons as judges, e.g. family relationship, friendship or enmity with the parties and involvement in previous stages of litigation. It is possible for an individual (an interested party in the case at stake) to call for a prosecutor's disqualification. It is the responsibility of the superior prosecutor to reassign the case to another prosecutor (Article 28, OSPS).

Gifts

158. There are no detailed rules on the acceptance of gifts specifically by prosecutors. As was the case for judges, the practice of gift giving to a prosecutor is neither common nor even tolerated in Spain. This should also be clearly stated, in writing, in the code of conduct recommended above.

Misuse of confidential information and third party contacts

159. While court proceedings are, as a general rule, public, confidentiality obligations apply concerning the handling of information in the case. Breach of professional confidentiality is punishable by Article 417 of the Penal Code; sanctions consist of fines, debarment and even imprisonment if serious damage is caused or if the secrets of a private individual are involved. The disclosure of confidential information may also entail disciplinary consequences.

Declaration of assets, income, liabilities and interests

160. The situation of prosecutors is the same as that of judges. At present, there are no arrangements for prosecutors to submit financial declarations (other than those required for tax filing purposes). The situation in Spain, where virtually there has been no case of corruption involving a prosecutor, does not seem at present to justify the introduction of such restrictive arrangements and the GET refrains from issuing a formal recommendation in this respect. However, as per the GET's advice concerning judges (see paragraph 109), the authorities are encouraged to reflect on this matter in order to assess whether the filing of financial declarations (not for general publication but to be lodged with the Prosecution Inspection Service) could constitute a useful tool to prevent corruption and to increase public trust in the prosecution service.

Supervision and enforcement

161. Prosecutors are subject to civil and criminal liability in the exercise of their functions, which are governed in the same manner as that pertaining to judges. There is no immunity regarding prosecutors. The only difference in relation to other citizens is provided in Article 56, OSPS, according to which, public prosecutors in active service may not be arrested without the authorisation of their hierarchical superior, except by order of the competent judicial authority or if caught in flagrante delicto. In the latter event, the detainee must be brought immediately before the nearest judicial authority and his/her superior notified without delay. There have not been any criminal proceedings for a corruption-related offence involving a prosecutor.

162. Concerning disciplinary action, a detailed list of misconduct and sanctions is provided by the LOPJ, together with rules on who can impose them and how. Disciplinary liability for violations of conflicts of interest rules applies. It is regulated in detail in Articles 60 to 70 OSPS, which distinguishes three categories of infringements: petty offences (e.g. unjustified leave of service for one or two days), serious offences (e.g. disrespect to superiors, hindrance of inspection activities, unjustified recusal, etc.) and very serious offences (e.g. affiliation to political parties or unions, disqualifying positions, abuse of authority, etc.).

163. Petty offences are sanctioned with warnings and/or fines of up to 300 EUR; serious offences are sanctioned with fines of up to 6,000 EUR; very serious offences are punished with compulsory transfer, suspension of up to three years or dismissal. Chief prosecutors can impose sanctions such as fines and warnings for the commission of petty offences. The Prosecutor General is to decide on sanctions consisting of suspension. Removal from office can only be pronounced by the Minister of Justice on a proposal from the Prosecutor General after receiving the favourable opinion of the Prosecution Council.

164. The right to be heard of the prosecutor concerned, in adversarial proceedings, is preserved at all times. In all cases there is the possibility to appeal to the hierarchical superior and when administrative changes are exhausted to turn to judicial review. The latest report of the European Commission for the Efficiency of Justice (2012) includes the following statistics on disciplinary proceedings and sanctions based on 2011 data |36|.

Number of disciplinary proceedings initiated against prosecutors

Total number (1 + 2+3+4) 2
1. Breach of professional ethics 2
2. Professional inadequacy 0
3. Criminal offence 0
4. Other 0

Disciplinary sanctions against prosecutors

Total number (total 1 to 9) 2
1. Reprimand 0
2. Suspension 0
3. Removal of cases 0
4. Fine 2
5. Temporary reduction of salary 0
6. Position downgrade 0
7. Transfer to another qeoqraphical (court) location 0
8. Resignation 0
9. Other 0

165. As explained above, the existing disciplinary rules in the prosecutor's office are those included in the Organic Law of the Judiciary (LOPJ). The LOPJ is thought to be insufficiently adapted to the features of the prosecution service. The SPS has reiterated in its annual reports the need to develop a specific regulatory framework for disciplining prosecutors. The GET can only share this view; the development of specific rules on discipline for prosecutors can be not only an asset for the profession, but also for the general public, as this would entail greater certainty of the applicable disciplinary rules and processes. GRECO recommends developing a specific regulatory framework for disciplinary matters in the prosecution service, which is vested with appropriate guarantees of fairness and effectiveness and subject to independent and impartial review.

