EUROPEAN COMMISSION Brussels, 20.7.2021 SWD(2021) 710 final COMMISSION STAFF WORKING DOCUMENT 2021 Rule of Law Report







Country Chapter on the rule of law situation in Spain Accompanying the COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2021 Rule of Law Report







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Abstract The Spanish justice system continues to face some challenges. In particular, the lack of renewal of the Council for the Judiciary persists in the absence of an agreement in Parliament to renew a number of constitutional bodies. A welcome development was the withdrawal of a proposed reform of the system for the selection of its judges-members that would have increased the perception of the Council as vulnerable to politicisation. In this context, calls were made for establishing a system of election of the judges-members of the Council by their peers in line with European standards.It is important that European standards are taken into account and that all relevant stakeholders are consulted. Concerns have also been raised regarding the competence of the Supreme Court for criminal liability of high-level positions, as well as the incompatibilities regime for judges and prosecutors. Several measures to improve the quality of justice have been adopted or are envisaged, such as the revisions of the legal aid system and of the Code of Criminal Procedure, as well as three draft laws on procedural, organisational and digital efficiency. The digitalisation of justice is progressing. There have been efforts to address backlogs such as the creation of new courts, but the low number of judges per inhabitant is a challenge. Concerns in relation to the autonomy of the prosecution service from the Government have been reiterated. Spain continues improving the institutional and legal framework to prevent and combat corruption. Anti-corruption measures follow a strategic line of action but there is not a dedicated anti-corruption strategy that would guide preventive and repressive measures to fight corruption in a comprehensive manner. As regards the repression of corruption, corruption is criminalised under the Criminal Code and a number of dedicated institutions are in place. Prosecution authorities note that the lack of adequate resources affects the speed of the investigation and prosecution of corruption cases, including high-level corruption cases. As regards the prevention of corruption, Spain continues to improve its integrity framework and has committed to develop legislation on key areas including lobbying transparency, a Code of Ethics for civil servants, and the protection of whistleblowers. The new code of conduct for all members of Congress and Senate was adopted in October 2020, and a new Parliamentary Office for Conflicts of Interest monitors the parliamentarians’ compliance. As regards media freedom and pluralism, the Government is taking steps to address issues on access to information. Challenges remain in relation to transparency of media ownership. Concerns about the functional independence and resources of the audio-visual regulator were raised during the transposition of the revised Audio-Visual Media Services Directive. The Government has taken some measures to support media financially in the context of the COVID-19 pandemic. Journalists have continued to face challenges in their professional activities, but initiatives have been adopted to facilitate their work. As regards checks and balances, the new Fourth Open Government Plan sets renewed commitments in relation to public participation, transparency, accountability and public integrity. The Autonomous Regions were designated as competent authorities for the implementation of the emergency measures related to the COVID-19 pandemic. The Ombudsperson, in function ad interim since 2017, has received an exponential increase of the number of complaints on measures taken to fight against the COVID-19 pandemic. Challenges remain for the civil society space, and a revision of the Citizen Security Law is ongoing, in light of the concerns raised. Several initiatives aimed at developing a rule of law culture, such as education programmes on justice for students, have taken place.

I.Justice System The Spanish judicial system is composed of courts of general jurisdiction and specialised courts, and is structured in accordance with the territorial organisation of the country. The Supreme Court is the highest judicial body in all areas of law. The Constitutional Court has jurisdiction over constitutional matters, as well as individual applications concerning due respect for fundamental rights. The General Council for the Judiciary, established by the Spanish Constitution, is the body of judicial self-governance, and ensures the independence of courts and judges. As such, it does not form part of the judiciary itself. It exercises disciplinary action and is competent to appoint, transfer and promote judges, as well as responsible for the training and recruitment of judges. The public prosecution service is integrated in the judiciary with functional autonomy, and pursues the mission of promoting justice in defence of the law, the rights of the citizens and the general interest. The Prosecutor General is appointed by the Head of State, upon proposal of the Government, following the consultation of the General Council for the Judiciary. Spain participates in the European Public Prosecutor’s Office. The Local Bars are public law organisations of professionals, independent from the public administration and do not depend on the budgets of the public authorities, nor are their assets public. They have competences for the organisation of the profession and professional deontology, and approve their own code of ethics. Independence The level of perceived judicial independence in Spain is low amongst both the general public and companies. Overall, 38% of the general population and 39% of companies perceive the level of independence of courts and judges to be ‘fairly or very good’ in 2021. Both figures have decreased in comparison to 2020 (44% for the general public and 42% for companies), but they have increased in comparison to 2016 (30% for the general public and 33%), showing no clear trend during the last five years. Concerns over the lack of renewal of the Council for the Judiciary persist, while some recent developments triggered calls for election of its judges-members by their peers. The Council for the Judiciary has been exercising its functions ad interim since December 2018, thus prolonging the concerns that it might be perceived as vulnerable to politicisation, as already referred in the 2020 Rule of Law Report. The Parliament is responsible for the appointment of all its members; that is subject to a qualified majority of three fifths. Since 2018, negotiations between the main political parties are in a stalemate and there has not been significant progress to reach an agreement, despite numerous calls to proceed with the appointments. On 13 October 2020, two parliament groups tabled a draft law aimed at changing the election system of the judges-members of the Council to an absolute majority in the event of a second vote. Following criticism by stakeholders, the legislative process of the law was suspended and in May 2021 the parliamentary groups sponsoring the draft law withdrew it formally. This was welcomed, as the draft law would have increased the perception of the Council as vulnerable to politicisation. On 25 March 2021 the Parliament passed a law establishing an ad interim regime for the General Council for the Judiciary that adapts its functions when acting with an expired term of office. This law entered into force on 30 March 2021. The new law prevents, among others, the acting Council from making