Disciplinary proceedings opened against you as a civil servant

The case, in five lines

What is brought

Defence within the disciplinary procedure (challenging the investigating officer where there is cause, answering the statement of charges, proposing evidence, making submissions on the draft decision and seeking a declaration of expiry or limitation), an alzada appeal to the higher body or an optional reposición appeal against the sanction, and a contencioso-administrativo claim seeking its annulment, reinstatement and payment of the pay withheld.

Before which court

First, the investigating officer and the body with power to sanction within your own administration. Against the sanction, the administrative appeal stated in the decision and, once that route is exhausted, the contencioso-administrativo section of the Tribunal de Instancia (the first-instance court), or the contencioso-administrativo chamber of the Tribunal Superior de Justicia (the regional High Court) or of the Audiencia Nacional (the National High Court), depending on the body imposing the sanction and on whether it is the dismissal of a career civil servant. Staff on employment contracts sue before the social section of the Tribunal de Instancia.

Deadline

The offence becomes time barred after three years if very serious, two if serious and six months if minor, counted from when it was committed or from when the conduct stopped if it was continuing (article 97 TREBEP): this is limitation. The file expires if the decision is not issued and notified within its maximum period (article 25.1.b of Law 39/2015), which for the State is twelve months from the opening decision. Against an express sanction, one month for the administrative appeal and a strict two month period for the court claim from the day after notification of the decision ending the administrative route (article 46.1 LJCA).

Who can bring it

The career or temporary civil servant under investigation, against the administration to which the body exercising disciplinary power belongs. Staff on employment contracts are also governed by their collective agreement and employment law, and sue in the social courts.

Financial risk

Sanctions range from a formal warning to dismissal from the service, including firm suspension from duty of up to six years, compulsory transfer and a career penalty (article 96 TREBEP). If the provisional suspension becomes final, what was paid during it must be returned. In court, losing may mean an order to pay costs; winning means annulment of the sanction, reinstatement and payment of what was withheld.

Before the charges: what you already wrote counts, and so does what you sign now

The file almost never starts with the opening decision. Before it there is usually a confidential preliminary inquiry, which the State regulation on disciplinary matters (Royal Decree 33/1986) allows the body competent to open proceedings to order. It is not yet the procedure: there is no investigating officer, no statement of charges and no defence rights. But whatever you said or wrote in it goes into the file and is often the first piece of incriminating evidence. That email explaining the searches, answered in good faith and without seeing anything, will be read as a partial confession.

Article 64.2 of Law 39/2015 requires the opening decision to identify the alleged offender, describe the facts, their possible classification and the sanctions that might apply, appoint the investigating officer stating how to challenge them, and name the body competent to decide, pointing out the possibility of voluntarily admitting responsibility with the effects of article 85. This is the trap: the reductions of at least 20 % in article 85.3 only apply where the sanction is purely financial, and disciplinary sanctions are not. Admitting brings no automatic legal reduction: it simply allows the case to be decided at once with whatever sanction is appropriate.

Article 53 of Law 39/2015 gives you the right to know the state of the procedure at any time, to access its documents and obtain copies, to be assisted by an adviser and, because this is a sanctioning procedure, to be notified of the facts alleged, the identity of the investigating officer and of the body that may sanction you, and to be presumed free of responsibility until the contrary is proved. The first thing the firm requests is the complete copy, including the preliminary inquiry and the report that triggered it. Without those papers nothing is stated and nothing is answered.

The statement of charges fixes the facts, and what is not disputed there is taken as true

Article 98.2 TREBEP, the Basic Statute of Public Employees, requires the investigation stage and the sanctioning stage to be kept apart and entrusted to different bodies. That separation is worth little if the investigating officer is not impartial: Law 40/2015 lists open enmity with the interested party among the grounds for withdrawal and for challenge. In a case like yours, with an earlier public clash, the challenge is raised in writing as soon as the appointment is known, with the facts and witnesses that prove it. If it is let slide and the charges are answered as if nothing had happened, the argument weakens.

For the State, Royal Decree 33/1986 requires the investigating officer to draw up the statement of charges within one month of the opening, with the facts set out in separate numbered paragraphs, and gives ten days to answer it, provide documents and request the evidence needed. Regional statutes follow a similar pattern with their own periods: yours is checked in the rule that applies to you. The statement of charges matters because it defines the dispute: article 90.2 of Law 39/2015 prevents the decision from accepting facts other than those determined in the procedure, and if the deciding body wants a more serious classification or sanction, it must give you fifteen days to respond.

That is why the answer goes paragraph by paragraph: every untrue fact is denied, the one that is only half true is qualified and a record is made of what the charges do not say. A fact left undisputed reaches the decision as common ground. Evidence is proposed in that same document. The investigating officer may reject evidence considered irrelevant, but must give reasons, and an unreasoned refusal of relevant evidence is a denial of defence that is relied on later. The Tribunal Constitucional (the Constitutional Court) has held that the guarantees of article 24.2 of the Constitution extend, with nuances, to sanctioning procedures, including the right to use the relevant means of proof.