166. Some civil society representatives raised concerns as to a certain degree of corporatism when investigating possible offences committed by prosecutors themselves. The GET found no evidence of such a situation, but it concedes that it would be better if the public were made aware of the results of disciplinary action to dispel any possible doubt as to the fairness and the effectiveness of the system. In this connection, the annual report of the SPS includes tables of the number of inspections carried out, as well as on the number of disciplinary proceedings instigated and an explanation of the files opened during the year, but there are no details on the number of complaints received and the outcome of disciplinary proceedings. In the GET's view the transparency of disciplinary action in the prosecution service could be further stepped up if more detailed information on complaints received, types of breaches and sanctions applied were to be included in the SPS annual report.

Advice, training and awareness

167. As part of the initial training of prosecutors, the curriculum of the Centre for Legal Studies includes three days dedicated to the rights and duties of prosecutors, liability of prosecutors and disciplinary proceedings alongside the international provisions related to ethics. The programme includes practical sessions with analysis of cases as well. The initial training is obligatory for all future prosecutors. As regards in-service training, three-day seminars dealing with the OSPS and the rules related to ethics were scheduled in the period running from 2009-2012; this pattern was said to be followed in the present year as well. Attendance of the in-service training is optional. The budget for initial and in-service training in 2013 amounts to 3.5 million EUR.

168. The GET was positively impressed with the training curricula of the Centre for Legal Studies and the attention that is paid to developing innovative learning methods, including by resorting to e-learning techniques. Joint training for judges and prosecutors are also developed on themes of common interest. When it comes to training on ethics, the curricula includes both a theoretical and a practical approach, comprising practical cases and open debates. On the basis of the training catalogues provided by the Centre for Legal Studies for the GET's perusal, it would appear that prosecutors have appropriate education and training on the principles and ethical duties of their office, both before and after their appointment.

VI. RECOMMENDATIONS AND FOLLOW-UP

169. In view of the findings of the present report, GRECO addresses the following recommendations to Spain:

Regarding members of parliament

    i. for each Chamber of Parliament, (i) that a code of conduct be developed and adopted with the participation of its members and be made easily accessible to the public (comprising guidance on e.g. prevention of conflicts of interest, gifts and other advantages, accessory activities and financial interests, disclosure requirements); (ii) that it be complemented by practical measures for its implementation, including through an institutionalised source of confidential counselling to provide parliamentarians with guidance and advice on ethical questions and possible conflicts of interest, as well as dedicated training activities (paragraph 35);

    ii. the introduction of rules on how members of Parliament engage with lobbyists and other third parties who seek to influence the legislative process (paragraph 51);

    iii. that current disclosure requirements applicable to the members of both Chambers of Parliament be reviewed in order to increase the categories and the level of detail to be reported (paragraph 56);

    iv. that appropriate measures be taken to ensure effective supervision and enforcement of the existing and yet-to-be established declaration requirements and other rules of conduct of members of Parliament (paragraph 64);

Regarding judges

    v. carrying out an evaluation of the legislative framework governing the General Council of the Judiciary (CGPJ) and of its effects on the real and perceived independence of this body from any undue influence, with a view to remedying any shortcomings identified (paragraph 80);

    vi. that objective criteria and evaluation requirements be laid down in law for the appointment of the higher ranks of the judiciary, i.e. Presidents of Provincial Courts, High Courts of Justice, the National Court and Supreme Court judges, in order to ensure that these appointments do not cast any doubt on the independence, impartiality and transparency of this process (paragraph 89);

    vii. that (i) a code of conduct for judges be adopted and made easily accessible to the public; and (ii) that it be complemented by dedicated advisory services on conflicts of interest and other integrity-related matters (paragraph 101);

    viii. extending the limitation period for disciplinary procedures (paragraph 116);

Regarding prosecutors

    ix. (i) reconsidering the method of selection and the term of tenure of the Prosecutor General; (ii) establishing clear requirements and procedures in law to increase transparency of communication between the Prosecutor General and the Government; (iii) exploring further ways to provide for greater autonomy in the management of the means of the prosecution services (paragraph 131);

    x. that (i) a code of conduct for prosecutors be adopted and made easily accessible to the public; and (ii) that it be complemented by dedicated guidance on conflicts of interest and other integrity-related matters (paragraph 152);

    xi. developing a specific regulatory framework for disciplinary matters in the prosecution service, which is vested with appropriate guarantees of fairness and effectiveness and subject to independent and impartial review (paragraph 165).