appointments for top judicial positions. The Constitutional Court has been seized to ascertain the constitutionality of the reform. In the context of the withdrawn reform amending the system of election, calls were made for establishing a system of election of judges-members by peers. Some associations of judges called for the 12 judges-members of the Council to be directly elected by their peers according to Council of Europe’s standards, and the Council of Europe recalled that the European standards provide that at least half of the Council’s members should be judges elected by their peers from all levels of the judiciary. It is important that these European standards are taken into account and that all relevant stakeholders are consulted. There are concerns related to the competence of the Supreme Court for criminal liability of high-level positions, and the incompatibilities regime for judges and prosecutors. There are competence rules ratione personae in Spain on privileged jurisdiction in matters of criminal responsibility of members of the Government and the legislative and judicial branches (the so-called ‘aforamiento’). The Group of States against Corruption (GRECO) recognises the independence and impartiality of individual judges and prosecutors; it has also underscored the very broad terms of the regime of the aforamiento in Spain and recommended the need for revision of the system. Moreover, stakeholders have criticised the fact that the incompatibilities regime for judges or prosecutors does not provide for ‘cooling-off periods’ for judges or prosecutors having been members of the executive or legislative powers. According to GRECO this situation raises questions from the point of view of the separation of powers and regarding the necessary independence and impartiality of judges in reality and in appearance. The autonomy of the prosecution service continues to raise questions and be discussed. The Prosecutor General has publicly called on the need to reform the statute of the prosecution service to provide it with greater autonomy in terms of organisation, budget, internal regulation and training. According to the Prosecutor General, a new professional statute should also look into the relations between the Government and the Prosecutor General, as well as its method for appointment, as also expressed by multiple stakeholders. As mentioned in the 2020 Rule of Law Report, the coincidence in the term of office of the Prosecutor General and the Government may affect the perception of independence. In October 2020, the Code of Ethics for the Prosecutorial Career was approved. The Code sets principles and ethical obligations for prosecutors in relation to, among others, the use of social media and interventions in the media, training, conflicts of interest and assets declarations, and internal relations. Stakeholders have welcomed the adoption of the Code, but continue pointing to the need to update the disciplinary regime for prosecutors and judges. A new statute for lawyers highlighting their independence has been approved. The new statute was adopted on 2 March 2021. The General Council of Spanish Lawyers was involved in the legislative process. The statute highlights the independence of lawyers and it sets new provisions regarding professional secrecy. The statute provides that chambers of lawyers shall be democratic, autonomous, and transparent. Under the new statute, chambers are obliged to publicise their services online. It also sets provisions in relation to the right to training and the promotion of gender equality in the legal profession. The provisions of the new statute appear to be consistent with Council of Europe recommendations. Quality The Parliament adopted a new law strengthening the legal aid system. Spain is among those Member States having a higher number of legal aid cases per 100 000 habitants, although it has one of the lowest budgets allocated per case. On 9 March 2021, a royal decree on free legal aid was approved, strengthening the pre-existing system. The royal decree reinforces provisions in relation to data protection, sets the frequency of payment in certain Autonomous Regions that have not taken over powers in the management of the Justice system, and establishes the creation of the National Council for Free Legal Aid, with the objective of promoting the coordination of the implementation of legal aid among public authorities with justice competences. The law seems to be consistent with Council of Europe guidelines in relation to quality assurance mechanisms, organisation of legal aid schemes and availability of legal aid providers and data collection. A proposal for the revision of the Code of Criminal Procedure allocating the lead of judicial investigations to prosecutors has been tabled. On 24 November 2020, the Government tabled a law reforming the Code of Criminal Procedure. The draft law changes the system for judicial investigation, which would be led by prosecutors instead of investigative judges, as it is now the case. The draft law envisages the creation of the investigative prosecutor and judges responsible for procedural guarantees. The victim is given a specific statute and provisions on protection to minor and disabled people are foreseen to be put in place. Stakeholders have welcomed the proposal, although it has been raised that additional autonomy and resources would be needed for prosecutors to take charge of the judicial investigation tasks. Additional courts have been created in response to the consequences of the COVID-19 pandemic, but the low number of judges per inhabitant is a challenge. During the state of alarm declared on 14 March 2020, the activity of courts was limited for three months and procedural deadlines were suspended. To deal with the consequent increased backlog and the foreseeable increase of litigation, 19 new courts have been established since December 2020 and 14 more will be set up by the end of 2021. The new courts will mostly deal with social, commercial and administrative cases. However, in general, the number of judges per inhabitant remains one of the lowest in the EU, which could also affect the efficiency of the Spanish justice system. The budget per capita for the justice system and the budget as a percentage of GDP have not changed since 2017 and both figures are around EU average. Further investments and projects on the digitalisation of justice are ongoing. The use of ICT tools is well established in the justice system, and the digitalisation process has been further accelerated due to the COVID-19 pandemic. Electronic communication tools in courts are fully in place, with examples of different tools, such as an IT tool that automatically transforms recording of trials and hearings into text, data oriented justice projects, legal certainty in videoconferencing, electronic and automatic proceedings such as notifications. However, stakeholders have continued to point at shortcomings in relation to interoperability issues between the management systems used in the different Autonomous Regions. Spain is receiving support from the EU in the context of the project Promotion of cyber justice in Spain, current phase II and phase III: that will include a component exclusively focused on quality and a feasibility study for a quality management software. Efficiency

