Spain

   

Quality of Democracy

#18
Key Findings
With mixed strengths and weaknesses, Spain falls into the middle ranks (rank 18) with respect to democracy quality. Its score on this measure has improved by 0.3 points relative to 2014.

During the review period, corruption charges led to the fall of the PP government led by Prime Minister Rajoy, and the echoes of Catalonia’s independence bid roiled Spanish politics. Several candidates in the 2017 Catalonian elections were either in prison or had fled the country, and the Supreme Court ultimately ruled that several deputies would be prosecuted for rebellion.

Parties receive public and private funding. Members of the Audit Office overseeing spending are appointed by the parties themselves. While civil rights and political liberties are generally respected. Anti-discrimination laws are strong, and explicit discrimination is rare, though informal prejudice persists.

Parliamentary fragmentation has made it difficult to select a new public-media president. The judicial system is strong and generally independent, but slow, and sometimes shows conservative bias. All political parties now have anti-corruption policies, and have signed transparency commitments.

Electoral Processes

#24

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 is fair and flexible. This was demonstrated in the elections of 2015 and 2016 when new parties participated for the first time in the general elections with winning one-third of seats in the parliament. Virtually every Spanish adult is eligible to run for public office. 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. The elections in Catalonia in December 2017 were a special case, since several candidates were being held in custody ahead of trial during the elections, while others had fled the country. In July 2018, the Supreme Court confirmed that several of these deputies would be prosecuted for rebellion, disobedience and misuse of public funds. The independence leaders were automatically suspended as regional deputies and lost their voting rights.

Citations:
OSCE(2018), Elections in Spain, https://www.osce.org/odihr/elections/spain

December 2017, BBC, “PM Rajoy rejects Puigdemont talks call”
https://www.bbc.com/news/world-europe-42458717

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 democratic parties or candidates have access to the public media without unreasonable or systematic discrimination. The electoral law 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 every day, with its length 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 this did not prevent Podemos and Ciudadanos from achieving their electoral gains.

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.

Citations:
Media Pluralism Monitor (2016), Spain, European University Institute.
http://cmpf.eui.eu/media-pluralism-monitor/mpm-2016-results/spain/

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 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, 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 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

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 2 million Spaniards abroad are registered, the voting procedure is complicated and, as a result, turnout rates among expatriates are extremely low (under 5%). Over the course of 2018, parties discussed a revision of this procedure, but no change had been made as of the close of the review period.

However, the voting rights accorded to adults with intellectual disabilities have changed. During the review period, the parliament unanimously approved an electoral reform that will allow 100,000 people with mental illness or cognitive impairment to vote. The initiative was launched after the Council of Europe ruled that intellectually disabled individuals could not be deprived of their right to vote.

Citations:
INCLUSION EUROPE (2018), 100.000 people under guardianship in Spain will be able to vote, http://inclusion-europe.eu/?p=7278

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
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 in the form of largely insignificant membership fees) and corporations. The law was reformulated in 2015 as part of an anti-corruption plan aimed at increasing transparency and imposing sanctions following the emergence of a significant number of scandals in previous years. It imposes spending thresholds in electoral campaigns, and 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. This office suffers from a lack of political independence, since its members are appointed by the parties themselves. It also lacks staff resources, with audit reports typically published only after delays. During the period under review, in the Gürtel case, the National Court ruled that the PP had obtained funds illegally, and a former PP treasurer linked to illegal cash contributions and party donations was also found guilty. As a consequence of this scandal, Prime Minister Mariano Rajoy was ousted in no-confidence vote, and was replaced by the socialist Pedro Sánchez. However, the Socialist party (and the Catalan nationalist CDC, now renamed as PDeCAT) has also been involved in corruption scandals related to illegal party financing. Today, all parties have outlined anti-corruption policies and signed transparency commitments.

