Four associations of judges have severely criticized the bill registered in the Congress of Deputies by the PSOE, as they claim that it “makes popular action useless” in judicial processes and is “unconstitutional.”
The measure proposed by the socialists last Friday seeks to put an end to the poor exercise of the popular accusation, judicial cases with political motivations, the pronouncements of judges and prosecutors on judicialized matters and the crimes of offenses against religious feelings. The reform proposes the modification of the Royal Decree of September 14, 1882, which approves the Criminal Procedure Law, the suppression of article 525 of the Civil Code and the reform of the Organic Law of the Judiciary.
María Jesús del Barco, president of the Professional Association of the Judiciary (APM), said in statements to Europa Press that the modification of the figure of popular accusations seems to seek “impunity” if the “currently open cases” are considered. “The impunity of the criminal acts of some specific citizens goes very badly with the equality of citizens before the law,” lamented the judge.
In this sense, he recalled that work is being done on a reform of the Criminal Procedure Law (LECrim) to give the prosecutor the instruction of criminal cases, and therefore, this reform could have a place. Del Barco explained that there are “serious doubts that it is constitutional” and assured that there is a clear violation of the right to effective judicial protection enshrined in article 24.
This is so, he clarified, due to “the very requirements that it establishes on the exercise of that action, because it involves acting by virtue of a concrete, relevant and sufficient link with the public interest protected in the corresponding criminal process.” In his opinion, this already represents “such a narrow and restrictive limitation on the exercise of the action that comes to use it.”
APM: The popular accusation; an instrument against the political adversary
Del Barco criticized the exclusion of political groups from this popular action. He explained that, although he recognizes that “an abusive use has been made of popular action by all political parties” and that it has been used as “an instrument against the political adversary,” this has allowed “convictions for crimes related to political corruption.”
The modification of the Organic Law of the Judiciary (LOPJ) is also the subject of criticism. This correction seeks to include a new cause for abstention and recusal of magistrates for those cases in which they make public statements censuring, showing agreement or disagreement with what a political party, a union, an authority or a public official does.
Del Barco stressed that judges are independent and are “obliged to be so,” but added that the rule “perhaps does not intend to preserve the independence of the judge and his image of independence, but rather something very different,” after alluding to the possible statements that have been made on matters such as the amnesty law and in the capacity of spokespersons for judicial associations, as is the case.
Regarding the suppression of the crime of offenses against religious feelings, the magistrate pointed out that “this protection of the religious feelings of citizens must always be reconciled with the right to freedom of expression”: “Not everything is a crime nor can everything be stop being.” On the other hand, he acknowledged that he is surprised that the law proposal route is used and the reform is not carried out through a bill, because in this way “the mandatory reports that should be issued” by the Council are avoided. General of the Judiciary (CGPJ), of the Fiscal Council and of the Council of State.
AFJV: “The worst legislative techniques imaginable”
For his part, the spokesperson for the Francisco de Vitoria Judicial Association (AJFV), Sergio Oliva, regretted that, although it is in “a very incipient phase of the parliamentary process”, the PSOE consciously resorts “to “the worst of the legislative techniques imaginable, since the law by definition must have a vocation for generality and application in the future.”
“This reform is not intended to be general, but rather presents the appearance of having been conceived for specific application to specific cases,” he explained in statements to Europa Press, and then noted that the single transitional provision included in the norm “may affect “the people who are in processes already in progress, including possible victims, which seriously affects the requirement that legislation cannot be made on cases already in progress.”
Oliva considers that it is “a profound error” to exclude judicial associations from popular action, “because this would prevent them from acting in defense of the legitimate interests of judges and magistrates, a limitation that could violate the constitutional guarantee of article 127 of the Spanish Constitution.”
Like Del Barco, Oliva has been critical of the modification of the LOPJ to reject judges who have made political statements. He has pointed out that it is “worrying” that judges as a group are always doubted, “a trend that some political forces have incurred in recent times, which undermines society’s confidence in the rule of law.”
“We must trust in judicial impartiality, since the current system already contains the necessary guarantees to protect this judicial impartiality through mechanisms such as abstention and recusal of judges, figures that are resorted to when necessary in the courts without problems,” he concludes.
JJpD: “This is not the time to limit popular accusations”
Edmundo Rodríguez, spokesperson for Judges for Democracy (JJpD), assures that it is a mistake to include in this bill the regulation of the figure of the popular accusation because this should be addressed in the announced draft reform of the Criminal Procedure Law , “giving a coherent and considered treatment to the change in the responsibility to instruct.”
He also considers it “unwise” to exclude political parties from the popular accusation or to prevent this type of accusation from participating in the investigation phase, limiting itself to the oral trial. He understands that “it must be guaranteed that the popular accusation has full procedural rights.”
In JJpD they share an opinion with the AFJV and the APM regarding the disagreement with the inclusion of the new cause of abstention and recusal of magistrates and judges because “the judiciary is also citizens and is free to express its opinion, although it must do so with prudence, to avoid compromising the image of judicial impartiality.”
Rodríguez, for his part, sees the repeal of a crime that offends religious feelings as a success because, as he declared to Europa Press, this guarantees “full freedom of expression” and recalled that rigor is required when admitting complaints or complaints and that these cannot be based on in simple journalistic information “it is already required by jurisprudence, so what the Supreme Court says would become law.”
FJI: Redundancies and subjectivity
For his part, the president of the Independent Judicial Forum (FJI), Fernando Portillo, pointed out that the abuses in the use by political parties and associations of popular action “have long advised a restriction or limitation on the exercise” of the same.
Regarding the regulation of rejecting complaints based only on press clippings, he considers that it is a “redundancy” because “this examination is always done,” and has explained that if the news reproduces “a photograph, a statement or a document—as in the case of the complaint against Begoña Gómez, wife of the President of the Government—well, indeed, it must move forward.”
Regarding the modification of the LOPJ to challenge judges for political statements, he noted that they have reservations given that they will have to enter the subjective field. “We are no longer talking about the judge’s relationship with the object or with the parties, but rather about something derived from the exercise of his freedom of expression,” he added.
Sumar’s criticism
In the political sphere, Sumar has also expressed its reluctance regarding the new PSOE bill. Enrique Santiago, spokesperson for the formation in the Congressional Justice Commission, defended that the figure of the popular accusation has been a “democratic advance” to fight against corruption.
The deputy replied to his government partner that “Lawfare”, judicial persecution for political reasons, “is combated by preventing judges from engaging in politics, not by restricting popular accusation.”
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