126 people participate in the conference on unjust enrichment organized by Cosital Valencia and the Anti-Fraud Agency

Courses, Press release

Valencia. March 25, 2021. In order to share reflections and proposals for the necessary measures to redirect the path of unjust enrichment to its exceptionality, the Valencian Anti-Fraud Agency in collaboration with COSITAL Valencia have organized a conference-debate.

Under the webinar format, the session had speakers belonging to both external control bodies: Antonio Mira-Perceval Pastor, Síndic of the Comptes Sindicatura de la Generalitat Valenciana and Carlos Cubillo Rodríguez, Technical Director of the First Department of the Prosecution Section of the Court of Accounts; as an intern: Teresa Moreo Marroig, Delegate Comptroller of the Autonomous Community of the Balearic Islands and Jorge García Hernández, General Comptroller of the Gandía City Council and from the consultative sphere: Patricia Boix Mañó, Senior Legal Counsel of the Valencian Community Legal Council.

The day began with a presentation by Vanesa Felip, president of Cosital Valencia and member of the participation council of the Valencian Anti-Fraud Agency, who thanked the participants for their involvement in a session that brought together 126 attendees from both the online platform and from the AVAF YouTube channel.

The interventions and the subsequent debate, moderated by Irene Bravo Rey, head of the AVAF Prevention Service, made it possible to present different points of view tending to the common objective of minimizing irregularities derived from abusive and recurrent practices of unjust enrichment and their economic treatment Through the exceptional figure of extrajudicial recognition of credits (REC, in the case of local entities), the following can be drawn as the main joint conclusions:

1st) The sector of activity in the public sector where this figure is used most frequently is contracting.

2nd) The main causes of its abuse are the lack of budgetary discipline, standardized administrative procedures and planning.

3rd) In general, the abuse of the path of unjust enrichment would be stopped by applying the principles of good administration and, especially, that of legality. Thus, the procedures provided for in the respective sectoral regulations must be applied both to carry out the order of the provision and to compensate who has executed it (in the case of contracting, the provisions of article 42 of the Law of Public Sector Contracts) .

4th) Other adequate prevention mechanisms to stop irregular practices go through the adequate planning of recruitment, aligned with budgets, as well as the sufficiency, adaptation and training of human resources of intervention services, legal and recruitment managers, without prejudice to raising awareness of the situation throughout the organization, and implementing complaint boxes.

5th) For those exceptional cases in which the REC must be resorted to due to unjust enrichment, a clear legal regulation of its procedure should be articulated, in line with the recommendations of the Audit Reports of the RECs of Local Entities, 2018, made by the Court of Accounts and the Sindicatura de Comptes, as well as in the general recommendation of the AVAF. In this sense, the Balearic Islands have specific regulations.

6th) It would be convenient to reflect on the scope of article 28.2e) of RD 424/2017 on Internal Control, for legal certainty and accommodation to the functions of the intervention.

7th) Mechanisms should be articulated that allow to settle possible responsibilities of the authorities, personnel at the service of the Public Administrations and public and private companies that accept and carry out the orders outside the law. Regarding the former, accounting responsibility stands out, compatible with disciplinary, administrative, transparency and criminal legislation. Always bearing in mind the difficulties of management, especially in municipalities with few resources.

The director of the AVAF, Joan Llinares, closed the day by thanking the participants for their contributions and emphasizing the importance of abiding by the principle of legality and the general principles of contracting to close the door to arbitrariness and, with it, the affectation of fundamental rights such as equality. “This type of conference should serve to avoid the normalization of this practice in our administrations. Speaking publicly about these contracting anomalies is the first step to solve this problem ”, Llinares highlighted in his conclusion.

Finally, it should be noted that one of the functions of the Valencian Anti-Fraud Agency (AVAF) is to prevent fraud and corruption and, for this reason, by Resolution of the Director no. 122/2020, of May 11, approved its general recommendation: “The path of unjust enrichment in the public sector: use or abuse?”, Noting how the use of unjust enrichment, is by nature exceptional, has become a common practice in our public administrations, being an important source of risk of fraud and corruption.

You can access the complete sesssion in this link

The Valencian Anti-Fraud Agency proposes to grant the status of protected witness to persons complaining of corruption in the Draft Law on Criminal Procedure

