Quality of Democracy
#21Key Findings
With a modicum of normality returning after a period of tumultuous politics, Spain falls into the middle ranks (rank 21) with respect to democracy quality. Its score on this measure has improved by 0.7 points relative to 2014.
A new reform aims at helping Spanish citizens living overseas vote. Parties receive public and private funding. The Audit Office has launched a website tracking parties’ finances. Physical violence against journalists has become more common, and polarization is eroding trust in the media. Ownership in the media sector is highly concentrated, but online sources counterbalance oligopolistic trends.
Civil rights are generally well protected. The trial of Catalan separatist leaders was public, transparent and carried out in accordance with international standards. Roma are economically marginalized, and the rise of the Vox party has led to more vitriolic rhetoric against immigration and minority groups. A new open government plan will increase transparency and provide access to more data.
The Constitutional Court declared the pandemic-era state of alarm to have been unconstitutional. The main parties have ended a years-long stalemate on appointments to that court. A new code of conduct governing parliamentarians’ conflicts of interest has been adopted, and money laundering laws have been aligned with EU guidelines.
A new reform aims at helping Spanish citizens living overseas vote. Parties receive public and private funding. The Audit Office has launched a website tracking parties’ finances. Physical violence against journalists has become more common, and polarization is eroding trust in the media. Ownership in the media sector is highly concentrated, but online sources counterbalance oligopolistic trends.
Civil rights are generally well protected. The trial of Catalan separatist leaders was public, transparent and carried out in accordance with international standards. Roma are economically marginalized, and the rise of the Vox party has led to more vitriolic rhetoric against immigration and minority groups. A new open government plan will increase transparency and provide access to more data.
The Constitutional Court declared the pandemic-era state of alarm to have been unconstitutional. The main parties have ended a years-long stalemate on appointments to that court. A new code of conduct governing parliamentarians’ conflicts of interest has been adopted, and money laundering laws have been aligned with EU guidelines.
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How fair are procedures for registering candidates and parties?
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Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
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A few restrictions on election procedures discriminate against a small number of candidates and parties.
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Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
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Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Spain’s legal and administrative regulations for validating party lists and candidacies is fair and flexible. This was again demonstrated during the national and regional elections in 2019, 2020 and 2021. After the 2019 elections, the OSCE Office for Democratic Institutions and Human Rights expressed a high level of confidence in the framework and management of parliamentary elections in Spain.
Almost every Spanish adult is eligible to run for public office. Legislation on gender parity (Organic Law 3/2007) requires party electoral lists to have a balanced gender representation, with each sex accounting for at least 40% of the total number of candidates.
Fair and nondiscriminatory registration is protected by a number of guarantees overseen both by the electoral administration and the courts, including the Constitutional Court through a fast-track procedure. The only restrictions on candidacies contained in the electoral law apply to specific public figures (the royal family, some public officials, judges, police officers and members of the military) and those who have been convicted of a crime. However, Spanish procedures for registering candidates are fair, and everyone (including those who have been prosecuted for serious criminal offenses and even fugitives) has the opportunity to become an election candidate without restriction or discrimination.
In September 2020, the Supreme Court disqualified incumbent Catalan president Quim Torra from office, from holding any elected office and from exercising government powers. He had been convicted by the High Court of Justice of Catalonia in late 2019 of violating electoral law and disobeying orders from the National Electoral Board by failing to remove separatist symbols from public buildings. This argument also applied to Catalan regional member of parliament Pau Juvillà in December 2021, when the same regional court disqualified him for displaying pro-independence symbols during the electoral period, ordering his removal as member of parliament.
Citations:
OSCE (2019), Spain Early Parliamentary Elections, https://www.osce.org/odihr/elections/spain/416252
Barrat Esteve, Jordi (2021), Spanish Regional Elections During the COVID-19 Pandemic, International IDEA, https://www.idea.int/sites/default/files/spanish-regional-elections-during-the-covid-19-pandemic.pdf
Almost every Spanish adult is eligible to run for public office. Legislation on gender parity (Organic Law 3/2007) requires party electoral lists to have a balanced gender representation, with each sex accounting for at least 40% of the total number of candidates.
Fair and nondiscriminatory registration is protected by a number of guarantees overseen both by the electoral administration and the courts, including the Constitutional Court through a fast-track procedure. The only restrictions on candidacies contained in the electoral law apply to specific public figures (the royal family, some public officials, judges, police officers and members of the military) and those who have been convicted of a crime. However, Spanish procedures for registering candidates are fair, and everyone (including those who have been prosecuted for serious criminal offenses and even fugitives) has the opportunity to become an election candidate without restriction or discrimination.
In September 2020, the Supreme Court disqualified incumbent Catalan president Quim Torra from office, from holding any elected office and from exercising government powers. He had been convicted by the High Court of Justice of Catalonia in late 2019 of violating electoral law and disobeying orders from the National Electoral Board by failing to remove separatist symbols from public buildings. This argument also applied to Catalan regional member of parliament Pau Juvillà in December 2021, when the same regional court disqualified him for displaying pro-independence symbols during the electoral period, ordering his removal as member of parliament.
Citations:
OSCE (2019), Spain Early Parliamentary Elections, https://www.osce.org/odihr/elections/spain/416252
Barrat Esteve, Jordi (2021), Spanish Regional Elections During the COVID-19 Pandemic, International IDEA, https://www.idea.int/sites/default/files/spanish-regional-elections-during-the-covid-19-pandemic.pdf
To what extent do candidates and parties have fair access to the media and other means of communication?
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All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
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Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
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Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
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Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
All political parties with parliamentary representation have good access to the public media during electoral campaigns (e.g., they are covered by news reports, participate in candidate debates, etc.), while outsiders have very restricted access. This has produced some controversy in recent years regarding the limitations suffered by new parties (like Podemos, Ciudadanos or Vox) in their first electoral campaign before entering the parliament.
In terms of pluralism, there is a variety of public and private television and radio stations, newspapers and internet portals. However, the public TV and radio network (state-wide RTVE, and several regional and local channels) has been criticized for its lack of impartiality and credibility, while privately owned media are dominated by only three media groups. The population’s increasing access to the internet (with a penetration rate of approximately 85%) and widespread use of social networks have encouraged the proliferation of electronic newspapers and independent blogs, which counterbalance the oligopolistic trends and guarantee that all opinions can be expressed in public debate.
