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Law 10/2015, 10 September, Which Regulates Access To And Advertising Of Certain Information Contained In The Judgments In The Field Of Tax Fraud.

Original Language Title: Ley Orgánica 10/2015, de 10 de septiembre, por la que se regula el acceso y publicidad de determinada información contenida en las sentencias dictadas en materia de fraude fiscal.

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TEXT

FELIPE VI

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Cortes have approved and I come to sanction the following organic law:

PREAMBLE

The Spanish Constitution provides in its Preamble to the will of the Nation to establish an advanced democratic society. The principle of publicising public action is part of the principles that must govern the action of all public authorities to make that objective effective.

The principle of advertising for judicial proceedings and judgments handed down by the courts is enshrined in Article 120 of the Spanish Constitution. It is a principle that guarantees the principle of judicial transparency and public control of the process, which are designed as fundamental guarantees of the process. Thus, in Article 232 of the Organic Law 6/1985 of 1 July 1985, the general principle of the advertising of judicial proceedings is taken into account and Article 235 bis provides for access to the text of the judgments. setting a number of limitations. In addition, Article 260 makes a specific reference to the possibility that, by law, the mandatory advertising of court judgments should be established.

The limits of access have been analyzed by the doctrine of the Constitutional Court and that of the Supreme Court, which have been tinged with the principle of publicity in the case of judicial rulings. Thus, the Constitutional Court has considered that the disclosure of personal data contained in judicial rulings, especially in criminal matters, may constitute an illegitimate interference in the right to privacy. Similarly, the Supreme Court has limited the general principle of advertising of the process in the case of the judgment, by understanding that there are other rights such as the right to honor or privacy that may collide with this principle.

All these rights, although constitutionally enshrined, are not absolute, but are of legal configuration, and as such the legislator may introduce exceptions and limits for reasons of public interest and especially when They are in collision with other values also mentioned in the Constitution, limits that must in any case respond to the principles that inform the right to the protection of personal data contained in the Organic Law 15/1999, of 13 of December, for the Protection of Personal Data and especially the principle of proportionality, the accuracy and the preservation of the data, as pointed out by the Spanish Data Protection Agency.

In short, in order to legally configure the extent to which access to the data contained in the judgments must be made, it is necessary to adequately weigh the various interests that are intended to be safeguarded. In fact, in many countries of our environment, as well as in other cases of comparative law, it is observed that the advertising of the judgment generally reaches even the personal data of the parties, considering that their access is protected by the principle of procedural advertising, certain channels having been carried out only in respect of their subsequent treatment through automated databases of case-law. So it is that, at European level, even the reference to the case-law is made by reference to the parties involved in it, whether they are natural or legal persons.

In the specific case of crimes related to tax fraud, in the interest of the sentenced person, the public interest is increased. It should be noted that the legal good protected in these cases has been elevated to the constitutional rank in Article 31 of the Spanish Constitution, which is relevant when it comes to carrying out this weight in this area, since it does not apply. to forget that the constitutional duty to contribute to the maintenance of public expenditure has as its reverse the right of the whole of society to demand the fulfilment of the tax obligations, as well as to the control of the activity of all the public authorities to combat tax fraud, in this area of the general principle of transparency which must inform public activity and in particular judicial action.

The modification made in this Organic Law is cohonest with that of the Law of Partial Modification of Law 58/2003 of 17 December, General Tax, which regulates the possibility of publishing the identity of those who cause a greater economic damage to the public finances, and thus to the whole of society, by introducing important exceptions to the general principle of the tax reserve laid down in Article 95a of the Treaty, with the exception of the fact that the such principles. In connection with such an amendment, and as an indissociable complement to it, the text now being introduced, since it would be inconsistent for the identity of those for some or other reasons to be published, is to be published. pay their tax obligations, and yet it will be hidden precisely that of the great fraudsters, convicted in a firm sentence for crimes of this nature.

However, tax actions and legal actions are governed by different principles. The first ones for confidentiality, except for exceptions that are determined by law, the second, the judicial, by the publicity, except for the exceptions provided for in the Organic Law of the Judiciary. In such a way that, unlike in the tax area, the regulation of access to the information contained in the judgments must be made by organic law.

