I understand that no legal modification of popular action could limit or limit its exercise to the point of disfiguring or making the institution unrecognizable in accordance with its constitutional foundation.
The political year begins with what, in my opinion, is more than surprising – I did not expect it, to be honest, neither at this time nor with this form or with this content – and worrying legislative initiative of the Socialist Parliamentary Group, presented last 10 of January. It is, as has already been reported in all the media, the “Proposal for an Organic Law to guarantee and protect fundamental rights against harassment derived from abusive judicial actions.”
A Proposition whose Explanation of Reasons, as extensive as its articles, very briefly reviewed now in the aspects that I consider most relevant in relation to the popular action, refers to “an abusive use of the institutions and certain legal provisions”, in its objective of “ensuring the fundamental rights of the groups that are victims of harassment”, to the “abusive use of the figure of the popular accusation, which certain groups use not in order to clarify possible criminal acts, but to systematically attack non-profit social sectors.” like-minded people and political adversaries, through criminal proceedings in which their rights to honor and effective judicial protection are constantly violated and leaks of the content of the instruction occur.”
And, thus, it is proposed, in substance, as is already well known, the modification of several articles of the Criminal Procedure Law to limit the subjects that could exercise popular action, now denying it to “political parties and associations or foundations.” linked to them” and “legal persons or public entities of any kind”, to limit the crimes in which popular action may be exercised and to prevent their access to the judicial procedure and to carry out any action during the entire investigation phase.
It cannot be denied that the figure of popular action coexists in a complicated and not always peaceful way with the criminal action that can be exercised by the Public Prosecutor’s Office and the subject harmed by the crime – in this case, “private accusation”–. But, in any case, it is an institution fortunately enshrined in article 125 of the Constitution which, in this regard, provides that “Citizens may exercise popular action (…)”. A figure with origins closely linked to democracy itself – and I understand that it is also in the present –, having been established for the first time in Spain in the Liberal Triennium – 1820 to 1823) – so that citizens could prosecute crimes that attack the system of freedoms.
Much has happened since then, but popular action has always been present in Spain since it was introduced in the still current Criminal Procedure Law of 1882, its proclamation in the 1978 Constitution being an extraordinarily relevant fact, since it guarantees its permanence by preventing its suppression, although, being a legally configured right, its exercise can be modulated by the legislator. Modulation that has already been done in the current legislation, precisely for the sake of regulating it, and which is also what is intended to be done now with the commented Proposition.
A right qualified by the Constitutional Court and the Supreme Court as a “fundamental right” – with nuances –, in its relationship with the right to effective judicial protection; as a “civic right” belonging to natural and legal persons, and as an “active right” through which citizens exercise, in parity of arms with the Public Prosecutor’s Office, a public function which is the accusation. A right, that of accusing, whose foundation lies in the attribution to citizens of a relevant role of participation in justice -as with the institution of the jury-, which constitutes, without a doubt, a guarantee for the control of the possible inactivity of the Public Prosecutor’s Office, whose monopoly in the exercise of criminal action is thus denied.
A citizen’s right, a democratic guarantee, which does not exist in the rest of the legal systems in our European environment – which is explained for several reasons -, which has always been the subject of debate, doubts and different jurisprudential interpretations. Remember, in this sense, the well-known and, in principle, contradictory Booty doctrine –restrictive of the exercise of popular action and highly discussed internally in the Supreme Court – and Atutxa doctrine –which departed from the previous doctrine and was also highly debated in its 2nd Chamber–.
It is true that there exists – and this has been seen in reality on more than one occasion – an evident risk of actions by subjects who could be described as “professionals of popular action” – normally, organizations – and of improper and abusive use of this institution with diverse purposes. But also – and above all – there has been a responsible exercise of this right and, in any case, useful for the purposes of purging crimes whose prosecution by the Public Prosecutor’s Office was revealed to be ineffective due to non-existence or due to lazy or negligent action.
That is why there has been so much debate about the need to reform – or not – popular action. And that is why there have been several attempts in this sense – including the current one –, always promoted, curiously, by the Government or the party that mostly supports it –read, without going any further, PP in 2017 and PSOE at this time–.
And, as is sadly and discouragingly usual, these political formations have adopted, also in this matter, the opposite position depending on whether they were in the Government or in the opposition. So there will be little to enlighten us from one another, but rather we will have to enlighten ourselves by our own means, reflecting and debating with serenity and objectivity.
In any case, to open a reasonable parliamentary debate I understand that two conditions would have to be met sine qua non. On the one hand, that the socialist parliamentary group renounces this Organic Law Proposal and that the Government process – if it has internal consensus – a reform as a Bill, so that the debate has all the elements of judgment, such as , among others, the mandatory legal reports – in the case, CGPJ, Fiscal Council and Council of State. On the other hand, the reform, if it occurs, will exclusively affect criminal proceedings that begin after its approval, unlike what is provided for in the infamous Single Transitional Provision of the Bill, which provides for its application to “processes in progress.” ” at the time of its entry into force, which contradicts the usual transitional regime in these cases, in which procedural reforms exclusively affect procedures initiated subsequently.
From these two premises, one can begin to speak, but not before – it is a saying. This would clear up many and very legitimate doubts about the true purpose of the proposed reform, in a chronological context of undeniable coincidence with criminal proceedings that affect the political and personal environment of the President of the Government, processes in which the impulse exerted by popular action – with the very fact of presenting the appropriate complaint and with its action in the investigation phase.
I, personally, in addition to the above regarding the form of the reform and its temporary application, understand that no legal modification of popular action could limit or limit its exercise to the point of disfiguring or making the institution unrecognizable in accordance with its foundation. constitutional and this, notably, in relation to crimes in which the protected legal interest is more diffuse or has a collective nature, and also taking into account the current design of the Public Prosecutor’s Office and its relationship with the Government – with it and with everyone – .
And I am realizing now, as I finish, that I am publicly expressing disagreement with an action by a parliamentary group and expressing a legal-political position. I do it, of course, in the legitimate exercise of my human and constitutional right to free expression – I say this for what may come, because, as we know, the Bill also has some proposal on this.
#Popular #action #reform