170. Pursuant to Rule 30.2 of the Rules of Procedure, GRECO invites the authorities of Spain to submit a report on the measures taken to implement the above-mentioned recommendations by 30 June 2015. These measures will be assessed by GRECO through its specific compliance procedure.

171. GRECO invites the authorities of Spain to authorise, at its earliest convenience, the publication of this report, to translate the report into its national language and to make the translation publicly available.

[Source: GRECO-Group of States against Corruption, Strasbourg, 15Jan14. Report Adopted by GRECO at its 62nd Plenary Meeting (Strasbourg, 2-6 December 2013)]

Notes:

1. Barometro del Centro de Investigaciones Sociologicas (CIS), issued on 4 January 2013. http://www.cis.es/cis/export/sites/default/-Archivos/Marginales/2960_2979Z2976ZEs2976.pdf [Back]

2. Special Eurobarometer 291 "The attitudes of Europeans towards corruption", European Commission, April 2008. http://ec.europa.eu/public_opinion/archives/ebs/ebs_291_en.pdf [Back]

3. Special Eurobarometer 374 "Corruption", European Commission, February 2012. http://ec.europa.eu/public_opinion/archives/ebs/ebs_374_en.pdf [Back]

4. http://politica.elpais.com/politica/2012/08/11/actualidad/1344684017_186742.html [Back]

5. http://www.metroscopia.org/ [Back]

6. See for example the Third Evaluation Round Report on Spain, GRECO Eval III Report (2008) 3E - Theme I: http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoEval3(2008)3_Spain_One_EN.pdf [Back]

7. Laws are presented and debated in the Congress before passing to the Senate. The Senate may propose amendments and even veto legislation. However, Congress can override a veto immediately through an absolute majority vote, or by a simple majority vote after two months. [Back]

8. http://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Funciones1 [Back]

9. Spain is divided into 17 Autonomous Communities: Andalusia, Aragon, Asturias, Balearic Islands, Basque Country, Canary Islands, Cantabria, Castille-La Mancha, Castile-Leon, Catalonia, Extremadura, Galicia, La Rioja, Madrid, Murcia, Navarre, Valencia. [Back]

10. Senators are elected directly from the provinces and indirectly from the Autonomous Communities. In the provinces, a majoritarian partial block voting system is used. All peninsular provinces elect four senators each; the insular provinces (Balearic and Canary Islands) elect two or three senators per island, and Ceuta and Melilla elect two senators each. Parties nominate three candidates; each voter has three votes (less in those constituencies electing fewer senators), and votes for candidates by name, the only instance of personal voting in Spanish national elections. The autonomous communities receive one senator, plus one for each million inhabitants. They are entitled to determine how they choose their senators, but generally they are elected by the legislature of the respective community in proportion to its party composition. [Back]

11. See also the National Integrity System Assessment of Spain, issued by Transparency International on 28 September 2012. http://www.transparency.org/whatwedo/pub/national_integrity_system_spain [Back]

12. By way of example, some NGOs (Access Info Europe and Fundacion Ciudadano Civio) launched, in March 2013, an online public initiative to demand greater openness with respect to the ongoing drafting of the Law on Transparency, including details on the schedule of its adoption, committee work and the hearing of witness experts. [Back]

13. National Institute of Statistics. [Back]

14. http://parliamentarystandards.org.uk/payandpensions/Documents/9.%20MPs%27%20Pay%20and%20Pensions%20-%20A%20New%20Package%20-%20July%202013.pdf [Back]

15. http://www.congreso.es/portal/page/portal/Congreso/Congreso, data retrieved on 23.07.2013 http://www.senado.es/web/index.html, data retrieved on 23.07.2013 [Back]

16. http://www.congreso.es/portal/page/portal/Congreso/Congreso, data retrieved on 23.07.2013 http://www.senado.es/web/index.html, data retrieved on 23.07.2013 [Back]

