Judicial Peculiarities and Parliamentary Prerogatives in Spain
Judicial Peculiarities
Aphorisms
Aphorisms define special competition rules for individuals holding specific jobs, employment, or public office. These matters are handled by a superior body. This includes collegiate competition for proceedings against individuals based on their office, applying a specific legal jurisdiction (fuero).
- Division II: Investigation and prosecution of proceedings against high-ranking officials, including judges of the Constitutional Court and Supreme Court, the President of the Nation, President of the National Assembly, and the Attorney General.
- Superior Courts of Justice (TSJ): Jurisdiction over other judges, magistrates, and prosecutors, extending to Investigating Courts (JCI), Criminal Courts (JCP), and Mixed Courts (JCM). Civil and Criminal Chambers of the Supreme Court handle cases not attributed to the Supreme Court itself.
Detention
Active judges and magistrates can only be arrested in flagrante delicto or by order of a competent judge, with immediate delivery to the nearest magistrate. The President of the relevant Tribunal or Court must be promptly notified. Members of the Public Prosecutor’s Office (MF) require authorization from their superior for arrest, except in cases of flagrante delicto or by court order, with immediate notification to their superior.
Procedure
Legal proceedings depend on the offense’s nature and can be initiated by:
- Court order
- Complaint from the Public Prosecutor’s Office (MF) or the offended party
- Popular action
A complaint is admitted unless the judge deems it incompetent or if the facts lack semblance of an offense. Abstention or objection is indicated if the judge has been denounced or charged with any party involved. Temporary restraining of judicial functions occurs pending dismissal, acquittal, or extension of punishment, potentially issued by the General Council of the Judiciary (CGPJ). Prosecutors must abstain if grounds for abstention and challenge exist for judges; otherwise, parties can inform the supervisor.
Parliamentary Prerogatives
Parliamentary prerogatives grant distinct legal treatment to members of Parliament, based on their constitutional functions, including:
Privilege of Inviolability
“Deputies and Senators enjoy inviolability for opinions expressed in the exercise of their duties.” This protects free debate and parliamentary decision-making, excluding acts performed as a citizen.
Prerogative of Immunity
Nature and Purpose: Immunity shields Representatives and Senators during their mandate from detention, indictment, or trial without prior authorization from their respective House. This protects parliamentary functions from political interference, ensuring the chambers’ proper functioning and composition.
Procedural Status of the Request: Authorization from the Houses is required to proceed against a member. This request is based on reasonable suspicion of criminality, supported by sufficient grounds. Precautionary measures against a Deputy or Senator require House approval. Immunity doesn’t prevent investigation but restricts actions leading to criminal proceedings without House authorization.
Power of the Aphorism and Time Limit
The special stream-gauging prerogative complements other protections, aiming to:
- Protect representatives’ freedom of opinion (inviolability)
- Prevent interference in parliamentary will formation (immunity)
- Safeguard the independence of the judiciary and Parliament (aphorism)
This prerogative protects against external pressures and ensures institutional independence. Cases against representatives and senators are handled by the Criminal Division of the Supreme Court (Second Chamber). Strong evidence of liability is required, not mere personal complaints. The aim is to protect institutional independence from external pressures or the defendant’s political influence. Loss of parliamentary status returns the case to the appropriate magistrate, without infringing on fundamental rights to effective judicial protection and a predetermined judge. This is not a personal privilege but a protection of the institutional role, losing its purpose when the defendant is no longer a member of Parliament.