Julio Banacloche Palao
Professor in Procedural Law, UCM
According to that which is established by article 56.3 of the Spanish Constitution “The person of the King is inviolable and shall not be held accountable”. This means that a reigning King, in his role as Head of State, is not subject to the judicial branch and cannot be brought before the Courts, whatever he may do. This privilege is not exclusive to our system, it exists in all the countries around us: Heads of State are not judicially responsible for their acts, both on a national level (let us recall how all penal processes being brought against Jacques Chirac were paralysed when he was elected President of the French Republic) and on an international one (which allows known dictators to travel outwith their countries without being detained or processed).
That said, this inviolability ceases the moment that the position is abandoned. Once one abdicates or renounces the Crown (or steps down as Head of State), the inviolability is lost and the affected can then be asked to respond for their actions before a Court. It happens in this way in Spain and in the rest of the Western democracies. In relation to this case, the only doubt which can be contemplated is if, from that moment on, he can be brought before a court for acts or conducts carried out while inviolable. In Spain there is no law pertaining to this but, in my opinion, such requests should not be admitted, because all that was carried out during the period of inviolability is for ever excluded from the judgment of the Courts. Perhaps it would be convenient for this to be openly stated in the modification of the Organic Law of the Judicial Power (LOPJ, in Spanish) which is to be approved shortly, to give a legal treatment to this new situation created in Spain after the abdication of Juan Carlos I.
Contrary to the aforementioned case, with respect to the acts carried out after the loss of inviolability, it is possible to bring a former Head of State before the Courts. This raises the question of whether these cases should be brought before the ordinary courts, that is, those before which any other citizen is brought, or another of a higher hierarchy, which it is assumed will have greater experience and would therefore consider more carefully the implications that come with beginning a process against someone who has carried out a position of political responsibility (something which is often not separate from the complaint or action presented, but its main reason). When the latter happens, it is said that the law has established judicial immunity for whichever person it is.
The affected enjoy the immunity while they carry out their public office (President, Minister, Member of Parliament, Senator, Magistrate, etc.), but because of its exceptional character, the figure will be interpreted restrictively and it is lost once the office is left. Because of this it would be doubly exceptional that the Emeritus King was given immunity when he no longer has any public office whatsoever. This does not mean that it is unconstitutional to anticipate this legally (although there might be those who would argue that it infringes the equality before the law clause of Article 14 of the Spanish Constitution), just as long as the extraordinary treatment is justified; but in any case it is clear that it is an unusual situation and that it is not in line with constitutional doctrine in this area.
In other countries, what usually happens is that former senior officials (including former Heads of State) are not given immunity (which is why the judicial processes against Jacques Chirac continued after he stepped down from office). However, it appears that in Spain the idea is to fix immunity for the outgoing Monarch, and even for the former and current Queens. And not only from possible penal processes which could be opened, but also civil ones, or any other type.
As has already been highlighted, the immunity does not mean there is no judicial responsibility; merely that it would be the purview, in the Spanish case, of the Supreme Court. In order to value this legislative decision, it is necessary to turn to what will be set as the foundation of the reform, because, being something so exceptional, the reform must be adjusted and sufficiently justified. In my opinion, given that in Spain the Justice system has often been used as a tool for carrying out activities of political criticism, I feel it is reasonable that the announced immunity be granted, as it means entrusting to an authority formed by experienced Magistrates, who are not hungry for notoriety, the admission and knowledge of the matters that are being brought against the former King.
Because this measure needs to be adopted as soon as possible, I don’t find it unreasonable that a law project already being processed be used to introduce the reform, nor that this be applied retroactively. In any case, it would be convenient that, as soon as possible, a law be presented that, comprehensive and systematic, regulate all the questions relative to the Crown and to the position of Head of State.
