Spain

   

Quality of Democracy

#24
Key Findings
With mixed strengths and weaknesses, Spain falls into the lower-middle ranks (rank 24) with respect to democracy quality. Its score on this measure has improved by 0.2 points relative to 2014.

Electoral laws are fair and flexible. However, the central government’s refusal to consult with the Catalonian population regarding its constitutional relationship with Spain generated a major political crisis. A recently implemented political-party-funding law imposes spending thresholds and contribution limits. Private-media concentration is rising, but diverse opinions remain available particularly online.

Access to government information has been significantly improved, but bureaucratic hurdles remain. While civil rights and political liberties are generally respected, the failure to address the Catalonian crisis politically has been interpreted by some as an abusive interpretation of the rule of law. Anti-discrimination laws are strong, though informal prejudice persists.

The judicial system is strong and generally independent, but slow, and sometimes shows conservative bias. A new set of corruption cases drew increasingly close to the governing party during the review period, dealing with issues of illegal donations, conflict of interest and personal enrichment by officeholders.

Electoral Processes

#23

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
9
Spain’s legal and administrative regulations for validating party lists and candidacies (basically, Organic Law 5/1985 on the electoral regime and Organic Law 6/2002 on parties) is fair and flexible. This was demonstrated in the elections of 2015 and 2016 when new parties, such as Podemos and Ciudadanos, participated for the first time in the general elections with each winning one-third of seats in the parliament. To participate, parties and coalitions must simply present a series of documents to the Register of Political Parties at the Ministry of Interior. Virtually every Spanish adult is eligible to run for public office. Non-Spanish EU citizens are eligible to run in local and European Parliament elections. In local elections, non-EU citizens whose countries reciprocally allow Spaniards to be candidates are also eligible. Legislation on gender parity (Organic Law 3/2007) requires party electoral lists to have a balanced gender representation, with each sex accounting for at least 40% of the total number of candidates. Fair and nondiscriminatory registration is protected by a number of guarantees overseen both by the electoral administration and the courts, including the Constitutional Court through a fast-track procedure. The only restrictions on candidacies contained in the electoral law apply to specific public figures (the royal family, some public officials, judges, police officers and members of the military) and those who have been convicted of a crime. In the 2000s, legislation was passed making it possible to declare parties illegal if they were “irrefutably” deemed to be associated with conduct “incompatible with democracy, prejudicial to constitutional values, democracy and human rights” (a provision introduced to suspend parties directly or indirectly connected with ETA terrorism in the Basque Autonomous Community).

Citations:
August 2016, The Washington Post: “Pro-independence Basque leader*s election candidacy blocked”
https://www.washingtonpos t.com/world/europe/pro-independence -basque-leaders-election-candidacy- blocked/2016/08/24/4d6345d0-69ec-11 e6-91cb-ecb5418830e9_story.html

July 2016, The Economist: “Revolution cancelled”
http://www.economist.co m/news/europe/21701516-another-cent re-right-government-weaker-one-revo lution-cancelled

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
8
All Spanish democratic parties or candidates have access to the public media without unreasonable or systematic discrimination. The electoral law (Organic Law 5/1985) regulates strictly the access to public television and public radio networks during electoral campaigns. The system is even very rigid, allocating times for free advertisement slots (paid advertising is not allowed) and news coverage. Thus, parties receive a free slot of 10, 15, 30 or 45 minutes every day, depending on their share of the vote in the previous elections. A similar system operates with regard to news coverage, where the time allocated to each party is also proportional to the previous electoral results. New candidates or parties find it difficult to gain public media access in this system, though it did not prevent Podemos and Ciudadanos from achieving their electoral gains in December 2015 and June 2016.

Regarding private media, a reform of the electoral law in 2011 extended the aforementioned system of proportional news coverage during the electoral period to privately owned television stations. Apart from this special regulation for campaigns, empirical work shows a significant connection between media and parties with the same political orientation. For parties not represented in parliament and which therefore have no legal guarantee to broadcast time, the situation is more difficult. They must rely on the internet and small direct digital TV channels.

