Subject: New legislative initiative accelerates the deterioration of the Rule of Law and Justice in Spain.

December 20th, 2022


Dear Mr. Didier Reynders,

Firstly, I would like to thank you on behalf of Hay Derecho for your work in the Department of Justice of the European Commission.

Hay Derecho is a Spanish foundation established in 2010 that promotes institutional regeneration, the fight against corruption and the defence of the Rule of Law. Following the meeting we held last September 30, 2022, in which we had the extraordinary opportunity to present to you our opinion on the situation of the General Council of the Judiciary (CGPJ) and to anticipate our views on the current situation of the Rule of Law and Justice in Spain, we are writing to you today to show our extreme concern for the worsening of the situation.

On November 11, 2022, the Government of Spain presented in the register of the Congress of the Deputies an initiative that risks accelerating the deterioration of the Rule of Law and Justice in Spain, the so called Proposed Organic Law on the transposition of European directives and other provisions for the adaptation of criminal legislation to the European Union system, and reform of crimes against moral integrity, public disorder and smuggling of dual-use weapons, file number 122/000271 (see here in Spanish).

The initiative was presented through the Socialist Party (PSOE) and Unidas Podemos (UP) groups in Congress, and not by the Government itself, in order to avoid requesting mandatory reports from various constitutional bodies, including the General Council of the Judiciary (Consejo General del Poder Judicial) and the General Prosecutor (Fiscal General). The initiative is to rule a very controversial matter, i.e., the definition and scope of the sedition and embezzlement offences in the Criminal Code, a reform that is directly related with the responsibilities of politicians involved in the attempt of sedition in Catalonia in 2017.

Furthermore, on December 9, the aforementioned political parties presented two unrelated amendments (number 61 and 62, see here in Spanish) aimed at including a final provision to modify the Organic Law (Ley Orgánica) 2/1979 of the Constitutional Court (Tribunal Constitutional) and the Organic Law (Ley Orgánica) 6/1985 of the General Council of the Judiciary. The amendments aim, without the consensus of the other parliamentary groups, to lower the required majorities – from 3/5 to simple majority – to appoint the judges of the Constitutional Court, among other issues.

The presentation and admission of amendments which, due to their novel content, make it impossible for the minorities to take a new position, infringes on the right of the deputies to correctly exercise their representative function, as the Spanish Constitutional Court has already ruled (STC 119/2011, FJ 6). This case is particularly serious as the changes have not been informed by the corresponding constitutional bodies, does not have parliamentary consensus and directly affects the design of a constitutional body and the separation of powers. This has led to an appeal to the Constitutional Court with a request for precautionary measures to prevent the vote, which have been finally adopted by the court, producing new constitutional and political tension.

Moreover, this reform is openly against the position of the EU in this matter, as reflected in the various recommendations approved by the European institutions – which references, as they are largely known, are omitted –, as well as various rulings of the Court of Justice of the European Union.

It is for this very reason that in 2021 the Vice-President of the Commission responsible for Securities and Transparency already conveyed to the Minister of Justice her negative opinion on a similar reform for the election of them members of th CGPJ.

Additionally, we believe that, if this legislative reform is eventually approved, it will not be reverted, regardless of the confrontation from the opposition of the parties, the civil society and the public opinion that it may receive. That is exactly what happened in 1985, when the system of appointment of the members of the CGPJ was amended.

Although the system has been severely criticized and has been subject of endless debates for almost four decades; despite the constant pressure from public opinion, experts, civil society and even EU institutions; despite the fact that judicial associations, civil society and a few parties have explored possible regulatory solutions over the years, the legislative reform has never been reverted.

The reason why, in the last 37 years, no political party has shown any real interest in increasing judicial independence, is because they lack incentives to do so, as the majority political parties seek to achieve an indirect influence on the most important judicial cases through the appointment of the CGPJ members.

Politicization of Justice is indeed a structural deficiency of the rule of law in Spain and, at the present time, the institutional framework has reached an unsustainable point. This reform has been momentarily suspended by the Constitutional Court, but it should be definitely shelved, at least in the matters that regard the organization of the CGPJ and the Court itself. It is also necessary to promote the adoption of new rules that will prevent these two key institutions being held hostage to party politics.

In line with our work carried out for the preparation of our ‘1st Report on the State of the Rule of Law in Spain 2018-2021’ (‘1er Informe sobre la situación del Estado de derecho en España 2018-2021’) that was publicly presented in November 2022, we call on the European Commission to intervene in this situation.

Hay Derecho has extraordinary confidence in the EU institutions, which, thanks to a distance from partisan politics, have
great institutional and reputational authority, especially considering that Spain will hold the Spanish Presidency of the EU Council in H2-2023 and that the NextGeneration funds are still pending further disbursement.

In this sense, Hay Derecho believes that institutional pressure from the European Union institutions on the Government and parties would have a reputational cost on them and could lead to stop the proceedings of the initiative, as well as to avoid further damage to the Rule of Law.

However, reputational pressure is necessary, but may not be sufficient at the present time. Hay Derecho therefore believes that the European Commission could also consider additional legal instruments to put additional pressure on the Government. We will be happy to collaborate with you to that end, as many others will.

Without further ado, being aware of your many commitments and thanking you in advance for your time and attention, we look forward to hearing from you.

Yours sincerely,

Ignacio Gomá
Hay Derecho
(Rule of Law Foundation)