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Citations:
Universidad de Navarra (2021), Digital News Report https://www.digitalnewsreport.es/resumen-ejecutivo-digitalnewsreport-es-2021-periodismo-de-calidad-y-cercania-para-combatir-la-infodemia/
In terms of pluralism, there is a variety of public and private television and radio stations, newspapers and internet portals. However, the public TV and radio network (state-wide RTVE, and several regional and local channels) has been criticized for its lack of impartiality and credibility, while privately owned media are dominated by only three media groups. The population’s increasing access to the internet (with a penetration rate of approximately 85%) and widespread use of social networks have encouraged the proliferation of electronic newspapers and independent blogs, which counterbalance the oligopolistic trends and guarantee that all opinions can be expressed in public debate.
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Citations:
Universidad de Navarra (2021), Digital News Report https://www.digitalnewsreport.es/resumen-ejecutivo-digitalnewsreport-es-2021-periodismo-de-calidad-y-cercania-para-combatir-la-infodemia/
To what extent do all citizens have the opportunity to exercise their right of participation in national elections?
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All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
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The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
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While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
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The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Every Spanish citizen 18 years and over has the right to vote. The extent to which this suffrage can be exercised is absolute, and apart from minor errors, no discrimination or any other significant exclusion has existed in recent elections. Only those who have been judged guilty in certain criminal cases (always by a court) may lose their political rights. All citizens are automatically included in the electoral register, which is as a rule updated correctly.
The only two notable problems are related to immigration and emigration. The 5 million foreigners who live in Spain are not entitled to vote in national elections and naturalization is not easy even for foreign residents of long standing. However, this restriction is common to all advanced democracies. EU citizens can vote in local and European Parliament, and non-EU citizens are entitled to cast ballots in local elections if their home countries reciprocally allow Spaniards to vote.
Much more problematic is the exercise of voting in Spain of Spanish citizens living overseas, who face onerous bureaucratic obstacles to participating in elections as well as occasional technical failures in the administrative work of consular departments. The parliament has recognized the need to address deficiencies in voting by post from abroad and has considered several proposals to ease the current requirements. In February 2021, the government parties submitted a legislative initiative to reform the electoral law so as to remove these obstacles. In September 2021, PSOE and PP made a parliamentary agreement to promote the reform.
Ahead of regional elections in the Basque Country and Galicia, the question of how to avoid the disenfranchisement of COVID-19-positive voters was vigorously debated. In Galicia and the Basque Country, both governments decided not to allow those who had tested positive for COVID-19 to vote if the deadline for postal voting had already expired. Home voting was not considered by electoral authorities.
In the 2021 regional elections in Catalonia and Madrid, these concerns decreased. They did not have a differential impact in turnout (very low in Catalonia, very high in Madrid).
Citations:
OSCE Office for Democratic Institutions and Human Rights (2019), Spain Early Parliamentary Elections, https://www.osce.org/odihr/elections/spain/416252
The only two notable problems are related to immigration and emigration. The 5 million foreigners who live in Spain are not entitled to vote in national elections and naturalization is not easy even for foreign residents of long standing. However, this restriction is common to all advanced democracies. EU citizens can vote in local and European Parliament, and non-EU citizens are entitled to cast ballots in local elections if their home countries reciprocally allow Spaniards to vote.
Much more problematic is the exercise of voting in Spain of Spanish citizens living overseas, who face onerous bureaucratic obstacles to participating in elections as well as occasional technical failures in the administrative work of consular departments. The parliament has recognized the need to address deficiencies in voting by post from abroad and has considered several proposals to ease the current requirements. In February 2021, the government parties submitted a legislative initiative to reform the electoral law so as to remove these obstacles. In September 2021, PSOE and PP made a parliamentary agreement to promote the reform.
Ahead of regional elections in the Basque Country and Galicia, the question of how to avoid the disenfranchisement of COVID-19-positive voters was vigorously debated. In Galicia and the Basque Country, both governments decided not to allow those who had tested positive for COVID-19 to vote if the deadline for postal voting had already expired. Home voting was not considered by electoral authorities.
In the 2021 regional elections in Catalonia and Madrid, these concerns decreased. They did not have a differential impact in turnout (very low in Catalonia, very high in Madrid).
Citations:
OSCE Office for Democratic Institutions and Human Rights (2019), Spain Early Parliamentary Elections, https://www.osce.org/odihr/elections/spain/416252
To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?
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The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
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The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
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The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
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The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Under the current rules, political parties are deemed private associations with a mixed revenue system. They are assigned funds from the public budget in proportion to their parliamentary representation, but can also collect private money from individuals (including in the form of largely insignificant membership fees) and corporations. The law was reformulated in 2015 as part of an anti-corruption plan aimed at increasing transparency and imposing sanctions following the emergence of a significant number of scandals in previous years. It imposes spending thresholds in electoral campaigns, and contributions made by businesses are at least in theory subject to limits and conditions (e.g., anonymous donations are forbidden, and companies that supply goods or services to the state cannot contribute to campaigns). According to the OSCE Office for Democratic Institutions and Human Rights recommended a review of the balance between public and private funding, and ensuring that the system of public funding of both statutory and campaign-related activities of parties does not disproportionally favor larger, established parties. However, so far, no legislative amendments have been adopted.
The Audit Office (Tribunal de Cuentas) is the body charged with auditing the party accounts, and is empowered to undertake investigations on its own initiative and upon complaint, but does not have the capacity to control the investigations effectively. Although there have been certain improvements, the office suffers from a lack of political independence, since its members are appointed by the parties themselves. It also lacks staff resources, with the publication of audit reports often delayed. Moreover, there is no oversight during the campaign or before the submission and review of campaign reports. In 2021, the Audit Office launched a website for the general public providing information on the economic and financial activities of political parties and related entities (https://www.cuentaspartidospoliticos.es/es/index.html).
Citations:
GRECO (2019), Evaluation Report, Spain, Adopted by GRECO at its 83rd Plenary Meeting (Strasbourg, 17-21 June 2019) https://rm.coe.int/fifth-evaluation -round-preventing-corruption-and-pr omoting-integrity-i/168098c691
OSCE/ODHIR (2017): Opinion on Laws Regulation the Funding of Political Parties in Spain. Report available at: https://www.osce.org/odihr/356416
The Audit Office (Tribunal de Cuentas) is the body charged with auditing the party accounts, and is empowered to undertake investigations on its own initiative and upon complaint, but does not have the capacity to control the investigations effectively. Although there have been certain improvements, the office suffers from a lack of political independence, since its members are appointed by the parties themselves. It also lacks staff resources, with the publication of audit reports often delayed. Moreover, there is no oversight during the campaign or before the submission and review of campaign reports. In 2021, the Audit Office launched a website for the general public providing information on the economic and financial activities of political parties and related entities (https://www.cuentaspartidospoliticos.es/es/index.html).
