Spain’s constitutional court: Power beyond legal practice

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

Catalans should be free to vote as they choose. [Santi Rodriguez/ Shutterstock]

Ahead of Sunday’s (1 October) independence referendum, Professor Dr Josep-Maria Terricabras writes that the Constitutional Court of Spain is no longer what the Spanish constitution had enacted.

Prof. Dr. Josep-Maria Terricabras is a Spanish MEP, representing the Esquerra Republicana de Catalunya, as well as holding the position vice-chair of the Green/EFA group.

Time and time again, the Spanish government has tried to undermine the Catalan referendum by hiding behind the Spanish Constitutional Court’s (CC) judgments.

This institution, which was created to evaluate whether sentences and decisions of the Spanish courts were in accordance with the Spanish Constitution, and followed models of good practice in many European states, was reformed in 2015 to become an intrusive court with expansive powers.

No longer a neutral arbiter, the court can now be compared to the model currently applied in Albania, Armenia, Moldova or Ukraine.

Before 2015, the CC was not a Court of Justice. However, through the Organic Law 15/2015 of 16 October 2015, it was reformed to receive new powers with which to enforce its decisions, forcing judges, courts and public administrations to act with urgency if the court asked.

This was not only met with criticism by judges of the court, but also by many external jurists and the Venice Commission which strongly criticised giving the CC the task to execute its own judgments, usually attributed to other state powers.

The Commission also denounced another new function of the court, that of suspending elected officials from office. Despite this, no substantial changes have been made to the law that dictated the reform.

The CC has continuously acted against laws enacted by the Catalan Parliament. Since 2015, they have struck down or suspended 20 different laws including a law against fracking, one designed to fight energy poverty, and one promoting equality between men and women.

Last week, the CC finally used its new powers and imposed daily fines of €12,000 on 12 members of the Catalan election board as well as the Secretary-General of the Catalan Ministry of Economy which had been detained by the Civil Guard during a morning raid.

The severity of these actions even caused three of the CC’s judges to denounce the danger of having the court impose fines and that the Court shouldn’t have the power to execute its rulings, as it risks degrading the authority of the institution.

The Spanish government wants to present the image of a CC which mirrors those in the US or Germany, but Catalan citizens are living under the purview of a politicised court, with new executive powers, whose next step will be to suspend elected officials from office if the Spanish government demands it.

Definitely our best option is to vote freely, without fear, and decide to build a better justice system in a new Catalan state and falls far short of the model one should expect in a European Union member state.

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