Citations:
Ahumada, (coord.) (2018), Informe sobre la Democracia en España 2017, Fundación Alternativas. http://www.fundacionalternativas.org/public/storage/publicaciones_archivos/c4ce50790447eaa82d49984032c55b91.pdf

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
Since the 2008 – 2014 economic crisis, there has been strong public demand to give citizens a more direct role in Spain’s political decisions. While the two main participatory-democracy mechanisms that formally exist in Spain (the citizens’ legislative initiative and the referendum) have largely been ignored, several innovations in popular deliberation and decision-making have taken place in the last several years (with particular relevance at the EU and local levels).

The effectiveness of the popular legislative-initiative model, which enables the public to put a measure in front of the legislature, is quite limited due to the high number of signatures required. Moreover, other political and legal obstacles exist, such as 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. Only two of the 94 popular legislative initiatives launched since 1983 have become law.

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 three national referendums since democratization, in addition to seven such votes held in the various autonomous communities. Since 2012, Catalan nationalist forces (who constitute between 45% and 55% of the voters in that region) have pushed for a referendum on independence. However, this would be illegal according to the Spanish Constitution, and this maximalist position has generated a major political crisis.

Several other modes of popular consultation have also been developed recently, enabling Spain’s citizens to express their political opinions on key issues. Several regional governments have opened the door to consultative procedures in pre-legislative processes. Similarly, many local authorities, including Madrid and Barcelona, enabled participatory budgeting during 2018. Other innovations in local direct democracy include the use of e-democracy and deliberative forums.

Spaniards are quite active with regard to citizen participation in EU policymaking. Since 1993, every EU citizen has had the right to address the European Parliament with a petition. In 2017, a total of 1,271 petitions were filed, with most coming from Spain, Italy and Germany. During 2018, Spain also undertook the so-called European Citizens’ Consultations, a participatory experiment that was supported by both Rajoy’s conservative government and socialist Pedro Sánchez.

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

Llaudes, S.; I. Molina and I. Toygur. 2018. “Spain” In The European Citizens’ Consultations - Evaluation report, eds. P. Butcher and C. Stratulat. Brussels: European Policy Centre and The Democratic Society. www.epc.eu/pub_details.php?cat_id=1&pub_id=8839

Lorente, J. 2018. “Spain: no country for direct democracy?” In Direct Democracy in the EU, eds. S Blockmans and S. Russack. Brussels: CEPS https://www.ceps.eu/system/files/EU_Direct_Democracy_CEPS_RLI_paperback_Blockmans_Russack.pdf

Access to Information

#12

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
The public TV and radio network (RTVE) has been criticized for its lack of impartiality and credibility. However, under the new multiparty scenario following the 2016 elections, all parties (including the then-governing PP) agreed to appoint the next RTVE president on the basis of consensus. A legal change introduced in 2017 established an open and public competition for seats on the public media organization’s governing board and for its president, with the need for a two-thirds (rather than simple) parliamentary majority to approve these positions. However, after difficulties in selecting a new president, on 19 July 2018, the new Pedro Sánchez government proposed the appointment of a “sole administrator,” a provisional figure that would be granted powers to direct the public broadcasting group until the approval of a new president by public tender.

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, in Madrid and particularly in Catalonia, where the public media has openly supported the nationalist regional government’s pro-secession view, while limiting access for those holding opposing perspectives or pluralistic positions.

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 the newspapers, radio and television stations that are ideologically closest to them (through regulation of the audiovisual sector or with generous subsidies). In 2018, the parliament set up a working group to deal with the issue of “fake news.” Politicians, journalists, media owners and representatives from social-media platforms have been invited to contribute.