Citations:
GRECO (2019), Evaluation Report, Spain, Adopted by GRECO at its 83rd Plenary Meeting (Strasbourg, 17-21 June 2019) https://rm.coe.int/fifth-evaluation -round-preventing-corruption-and-pr omoting-integrity-i/168098c691
OSCE/ODHIR (2017): Opinion on Laws Regulation the Funding of Political Parties in Spain. Report available at: https://www.osce.org/odihr/356416
Do citizens have the opportunity to take binding political decisions when they want to do so?
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Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
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Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
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Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
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Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Since 2008, there has been strong public demand to give citizens a more direct role in Spain’s political decisions. While the two main participatory-democracy mechanisms that formally exist in Spain (the citizens’ legislative initiative and the referendum) have largely been ignored, several innovations in popular deliberation and decision-making have taken place in the last several years (with particular relevance at the EU and local levels).
The effectiveness of the popular legislative-initiative model, which enables the public to put a measure in front of the legislature, is quite limited due to the high number of signatures required. Moreover, other political and legal obstacles exist, such as the fact that initiatives are not allowed on matters concerning fundamental rights, the state’s institutional structure, taxation, international affairs or the prerogative of pardon. Historically, even when the 500,000-signature threshold has been reached, the huge majority of those initiatives have been dismissed.
The second means of popular decision-making relates to the option of submitting political decisions of special importance to all citizens in a referendum. However, Spaniards have been asked to vote in only three national referendums since democratization, in addition to seven such legal votes held in the various autonomous communities. Article 92 of the Spanish constitution stipulates that political decisions of special importance may be submitted to all Spanish citizens via an advisory referendum. The referendum should be announced by the king on the president of the government’s proposal, with the authorization of the congress. Since 2012, Catalan nationalist forces have pushed for a referendum on independence only in Catalonia. However, this would be illegal according to the Spanish constitution. Neither of the two attempts at holding referendums (November 2014 and October 2017) had the minimal democratic guarantees, as defined by institutions such as the Venice Commission – whether in the manner in which they were called, in the voting process itself or in their outcomes. Above all, there was no register of voters, and there was not a “No” campaign.
Several other modes of popular consultation have also been developed recently, enabling Spain’s citizens to express their political opinions on key issues. Several regional governments have opened the door to consultative procedures in pre-legislative processes. Similarly, a growing number of local authorities, including Madrid, Zaragoza and Barcelona, have engaged in participatory budgeting since 2019. Between 1985 and 2021, local authorities requested permission for 164 popular consultations, but only 46 were ultimately authorized by the national government. Other innovations in local direct democracy include the use of e-democracy and deliberative forums.
Spaniards are quite active with regard to citizen participation in EU policymaking. Since 1993, every EU citizen has had the right to address the European Parliament via petition. In 2019, a total of 1,357 petitions were filed, with most coming from Germany (203), Spain (164) and Italy (103).
Citations:
Neutral (2021): La Línea de la Concepción: pretensiones de autonomía y una consulta popular, July 18th. Available at: https://www.newtral.es/consulta-popular-espana-la-linea-concepcion-autonomia/20210718/
The effectiveness of the popular legislative-initiative model, which enables the public to put a measure in front of the legislature, is quite limited due to the high number of signatures required. Moreover, other political and legal obstacles exist, such as the fact that initiatives are not allowed on matters concerning fundamental rights, the state’s institutional structure, taxation, international affairs or the prerogative of pardon. Historically, even when the 500,000-signature threshold has been reached, the huge majority of those initiatives have been dismissed.
The second means of popular decision-making relates to the option of submitting political decisions of special importance to all citizens in a referendum. However, Spaniards have been asked to vote in only three national referendums since democratization, in addition to seven such legal votes held in the various autonomous communities. Article 92 of the Spanish constitution stipulates that political decisions of special importance may be submitted to all Spanish citizens via an advisory referendum. The referendum should be announced by the king on the president of the government’s proposal, with the authorization of the congress. Since 2012, Catalan nationalist forces have pushed for a referendum on independence only in Catalonia. However, this would be illegal according to the Spanish constitution. Neither of the two attempts at holding referendums (November 2014 and October 2017) had the minimal democratic guarantees, as defined by institutions such as the Venice Commission – whether in the manner in which they were called, in the voting process itself or in their outcomes. Above all, there was no register of voters, and there was not a “No” campaign.
Several other modes of popular consultation have also been developed recently, enabling Spain’s citizens to express their political opinions on key issues. Several regional governments have opened the door to consultative procedures in pre-legislative processes. Similarly, a growing number of local authorities, including Madrid, Zaragoza and Barcelona, have engaged in participatory budgeting since 2019. Between 1985 and 2021, local authorities requested permission for 164 popular consultations, but only 46 were ultimately authorized by the national government. Other innovations in local direct democracy include the use of e-democracy and deliberative forums.
Spaniards are quite active with regard to citizen participation in EU policymaking. Since 1993, every EU citizen has had the right to address the European Parliament via petition. In 2019, a total of 1,357 petitions were filed, with most coming from Germany (203), Spain (164) and Italy (103).
Citations:
Neutral (2021): La Línea de la Concepción: pretensiones de autonomía y una consulta popular, July 18th. Available at: https://www.newtral.es/consulta-popular-espana-la-linea-concepcion-autonomia/20210718/
Graph View
To what extent are the media independent from government?
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Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
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The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
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The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
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Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Spain has a diverse and free media. Though the approval of new laws, which can constrain media freedom, combined with Spain’s struggling economy have created difficulties for journalists in recent years. Reporters Without Borders reported on physical violence against journalists by both police and demonstrators, due above all to the conflict over Catalan separatist demands and the rise of the far-right Vox party. Moreover, the climate of polarization is eroding society’s confidence in journalists and fueling hate speech against the media. But journalists have also criticized the lack of government transparency. The lack of transparency was exacerbated by the state of alarm during the first few months of the pandemic. Moreover, there is a high degree of public concern about the dissemination of false information. Spain was ranked 29th in the 2021 World Press Freedom Index.
Under the new multiparty scenario, all parties agreed to appoint the next RTVE president on the basis of consensus. A legal change introduced in 2017 established an open and public competition for seats on the public media organization’s governing board and for its president, with the need for a two-thirds (rather than simple) parliamentary majority to approve these positions. However, after difficulties in selecting a new president, a provisional “sole administrator” was appointed to direct the public broadcasting group. In February 2021, the PSOE and PP reached an agreement to renew the Board of Directors of RTVE. Under the terms of this agreement, the Congress of Deputies elected six members of the board, and the Senate four members. A new president was appointed in March 2021.