The efficiency of justice in Spain has continued experiencing challenges. The clearance rate for litigious civil and commercial cases increased in 2019, and it is getting closer to 100%. However, the disposition time in civil, commercial, and administrative cases in first instance did not consolidate a positive trend and remains high; for civil and commercial cases in the Supreme Court it noticeably increased since 2018, reaching 681 days. The rate of resolving administrative cases decreased. The number of pending litigious civil, commercial, and administrative cases is high and it has steadily increased since 2016. The Government has continued taking a number of legal initiatives aimed to increase the efficiency of the justice system. On 15 December 2020, the Government tabled a law on the procedural efficiency of the public service of justice. The law includes measures to shorten the length of procedures in all four jurisdictions while preserving the procedural guarantees of citizens as well as the establishment of appropriate alternative means of dispute settlement. In addition, on 20 April 2021, a law on the organisational efficiency of the justice system was tabled. The draft law envisages the transformation of the unipersonal courts into 431 Instance Tribunals (Tribunales de Instancia), the implementation of the Judicial Office throughout the State, and the creation of Justice Offices within the municipalities that will replace the former Peace Courts (Juzgados de Paz). The Government is also working on a draft law on the digital efficiency of the justice system, planned for summer 2021, which would enhance the legal provisions in relation to data management and allow for inter-operability of applications within the justice system. II.Anti-Corruption Framework In Spain, the Anti-Corruption Prosecutor’s Office (ACPO) performs the investigation, detection and prosecution of corruption with the assistance of Law Enforcement Agencies (LEA) Attached Units – from the National Police and the Civil Guard - and Support Units of the State Tax Administration Agency (AEAT) and the General Intervention Board of the State Administration (IGAE), all of whom contribute with analytical work. The National Anti-Fraud Coordination Service oversees anti-fraud measures and conducts investigations at national level while several Autonomous Regions have their own offices to fight fraud in their territories. The Office of Conflicts of Interest oversees asset declarations for Government officials and political appointees. Meanwhile, rules on transparency, access to public information and good governance are monitored by the Council of Transparency and Good Governance. The perception among experts and business executives is that the level of corruption in the public sector remains relatively low. In the 2020 Corruption Perceptions Index by Transparency International, Spain scores 62/100 and ranks 9th in the European Union and 32th globally. This perception has improved over the past five years. The Government is currently discussing possible reinforcement of the system of access to and use of criminal information. Several Ministries have agreed on a preliminary draft organic law laying down rules facilitating the use of financial and other information to prevent, detect, investigate and prosecute criminal offences, including corruption. In Spain, corruption is broadly criminalised under the 1995 Criminal Code, which was further amended in 2019 in this respect to introduce new corruption offences. The Code includes offences, such as influence peddling, embezzlement of public funds, corruption by foreign officials and commercial bribery. The 2019 reform revised the criminalisation of economic offences related to corruption, implementing GRECO recommendations in the process. The fight against corruption in Spain follows a strategic line of action without a dedicated Anti-Corruption Strategy. Although the Government has developed several initiatives to strengthen integrity in public sector, there is no holistic policy to prevent and reduce corruption. GRECO has recommended to develop a strategy that puts together preventive measures to detect and mitigate risk areas of conflicts of interest, with a plan of action for implementation. Spain is receiving technical support from the EU in the context of the project for the elaboration of a National Anti-Fraud Strategy aimed at ensuring effective protection of EU financial interests. The implementation of the Strategy against Organised Crime is ongoing and is expected to be fully implemented within its 4-year timeframe (2019-2023). As reported in the 2020 Rule of Law report, the 2019 Strategy against Organised Crime highlights the importance to fight corruption. Within the framework of the strategy, the 2020-2021 Special Security Plan for Campo de Gibraltar has been approved. The Plan aims at improving specialisation, capacity and coordination of judges, prosecutors and police in the most affected sectors including security, customs and revenue. This Plan has been extended to particularly affected territories near Campo de Gibraltar, including Malaga and Huelva. Despite these developments, the implementation of the strategy has suffered some delays due to the COVID-19 pandemic, and it is expected to be fully implemented within the existing timeframe and until 2023. Inadequate resources continue to be an obstacle to handle effectively high-level cases of corruption. High-level political corruption, fraud involving public officials, as well as economic crimes constitute the main risks of serious corruption in Spain. Many of these cases have been pending in the investigation phase for several years, which generates concern, including among stakeholders. Stakeholders have reiterated that shortage of adequate funding continues to be an obstacle to the effective handling of high-level corruption cases. Moreover, as reported by the Anti-Corruption Prosecutor’s Office, a shortage of specialised staff is the main obstacle in the proper management of complex cases (the so-called macro-cases), which often involve corruption and other economic crimes. The Anti-Corruption Prosecutor’s Office’s 2019 annual report acknowledged the need to increase the number of prosecutors, currently approved in nine new places, which should alleviate the understaffed situation reported in previous years. Currently, the Anti-Corruption Prosecutor’s Office consists of 29 prosecutors and 145 personnel in total. According to the data published by the General Council for the Judiciary, of all adjudicated cases of corruption crimes in 2020, 53 cases were convictions while 21 were acquittals. The workload of the Council of Transparency and Good Governance has increased in the last year, while resources remain insufficient to carry out all its activities. The Council’s work to ensure transparency, public access to information and good governance has been challenged by the COVID-19 pandemic in addition to the persistent lack of human and financial resources. With the appointment of a new President on 20 October 2020, the Council expects to overcome difficulties encountered in its governance and address the issue of resources. A reform of the integrity framework aims to consolidate rules on conflict of interest and incompatibilities in the public administration. The Fourth Open Government Plan (see also section IV) envisages amending the law on incompatibilities of staff employed by public administrations to extend the regime of incompatibilities and prevention of conflicts of interest to advisers and more effectively delimitate the system for the prevention of conflicts of interest and incompatibilities of public employees within all different administrations. In addition, the Plan aims at reinforcing ethics and integrity attached to the use of artificial intelligence in the activities of the administration in order to maximise data management while minimizing integrity risks. The Office of Conflicts of Interest (OCI) continues overseeing the incompatibilities and conflicts of interest and monitors asset declarations for high-level officials and members of Government. The OCI has recently introduced an electronic communication system to enhance the efficient management of documents