In short, the Spanish media system as a whole does not provide all political positions with absolutely fair and balanced access to the media, but pluralist coverage is indeed achieved.

Citations:
Diciembre 2016, Laura Teruel Rodríguez: “Del Politainment a las redes sociales: ¿Ha servido a los políticos españoles participar del infotainment?”
https://riuma.uma.es/xmlui/bitstr eam/handle/10630/12574/Art%C3%ADcul o%20politainment%20valencia%20DEF.p df?sequence=1

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
9
Every Spanish citizen 18 years and over has the right to vote. The extent to which this suffrage can be exercised is absolute, and apart from minor errors, no discrimination or any other significant exclusion has existed in recent elections. Only those suffering specific mental disabilities or who have been judged guilty in certain criminal cases (always by a court) may lose their political rights. All citizens are automatically included in the electoral register (Censo Electoral), which is as a rule updated correctly. Adequate opportunities for casting an advance ballot are also provided in case of illness, absence or simple incapacity to attend the polling station on the day of election. The turnout rate has on average been somewhat more than 70% since 1977, though the last election (26 June 2016) had a turnout rate of 66.5%. The only two notable problems are related to immigration and emigration. The 5 million foreigners who live in Spain are not entitled to vote in national elections and naturalization is not easy even for foreign residents of long standing. However, this restriction is common to all advanced democracies. EU citizens can vote in local and European Parliament elections and non-EU citizens are entitled to cast ballots in local elections if their home countries reciprocally allow Spaniards to vote.
Regarding Spanish emigration, citizens living overseas may face onerous red tape that discourages participation in elections, as well as occasional technical failures in the administrative work of consular departments. Although 90% of the some two million Spaniards abroad are registered in the CERA (the electoral census of emigrants), a legal change passed in 2011 (Ley Orgánica 2/2011) with the declared aim of preventing fraud, made the voting procedure more complicated. As a result, turnout rates among Spanish expatriates are now extremely low (under 5%), and parties have discussed reopening the 2011 reform. Some emigrants’ associations claim these restrictions were politically motivated under a government that fears a surge in protest votes among young emigrants who have left the country in search of a job.

Citations:
May 2017, eldiario.es: “El Congreso empieza a revisar el voto rogado, que ha dejado la participación de emigrados bajo mínimos.”
http://www.eldiario.es/ sociedad/Congreso-empieza-revisar-p articipacion-emigrados_0_642886083. html

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
5
Party-financing legislation was reformulated in 2015 (Ley Orgánica 3/2015) as part of an anti-corruption plan seeking to increase transparency and impose sanctions for violations, passed following the emergence of a significant number of scandals in recent years. The previous, less strict law was ineffectual in preventing opaque donations received by think tanks and charities associated with parties, backdoor funding in the form of the cancellation of parties’ bank loans or debts, and even plainly illegal direct financing in large volumes (such as the famous Gürtel and Barcenas cases, involving the PP or the Palau case, involving the nationalist Catalan CDC).

Under the current rules, political parties are deemed private associations with a mixed revenue system. They are assigned funds from the public budget in proportion to their parliamentary representation but can also collect private money from individuals (including the largely insignificant membership fees) and corporations. The new law imposes spending thresholds in electoral campaigns, and the contributions made by businesses are at least in theory subject to limits and conditions (e.g., anonymous donations are forbidden, and companies that supply goods or services to the state cannot contribute to campaigns). The Audit Office (Tribunal de Cuentas) is the body charged with auditing the parties’ accounts but has no capacity to control them effectively. On the one hand, this office suffers from a lack of political independence as its members are appointed by the parties themselves. On the other, it lacks staff resources and suffers delays in the publication of audit reports.

