In spite of the fact that the Kingdom of Spain enjoys a full democratic system, it is puzzling to note how certain detractors make statements which do not correspond at all to reality, with the sole intent of criticising our democracy.
Spanish citizens who were born in the 1960s - teenagers during the constituent transition period - do not share these kinds of unacceptable assertions. Perhaps younger generations, those who did not experience the last moments of the dictatorship - may better understand such statements.
However, it is worth remembering that our democracy took root in those times. That historical moment can be summarised with a single word: hope. Despite the adversities, there was a collective hope that guided the Spanish nation towards something new, that we all ventured would be better and different: a democratic system. This was crystalised in the 1978 Spanish Constitution.
We can therefore proclaim that we are living in a young but modern democracy. One of the first things that we learned at Law School, when studying political law, was the classic definition of a democracy. According to Article XVI of the Declaration of the Rights of Man and of the Citizen, “a society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution.”
This definition assigns substantial importance to ‘a constitution’ - which is different from a formalistic concept - which features authoritarian regimes, disguising them under some institutional and rhetorical wording so they appear as a real democratic regime. However, this is over, as we are no longer live under the principios fundamentales del movimiento (the fundamental laws of Franco’s dictatorship).
The Spanish Constitution of 1978 enshrines a real democracy, embodying the classic distinction between legislative, executive and judicial powers. However, it should be noted that the only one that has been defined using the term ‘power’ is the judiciary, which appears at the heading of Title VI of the Constitution. This is based on a strong conception of the judicial independence which, as a constituted power, is at the same level of legitimacy as the government or the Parliament, the Cortes Generales, emanating from the people and strictly summited to the law.
Neither the government - central or regional - is above the law, nor the Parliament - any Parliament, central or autonomous - is sovereign. When the government does not respect the law, when it breaks the rules that make citizens free and equal, then the power of the strongest people against the weakest citizens surfaces again and our fundamental rights are in danger. When Parliament proclaims its sovereignty, a serious and dangerous political error is made. They are not sovereigns, as no constituted power is in the Kelsenian conception of modern constitutionalism.
The sovereign is the constituent power, and expresses its creative force and potential in the Constitution, which is the embodiment of the sovereignty of the Spanish people. Parliament, as a subordinate power, cannot do everything. In this aspect, we differ from the English parliamentary conception of the nineteenth century. Therefore, parliamentary legitimacy is not above the legitimacy of the judiciary.
The constitutional legitimacy of the judiciary emanates from the submission to the law, which is the expression of the will of the nation. The legitimacy in exercising such a power does not remain on the election of its members in periodic elections, but, directly on the Constitution. And so, it is decided by the constituent power. The submission to the law, and the correct exercise of jurisdiction can only be guaranteed through independent and irremovable judges. And this is regardless of the means of promotion to judicial posts. When one criticises the way in which the Supreme Court justices are appointed in Spain, one forgets that other well-established democracies, such the United States of America where the appointment of Supreme Court justices remains in the hands of two powers: the President of the United States and the Senate.
And whatever their ideological status, unlimited tenure accentuates their independence, which they exercise autonomously from those who proposed or appointed them. A similar conclusion can be reached as regards to the Spanish Supreme Court. Nobody can seriously state that a magistrate in Spain’s highest court, irremovable until the age of retirement, remains at the mercy of other interests other than justice. The sad experience of certain countries, which opted for a system in which Supreme Court judges are elected and periodically dismissed by the Parliament, led to a dramatic reality in which the judiciary serves spurious interests. We need to avoid such a model at all costs.
The same conclusion applies as regards our Ministerio Fiscal (Public Prosecutor’s Office). As an institution, it is independent without anyone being able to give it orders, even though, in informal circles, this may be the opinion of people with no legal education. It neither depends on the executive nor is it framed within it, unlike in the United States, Germany or the United Kingdom which are undoubtedly consolidated democracies.
Such a warped conclusion ignores the nature of the institution and its components, instead believing that an illegal action could be carried out (such as not accusing who should be accused or accusing those who should not be accused) only because it suits the interests of the government in power. In this respect, we should remember the action of the US Attorney General in the Watergate case. The special prosecutor appointed for the case, Archibald Cox on 19 October 1973 refused a request from the President of the United States, Richard Nixon. Then, the latter, enraged, asked his Attorney General and Minister of Justice to stop Cox. Since the Attorney General resigned before fulfilling an illegal order, Nixon asked his deputy, William Ruckelhaus, who also resigned.
Some minutes later, during the night, Nixon contacted the acting Attorney General, Robert Bork, who reluctantly accepted the request. That night became infamous as the “Saturday Night Massacre,” an event which shocked the Senate and turned public opinion, precipitating the president’s accusation on 27 July 1974. If this happened in a system in which there is no civil service, as on the European continent, nobody can doubt that this chain of refusals without any fissure would also occur here, being the case that members of the Public Prosecutor’s Office cannot be dismissed, as they enjoy civil service status. It needs to be stressed that this status is a clear and strong guarantee of independence.
As regards fundamental rights and guarantees in our criminal proceedings, we should state that in the last thirty years we have reached the level of any advanced democracy, along with the failures that are unavoidable in any human organization. If we look back to the early days of democracy, we could say to young judges and prosecutors: “We have seen things that you wouldn’t even imagine.” The dialogue between courts - Supreme, Constitutional and European of Human Rights - has led to a solid body of procedural guarantees that are fully applicable before our courts.
Consequently, as prosecutors committed to the rule of law, we must affirm that in Spain what is enshrined in Article 1 of the Spanish Constitution is reflected in the reality: Spain is a social and democratic state governed by the rule of law. Everyone, without exception, before any court, will enjoy a fair trial. And, before those who - inside and outside our country - try to promote a fake vision of our democracy, we must raise our voices and proclaim that we have never enjoyed, in our constitutional procedural history, the level of guarantees as those that protect defendants, present and future.
Cristina Dexeus is president of the Association of Prosecutors, a former member of the Fiscal Council of the State Attorney General's Office and fiscal coordinator of the Territorial Section of Sant Feliu de Llobregat, Barcelona.
Carlos Bautista, also a member of the Association of Prosecutors, is assigned to the Office of the Public Prosecutor of the National Court in Madrid.