The situation with regard to regional public-broadcast groups is probably worse, with incumbent governments openly promoting their partisan political objectives. This has long been the case in Andalusia, in Madrid and particularly in Catalonia, where the public media has openly supported the nationalist regional government’s pro-secession view, while limiting access for those holding opposing perspectives or pluralistic positions. In Madrid, the regional government passed a law in 2021 to strengthen the control over the channel’s board. In Catalonia there was an agreement among the main parties at the end of the year to appoint a new director (with a partisan bias), after three years of delay.
With regard to private-broadcasting operations, media groups are of course formally independent, but the parties in office (at both the national and regional levels) have traditionally sought to support the newspapers, radio and television stations that are ideologically closest to them.
Citations:
Reporters without borders (2021), World Press Freedom Index. https://rsf.org/en/spain
Under the new multiparty scenario, all parties agreed to appoint the next RTVE president on the basis of consensus. A legal change introduced in 2017 established an open and public competition for seats on the public media organization’s governing board and for its president, with the need for a two-thirds (rather than simple) parliamentary majority to approve these positions. However, after difficulties in selecting a new president, a provisional “sole administrator” was appointed to direct the public broadcasting group. In February 2021, the PSOE and PP reached an agreement to renew the Board of Directors of RTVE. Under the terms of this agreement, the Congress of Deputies elected six members of the board, and the Senate four members. A new president was appointed in March 2021.
The situation with regard to regional public-broadcast groups is probably worse, with incumbent governments openly promoting their partisan political objectives. This has long been the case in Andalusia, in Madrid and particularly in Catalonia, where the public media has openly supported the nationalist regional government’s pro-secession view, while limiting access for those holding opposing perspectives or pluralistic positions. In Madrid, the regional government passed a law in 2021 to strengthen the control over the channel’s board. In Catalonia there was an agreement among the main parties at the end of the year to appoint a new director (with a partisan bias), after three years of delay.
With regard to private-broadcasting operations, media groups are of course formally independent, but the parties in office (at both the national and regional levels) have traditionally sought to support the newspapers, radio and television stations that are ideologically closest to them.
Citations:
Reporters without borders (2021), World Press Freedom Index. https://rsf.org/en/spain
To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?
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Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
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Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
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Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
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Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
The constitution provides for freedom of expression without censorship, as well as the right to information. According to this, the media environment is pluralistic with a variety of public and private television and radio stations, newspapers, and internet portals. However, the market is dominated by only three media groups. The CMPF has warned that this concentration put media pluralism at risk in the future. The concentration of the advertising market of two large television operators – Mediaset and Altresmedia – has been confirmed via a sanction issued by the CNMC in November 2019
In 2020, the average daily consumption of media exceeded eight hours in Spain, reaching the highest figure in the last two decades. This is probably due to the change in citizens’ habits as a result of the COVID-19 pandemic. TV viewing rates reached an all-time high during the first week of lockdown in March. However, Netflix, HBO and Movistar+ were the big winners during this period.
The widespread use of social networks has encouraged the proliferation of electronic newspapers and independent blogs that counterbalance oligopolistic trends and guarantee that certain opinions can be expressed in public debate.
The largest newspaper is the very influential center-left El País. Other nationwide newspapers include the center-right El Mundo and the conservative ABC. In Catalonia, the moderate nationalist La Vanguardia is the market leader. There is no print newspaper that represents genuinely left-leaning ideas, but progressive digital publications such as Eldiario.es and Publico.es have a large number of readers. There are also significant center-right to right-wing digital media sites such as Elconfidencial.com, y Elespanol.com and Okdiario.com. Nevertheless, the country’s most widely read information websites are the electronic versions of print newspapers.
With regard to television, 55% to 60% of the market is controlled by the Italian company Mediaset (which includes the Telecinco and Cuatro channels), the Atresmedia Corporación (which owns both the right-wing Antena 3 and the more leftist channel La Sexta), and the public broadcaster Televisión Española (with a market share of about 15%), as well as regional public-television networks and small private stations. The radio market is dominated by the center-left SER station, followed by the center-right Onda Cero, the Cadena Cope (which belongs to the Catholic Church) and the publicly owned Radio Nacional de España.
Citations:
Asociación para la Investigación de Medios de Comunicación (2021), Audiencia de Internet
https://www.aimc.es/egm/audiencia-internet-egm/
Universidad de Navarra (2021), Digital News Report https://www.digitalnewsreport.es/resumen-ejecutivo-digitalnewsreport-es-2021-periodismo-de-calidad-y-cercania-para-combatir-la-infodemia/
European University Institute, Robert Schuman Centre for Advanced Studies, García Castillejo, Á., Suau, J., Masip, P., et al., Monitoring Media Pluralism in the Digital Era: Application of the Media Pluralism Monitor in the European Union, Albania and Turkey in the years 2018-2019. Country report: Spain, European University Institute, 2020, https://data.europa.eu/doi/10.2870/253126
In 2020, the average daily consumption of media exceeded eight hours in Spain, reaching the highest figure in the last two decades. This is probably due to the change in citizens’ habits as a result of the COVID-19 pandemic. TV viewing rates reached an all-time high during the first week of lockdown in March. However, Netflix, HBO and Movistar+ were the big winners during this period.
The widespread use of social networks has encouraged the proliferation of electronic newspapers and independent blogs that counterbalance oligopolistic trends and guarantee that certain opinions can be expressed in public debate.
The largest newspaper is the very influential center-left El País. Other nationwide newspapers include the center-right El Mundo and the conservative ABC. In Catalonia, the moderate nationalist La Vanguardia is the market leader. There is no print newspaper that represents genuinely left-leaning ideas, but progressive digital publications such as Eldiario.es and Publico.es have a large number of readers. There are also significant center-right to right-wing digital media sites such as Elconfidencial.com, y Elespanol.com and Okdiario.com. Nevertheless, the country’s most widely read information websites are the electronic versions of print newspapers.
With regard to television, 55% to 60% of the market is controlled by the Italian company Mediaset (which includes the Telecinco and Cuatro channels), the Atresmedia Corporación (which owns both the right-wing Antena 3 and the more leftist channel La Sexta), and the public broadcaster Televisión Española (with a market share of about 15%), as well as regional public-television networks and small private stations. The radio market is dominated by the center-left SER station, followed by the center-right Onda Cero, the Cadena Cope (which belongs to the Catholic Church) and the publicly owned Radio Nacional de España.
