We are pleased to welcome this guest post from Ana Terán
The illegal financing of political parties is a corruption problem which affects the democratic system of some European countries, including Ireland. New legislation is being adopted in order to fight against this kind of corruption. It would be interesting to get an approach to the legislative measures adopted in other countries to deal with this problem, such as the criminal arrangements in the Spanish jurisdiction.
The Spanish Constitution refers to the political parties as private associations which perform constitutional functions and express political pluralism, contribute to the formation and expression of the will of the people and being an essential instrument for political participation.
In order to meet their financial needs, political parties can resort to sources of private or public financing. In the specific case of private financing, political parties coupled with their private donors have to meet specific requirements regarding the donations. These requirements have some limitations in the amount of money which can be transferred to a political party from a single donor and specific prohibitions. All these requirements are designed to guarantee the independence of political parties. If we let a private donor control a large amount of the financing of a political party this will create a dependency from the political party to the donor. Following this situation, donors easily could control the will of political parties, influencing on the democratic system and preventing political parties from meet their constitutional functions. Subsequently, regulating the illegal financing of political parties the lawgiver is seeking to protect the constitutional functions assigned to the political parties which are part of the correct operation of the democratic system.
In order to protect the constitutional functions of political parties the Spanish lawgiver has introduced a specific criminal offence relative to the illegal financing of political parties into the Spanish Criminal Code in 2015. However, before having this specific criminal offence since 2015, the illegal financing problem in the political parties had been an alarming issue in the Spanish society. Therefore it is also interesting to acquire knowledge about how the Spanish criminal legislation is used to deal with this problem before 2015.
We could find two different ways to punish somehow the illegal financing of political parties before 2015. Both possibilities punish actions committed around the illegal financing, but they do not punish the illegal financing by itself. Subsequently, in spite of the possibility to convict people for actions committed in the environment of the illegal financing of political parties, we should not forget that not until 2015 were the constitutional functions of political parties protected by the Spanish criminal law.
On the one hand, when there is a case of illegal financing in a political party, some actions which fit in different criminal offences can be committed. Typically, when the donor gives money to the political party in order to attain some advantage from the public administration, the action will fit in the criminal offence of bribery. Another situation would be when politicians use their position to influence on members of their own political party to take advantage from the public administration in order to obtain financing from private donors. Politicians and private persons could also be punished for fraud when the illegal financing is undertaking using public grants fraudulently. Finally, another response from the Spanish Criminal Code is the criminal offence of embezzlement of public funds when they are used to financing political parties.
On the other hand, there is a special criminal offence in the Spanish Electoral Legislation which punishes the distortion of electoral accounting. This criminal offence could be interesting somehow to indirectly punish the illegal financing due to the distortion of electoral accounting can be made it with the aim of hide or obtain illegal financing. In any case, this criminal offence would only punish indirectly the illegal financing undertook in the environment of electoral financing.
Eventually, in 2015 the Spanish lawgiver has placed a specific criminal offence which punishes the illegal financing. At this point we can wonder, if the illegal financing of political parties had been such an alarming problem, why the Spanish lawgiver had waited until 2015 to place this criminal offence. The answer has two reasons. First of all, there is a conflict of interest due to the lawgiver, which is in charge of shaping the criminal offence, is formed by political parties, which can be punished by the criminal offence. To a great extent, this fact has delayed the regulation of the illegal financing.
Additionally, the phenomenon called in Spanish “legislación reactiva” had influenced on the fact of the criminal offence have placed in 2015. This phenomenon involves the behaviour of the lawgiver caused by an alarming case covered by social media which deeply worries all of society. When this happens the lawgiver suddenly will adopt legislation in order to show the society they are working to fix the actual problems of the society. In Spain there has been one case which affected the political party which was in the government at that moment and which caused an important alarm in the society. However, this phenomenon shows a significant issue which consists in the fact that the sudden legislation typically shows a lack of quality due to the insufficient amount of time and effort spent on the design the arrangements.
Looking at the structure of this new criminal offence, the people who can commit the offence are the private donor, the political party, the person who receives the funds in behalf of the political party and even the person who perform the role of a middleman amongst the political party and the private donor. What is forbidden by this criminal offence are the private donation with an anonymous donor, with a specific target, revocable, and those which are over €50,000 or come from a legal entity.
Certainly, the criminal offence referred to the illegal financing of political parties means an improvement in the Spanish criminal law, due to offers protection for an important constitutional function which used to be unprotected. Despite of this fact this criminal offence could be improved in order to protect the constitutional functions of political parties completely. Thereby, there is no punishment for the cases which involve public funds, the illegal financing of entities closely linked or subordinated to political parties, or another ways of financing different from donations. Moreover, not only has the criminal offence forgotten a wide range of situations which can damage the constitutional functions, also the own structure of the criminal offence shows aspects which could be improved. For example, the criminal offence establishes a higher punishment when the amount of the donation adds up to over €500,000. However, this is such a high amount of money that this arrangement is not likely to be applied.
It is clear that designing a specific criminal offence in order to protect the democratic system is an improvement on any legislation; however to achieve this is not an easy task. Subsequently, any lawgiver interested in offering protection to the democratic system should perform this task cautiously and spending the necessary time and efforts to attain a solid arrangement about the matter.
Ana Terán, Visiting Researcher, School of Law, University of Limerick.
Criminal Justice in Ireland 