Four decades after an organic law multiplied procedural privileges for officeholders, the truth is starting to break through. When power breaches the rules of the rule of law to silence those who report corruption, history shows that a turning point is near. Impunity has a date of birth, and more and more citizens know it.
1985: the year the privilege was born
In the mid-1980s Spain was going through the democratic consolidation that followed the 1978 Constitution. It was a time of urgency: a solid legal framework had to be built to guarantee institutional stability. In that context the Organic Law 6/1985 on the Judiciary was passed, and with it the aforamiento —the special jurisdiction granted to certain officeholders— ceased to be a strict constitutional exception and became an expansive regime.
Aforamiento means that certain officeholders are not tried by the ordinary courts but by higher bodies, such as the Supreme Court or the regional High Courts of Justice. The Constitution only provides for it expressly in the case of members of Parliament (Article 71.3) and the Prime Minister and members of the Government (Article 102). Everything else —including judges and magistrates themselves— came later, through organic laws.
Why nobody challenged it
Many jurists argued at the time that this extension ran against the spirit of the Constitution. Yet no appeal on grounds of unconstitutionality was ever lodged. The reasons help explain forty years of silence:
- The political consensus of the time, when everything was subordinated to consolidating democracy.
- Institutional inertia in a system still living through its transition.
- Very weak civic oversight, shaped by the fear of a return to dictatorship.
- Interpretive doubts: if the Constitution already contemplated some privileges, why could the legislature not extend them?
Thus what was meant to be an exceptional safeguard to protect public office against politically motivated lawsuits became a personal shield. And those who need not answer to the ordinary judge that any citizen faces tend, over time, to answer to no one at all.
Lisbon changed the rules of the game
When the Treaty of Lisbon entered into force in 2009, the European Union made binding principles that many had until then regarded as rhetoric. Article 2 of the Treaty on European Union proclaims that the Union is founded on respect for human dignity, democracy, equality and the rule of law. And the Charter of Fundamental Rights, with the same legal value as the Treaties, enshrines:
- Article 20: everyone is equal before the law.
- Article 21: the prohibition of any discrimination.
- Article 47: the right to an effective remedy and to an impartial tribunal.
A regime that grants procedural privileges to certain people because of their office can only be justified if it is proportionate, limited and strictly necessary to protect the legitimate exercise of public functions. The Spanish model, given its huge scope and the fact that it also covers ordinary offences unrelated to the office, departs from those standards and is hard to reconcile with the equality before the law required by EU law. Moreover, the Area of Freedom, Security and Justice strengthened judicial cooperation among Member States on the basis of procedural equality, not personal privileges.
The fox cannot guard the henhouse
Of all these privileges, the hardest to justify is the one enjoyed by judges. Those whose mission is to check the other branches of power cannot enjoy a special jurisdiction that, in practice, places them beyond ordinary scrutiny. When the people who try judges are their own hierarchical superiors, who also decide on their promotions and postings, corporatism stops being a risk and becomes a permanent temptation.
Golden rule: no judge should enjoy special jurisdiction. The fox cannot guard the henhouse.
In comparable European countries this figure is exceptional and tightly restricted; in Spain, by contrast, it has become the norm for judges, prosecutors and thousands of officeholders across all three branches: legislative, executive and judicial.
From fear to awareness
Forty years of solitude are not due to nobody seeing the problem, but to too many people choosing not to look. Today things are different: there are informed citizens, organised associations and a European framework offering tools that did not exist in 1985. The desperation of those who benefit from impunity is precisely the sign that their time is running out.
We call for a reform that abolishes special jurisdiction for judges and prosecutors, reduces it for political officeholders to the cases strictly provided for in the Constitution, and limits it to offences committed in the exercise of office. We invite you to learn about our actions, share them and join them: equality before the law is not begged for, it is demanded.