The Civil Service in Public Administration

Posted on Oct 27, 2024 in Law & Jurisprudence

Sanctions

The Administration’s Power to Sanction: The Public Administration (PA) holds the authority to impose sanctions. The fundamental principles governing this power, as well as the corresponding rights of citizens, are derived from the Constitution and administrative law. The European Commission (EC) ensures that citizens receive equal treatment from the PA. These principles are enshrined in Articles 127 to 133 of the LRJAP-PAC, and include:

  • Rule of Law: Article 127.1 of the LRJAP stipulates that the sanctioning power of the government, as recognized by the Constitution, is exercised only when specifically authorized by a law. Point 2 of this article mandates that disciplinary powers are exercised by the designated bodies according to legal provisions. It establishes the right of citizens not to be penalized except by a competent authority. This power to impose sanctions does not extend to disciplinary authority over personnel employed under contract.
  • Principle of Non-Retroactivity: Article 128 of the LRJAP dictates that applicable penal provisions are those in force at the time of the offense. Penal provisions can be applied retroactively only if they are more favorable to the alleged offender. This principle is grounded in Article 25.1 of the Constitution, which states that no one can be convicted for acts or omissions that were not considered a crime, misdemeanor, or administrative offense under the law at the time they were committed. Additionally, Article 9.3 guarantees the non-retroactivity of unfavorable or restrictive punitive provisions.
  • Principle of Legality: Article 129 of the LRJAP establishes that only violations explicitly defined by statute constitute administrative offenses. Penalties can only be imposed for committing these offenses and must be within the limits prescribed by law. Analogy cannot be used to define offenses. This requires a specific law to determine not only the actions constituting the violation but also their classification into categories of mild, severe, and very severe.
  • Principle of Proportionality: Article 131 of the LRJAP states that administrative sanctions, whether or not they involve financial penalties, cannot include imprisonment. Sanctions must be designed to ensure that committing the offense is not more advantageous than complying with the violated rules. Criteria for determining the severity of the penalty include: intent, repetition, the nature of the harm caused, and recidivism (commission of a similar offense within one year of a previous final decision).
  • Principle of Non Bis in Idem: Article 133 of the LRJAP prohibits the imposition of multiple punishments (criminal or administrative) for the same offense when the subject, act, and legal basis are identical. Paragraph 2 of this article stipulates that facts established by criminal judgments are binding on the administration in sanctioning procedures. Simultaneous criminal and administrative proceedings are also prohibited, leading to the suspension of the administrative procedure. An exception to this principle allows for both criminal and administrative sanctions for the same offense committed by government employees, due to their special relationship with the administration. However, the Constitutional Court has determined that this is permissible only if the legally protected interests are different and the penalty is proportionate to that protection.
  • Principle of Presumption of Innocence: Article 137 of the LRJAP mandates that sanctioning procedures respect the presumption of innocence until proven otherwise. Facts recorded by officials with authority have probative value, but the accused has the right to present evidence to defend their rights and interests. The administration must provide the suspect with a proposal outlining the evidence against them. In accordance with Article 24.2 of the Constitution, the right to presumption of innocence includes the following rights: not to be punished except on the basis of legally obtained evidence, and not to bear the burden of proving innocence (the administration must prove guilt, and any failure to do so results in acquittal).

Prescription

  • For offenses: 3 years for very serious offenses, 2 years for serious offenses, and 6 months for mild offenses.
  • For penalties: 3 years for very serious penalties, 2 years for serious penalties, and 1 year for mild penalties.
  • The limitation period for offenses begins on the day the offense was committed.
  • The initiation of disciplinary proceedings suspends the limitation period, which resumes if the proceedings are stalled for over a month for reasons not attributable to the alleged offender.

The Civil Service

The basic statute defines public employees as those who work for the government to serve the general interest. They are classified as follows:

Career Officials

Career officials are civil servants who, following a legal appointment, are permanently linked to the public administration to perform paid professional services.

Interim Officials

Interim officials are appointed to perform the duties of career officials in specific situations of necessity and urgency, under the following circumstances:

  • Vacancies that cannot be filled by career officials
  • Temporary substitution of officials
  • Implementation of temporary programs
  • Excessive workload for a maximum period of six months within a twelve-month period

Workforce

The workforce comprises individuals who provide paid services to the government under a written employment contract. These contracts can be fixed-term, temporary, or indefinite.

Temporary Personnel

Temporary personnel are appointed on a non-permanent basis to perform functions classified as trust-based or special advisory roles. Their appointment and removal are discretionary, and their status does not provide access to public or internal promotion. Temporary personnel are subject to the general scheme for civil servants.

Professional Managers

Professional managers hold leadership positions in the government, as defined by specific regulations for each administration. Their appointment is based on merit, ability, and suitability criteria, through procedures that ensure transparency and competition. Senior management is subject to performance evaluations based on effectiveness and efficiency, with accountability for managing and controlling their performance against established objectives. The determination of employment conditions for managers is not subject to collective bargaining. When managers meet the requirements for contracted staff, they are subject to the special employment regime for senior management.

Access to Public Service: Regulatory Principles, Requirements, and Selection Systems

Principles of Merit and Ability

Article 103 of the Spanish Constitution states that access to public service is regulated by law in accordance with the principles of merit and ability. Article 55 of the Evaluation Committee further states that all citizens have the right to access public employment based on the constitutional principles of equality, merit, and ability.

Conditions of Access to the Civil Service

Government officials and staff are selected through procedures that guarantee the constitutional principles outlined in Article 55 of the Evaluation Committee, as well as the following:

  • Public announcement of positions and selection criteria
  • Transparency
  • Impartiality and professionalism of selection committees
  • Independence and technical discretion of selection committees
  • Alignment of selection processes with the functions and tasks to be performed
  • Efficiency and objectivity in the selection process

Requirements for Admission to Entrance Examinations

The following requirements are necessary for admission to public service entrance examinations:

  • Spanish nationality, except as provided in Article 57 of the Evaluation Committee
  • Ability to perform the required functions
  • Age between sixteen and the maximum age for compulsory retirement
  • No prior dismissal from public service through disciplinary action

Selection Systems

The primary selection systems for career officials are competitive examinations and, exceptionally, public tender.

Acquisition of Career Civil Servant Status

Career civil servant status is acquired by fulfilling the following requirements:

  • Successful completion of the selection process
  • Appointment by the competent authority, published in the relevant official gazette
  • Oath of allegiance to the Constitution and, where applicable, the relevant Statute of Autonomy and other legislation
  • Taking possession of the position

Causes for Loss of Career Civil Servant Status

The following are grounds for losing career civil servant status:

  • Resignation
  • Loss of Spanish nationality
  • Retirement
  • Disciplinary dismissal
  • Criminal conviction or disqualification from public office