Citations:
Octuber 2017, the Guardian: “What Catalonia’s media dearly needs is neutral voices.”
https://www.theguardian.com/world/2017/oct/29/free-speech-catalonia-madrid-toxic-media

Freedom House(2018), Press 2017 report. - https://freedomhouse.org/report/freedom-press/freedom-press-2017

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
8
In the context of the EU, Spain is unique in that a majority of adults (59%) consider the news media to be very important to society, even if a smaller portion (31%) say they trust the news media. Spain’s citizens have become more interested in politics in recent years. Even if the print media’s circulation is declining, the population’s growing access to the internet (with a penetration rate of approximately 85%) 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. 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 Eldiario.es and Publico.es have a large number of readers. There are also significant center-right to right-wing digital media sites such as Elconfidencial.com, Elespanol.com and Okdiatio.com. Nevertheless, the country’s most widely read information websites are the electronic versions of print newspapers.

With regard to television, 55% to 60% of the market is controlled by two groups: the Italian company Mediaset (which includes the Telecinco and Cuatro channels) and the Atresmedia Corporación (which owns both the right-wing Antena 3 and the more leftist channel La Sexta). In addition, there is the public broadcaster Televisión Española (with a market share of about 15%), 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 (which belongs to the Catholic Church) and the publicly owned Radio Nacional de España.

Citations:
Abril–Mayo (2018), Audiencia de Internet
https://www.aimc.es/egm/audiencia-internet-egm/

Media Pluralism Monitor (2017), Monitoring Risks for Media Pluralism, http://cmpf.eui.eu/media-pluralism-monitor/

PEW Research Center(2018), News Media in Spain
http://www.pewglobal.org/fact-sheet/news-media-and-political-attitudes-in-spain/

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
7
The first specific law enabling free and easy access to government information in Spain is only five years old. Despite being new, this legislation establishes some limits to the freedom of information, and Spain still scores comparatively low for three reasons: 1) some institutions (including the royalty) are not rendered completely transparent by the law, 2) access to information is not recognized as a fundamental right, and 3) the oversight body (the so-called Transparency Council, which decides whether there are data-protection or other security issues that justify withholding the information) is not fully independent, and remains understaffed. For several reasons, including the fact that most data is available only upon request, citizens make limited use of the ability to request information.

Nevertheless, since 2013, access to government information has improved significantly, largely thanks to public policies being given a higher degree of transparency. For example, at the end of 2017, the minutes of the Council of Ministers meetings for the period 1996 – 2017 were made available to the public, the first time this had been done in the country’s democratic history.

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

Las Actas del Consejo de Ministros publicadas por primera vez en España https://www.access-info.org/es/frontpage-es/30077

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
Spanish state institutions generally respect and protect civil rights. The rights guaranteed by the constitution and ordinary legislation are enforced, and only few infringements occur in practice (e.g., concerning illegal immigrants). Courts provide effective protection even if systematic delays and a lack of adequate resources (both human and technological) are factors that undermine this effectiveness to some degree. The political conflict associated with Catalonia’s bid for independence has included the very debatable claim by Catalan nationalist forces that the central government and the courts may have supported an abusive interpretation of the rule of law.

During the period under review, parliament initiated a debate on the reform of the controversial 2015 law on public safety. That legislation has been widely regarded as an anti-protest instrument (including a system of executive fines imposed for insulting police officers, as well as for taking part in public unauthorized demonstrations). A specific reform proposal regarding the most controversial articles of the law was presented in December 2018; however, its prospect of success was dim, due to the government’s lack of a parliamentary majority. The socialist government has also taken some measures to include Council of Europe opinions when addressing provisions for express deportations and the filming of police officers.

Citations:
June 2018, El País: “El Gobierno prevé derogar el núcleo de la ‘ley mordaza’”
https://elpais.com/politica/2018/06/22/actualidad/1529685745_811366.html 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
According to the most widely quoted comparative indices measuring the state of democracy, freedoms and the rule of law, Spain is considered to be a free full democracy (in the top 20). The country’s institutions are generally effective at protecting political liberties, subject to special protection against government (or even private) interference, though there are occasionally incidents of infringement.

