Tema 18 - Administrativos - SAS - Servicio Andaluz de Salud - Volumen 1

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Overview of Law 40/2015

Legal Framework

• Law 40/2015 regulates the legal framework governing the public sector, focusing on administrative responsibility.

Key Principles of Responsibility

• The law addresses two main axes: external relations with citizens and internal functioning of administrations.

Objectives and Scope of Law 40/2015

Purpose of the Law

• Article 1 establishes the legal bases for public administration responsibilities and sanctioning powers.

Subjective Scope

• Article 2 outlines that the law applies to various levels of government including state, regional, local administrations, and institutional public sector entities.

Public Administration Principles

General Principles (Article 3)

• Public administrations must serve general interests objectively while adhering to principles such as effectiveness, decentralization, and coordination.

Specific Principles Include:

• Effective service delivery to citizens with clarity and proximity.

• Emphasis on transparency, accountability in management, planning by objectives, and evaluation of results.

Intervention Principles in Public Administration

Regulatory Measures (Article 4)

• Administrations must apply proportionality when limiting individual rights or imposing requirements for activities.

Accountability Measures:

• Justification is required for any restrictive measures taken in pursuit of public interest while ensuring non-discriminatory treatment.

Principles of Public Administration Liability

Overview of Administrative Responsibility

• The discussion focuses on the principles of patrimonial responsibility established in Article 32 of the LRJSP, which will be explored in greater detail in Topic 19.

• Individuals have the right to compensation from public administrations for any damage suffered to their property and rights due to normal or abnormal functioning of public services, except in cases of force majeure or damages that individuals are legally obligated to bear.

Conditions for Compensation

• For a claim to be valid, the alleged damage must be real, economically assessable, and specifically related to an individual or group.

• Individuals are entitled to compensation for damages resulting from non-expropriatory legislative acts when specified within those acts.

Legislative Implications

• The state's liability may arise under certain conditions outlined previously, such as damages stemming from unconstitutional laws or violations against European Union law.

• If a law is declared unconstitutional and causes injury, compensation is warranted if a final judgment has been issued against the administrative action causing harm.

Requirements for Claims

• Compensation claims require that:

• The norm must confer rights upon individuals.

• Non-compliance must be clearly characterized.

• There should be a direct causal relationship between the breach by the administration and the damage suffered by individuals.

Judicial Effects and Procedures

• A ruling declaring a law unconstitutional takes effect from its publication date unless stated otherwise.

• The state’s liability regarding judicial administration is governed by Organic Law 6/1985 concerning judicial power.

Compensation Determination Process

Ministerial Responsibilities

• The Council of Ministers determines compensation amounts when there is an acknowledgment of abnormal functioning in processing constitutional appeals or questions.

• The Ministry of Justice oversees this process with input from the State Council while adhering to procedures set forth in public administration laws regarding third-party damages during contract execution.

Abstention and Recusal Principles

Ensuring Impartiality in Administrative Procedures

• The LRJSP aims to ensure that officials involved in administrative decisions do not have personal interests affecting their impartiality.

Grounds for Abstention

• Articles 23 and 24 outline abstention criteria where officials must refrain from involvement if they have personal stakes or conflicts related to matters at hand.

Specific Reasons for Abstention

• Officials must abstain if they:

• Have personal interest in the matter being resolved.

• Are administrators of entities involved or have pending litigation with interested parties.

Procedural Abstention and Recusal in Administrative Law

Key Concepts of Procedural Abstention

• The text discusses the conditions under which administrators or legal representatives must abstain from participating in procedures due to conflicts of interest, such as personal relationships with involved parties.

• It highlights that having a close friendship or open enmity with any party involved necessitates abstention from intervention in administrative processes.

• Additionally, prior involvement as an expert witness or service relationship with interested parties can also trigger the need for abstention.

Recusal Procedures

• Interested parties may initiate recusal at any point during the procedure if they believe grounds exist for it, as outlined in Article 24 of the LRJSP.

• A written request must be submitted detailing the reasons for recusal; this initiates a review process by a superior authority.

• If the recused individual acknowledges the conflict, their replacement is mandated; otherwise, a decision will be made within three days based on relevant reports and checks.

Principles Governing Sanctioning Authority

Principle of Legality

• The sanctioning power of public administrations is only valid when explicitly recognized by law and follows established procedures (Article 25).

• This principle ensures that sanctions are not arbitrarily imposed but are grounded in legal frameworks.

Irretroactivity

• Current sanctioning provisions apply to actions occurring at the time of infringement; however, retroactive effects favoring defendants are permitted (Article 26).

• This means that if new laws are more lenient than previous ones, they can benefit those accused under older statutes.

Principle of Typicity

• Only actions defined as administrative infringements by law can incur penalties (Article 27).

• Infringements are categorized into minor, serious, and very serious offenses according to statutory definitions without analogical application allowed for sanctions.