Citations:
Ley Orgánica 3/2015:
www.boe.es/diario_boe/txt.php?id= BOE-A-2015-3441

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
5
Two modes of popular decision-making (apart from representative elections) enable Spain’s citizens to express their political opinions on key issues directly. The first mode is the popular legislative initiative (iniciativa legislativa popular), which enables the public to put a measure in front of the legislature. However, this is limited due to the high number of signatures required, as well as other political and legal obstacles such the fact that initiatives are not allowed on matters concerning fundamental rights, the state’s institutional structure, taxation, international affairs or the prerogative of pardon. Historically, even when the 500,000-signature threshold has been reached, the huge majority of those initiatives have been dismissed by the Board of the Congress of Deputies. All proposals awaiting approval in 2015 were either rejected or expired at the end of the year.

The second means of popular decision-making relates to the option of submitting political decisions of special importance to all citizens in a referendum. However, Spaniards have been asked to vote in only two national referendums since democratization (the latest one to ratify the failed EU Constitutional Treaty in 2005). The constitution was approved in a referendum in 1978 and any in-depth constitutional reform must be submitted for ratification by referendum. In addition to this, some referendums to approve or reform the Statutes of Autonomy have taken place in regions with devolved powers. The refusal since 2012 to consult the population in Catalonia on its relationship with Spain within the legal framework of the constitution, has generated a major political crisis. Some Autonomous Communities and local entities have opened the way for consultative (i.e., non-binding) referendums or consultative procedures in the pre-legislative process within the legal framework of the Spanish constitution. These subnational open-government initiatives represent direct-communication channels between the public and various levels of government and have been used in several administrations during 2017.

Citations:
Decide Madrid:
https://decide.madrid.es/?locale =en

September 2017, The Economist: “Why the referendum on Catalan independence is illegal.”
https://www.economist.co m/blogs/economist-explains/2017/09/ economist-explains-17

Access to Information

#21

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
7
After 2012, when the government in power during the review period passed a decree reducing the autonomy of the Radiotelevisión Española (RTVE), the public broadcasting group lost some of its political neutrality. However, it would be unfair to regard the national television station as a simple government tool, as in the period prior to the early 2000s, when manipulation was almost systemic. The Radio Nacional de España (RNE), the main national public radio station, has also been criticized for a loss of impartiality and credibility. However, the situation has changed under the new multiparty scenario. All parties (including the PP) agreed to appoint the next RTVE president on a consensus basis following the 2016 elections. The debate on the new president of RTVE, however, was one major domestic issue during 2017 which was not resolved.

The situation with regard to regional public-broadcast groups is probably worse, with incumbent governments openly promoting their partisan political objectives. This has long been the case in Andalusia and in Madrid but is also observable in other regions such as Catalonia, where the public broadcasting corporation used to be far more pluralistic. However, since 2012, it has openly supported the pro-secession views of the nationalist regional government.

With regard to private broadcasting operations, media groups are of course formally independent, but the parties in office (at both the national and regional levels) have traditionally sought to support those newspapers, radio and television stations ideologically closest to them (through regulation of the audiovisual sector or with generous subsidies). However, some important private television networks have actively promoted the emergence of Podemos, the new anti-establishment party, through the provision of very considerable airtime (see “Media Access”).

Citations:
September 2017, RTVE.es: “El Congreso da luz verde a la nueva Ley de RTVE con el acuerdo de PSOE, Podemos y Ciudadanos.”
http://www.rtve.es/n oticias/20170921/congreso-da-luz-ve rde-nueva-ley-rtve-acuerdo-psoe-pod emos-ciudadanos/1621280.shtml
Freedom House, Freedom of the Press 2016 report.