Two clocks run in your favour: limitation of the offence and expiry of the file

Article 97 TREBEP sets the limitation period for offences at three years for very serious ones, two for serious ones and six months for minor ones, counting from when they were committed, or from when the conduct stopped if it was continuing. From when they were committed, not from when the administration discovered them: this is the argument most often forgotten. That is why the administration tends to classify high and to present a series of separate acts as a continuing offence, because it stretches the period. Disputing the classification is not a fine point: if the conduct is serious or minor, or if each search is a separate offence, part of the facts may already be time barred.

For the State, Royal Decree 33/1986 provides that limitation is interrupted by the opening of the procedure, and requires the opening decision to be duly registered. What interrupts is the opening, not the preliminary inquiry that came before it, nor the manager's email asking for explanations. So the date of each alleged fact and the date of the opening decision are reconstructed, and it is checked which facts had already dropped out before the file existed. In your case, with searches going back to 2022, that count may remove part of the allegations even if they are classified as very serious.

The second clock is expiry. Article 25.1.b) of Law 39/2015 triggers it where, in a sanctioning procedure started by the administration, the maximum period passes without a decision being issued and notified. For civil servants of the State administration that period is twelve months, set by the twenty-ninth additional provision of Law 14/2000, and the Tribunal Supremo (the Supreme Court) has held that in regional and local civil service, absent a rule with the rank of statute setting a different one, that same State period applies. It runs from the date of the opening decision and stops if the delay is attributable to you. Expiry is not limitation: if the offence is still live, a new file may be opened, as our guide on the expiry of penalty files explains.

The merits are won on the incriminating evidence and on proportionality

Article 94.2 TREBEP subjects disciplinary power to the principles of legality and precise definition of offences, non-retroactivity of unfavourable rules, proportionality, fault and the presumption of innocence. Precise definition means the conduct must fit a specific offence: article 95.2 lists the very serious ones, among them the publication or improper use of documents or information accessed by reason of one's post, and paragraph 3 leaves serious offences to State or regional statute. An allegation that describes something blameworthy but does not fit it into a precise offence is the first crack in the file.

The burden of proof lies on the administration. Article 89.3 of Law 39/2015 requires the draft decision to set out, with reasons, the facts found proved and to assess the evidence, and article 90.1 requires the decision to include that assessment, especially of the evidence on which it rests. In a case like yours, an access log proves that your user account was used, not that you were the one at the computer: sessions left open, passwords shared out of office habit or searches requested by a superior change the reading entirely. What decides it is an independent IT expert report, not an argument.

Article 96.3 TREBEP requires the sanction to be graded according to the degree of intent, carelessness or negligence, the harm to the public interest, repetition or reoffending and the degree of involvement. Dismissal from the service can only punish very serious offences and, for a temporary civil servant, means revocation of the appointment. Where the administration picks the harshest sanction without explaining why it rules out the others, or has punished others less in identical cases, disproportion is a ground for annulling the sanction imposed, and the administration's own precedents are requested as evidence.

Provisional suspension and criminal proceedings: the two brakes on the file

Article 98.3 TREBEP allows provisional suspension by a reasoned decision, and sets a limit: it may not exceed six months, unless the procedure is held up for a reason attributable to the interested party. During it you receive basic pay and, where applicable, family benefits for dependent children. What almost nobody knows is in paragraph 4: if the provisional suspension becomes final, what was received during it must be returned; if not, the administration must pay back the difference from what you would have earned, reinstate you at once and count that time as active service. Once six months have passed through no fault of yours, reinstatement is demanded in writing.

If the investigation reveals well-founded signs of a crime, article 94.3 TREBEP requires the procedure to be suspended and the Public Prosecutor to be informed. Improper access to taxpayers' data may be relevant under criminal law, and that changes the strategy: what you state in the file may end up in the criminal case, so both defences are run together and nothing is answered in one without weighing its effect in the other. Provisional suspension may also be ordered during court proceedings, and then lasts as long as pre-trial detention or other court measures that prevent you from doing the job, without loss of the post even beyond six months.

The same article 94.3 ends with a decisive rule: facts declared proved by final court decisions bind the administration. If the criminal court declares that the act did not happen, the file cannot treat it as having happened. If it acquits for another reason, for example because it finds no criminal intent, the facts it does declare proved may support a disciplinary sanction, because the Tribunal Constitucional accepts that both routes may run together where the basis of the sanction is different. And a final conviction carrying disqualification from public office ends civil servant status by itself, with no file needed.

Against the sanction: one month for the appeal and two months for the court claim

The sanction is not enforceable while an ordinary administrative appeal still lies against it, under article 90.3 of Law 39/2015. The footer of the decision says which one applies: if it is alzada, it must be lodged, because without it the administrative route is not exhausted; if it is reposición, it is optional and you may go straight to court. In both cases the period is one month from notification of the express decision. The admissibility requirement in article 5 of Organic Law 1/2025, a prior attempt at an appropriate means of dispute resolution, does not apply here, since it belongs to civil and commercial matters: in administrative litigation, the prior requirement is to exhaust the administrative route.

