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

The solution

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In 1985 a single organic law was enough for judges to shield themselves with the privilege of aforamiento. Four decades on, restoring the equality proclaimed in Section 14 of the Constitution looks like mission impossible. It is not. The solution exists, it is written into our laws, and it only requires someone willing to apply it.

The false obstacle of constitutional reform

Whenever the media address aforamientos, they tend to dismiss the issue with one excuse: abolishing them would require amending the Constitution, a complex process demanding impossible majorities. That is a half-truth. The constitutional text provides special jurisdiction for members of Parliament and of the Government, elected office-holders who answer at the ballot box and whose position can be revisited politically. Indeed, several autonomous communities have already given up the aforamientos of their representatives when reforming their statutes of autonomy.

What goes unsaid is that most aforamientos do not stem from the Constitution at all, but from ordinary and organic legislation. That of judges and prosecutors, in particular, was laid down by the 1985 Organic Law of the Judiciary. And what one law grants, another law —or a court— can take away.

The facts, one by one

First. A small group of public servants, whose very function is to apply the law, enjoys a privilege that clashes with Section 14 of the Constitution: Spaniards are equal before the law, with no discrimination on grounds of birth, opinion «or any other personal or social condition or circumstance».

Second. Those same judges have a clear legal duty. Section 35.1 of the Organic Law of the Constitutional Court requires any judge or court that considers a statutory provision applicable to the case may be contrary to the Constitution to refer a question of unconstitutionality. No one has done so regarding their own special jurisdiction.

Third. Meanwhile, case law shows a troubling pattern of interim suspensions of multi-million penalties imposed on large companies:

  • October 2019: a fine of 13.75 million euros on the leading telecommunications infrastructure operator is suspended.
  • September 2021: the National High Court suspends a 123 million penalty on an Asturian engineering group.
  • December 2022: interim suspension of a 38.5 million fine on a major construction company.
  • March 2023: suspension of 17 million against an energy company in a corporate tax matter.

The phenomenon reached such a point that the National Markets and Competition Commission itself complained publicly, in 2023, that the National High Court was suspending virtually all of its penalties.

The coincidence nobody explains

The fine on the infrastructure operator is particularly telling. In June 2021 the European Commission adopted Decision (EU) 2021/2034, which declared unlawful the public aid granted to roll out digital terrestrial television in remote areas and ordered Spain to recover it from the beneficiaries. Two years later, in May 2023, the National High Court upheld the penalty of over 13 million that had been suspended four years earlier. It took action from Brussels for the scales to move.

Add to this the reform of the offence of embezzlement introduced by Organic Law 14/2022 of 22 December, which reduced criminal liability where the official does not appropriate public assets but diverts them to another use. In practice, the response is softened for those who divert funds without enriching themselves directly, even if third parties do. It is striking that this reform coincided with public complaints about alleged offshore accounts linked to public officials.

The solution needs no impossible reforms: just one judge willing to uphold the law even when the law removes a privilege.

The solution

Focusing on the facts makes the way forward clear. We propose three concrete steps:

  1. That any court hearing a case in which the aforamiento of judges or prosecutors applies refers the question of unconstitutionality provided for in Section 35 of the Organic Law of the Constitutional Court.
  2. That Parliament abolish, by organic law, all aforamientos lacking constitutional backing, starting with those of the judiciary.
  3. That decisions on multi-million penalties be reasoned and published with full transparency, and that the accountability of those who take them be strengthened.

The corruption balloon keeps swelling while proceedings involving millions never recovered gather dust in the drawer of oblivion. Breaking that inertia is everyone's task: honest judges, who are the majority, legislators, and citizens who refuse to resign themselves. Demand that your representatives put an end to privilege. Equality before the law is not negotiable.

Further reading