The deadline for transposition of the European Whistleblower Directive ends without the Government of Spain having carried out the transposition work

València, December 17, 2021.- Today, December 17, the deadline for the transposition into the Spanish legal system of European Directive 1937/2019, for the protection of people who report violations of Union Law, better known as Directive Whistleblower.
The Government of Spain, through the Ministry of Justice, is in charge of the transposition work and had two years to adapt the content of the European Directive to Spanish law.
For this reason, the Valencian Antifraud Agency has issued an institutional statement with which it wants to warn of the breach of that deadline and the repercussions it has on having lost the opportunity to carry out a reform of the Spanish legal system that would allow fighting corruption in a more effective.
The Agency recalls that from this moment the Directive has direct effects and the courts and tribunals must make an interpretation in accordance with it and reiterates the need for the transposition to be carried out for what it offers its collaboration to the Ministry of Justice.
It also urges the creation of a national authority for the prevention and fight against corruption that works in coordination with the regional authorities and the modification of the legal system with special reference to criminal law and the protection of witnesses and experts.
It is also necessary to establish secure and confidential reporting channels that allow even anonymous reports, so that anyone can report possible crimes and actions constituting fraud and corruption.
The Institutional Declaration issued by the Agency makes a special mention of the recognition deserved by persons who report corruption, who must be effectively protected against possible reprisals, as well as recognizing their exemplary nature.

Here you can access the full content of the Institutional Declaration:

https://www.antifraucv.es/wp-content/uploads/2021/12/210617-Declaracion-Institucional-AVAF_Transposicion-Directiva_-2019-1937.pdf

Debate on corruption with journalism students from the Cardenal Herrera CEU University

#TrainingAVAF

In the first quarter of this academic year, several docufòrum have been held at the Cardenal Herrera CEU University, in collaboration with the Valencian Anti-Fraud Agency (AVAF). On this occasion, the activity has been carried out with second-year students of the Journalism Degree.

The AVAF develops training activities to offer knowledge and civic awareness, especially to future professionals, and to promote a culture of prevention and fight against all conduct that encourages corruption.

On Tuesday, December 14, a new activity took place at the Faculty of Political Sciences, Ethics and Sociology of the Cardenal Herrera CEU University, with second-year students of the Degree in Journalism, with the attendance of 23 students and the participation of the professor of the subject of Ethics of Communication.

After viewing the documentary “Corruption: Harmful Organism”, the students lead the training experience with their questions, focused on the origin and causes of corruption, its effect and costs, the perception of corruption in our society and respect to other neighboring countries, what to do in cases of corruption. In the same debate, he takes the opportunity to talk about ethics and integrity, as well as prevention and civic training. And the functions and work of the Valencian Anti-Fraud Agency, especially the importance of the media as a factor that modulates the perception of corruption.

The activity had a part dedicated to the activity of the AVAF, and another specific to journalism and corruption, with the participation of the Head of the Institutional Relations and Communication Cabinet Unit of the Agency, mobilizing the interest of the students of the Ethics subject of the comunication. The debate with the students allows students to reflect on ethical limits and micro-corruption, which every professional encounters throughout their lives.

These activities are organized in collaboration with the Cardenal Herrera CEU University of Alfara del Patriarca, which we thank for its interest and willingness to help create a culture of public integrity and rejection of fraud and corruption.

If you are a university, Secondary or Baccalaureate teacher and you are interested in the training activity “Docufòrum: Corruption, harmful organism” being carried out in your subject, do not hesitate to contact the Training Service of the Valencian Anti-Fraud Agency through from formacion@antifraucv.es.