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
7
In terms of media demand, citizens have become more interested in politics during this era of crisis as they seek solutions to ongoing problems. However, economic adversity also limits participatory resources. The empirical evidence shows that the two processes – a stronger motivation to acquire knowledge, but fewer resources to do so – are running somewhat in parallel. Even if print media show reduced sales, the Spanish population’s growing access to the internet (with a penetration rate of approximately 75%) and the widespread use of social networks have encouraged the proliferation of electronic newspapers and independent blogs that counterbalance oligopolistic trends and guarantee that certain opinions can be expressed in public debate. The largest newspaper is the very influential center-left El País. Other nationwide newspapers include the center-right El Mundo and the conservative ABC, published by the Vocento Group, which also owns many local newspapers in the Basque Autonomous Community and other regions. In Catalonia, the moderate nationalist La Vanguardia is the market leader. There is no print newspaper that represents genuinely left-leaning ideas, but progressive digital publications such as publico.es and eldiario.es have enjoyed considerable growth. There are also significant liberal and conservative digital media such as elconfidencial.com and the new elespanol.com. The country’s most-read information websites are the electronic versions of print newspapers. With regard to television, the Italian company Mediaset is the leading group in the country (owning the most-viewed TV channel, Telecinco, as well as Cuatro and other minor channels). This is followed by Atresmedia Corporación (including both the right-wing Antena 3 and the more leftist channel La Sexta). Mediaset España and Atresmedia controlled 85% of the Spanish TV ad market in 2017. In addition, there is the public broadcaster Televisión Española as well as regional public-television networks and small private stations.

The radio market is dominated by the center-left SER station followed by the center-right Onda Cero, the Cadena Cope (that belongs to the Catholic Church) and the publicly owned Radio Nacional de España (RNE). The limited pluralism of public channels and some private channels hampers informed public opinion.

Citations:
Febrero-marzo 2017, Audiencia de Internet en el EGM
http://www.aimc.es/a1mc-c0nt3 nt/uploads/2017/05/internet117.pdf

Media Pluralism Monitor 2016 Monitoring Risks for Media Pluralism in the EU and Beyond, Country report: Spain
http://cadmus.eui.eu/bitstre am/handle/1814/46812/Cover_Spain_re v2EN.pdf?sequence=1&isAllowed=y

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
6
The first specific law enabling free and easy access to government information in Spain is only four years old (Law 19/2013 on “transparencia, acceso a la información pública y buen gobierno”). Despite being new, this legislation establishes some limits to the freedom of information. According to the Madrid-based NGO Access Info Europe, Spain still scores comparatively low for four reasons: 1) some institutions (including the parliament and the royalty) are not rendered completely transparent by the law, 2) access to information is not recognized as a fundamental right, 3) the oversight body (the so-called Transparency Council) is not fully independent, and 4) the transparency website has shortcomings (with most data available only upon request). Nevertheless, the 2013 legislation did significantly improve access to government information by imbuing public policies with a higher degree of transparency. A team of around 40 civil servants works for the transparency website, and under the existing procedure, requests for information must receive a reply within 30 days. If the answer is not forthcoming or is unsatisfactory, citizens may turn to the Transparency Council, which decides whether there are data-protection or other security issues that justify withholding the information.

Citations:
access-info,
https://www.access-in fo.org

June 2017, Access Info: “Spanish Government takes open government secrecy battle to High Court.”
https://www.access-info.o rg/article/28951

Civil Rights and Political Liberties

#19

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
7
A controversial new law on public safety (Ley Orgánica 4/2015) was passed in 2015. This so-called gag law (ley mordaza) has been widely regarded as an anti-protest instrument, with the aim of reducing the tide of demonstrations against the government’s austerity policies and has thus been strongly resisted by the opposition and activists. It includes a new system of executive fines imposed for insulting (or sometimes simply criticizing) police officers, as well as for taking part in public unauthorized demonstrations (see also “Political Liberties”).

The new law also introduces civil-rights guarantees and makes some timid progress on racial profiling by police in the course of carrying out searches in public spaces. Under the new regulation, police searches must be carried out by a member of the same sex as the person being searched and can only be conducted for the purpose of preventing or investigating a crime. People who fail to supply ID can be taken to a police station only in order to prevent a crime or if they have already committed a misdemeanor.

