Comparisons between the situation of the rule of law in Spain with that of Hungary and Poland are the background of many of the criticisms that in recent weeks have been heard from the ranks of the European People's Party and the European Conservatives and Reformists, the European family of Vox, when referring to initiatives such as the amnesty law, something that if true could lead to the suspension of the payment of European funds.
The European Commission is deeply displeased by the comparison. The institution, however, is not in the habit of comparing countries and, despite the discomfort that different sources privately transmit, the most it can do publicly is refer to its annual reports on the rule of law in the Twenty-seven, where it is evident that the problems of lack of judicial independence in Hungary and Poland have a structural nature that is not appreciated in Spain.
International academics consulted by La Vanguardia also disagree with such a comparison and agree that the non-renewal of the General Council of the Judiciary (CGPJ) is seen as the greatest democratic deficiency. “We are talking about very different situations. Hungary has become an autocratic state with an illiberal regime as Viktor Orbán himself constantly says. All countries have problems, but what we have seen in Hungary and Poland are deliberate attacks on the structures of the rule of law, a situation of a systemic nature that I do not see in Spain," points out Professor Jan Wouters, from the governance studies center. of the University of Leuven.
“The situation is completely different,” agrees Alberto Alemanno, professor of community law at the École des Hautes Études Commerciales (HEC) in Paris. “From the point of view of the EU, the most worrying issue regarding the rule of law in Spain is not the approval of an amnesty law, but the lack of renewal of the CGPJ,” says Alemanno, holder of the J ean Monnet Chair. in the HEC. “A judiciary that is not independent in its decisions can have negative effects on citizens beyond Spanish borders,” but “an amnesty law cannot.” This explains “the limited capacity of the EU to intervene.”
From Princeton, Professor Kim Scheppele shares Alemanno's assessment of the situation of the CGPJ, whose mandate expired five years ago. “The lack of judges is going to begin to affect European rights that must be protected. It seems serious to me, and if it continues, the EU should intervene,” she says. “The old aphorism that justice delayed is justice denied is relevant. “The growing skepticism among Spanish citizens towards politics and justice is a serious threat to the vitality of a constitutional democracy,” warns Theodore Konstadinides, professor of law at the University of Essex, who advises moving to a system of electing judges. transparent” to ensure its integrity and independence.
“That is the international trend, to move towards the professionalization and depoliticization of appointments,” Wouters recalls in this sense. The reform of the system of election of judges is in fact the measure that, according to the Commission, Spain should agree to "immediately after" renewing the CGPJ, which it sees as a "priority", but the PP refuses to do so without first agreeing on the changes in the appointment system.
“In a democracy, the judiciary cannot be held hostage to political machinations,” criticizes the Princeton specialist in the rule of law in Europe. “It may be tempting to say that the situation in Spain is similar to that of Hungary or Poland, but they are very different cases. In these countries, governments have packed courts with politically loyal judges and punished those who do not toe the party line. In Spain, there are two strong parties that block each other, and consequently the courts are dying. They are practically opposite cases: in Hungary and Poland the courts are full and in Spain, empty.”
“Amnesty laws are always controversial. However, they are common in political agreements to end major internal conflicts,” Scheppele continues. “In fact, Spain is unusual for having criminalized independence movements so forcefully. Given that the EU has no jurisdiction to examine internal political conflicts like this, it is unlikely to say anything,” adds the American professor, who recalls that the crimes that will benefit from the amnesty do not violate the limits established by international law and highlights which excludes those that may affect community funds.
From Leuven, Professor Wouters recalls that in 2017 the Commission responded to the Catalan independence movement that the conflict was “an internal matter” of Spain. “If they said that then, I don't think they can now say that the amnesty is a problem. They must be consistent. “I think it is still something that Spain has to decide on its own.”
For Konstadinides, although he sees a space for this type of measures to resolve political conflicts, as happened with Northern Ireland, "the possible impact of the amnesty law on judicial independence should not be underestimated" and points to the possibility that the Constitutional Court rules against it, because "it could argue that it violates the principle of separation of powers by undermining the function of the judiciary to judge cases that were crimes at the time they were committed."
“Before the EU intervenes, these issues must be resolved internally,” but it is “crucial” that Brussels monitors the evolution of judicial independence in Spain, says the Essex expert. "Although Pedro Sánchez's approach is different from Orbán's, we must not forget that in liberal democracies the separation of powers and the rule of law are fundamental and politicians' attempts to control them often have negative effects."
For Scheppele, there is one more reason, although apparently contradictory, why the comparison between Spain and Hungary in particular does not hold: the mobilization of Spanish public opinion against the amnesty law and other initiatives. “It is a very positive thing that people care about the rule of law. In Hungary, the population remained largely silent. In Poland, the opposition demonstrated and ultimately won the elections. “Spain has some worrying problems, but also a vigilant population, and that is the best guarantee of the rule of law.”
