By Ernesto Suárez Puga
The protection with public recourse of the patrimonial accountability of authorities and personnel on the service of the Public Administration is producing an immense media stir on account of the current public data of a process that has been substantiated earlier than the Courtroom of Accounts. In mentioned process, the declare to demand accountable accountability from sure individuals who, within the train of the place of autonomous authority, would have carried out acts and authorized companies by the way opposite to the Legislation, thus producing a potential harm to the belongings of the Public Administration, is elucidated.
Relating to this process, the query has arisen as as to whether it’s lawful to cowl this accountability with public sources and, particularly, by the imposition, by the Courtroom of Accounts on the alleged perpetrators, of a precautionary assure for the provisional quantity of the harm and pursuits (article 47 of Legislation 7/1988, of April 5, on the Operation of the Courtroom of Accounts) and the next enactment of the Autonomous Decree Law 15/2021, of July 6, creating the Complementary Risk Fund of the Generalitat de Catalunya (hereinafter, DLFCR) by the autonomous authorities of the Generalitat of Catalonia with a view to facilitate the availability of this assure.
The aim of the DLFCR is to cowl, charged to the autonomous public finances, of, amongst others, the obligations that as a consequence of accounting accountability (article 3) they need to assume and assure precautionary
individuals who have or have had the standing of personnel on the service of the Administration of the Generalitat and of the entities and organizations of its public sector, of excessive positions and of members of the Authorities of the Generalitat for actions carried out within the train of their place (artwork.2), supplied they weren’t lined for insurance coverage insurance policies for civil legal responsibility, property and accounting (artwork.1).
To this finish, the DLFCR foresees that mentioned protection shall be properly carried out by means of Counter-guarantee or counter-guarantee charged to a fund endowed with the general public finances of the assure or assure granted by a monetary establishment (artwork. 4.7) or by granting the endorsement or assure straight charged to mentioned fund (1st transitional provision). This hedge fund is meant to be justified based mostly on the precept of indemnity for the authorities and personnel on the service of the Administration.
The authorized dialogue on the validity is due, amongst different causes, to the truth that the fund created would cowl a legal responsibility for harm that will have been exactly triggered to the general public sources with which mentioned fund is fed. In different phrases, the broken public patrimony would act as patrimonial protection for the success of the duty to compensate the harm that will have been triggered to that patrimony.
The hateful incentive to illegal conduct
The omnipresent exercise of the Public Administration is a steady supply of dangers and, subsequently, of possible damages to 3rd events and to its personal belongings. These dangers of the Administration’s exercise are largely because of the acts or omissions of its authorities and / or personnel.
Other than the prevention measures of those dangers that you have to undertake as any citizen or group that carries out a harmful exercise by advantage of the precept nobody damage (Article 1902 CC), the Administration can and may have an curiosity in overlaying the legal responsibility for damages that could be demanded of the authorities and the personnel at its service. Therefore, in precept, it’s completely lawful for the Administration to contract, for instance, insurance coverage that covers mentioned civil legal responsibility together with the availability of bonds.
Now, article 36 of Legislation 40/2015, of October 1, on the Authorized Regime of the Public Sector, after establishing (part 1) the proper of the injured to demand “straight from the corresponding Public Administration compensation for harm and damages attributable to the authorities and personnel at their service ”, it establishes in its part 2 that
“The corresponding Administration, when he has compensated the injured, will demand ex officio by means of administrative channels of its authorities and different personnel at its service the accountability through which incurred by means of intent, or gross fault or negligence, prior instruction of the corresponding process “
That’s, this principle doesn’t ponder that it could possibly proceed, in any case, to offer public protection to the non-public patrimony of the individuals on the service of the Administration who had acted with intent, or negligence or gross negligence andn the era of the harm, be it triggered to that or to 3rd events. Consequently, insurance coverage contracts that, charged to public sources, assure the indemnity of the non-public patrimony of the victims, wouldn’t be legitimate both. That is the elemental downside of the DLFCR: that it permits the Administration to cowl each the precautionary bond and, the place acceptable, the duty to definitively compensate the authorities and servants inflicting the harm when the harm triggered to the Administration itself by the defendants it has been incurring fraud or, not less than, gross guilt or negligence within the sense that they knew or couldn’t ignore that the budgetary sources couldn’t be devoted to selling the independence of Catalonia. Word that the DLFCR acknowledges that these damages will not be insurable when it excludes from its scope the actions of its public authorities which are lined by civil legal responsibility insurance coverage contracts. If they aren’t, it’s usually as a result of insurance coverage contract legislation prohibits insurance coverage firms from overlaying fraud.
