In Spain, being an MP, senator, minister, judge or senior regional official grants something no ordinary citizen can choose: the court that will try you. Presented as a safeguard for public office, the "aforamiento" has become a procedural privilege unmatched in Europe. ACCYDED has fought it for years, because equality before the law admits no exceptions of rank.
What a privileged jurisdiction actually is
The aforamiento is a procedural prerogative: when a person holding certain public offices is investigated or charged with a crime, the case is not heard by the court that would deal with any of their neighbours, but by a higher court designated in advance. The Constitution itself establishes it for members of Congress and the Senate, whose criminal cases fall to the Criminal Chamber of the Supreme Court (Article 71.3), and for the Prime Minister and members of the Government (Article 102.1). From there, organic laws and regional statutes have gradually extended the privilege to regional parliamentarians and governments, to judges, magistrates and prosecutors, and to other senior officials of the State, until it covers thousands of people.
This is not an immunity that prevents prosecution, but something subtler: choosing who judges. And in a country where the bodies that appoint the judges of those higher courts depend to a large extent on deals between parties, that choice is not neutral.
A nineteenth-century institution Europe has left behind
Spain is practically the only country in its political, legal and cultural sphere that maintains such a broad system of privileged jurisdiction. In most European democracies, the parliamentarian or minister who breaks the law answers to the same judges as everyone else; the protections that remain are generally limited to non-liability for opinions expressed in the exercise of office. The Council of Europe's Venice Commission has recommended limiting the immunities of public office-holders so that they do not become a shield against justice.
A State that does not trust its own first-instance judges to try the powerful is admitting that its justice is not the same for everyone.
The grounds of our complaint
On 13 October 2021 ACCYDED lodged a complaint with the Spanish Ombudsman (Defensor del Pueblo), the institution the law empowers to bring an action of unconstitutionality. It was a carefully considered decision, taken after consulting numerous lawyers, given that citizens have no direct route to challenge the laws that have multiplied these privileges. Our arguments were, and remain, compelling:
- A comparative anomaly: we preserve a nineteenth-century institution that places some citizens above the rest simply because they hold office.
- Breach of constitutional principles: it clashes with the higher values of freedom, justice and equality (Article 1.1), with equality before the law (Article 14) and with effective judicial protection (Article 24).
- Undermining the judge predetermined by law: it alters the rules on the allocation of cases and removes the privileged person from the court that would otherwise be competent, contrary to Article 24.2.
- Institutional distrust: it sends the message that first-instance judges cannot be relied upon when the suspect is powerful.
- Distortion of the Supreme Court: it turns the highest court, whose task is to unify case law, into an investigating and trial court for an elite.
A long road with no answer on the merits
That first step opened a long journey through the institutions. The association has taken its arguments before the administration, the administrative courts, the Supreme Court and the Constitutional Court, without any of them examining the substance of the matter. The only tangible response has been inadmissibility and, to cap it all, an order for costs against a citizens' association whose only request was that the Constitution be applied.
That silence says a great deal about all three branches of power. The legislature, which could abolish privileged jurisdiction through legal and constitutional reform, keeps postponing abolition proposals that various parties have at times announced. The Government does not push for change. And the judiciary, whose own members enjoy the privilege, avoids ruling on something that affects it directly.
What we propose
- Abolition of privileged jurisdiction created by ordinary law and regional statutes, starting with that of judges, magistrates and prosecutors.
- Constitutional reform of Articles 71.3 and 102.1 so that MPs, senators and members of the Government answer to the ordinary courts.
- Restriction of parliamentary non-liability to opinions and votes expressed in the exercise of office, in line with Council of Europe standards.
- Published statistics on criminal cases opened against privileged office-holders and their outcome.
Equality before the law is not defended with declarations, but with reforms. If you share this demand, support our proposal, spread these arguments and urge your representatives to set a date for ending privileged jurisdiction.