and information. This system entered into force on 20 October 2020 and requires high-level officials and members of Government to communicate exclusively by electronic means with the OCI. A single and harmonised code of conduct is now applicable to all members of the Congress and Senate. In line with GRECO’s recommendation, on 1 October 2020, the Parliament approved a code of conduct extending rules on ethics, transparency and accountability to members of the Senate. The code of conduct, which has already applied since 2019 to members of Congress, contains rules on declaration of activities and assets to prevent incompatibilities in the exercise of the duties as public representative. In addition, the new Code has introduced a system of declaration of financial interests, and requires members of Congress and Senators to publish their institutional agendas, including their meetings with lobbyists. Since October 2020, there are control mechanisms in place to monitor the compliance with the Code, including the newly created Parliamentary Office for Conflicts of Interest headed by a legal counsellor from the Parliament. The Parliamentary Office is in charge of solving doubts on the application of this Code. Discussions on lobbying legislation are ongoing and the creation of a transparency register is scheduled for 2022. To date, lobbying is not regulated in Spain at national level. However, the definition of lobbyist is provided under the Parliament code of conduct. Under the various commitments made in the Fourth Open Government Plan, the regulation of lobbying, including the creation of a mandatory registry of lobbyists, is among the priorities to boost public integrity. The draft law was opened to public consultation from 28 April to 28 May 2021; and is expected to provide, among others, a definition of interest groups, a mandatory register for interest representatives and members, as well as a code of conduct governing the obligations of members and lobbyists. In addition, a system of penalties and revolving door limitations between senior officials and public employees is expected to be issued. The Office of Conflicts of Interest is expected to be in charge of the management of the transparency register. The draft is expected to be finalised by October 2021 and approved by the Government in the spring of 2022 before being tabled in the Parliament. The preparation of a whistleblower protection framework is ongoing. As reported last year, Spain lacks a general whistleblower protection framework, despite some sectorial regulation. In June 2020, a working group of the General Codification Commission for the Transposition of Directive (EU) 2019/1937 was established . The public consultation opened until 27 January 20210 collected more than 40 views from civil society and individuals on several regulatory issues. These contributions are being taken into account in the preparation of the first draft law, which will also be subjected to a public hearing. The protection of whistle-blowers is also under the priorities of the Fourth Open Government Plan. The COVID-19 pandemic has affected the mechanisms in place to fight corruption. Following the declaration of the state of alarm, the procedures in place to ensure access to public information were suspended, but internal actions were carried out to organize the procedure for resolving the requests for access to public information. The Council of Transparency and Good Governance has received an increased number of claims requesting access to information in the context of COVID-19 support measures, including on corruption and fraud. The Independent Office for Regulation and Supervision of Procurement (OIReScon), which verifies best practices on transparency and identifies irregularities, issued a report assessing the effects of COVID-19 in public procurement with particular regard to publicity and transparency. This report highlighted that COVID-19 has led to the urgent implementation of electronic channels to enable communication, including in the sector of procurement with the increased use of the system of electronic contracting. Spain improved online systems for the prevention and reporting of corruption, which is of great importance in this particular sector where the majority of corruption and fraud related complaints are reported via electronic platforms. III.Media Pluralism and Media Freedom The Constitution enshrines the rights to freedom of expression and media freedom. In addition, Spain has a comprehensive legal framework for ensuring media pluralism. An independent multi-regulatory body, the National Commission for Markets and Competition (CNMC), assumes the role of audio-visual regulator. The process to transpose the revised Audio-Visual Media Services Directive (AVMSD) into Spanish law was started by the Ministry for Economic Affairs and Digital Transformation (MAETD) with the publication of a Draft Law on Audiovisual Communication that was subject to a public consultation until December 2020. The Audiovisual Regulator has raised some concerns on its independence and resources in the context of the transposition of the AVMSD. While the CNMC will assume the new competences and tasks stemming from the revised AVMSD with the ensuing increased workload, the explanatory statement to the Draft Law on Audiovisual Communication does not consider a staff increase necessary. The Audiovisual Sub-Directorate of the CNMC is considered understaffed in comparison to the equivalent bodies in other EU Member States. During the public consultation on the draft law, the CNMC presented an opinion that, while giving a positive assessment of the draft law, states that it lacks clarity on some key issues and raises a number of concerns. In particular, according to the CNMC, the draft law does not address the ‘adequacy of resources’ requirement established in the AVMSD. In addition, its operational independence appears to be restricted, as, according to the draft law, the Government will remain in charge of certain decisions regarding the internal organisation and functioning of the CNMC (e.g. on recruitment, salaries, staff numbers). The CNMC also considers that the draft law could establish additional provisions in relation to media pluralism. The transparency of media ownership remains a challenge. As referred in the 2020 Rule of Law Report, ownership data is publicly accessible, but ownership information is not exhaustive (provided only for radio and television) and there are difficulties to assess who exactly is behind each company. There have been no new legal developments in this area. Spain has a National Registry of Audiovisual Communication Service Providers, which can be accessed freely by the public and contains information on owners with significant participation in the capital of service providers. Nevertheless, the Media Pluralism Monitor (MPM 2021) Report for Spain considers there is a high risk for transparency of media ownership, pointing to the lack of rules for digital media. News media concentration is reported as high in Spain. Shortcomings have been identified in relation to procurement contracts on institutional advertising. Legislative provisions regulate the contracting of state advertising and institutional campaigns. A recent study conducted on behalf of a professional association analysed a sample of contracts representing about 12% of the total number of contracts and almost 50% in their value. The study pointed to a number of shortcomings in the drafting of terms of reference of a large majority of the analysed procurement contracts on institutional advertising. In a similar vein, the MPM 2021 reflects that complaints are common regarding the unfair distribution of public expenditures depending on the ideological alignment of digital news media.