During the period under review, several prominent artists protested against the 2015 law on public safety and an amendment to the Criminal Code’s Article 578 that increased the maximum penalty for “glorifying” terrorism and “humiliating” its victims to three years in prison. The protests were inspired in part by a jail sentence in February 2018 against a rapper whose song had contained aggressive lines criticizing politicians and members of the royal family. According to Freedom House and Amnesty International, at least 119 people have been convicted of speech-related “terrorism” offenses since 2011. The current government has announced that it intends to revise the law. In October, the parliament agreed to discuss reforms to the Criminal Code that would diminish penalties for crimes such as insulting the king, inciting terrorism and offending religious sentiments.

Citations:
Freedom House (2018): Spain,
https://freedomhouse.org/repor t/freedom-world/2017/spain

Democracy Index 2018: Spain
https://www.eiu.com/topic/democracy-index

Amnesty International (2018), Spain: Counter-terror law used to crush satire, https://www.amnesty.org/en/latest/news/2018/03/spain-counter-terror-law-used-to-crush-satire-and-creative-expression-online/

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. 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. Cases of explicit discrimination are extremely rare, but this does not mean that occasional public discrimination and, above all, indirect social discrimination are never observed. 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 time and measures seeking to guarantee equal pay for women and men may prove positive developments.

In general terms Spaniards express fewer fears than other Europeans regarding minorities, and tend to express less negative views about immigration. In 2018 the Council of Europe acknowledged that there is less hate speech in Spain than in other European countries, although the incidence of hate speech on the Internet and social media has risen sharply. Spain is considered to be a pioneer in fighting discrimination against homosexuals and women. The main national agency tasked with monitoring equality and antidiscrimination efforts is the Institute for Women and Equal Opportunities. However, in 2018, the Council of Europe’s European Commission against Racism and Intolerance (ECRI) called on Spain to “urgently” create an independent equality body specifically designed to tackle racism. The ECRI report also criticized the lack of measures to integrate migrants, as well as the segregation experienced by Roma children.

Citations:
ECRI (2018), Fifth report on Spain.
https://www.coe.int/en/web/european-commission-against-racism-and-intolerance/spain

Rule of Law

#19

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. In 2016, a new piece of legislation (Ley 39/2015) came into force aiming to modernize the country’s basic administrative law and improve legal certainty. In theory, this policy holds across the Spanish public sector, but it is also true that citizens and the business sector sometimes complain about unpredictable decisions. And 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 ad government.

The events in Catalonia during the period under review (the unilateral declaration of independence by parties representing less than 50% of the population, against the recommendations of the clerks of the regional parliament and despite the prohibitions issued by the Spanish Constitutional Court) can be considered an outstanding example of an arbitrary decision that lacked legal basis and ignored the constitution. However, this was a quite exceptional and unusual development that the central institutions (the Senate, the government and the higher courts) managed with response based on the rule of law; direct rule in Catalonia was imposed, and secessionist leaders were prosecuted in connection with the breakaway bid. Even if this approach can be criticized as legalistic and lacking in political vision, it was explicitly designed with the aim of underlining that public authorities should act according to legal regulations.

Citations:
Ahumada, (coord.) (2018), Informe sobre la Democracia en España 2017, Fundación Alternativas. http://www.fundacionalternativas.org/public/storage/publicaciones_archivos/c4ce50790447eaa82d49984032c55b91.pdf

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 Spanish judicial system is independent and has the capacity to control whether the 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 of 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, the behavior of the judiciary with regard to the Catalan crisis and a number of decisions related to corruption scandals demonstrated that courts can indeed act as effective monitors of activities undertaken by public authorities. This included a ruling in May 2018 that found Prime Minister Mariano Rajoy guilty of benefiting from a vast kickbacks scheme (as a result, the socialist opposition filed a motion of no confidence in Rajoy, who was finally ousted).

According to the 2018 GRECO report, there is no doubt as to the high quality and dedication of the country’s judges and prosecutors. However, improvements leading to still greater judicial independence and efficiency were recommended. The 2018 EU Justice Scoreboard indicated that most respondents found the judicial system to be too slow. In May 2018, judges and prosecutors stopped work in an unprecedented strike to call for greater judicial independence and better working conditions. Moreover, some judges appear to have difficulties in reconciling their own ideological biases 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. Finally, the capacity of some powerful private interests (such as the banking system) to influence judicial decisions was the subject of extensive debate in October 2018, following a controversial ruling by the Supreme Court on taxation.

