Who watches the watchman? The criminal responsibility of the Constitutional Court of Spain

@ElentirENG ES 6·24·2024 · 19:05 0

Spain is experiencing an unusual situation in relation to its Constitutional Court (TC), converted into a legal steamroller at the service of the government.

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That constitutional body, which has been colonized by the socialists like many other Spanish institutions, is preparing to erase with a stroke of the pen the biggest corruption scandal of the Socialist Party (PSOE): the ERE case, which it cost taxpayers 679 million euros, money that has not been recovered. What we are experiencing now is a covert amnesty by a TC that has become just another branch of the PSOE.

Given these facts, some wonder what happens if the members of the Constitutional Court commit a crime in the exercise of their functions, specifically a crime of prevarication, that is, making a decision knowing that it is illegal . It is the classic question in a democracy: who watches the watchman?

What the Spanish Constitution says

In relation to this issue, Article 159 of the Spanish Constitution establishes a series of incompatibilities for the members of the TC. Point 5 of that article adds: "The members of the Constitutional Court shall be independent and irremovable during their term of office." But obviously, it would be crazy for a member of the TC He could not be removed from office if he committed any crime. This matter is briefly addressed in Article 165 of the Constitution:

"An organic law shall regulate the functioning of the Constitutional Court, the statutes of its members, the procedure to be followed before it, and the conditions governing actions brought before it."

The Organic Law of the Constitutional Court of 1979

It is striking that the Constitution itself has not provided for the case in which a member of the TC may commit a crime or what body should judge him in that case. We are, certainly, facing a constitutional gap. That gap was filled by the Organic Law of the Constitutional Court (LOTC) of 1979, approved the year after the approval of the Spanish Constitution. The LOTC states in its Article 22:

"The Judges of the Constitutional Court will exercise their function in accordance with the principles of impartiality and dignity inherent to it; they may not be persecuted for the opinions expressed in the exercise of their functions; they will be immovable and may not be dismissed or suspended but for any of the causes that this Law establishes."

Article 23 of the LOTC establishes the following in point 1:

"The Magistrates of the Constitutional Court cease for any of the following reasons: First, due to resignation accepted by the President of the Court; second, due to expiration of the term of their appointment; third, due to incurring in any cause of incapacity of those provided for the members of the Judiciary; fourth, due to supervening incompatibility; fifth, for failing to diligently attend to the duties of their position; sixth, for violating the reserve of their function; , for having been declared civilly liable for fraud or convicted of malicious crime or gross negligence."

Furthermore, Article 24 of the LOTC states:

"The Magistrates of the Constitutional Court may be suspended by the Court, as a prior measure, in case of prosecution or for the time necessary to resolve the concurrence of any of the causes of dismissal established in the previous article. The suspension requires the favorable vote of three-quarters of the members of the Court meeting in plenary session."

Taking into account the current drift of the TC, its leftist majority could prevent the suspension of one of its members even if they are being prosecuted for committing a crime. They have been capable of doing worse things than this, so there is no doubt in anyone's mind that they would go to that extreme. Finally, Article 26 of the LOTC states:

"The criminal responsibility of the Magistrates of the Constitutional Court will only be enforceable before the Criminal Chamber of the Supreme Court."

The paradox that could occur at this moment

Let's observe a paradox: having an absolute majority in Congress, the Sánchez government and its partners could change this organic law to benefit any related magistrate who has committed a crime. The body in charge of verifying the constitutionality of this reform would be the TC itself in the hands of the left. It is a vicious circle that represents a clear threat to the Rule of Law in the event that a parliamentary majority intends to do what in fact Sánchez and his associates are already doing: demolish our constitutional legality.

Obviously, a reform to benefit a magistrate who has committed a crime would be a scandal. A scandal similar to granting an amnesty (something expressly prohibited by the Constitution) to the government's allies in exchange for their support for Sánchez's re-election. A scandal like the deletion of the ERE case by the TC. A scandal like the fact that the TC has distorted the Constitution to shield the current abortion law. All this without the European Commission saying anything, because it needs the support of the socialists.

No democracy can survive widespread corruption

We have reached the point here at which democracies go bankrupt: when the laws no longer matter because the political power ignores them without there being a popular reaction that forces it to resign, and without the organizations international organizations to issue any complaints because it is a like-minded government. No democracy can survive widespread corruption and a society indifferent to it. At this point, we should all assume the responsibility we have at this critical moment in Spain, through our capacity to protest, to stop this dangerous drifts towards totalitarianism.

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Photo: Tribunal Constitucional.