The media sector has been highly impacted by the COVID-19 pandemic and the Government has adopted some media-specific support measures. In 2020, the media income decreased more than the GDP, challenging media viability. The main reason of this decrease was the reduction in advertising income, which in overall terms fell 17.9%; print media was the most affected, with a drop in advertising turnover of 30.8%, while digital media had a decrease of 5.3%. The pandemic has also had a negative impact on the journalistic profession, as numerous media companies began to present temporary employment regulation files or proposed salary reductions. Freelance journalists were the most affected. The Government has taken certain measures to support the media sector, such as the reduction in VAT on digital media (from 21% to 4%) and a temporary financial support framework, where EUR 15 million were earmarked for state-wide digital terrestrial television channels. The Government is taking steps to address concerns by stakeholders about access to information. While there were critics of the system put in place by the Secretary of State for Communication for press conferences at the start of the pandemic, the situation was rapidly addressed to allow journalists to ask questions in a hybrid (online and physical) mode. The Government has also set up a commission formed by the Ministries of the Presidency, Defense, Home Affairs and Foreign Affairs to revise the Law on Official Secrets (that dates from the pre-constitution times) in order to make access to official information easier for journalists and the general public. Journalists have continued to face challenges in their professional activities. There have been no changes in the regulatory framework concerning journalists. Nevertheless, on 11 December 2020, an Agreement was signed between the Ministry of Home Affairs, the Federation of Associations of Journalists of Spain, and the National Association of Graphic Press and Television Informants, with the main purpose of facilitating the work of information professionals in places and events where situations of violence may occur. Concerns remain about the negative impact for journalists of the Citizen Security Law, particularly on photojournalists (see also section IV). Furthermore, the Council of Europe´s Platform to Promote the Protection of Journalism and Safety of Journalists has registered four alerts for Spain in 2021, all related to violence towards journalists and/or their equipment.Since the 2020 Rule of Law Report, there have been several instances of political parties banning certain media/journalists from their press conferences, or publicly attacking media outlets that do not share their views. Harassment of journalists on social media is an increasing, worrying phenomenon. IV.Other Institutional Issues related to Checks and Balances Spain is a parliamentary monarchy, with a bicameral Parliament (‘Cortes Generales’). It is also a decentralised unitary state where the State and the Autonomous Regions have both exclusive and shared competences. The Constitutional Court is competent to review the constitutionality of laws. Both chambers of the Parliament – the Congress and the Senate – have legislative competence, which they can delegate to the Government, subject to certain limitations. The Government, the two Chambers of the Parliament, the assemblies of the autonomous regions, and a group of at least 500 000 citizens have the right of legislative initiative. The Government has approved a new Fourth Open Government Plan (2020-2024). The Plan was approved in October 2020 jointly by the national, regional and local governments and following a consultative process, including the organisation of workshops and other participatory activities. It aims to strengthen the links between citizens and public authorities, as well as increasing citizen involvement in the development of public policies. It sets ten new commitments in relation to transparency, accountability, public participation, public integrity and awareness on citizen participation in policy-making. These commitments include the transposition of the Directive on open data and the re-use of public sector information. The Plan includes 110 initiatives and 529 activities; to date 17% have been finalised, 38% are ongoing and 43% are still pending. The ‘Open Government Forum’, composed of representatives of public administrations and civil society, has continued its operations and on 29 October 2020, it approved its rules of internal procedure. The Autonomous Regions were designated as competent authorities for the implementation of the emergency measures adopted in the context of the COVID-19 pandemic. In 2020, the Government declared a state of alarm on three different occasions.The second state of alarm was limited to a number of municipalities of the Autonomous Region of Madrid during 15 days. The third state of alarm was approved by the Congress and extended to 9 May 2021. This was less restrictive in comparison to the first state of alarm and designated the Autonomous Governments as competent authorities for the implementation of the emergency measures. The Parliament has remained in session during the pandemic, and it has continued exercising its control of the emergency measures. The Minister of Health has provided information on adopted and implemented measures to the Parliamentary Commission on Health and Consumption every 15 days. On 14 July 2021, the Constitutional Court declared unconstitutional some provisions of the Royal Decree declaring the first state of alarm in relation to limitations to the freedom of movement. The Constitutional Court is also currently examining another complaint in relation to the second state of alarm, as well as several individual constitutional appeals in relation to the right