Citations:
EC(2018), “EU Justice Scoreboard”
https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en

GRECO (2018), Fourth evaluation round, Spain: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680779c4d

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
Under current regulations, appointments to both the Constitutional Court (the organ of last resort regarding the protection of fundamental rights and conflicts regarding institutional design) and the Supreme Court (the highest court in Spain for all legal issues except for constitutional matters) require special majorities in the parliament. These majorities can be reached only through difficult and politicized extra-parliamentary agreements between the major parties, which generally lack a cooperative attitude toward one another. In 2018, GRECO published a report stating that Spain’s political authorities still have not established objective evaluation criteria for appointments to the higher judiciary ranks; this is needed in order to ensure that these appointments do not cast any doubt on the independence and transparency of this process. However, the problem lies not so much in the appointment of high court judges, but rather in their corporatist culture and the conservative mindset instilled by a specific professional career.

During the period under review, a “left-leaning” judicial association criticized the political bias of some Supreme Court appointments promoted by the right-wing president of the Supreme Court. At the political level, a parliamentary debate focused on a strategy aimed at enhancing the judiciary’s impartiality, talent and efficiency. A code of conduct has been adopted, and a consultative Commission of Judicial Ethics has been established.

Citations:
GRECO (2018), Fourth evaluation round, Spain: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680779c4d

Ahumada, (coord.) (2018), Informe sobre la Democracia, Fundación Alternativas. http://www.fundacionalternativas.org/public/storage/publicaciones_archivos/c4ce50790447eaa82d49984032c55b91.pdf

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 economic crisis, and also as a consequence of the criminal, political and social prosecution of corrupt officials. “Corruption is not in our cultural DNA,” said a report published in 2018 by the Círculo de Empresarios; and the fact is that – political-party funding aside –few corruption cases have involved career civil servants. Everyday interactions between citizens and the administration are typically characterized by a high level of integrity. 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 41st place in 2018. 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.

In January 2018, a court in Barcelona ruled that the ruling party of Catalonia (the moderate nationalist CDC) had for many years received illegal commissions. In May, the Supreme Court found former PP officials guilty of tax evasion and of having received illegal commissions for public contracts; this led to the fall of Mariano Rajoy as prime minister.

Several measures for preventing corruption have been put in place in recent years. In 2017, a parliamentary committee initiated a ongoing series of public hearings aimed at improving the financing of political parties. In March 2018, the Law 9/2017 on public procurement came into force. In addition, Directive 2014/23/EU, concerning application thresholds for contract-award procedures, was implemented into law. Although the new legal frameworks led to a certain degree of confusion during the period under review, they are intended to achieve greater transparency in public procurement.

Citations:
Transparency International (2018), Corruption Perceptions Index, https://www.transparency.org/news/feature/corruption_perceptions_index_2017?gclid=Cj0KCQjw08XeBRC0ARIsAP_gaQCZqokUPS3LIHD_eoCwhZ96vD34Osmmc9bzdA4v8M2wibnXY1J6c6MaAuMQEALw_wcB

GRECO (2018), Fourth evaluation round, Spain: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680779c4d

William Chislett (2018), Forty years of democratic Spain, Real Instituto Elcano,
http://www.realinstitutoelcano.org/wps/wcm/connect/e217af25-055a-4eeb-8dfb-f021b0184017/WP1-2018-Chislett-Forty-years-democratic-Spain.pdf?MOD=AJPERES&CACHEID=e217af25-055a-4eeb-8dfb-f021b0184017

Círculo de Empresarios (2018), La calidad de las instituciones en España. https://circulodeempresarios.org/app/uploads/2018/04/Calidad-insti-CdE-WEB.pdf
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