Press release

Valencia, March 11, 2021.- The Valencian Anti-Fraud Agency has presented a set of allegations in the hearing and public information process opened by the Ministry of Justice in the process of preparing the Draft Law on Criminal Procedure.
The amendments presented by the AVAF are aimed at the new Criminal Procedure Law taking into account the scope of the work that is being carried out with the necessary transposition into the Spanish legal system of the European Directive 2019/1937 on the protection of people who report violations of Union law better known as the whistleblowers directive.
Specifically, it is proposed that the validity of the anonymous complaint be included in the criminal procedure as an instrument to facilitate the knowledge of acts constituting fraud and corruption that may occur in the public sector, as it is clear from the experience of the Agency through its Complaints Box.
Another of the amendments refers to the expansion of the complaint channels from the internal channels that are proposed in the Draft Law, to the inclusion of the external complaint channels as established in the European Directive with the aim of adapting it. to the same.
With regard to the protection of whistleblowers and alerters of facts constituting fraud and corruption crimes, the Valencian Antifraud Agency proposes an extension of the assumptions included in the Draft Law so that not only those cases that pose a risk to “the life, integrity or freedom” of the reporting and alerting persons, but also the cases in which the retaliation as a consequence of having denounced or testified implies an attack on the professional or labor rights, economic or of any other kind.
Linked to the foregoing, it is also proposed that the possibility of granting the status of protected witness be included in those cases in which there is dependence or vulnerability within the work context with respect to the investigated persons or their environment, since it is precisely in this area in which reprisals take place as a result of the complaints filed.
Another of the proposals that is made is the extension of the figure of the repentant in the criminal organization field, as reflected in the current text of the Draft Bill, to cases of corruption and fraud, since in these it is difficult to occasions that the existence of a criminal organization for the commission of crimes can be demonstrated. The inclusion of the figure of the repentant would contribute to the prosecution of fraud and corruption in the public sector with information that is key so that crimes are uncovered and accountability is demanded.
Lastly, the Valencian Anti-Fraud Agency proposes the creation of a statute of protection for the complainant or whistleblower of corruption comparable to the statute of victim. This statute would establish protection measures for the complainant and whistleblower of corruption such as the concealment of their personal data in order to guarantee the confidentiality and protection of the identity of these people, especially during the criminal investigation phase.

Editable note in ODT format
Editable note in DOC format
Amendments presented in the process of preparing the Draft Law on Criminal Procedure

The Valencian Anti-Fraud Agency presents 11 amendments to the new Law of Transparency and Good Governance of the Valencian Community

Press release

Valencia, March 4, 2021.- The Valencian Anti-Fraud Agency has presented a total of eleven amendments to the proposal of the Law of Transparency and Good Governance of the Valencian Community that is currently being debated in the Valencian Parliament.
The first four amendments, all of them referring to article 54, seek a more complete, detailed and coherent regulation with the current regulations of the principles that should govern the actions of the people at the service of the public administrations receiving the Law.
It is proposed to introduce the principles of exemplary, neutrality and good administration, as well as the necessary accountability not only before the internal control bodies but also before external control bodies, in order to achieve a complete supervision of public policies and their management. All of this would give rise to an integrity system that generates the trust of citizens in the functioning of the institutions of the Valencian Community.
It is also intended to extend the scope of operation of the principle of public participation to the processes of elaboration of the norms and not only in relation to the elaboration of public policies, which would facilitate a real and effective participation in public affairs of the group of the society.
Another of the amendments contemplates the possibility that, in the event of potentially constitutive fraud or corruption situations, it may be alerted by making use of the mailbox that this Valencian Anti-Fraud Agency has in operation for this purpose, to enable its adaptation to Directive 2019/1937 of the European Parliament and of the Council of October 23, 2019, regarding the protection of persons who report on Union law, in relation to the institutional regulations of this Agency.
Regarding the regime of incompatibilities, the necessary express reference to the conflict of interest between public and private interests is proposed, both during the exercise of the position, given the need for the former to prevail in decision-making processes, and after its cessation, in order to stop the well-known “revolving doors”.
The AVAF also proposes, in relation to the policies for accepting gifts, that each administration specify in their respective codes of ethics and conduct their limits, specifying, in terms of uses and customs, the maximum thresholds, as well as the main obligations. notification, return, registration and advertising of gifts.
In relation to the elaboration of these codes, the AVAF intends, in its amendment to article 55.1, to lay the foundations of the common ethical content for all public administrations that serves as a framework on which each of the administrations can subsequently adapt it to its special characteristics. and circumstances. Likewise, it is proposed that these codes apply both to people who occupy high positions and to the group of people who work in public administrations.
In its amendment to article 56, the Agency proposes to complete, with different elements and tools, the institutional integrity system of the Valencian Community to be promoted by the Consell, offering to advise on its design and implementation.
Among these elements and tools, the following stand out: the identification of risks contrary to public integrity and their contrast through a self-diagnosis to be carried out by each organization; or the inclusion of minimum contents of the prevention plans, urging their mandatory adaptation and approval by each entity (seeking administrative collaboration for the purpose of the provincial councils to assist local entities with less than 20,000 inhabitants).
All this, with the adequate provision of training actions in matters of public integrity and under the supervision of the ethical infrastructure by the different control bodies, such as the Agency.
Finally, the Agency proposes to complete article 63.2 with the main elements to be taken into account to promote in each administration the culture of planning and evaluation of public policies and their management.

Editable note in ODT format
Editable note in DOC format
Resolution of February 25, 2021, of the Director of the Valencian Anti-Fraud Agency: Approval of the amendments to the Law of Transparency and Good Governance of the Valencian Community.