Los delitos de financiación ilegal de los partidos políticos tipificados en los artículos 304 bis y 304 ter del código penal. Diseño de una propuesta de compliance para prevenir la corrupción en el seno de las formaciones políticas

Abstract

This doctoral thesis tackles one of the problems that has caused most concern among Spanish citizens in recent years, namely political corruption linked to the illegal financing of political parties. In a state governed by the rule of law such as Spain's, political organisations perform essential functions for the democratic functioning of the country, since by constitutional mandate these entities express political pluralism, participate in the formation and manifestation of the popular will and are fundamental instruments for political participation. However, in order to be able to carry out these important tasks properly, political parties depend on the funding they receive, which is subject to exhaustive legal limits in order to guarantee equal opportunities for all political organisations. However, political organisations are not unaware of the fact that in this field the maxim that the greater the electoral expenditure, the greater the electoral profitability, which means that they are constantly tempted to seek irregular financing, a practice that should in no way go unpunished in a state governed by the rule of law such as Spain. In this sense, the illegal financing of these entities represents an intolerable modification of the rules of the democratic game by creating a hidden inequality that allows some entities to obtain greater resources than others, which undoubtedly helps them to obtain a greater potential to win in democratic elections. Thus, the Spanish legislator, faced with the incessant trickle of corruption cases linked to this type of behaviour and given the ineffectiveness of the existing control mechanisms, decided in 2015 to introduce two precepts in Title XIII bis in Book II of the Criminal Code. On the one hand, art. 304 bis PC, which includes a crime of illegal financing of political parties. And, on the other hand, Article 304 ter of the Criminal Code, which criminalises the offence of belonging to structures or organisations whose purpose is the illegal financing of political parties. However, the scientific doctrine has harshly criticised the content of the precepts finally incorporated into our main punitive text, as they fail to provide an adequate criminal response to this phenomenon. The aim of this doctoral thesis is to analyse the phenomenon of the illegal financing of political parties in our country, highlighting the defective classification that the legislator has made in this area, which leads to large gaps of impunity, a direct consequence of the atypical nature of these precepts. Thus, in this respect, it has been argued, with good reason, that many of its criminal offences are susceptible to varied interpretations and that even the offence of art. 304 bis could be declared unconstitutional due to the inadequate legislative technique employed. Faced with this situation, this doctoral thesis aims to provide specific solutions that provide a complete and effective response to the phenomenon of political corruption linked to the financing of political parties through, on the one hand, appropriate criminal punishment and, on the other hand, through prevention. In this sense, firstly, the most extensive part of this research work carries out a normative, doctrinal and jurisprudential analysis in order to carry out a complete exegesis of the crimes of illegal financing of political parties contained in articles 304 bis and 304 ter of the Criminal Code. Likewise, a comparative law study is also carried out on neighbouring countries such as Germany, Italy, France and the United Kingdom, in order to examine which criminal conducts are punished in this area. Finally, a lege ferenda proposal is offered to regulate this phenomenon in an exhaustive and effective manner, punishing criminally all those conducts that threaten the interests that are protected through the crime of illegal financing of political parties. Secondly, as important or even more important than the criminal punishment of this type of behaviour, is the prevention of criminal conduct within political parties, since the main risk they present is precisely due to crimes linked to political corruption, especially the crime of illegal financing of political parties. In this sense, the Spanish legislator incorporated, for the first time, the criminal liability of legal persons into the Criminal Code in 2010, and although, at first, political parties were excluded in 2012, they were finally included. However, no special provisions have been made in this area for political organisations, so that all the requirements relating to the criminal liability of legal persons, which are actually designed for companies with a commercial purpose, are automatically applied to them. Thus, if a legal person, including a political party, is responsible for a corporate crime of those which expressly foresee this possibility and the requirements contained in Art. 31 bis and following of the Criminal Code are met, it can finally be punished through the different sanctions that our main punitive text foresees, and which include the possibility of dissolution in certain cases. Thus, our Criminal Code allows for the exemption of a legal person from criminal liability as long as a suitable and effective "criminal compliance" has been adopted prior to the commission of the corporate crime. But in this area, too, the requirements contained therein for political formations are the same as for all other legal persons. However, as this type of organisation has genuine characteristics - a specific risk map, specific decision-making process, etc. -, some of their peculiarities must be taken into account in the design of their criminal compliance. However, it would be appropriate for the Spanish legislator to regulate specific minimum requirements for this type of organisation that would optimally and effectively detect in time the commission of crimes, especially in the area of corruption.