On the other hand, it should also be noted that the convictions imposed by the commission on crimes related to tax fraud have an important relevance outside the process, since different rules establish consequences. such convictions in the field of public procurement, grants and public aid or intervention and discipline of financial institutions, the application of which is only effective if an advertising is carried out, even if it is partial, of the same.

The advertising of both administrative and criminal sanctions has been incorporated into our legal order in different areas of which special protection is preached. This is the case in the financial sector, in terms of the prevention of occupational risks and recently in relation to the sanctions committed by the high offices, where the effectiveness of this type of measures has been observed in relation to the pursued.

In the light of all of the above, this Law will properly put the rights of the convicted and the other participants in the process to the privacy and protection of their data in accordance with the jurisprudence of our Courts and the Court of Justice of the European Union, since access is limited to the data of the sentenced person or of the civil liability and not of the rest of the subjects and only in respect of the final judgments.

The Law consists of a single amending article of the Organic Law 6/1985, of July 1, of the Judiciary, a single transitional provision and three final provisions.

In the single article, a new article 235 ter is introduced in the Organic Law of the Judicial Branch, whose first paragraph recognizes the public nature of the access to the ruling of the firm sentences in the matters particularly relevant for tax control: offences against the Public Finance, punishable insolvency offences, where the creditor is the public purse or, finally, the offences of smuggling, allowing in these cases access public to certain personal data of the sentenced person or of the civil liability.

In the second section the previous forecast is developed, establishing that public access will be carried out by the publication of an extract from the conviction that contains only the data that allow identification of the trial, of the sentenced person and of the civil liability, the offence for which it has been committed, as well as the penalty and the amount of the civil liability imposed. In this way, the rights to the protection of data of other persons who could have participated in the process, but which are not affected by the conviction, are fully safeguarded, limiting the scope of advertising to what is strictly necessary to comply with the intended purpose. The extract and the publicity shall be carried out by the Judicial Secretary, who, in accordance with the provisions of Articles 452 et seq. of the Organic Law 6/1985, of July 1, of the Judicial Branch, exclusively assumes the function of public faith. The Court of Justice has also assumed important functions in the enforcement of judgments in the terms laid down by the procedural laws.

The advertising will be carried out through the "Official State Gazette", so that the data will enjoy the additional guarantee that the application of its specific regulations entails, preventing an improper treatment of the same thanks to the deindexing of the data.

On the other hand, in order to ensure that it can be effective within a reasonable time, a single transitional provision allowing the application of the rule to all judgments that are issued from its entry into force is included. This is thus introduced a medium retroactivity which is admissible given the procedural and non-sanctioning character of the measure and in accordance with the constitutional doctrine concerning the scope of the retroactivity in relation to the rules governing the the criminal proceedings.

In this way, while the possible sanctioning of the publicity of the criminal conviction has been discussed, it has been pointed out on occasion that the publicity is an additional penalty, that is not the treatment that has been given to him by legislation and case law. It is clear that certain procedural measures may have a negative connotation for the accused or convicted; thus, the public nature of the oral judgment is sometimes an additional burden on the defendant, who is obliged to bear the referred to as a penalty, but such a burden does not in itself provide sanctioning the rules governing the defendant's necessary presence in the oral trial and its public character, but are considered to be procedural burdens arising from the application of the procedural principles and guarantees.

In other cases, the Criminal Code has established that the conviction under certain offences is the subject of publicity. In spite of its regulation in this standard, the penal code itself configures these assumptions as part of the concept of reparation for the damage caused and therefore, denying in these cases its sanctioning nature, being able to cite in this sense article 216 on the offence of injury and slander. In such cases, the legislator has weighted the existence of other conflicting interests, such as the need to completely repair the legal good protected in each case, authorizing for these supposed the publicity of the ruling and without the need of set it up as part of the sanction, but as part of the civil liability, as such is its nature in such cases.

In the case of crimes related to tax fraud, there are several reasons of public interest that support the reform that is intended to be promoted, as has been stated above. The aim pursued is to strengthen in this area the principles of judicial advertising, transparency and effectiveness of the public activities mentioned above, which are constitutionally enshrined and will be the guarantee of the achievement of the In this case, there is a need to take precedence over individual rights to privacy or data protection. It should not be forgotten that in the area of tax fraud the legal good is itself a public good, which reinforces the public's relevance of the crimes committed in this particular area in relation to others. In any case, the proposed legal reform introduces the necessary guarantees to ensure the appropriate proportionality of the measure, thus giving due coherence to the new model of advertising of the tax data provided in the Article 95a of Law 58/2003 of 17 November, General Tax, the nature of which in no case can be regarded as sanctioning.

