Who judges Spain’s political class?

Earlier this month, the Justice Ministry decided to grant immunity from trial in the country’s lower courts to Queen Sofía, Prince Felipe and his wife, Princess Letizia. The move has sparked a debate about the legal privileges enjoyed by thousands of Spain’s public officials.

The decision also raises questions because it comes as Felipe’s younger sister, Princess Cristina, and her husband, Iñaki Urdangarín, remain official targets of a court investigation into corruption and have been questioned by judges from the Balearic provincial court in Palma de Mallorca.

Around 10,000 politicians, magistrates and other public officials enjoy what is known as aforamiento, giving them special protection before the law that their counterparts in other developed countries would be envious of. For example, if a politician in the United States or most of Europe is accused of breaking the law, they face trial under the same terms and conditions as any other person. But in Spain, an aforado can only be tried by Spain’s Supreme Court or by the highest court in their region.

Former Italian prime minister Silvio Berlusconi spent a great deal of time in the lower courts of Italy; Germany’s former president Christian Wulff was tried by a court in Hannover over corruption allegations. In Germany, the United Kingdom and the United States, all public officials accused of wrongdoing, from the prime minister or president down, face the same procedures as anybody else. In Portugal and Italy, only the president is tried by the highest court; in France this applies to the president, the prime minister, and the Cabinet.

An aforado can only be tried by Spain’s Supreme Court or by the highest court in their region

The reasoning behind aforamiento is simple: it is meant to protect senior officials from spurious attacks, while at the same time relieving lower courts from any potential pressure when dealing with high-profile figures. The Constitution originally gave aforamiento only to the prime minister, the Cabinet, and members of the lower and upper houses. It was then extended to judges and public prosecutors, magistrates sitting on the Constitutional Court, members of the General Council of the Judiciary (the legal watchdog) along with members of the Council of State, and the Ombudsman and his or her assistants. Finally, when Spain’s 17 regional governments were set up, their members, along with deputies in the regional parliaments, were also covered by aforamiento.

“When we travel abroad and tell people about our system, they are surprised,” says Iñaki Esparza, a professor at the University of the Basque Country, and Juan Luis Gómez Colomer, a legal expert who has written extensively about aforamiento. “This has to be viewed in the context of the times that the law was passed: Spain was a country still moving from dictatorship to democracy, and it was felt that freedom of expression still needed defending. But it has to be said that now, more than three decades later, it needs to be cut back,” says Colomer.

Aforamiento and immunity are not the same thing. Parliamentary immunity is found in most countries, except in the English-speaking world. The idea was first proposed in the wake of the French Revolution, and spread throughout continental Europe. In Spain, deputies can only be arrested if they are literally caught in the act of committing a crime.

The situation varies considerably, even within Europe. The 999 members of France’s upper and lower houses, as well as representatives in the European Parliament, all enjoy immunity, but this can be swiftly revoked by the respective parliaments.

The 21 members of the French government cannot be tried by any court other than the Court of Republican Justice in cases involving politics; any other crime can be investigated by an ordinary judge.

In Italy, elected officials can be investigated by judges from lower courts, but cannot be detained except with the permission of their chamber, which almost always refuses. In the case of Silvio Berlusconi, now that he has been expelled from the Senate after his conviction over the Mediaset case, he is extremely vulnerable, and faces several possible charges.

German politicians too can be tried by ordinary courts, and only the president and members of parliament enjoy immunity (but not the chancellor). If they are charged by the police, they immediately lose their immunity. So far, German politicians who have been called to trial have all resigned.

Manuel Cancio, a professor of criminal law and an expert on German law, explains the difference between the Spanish and German systems: “The immunity that public representatives enjoy in Germany is completely different to Spain’s aforamiento, which I don’t believe is justified any longer. Aforamiento implies that the Supreme Court is going to be better or more fair than another. But the reality is that this special rule can only be understood as an attempt to protect certain positions by having them tried closer, as it were, to the organs of power; after all, every court is supposed to be an indivisible expression of judicial authority.”

In Portugal, only the president, prime minister and president of the National Assembly enjoy immunity from prosecution. In the United States, reflecting British concepts of equality before the law, all politicians and members of the judiciary are tried by a court in correspondence with the crime they are accused of. Impeachment is not a judicial procedure, but a political one. In the event that a president is accused of committing a crime, he or she would be tried before a normal court, but this has never happened, because Nixon resigned, and the Clinton/Lewinsky case came to nothing.

In Spain, there has been concern about the number of aforados for some time. “We do not think it appropriate that aforamiento has been applied so widely, because it creates suspicion among voters,” says Francisco Martínez Espinosa, a senior judge based in Palma de Mallorca. Cases involving aforados are also fast-tracked in a country where the wheels of justice move with glacial slowness for ordinary mortals.

That said, Gonzalo Martínez-Fresneda, a Spanish lawyer who has defended several senior politicians and officials, among them former minister José Blanco and Baltasar Garzón (a judge who was barred from office after he was found guilty of overstepping his authority), believes that the privileges that aforados enjoy actually put them at a disadvantage before the law.

Aforamiento was originally  meant to protect Spanish senior officials from spurious attacks

“These privileges entail more inconveniences than advantages,” he says. “The only advantage of being tried by the Supreme Court is the quality of the magistrates, which is higher than most of their colleagues in other courts, which offers an a priori guarantee. But unlike the rest of us, aforados are unable to appeal a ruling, or have it reviewed by another court, which is a fundamental right within the European Union.”

Martínez-Fresneda says that another problem aforados face is that the judge and the lawyers involved in the investigation all belong to the same court. “It is hard for the court to maintain the necessary distance in the event that appeals need to be lodged against the judge overseeing the case: it would be seen as overruling a colleague,” he says.

But Juan Luis Gómez Colomer says that the advantages of being tried by the Supreme Court far outweigh the disadvantages. “These people may not have the right to appeal, like the rest of us, but most of us would much prefer to be tried by the highest court in the land.” He believes that the Supreme Court’s job is to deal with appeals, and to establish legal precedents. “That is what it is supposed to do, not try cases,” he says.

Public concern that senior figures — whether politicians facing corruption charges, or members of the royal family — enjoy special privileges was highlighted earlier this week when the judge investigating a corruption case in Andalusia sent two civil guards to Congress on Monday with a message for three senior figures from the region who are aforados. The message could not be delivered because the provincial judge investigating the case is prevented from questioning deputies. If she wishes to have the three men questioned, she will have to hand over that part of the case to the Supreme Court.

This problem has come up several times in recent years in connection with corruption cases involving elected officials, notably in Valencia, where several members of the regional government face charges.

There are currently 28 aforados under investigation by the Superior Courts of Valencia, Catalonia and the Canary Islands.

With reporting by  L. Doncel, A. Jiménez Barca, W. Oppenheimer, P. Ordaz, E. Sáiz and A. Teruel.