17. http://www.cadenaser.com/espana/articulo/diputados-siguen-presentar-congreso-declaracion-bienes/csrcsrpor/20120323csrcsrnac_13/Tes, retrieved on 23.07.2013 [Back]

18. "Adopt a member of Congress": https://docs.google.com/spreadsheet/ccc?key=0AowzHU9kHzeudHlSemNzcVc2OTRqd05YbnkxdUlhMWc&hl=en_US#gid=0
"Adopt a senator": https://docs.google.com/spreadsheet/ccc?key=0AowzHU9kHzeudG9aSjVVOEQxVHpzR2E4ZDdhVXJLQlE&hl=en_US#gid=0 [Back]

19. Fourth Evaluation Report on European Judicial Systems, European Commission for the Efficiency of Justice (CEPEJ), 20 September 2012. [Back]

20. Report on European Standards as regards the Independence of the Judicial System, Part I - the Independence of Judges, European Commission for Democracy through Law (Venice Commission), CDL-AD (2010)004.
Report on Judicial Appointments, European Commission for Democracy through Law (Venice Commission), CDL-AD (2007)028. [Back]

21. Recommendation CM/Rec(2010)12 of the Committee of Ministers on judges: independence, efficiency and responsibility. [Back]

22. A number of judgments by the European Court of Human Rights (ECHR) have established violations of Article 6 of the Convention on the grounds of undue delay. See for example, Garcia Mateos vs Spain (19.2.2013), Serrano Contreras vs Spain (20.3.2012), Gonzalez-Doria Duran de Quiroga vs Spain (28.10.2003). [Back]

23. European Network of Councils of the Judiciary: http://www.encj.eu/images/stories/pdf/ethics/encj_london_declaration_recj_declaration_de_londres.pdf [Back]

24. http://perso.unifr.ch/derechopenal/assets/files/legislacion/l_20120308_02.pdf [Back]

25. Judges may, however, form professional associations. [Back]

26. The Plenary of the CGPJ designates among its members and for a five-year term, those officers who will be part of the Disciplinary Committee. The Disciplinary Committee is composed of seven members of the CGPJ: four belong to the judicial career and three are legal professionals with recognised expertise (Article 603, LOPJ). [Back]

27. Fourth Evaluation Report on European Judicial Systems, European Commission for the Efficiency of Justice (CEPEJ), 20 September 2012. http://www.coe.int/T/dghl/cooperation/cepej/evaluation/2012/Spain_en.pdf [Back]

28. Fourth Evaluation Report on European Judicial Systems, European Commission for the Efficiency of Justice (CEPEJ), 20 September 2012. [Back]

29. http://www.coe.int/t/dqhl/monitorinq/qreco/evaluations/round1/GrecoEval1(2001)1_Spain_EN.pdf [Back]

30. Article 31, OSPS: Removal of the Prosecutor General can only take place (i) at his/her own request; (ii) for involvement in conflicts of interests or disqualification clauses; (iii) due to incapacity or illness that disqualifies him/her for the office; (iv) for gross or repeated dereliction of duties; (v) when the Government that nominated him/her leaves power. [Back]

31. Report on European Standards as regards the Independence of the Judicial System, Part II - the Prosecution Service, European Commission for Democracy Through Law (Venice Commission), CDL-AD (2010)040. [Back]

32. Specialised High Prosecutors: Prosecutor's Office against Violence on Women, Prosecutor's Office for the Protection of the Environment and Land Planning, Prosecutor's Office for the Protection of Minors, Prosecutor's Office on Labour Accidents, Prosecutor's Office on Road Safety and Prosecutor's Office on Foreign Nationals. [Back]

33. http://www.coe.int/t/dqhl/monitorinq/qreco/evaluations/round1/GrecoEval1(2001)1_Spain_EN.pdf [Back]

34. http://www.coe.int/t/dqhl/monitorinq/qreco/evaluations/round1/GrecoRC1(2003)7_Spain_EN.pdf and http://www.coe.int/t/dqhl/monitorinq/qreco/evaluations/round1/GrecoRC1(2003)7_Add_Spain_EN.pdf [Back]

35. Prosecutors may, however, form professional associations. [Back]

36. Fourth Evaluation Report on European Judicial Systems, European Commission for the Efficiency of Justice (CEPEJ), 20 September 2012. http://www.coe.int/T/dghl/cooperation/cepej/evaluation/2012/Spain_en.pdf [Back]

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