Abstract
Working practice demonstrates that, in the recent criminal reforms in Spain, the demand for documentation that by obligation has to be attached to a Draft Bill of Law is only complied with by the competent organs in a “formal or superficial” way, so that not even the new regulation on legislative assessment introduced by Royal Decree 1083/2009 has had an impact on the past two criminal reforms undertaken. Or, trying to be more rigorous in the description of the situation, we can speak of evident and outright incompliance with these requirements in the 2010 reform, and of negligent incompliance in the reform submitted for approval to the Spanish Parliament at the end of 2013, which has been approved by this institution on March 2015. A strong will is therefore missing on the part of the executive powers (as well as the legislative powers, which does not excuse the attitude of the Government) to evaluate its legislation and their effects on society. This weakness is especially serious in the case of criminal norms; all the more so if we take into account that they impact more severely and more seriously on individual freedom, by restricting it.
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Notes
- 1.
Simply to note the launch of the “Working Group on Criminal Policy and Legislation” (at the initiative of Professors Díez Ripollés and Becerra Muñoz and the unconditional subsequent support in organizational tasks from Professors Nieto Martín and Muñoz de Morales Romero), within which the present collective work has been prepared. The Group held its foundational session on 21 June 2013, at the headquarters of the Instituto Andaluz Interuniversitario de Criminología [Andalusian Inter-University Institute of Criminology] at the University of Malaga, and has continued as a “working group” with a presentation (under the title of “Criminal Law Making Policy”) at the “European Society of Criminology” during the recent Conference at Budapest (4–7 September 2013), and with the organisation of two multidisciplinary Seminars on Legislative Evaluation in Ciudad Real on 17 December 2013 and 30 June 2014.
- 2.
The same happens in Germany, as may be understood from the empirical research conducted by Floerecke 1992, pp. 48–51, as well as p. 53 ff.
- 3.
Looking briefly at the theoretical perspective, it has been affirmed that “the iter of internal legislative processes does not follow a lineal process, as its phases take effect and are produced in accordance with political momentum itself; hence neither is the doctrine in agreement when setting the phases of such a process in terms of more or less fixed classifications” (Montoro Chiner 1989, p. 90). Thus, for example, for Kindermann (1976, p. 299), inspired in the model of Noll (1973, p. 72 ff.), this process would be composed of the following phases: impulse; definition of the problem; plan of the objectives to achieve; plan of the various regulatory alternatives; reduction of alternatives; and “ex-post” monitoring.
As may be seen, an operation pertaining to what we might call the “post-legislative phase” is included here, such as “ex-post” monitoring of the new regulation; but it is not the only model that it contemplates, as Hassemer et al. (1978, p. 13) include in their proposal for the criminal field, in addition to the earlier ones, the planning phases of execution, verification and control of the success of the regulation.
- 4.
Díez Ripollés points out that it should be an acknowledged social failing, which implies the rejection of apparent dysfunctional social situations, that is, situations that are not empirically-socially proven.
- 5.
Quoting Mader (1995, p. 66 f.), Galiana Saura has point out: “with regard to the decision over regulatory intervention, the legislator has to determine whether a ‘necessity’ or social problem exists or not that should be regulated. A regulatory problem exists when certain social actors perceive stress between an existing situation and when they call on the legislator to resolve that stress”.
- 6.
In the same sense, Díez Ripollés (2003, p. 45) notes that “over two thirds of legislative decisions emanate from bills of law”.
- 7.
Which we shall examine infra.
- 8.
On the value of “explanatory statement”, see, for example Ezquiaga Ganuzas 1988 and its accompanying bibliography.
- 9.
In fact, “unfortunately, the Constitutional Court has not attached the value to article 88 of the Constitution that it undoubtedly has so that lawmakers may inform themselves sufficiently well of the matter with which they are dealing” (Sainz Moreno 2006, p. 27).
- 10.
In the opinion of the author (Becerra Muñoz 2013, p. 394 f.), “for greater transparency in the decision-making process, the references to ‘necessary background’ should be removed and exclusive reference should be made to the ‘report, a document that would have to comprise:
-
an account of the events that motivate the drafting of the bill. It would not be a question of repeating the list of factual background information and points of Law that were set established in the explanatory statement, but to refer to whoever promoted the initiative to sponsor the draft bill (a ministerial order, an electoral commitment of the Government, a request from a specific ministry, etc.);
-
an explanation of the measures that are instituted since the identification of such a need, which would include the request for reports from public and private bodies, as well as individuals and collectives within and outside the administration, meetings held, research carried out and requested;
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a chronogram of measures in which the measures that are taken over time are listed, since the works on the matter began”.