As the General Council of the Judiciary has pointed out in its 167/2015 report, " (...) it can be said that the proposed regulation serves a general interest, while it is intended to achieve certain objectives of administrative and judicial efficiency and maximum transparency, in so far as it is not planned on any criminal conviction, but on those relating to tax fraud, as well as those arising from offences involving the raising of property, punishable insolvency and This is the only way to get the public finances to be smuggled, that is to say, crimes that have a clear and manifest effect on the fulfilment of the constitutional duty referred to in Article 31.1 EC. "

In order to achieve a uniform treatment of the situations provided for in the tax regulations and in accordance with the recommendations made by the General Council of the Judicial Branch in the same report, an exception is also introduced the advertising of access, in cases where the whole of the amount corresponding to the damage caused to the Public Finance by all the concepts has been satisfied before the judgment has been established.

Through the corresponding final disposition, the declaration is incorporated as an ordinary law of a new additional provision fourth in the Organic Law 12/1995, of December 12, of Smuggling Pressure, through laying down rules of procedure in the field of the practice of the settlement of the customs and tax debt, for the adoption of precautionary and patrimonial measures.

Finally, a derogation provision is included, while the remaining final provisions refer to the title of competence under which this organic law is issued, and its entry into force, respectively.

Single item. Amendment of the Organic Law 6/1985, of July 1, of the Judiciary.

A new article 235 ter is added in the Organic Law 6/1985, of July 1, of the Judiciary, with the following wording:

" 1. Access to the personal data contained in the rulings of the firm sentences is public, where they have been dictated by the offences provided for in the following articles:

(a) Articles 305, 305a and 306 of the Organic Law 10/1995 of 23 November of the Criminal Code.

b) Articles 257 and 258 of the Organic Law 10/1995, of 23 November, of the Criminal Code, when the creditor defrauded would have been the Public Finance.

(c) Article 2 of the Organic Law 12/1995 of 12 December, of Smuggling Pressure, provided that there is a disservice to the State Public Finance or the European Union.

2. In the cases provided for in the previous paragraph, the Secretary-Judicial shall issue a certificate stating the following information:

(a) Those that permit the identification of the judicial process.

(b) Name and surname or social name of the convicted and, if applicable, of the civil liability.

c) Crime for which you would have been convicted.

d) The penalties imposed.

e) The amount corresponding to the damage caused to the Public Finance by all the concepts, as established in the judgment.

The Judicial Secretary will order his publication in the "Official State Gazette".

3. The provisions of this Article shall not apply in the case where the sentenced person or, where appropriate, the civil liability, has satisfied or entered into the account of deposits and consignations of the competent judicial body the whole amount corresponding to the damage caused to the Public Finance by all the concepts, prior to the firmness of the judgment. "

Single transient arrangement. Transitional arrangements.

The provisions of this Organic Law will apply to the sentences handed down after their entry into force.

Single repeal provision. Regulatory repeal.

The entry into force of this Organic Law shall be repealed with all provisions that are contrary to the provisions of this Law.

Final disposition first. Amendment of the Organic Law 12/1995, of December 12, of Smuggling Pressure.

The second final provision of the Organic Law 12/1995, of December 12, of Smuggling Pressure is amended, which is worded as follows:

" Final Disposition Second. Character of the law.

Article 4 of Title I, the precepts contained in Title II, as well as paragraphs 2 and 3 of the first provision, the fourth additional provision, paragraph 2 of the single transitional provision and paragraph 2 of the final disposition of this Law are of the ordinary character. "

Final disposition second. Competence title.

This Organic Law is dictated by the jurisdiction that, in matters of procedural law, corresponds to the State in accordance with article 149.1.6. of the Spanish Constitution.

Final disposition third. Entry into force.

This Organic Law will enter into force two months after its publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this organic law.

Madrid, 10 September 2015.

FELIPE R.

The President of the Government,

MARIANO RAJOY BREY