ACCYDED - Citizens Association Against Corruption and for the Defense of the Rule of Law

Prevalence

the international treaty must be applied before the internal norm, as long as it does not contradict the Constitution

A police inspector specialising in drug trafficking lives under constant scrutiny, even in private life, because of the risk of corruption. A judge ruling on multimillion-euro cases faces no comparable check on his or her assets. How does that asymmetry square with the equality before the law proclaimed by the Constitution and by treaties that prevail in Spain?

What prevalence means

In law, prevalence denotes the primacy of one rule over another. Applied to international treaties, it means that where a validly concluded and published treaty conflicts with a domestic rule ranking below the Constitution, the treaty must be applied. Article 96 of the Spanish Constitution incorporates treaties into domestic law, and Article 31 of Law 25/2014 on Treaties and other International Agreements spells it out: treaties prevail over any other domestic rule in the event of conflict, save for those of constitutional rank.

In 2009, with the entry into force of the Treaty of Lisbon, the Charter of Fundamental Rights of the European Union acquired the same legal value as the Treaties. Its Article 20 states without qualification that everyone is equal before the law. It is a mandate that binds Spain and which, within the scope of EU law, overrides any organic or ordinary law that contradicts it.

Independence is not immunity

Article 117 of the Constitution enshrines the independence of judges and magistrates, and Organic Law 6/1985 on the Judiciary develops it. That independence is a guarantee for citizens: it ensures that their case will be decided free from pressure. But it cannot become a free zone in which the decisions and conduct of those who judge escape all scrutiny.

The lack of accountability is especially alarming when controversial rulings appear to favour those with economic or political power. Without an adequate system of oversight, a safeguard designed to protect impartiality may end up operating as armour for those who wield it.

The awkward question

Tax havens have been used for decades to hide large fortunes. Are there effective mechanisms to verify that those who sit in judgment are not linked to such circuits? When these doubts are raised, all too often they evaporate for want of oversight tools, instead of being dispelled by a rigorous investigation.

The comparison with other public servants is telling:

  • A police inspector specialising in drug trafficking is subject to constant monitoring by superiors, even in private life, because of the risk of being corrupted.
  • A judge ruling on multimillion-euro cases or on large companies is not, in practice, subject to equivalent scrutiny of his or her assets.
  • Both perform sensitive public functions; only one of them is continuously held to account.

Independence protects those who judge from pressure; it should never protect them from questions.

Equality preached and equality practised

Article 14 of the Constitution states that Spaniards are equal before the law. Yet procedural privileges and the absence of equivalent controls for those who hold the most power sketch an implicit hierarchy: the law is not as blind as it claims to be. This inequality is not exclusive to the judiciary; the legislature and the executive also benefit from special jurisdiction and lax oversight, and the three powers tend to protect one another.

If Spain wishes to be a fully-fledged state governed by the rule of law rather than a facade democracy, it needs:

  1. Public, verifiable asset declarations for senior office-holders in all three branches, judges included.
  2. Independent oversight bodies with real investigative powers.
  3. The abolition of unjustified procedural privileges.
  4. Effective application of the prevalence of treaties and EU law where they enshrine equality before the law.

Prevalence is no technical nicety: it is the tool that allows any citizen to demand that the equality promised in Europe is honoured in our courts too. Knowing it and invoking it is the first step towards ensuring that no one, however high their office, is exempt from accountability.

Further reading