Citations:
Asociación para la Investigación de Medios de Comunicación (2021), Audiencia de Internet
https://www.aimc.es/egm/audiencia-internet-egm/
Universidad de Navarra (2021), Digital News Report https://www.digitalnewsreport.es/resumen-ejecutivo-digitalnewsreport-es-2021-periodismo-de-calidad-y-cercania-para-combatir-la-infodemia/
European University Institute, Robert Schuman Centre for Advanced Studies, García Castillejo, Á., Suau, J., Masip, P., et al., Monitoring Media Pluralism in the Digital Era: Application of the Media Pluralism Monitor in the European Union, Albania and Turkey in the years 2018-2019. Country report: Spain, European University Institute, 2020, https://data.europa.eu/doi/10.2870/253126
To what extent can citizens obtain official information?
10
9
9
Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
8
7
6
7
6
Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
5
4
3
4
3
Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
2
1
1
Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
The first specific law enabling free and easy access to government information in Spain was approved in 2013, this legislation establishes some limits to the freedom of information, and Spain still scores comparatively low for three reasons: 1) some institutions (including the royalty) are not rendered completely transparent by the law, and 2) access to information is not recognized as a fundamental right.
During the first nationwide state of alarm and after the suspension of all administrative deadlines, more than 30 Spanish civil society organizations called on the Spanish government to guarantee the right of access to information. In fact, during the state of alarm, the central government’s Transparency Portal website was not updated. Moreover, for several months, the government refused to provide the names and professional profiles of the members of the expert teams that were advising the government’s coronavirus strategy – these names were finally published at the end of 2020 – nor did it provide the minutes of meetings and reports from the Scientific Committee, which began advising the government on managing the pandemic in March 2020.
During 2020, the Council for Transparency and Good Governance – an independent body – urged the Spanish government on several occasions to deliver information relating to the purchase of medical equipment, as had been requested.
After initially experiencing difficulties collecting data in a timely and orderly fashion, the government and the autonomous communities have on a daily basis published data on infection rates and their development over time, as well as on the local distribution of infections.
In October 2020, after an open process of public consultation, the Spanish government presented an Open Government Action Plan 2020 – 2024, which includes a reform of the 2013 Transparency Law, the ratification of the Council of Europe Convention on Access to Official Documents, new laws on lobby regulations and whistleblower protections, and the opening of key data. At the regional level, several lobby regulations and whistleblower protections have already been adopted.
There are several appeal and oversight mechanisms by which citizens’ right to access information can be enforced (e.g., the Spanish and regional ombudsmen, or the transparency councils).
Citations:
Open Government Partnership (2021), Spain Action Plan Review 2020-2024 https://www.opengovpartnership.org/members/spain/
Moretón Toquero, M.A. (2020), Libertad de información y transparencia pública bajo el estado de alarma decretado para afrontar la pandemia por Covid19. Biglino Campos, P.; Durán Alba, F., Los Efectos Horizontales de la COVID sobre el sistema constitucional, Colección Obras Colectivas, Fundación Manuel Giménez Abad, Zaragoza. DOI: https://doi.org/10.47919/FMGA.OC20.0011
During the first nationwide state of alarm and after the suspension of all administrative deadlines, more than 30 Spanish civil society organizations called on the Spanish government to guarantee the right of access to information. In fact, during the state of alarm, the central government’s Transparency Portal website was not updated. Moreover, for several months, the government refused to provide the names and professional profiles of the members of the expert teams that were advising the government’s coronavirus strategy – these names were finally published at the end of 2020 – nor did it provide the minutes of meetings and reports from the Scientific Committee, which began advising the government on managing the pandemic in March 2020.
During 2020, the Council for Transparency and Good Governance – an independent body – urged the Spanish government on several occasions to deliver information relating to the purchase of medical equipment, as had been requested.
After initially experiencing difficulties collecting data in a timely and orderly fashion, the government and the autonomous communities have on a daily basis published data on infection rates and their development over time, as well as on the local distribution of infections.
In October 2020, after an open process of public consultation, the Spanish government presented an Open Government Action Plan 2020 – 2024, which includes a reform of the 2013 Transparency Law, the ratification of the Council of Europe Convention on Access to Official Documents, new laws on lobby regulations and whistleblower protections, and the opening of key data. At the regional level, several lobby regulations and whistleblower protections have already been adopted.
There are several appeal and oversight mechanisms by which citizens’ right to access information can be enforced (e.g., the Spanish and regional ombudsmen, or the transparency councils).
Citations:
Open Government Partnership (2021), Spain Action Plan Review 2020-2024 https://www.opengovpartnership.org/members/spain/
Moretón Toquero, M.A. (2020), Libertad de información y transparencia pública bajo el estado de alarma decretado para afrontar la pandemia por Covid19. Biglino Campos, P.; Durán Alba, F., Los Efectos Horizontales de la COVID sobre el sistema constitucional, Colección Obras Colectivas, Fundación Manuel Giménez Abad, Zaragoza. DOI: https://doi.org/10.47919/FMGA.OC20.0011
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To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?
10
9
9
All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
8
7
6
7
6
The state respects and protects rights, with few infringements. Courts provide protection.
5
4
3
4
3
Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
2
1
1
State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Spanish state institutions generally respect and protect civil rights. The rights guaranteed by the constitution and ordinary legislation are enforced, and only few infringements occur in practice (e.g., concerning illegal immigrants). Courts provide effective protection even if systematic delays and a lack of adequate resources (both human and technological) are factors that undermine this effectiveness to some degree. The political conflict associated with Catalonia’s bid for independence included the very debatable claim by Catalan nationalist forces that the central government and the courts had supported an abusive interpretation of the rule of law. But in fact the opposite was the case; individuals’ rights are rigorously safeguarded in Spanish criminal proceedings. The trial of 12 Catalan independence movement leaders in 2019 was public, transparent and was carried out in compliance with the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.
During the period under review, parliament continued to debate the reform of the controversial 2015 law on public safety (gag law). A specific reform proposal was presented in November 2021. In November the coalition government tabled a proposal for the revision of several articles of the Code of Criminal Procedure, some reforms were able to be adopted during 2021 (e.g., Organic Law 3/2021 of 24 March, on the regulation of euthanasia; Law 8/2021 of 2 June on reforming civil and procedural legislation to support persons with disabilities in exercising their legal capacity; Organic Law 8/2021, of 4 June, on the comprehensive protection of children and adolescents against violence). The objective of Organic Law 8/2021is to protect children and adolescents in their physical, mental, psychological and moral integrity against any form of violence, in order to ensure the free development of their personality. The law is a consequence of decisions of the United Nations, the European Union and the Council of Europe. Legal experts have welcomed these reforms, although it has been noted that additional autonomy and resources would be needed for the implementation of the reforms.
