New legal framework in Spain hinders access to Justice

New legal framework in Spain hinders access to Justice

The Spanish Ministry of Justice has been working hard on legal reforms ever since the People’s Party came to power in 2011. Most of these reforms have to do with the Judiciary itself, but -contrary to the Government’s statements– they seem to be aimed at separating Justice from ordinary citizens.

The first step in this new legal framework was the creation of a set of court fees (“tasas judiciales”), so that anyone willing to sue somebody or appeal a sentence or fine has to pay the tax first. The theoretical goal of this was to unclog the Spanish Courts of Justice, known to be too slow. According to the Spanish Government, the new fees would discourage frivolous actions and would help anyone with a legitimate interest access a faster Justice system.

However, it’s the wording of the law -or in fact the amounts involved- that makes this difficult to believe. For example, the minimum fee to start an administrative procedure is 200€; appeals range between 800€ and 1,500€. These are amounts far beyond the average citizen’s income, specially in a country that’s suffering an important economic crisis.

It has to be noted that these fees are never recovered, even if appellants or plaintiffs win the case (as opposed to what happens with the other costs of litigation -Lawyers, Notary,…- which may be regained). Thus, only rich people wouldn’t bother to pay them, and they could be a heavy burden for the common Spaniard. The result would be a faster Justice indeed… but only for the wealthiest.

Of course, this also means the appeal system will be “for the rich only”. Most Spaniards simply can’t afford to pay 1,500€ to appeal an unfair resolution.

And what happens in case of an arbitrary ticket? Suppose a dishonest police officer fines you with 400€ for an imaginary infraction. In order to protest this, you must pay a minimum, irretrievable amount of 200€. Nobody will ever bother to do so, since it doesn’t guarantee any success and actually costs 50% of the original fine.

It must be noted that Spain is a country where too many police officers have already been sanctioned for dishonest behaviour (read “torture”), so these “arbitrary tickets” are not a chimeric threat.

There’s a second law in this process: it’s the new Criminal Code, which is still a draft but will be passed soon, since the People’s Party has an absolute majority in the Spanish Congress. The new Code, for the first time, removes misdemeanours (“faltas”) from its text.

Again, the Government’s rationale is to provide a fastest Justice system. The idea is to move misdemeanours from criminal matters and place them in the administrative order, thus having fastest decisions for these offences.

However, this poses new problems. First, criminal matters are exempt from the court fees we’ve studied… and administrative matters aren’t. Second, the Criminal Code and the Criminal Procedure Act provide additional protection for citizens: presumption of innocence, the fact that the sentence has to be pronounced by a Judge, the existence of mitigating circumstances,…

None of these appear in the Spanish administrative system. There’s no presumption of innocence; in fact, police officers have a “presumption of veracity” which means citizens must prove them wrong no matter what they say. No Judge writes the original sentence (to get to a Judge in administrative matters one must appeal… and therefore pay court fees). And there are no mitigating circumstances at all.

Plus, misdemeanours have already a trial system of their own, one that’s much faster than the rest and allows trials and sentences in just a few days. Therefore, the Government’s assertion that this system is only an attempt to speed lawsuits up seems somehow distorted.

A new legal text has also appeared in the last days: the new Citizen’s Safety Protection Organic Law (“Ley Orgánica de Protección de la Seguridad Ciudadana”, LOPSC), still a draft like the Criminal Code, but most likely to be passed as well.

Old misdemeanours have ended up in this law, far away from the protective system of the Criminal Code. This implies that infractions will now be punished by a Government’s officer -not a Judge, no respect for separation of powers. This also means that, should anyone wish to appeal the fine -as explained- he’ll have to pay the court fees.

New offences have appeared in the LOPSC, and the Spanish public opinion has expressed his astonishment for some of them. To name a few examples, merely “inspiring” a demonstration that finally ends in violent acts means an important fine (up to 600,000€) for the “inspirers”… even if they commited no violent action at all. This includes “inspiring” the demonstration through social networks.

The LOPSC also punishes “offences or insults to Spain”. It’s hard to know what that means exactly, since the wording is extremely ambiguous. It could be anything from flag burning to showing disagreement to the Government. Since a Government’s officer will write the sentence, these “offences” will probably be whatever the Government decides.

A dangerous new misdemeanor will be to film or take pictures of police officers. This has been used so far to prove violent actions from those officers (who many times have attacked peaceful protesters, as shown precisely by those pictures or videos). But now doing so will mean an important fine.

In the same sense, the LOPSC will punish the “lack of respect or due consideration to authority”. Since, as with the “offences or insults to Spain”, the wording is ambiguous, this could also mean anything from frowning at police officers to not speaking to them in an extremely courteous language.

A significant fact is that this new legal framework has appeared just after several sentences have contradicted the Spanish Government, namely in several attempts to criminalize peaceful protests. For example, when Government’s Representative in Madrid Cristina Cifuentes tried to fine demonstrators who had caused no damage at all, Judges acquitted them. When the same was attempted in the “Surround the Congress” initiative (a peaceful movement aiming to show disagreement with the Government by protesting around the Spanish Congress), Judge Pedraz also acquitted them and took his time to criticise the “political elite” for not allowing this peaceful actions. When some politicians sued citizens who demonstrated in front of their homes (an initiative called “escrache” in Spanish), no crime was found but only “legitimate use of freedom of speech”.

It is, therefore, noteworthy that the new laws have appeared after those trials. It would seem as if the Spanish Government is trying to remove Judges from the disciplinary proceedings. In fact, even the Council of Europe Commissioner for Human Rights, Nils Muiznieks, has said that he finds the LOPSC “highly problematic”.

Time will tell if the final text of these documents are as alarming as they seem.

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