The “proceedings” are the only valid instrument for processing disciplinary cases and imposing sanctions

The sanctioning power of the Administration forms part of a superior and unique ius puniendi of the State. Therefore, in exercising this right and responsibility of the Administration when it comes to applying the sanction, the Administration must adjust their activity to the rule of law. Ius puniendi and rule of law form an inseparable pairing.

The rule of law, on its procedural side, requires a “proceeding” that is an essential and unavoidable instrument and is always processed before the Administration imposes any sanction because the sanctions are always administrative acts (article 105.c) CE). Accordingly, the proceedings, just like the rates and sanctions, do not pre-exist in the legislator’s specific regulation but only in accordance to a legal regulation that establishes them.

As sanctions are administrative acts, the proceedings should allow, on the one hand, the administration to demonstrate the concurrence of the allegations required to impose the sanction (existence of the fact, responsibility and guilt of the perpetrator) and on the other hand, the alleged perpetrator to defend themselves with a series of assurances (mainly through the hearing and the possibility of contradiction).

However, there is not only one procedural channel to impose sanctions. There are several applicable procedures relating to the official, working and student quality of the person accused of the infraction, but we can extract common procedural aspects and phases from each of them. In particular, in terms of the Rector of UCM applying their sanctioning power, we can outline the procedural iter as below.

• Before the proceedings are formally commenced, some preliminary proceedings can be performed to determine, with a preliminary and reserved nature, if it will proceed. Such proceedings, occasionally called reserved information (officials and students) or preliminary inquiries (workers), are performed exclusively by the Service Inspection Unit at UCM.

• With regards to the sanctioning body, the Rector of UCM, or the body that has been appointed to this matter, is able to initiate and resolve the proceedings, although only the Rector may impose the sanctions. That said, the necessary separation between the investigation and sanctioning phase, which will be assigned to different bodies, is established.

  All sanctioning proceedings must be initiated by agreement of the competent body, either on their own initiative, on communication from the Service Inspection Unit, on the reasoned request of other bodies or any other type of complaint.

• The initiation agreement usually contains: the identification of the person or persons allegedly responsible; the facts, their possible qualification and the corresponding sanction; conductor and, when applicable, secretary of the proceedings; the competent body to resolve the case; if required, the provisional measures; indication of the right to submit allegations and to a hearing in the proceedings, and of the deadlines for it to be conducted; and the possibility that the alleged perpetrator may voluntarily acknowledge their responsibility. This process fully complies with the right to be informed of the accusation. The initiation agreement is simultaneously communicated to the defendant, the conductor, the secretary and, if necessary, the claimant. At the same time, and only in the case of working staff, the representatives of the workers will be succinctly informed of the initiation of the proceedings.

• Following the initiation, and before the proceedings have been finalised, the Rector or appointed body may also proceed, through justified agreement, with the adoption of the preventative measures required to guarantee a good conclusion to the proceedings, ensuring the effectiveness of the resolution which could revert to, or avoid the maintenance of the effects of the alleged infraction. The adoption of these measures requires a preliminary hearing of the defendant and, when applicable, the representatives of the worker.

• After the initiation phase, the investigation phase begins. This contains the following procedural processes: accusations against the defendant, evidence, proposal of a resolution, transfer of the proposal and view of the case.

• The submission of arguments by the defendant constitutes, together with the proposal of evidence, the instrument to exercise their right to defence. Through these written arguments they can propose evidence which may support them. Once the deadline passes to put the arguments forward, the Conductor of the case will make a declaration about the defendant.

• Once the defendant’s arguments have been received, or the indicated deadline has passed, the proceedings that have been agreed upon will be carried out, and once the defendant’s testimony has been heard, the Conductor may agree to open a period of evidence to verify and explain the incidents the defendant is accused of, as well as to determine the circumstances under which they occurred. Any evidence admitted under Law can be reviewed, and the conductor may only reject illegal, useless or impertinent evidence.

• Once the evidence has been reviewed, the Conductor will submit the resolution proposal to the defendant, and will give them access to the case. In this resolution proposal, the conductor submits the allegation against the guilty party and proposes a specific sanction or, on the other hand, declares the grounds for acquittal. At the same time, and provided there is no express opposition from the defendant, the resolution proposal and the case will be communicated to the representatives of the workers. The claimant and, when applicable, the representatives of the workers, have a deadline to submit allegations, alongside the resolution proposal and the entire case, to the competent body for a decision.

• Finally, the proceedings conclude with this Resolution, which should be passed by a different body to the one conducting the proceedings, namely, the Rector. The reasons for the Resolution should be clear and should deal with all the matters put forward by the parties and those that arose during the proceedings, including the evaluation of evidence, determining the facts and the person or persons responsible, the infraction or infractions committed and the sanction or sanctions imposed and the date they take effect, or on the other hand, the absence of infraction or responsibility.

This Resolution, which concludes the case, should be reported, in full, to the defendant and, when applicable, to the qualified claimant (direct victim of the infraction). However, if the claimant is not qualified, but merely a communicator of the events, only the enacting part of the resolution will be communicated to them. Only in the case of working staff, provided that it is related to sanctions for very serious errors, will the enacting part of the sanctioning resolution be communicated to the representative bodies of the workers.

Throughout the proceedings, as already stated, a series of essential guarantees must be fulfilled in favour of the defendant. These guarantees are not systematically established in the CE because article 24.2 CE generically refers to the fundamental rights of the defendant in light of the jurisdiction. However, the TC immediately considered the majority of the fundamental rights of the aforementioned provision to be applicable to the administrative sanctioning proceedings, as they are required to preserve the essential values of the constitutional regulations.