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.

Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-9768

FELIPE VI King of Spain to all that the present join together and act.

Know: That the Cortes Generales have approved and I come in to sanction the following law: preamble the Spanish Constitution provides in its preamble the will of the nation to establish an advanced democratic society. The principle of publicity of public actions is part of the principles that should govern the actions of all Governments to give effect to this objective.

The principle of publicity of court proceedings and judgements handed down by the courts is enshrined in article 120 of the Spanish Constitution. It is a principle that linked with the principle of judicial transparency and public control of the process, these are designed as fundamental guarantees of the same. The organic law 6/1985, of 1 July, the Judicial Branch, in its article 232, collects the general principle of publicity of court proceedings, and article 235 bis establishes with regard to statements access to the text of them, setting a series of limitations. Also your article 260 makes an express reference to the possibility that, by law, the mandatory advertising of judicial decisions is established.

Limits on access have been analyzed by the doctrine of the Constitutional Court and the Supreme Court, which have been clarifying the principle of publicity in the case of court rulings. Thus, the Constitutional Court has considered that the disclosure of personal data contained in the Court judgments, especially in criminal matters, may constitute an illegitimate interference in the right to privacy. Similarly, the Supreme Court has limited the general principle of publicity of the process in the case of the sentence, to understand that there are other rights such as the honour or privacy right that they can collide with this principle.

All of these rights, although constitutionally enshrined are not absolute, but they are legal configuration, and as such the legislator can introduce exceptions and limits for reasons of interest public and especially when collide with other values also referred to in the Constitution, limits that must respond in any case to the principles that inform the right to the protection of personal data contained in the organic law 15/1999 of 13 December, of personal data protection and in particular the principle of proportionality, the accuracy and the storage of data, as noted by the Spanish Agency of data protection.

In short, when legally set the scope that should have access to the data contained in the Court judgments, it is necessary to properly assess the different interests that are intended to safeguard. Indeed, in many countries of our environment, as well as in other cases of comparative law indicates sentence advertising reaches rule even to the personal data of the parties, considering that your access is protected by the principle of procedural publicity, having made certain precautions just in terms of further treatment through automated databases of case law. So much so, that at European level including the appointment of jurisprudence is by reference to the parties involved therein, whether natural or legal persons.

In the specific case of the crimes related to tax evasion, against the interest of the convicted person, the public interest rises. It has to be taken into account that the legal protected in these cases has been elevated to constitutional rank in article 31 of the Spanish Constitution, which is relevant when making that weighting in this area, because there is no forget has the constitutional duty of contributing to the sustainability of public spending and reverse the right to the whole of society to demand the fulfillment of tax obligations , as well as the control of the activity of all public authorities aimed at combating tax fraud, concretion in this area of the general principle of transparency that should report the activity public and especially the judicial action.

The change that is made in this law is cohonesta with the law of partial modification of the law 58/2003, of December 17, General tax, which regulates the possibility of publishing the identity of those who cause major economic damage to public finances, and thus society as a whole, introducing important exceptions to the general tax reserve principle set out in article 95 bis of the same , exception reporting precisely in the light of those principles. As well, in connection with such modification, and as indissociable complement it, focuses which now is entered in this text, since it would be incoherent that I was published the identity of people who by some or other reasons have ceased to pay their tax obligations and remain however precisely hidden of big fraudsters sentenced in judgment for crimes of this nature.

However, the tax proceedings and the judicial proceedings are governed by different principles. The first by confidentiality, subject to the exceptions which are determined by law, the second, the Court, by advertising, subject to the exceptions provided for in the organic law of the Judicial power. So, unlike what happens in the field of tax, regulation of access to the information contained in the judgments should be done by law.

On the other hand, it should be noted also that the sentences imposed for the Commission of crimes related to tax evasion have important relevance outside the process, as different standards establish consequences to such convictions in the area of public procurement, subsidies and aid public or intervention and discipline of financial institutions, whose only application is effective if it is carried out a publicity , even partially, of the same.

Advertising of both administrative and criminal sanctions has been incorporated into our legal system in various fields which is predicated on a special protection. This is the case in the financial sector, in the field of prevention of occupational risks and recently with regard to the penalties committed by officials, where it has been observed the effectiveness of such measures in relation to the purpose to be achieved.

In view of the foregoing, the present law ponders adequately the rights of the convicted person and the other participants in the process to the privacy and protection of your data in accordance with the jurisprudence of our Court and the Court of Justice of the European Union, because access is limited to the data of the convicted person or the civil responsibility and not all and only with respect to the definitive judgments.

The law consists of a single article amending the organic law 6/1985, of 1 July, the judicial branch, a single transitional provision and three final provisions.

Single item enters a new article 235 ter in the organic law of the Judicial power, whose first paragraph recognizes the public's access to the failure of the convictions in particularly relevant materials for fiscal control in this organic law: crimes against the Treasury, offences punishable insolvency, when the creditor is the public purse or Finally, smuggling offences, allowing public access to certain personal data of the convicted person or the civil responsibility in these cases.

In the second section develops the previous forecast, by establishing that public access shall be carried out through the publication of a summary conviction that contains only data allowing identification of the process, of the convicted person and civil officer, the offence which has been, as well as the penalty and the amount of the liability imposed. Rights to the protection of data of other persons who had been involved in the process, but that are not affected by the sentence, limiting the advertising scope to what is strictly necessary to meet the purpose are fully safeguarded in this way. Extract and advertising shall be made by the clerk of the Court, who, in accordance with stated in the articles 452 and following of the law organic 6/1985, of 1 July, the Judicial power, assumes the function of judicial public faith in exclusive and it has also taken important functions relating to enforcement of judgments under the terms established by the procedural laws.