of assembly in the context of the pandemic. Stakeholders have claimed that the repeated use by the Government of the power granted by the Constitution to legislate via decree-laws in cases of extraordinary and urgent necessity would limit the involvement of stakeholders in the legislative procedure. Once the state of alarm ended on 9 May 2021, the law provides that measures taken by Autonomous Regions restricting fundamental rights would need to have a prior judicial authorisation in the form of a court order. On 4 May 2021, the Government adopted a Royal Decree Law setting out a procedure allowing the Administrative Chamber of the Supreme Court to review these court orders, in order to ensure uniform application of the caseload throughout the whole national territory. The Ombudsperson reviewed a significantly greater volume of complaints since the beginning of the pandemic. The Ombudsperson (‘Defensor del Pueblo’), which is the High Commissioner of Parliament responsible for defending citizens’ fundamental rights and civil liberties by monitoring the activity of the public administration and public authorities, is also the National Human Rights Institution in Spain. The Ombudsperson is appointed by the Parliament. Negotiations between political parties for their appointment are still ongoing, thus the Ombudsperson has remained in function ad interim since 2017, when the previous term of office expired. The number of complaints received by the Ombudsperson increased significantly in 2020: it received 28 028 complaints (from 20 215 in 2019) and 909 requests to interpose constitutional reviews to the Constitutional Court (from 135 in 2019). The most common complaints are related to the emergency measures taken in the context of COVID-19, delays in the administration of justice, employment, social security, and migration. In addition, the Ombudsperson has had an active role during the pandemic, as it has carried out 406 ex officio actions, including recommendations on the situation of jail prisoners, the arrival of migrants to the Canary Islands, and the closure of detentions centres for migrants while borders were temporarily closed. The space for civil society organisations in Spain is facing challenges, and a revision of the Citizen Security Law is ongoing. Civil society space is considered to be narrowed. Civil society organisations faced several challenges in relation to access to funding. Stakeholders have reported funding cuts by several public authorities in 2020 despite the increased needs posed by the outbreak of the pandemic. In addition, the 2015 Law on Citizen Security, that according to its preamble aims to protect people and property and maintain the public peace through the regulation of police interventions and other matters, raised concerns from stakeholders. In November 2020 and January 2021, the Constitutional Court issued two judgements on the law, concluding that most of its provisions are constitutional, if interpreted in good faith and with due regard to the principles enumerated in the law, in particular as regards the principles of proportionality, non-discrimination, efficiency, and respect for rights and freedoms. Nonetheless, one provision of the law was declared unconstitutional in relation to the prohibition of the “unauthorised” use of photo and video images of police officers at duty or in a private setting. In March 2021, the Venice Commission issued an opinion on the law, highlighting that even in cases when a norm is considered to be constitutionally acceptable, if in practice it has led to abuses it should be changed, circumscribed, or accompanied by additional safeguards. The opinion encouraged the Spanish legislator to carry out an in-depth assessment of the practical operation of the law and its impact on fundamental rights and freedoms. The law is currently being revised by the Parliament, and it is important that this opinion is taken into account. Stakeholders have also reported that in April 2021, there were sporadic attacks by far-right extremists to the head offices of a number of NGOs in connection to LGTBI rights and migration. There have been several initiatives aimed to foster a rule of law culture. The Council for the Judiciary develops and implements the "Educating in Justice" programme launched at the end of 2019, aimed at secondary school students, so that students acquire sufficient knowledge about the functioning of the justice system in Spain, with special emphasis on aspects such as gender violence and the criminal liability of minors. Within the programme, judges provide talks to students, school visits are organised to courts and other institutions, and mock trials are carried out with the support of their teachers. Annex I: List of sources in alphabetical order* * The list of contributions received in the context of the consultation for the 2021 Rule of Law report can be found at https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism/2021-rule-law-report-targeted-stakeholder-consultation . Anti-Corruption prosecutor’s Office (2020), Annual Report 2019. Association Impulso Ciudadano (2021), Contribution from the Association Impulso Ciudadano for the 2021 Rule of Law Report. Association of Prosecutors (2021), Contribution from the Association of Prosecutors for the 2021 Rule of Law Report. Association of Prosecutors (2021), Alegaciones que presenta la Asociación de Fiscales al Anteproyecto de la Ley de Enjuiciamiento Criminal (LECRIM) ( http://www.asociaciondefiscales.es/index.php/general1/itemlist/date/2021/3 ). Center for Media Pluralism and Media Freedom (2020), The Media Pluralism Monitor 2020. CEPEJ (2020), Study on the functioning of the judicial systems in the EU Member States. Civicus, Monitor tracking civic space – Spain. Civil Liberties Union for Europe (2021), EU 2020: Demanding on democracy.

