The Spanish Prime Minister, Pedro Sánchez called a snap parliamentary election scheduled for Sunday, 23 July after his socialist party (PSOE) suffered a setback in local elections held in May. The announcement of the vote by Sánchez’202fcame as a surprise, given that his main rival, the conservative Partido Popular (PP), had just won an election and was polling ahead. At 34%, the PP, led by Alberto Nuñez Feijóo, continues to poll ahead of Pedro Sánchez’s PSOE, that is predicted to get 28% of the vote. Additionally, the far-right party Vox led by Santiago Abascal and a left-wing coalition Sumar led by Yolanda Díaz are polling around 13 % each.
Neither the PP nor the Socialists are expected to get enough votes to govern alone. Consequently, the conservatives might seek the support of Vox, while the Socialists will turn to Sumar. The likelihood of a PP-Vox alliance in forming the government has raised concerns due to Vox’s controversial stance on LGBT and gender issues, as well as its anti-immigration position. Such an alliance could potentially undermine the rule of law situation in Spain, as Vox advocates policies that are at odds with the protection of minorities and the principles of the rule of law. Regardless of the election outcome, independent institutions tasked with constraining and overseeing the government will remain crucial in countering any potential arbitrariness and abuse of power by the government.
Notably, long-standing rule of law issues, including the politicisation and lack of renewal of the Council for the Judiciary, have been mentioned in parties’ programs but received limited attention during the campaigns. This lack of emphasis is understandable since voters prioritise other issues. However, these rule of law concerns will likely resurface after the elections, given internal and external demands for action.
Another issue to consider is whether Spain will use its Council presidency to address rule of law challenges elsewhere in the EU. This could involve conducting Article 7 hearings on Hungary and Poland, withholding support for decisions to release EU funds until necessary reforms are implemented, discussing the upcoming Hungarian and Polish Council presidencies to change their order, or advocating for accountability for crimes committed in Ukraine.
Top Rule of Law Challenges and Prospects
1. Quality and Independence of the Justice System
A. Failure to renew and reform the Council for the Judiciary
Problem: The Parliament was expected to renew the Council in 2018; however, the deadlock between the ruling party and the opposition rendered it impossible. Consequently, an acting Council can no longer appoint Supreme Court judges and Court presidents. As a result, over 30% of the posts at the Supreme Court remain vacant, leading to significant backlogs. The sections of the Supreme Court with the highest number of unfilled positions issue 1, 230 fewer decisions every year. The politicised appointments of the Council have not only impacted its functioning and that of the courts but have also tarnished their reputation. According to the ENCJ surveys conducted in 2022, Spanish judges rate the independence of the Spanish Council with an average score of 2.7 out of 10, the lowest score among EU countries. Moreover, the politicisation of the Council has also resulted in blockages in appointments to the Constitutional Court last year.
Who is at fault? The Partido Popular (PP) blocked the renewal of the Council based on the traditional distribution of party quotas, thereby keeping the conservative majority in the Council. It came close to agreeing at one point, but withdrew last minute, making the agreement conditional on the compromise on matters unrelated to the judiciary. To overcome the stalemate and secure the renewal, the Government proposed controversial changes, allowing the appointment of the Council members without the opposition’s votes.
Solution and Prospects after the elections: While the Council undoubtedly needs to be renewed, simply doing so will not address the long-standing issue of the politicisation of appointments. Spain could consider maintaining the current system of parliamentary appointments but introduce safeguards, such as having an apolitical body filter the candidates and implementing a more effective anti-deadlock mechanism. However, based on the political bargaining over the Council’s composition in recent years, a move away from parliamentary appointments is necessary to enhance the credibility and quality of the judicial branch. Without fostering a culture of respect for judicial independence, attempts to influence the Council will persist, leading to more blockages and ultimately damaging the Council’s effectiveness and public image. Additionally, it is essential to ensure that power transfer to judges allows for the meaningful participation of all judges in governance, avoiding the concentration of power in specific groups.
