Popular indictments may be the most curious institution in Spanish criminal justice. This institution, in fact, allows any person, to pursue a criminal accusation as long as the crime is public or semi-public. The scope of its mandate is the same as the public prosecutor or the private indictment; it provides an alternative third way to act in trial, propose evidence, file motions and recommend sentences.
Popular prosecution was introduced as a way to guarantee the effective implementation of the right to access justice and the right to equality among citizens.
It is obvious that the first step that the State must take to guarantee that justice is obtained (“effective judicial protection”, as it is known in the Spanish Constitution) is to ensure that citizens are able to request and obtain justice from the courts. In some European countries, this responsibility is left to the Public Prosecutor alone. In some other countries, private indictments can also exercise this prerogative throughout the proceedings. This system may be appropriate when both the victim and the accused are clearly identified or can be easily identified.
But what happens in those crimes where there is no direct victim, such as the diversion of public funds or bribery in order to obtain public contracts? Or in those where victims are indeterminate, like in the case of manipulation of financial markets or contamination of public resources? Or when either the victims or their heirs can no longer bring an accusation, as it happens in cases involving the death of migrants and asylum seekers at Spanish borders?
In principle, it is the responsibility of the State to ask for an investigation and possibly condemn violations of the social contract. But often, the responsibility of the State to request an investigation and a conviction is compromised by its direct implication in the very commission of the crime. For instance, it is the case of crimes committed by police officers, high civil servants or politicians, whose ability to alter or destroy the evidence seriously jeopardises the success of the case.
In addition, such cases often need huge resources, including funding, which few people are able to afford; as a result, any denial or negligence by the Public Prosecutor may really mean the end of the investigation, or the outright impossibility to even start any criminal investigation.
That’s why popular indictments have been a formidable tool allowing civil society to promote their demands for justice when the State itself showed no interest in delivering it. Traditionally exercised by platforms, associations, political groups and trade unions given the enormous human, economic and technical resources that they need, popular indictments have delivered excellent results in the last thirty years. These include the convictions of prison officers for institutionalised torture in the 80s and of officials responsible for abuses of the national anti-terrorism unit, the detention of Chilean dictator Pinochet, and more recent criminal cases involving political corruption (the so-called Gürtel case), false employment regulations in Andalusia, the criminal management of Bankia bank, and the conservative party’s (Partido Popular) false accounting.
On the other hand, popular indictments have also been used as a political weapon or, what is worse, as a tool to extort information for other purposes.
Although such abuses may lead to an understandable criticism, there are powerful reasons to maintain this institution and to adjust it to a better functioning, without suppressing it.
First of all, the Public Prosecution in Spain is not independent from the Government, as the Prosecutor General is named directly by the Minister of Justice. The ensuing hierarchy between the Prosecutor General and local public prosecutors collide with the principle of independency and allow interference in trials involving high civil servants, economic tycoons or politicians. The reasons of the Government do not necessarily match the reasons of the State.
Secondly, the mere abuse of a fundamental right can never restrict its legitimate use. Would it be fair to have an annual maximum limit of medical consultations only because there are hypochondriacs who go to the hospital every week? If a popular indictment is wrongly exercised, it will be the Court’s duty to deal with it.
Thirdly, popular indictments have been limited already in the past, in the absence of clear legal grounds. In particular, although the Spanish Constitution states that popular indictments can be used in any cases except in military courts and private crimes such as slanders, courts have limited the scope of its application to cases involving a “public interest”, a vague concept which leaves room for confusion and arbitrary interpretation. Furthermore, the Supreme Court has established rules which further restrict its scope of application. In fact, the Court first stated that if a crime is not prosecuted by the Public Prosecutor nor through a private accusation, the case may be closed regardless of any existing popular indictment (Doctrina Botín). Later on, the same Court detailed that this limitation only applies to crimes with identifiable victims. Conversely, if the interests at stake are public, such as the administration of justice, then the accusation has to continue even if the public prosecution and the private accusations have been dropped.
Over the last years, we have been witnessing growing calls for further limitations to the popular indictment or even its suppression. It is no surprise that such calls are being asserted at a moment when several enormous corruption cases are being spearheaded through popular indictments. These calls for suppression bear more political interests than technical advantages.
In the absence of improvements towards the independence of the Public Prosecution and proper ways to control undue interference from other public institutions, suppressing or effectively sabotaging the use of popular indictments will only expropriate the right to demand justice from civil society; conversely, it will open the door to even more arbitrariness and political opportunism for the Government.