According to the author, “an arrangement such as the one pointed out assists a documentary map in which, including the explanatory statement, all the elements have a particular space and an intrinsic value for the information that they contain. At the same time, we avoid the apathy of the legislator, destined to filling in documents the content of which is superimposed and the vagueness of which in the regulation allow him, moreover, to shirk his responsibility when preparing norms supported by a satisfactorily constructed decision-making process.
-
- 11.
These are the “consultations, opinions and reports” referred to in particular under article 22.3 of the Law of Government, “which could be requested from scientists, experts, public organisms, administrations, consultative bodies of the central and regional Administrations, public and private associations, collectives, professional colleges and, even, the general population through questionnaires, surveys, and referenda. All of these fit perfectly in the aforementioned expression”. In particular, the author refers to the convenience of including “studies of Comparative Law” here (Becerra Muñoz 2013, p. 406 f.).
- 12.
“With reference to the criminal material, it is a question of reports prepared by constitutional bodies, such as the General Council of Judicial Power and the Council of State” (Becerra Muñoz 2013, p. 409).
- 13.
The norm in question also introduces a change in responsibilities, which is to attribute the competences corresponding to the analysis of the normative impact to the General Directorate of Administrative Organization and Procedures of the Secretary of State for the Public Function of the Ministry of the Presidency, removing those competences from the State Agency of Public Policies and Service Quality. In short, the responsibility of driving and encouraging the completion of impact analyses of the new draft bills is passed on to the General Directorate, and that is without prejudice to the collaboration that may be requested from the Agency in matters concerning the encouragement of quality and the improvement of public services.
- 14.
That is, “a method used to evaluate the costs and consequences of the promulgation of each law and to evaluate the draft bills of new laws that apply organisms and institutions from all member states of the EU” (Karpen 2006, p. 57).
- 15.
With the aim of “guaranteeing and approving a draft law, the information needed to estimate the impact of the norm on its recipients and agents is used. To do so, it is essential to justify the need and the advisability of the planned regulation, to assess the different alternatives that exist for the achievement of the ends that are sought and to analyze in detail the legal and economic consequences, especially on competences that will be passed to the agents in question, as well as their impact from a budgetary point of view, their gender implications, and in the constitutional order of the distribution of powers” (Exposición de Motivos del Real Decreto 1083/2009, de 3 de julio).
- 16.
The drafted text of the relevant Bill of Law is included here.
- 17.
Which will include the detailed list of the regulations that would be repealed as a consequence of the entry into force of the regulation.
- 18.
Which will include the impact on sectors, collectives, and agents affected by the norm, including the effect on competence, as well as the detection and measurement of administrative loads.
- 19.
Where the results that may be followed after the approval of the bill are analysed and assessed from the perspective of equal opportunities and their contribution to the achievement of the objectives of equal opportunities and equal treatment between men and women, on the basis of the baseline indicators, the forecasted results and the impact assessment covered in the Methodological Guide.
- 20.
When it is considered that the normative proposal will not have appreciable impacts on any of the fields, so that the presentation of a complete report is not needed, an abbreviated report will be prepared that should include, at least, the following sections: appropriateness of the regulation, list of the norms that are repealed, budgetary impact and gender implications.
- 21.
That is, without “taking away from the Plenary Committee the establishment of the catalogue of offenses and their corresponding penalties, the definition of the basic system of responsibility or the system of crimes”.
- 22.
It has also to be taken into account that “in the institutional field, there are procedures which, in some way, refer back to Parliament certain information on the degree of efficacy of the decisions that are taken. Without any attempt at drawing up an exhaustive list, the following may be pointed out: the submission of accounts to Parliament on the degree of formal compliance of budgetary laws by the bodies (a type of Court of Auditors), specifically foreseen for that purpose; reports to Parliament by the Parliamentary committees (a type of Ombudsman), in which the problems that some members of the public reported in relation to regulatory incompliance or administrative barriers were analysed; the parliamentarians (basically from opposition groups), who channelled, through questions and participation in Parliamentary debates, those aspects that, in their opinion, represented a lack of accommodation between the legislative programme of the Government and that which really took place; as well as the requests submitted to the Chambers that arose from collective initiatives or from individual members of the public” (Galiana Saura 2008, p. 288).
- 23.