State institutions generally respect and protect civil rights; the rights guaranteed by the constitution and in ordinary legislation are enforced, even if some infringements occur in practice (e.g., concerning illegal immigrants). Separately, the systematic delays and lack of adequate resources (both human and technological) in the Spanish courts are factors that serve to undermine the effective protection of fundamental rights to some degree. Over the long term, the inability to address the conflict in Catalonia politically may have strained human rights protections in Spain, being interpreted by some in Catalonia as an abusive interpretation of the rule of law.

Citations:
February 2017, El País: “Facebook user faces €30,000 fine for posting video of policeman online”
https://elpais.com/elpais /2017/02/17/inenglish/1487338337_48 5063.html

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
8
Spain is classified as an advanced democracy by various indices, including the Freedom House’s Freedom in the World index and the Economist Intelligence Unit’s Democracy Index. The country’s institutions are generally effective at protecting political liberties, though there are occasionally incidents of infringements on political liberties. The 1978 Spanish constitution outlines the political liberties that must be respected by state institutions. Fundamental rights and public freedoms (included in Section 1, Chapter 2, Part I of the constitution) are subject to special protections. The political liberties subject to special protection against government (or even private) interference or violation include: the freedoms of ideology, religion and worship; the right to freely express and spread thoughts, ideas and opinions without any form of prior censorship; the right to peaceful unarmed assembly, with no need to notify local authorities in advance unless demonstrations are being held in public places; the right of association; the right to freely join a trade union; and the right to individual and collective petition.

Citations:
Freedom House: Freedom in the World, Spain 2017
https://freedomhouse.org/repor t/freedom-world/2017/spain

The Economist Intelligence Unit’s Democracy Index
https://www.eiu.com/topic/dem ocracy-index

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
7
Any discrimination based on birth, race, sex, religion, opinion or any other personal or social condition or circumstance is forbidden in Spain (according to the constitution and all important international and European treaties signed by Spain that are relevant to counteracting marginalization). In addition, any individual, whether a national citizen or not, can invoke a special expedited procedure in the courts asking the state to protect him or her against any form of discrimination. As a result, cases of explicit discrimination are extremely rare. The Ministry of Health, Social Services and Equality, the ombudsperson, and several regional agencies are active in monitoring discrimination. Of course, this does not mean that occasional public discrimination and, above all, indirect social discrimination are never observed, particularly concerning women, the elderly, persons with disabilities, and ethnic and linguistic minorities. For example, there remain significant wage differences between men and women, and few women sit on the boards of companies. The recent approval of equal parental leave for fathers may prove a positive development.

Though there are instances of discrimination toward Muslim immigrants and the Roma, a survey conducted by the Pew Research Center in 2016 showed that Spaniards express fewer fears than other Europeans regarding minorities and tend to express less negative views about immigration. It is true that anti-Muslim views are comparatively common (50% of Spaniards have an unfavorable opinion of Muslims, although the community represents only 3.5% of the total population), and some tensions emerge from time to time, but it is also true that the state tends to offer protection to minority communities. Spain is also considered to be a pioneer in fighting discrimination against homosexuals and women, although the Rajoy government was less active in this realm than its predecessor. The main national agency tasked with monitoring equality and antidiscrimination efforts is the Institute for Women and Equal Opportunities. Nevertheless, Spain has not yet adopted a comprehensive antidiscrimination law and the European Parliament declared in a 2015 report that “there are some concerns about whether the law in Spain is in complete compliance with the EU directives on racial and employment equality.”

