Sumar, the Party or volcanic conglomerate created by the Vice-President of the Government, decided a few days ago to file a complaint against the Acting President of the General Council of the Judiciary (CGPJ) and the surviving members of what, in spite of everything, is a High State Body. The crime charged is that of prevarication, which would have occurred because of the “unacceptable interference” in the legislative function of the Congress of Deputies, which was the celebration of an extraordinary plenary session that led to an institutional declaration against the Amnesty Law, and for which all of them would be responsible.
Once again we are before a dramatic fact, as it is that a political Party that participates in the Government goes to the criminal jurisdiction as a reaction to an action of someone who belongs to another Power of the State, but not a serious one. And there are many reasons for this, beginning with the lack of knowledge of the meaning of the crime of prevarication that this complaint reveals, in which there is no unjust administrative resolution that marks a milestone in any administrative procedure but, exclusively, a public stance of the CGPJ, however weakened it may be, against a bill that, by the way, has not yet been approved.
To complete the picture, it should not be forgotten that the CGPJ, normally, has to report on future criminal or penitentiary laws, in accordance with the provisions of art.561-1-8º of the Organic Law of the Judiciary, but this report is not mandatory when, as in this case, it is a Proposition of Law, which, according to the Regulations of Congress, does not have to comply with this requirement.
Not being, therefore, in a position to issue a mandatory opinion on the Bill, the CGPJ has chosen to issue its opinion freely, a decision that it takes, according to what it has said, bound by its institutional duty to concern itself with everything that affects the creation of laws to be applied by the Courts, whether it has been required to do so or not. In the informative note issued by the CGPJ, it is expressly stated that the members of the body are aware of the fact that the way of the bill was chosen precisely in order, among other things, to avoid a report from the CGPJ.
That is the summary of the facts that preceded the filing of the aforementioned complaint. I do not intend to analyze the opinion of the CGPJ on the bill, nor the opportunity to pronounce on it, nor the content of the complaint, of which I have already said that it contains an absolutely unviable accusation in legal terms, which in the end is the only one that should matter. I believe that there are other aspects of the matter that should be of concern.
In the first place, without questioning the legitimacy that, in the abstract, supports the actions of the CGPJ, we cannot leave aside the no small problem of its current situation, produced by the stubbornness of the Popular Party in refusing to renew its composition, to the point that in practice, with a few exceptions, only the members who were proposed by the PP continue in it, which, irremediably, and without detracting from their good work as jurists, calls into question the initiatives of the body. And this has nothing to do with the censures that they have seen fit to express in relation to the projected amnesty law, about which many, myself among them, have said much harsher things.
As for the complaint filed by Sumar, the criticisms must be different. I start from the conviction that, within that Party, or whatever it is, there are people with enough experience and knowledge of criminal law to know that the viability of this criminal action is absolutely null. Therefore, the objective pursued with the complaint is not and cannot be to subject to a process before the Supreme Court the Members and the President of the CGPJ who have subscribed the agreement that motivates the action undertaken.
At this point, one must ask oneself about the reasons that may have prompted Sumar, a group headed by the Vice-President of the Government, not to be forgotten, to take a step that leads to nothing, unless the objective is not to seek the protection of criminal law against “unconstitutional” behavior of the CGPJ – a conflict that in no case would involve the intervention of a criminal court – but a merely propagandistic act inspired exclusively by the desire to convey the idea that the CGPJ acts at the dictation of the PP, which, in turn, counts on the judges, natural enemies of progress, as they have demonstrated on other occasions, for example, in the application of the ill-fated Law of the “only yes is yes”, to combat the “progressive” policy of the Government and its auxiliary Parties, especially those that are gathered in Sumar, so that the probable failure of the lawsuit against the CGPJ will serve as confirmation of their thesis.
Most likely, this is the explanation for everything, and, if this is the case, regardless of the disrespectful treatment of criminal law, we are faced with a dangerous perversion of the institutions and the rules, since, undoubtedly, Sumar has not acted, in any way, in the interest of justice, which is the condition that must preside over the exercise of a criminal action.
The use of the criminal action is regulated in Spain with characteristics unknown in the other procedural systems of the EU, in which the exercise of the criminal action is normally a monopoly of the Public Prosecutor’s Office. From this basic rule it is not possible to conceive figures of Spanish law suitable to initiate a criminal proceeding, such as the private prosecutor, and even less, the one who exercises the popular action, which can be a subject who has not been harmed by the crime. This Hispanic tradition of the popular action has been and will be the source of many deviations and abuses, which will not end as long as the figure is not properly regulated, but it is an old problem that I will not go into.
The criminal action, which, in our system, as I have just said, is not reserved to the Public Prosecutor’s Office, is available to all with very few exclusions (art.102 and 103 of the same Law), but, even being few, they are important because they reveal that limitation is possible and reasonable, as, for example, the exclusion of those who have previously committed the crime of false accusation or that of judges and magistrates, unless they have committed a crime against their person or their property.
Starting from this “possibility”, we have to go to the permanent protest of many for the “judicialization” of incidents or conflicts that should not extend beyond the proper space of politics, and, instead, often end up in criminal proceedings. This drift is so worrying that the programs promised by the current Government and the adjacent Parties include the purpose of avoiding the judicialization of political conflicts. But when one looks into the objective of this promise, what seems to be the demand that the actions of politicians, or those of the members of their parties, which in one way or another can be related to political activity, remain outside the scope of action of the Public Prosecutor’s Office, which will not file charges, which, in principle, is an enormity if they are facts that can be typified as crimes. A different matter is that, rightly or wrongly, some understand that acts of political inspiration should be outside the criminal jurisdiction because they are manifestations of ideological freedom or the right to political participation.
In any case, it is contradictory to cry out against the “interference” of the Courts in political matters – without going into the correctness of the adjective – and to turn to the Courts to intervene in problems of clear political content, such as the debate on the correctness or inappropriateness of an amnesty such as the one under discussion.
On the other hand, the political parties with parliamentary representation are not “just another citizen”, but they have their own channels to express their opinions and if a party with representation in the Congress considers that the CGPJ has disrespected the exclusive competences of the Legislative Power, what it should do is to promote a complaint or the filing of a conflict between the latter and the CGPJ.
As for the exercise of the criminal action, and this is the central problem, it should be forbidden to the political parties, precisely to contribute to that desired objective of “depoliticizing” justice and “de-judicializing” politics. Naturally, the political parties, as legal persons with rights and obligations and assets, will have to keep the possibility of acting in defense of their interests in criminal proceedings if necessary, just as this possibility is recognized for Judges and Magistrates, who are forbidden to bring criminal actions.
And thus, in addition to the aforementioned purposes, spectacles such as the one offered by Sumar with its lawsuit against the CGPJ, instrumentalizing the criminal process and the Supreme Court for its own propaganda, would be avoided.