As well as, the indemnity of the beneficiaries of this fund is bolstered to the purpose of submitting the delivery of the Administration’s proper to reimbursement to the adepletion of state and worldwide judicial problem channels (sic) (artwork. 6). Thus, the precautionary safety of the indemnity of the general public patrimony is disadvantaged of sensible effectiveness; the duty to deposit or assure the potential accounting tasks supplied for in article 47 of the LFTCU and the executive, accounting or jurisdictional resolutions that impose the patrimonial accountability of the general public authorities and different accountable public servants.
It’s evident that this final circumstance constitutes a severe defect of unconstitutionality of DL 15/2021 since its software would generate, amongst others, the impact of de facto canceling the precautionary safety of the patrimonial indemnity of the Public Administration that the Courtroom of Accounts can and may to endeavor throughout the framework of the train of its accounting jurisdiction, thus opposite to the features that the Structure reserves to this establishment in its article 136. The difficulty just isn’t trivial because the logic of the DLFCR system unjustifiably transfers to the Public Administration the chance of insolvency of the servers that might be liable for damages to the Administration’s sources.
Likewise, it’s unconstitutional that legal responsibility protection extends to fraudulent or significantly culpable actions because it encourages fraudulent infringement of authorized norms by exactly those that have an obligation, not solely to watch them, however to make sure that others they observe them. On this sense, the DLFCR is opposite to constitutional public order as regards the features of the authorities and the Public Administration typically.
It might be objected that within the case of injury to the belongings of the Administration itself there isn’t any within the strict sense harm to 3rd events. Nonetheless, it’s no much less true that the harm to public sources implies not less than an damage to the pursuits of residents since all, by constitutional mandate, are obliged to contribute to the assist of public expenditures (artwork. 31 of the Structure Spanish). Due to this fact, the protection of the compensatory obligations that will correspond to the general public servants who had acted with intent or gross negligence of their era wouldn’t be constitutionally justified in these instances both.
Evaluation of the general public protection of the damages generated by authorities to the belongings of the Public Administration
The DLFCR raises objections whatever the method through which the assure supplied to the civil servants and public authorities of the Catalan Administration who incur, by means of intent or gross negligence, in accounting accountability is carried out.
Thus, within the occasion that what occurs is that the Generalitat straight grants the assure or assure (artwork. 1822 CC) for the advantage of its authorities and earlier than the Courtroom of Accounts, because the assure or assure would have the beneficiary or creditor of the Public Administration whose belongings have been broken by the illegal acts of the authorities or personnel at their service, the assure or surety must be thought-about null by identification between the guarantor and the beneficiary creditor of the assure (in each instances the Catalan Public Administration). The granting of the assure is, in actuality, a waiver by the Catalan Administration to get better the “scope” suffered by the malicious or grossly negligent conduct of its staff. Consequently, this implies of protection explicitly supplied for within the first transitory provision of DL 15/2021 would lack any authorized effectiveness and would impede the precautionary function of guaranteeing the indemnity of public sources of the Administration that’s finally pursued by article 47 of the LFTCU.
Within the occasion that the alleged public protection is instrumentalized by granting a counter-guarantee or counter-guarantee to a 3rd occasion who acts as guarantor or guarantor of the duty to compensate the harm, as is the case of a monetary entity that gives for in article 4.7 of the DL 15/2021, the conclusion is similar as a result of what can’t be finished straight can’t be finished not directly both. The counter-guarantee enterprise between the monetary entity that supplied the assure earlier than the Courtroom of Accounts and the Generalitat can be null and void because it was carried out in fraud of legislation.
And it’s that, if the beneficiary Administration claims compliance to the guarantor, the latter will instantly present a declare for reimbursement or return or, not less than, of insurance coverage or protection (article 1843 CC) for the counter-guarantee acquired from the guarantor Administration itself. On this method, the mere submitting of a 3rd occasion as guarantor would trigger an accounting mirage for the indemnity of public sources as a result of, when the Administration assumes the duty of counter-guarantee of reimbursement of what’s paid by the guarantor, the latter may oppose that obligation earlier than any declare of compliance with the assure by the previous (artwork. 1148 CC).
In any case, if the guarantor have been compelled to conform along with his dedication by any means, there isn’t any doubt that he would have a refund or return motion in opposition to the authorities or personnel of the Administration accountable as a result of finally his dedication ensures the duty to compensate the harm to public sources that must be assumed by these as the primary obligors. And this whatever the potential legal responsibility incurred by the contracting Administration. Or, not less than, and if the counter-guarantee enterprise have been declared null – correctly – it may demand the accountability of the Generalitat as a “legislating state”, because the Authorities can’t fail to know that the DLFCR is unconstitutional.