The Constitution requires fundamental rights to be interpreted always in favour of the individual. Spain has signed the major human rights treaties and accepts international courts. So why must a citizen go to Luxembourg to claim something as basic as equality before the law? The answer exposes the gulf between what is written and what is done.
A principle designed to protect, not to decorate
The pro homine (or pro persona) interpretation is an essential principle of human rights law: when a provision can be read in several ways, the reading that gives fundamental rights the greatest protection and effectiveness must prevail, and when several provisions apply, the one most favourable to the individual must be chosen. It is not a doctrinal courtesy; it is a rule of interpretation binding on judges and public authorities.
Our Constitution embraces it in Article 10.2, which requires rights and freedoms to be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties ratified by Spain. On paper, the system is flawless:
- Article 9.2 obliges public authorities to promote the conditions for freedom and equality to be real and effective, and to remove the obstacles that prevent it.
- Article 14 proclaims that Spaniards are equal before the law.
- Article 53.2 allows any citizen to seek protection of those rights before the ordinary courts through a preferential and summary procedure and, where appropriate, through an amparo appeal to the Constitutional Court.
- Spain has ratified the European Convention on Human Rights and the International Covenant on Civil and Political Rights, and accepts the jurisdiction of the European Court of Human Rights.
With such a legal arsenal, one would expect equality to be watertight. And yet…
The Constitutional Court looks the other way
The Constitutional Court has not found sufficient constitutional significance to rule on a breach of the principle of equality that affects the whole system: the existence in Spain of more than 240,000 people enjoying special jurisdiction, according to the most widely cited estimates, judges and magistrates among them. It is hard to imagine a question of greater constitutional importance than whether we are all truly equal before the law.
This silence opens an alarming gap between the theory of fundamental rights and their practical application. Citizens read Article 14, only to find that the treatment they receive from the justice system depends on the office held by the person on the other side.
Strasbourg does not answer either
Nor has the European Court of Human Rights paid attention to this violation in the Kingdom of Spain. This raises serious questions about the real effectiveness of international protection mechanisms and about the ability of European institutions to enforce the standards they themselves proclaim. A system of safeguards that activates only for some cases and holds back from the most uncomfortable ones is no longer a safeguard but a filter.
Rules that bind no one
The result is a system that presents itself as normative but in practice works as a catalogue of programmatic rules: statements of intent whose breach carries no consequences. Responsibility is shared among the three branches of power:
- The legislature, which extended special jurisdiction through organic laws and has never substantially reduced it.
- The executive, which neither drives reform nor promotes, as Article 9.2 requires, real and effective equality.
- The judiciary, which benefits from the privilege and, at the same time, decides whether that privilege deserves scrutiny.
A right that no one enforces is not a right: it is a broken promise with constitutional rank.
A word to the wise is enough. If citizens do not become aware of these shortcomings, inaction will continue to prevail and the most corrosive logic of any democracy will endure: if nobody complains or scrutinises, nothing happens.
From national silence to Luxembourg
The State, at both national and international level, must strengthen oversight and accountability mechanisms so that fundamental principles are not reduced to rhetoric. Until that happens, equality and the other essential rights will have no real impact on justice or on people's lives.
Faced with the inaction of national and international authorities, we have taken our claim to the Court of Justice of the European Union, guardian of the Charter of Fundamental Rights. We will keep you informed. And we ask you something simple: do not resign yourself, stay informed and demand, with us, that the interpretation most favourable to the individual stops being a forgotten principle.