Citations:
June 2017, Chatham House: “The Future of Europe: Comparing Public and Elite Attitudes
https://reader.chathamho use.org/future-europe-comparing-public-and-elite-attitudes#
European Commission, Special Eurobarometer 437: “Discrimination in the EU in 2015”
http://www.equineteurope.org /IMG/pdf/ebs_437_en.pdf

Rule of Law

#21

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
8
The general administrative procedure in Spain is consistent and uniform, assuring regularity in the functioning of all administrative levels. During 2015, a new piece of legislation (Ley 39/2015, del Procedimiento Administrativo Común de las Administraciones Públicas) was passed with the aim of modernizing basic administrative law and improving legal certainty. In theory, this principle holds across the Spanish public sector, but it is also true that citizens and the business sector sometimes complain about unpredictable decisions. At the political level, for example, some policy reversals have undermined Spanish credibility among foreign investors (e.g., the government’s changes in taxation and the decision to cut the regulated revenue rates received by renewable-energy generators). Within the administrative bureaucracy, however, there is still some scope for discretion and less transparency than what one might infer from the formal provisions (see “Access to Government Information”). Furthermore, even if the executive acts on the basis of and in accordance with the law, strict legal interpretations may in fact produce some inefficiency in certain aspects of the administration. This can be observed in the rigid system of personnel recruitment; working methods that depend on clear departmental command rather than flexible cross-organization teams; a preference for formal hierarchy rather than skills when making decisions; and the reliance on procedure regardless of output effectiveness, for example. This prevailing legalistic approach also serves to perpetuate abuses in some cases, since citizens are generally reluctant to appeal administrative acts in the courts as a consequence of the high costs and long delays associated with this process.

Within the Catalonia crisis, the government focused exclusively on the legal and constitutional framework to defend its point of view, failing to consider any political initiative other than lawsuits against the secessionists. Judicial action in the case of Catalonia has generated some confusion and legal uncertainty.

Citations:
Ley 39/2015, del Procedimiento Administrativo Común de las Administraciones Públicas
www.boe.es/diario_boe/txt.php?id= BOE-A-2015-10565

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
7
The judicial system is independent and has the capacity to control whether the Spanish government and administration act according to the law. Specialized courts can review actions taken and norms adopted by the executive, effectively ensuring legal compliance. The administrative jurisdiction is made up of a complex network, including local, regional and national courts. In addition, the Constitutional Court may review governmental legislation (i.e., decree laws) and is the last resort in appeals to ensure that the government and administration respect citizens’ rights. During the period under review, a number of criminal cases related to separate scandals demonstrated that courts can indeed act as effective monitors of activities undertaken by public authorities (see “Corruption Prevention”).

Today, two important factors undermine the efficacy of judicial review in Spain. The first is the lack of adequate resources within the court system. The high number of convictions imposed by the European Court of Human Rights for violating the right to a fair trial point to systematic problems in the Spanish justice system that must be addressed by public authorities. The Executive Opinion Survey published by the World Economic Forum and similar opinion polls show that most Spanish respondents find the judicial system to be too slow. The second problem is the difficulty some judges appear to experience in reconciling their own ideological biases (mostly conservative, given their generally upper-middle-class social origins) with a condition of effective independence; this may hinder the judiciary’s mandate to serve as a legal and politically neutral check on government actions. The situation in Catalonia may have put the independence of the judiciary to the test. Several judges at various levels have been implicated and the Constitutional Court has endorsed their decisions.

Citations:
April 2017, European Commission: “2017 EU Justice Scoreboard”
http://ec.europa.eu/ju stice/effective-justice/scoreboard/ index_en.htm

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
7
Appointments to the Spanish Constitutional Court (Tribunal Constitucional, TC), the organ of last resort regarding the protection of fundamental rights and conflicts regarding institutional design, take place through a politicized and typically long process. Selecting and appointing a successor to a justice who had died in April 2015 proved impossible during the review period as a result of the politicized nature of the appointment process and the presence of a caretaker government. Appointments to the Supreme Court – the highest court in Spain for all legal issues except for constitutional matters – can also lead to political maneuvering.