Both leading parties have promised in the past to de-politicise the Council when they were in opposition to only forget about it when they came to power. Currently, the PSOE continues to insist on the renewal but refuses reform, emphasising that parliamentary involvement is a source of democratic legitimacy. The Sumar program acknowledges the risks of instrumentalization of the Council but advocates keeping the current model of parliamentary appointments with some adjustments. The PP promises change in the appointment method, so that judges elect judge members of the Council – this aligns with European standards. However, national observers are sceptical as the PP’s record of keeping promises on this issue does not inspire confidence. Vox is supportive of the election of the Council members by and from among judges, but also proposes the cancellation of the Constitutional Court and transferring its powers to the Supreme Court. This proposal could be read as an attempt at weakening checks on the government.
B. The Independence of the Prosecutor’s Office
Problem: Prosecutor Generals typically have close ties with the government, which poses a significant risk of dependency on the executive. This concern becomes even more alarming, due to the concentration of powers in the hands of the Prosecutor General, including in terms of internal organisation and prosecutorial careers.
Solution: The reforms should be directed at not only ensuring independence from the executive (for example, through separating the term of office of the Prosecutor General from that of the Government, as recommended by the European Commission), but also through addressing the wide discretionary powers of the Prosecutor General, particularly in areas such as the system of promotions.
2. Quality of Parliamentary Processes
Problem: The government has been using fast-track and emergency procedures excessively in the past few years. Excessive and abusive use of fast-track and emergency procedures has emerged as a major issue in recent years. Decree laws, for example, are exempt from ordinary parliamentary debate. While the Congressional authorisation is needed, the Congress can only vote on the law in its entirety and cannot amend the text. Additionally, the Government has used other problematic legislative strategies – processing bills under urgency, avoiding hearing procedures, grouping various measures together, which prevents separate and thorough examination of the issues at stake.
Some of the requirements regarding the transparency and the involvement of stakeholders are not compulsory for draft legislation submitted by parliamentary groups. These practices jeopardize quality of laws and are problematic in terms of democratic legitimacy. As noted by the Commission in the Spanish chapter of the Rule of Law report for 2023, “all these practices raise concerns as they bypass the requirements of public consultation, impact assessment and consultation of the prescriptive bodies and may have an adverse impact on the quality of legislation.” Hay Derecho found it surprising that the Commission did not issue any recommendation on the matter.
Solution: It is necessary to improve the quality of legislative processes and avoid rushed legislation, without proper consultations and parliamentary deliberations. Transparent, accountable, democratic and pluralistic process for enacting laws is a key rule of law requirement.
3. Appointments to independent oversight bodies
Problem: Failure to renew various independent bodies has remained an issue in the past few years. As an example, posts have been vacant in the Data Protection Authority since July 2019. The appointments typically require a qualified majority of two thirds and hence the agreement between the main political parties in the Parliament. This means that the positions will remain vacant for long periods of time.
Solution: Effective anti-deadlock mechanisms to minimize the risk of deadlocks, de-politicisation of appointments, where possible or introducing safeguards.
4. Media-Freedom and Pluralism
Problem: According to the European University Institute’s Media Pluralism Monitor 2023, the situation has not deteriorated in the past few years. However, the report does highlight a few major risks:
- Media concentration and lack of transparency in media ownership and finances.
- The lack of political independence, especially as regards public service broadcasting; low levels of citizens’ trust in media, due to perceived lack of editorial autonomy.
- Issues with access to information, also highlighted by the European Commission.
- Need for better protection of journalists, so that they are less susceptible to pressures and influences.
According to the RSF (Reporters without Borders), political polarisation influences media landscape, blurring the lines between information and opinion. The same source reported journalists being harassed by police or on social media by far-right and far-left politicians. It is indicated that the far-right party Vox continues to spread false information and denies journalists access to its press conferences and other events.
Solution: As highlighted by the report of Media Pluralism Monitor, some of the main risks to media pluralism can be considered as systemic, in the sense that mitigating them will necessarily imply great transformations of the media system and business models. Others, however, can be more easily mitigated through policy reform.
The Foundation ‘Hay Derecho‘ was consulted in preparation of this report.
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