Jan92023

Embezzlement reform will give carte blanche to impunity

On December 9, 2022, the beginning  of the celebration of the twentieth anniversary of the UN Convention against Corruption was  commemorated.    And precisely this signon December 9, forgetting the progress andbenefits of recent decades in the fight against corruption, has been the moment chosen to introduce into the parliamentary debate a very ill-advised proposal  to reform the crime of embezzlement.

The proposed amendment seeks to  replace the  current regulation of  embezzlement, which is currently configured in the broad concept of  unfair administration of public assets, to return to the limited structure and previous drafting of 1995, which   only  It consideredpunishable the concrete appropriation of public property.

The return to the 1995 newsroom is a real step backwards in the fight against corruption, since it hastaken a clean sweep of all the advances that have been taking shape in the legal regulation of embezzlement over the years, particularly since the United Nations Convention.

1/ Dysfunctions of the 1995 regulation.

The current regulation of embezzlement, of 2015, is upone a  technical improvement a-legal of  notable importance, it should be noted that  the return to the outdated regulation of 1995 will mean going through the disappointment of  the numerous judicial procedures in which, although the existence  of acts of corruption had been proven.  However, it was not  possible  to condemn the technical shortcomings of that regulation.  An example is  the scandal of the municipal funeral home of  a City Council that, valued at more than 7 million euros, was sold at public auction for the shameful amount of € 0.60. And despite the seriousness of the fact, the Supreme Court could not convict, since the crime of embezzlement in the 1995 wording did not typify cases such as the sale of public assets below its price. On the contrary, the current regulation of 2015, in its concept of unfair administration, does allow the punishment of this type of corrupt actions. 

2/ The profit motive and attenuated punitive duality.

Nor is it correct to return tothe outdated concept of profit in embezzlement.  In this type of corruption, the decisive factor is not that  the authority or official profits or tries to benefit a third party, but the damage caused to    the  citizenry.  Embezzlement is a crime of damage to  the administration and public property, which excludes the need  to include a profit motive.

And it is also a  mistake to try to establish atype  of mitigated embezzlementfor those cases in which, without there being a spirit of appropriation, the public patrimony is destined to private and alien uses.   Thediversion of the public from its destination, for the benefit of private uses and those outside the public function,   should not be deserving  of an attenuated penalty. Thus, the technical coldness of criminal typicity deserves in the present case to be put in front of the mirror of  reality and the concrete assumptions of everyday life. This is the case, among other common examples, of a  mayor who cedes the use,  to a private mercantile for  disco activity, of  the ground floor of a public building, initially projectedor destined for a municipal nursery school. The action, very serious,  with the amendment of reform of embezzlement would be configured with a penalty of such a sunor 6 months in prison.

3/ The penalty.

The amendment for the modification of the crime of embezzlement aims to return to the typical regulation of 1995 but maintaining the penalties of 2015,  which does not seem dissuasive or successful and this because  the penalty set in the  comparable legal systems of the European Union turns out to be more severe, a path that should be followed in the internal system.

Thus, under French law the offence comparable to embezzlement, ‘la soustraction et détournement de biens’, is punishable by ten years’  imprisonment;  Article314 punishes the appropriation by an official of money or movable property – both public and private – with imprisonment of three to ten years.

4/ Conclusions.

The intended modification of the crime  of embezzlement means giving carte blanche to impunity in embezzlement, limiting the possibilities of the system fighting against this scourge of democracy.

The return to the 1995 regulation of the crime of embezzlement will mean that numerous actions, which are contrary to the correct administration and the proper use of public assets, will not be duly prosecuted, which will affect the quality of services for citizens, since corruption entails a decrease in the quality of education,  health, social protection and other public sector activities.

 

Juan Vega

Lawyer of the Valencian Anti-Fraud Agency

*This article was published in the newspaper “El Mundo” in its national edition and can be consulted here

https://www.elmundo.es/opinion/columnistas/2022/12/14/6398bb0efc6c834f048b45e5.html

Dec232022

The City Council of Dénia and the Agency sign a protocol to implement the complaint boxes and the Integrity Plan

Valencia, December 21,  2022.- The mayor of Dénia, Vicent Grimalt and the director of the Valencian Anti-Fraud Agency, Joan Llinares, have signed a collaboration protocol between both institutions that will help promote the Integrity Plan in which the City of Dénia is working.