During the first nationwide state of emergency, the excessive and disproportionate use of force by law enforcement officials to ensure compliance with lockdown rules was reported. But there also was a 60% increase in women calling the support helplines to report gender-based violence as compared to the same period the previous year. Online consultations with women seeking safety during the lockdown increased by 586%.
The Constitutional Court has the function of protecting civil rights. In 2021, it declared the two state of emergency decrees (approved in 2020 to deal with the COVID-19 pandemic) to be unconstitutional, because they did not provide sufficient guarantees for the protection of civil rights.
Citations:
UN Human Rights Council (2020), Universal Periodic Review on Spain (EUR 41/2732/2020)
During the period under review, parliament continued to debate the reform of the controversial 2015 law on public safety (gag law). A specific reform proposal was presented in November 2021. In November the coalition government tabled a proposal for the revision of several articles of the Code of Criminal Procedure, some reforms were able to be adopted during 2021 (e.g., Organic Law 3/2021 of 24 March, on the regulation of euthanasia; Law 8/2021 of 2 June on reforming civil and procedural legislation to support persons with disabilities in exercising their legal capacity; Organic Law 8/2021, of 4 June, on the comprehensive protection of children and adolescents against violence). The objective of Organic Law 8/2021is to protect children and adolescents in their physical, mental, psychological and moral integrity against any form of violence, in order to ensure the free development of their personality. The law is a consequence of decisions of the United Nations, the European Union and the Council of Europe. Legal experts have welcomed these reforms, although it has been noted that additional autonomy and resources would be needed for the implementation of the reforms.
During the first nationwide state of emergency, the excessive and disproportionate use of force by law enforcement officials to ensure compliance with lockdown rules was reported. But there also was a 60% increase in women calling the support helplines to report gender-based violence as compared to the same period the previous year. Online consultations with women seeking safety during the lockdown increased by 586%.
The Constitutional Court has the function of protecting civil rights. In 2021, it declared the two state of emergency decrees (approved in 2020 to deal with the COVID-19 pandemic) to be unconstitutional, because they did not provide sufficient guarantees for the protection of civil rights.
Citations:
UN Human Rights Council (2020), Universal Periodic Review on Spain (EUR 41/2732/2020)
To what extent does the state concede and protect political liberties?
10
9
9
All state institutions concede and effectively protect political liberties.
8
7
6
7
6
All state institutions for the most part concede and protect political liberties. There are only few infringements.
5
4
3
4
3
State institutions concede political liberties but infringements occur regularly in practice.
2
1
1
Political liberties are unsatisfactory codified and frequently violated.
According to the most widely quoted comparative indices measuring the state of democracy, freedoms and the rule of law, Spain is considered to be a free full democracy (in the top 20). The country’s institutions are generally effective at protecting political liberties, subject to special protection against government (or even private) interference, though there are occasionally incidents of infringement. According to Freedom House (2022), the rule of law prevails, and civil liberties are generally respected.
During the period under review, several protests took place against the 2015 law on public safety and an amendment to the Code of Criminal Procedure’s Article 578, which affected freedom of speech by increasing the maximum penalty for “glorifying” terrorism or “humiliating” its victims to three years in prison. Although the coalition government also announced that it intends to revise the law in order to diminish penalties for crimes such as insulting the king, inciting terrorism and offending religious sentiments, the parliamentary debate still continued during the period under review.
Citations:
Freedom House (2022): Spain,
https://freedomhouse.org/country/spain/freedom-world/2022
During the period under review, several protests took place against the 2015 law on public safety and an amendment to the Code of Criminal Procedure’s Article 578, which affected freedom of speech by increasing the maximum penalty for “glorifying” terrorism or “humiliating” its victims to three years in prison. Although the coalition government also announced that it intends to revise the law in order to diminish penalties for crimes such as insulting the king, inciting terrorism and offending religious sentiments, the parliamentary debate still continued during the period under review.
Citations:
Freedom House (2022): Spain,
https://freedomhouse.org/country/spain/freedom-world/2022
How effectively does the state protect against different forms of discrimination?
10
9
9
State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
8
7
6
7
6
State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
5
4
3
4
3
State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
2
1
1
The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Any discrimination based on birth, race, sex, religion, opinion or any other personal or social condition or circumstance is forbidden in Spain. Any individual, whether a national citizen or not, can invoke a special expedited procedure in the courts asking the state to protect him or her against any form of discrimination. Cases of explicit discrimination are extremely rare, but this does not mean that occasional public discrimination and, above all, indirect social discrimination are never observed. For example, there remain significant wage differences between men and women, and few women sit on the boards of companies. The recent approval of equal parental leave time and measures seeking to guarantee equal pay for women and men may prove positive developments.
Some minority groups – including Roma – remain economically marginalized and are allegedly subject to police profiling. Moreover, the rise of populist movements, including Vox, led to stronger rhetoric on immigration and minority groups.
Spain is considered to be a pioneer in fighting discrimination against homosexuals and women. The main national agency tasked with monitoring equality and anti-discrimination efforts is the Institute for Women and Equal Opportunities. However, in 2018, ECRI called on Spain to “urgently” create an independent equality body specifically designed to tackle racism. At the beginning of 2021, the ECRI indicated that its recommendation had not been implemented. Spanish authorities informed ECRI that work is underway to improve the quality of a draft Act on Equality of Treatment and Against all Form of Discrimination. Moreover, some autonomous communities have increased the educational support provided to Roma people.
Citations:
ECRI (2021), Fifth report on Spain – interim follow up conclusions.
https://rm.coe.int/interim-follow-up-conclusions-on-spain-5th-monitoring-cycle/1680a17dc5
Some minority groups – including Roma – remain economically marginalized and are allegedly subject to police profiling. Moreover, the rise of populist movements, including Vox, led to stronger rhetoric on immigration and minority groups.
Spain is considered to be a pioneer in fighting discrimination against homosexuals and women. The main national agency tasked with monitoring equality and anti-discrimination efforts is the Institute for Women and Equal Opportunities. However, in 2018, ECRI called on Spain to “urgently” create an independent equality body specifically designed to tackle racism. At the beginning of 2021, the ECRI indicated that its recommendation had not been implemented. Spanish authorities informed ECRI that work is underway to improve the quality of a draft Act on Equality of Treatment and Against all Form of Discrimination. Moreover, some autonomous communities have increased the educational support provided to Roma people.
Citations:
ECRI (2021), Fifth report on Spain – interim follow up conclusions.
https://rm.coe.int/interim-follow-up-conclusions-on-spain-5th-monitoring-cycle/1680a17dc5
Graph View
To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?