Council of Europe: Committee of Ministers (2000), Recommendation of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (Recommendation No. R(2000)21) ( https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016804d0fc8 ). Council of Europe: Committee of Ministers (2010), Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities ( https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805afb78 ). Council of Europe: Committee of Ministers (2021). Guidelines of the Committee of Ministers of the Council of Europe on the efficiency and the effectiveness of legal aid schemes in the areas of civil and administrative law (CM(2021)36) ( https://search.coe.int/cm/pages/result_details.aspx?objectid=0900001680a1a347 ). Council of Europe: Consultative Council of European Judges (CCJE) (2007), Opinion no.10(2007)to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society ( https://rm.coe.int/168074779b ). Council of Europe: Consultative Council of European Judges (CCJE) (2020), Opinion No. 23 on the role of the Associations of Judges in supporting the judicial independence ( https://www.coe.int/en/web/ccje/opinion-no.-23-on-the-role-of-judicial-associations-2020- ). Council of Europe: Platform to promote the protection of journalism and safety of journalists (2021), Countries: Spain ( https://www.coe.int/en/web/media-freedom/spain ). Council of Europe: Venice Commission (2010), Report on the role of the opposition in a democratic parliament (CDL-AD(2010)025) ( https://www.venice.coe.int/webforms/documents/CDL-AD(2010)025.aspx) . Council of Europe: Venice Commission (2018), Montenegro - Opinion on the draft law on amendments to the law on the Judicial Council and Judges (CDL-AD(2018)015-f) ( https://www.venice.coe.int/webforms/documents/default.aspx?pdf=CDL-AD(2018)015-f&lang=EN ). Council of Europe: Venice Commission (2019), Parameters on the Relationship between the Parliamentary Majority and the Opposition in a Democracy: a checklist (CDL-AD(2019)015-e) ( https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2019)015-e) . Council of Europe: Venice Commission (2021), Spain-Opinion on the Citizens’ Security Law, adopted by the Venice Commission at its 126th plenary session (CDL-AD(2021)004-e) ( https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2021)004-e ). Council for the Judiciary- Metroscopia (2020), La justicia vista por los jueces ( https://www.poderjudicial.es/cgpj/es/Temas/Transparencia/Buen-Gobierno--Codigo-etico-y-Comision-de-Etica-Judicial/Encuestas-de-satisfaccion/Encuesta-realizada-por-Metroscopia-a-la-Carrera-Judicial--Octubre-2020- ). Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information. Directive (EU) 2019/1153 of the European Parliament and of the Council of 20 June 2019 laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences, and repealing Council Decision 2000/642/JHA. El Diario (2021), Atacadas las sedes del colectivo Lambda y de una ONG africana en Valencia ( https://www.eldiario.es/comunitat-valenciana/atacadas-sedes-colectivo-lambda-ong-africana-valencia_1_7801536.html ). El Mundo (2021a), La sede de Cogam amanece vandalizada con mensajes tránsfobos– 3 April 2021– ( https://www.elmundo.es/madrid/2021/04/03/60684e8d21efa01e1a8b45f1.html ). El Mundo (2021b), Más de 2.500 jueces se dirigen a la Comisión Europea para alertar del "riesgo grave de violación del Estado de Derecho" en España– 12 April 2021– ( https://www.elmundo.es/espana/2021/04/12/607420c7fdddff671d8b45fa.html ). Europapress (2021), Los jueces achacan el giro de Moncloa de retirar la reforma del CGPJ a la "presión" ejercida y el "toque" de Europa – 21 April 2021 ( https://www.europapress.es/nacional/noticia-jueces-acogen-satisfaccion-retirada-reforma-cgpj-cambiar-mayorias-urgen-renovar-20210421142512.html ). European Anti Poverty Network (EAPN) (2020), Denuncian la decisión de recortar la financiación a las ONG estatales de Acción Social en plena pandemia ( https://www.eapn.es/covid19/noticia/36/denuncian-la-decision-de-recortar-la-financiacion-a-las-ong-estatales-de-accion-social-en-plena-pandemia ). European Association of Judges (2020), EAJ statement about Spain– 13 October 2020– ( http://www.iaj-uim.org/news/eaj-statement-about-spain/ ). European Commission (2019), European Semester: Country Report Spain 2019 - Including an In-Depth Review on the prevention and correction of macroeconomic imbalances, SWD(2019) 1008 final ( https://ec.europa.eu/info/sites/default/files/file_import/2019-european-semester-country-report-spain_en.pdf ).

European Commission (2020), Rule of Law report, country chapter on the rule of law situation of Spain ( https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1602579986149&uri=CELEX%3A52020SC0308 ). European Commission (2021), EU Justice Scoreboard. European Network of National Human Rights Institutions (ENNHRI) (2021), Contribution from ENNHRI for the 2021 Rule of Law Report. General Council of Spanish Lawyers (2021), Contribution from the General Council of Spanish Lawyers for the 2021 Rule of Law Report. GRECO (2019), Fourth Evaluation Round – Corruption prevention in respect of members of parliament, judges and prosecutors (GrecoRC4(2019)12) ( https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/168098c67d ). GRECO (2019), Fifth Evaluation Round – Preventing corruption and promoting integrity in central Governments (top executive functions) and law enforcement agencies (GrecoEval5Rep(2018)5) ( https://rm.coe.int/fifth-evaluation-round-preventing-corruption-and-promoting-integrity-i/168098c691 ). GRECO (2020), Spain - Letter to the GRECO Head of Delegation ( https://www.coe.int/en/web/human-rights-rule-of-law/-/spain-letter-to-the-greco-head-of-delegation ). High Court of Castilla y León (2020), Press Release- El TSJCyL rechaza la propuesta de renovación del CGPJ presentada por PSOE y Podemos– 19 October 2020– ( https://www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunales-Superiores-de-Justicia/TSJ-Castilla-y-Leon/Sala-de-prensa/Archivo-de-notas-de-prensa/El-TSJCyL-rechaza-la-propuesta-de-renovacion-del-CGPJ-presentada-por-PSOE-y-Podemos ). High Court of Madrid (2020), Press Release- La Sala de Gobierno del TSJ de Madrid muestra su profunda preocupación ante la iniciativa de reforma de la Ley Orgánica del Poder Judicial– 19 October 2020– ( https://www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunales-Superiores-de-Justicia/TSJ-Madrid/Sala-de-prensa/Archivo-de-notas-de-prensa/La-Sala-de-Gobierno-del-TSJ-de-Madrid-muestra-su-profunda-preocupacion-ante-la-iniciativa-de-reforma-de-la-Ley-Organica-del-Poder-Judicial ). High Court of Andalucía, Ceuta and Melilla (2020), Press Release- El pleno de la Sala de Gobierno del TSJA se pronuncia sobre el proyecto de reforma del CGPJ– 20 October 2020– ( https://www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunales-Superiores-de-Justicia/TSJ-Andalucia--Ceuta-y-Melilla/Sala-de-prensa/Archivo-de-notas-de-prensa/El-pleno-de-la-Sala-de-Gobierno-del-TSJA-se-pronuncia-sobre-el-proyecto-de-reforma-del-CGPJ ). Independent Judicial Forum (2021), Contribution from the Independent Judicial Forum for the 2021 Rule of Law Report. Infoadex (2021). Informe Infoadex de la inversión publicitaria en España 2021. Judges and Magistrates’ Association “Francisco de Vitoria”(2021), Contribution from the Judges and Magistrates’ Association “Francisco de Vitoria” for the 2021 Rule of Law Report. Juezas y Jueces por la Democracia (2021), Comment on 20 April 2021 ( https://twitter.com/JpDemocracia/status/1384409552117014531 ) Minister of Justice (2021), Campo: “La nueva Ley de Eficiencia Organizativa profundiza en la democracia interna del Poder Judicial”( https://www.mjusticia.gob.es/es/ministerio/gabinete-comunicacion/noticias-ministerio/210420-ley-de-eficiencia-organizativa ). Ministry of Economy and Finance 2020, Annual report of monitoring of the public procurement in Spain, December 2020 Ministry of Home Affairs (2021), Interior, la FAPE y la ANIGP-TV mejoran la identificación de los informadores en eventos que requieran de la intervención policial. Ministry of Territorial Policy and Public Administration (2020), IV Plan abierto de gobierno (2020-2024)– 29 October 2020– ( https://transparencia.gob.es/transparencia/transparencia_Home/index/Gobierno-abierto/planes-accion.html ).