Within the general lines of the Integrity Plan, the implementation of both internal and external complaint mailboxes is contemplated, thus complying with the requirement of the  European Directive 1937/2019 on the protection of people who report breaches of Union Law, better known as the Whistleblowers Directive.

The Aandanointing  of Dénia to enable as an external channel of complaints the mailbox of complaints of the Valencia Antifraud Agency which will be visible on the municipal website;  A mailbox that guarantees the confidentiality of whistleblowers, as well as allows the possibility of being able to make complaints anonymously.

The collaboration between both institutions will  also extend to other actions and activities such as those of a formative nature where the staff of the municipality will receive training in aspects related to the promotion of ethics and public integrity, as well as the prevention and detection of situations constituting fraud and corruption.

Likewise, the Agency will offer advice and support for the preparation of the plan of anti-fraud measures necessary to be eligible for European Next Generation funds  as set out in Ministerial Order 1030/2021 by which the management system of the Recovery, Transformation and Resilience Plan is configured.

For the mayor of Dénia, Vicent Grimalt, “The assessment of the firm is positive, because the City of Dénia works to ensure that, in its scope of action, public funds have been used in accordance with the applicable regulations, in particular, with regard to the prevention, detection and correction of fraud, the  corruption and conflicts of interest. In addition, the City Council has a clear commitment to transparency, for this reason it has achieved the Infoparticipa seal  in the  last two editions and is one of the most transparent municipalities in the Valencian Community.

For his part, the director of the Agency, Joan Llinares, said that “it is positive to see how every day more municipalities  and institutions begin to equip themselves with instruments to fight fraud and corruption and they do so not only with reactive measures such as reporting channels, but also from prevention with training and awareness actions. “

“It is undoubtedly good news that  the City of Dénia will have complaint mailboxes, both internal and external, but more important is if possible that it has committed to approve a municipal Integrity Plan”, added Llinares.

Dec142022

The Consell de Participació of the Agency renews its members and the vice-presidency falls on the Observatori Ciutadà contra la Corrupció

Valencia, December 13,  2022.- The Consell de Participació of the  Valencian Anti-Fraud Agency  has elected Rafael  Mauri  of the Observatori Ciutadà contra la Corrupción as the  new vice president, who replaces Ana María Fuertes of the Foundation for Justice.

The Consell de Participació is the Agency’s participation body and  civic  and social organizations are part of  it that stand out for their fight against fraud and  corruption and for the promotion of ethics and public integrity.

During the session, in addition to the votes for the renewal and  election of the  vice-presidency,  which were made  telematically and present, the professor and doctor in Political Science, Fernando Jiménez, presented the main results of the  1st Survey of Perception of the Corporation in Spain and in the Valencian Community   carried out by the Agency.

The meeting  also analyzed the  current state of the transposition of the European Directive 2019/1937 on the protection of persons who report breaches of Union Law, better known  as the Whistleblower Directive, as well as the draft law currently in process.

The meeting took place in the Sala Vinatea of Les Corts  Valencianes, which is why the President of Les Corts,  Enric Morera, came to greet the members of the Consell de Participació.

The renewal of the members of  the Consell de Participació has been for a new period of three years and  has been constituted by the following organizations: Civic Action against Corruption; Whistleblowers; Valencian Association of Consumers and Users (AVACU);  Fundación Internaiconal Baltasar Garzón (FIBGAR); Foundation for Justice; Observatori Ciutadà contra la Corcorrupción (OCC); Open Society Initiative for Europe (OSIFE); Plataforma Ciutadana Castelló per la Justicia i contra la Corrupció; Trade Union of Technicians of the Ministry of Finance (GESTHA); Tactical Whistleblowers; Transparency International Spain and World Compliance Association.