10
9
9
Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
8
7
6
7
6
Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
5
4
3
4
3
Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
2
1
1
Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
The general administrative procedure in Spain is consistent and uniform, assuring regularity in the functioning of all administrative levels. In 2016, a new piece of legislation (Ley 39/2015) came into force aiming to modernize the country’s basic administrative law and improve legal certainty. In theory, this policy holds across the Spanish public sector, but it is also true that citizens and the business sector sometimes complain about unpredictable decisions.
The events in Catalonia during the 2012 – 2017 period offered a high-profile example of an arbitrary decision by a regional decision-maker that lacked a legal basis and ignored the constitution. However, this was an exceptional and unusual development that the central institutions managed with response based on the rule of law. Even if this approach can be criticized as legalistic and lacking in political vision, it was explicitly designed with the aim of underlining that public authorities should act according to legal regulations.
In July 2021, the Constitutional Court declared the first state of alarm to have been unconstitutional, and concluded that the government should have resorted to a state of emergency – which requires prior parliamentary approval – to limit fundamental rights for the nationwide lockdown. In October 2021, the Constitutional Court also declared that the second state of alarm was unconstitutional. All fines had to be refunded, but these rulings also led to a broad debate about the legal certainty of the government’s actions.
Citations:
Ombudsman of Spain (2021): Impact of 2020 rule of law reporting, available at https://ennhri.org/rule-of-law-report-2021/spain/
The events in Catalonia during the 2012 – 2017 period offered a high-profile example of an arbitrary decision by a regional decision-maker that lacked a legal basis and ignored the constitution. However, this was an exceptional and unusual development that the central institutions managed with response based on the rule of law. Even if this approach can be criticized as legalistic and lacking in political vision, it was explicitly designed with the aim of underlining that public authorities should act according to legal regulations.
In July 2021, the Constitutional Court declared the first state of alarm to have been unconstitutional, and concluded that the government should have resorted to a state of emergency – which requires prior parliamentary approval – to limit fundamental rights for the nationwide lockdown. In October 2021, the Constitutional Court also declared that the second state of alarm was unconstitutional. All fines had to be refunded, but these rulings also led to a broad debate about the legal certainty of the government’s actions.
Citations:
Ombudsman of Spain (2021): Impact of 2020 rule of law reporting, available at https://ennhri.org/rule-of-law-report-2021/spain/
To what extent do independent courts control whether government and administration act in conformity with the law?
10
9
9
Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
8
7
6
7
6
Independent courts usually manage to control whether the government and administration act in conformity with the law.
5
4
3
4
3
Courts are independent, but often fail to ensure legal compliance.
2
1
1
Courts are biased for or against the incumbent government and lack effective control.
The Spanish judicial system is independent and has the capacity to control whether the government and administration act according to the law. Specialized courts can review actions taken and norms adopted by the executive, effectively ensuring legal compliance. The behavior of the judiciary with regard to the Catalan crisis and a number of decisions related to corruption scandals demonstrated that courts can indeed act as effective monitors of activities undertaken by public authorities.
During the first nationwide state of alarm, citizens had access to legal recourse, in the sense that they could challenge violations of their fundamental rights and urgent cases could be heard in court. Spanish courts have been quick to react to appeals against measures adopted by the executive, and courts upheld appeals against restrictions placed on fundamental rights, for example by allowing demonstrations to take place. Regional high courts across the country overturned restrictions implemented by autonomous communities and local administrations on the basis that only the central government could restrict fundamental rights (e.g., freedom of movement) under the constitutional authority of a state of alarm.
The politically fragmented parliament remained unsuccessful in mustering the three-fifths majority necessary to appoint new members to the General Council of the Judiciary – an autonomous body composed of judges and other jurists, which aims to guarantee the independence of the judges. The incumbent council continued to operate on an interim basis at the end of 2021, raising concerns about the legitimacy of its judicial appointments and other decisions.
The 2021 EU Justice Scoreboard indicated that most respondents found the judicial system to be too slow. Moreover, some judges appear to have difficulties in reconciling their own ideological biases with a condition of effective independence; this may hinder the judiciary’s mandate to serve as a legal and politically neutral check on government actions. The 2021 EU Justice Scoreboard also shows that Spain’s public increasingly perceives courts and judges as lacking independence. The main reasons given by members of the general public for this relate to perceived interference or pressure by the government and politicians.
However, there were also some improvements in this area.
In March 2021, a new statute for lawyers was approved that protects their independence. The statute provides that chambers of lawyers shall be democratic, autonomous and transparent. Under the new statute, chambers are obliged to publicize their services online. It also sets provisions relating to the right to training and the promotion of gender equality in the legal profession.
In March 2021 the parliament adopted a new law which reinforces provisions on data protection, setting the frequency of payment in certain autonomous communities that have not taken over powers in the management of the justice system, and establishing the creation of the National Council for Free Legal Aid.
The government has also continued in its efforts to increase the efficiency of the justice system. In October 2021, the government approved the preliminary Draft Law on Digital Efficiency of the Public Justice Service, which will enhance legal provisions relating to data management, and allow for interoperability of applications within the justice system.
Finally, the judges had an active role in 2020 – 2021 in reviewing the measures adopted by national and regional governments to manage the pandemic.
Citations:
EC(2021), “EU Justice Scoreboard”
https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2021.pdf
EC (2021) The rule of law situation in the European Union, COM/2021/700 final - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0700
During the first nationwide state of alarm, citizens had access to legal recourse, in the sense that they could challenge violations of their fundamental rights and urgent cases could be heard in court. Spanish courts have been quick to react to appeals against measures adopted by the executive, and courts upheld appeals against restrictions placed on fundamental rights, for example by allowing demonstrations to take place. Regional high courts across the country overturned restrictions implemented by autonomous communities and local administrations on the basis that only the central government could restrict fundamental rights (e.g., freedom of movement) under the constitutional authority of a state of alarm.
The politically fragmented parliament remained unsuccessful in mustering the three-fifths majority necessary to appoint new members to the General Council of the Judiciary – an autonomous body composed of judges and other jurists, which aims to guarantee the independence of the judges. The incumbent council continued to operate on an interim basis at the end of 2021, raising concerns about the legitimacy of its judicial appointments and other decisions.
The 2021 EU Justice Scoreboard indicated that most respondents found the judicial system to be too slow. Moreover, some judges appear to have difficulties in reconciling their own ideological biases with a condition of effective independence; this may hinder the judiciary’s mandate to serve as a legal and politically neutral check on government actions. The 2021 EU Justice Scoreboard also shows that Spain’s public increasingly perceives courts and judges as lacking independence. The main reasons given by members of the general public for this relate to perceived interference or pressure by the government and politicians.