Responsibility

• Both individuals and entities can be held accountable for administrative infractions if legally recognized (Article 28).

Overview of Administrative Sanctions and Procedures

Legal Framework for Damages and Responsibilities

• The determination of damages caused will be enforced by the relevant sanctioning authority if compensation is not paid within a specified timeframe.

• When multiple parties are jointly responsible for an obligation established by law, they will be held jointly liable for any infractions and imposed sanctions, with individual penalties possible based on participation.

Types of Infractions and Penalties

• Regulatory laws may classify the failure to prevent administrative infractions as an infraction itself, particularly for those in dependent relationships.

• According to Article 29 of the LRJSP, administrative sanctions must not lead to deprivation of liberty; monetary penalties should ensure that committing infractions does not benefit the offender more than compliance would.

Criteria for Imposing Sanctions

• The appropriateness and necessity of sanctions must align with the severity of the infraction when determining penalties.

• Key factors in sanction assessment include culpability, persistence in infringing behavior, nature of damages caused, and prior offenses within a year.

Special Cases in Sanction Application

• If one infraction leads to another, only the most severe penalty will be applied. Continuous infractions can result from multiple actions violating similar regulations under a premeditated plan.

Prescription Period for Infractions

• Infractions have specific prescription periods: very serious (3 years), serious (2 years), and minor (6 months). Monetary penalties follow similar timelines.

• The prescription period begins from when an infraction occurs or ends in cases of continuous violations. Initiating administrative procedures interrupts this period.

Concurrent Sanction Considerations

• No double sanctions are allowed for acts already penalized administratively or criminally if there is identity in subject matter. European Union sanctions must also be considered when imposing new ones.

Procedural Aspects of Sanctioning

• The sanctioning procedure has distinct characteristics compared to general procedures outlined in various articles of Law 39/2015 regarding public administration processes.

Procedural Competence and Initiation of Sanctioning Procedures

Key Aspects of Procedural Competence

• A competent organ is defined by regulatory norms to initiate procedures, ensuring no sanctions are imposed without due process.

• New sanctioning procedures cannot commence for ongoing infractions until a first resolution has been reached.

Agreement on Initiation

• The initiation agreement must be communicated to the procedure's instructor and interested parties, including the accused and the complainant when applicable.

• Essential elements in the initiation agreement include identification of responsible individuals, facts leading to initiation, potential qualifications, and corresponding sanctions.

Instructor Identification and Rights

• The initiation agreement should identify the instructor and secretary of the procedure, detailing their recusal rights. It also indicates which body holds resolution authority under relevant regulations.

• The document must inform about provisional measures taken by the competent organ at initiation and outline rights for allegations submission within specified timeframes.

Handling Allegations

• If no allegations are made within the designated period regarding the initiation content, it may be treated as a resolution proposal if it clearly addresses responsibility issues.

• In cases where initial qualification lacks sufficient evidence at initiation, this can be addressed later through a charge sheet notification to involved parties.

Resolution Proposals in Sanctioning Procedures

Recognition of Responsibility

• If an infringer acknowledges responsibility during a sanctioning procedure, it allows for immediate resolution with appropriate sanctions applied. This includes pecuniary or non-pecuniary penalties based on justification provided for any non-monetary sanctions proposed.

Voluntary Payment Implications

• Voluntary payment by the alleged infringer before resolution leads to termination of proceedings except concerning restoration or compensation for damages caused by infringement actions.

Reduction Policies

• For purely monetary sanctions, competent authorities may apply reductions up to 20% on proposed fines; these reductions can accumulate but require withdrawal from administrative actions against said sanction for effectiveness. Regulations may allow further increases in reduction percentages as well.

Finalization Process in Sanctioning Procedures

Proposal Formulation Post-Investigation

• Upon concluding investigations in sanctioning procedures, instructors will draft a proposal that must be communicated to interested parties outlining procedural transparency and timelines for submitting counterarguments or additional documentation needed for consideration.

Establishment of Facts

• The proposal will detail proven facts along with legal qualifications determining responsible individuals and suggested penalties based on evaluated evidence presented during investigations while considering any provisional measures previously adopted throughout proceedings.

Resolution Procedures and Administrative Sanctions

Overview of Resolution Procedures

• The declaration of non-existence of infringement or liability indicates that no facts outside those determined during the procedure will be accepted, regardless of their legal valuation.

• If the competent authority finds that the infringement or sanction is more severe than proposed, they must notify the involved party to submit any relevant allegations within 15 days.

• The resolution concluding the procedure becomes executive when no ordinary administrative recourse can be filed against it; precautionary measures may be adopted to ensure its effectiveness until it is executed.

Suspension and Legal Recourse

• A provisional suspension can occur if the interested party expresses intent to file a contentious administrative appeal against the firm resolution in an administrative context. This suspension ends if no appeal is filed within the legally established timeframe.