Once the route is exhausted, article 46.1 LJCA gives two months from the day after notification of the express decision, or six months from the day the deemed decision arises if the appeal goes unanswered. It is a strict period that new letters to the administration do not reopen. In most cases the contencioso-administrativo section of the Tribunal de Instancia hears the claim, and in staff and sanction matters the law lets you choose between the court for your home address and the court for the seat of the body that issued the act. The claim seeks annulment, reinstatement, the pay withheld with interest and removal of the entry from your record; if the sanction is already being enforced, interim suspension is sought separately, as our guide on that measure explains.

If you are staff on an employment contract, the route changes. Article 93.4 TREBEP refers anything it does not cover to employment law, offences are defined by your collective agreement, and dismissal or sanction is disputed before the social section of the Tribunal de Instancia, within a strict period of twenty working days. If the dismissal of a permanent employee for a very serious offence is declared unfair, article 96.2 TREBEP requires reinstatement, not compensation. Some groups also have their own regime: Guardia Civil officers and military personnel appeal to the military courts, and statutory staff of the health services have their own disciplinary statute. Choosing the wrong jurisdiction while the clock runs means losing the case.

How we run the case, step by step

1. 1

   Request the full copy and fix the timetable

   The copy of the whole file, including the preliminary inquiry, is requested under article 53 of Law 39/2015. With the date of the opening decision, the expiry of the procedure and the limitation of each alleged fact are calculated.

2. 2

   Review the investigating officer and the provisional suspension

   If there is a ground for withdrawal, a written challenge is lodged as soon as it is known. If you have been suspended, the reasoning is checked and the date on which the six months in article 98.3 TREBEP are reached is noted.

3. 3

   Answer the statement of charges fact by fact

   Within the period (ten days under the State regulation) each numbered paragraph is answered, limitation and expiry are raised where they apply and the classification is disputed. Nothing is admitted without having read the complete file.

4. 4

   Propose the evidence and fight any refusal

   The IT expert report, witnesses from the department, internal instructions and previous sanctions are requested. If the investigating officer refuses any of them, the refusal and its lack of reasons are recorded so they can be relied on later.

5. 5

   Respond to the draft decision

   It is checked that the facts found proved are those in the charges, that the assessment of evidence is reasoned and that the sanction complies with article 96.3 TREBEP. If the deciding body wants to aggravate it, you have fifteen days to respond under article 90.2 of Law 39/2015.

6. 6

   Appeal the sanction and take it to court

   One month for the alzada or reposición appeal and, once the route is exhausted, two months for the contencioso-administrativo claim, seeking annulment, reinstatement, pay with interest and, if the sanction is already being enforced, its interim suspension.

The law that applies

• Art. 94 TREBEP. Subjects disciplinary power to the principles of legality and precise definition, non-retroactivity of unfavourable rules, proportionality, fault and presumption of innocence; requires the procedure to be suspended and the Public Prosecutor informed where there are well-founded signs of a crime, and declares that facts proved by final court decisions bind the administration. BOE-A-2015-11719
• Art. 95 TREBEP. Classifies offences as very serious, serious and minor; lists the very serious ones, including publication or improper use of information obtained by reason of one's post, abandonment of service and harassment; and leaves the definition of serious offences to statute or, for contract staff, to the collective agreement. BOE-A-2015-11719
• Art. 96 TREBEP. Lists the sanctions, reserves dismissal from the service and disciplinary dismissal for very serious offences, caps firm suspension at six years, requires reinstatement of permanent contract staff where the dismissal is declared unfair, and requires the sanction to be graded by intent, harm, repetition and involvement. BOE-A-2015-11719
• Art. 97 TREBEP. Sets limitation for offences at three years, two years and six months, and for sanctions at three years, two years and one year; for offences it runs from commission or from the end of a continuing offence, and for sanctions from the date the decision becomes final. BOE-A-2015-11719
• Art. 98 TREBEP. Requires a prior procedure to sanction serious and very serious offences and a hearing for minor ones, separates the investigation and sanctioning stages, caps provisional suspension at six months unless the delay is attributable to the interested party, guarantees basic pay during it and governs repayment or restitution of pay depending on whether it becomes final. BOE-A-2015-11719
• Art. 25 Ley 39/2015. In procedures started by the administration exercising sanctioning powers, expiry of the maximum period without a decision issued and notified causes the file to lapse and be closed; the count is interrupted if the procedure is held up for a reason attributable to the interested party. BOE-A-2015-10565
• Art. 90 Ley 39/2015. Requires the sanctioning decision to assess the evidence and establish the facts, prevents it from accepting facts other than those determined in the procedure, grants fifteen days to respond if a more serious classification or sanction is intended, and makes it enforceable only once no ordinary administrative appeal lies. BOE-A-2015-10565
• Art. 46 LJCA. Sets two months to bring a contencioso-administrativo claim from the day after notification of the express act ending the administrative route, six months where the act is deemed, and, where an optional reposición appeal was lodged, counts from the day after notification of the express decision on it or after the day it is deemed dismissed. BOE-A-1998-16718

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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