The trial against Begoña Gómez, wife of the President of the Government; the Koldo plot on the alleged corruption in the purchase of masks, the process, the fraudulent ERE of Andalusia, the dirty war against ETA of the GAL, the Gürtel case on the irregular financing of the Popular Party, the tax fraud of Isabel Díaz’s partner, Ayuso or the black cards of Caja Madrid. And so, a long list.
These are judicial proceedings of great public importance and which also have another common element: they have been or are motivated – in whole or in part – by popular accusations. A legal figure that the Constitution defines as the right of citizens to “participate in the administration of justice” without being a direct victim of a crime, but which arouses controversy when used with interests more aimed at propaganda or obtaining sensitive information than at obtaining sensitive information. the defense of legality.
The debate, recurrent in recent years, was brought back to the table by the Attorney General of the State, Álvaro García Ortiz. In his speech at the judicial opening and before the main authorities in the field of Justice, he asked for a “reflection” on a “positive” figure but that can have a “worrying” interest when promoted for “private, political, religious” or media purposes. García Ortiz’s words were interpreted in some sectors of the judicial system as a kind of lifeline for Pedro Sánchez, now that his wife is being investigated in a case motivated only by several popular accusations linked to the extreme right.
In reality, the debate has been going on for more than two decades. Since the PP and the PSOE signed the Pact on the State of Justice in 2001, both parties have tried to limit this figure when they were in Moncloa. The newspaper’s archives include attempts from 2011, 2013 and, most recently, from 2020, when Sánchez’s executive proposed to prevent parties and unions from appearing as a popular accusation and to establish a catalogue of crimes in which this figure can be used. This list included many types of crimes related to corruption, although it excluded others, such as the prevarication of public officials or the lack of prosecution for crimes.
This latest reform is still ongoing. But the controversy surrounding popular accusations has resurfaced amid the rise of far-right entities that have established themselves as real factories of quarrels. The role of Clean Hands stands out, a pseudo-union that has recently returned to the fray with a battery of initiatives, especially against members of the government. But also that of ultra-Catholic entities such as Christian Lawyers, Get Heard or Alternativa Española that have been trying for years to resurrect the crime against religious feelings to the detriment of current events.
A “useful” instrument
However, popular accusations have also served to promote investigations in the face of more cautious strategies and even inaction by the prosecution. A reality that leads judges, lawyers and jurists consulted by elDiario.es to defend its “usefulness” despite the risk that associations or parties use it to instrumentalize judicial processes according to their interests and that its tortuous use could lead to some political interference in the most publicized cases.
“A poorly exercised popular accusation can cause excesses and distortions, because some use it to gain notoriety or exploit justice. But it is an instrument that cannot be dispensed with because the Constitution says so and because it has repeatedly shown its usefulness,” says Judge Miguel Pasquau, member of the Civil and Criminal Chamber of the High Court of Justice of Andalusia. A usefulness that, according to him, lies in the importance of avoiding the “monopoly” of criminal action by the Public Prosecutor’s Office, especially in the face of collective interests and crimes that do not have a direct victim. And he cites as “the clearest example” prevarication, one of the most common criminal offences in corruption cases.
Noemí Jiménez Cardona, a doctor of law and postdoctoral researcher at the University of Barcelona, points out that “eliminating, without further delay, the figure of the popular prosecutor” would mean “directly attacking the right to citizen participation” recognized in the Constitution. “and, in addition, could unbalance the checks and balances” of the system. “Facilitating access for any citizen to the process to support an accusation in the event of suspicion of the commission of a criminal act is a guarantee to counter the hypothetical inactions of the public prosecutor,” argues this expert.
“From the point of view of democratic quality, we have a heterodox instrument at European level [donde no existe esta figura] “But it has served to improve and promote many investigations. There are actions that are launched thanks to popular action. Especially in cases of corruption or environmental crimes, where there are fears or conditions that cause the prosecution not to act or an individual feels alone and does not agree to report it,” adds Juan Moreno, a lawyer for Izquierda Unida who has served the popular prosecution in cases such as the Bárcenas newspapers and who is now an advisor to the Sumar parliamentary group.