The Supreme Court consists of five different specialized chambers, and all its members (around 90 in total) are appointed by the CGPJ, requiring a majority of three-fifths. The 20 members of this body (judges, lawyers, and other experienced jurists), which is the governing authority of the judiciary, are themselves appointed to five-year terms by the Congress of Deputies and Senate and require a three-fifths supermajority vote to be seated. Under current regulations, appointments to both the TC and the CGPJ formally require special majorities. However, the fact that the various three-fifths majorities needed can be reached only through extra-parliamentary agreements between the major parties has not led to cooperative negotiations to identify the best candidates regarding judicial talent. During the period under review, a “progressive” judicial association criticized the political bias of some Supreme Court appointments promoted by the conservative-leaning president of the CGPJ. The problem lies not so much in the nomination of the judges of the high courts, but in their corporate culture and in the protection against pressures on their behavior.

Citations:
Jueces para la Democracia: “Comunicado en relación con nombramientos para órganos técnicos del CGPJ”
http://juecesparalademocraci a.blogspot.be/2016/11/comunicado-en -relacion-con.html
April 2014, Pablo Oñate and Juan Rodríguez-Teruel: “The political recruitment to eh Spanish Constitutional Court (1980-2014)”
http://www.academia.edu/8418599/R ecruitment_of_Spanish_Constitutiona l_Court_Members

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
7
Corruption levels have declined in Spain since the real-estate bubble burst in the wake of the 2008 crisis. Massive spending cuts since that time have also arguably helped bring down corruption levels. Nonetheless, perceived corruption levels and Spain’s position in international indices such as Transparency International’s CPI have worsened since the early 2000s. Spain was ranked at 20th place worldwide at the beginning of last decade, but has fallen to 42nd place in 2017. This can be attributed to the fact that cases currently moving through the legal system are based on past events and activities that are now receiving considerable media attention.

Recent trials and public debate on corruption increased awareness among the public. The PP minority government survived a vote of no-confidence in June 2017 brought to parliament by Podemos to denounce rampant corruption. Also, President Rajoy was obliged to testify as a witness in a corruption case in August.

The corruption cases now being investigated typically involve illegal donations by private companies to specific parties in exchange for favors from the administration, or simply personal enrichment on the part of officeholders. There have also been several cases of fraudulent subsidies received by individuals close to the governing political parties and some “revolving door” conflict-of-interest cases involving politicians and industries affected by regulation.

Legislation intended to dissuade such behavior has produced first results. This anti-corruption legislation involves a change to party-funding regulations, a transparency law, and reforms to the criminal code and public-procurement law. In addition, systematic audits of public accounts are mandatory and officeholders must make an asset declaration. Very few corruption cases have involved career civil servants and everyday interactions between citizens and the administration are typically characterized by a high level of integrity.

During 2017, the parliamentary Committee for the Auditing of Democratic Quality, created in 2016, initiated a series of public hearings aimed at gathering the knowledge of Spanish and foreign experts on the financing of political parties. As of November 2017, the committee has held 28 hearings and begun drafting its report. The Law 9/2017 (Contratos del Sector Público) on public procurement was approved in November. In addition, the Directive 2014/23/EU of 26 February, concerning application thresholds for the procedures for awarding contracts, was implemented into Spanish law. These new legal frameworks will come into force on 9 March 2018 and aim to achieve greater transparency in public procurement.

Citations:
Transparency International, 2017, Global Corruption Barometer
https://www.transparency.org/news/feature/global_corruption _barometer_citizens_voices_from_aro und_the_world
August 2016, Pacto anticorrupción PP-Ciudadanos
http://estaticos.elmu ndo.es/documentos/2016/08/19/pactoa nticorrupcion.pdf
GRECO, 2017, V. Fifth Evaluation Round, https://www.coe.int/en/web/greco/ev aluations#“22359946”:[]
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