Prosecution of accounting liability function

Main facade

It is exerted over the accountability of those who collect, arrange, manage, have custody of, handle or use public goods, funds or effects.

In respect of the same facts, it is compatible with the exercise of disciplinary authority and the performance of the criminal justice system. When the facts did constitute a crime, liability will be determined by the accounting jurisdiction within its competence.

Prosecution of the following issues shall not correspond to the accounting jurisdiction:

  1. Cases assigned to the competence of the Constitutional Court.
  2. The issues submitted to the administrative courts.
  3. The facts that constitute an offence or misdemeanour.
  4. The issues of civil, labour or otherwise entrusted to the knowledge of the organs of the judiciary.

    The accounting jurisdiction shall deal with the liability claims, based on the accountability applicable to those responsible for managing public funds or effects, that shall be credited against them when their wilful misconduct or gross negligence originates loses in assets or effects as a consequence to such acts or omissions contrary to the laws governing the budgetary and accounting rules applicable to public sector entities.  It shall also know the liabilities incurred by beneficiaries (whether persons or entities) of grants, loans, guarantees or other aid from that sector.

This accounting liability, which may be direct or secondary, is enforced by three court proceedings: audit trial, repayment for debtor balance proceedings and cancellation of securities record, and is delimited by the specific rules of the Court of Auditors, as well as by implementing doctrine.

The basic legal framework of accounting jurisdiction is composed of:

Thus, the following are default rules in terms of accounting jurisdictional matters:

  1. Law 29/1998, of 13 July, regulating the administrative jurisdiction of the courts.
  2. Law 1/2000 of 7 January on Civil Procedure.
  3. The Criminal Procedure Law (Royal Decree of 14 September, 1882).

Other notable provisions of the LFTCu are:

  • Within the audit trial, the procedure will be developed according to the procedures of the ordinary judicial framework,
  • Regarding the repayment for debtor balance proceedings, the formalities of the declaratory judgement corresponding to the amount of the scope will be followed, according to the Law of Civil Procedure,
  • In terms of forms of termination of accounting court procedures, acceptance of the claim, abandonment and expiry shall be governed by the provisions of the Law governing  administrative jurisdiction,
  • Regarding appeals against directions and orders of the accounting jurisdiction bodies, remedies granted under the Law governing  administrative jurisdiction will be available and the appeal shall be dealt with and decided in the manner provided for the remedy of the same nature under the Law governing  administrative jurisdiction,
  • Appeals for reversal and judicial reviews will be prepared, brought before court, administered and decided upon in accordance with the provisions of the Law governing  administrative jurisdiction, without deposit guarantees being required.

Other provisions of both the LOTCu and the LFTCu determining supplementary provisions of certain rules in the field of accounting jurisdiction refer to the following:

  • Audit Counsellors shall be subject to the same causes of incapacity, conflicts of interest and prohibitions established for judges in the Law on the Judiciary,
  • A referral to the General Regulations for Collection is established (approved by Royal Decree 939/2005, of 29 July) to seize the assets of those alleged to be responsible for accounting, matters,
  • A referral to the Law of jurisdictional conflicts (Law 2/1987 of 18 May) is established to resolve disputes arising between the accounting jurisdiction bodies and the Administration or other jurisdictions,
  • A referral to the Law on the Judiciary (Law 6/1985 of 1 July) is established regarding judicial assistance so that accounting jurisdiction bodies may seek the assistance of judges and courts in all domains to exercise their jurisdictional functions. Such assistance is to be provided as prescribed by the Law on the Judiciary and the procedural rules for jurisdictional cooperation.
  • As to the provisions common to accounting jurisdiction procedures, it is established that the time available for the proceedings of the Court of Auditors shall be that regulated by the Law on the Judiciary regarding the different bodies of the administration of justice.

To this legal framework, we need to add the case law of the Supreme Court and the Constitutional Court and the doctrine of the courtroom to resolve the issues rose through the legally established resources.  Among the case law of the Third Chamber (Administrative Chamber) of the Supreme Court is the STS of 16 July 1988 concerning the jurisdictional function of the Court of Auditors recognized together with the audit function as individual function, without prevalence among them.