Advertising will be made through the «Official Gazette of the State", by which data shall have the additional guarantee that involves the application of its specific rules, preventing an improper treatment of them thanks to the desindexacion of the data.

On the other hand, to ensure that it can be effective within a reasonable time, included a single transitional provision allowing for the application of the rule to all the sentences that are handed down from its entry into force. A retroactivity is thus introduced average permissible given the procedural and non-sanctioning the extent and in accordance with the constitutional doctrine concerning the extent of the retroactivity with regard to the rules governing criminal proceedings.
Thus, although discussed possible sanctions the advertising character of the criminal conviction, having been pointed out on occasion that advertising is an additional penalty, this is not the treatment that has been given by the legislation and jurisprudence. It is no doubt that certain procedural steps which may have a negative connotation to the accused or convicted; Thus, the public character of the oral judgment is sometimes an additional burden for the accused, who is forced to endure the so-called penalty bench, but that burden does not grant itself sanctioning nature to the rules that regulate the necessary presence of the defendant in the trial and its public nature, but are considered procedural burdens resulting from the application of the principles and procedural guarantees.

In other cases, the criminal code has established that the conviction under certain offences is subject to advertising. Despite its regulation in this standard, the criminal code itself set these assumptions as part of the concept of reparation of the damage caused and therefore denying its sanctioning nature in these cases, and may cite in this regard article 216 relating to the crime of slander and libel. In such cases, the legislator has pondered the existence of other interests in conflict, such as the need to repair full the legal protected in each case, authorizing for these so-called advertising failure and this without having to set it up as part of the sanction, but as part of civil liability, as such their nature in such cases.

In the event of tax fraud-related offences, there are various reasons of public interest that underlie the reform which is intended to promote, as outlined above. The purpose is to strengthen the aforementioned principles of court publicity, transparency and effectiveness of the public activities that by be constitutionally enshrined and guarantors of the achievement of the general interests, must prevail in this case on individual rights to privacy or data protection in this particular area. We cannot forget that in the scope of the tax evasion the legal protected is itself a public good, which reinforces the also public relevance of crimes committed in this particular field to others. In any case, reform legal proposal introduces the necessary guarantees to ensure the proper proportionality of the measure, thus providing consistency due to the new model of tax data advertising laid down in article 95 bis of the law 58/2003, 17 November, General tax, whose nature in no case can be considered sanctioning power.

As pointed out by the Council General of the judiciary in its 167/2015 report, (...) It can be said that projected regulation is a general interest, insofar as it is intended to achieve certain objectives of administrative and judicial efficiency and maximum transparency, where is not projected any criminal conviction, but rather on those relating to tax fraud, as well as those derived from crimes of hoist of goods, punishable insolvency and smuggling that have as subject harmed the Treasury i.e. offences which have a clear and manifest impact on the fulfilment of constitutional duty referred to in article 31.1 CE.

To achieve a uniform treatment of the situations provided for in tax legislation and in accordance with the recommendations made by the General Council of the Judicial power in the same report, is introduced also an exception to access advertising, in cases in which has been satisfied prior to the firmness of the sentence the totality of the amount corresponding to the injury caused to the Treasury for all concepts.

Through the corresponding first final provision, the statement is incorporated as ordinary law a new additional provision fourth organic law 12/1995 of 12 December, suppression of smuggling, through which rules of procedure within the scope of the practice of customs and tax, measures of debt liquidation precautionary and heritage research.

Finally, it includes a repealing provision, while the remaining final provisions allude to skills title under which this law is issued, and its entry into force, respectively.

Single article. Modification of the organic law 6/1985, of 1 July, the judiciary.

Added a new article 235 ter in the organic law 6/1985, of 1 July, the judiciary, with the following wording: the articles 305, 305 bis and 306 of the organic law 10/1995» , 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 disappointed creditor would have been public finances.

(c) article 2 of the organic law 12/1995 of 12 December, suppression of smuggling, whenever there is an injury to the State Treasury or the European Union.

2 in the cases provided for in the preceding paragraph, the court clerk will issue certified in which shall be entered the following data: to) that allow the identification of the judicial process.

(b) name or corporate name of the convicted person and, where appropriate, of the civilian controller.

(c) the offence for which had sentenced him.

(d) the penalties imposed.

(e) the amount corresponding to the injury caused to the Treasury by all concepts, as set out in the judgment.

Through the diligence of management the court clerk will order their publication in the "official bulletin of the State".

«3. the provisions of this article shall not apply in the event that the condemned or, where appropriate, responsible for civil, had met or consigned account deposits and consignments of the competent judicial authority the entirety of the amount corresponding to the prejudice caused to the Treasury by all concepts, prior to the firmness of the decision.»

Sole transitional provision. Transitional arrangements.

The provisions of this organic law shall apply to the sentences handed down after its entry into force.

Sole repeal provision. Repeal legislation.

The entry into force of this law all provisions which is contrary to the provisions of the same are hereby repealed.

First final provision. Modification of the organic law 12/1995 of 12 December, suppression of smuggling.

Amending the final disposition second organic law 12/1995 of 12 December, of suppression of smuggling, which is worded in the following way: «second final provision. 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 additional provision, the fourth additional provision, paragraph 2 of the single transitional provision and (2) of the first final provision of this law have the character of ordinary law.»

Second final provision. Skill-related title.

This organic law is run under the protection of competition which, in procedural legislation, applicable to the State in accordance with article 149.1.6. ª of the Spanish Constitution.

Third final provision. Entry into force.

The present law shall enter into force two months after its publication in the «Official Gazette».

Therefore, command to all Spaniards, private individuals and authorities, which have and will keep this organic law.

Madrid, 10 September 2015.

PHILIP R.

The Prime Minister, MARIANO RAJOY BREY