According to Karpen (2006, p. 72) “the person responsible for preparing these two directives were the Minister of the Presidency”. A situation that led the author to affirm that “the present-day situation is that Spain has two administrative centres responsible for controlling the decentralized system of drafting pre-legislative texts and other general legislation”, referring both to the Ministry of the Presidency and to the Ministry of Justice, which may only be said in relation to the latter since 2014.
- 24.
That documentation was obtained through the Documentation Department of the Congress of Deputies [Spanish Lower Chamber].
- 25.
Together with the opinions and reports of, first of all the General Council of Judicial Power (156 pages), with the Audit Committee in second place (248 pages) and, finally, the only mandatory report, from the Council of State (219 pages), which had to report on the presence of modifications in the Bill related to the transposition of community Law.
- 26.
This was the full text: “In accordance with the second paragraph of section 2 of article 22 of Law 50/1997, of 27 November, from the Government, introduced by Law 30/2003, of 13 October, Bills of Law should be submitted with a report on the gender implications of the measures that they establish.
In this respect, it is necessary to highlight that the reform of the penal Code, at present at the committee stage, reinforces the criminal protection of women and girls. This circumstance is evident through the numerous measures that are now pointed out as follows.
Although it is true that the passive subject of offences against sexual orientation and gender identity can be a man as much as a woman, it is undoubtable that women are affected to a greater extent by these sorts of conduct. Therefore, the amplification of penalties and the definition of new behaviours that threaten sexual orientation and gender identity, action on which is pursued by this reform, impacts directly on greater protection of women in the Penal Code. This situation is repeated with the specific criminal definition of the crime of human trafficking.
It is also necessary to underline the special criminal protection afforded to women and children on the basis of the modifications introduced to offences that are committed during armed conflict, such as those who commit offences against the sexual orientation of a protected person through acts of rape, sexual slavery, forced or involuntary prostitution, forced pregnancy, forced sterilization or any other form of sexual aggression, as well as those that recruit or enlist children of under 18 years in age or use them to participate directly in those conflicts.
It should also be highlighted that the criminalization of the behaviour of clients involved in the prostitution of children will lead to greater protection of girls and young women under the age of consent, given that the percentage of the population that is sexually exploited in networks is far greater among the female than it is among the male population.
In conclusion, the proposed legislation has a positive impact, given that it will contribute to greater protection of women and girls”.
- 27.
The aforementioned documentation may be obtained through the “Documentation Department” of the Congress of Deputies or Spanish Lower Chamber.
- 28.
I therefore once again exclude from this consideration the Report from the Council of State (this time with a length of 138 pages), the Report from the General Council of Judicial Power (also with a length of 174 pages).
- 29.
In the chapter dedicated to economic and budgetary impact, empirical data are presented to give us an idea of the scope of this “overload” involved in the processing of these petty offences: “the suppression of petty crimes is, in itself, a reform from which a positive economic impact will be likely. Recently, the General Council of Judicial Power proposed the decriminalization of petty crimes as one of the paths that should be explored to reduce litigation and thereby to unlock resources tied up in the courts of justice. According to the available statistics, almost 71 % of the total number of cases admitted in 2010 in all the jurisdictions were of a criminal nature and, in turn, the Courts of First Instance –which try the majority of petty crimeshad taken cognizance of 3,448,548 of the 6,639,356 cases (almost 52 %) that were processed under criminal law in 2010”.
- 30.
Although the introduction of “criteria for opportunities that allows the Courts and Tribunals, at the request of the Office of the State Prosecutor, to renounce the prosecution of behaviours that, even though they may be offences, are however of minor consequence in relation to which their prosecution is not in the public interest”.
- 31.
In reality only one of the multiple criminal reforms pointed to “an evaluation standard” in one of its Additional Provisions: Organic Law 7/2000, of 22 December, in reform of Organic Law 5/2000, of 12 January, on the criminal liability of children. Legislation that Tamarit Sumalla rightly brands as a “sarcastic anecdote”, as it contains “a surreal mandate to the future legislator to penalize certain crimes with greater vigour, leaving it understood that the results of the evaluation are known beforehand”. (Tamarit Sumalla 2007, p. 4).
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Rodríguez Ferrández, S. (2016). Legislative Evaluation in Spain: Its Necessary Application in the Approval of Criminal Law Reforms. In: Nieto Martín, A., Muñoz de Morales Romero, M. (eds) Towards a Rational Legislative Evaluation in Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-319-32895-9_4
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