A similar opinion is expressed by businessman Gonzalo Postigo, who was president of the Inter-Union Credit Confederation (CIC) when that entity led the popular accusation in high-profile cases such as the black cards of Caja Madrid and another dozen cases related to the excesses of financial entities. He also presents himself as a fervent defender of a figure that, according to him, is a “citizen’s right” and that, sometimes, is “the only way to implement Justice.”
A path that is also very often taken by the political formations themselves, which, paradoxically, advocate limiting it when they are in power. For example, the PSOE was a popular accusation in the Gürtel plot or in the Kitchen affair that affects the PP. And the PP in the ERE of Andalusia or the “Koldo case” linked to the administrations in the hands of the socialists. Vox has also acquired a media presence thanks to its initiatives as a popular accusation. And other formations such as the UPyD, which has disappeared, have made popular action practically their raison d’être by intervening in a multitude of corruption cases.
Despite this, it is a figure that “has always been contested by the political power,” says lawyer Juan Moreno (IU), who defends that “there is no reason of efficiency or justice” behind the initiatives aimed at limiting it. And although all the sources consulted admit that there have been certain “excesses” in the exercise of popular action – especially in the most publicized cases – the majority believes that the system has mechanisms to prevent what the jurist Jiménez Cardona defines as an “instrumental use, with fallacious motivations and aimed at satisfying other objectives that have nothing to do with the objectives of the judicial process.”
“This is a risk that materializes especially when it is used by entities, political parties or associations of all ideological signs and conditions (…) when the goal is any other extra-procedural motivation”, adds this expert, who emphasizes that these purposes can range from obtaining media coverage with electoral connotations, to the attempt to deploy a strategy of political attrition through the famous “bench penalty”, facilitating access to sources of evidence and thus obtaining information or even being used as a measure of pressure to obtain other demands in exchange for the withdrawal of the accusation.
Investigating judges, keys
Magistrate Miguel Pasquau looks at the investigating judges. That is, the people in charge of admitting or not a complaint and directing the investigation before the case is filed or judged. “The problem is the investigating judges, who do not filter enough. They let the ball run and wait to see how the investigation progresses and if the prosecution ends up accusing. Many times, a ball is generated that leads to nothing. Greater rigor is necessary at the time of admitting a complaint for processing, especially when the prosecution does not accuse and there is no private accusation either,” he emphasizes.
The jurist Jiménez Cardona also recalls that the law already provides for various measures that judges and courts can use to mitigate possible excesses and illegitimate uses of popular action. Among them, the incompatibilities that prevent certain people from becoming popular accusers or the fixing of bails. However, he considers that these are effective measures when popular action falls to natural persons, but “insufficient” in the case of legal persons that have more economic and organizational means.
This is why this jurist believes that the trend marked by the 2020 reform – which was not approved – can help reduce some of these “shadows” by incorporating parameters that facilitate “judicial control and legal certainty”. The preliminary draft imposed, in principle, stricter conditions to allow access to the popular impeachment procedure. In fact, Jiménez Cardona argues that it would have been more appropriate to subject parties and unions to these “strict parameters of judicial control” instead of automatically depriving them of this right.
Judge Pasquau is also “totally skeptical” about the effectiveness of excluding political groups from this figure. He believes that they could get around this hypothetical veto by accessing procedures with associations that resemble them, as they already do currently. He assures that it would be more interesting to increase the demand to see who can file the popular action.
“For example, it must be an accredited, consolidated association, with a certain implementation and directly concerned in its statutes by the matter in question,” says this magistrate. And above all, he emphasizes that the responsibility lies with the judges and the courts, who have in their hands instruments against those who proceed to an “abusive exercise” of this figure and which allow the imposition of financial fines in cases of bad faith. This is what the Supreme Court did when it imposed a fine of 1,500 euros on Manos Cleans in 2015 for “manifest abuse of rights” by filing a complaint against two of the magistrates who had acquitted the accused of the seat of the Parliament of Catalonia.
