Constitutional law textbooks put it plainly: a constitutional court exists to subject politics to law, to protect minorities from the majorities of the moment and the majority from powerful minorities. But what happens when the guardian of the Constitution refuses even to examine a privilege that flatly contradicts the equality of all before the law?
The guardian meant to watch over power
Constitutional scholarship agrees on a simple idea: the legitimacy of the constitutional judge rests on defending the will of the sovereign people —embodied in the Constitution— against that of their own representatives. Judicial review has a twofold value: it preserves the rights of minorities against the majoritarian passions of the day, and it guarantees the rights of the majority against the interests of small but powerful or influential groups.
Read slowly, that principle sums up the essence of the rule of law: oversight of power. Without it, the Constitution ceases to be an enforceable legal norm and becomes a statement of good intentions. That is why what the Constitutional Court does —and fails to do— matters so much.
Four decades of unexamined privilege
Since 1985, Spain has maintained a system of aforamientos: privileged procedural treatment that removes certain office-holders from all three branches from the jurisdiction of the ordinary courts. We will not look for causal links, but it is striking that 1985 was also the year our country signed its accession to the European Communities, effective from 1 January 1986.
Our association has tried, through every domestic avenue, to get a Spanish court —a High Court of Justice, the Supreme Court or the Constitutional Court itself— to accept that this privilege raises a question of constitutional importance. None of them addressed the merits. With domestic remedies exhausted, on 16 April 2024 we lodged an application against aforamientos with the European Court of Human Rights.
What Europe requires
Much has changed since 1985. The Charter of Fundamental Rights of the European Union, proclaimed in Nice in 2000 and legally binding since the Treaty of Lisbon, enshrines in Article 47 the right to an effective remedy before an independent and impartial tribunal. Article 6 of the European Convention on Human Rights, for its part, guarantees the right to a fair trial. And trying senior office-holders before the Supreme Court, by concentrating proceedings at the very top of the judiciary, raises obvious problems for the right to a second instance and to appeal.
The European Commission said as much in its 2023 Rule of Law Report, noting that concern persists over the Supreme Court's jurisdiction regarding the criminal liability of senior officials. It added that only some regional Statutes of Autonomy had been reformed and that no measure had been taken at national level. Even so, our Constitutional Court, guarantor of the Constitution's supremacy over organic laws, has not felt called upon to rule.
Speaking up comes at a price
Law 2/2023 transposed the European directive protecting people who report breaches and corruption. Four months after it came into force, a judge who had reported alleged corruption in our courts was imprisoned. The paradox could hardly be more telling.
We have sought to hold to account those who shelter behind their privileged status, turning to High Courts of Justice, the National High Court and other bodies. Every complaint ended up shelved by the specialised prosecution offices, which found no reason whatsoever to doubt that any privileged office-holder might be using that status for less than honest ends. As if human nature stopped at the doors of the highest courts.
A court that gives up overseeing power ceases to be the guardian of the Constitution and becomes a mere spectator.
What the Constitution does guarantee
To those who advise resignation and enjoying life without demanding accountability, we recall three provisions that admit no complacent reading:
- Article 9.2: requires public authorities to promote the conditions for freedom and equality to be real and effective, and to remove the obstacles that prevent or hinder their full enjoyment.
- Article 14: Spaniards are equal before the law, and no discrimination may prevail on the grounds of any personal or social condition or circumstance.
- Article 53.2: any citizen may seek protection of those rights before the ordinary courts through a preferential and summary procedure and, where appropriate, by an amparo appeal to the Constitutional Court.
The Spanish verb used there, recabar, literally means to obtain by insistence what one asks for. And that is exactly what we will keep doing: insisting, before every national and European forum, until privilege no longer prevails over equality. We invite you to join us, to stay informed and to demand that your representatives abolish aforamientos.