However, there were also some improvements in this area.
In March 2021, a new statute for lawyers was approved that protects their independence. The statute provides that chambers of lawyers shall be democratic, autonomous and transparent. Under the new statute, chambers are obliged to publicize their services online. It also sets provisions relating to the right to training and the promotion of gender equality in the legal profession.
In March 2021 the parliament adopted a new law which reinforces provisions on data protection, setting the frequency of payment in certain autonomous communities that have not taken over powers in the management of the justice system, and establishing the creation of the National Council for Free Legal Aid.
The government has also continued in its efforts to increase the efficiency of the justice system. In October 2021, the government approved the preliminary Draft Law on Digital Efficiency of the Public Justice Service, which will enhance legal provisions relating to data management, and allow for interoperability of applications within the justice system.
Finally, the judges had an active role in 2020 – 2021 in reviewing the measures adopted by national and regional governments to manage the pandemic.
Citations:
EC(2021), “EU Justice Scoreboard”
https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2021.pdf
EC (2021) The rule of law situation in the European Union, COM/2021/700 final - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0700
To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
10
9
9
Justices are appointed in a cooperative appointment process with special majority requirements.
8
7
6
7
6
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
5
4
3
4
3
Justices are exclusively appointed by different bodies without special majority requirements.
2
1
1
All judges are appointed exclusively by a single body irrespective of other institutions.
Under current regulations, appointments to both the Constitutional Court (the organ of last resort regarding the protection of fundamental rights and conflicts regarding institutional design) and the Supreme Court (the highest court in Spain for all legal issues except for constitutional matters) require special majorities in the parliament. These majorities can be reached only through difficult and politicized extra-parliamentary agreements between the major parties, which generally lack a cooperative attitude toward one another. During the period under review, the General Council of the Judiciary, which is an autonomous body composed of judges and other jurists that aims to guarantee the independence of the judges, could not be renewed due to the political deadlock. The incumbent council continued to operate on an interim basis at the end of 2021, raising concerns about the legitimacy of its judicial appointments and other decisions.
In October 2021, Spain’s ruling Socialist party reached a deal with the main opposition People’s Party to renew the line-up of the Constitutional Court, paving the way to ending a years-long stalemate. The approval of the judges for the 12-strong top court, a third of whom had reached the end of their nine-year term over the past two years, requires a three-fifths majority in parliament. However, the examination of some of the candidates in the Congress of Deputies was accompanied by controversy, raising concerns about their ideological affiliation with political parties.
At the political level, a parliamentary debate focused on a strategy aimed at enhancing the judiciary’s impartiality, talent and efficiency. A code of conduct has been adopted, and a consultative Commission of Judicial Ethics has been established.
Citations:
Euronews, Brussels warns Spain over judicial appointments standoff, 22/09/2021 – https://www.euronews.com/2021/09/20/brussels-warns-spain-over-judicial-appointments-standoff
EC (2021) The rule of law situation in the European Union, COM/2021/700 final - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0700
In October 2021, Spain’s ruling Socialist party reached a deal with the main opposition People’s Party to renew the line-up of the Constitutional Court, paving the way to ending a years-long stalemate. The approval of the judges for the 12-strong top court, a third of whom had reached the end of their nine-year term over the past two years, requires a three-fifths majority in parliament. However, the examination of some of the candidates in the Congress of Deputies was accompanied by controversy, raising concerns about their ideological affiliation with political parties.
At the political level, a parliamentary debate focused on a strategy aimed at enhancing the judiciary’s impartiality, talent and efficiency. A code of conduct has been adopted, and a consultative Commission of Judicial Ethics has been established.
Citations:
Euronews, Brussels warns Spain over judicial appointments standoff, 22/09/2021 – https://www.euronews.com/2021/09/20/brussels-warns-spain-over-judicial-appointments-standoff
EC (2021) The rule of law situation in the European Union, COM/2021/700 final - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0700
To what extent are public officeholders prevented from abusing their position for private interests?
10
9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
5
4
3
4
3
Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption levels have declined in Spain since the real-estate bubble burst in the wake of the economic crisis, and also as a consequence of the criminal, political and social prosecution of corrupt officials. Spanish courts have a solid record of investigating and prosecuting corruption cases, but the system is often overburdened, and cases move slowly. In 2020, Spain’s score in Transparency International’s CPI fell slightly, although Spain continues to rank comparatively highly, at 32nd place out of 180 countries (2019: 30 out of 180 countries).
The second GRECO compliance report for the country states that the organization considers four of the 11 recommendations made to Spain in 2013 to be fulfilled. Two others were considered to have already been fulfilled in 2019.
In October 2020 a Code of Conduct for Parliament (i.e., for both chambers, the Congress and Senate) was adopted. The code contains provisions on ethical principles, transparency and the prevention of conflicts of interest, and provides for sanctions if breaches occur. A new Office on Conflicts of Interest was created in the Congress of Deputies. There is also a legislative proposal underway that would regulate lobbying, including through the establishment of a lobbying register.
In 2021, the regulation of money laundering offenses was modified by Organic Law 6/2021 of 28 April. The reform aligned Spanish money laundering regulations with EU guidelines.
Citations:
GRECO (2021), Fourth Evaluation Round – Second Compliance Report, 30 September 2021 https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680a3fd50
Code of Conduct for Parliament https://www.congreso.es/public_oficiales/L14/CORT/BOCG/A/BOCG-14-CG-A-70.PDF
The second GRECO compliance report for the country states that the organization considers four of the 11 recommendations made to Spain in 2013 to be fulfilled. Two others were considered to have already been fulfilled in 2019.
In October 2020 a Code of Conduct for Parliament (i.e., for both chambers, the Congress and Senate) was adopted. The code contains provisions on ethical principles, transparency and the prevention of conflicts of interest, and provides for sanctions if breaches occur. A new Office on Conflicts of Interest was created in the Congress of Deputies. There is also a legislative proposal underway that would regulate lobbying, including through the establishment of a lobbying register.
In 2021, the regulation of money laundering offenses was modified by Organic Law 6/2021 of 28 April. The reform aligned Spanish money laundering regulations with EU guidelines.
Citations:
GRECO (2021), Fourth Evaluation Round – Second Compliance Report, 30 September 2021 https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680a3fd50
Code of Conduct for Parliament https://www.congreso.es/public_oficiales/L14/CORT/BOCG/A/BOCG-14-CG-A-70.PDF