OECD (2015), Spain: follow-up to the phase 3 report & recommendations ( Spain-Phase-3-Written-Follow-Up-Report-EN.pdf (oecd.org) ). Ombudsperson (2021), Annual Report 2020 ( https://www.defensordelpueblo.es/noticias/informe-anual-2020/ ). Press Association of Madrid (2020), Los periodistas autónomos, los más perjudicados del sector por el impacto de la COVID-19– 3 June 2020–( https://www.apmadrid.es/los-periodistas-autonomos-los-mas-perjudicados-del-sector-por-el-impacto-de-la-covid-19/ ). Prnoticias (2020), EPA: El periodismo se desploma con 11.400 empleos menos en el último trimestre– 28 July 2020– ( https://prnoticias.com/2020/07/28/epa-el-periodismo-se-desploma-con-11-400-empleos-menos-en-el-sector/ ). Prosecution Council (2020), Press Release- La Fiscal General del Estado impulsa ante las asociaciones un plan para afrontar el reto de la reforma procesal– 3 December 2020– ( https://www.fiscal.es/-/la-fiscal-general-del-estado-impulsa-ante-las-asociaciones-un-plan-para-afrontar-el-reto-de-la-reforma-procesal ). Prosecution Council (2021), Comunicado del Consejo Fiscal al Anteproyecto de Ley Orgánica de Enjuiciamiento Criminal (https://www.fiscal.es/web/fiscal/-/comunicado-del-consejo-fiscal-al-anteproyecto-de-ley-org-c3-a1nica-de-enjuiciamiento-criminal). Supreme Court (2021), Contribution from the Supreme Court for the 2021 Rule of Law Report. Technical Cabinet of the Council for the Judiciary (2021), Legal report on the impact of Organic Law 4/2021 of 29 March. Transparency International (2021), Corruption Perceptions Index 2020 ( Corruption Perceptions Index 2020 for New Zealand - Transparency.org ). Annex II: Country visit to Spain The Commission services held virtual meetings in April and May 2021 with: ·Academic experts ·Association of ‘Abogados del Estado’ ·Association of Prosecutors ·Civic Platform for the Judicial Independence ·College of Registrars ·Constitutional Court ·Court of Audits

·European Journalists’ Association ·FAPE ·Foundation ‘Hay Derecho’ ·General Council of Notaries ·General Council of Spanish Lawyers ·General Council for the Judiciary ·INCIDE ·Independent Judicial Forum ·Judges and Magistrates’ Association “Francisco de Vitoria” ·Judges for Democracy ·Madrid Press Association ·Ministry of Foreign Affairs ·Ministry of Home Affairs ·Ministry of Justice ·Ministry of Finance ·Ministry of the Presidency ·Ministry of Territorial Policy and Public Administration ·National Anti-Fraud Coordination Service ·National Commission of Markets and Competition ·NGO’s Platform for Social Action

·Technical Office of the Prosecutor General ·The Independent Office for Procurement Regulation and Oversight (OIReScon) ·Ombudsperson’s Cabinet ·Platform in Defense of Freedom of Information ·Professional Association of the Magistracy ·Progressive Union of Prosecutors ·Rights International Spain ·Prosecutor's Office Against Corruption and Organised Crime ·State Secretary of Communication ·Supreme Court ·Technical Cabinet of the Prosecutor General’s Office ·Transparency Council ·Transparency International España * The Commission also met the following organisations in a number of horizontal meetings: ·Amnesty International ·Center for Reproductive Rights ·CIVICUS ·Civil Liberties Union for Europe ·Civil Society Europe

·Conference of European Churches ·EuroCommerce ·European Center for Not-for-Profit Law ·European Centre for Press and Media Freedom ·European Civic Forum ·European Federation of Journalists ·European Partnership for Democracy ·European Youth Forum ·Front Line Defenders ·Human Rights House Foundation ·Human Rights Watch ·ILGA-Europe ·International Commission of Jurists ·International Federation for Human Rights ·International Planned Parenthood Federation European Network (IPPF EN) ·International Press Institute ·Netherlands Helsinki Committee ·Open Society European Policy Institute ·Philanthropy Advocacy ·Protection International