Rule of law
Not only fundamental rights are under pressure. The separation of powers is problematic. In 2015, the Spanish government introduced an urgent reform of the Constitutional Court which has adversely affected its functioning and further undermined its legitimacy and independence, at a moment when its independence is already under scrutiny due to the political appointments to the tribunal. One of the problematic measures is that the Constitutional Court can dismiss ex oficio and without being heard an elected regional president, minister or civil servant when it considers he or she is not complying with its rulings. This has been denounced by the Venice Commission and indeed, three members of the Constitutional Court itself have formulated a dissenting vote in which they admitted that the sole purpose of the reform was to sanction autonomous community leaders. In the parliamentary debate on this reform, the spokesman of the Partido Popular’s parliamentary group admitted the reform was solely designed as a political move against the elected Catalan pro-independence politicians. A similar statement was made by the chairman of the Partido Popular in Catalonia.
Another worrisome problem is the lack of independence of the judiciary in Spain. In its Compliance Report Spain (10/10/2016), the Group of States Against Corruption (GRECO) concludes that none of its eleven recommendations contained in the 4th Round Evaluation Report has been implemented satisfactorily or dealt with in a satisfactory manner by Spain. Again, on 3 January 2018, the Council of Europe published its report on ‘Corruption prevention in respect of members of parliament, judges and prosecutors’. According to the Council of Europe’s anti-corruption experts, Spain’s compliance with internationals standards ‘remains globally unsatisfactory’. Authorities made ‘limited progress in measures to tackle corruption in respect of members of parliament, judges and prosecutors’. An alarming situation that is now reflected in the shameless use of justice to pursue political prosecution.
The lack of independence in the Spanish judiciary has also been denounced from within, by former High Court magistrate José Antonio Martín Pallín, constitutional law scholars such as Joaquín Urias and more precisely by a judge responsible for investigating corruption, Mercedes Alaya. Meanwhile, the Spanish government has continued to enact legislation in complete disregard of both the GRECO and the Venice Commission’s recommendations, in a way that further entrenches rather than corrects the problems identified. The lack of judicial independence is also highlighted in the Commission’s own 2017 Justice Scoreboard (COM(2017) 167 final) and the Global Competitiveness Report of the World Economic Forum.
We want to stress that the changes impacting the Constitutional Court and the increased lack of independence of the judiciary are part of a wider sequence of reforms which undermine checks and balances and restrict human rights in Spain. There is an increasing criminalisation of dissident opinions in Spain. It has passed administrative and criminal legislation which restrict fundamental rights and freedoms as enshrined in the European Convention on Human Rights, the EU Charter of Fundamental Rights, art. 2 of the TEU and the International Covenant on Civil and Political Rights.
Legal reforms to tackle political opposition have clearly not been enough for the Spanish authorities. Last year, it was discovered that a covert ‘Operation Catalonia’ is working within the Ministry of Home Affairs, implicating a secret police branch responsible for political prosecution of Catalan politicians, with the involvement of a magistrate and the then Minister of Home Affairs himself. No judicial or political actions whatsoever were undertaken to investigate these illegal state operations, as political prosecution goes on. What’s more, there is no evidence that these illegal political police operations have been stopped.
To illustrate the general regression in human rights, in the separation of powers and in the Rule of law, we also would like to bring to your attention the reports of the Catalan Ombudsman, who has denounced a democratic regression in Spain. He concludes that ‘well-established fundamental rights and liberties, as recognised in national as well as international treaties, are affected, and that these transgressions have especially found place in Catalonia, due to the ongoing political tensions.’
An independent Catalonia gives us the opportunity to start anew, to carry through a transition to a fully democratic country with a separation of powers that is rigorously respected. The elites from the Franco dictatorship were able to secure their power and we are seeing the consequences until this very day. We want a democratic country where there is Rule of law as the Spanish Rule by law currently, which is applied according to your political preferences.