The fine line between administrative irregularity and crime in public procurement

For several years now, numerous procedures for demanding criminal liability from authorities and officials in the matter of public procurement have been resolved. The most common crime is prevarication in administrative contracting. And it is that, Juan Bravo Murillo already warned in the exhibition he made to Queen Elizabeth II, in 1852, of the danger of public contracting: “Madam: Competently authorized by VM, with the prior agreement of the Council of Ministers, the Treasury presented to the Cortes on December 29, 1850, a bill of contracts on public services, in order to establish certain healthy obstacles, avoiding abuses. easy to commit in a matter of dangerous stimuli, and to guarantee the Administration against the shots of slander … “. But when are we in the presence of criminal behavior and when are we not? Fortunately, not every administrative offense, not every irregularity in the processing of a file, not every omission of a legally required procedure can be classified as constituting a crime of prevarication. But the line between an administrative irregularity and a crime is somewhat blurred. The crime of administrative prevarication, according to the provisions of art. 404 of the Penal Code, refers to “the authority or public official who, knowing its injustice, dictates an arbitrary resolution in an administrative matter, will be punished with the penalty of special disqualification for employment or public office and for the exercise of the right of passive suffrage for a period of nine to fifteen years ”. The injustice contemplated in the Penal Code supposes a “plus” of contradiction with the legal norm that is what justifies the intervention of the criminal law. The jurisprudence has maintained that for an administrative resolution to be classified as a crime of prevarication, it is necessary that its illegality be “evident, patent, flagrant and clamorous”, drawing attention to the question of the easy knowability of the contradiction of the act with the right. To assess the existence of a crime of prevarication, a reiterated jurisprudence (see SSTS 1021/2013, November 26) has indicated that it will be necessary: a) a resolution issued by an authority or official in an administrative matter;b) that it is objectively contrary to the law, that is, illegal;c) that this contradiction with the law or illegality, which may manifest itself in the absolute lack of competence, in the omission of essential steps in the procedure or in the substantial content of the resolution itself, is of such an entity that it cannot be explained with a minimally reasonable technical-legal argumentation;d) that causes a materially unfair result;e) that the resolution be issued in order to enforce the particular will of the authority or official and with the knowledge of acting against the law by arbitrarily eliminating free competition in an unjustified exercise of abuse of power. In this sense, it is not mere illegality but arbitrariness that is sanctioned. As we can see, administrative prevarication involves “knowing arbitrariness”. Mere illegality is not enough, since the administrative regulations already foresee cases of nullity controllable by the contentious-administrative jurisdiction without the application of Criminal Law being necessary in any case, which will thus be restricted to the most serious cases (STS 359/2019 , of June 15). And, although not every absence of procedure leads to the criminal type, it will have criminal relevance if in this way what is sought is to eliminate the mechanisms that are established precisely to ensure that its decision is subject to the purposes that the law establishes for the specific administrative action in which it adopts its resolution. They are, in this sense, essential procedures (STS nº 331/2003, of March 5). To appreciate the contradiction of the administrative act with the law, the courts have stated that: – it must be a blatant and gross contradiction (STS of April 1, 1996),– or resolutions that go beyond the legality in an evident, flagrant and resounding way (SSTS of May 16, 1992 and April 20, 1994),– or of a deviation or distortion of the law in such a rude, clear and evident way that the extra unlawfulness required by the criminal offense is appreciated (STS of May 10, 1993),– Or the arbitrary exercise of power, when the authority or the official issue a resolution that is not an effect of the Constitution and the rest of the legal system but, purely and simply, a product of their will, unreasonably converted into an apparent source of regulations, and the result is an injustice, that is, an injury to a right or the collective interest, and when the arbitrariness consists in the mere production of the resolution -because its author does not have legal competence to dictate it- or in the non-observance of the essential procedure to which its genesis must conform (STS of October 23, 2000). The existence of an arbitrary resolution may be appreciated when omitting the procedural requirements mainly involves the circumvention of the controls that the procedure itself establishes on the merits of the matter (STS 743/2013, of October 11 and STS 152/2015, of October 24, February, among others). Regarding the concept of “administrative resolution”, the Supreme Court, in its judgment of February 24, 2015, establishes that said concept “is not subject to a rigid formal scheme, even admitting the existence of verbal acts, without prejudice to its constancy written when necessary. A resolution is understood to be any administrative act that involves a declaration of will of decisive content, which affects the rights of the administered or the community in general, either expressly or tacitly, in writing or orally, excluding political acts. or government as well as the so-called procedural acts (eg reports, consultations, opinions or proceedings) that implement and order the procedure to make the final resolution viable. Is it possible to maintain that there is a criminalization of administrative law? The doctrine on some occasions has maintained that currently the cases previously dealt with with legal-administrative techniques have been criminalized or, in other words, the use of the penalty at the service of the…