Elisa de la Nuez Sánchez-Cascado is a State Attorney on leave and a partner at the law firm GC Legal. She also serves as the Secretary General of the Hay Derecho Foundation, an organization committed to defending the rule of law, democratic quality, and the strengthening of institutions in Spain. Additionally, she is the co-editor of the blog ¿Hay Derecho?, and her participation in numerous conferences and forums positions her as an authoritative voice in the defense of democratic values.
In this dialogue, we address fundamental issues concerning the present and future of the rule of law in Spain. Topics include the separation of powers, the impact of the abusive use of decree laws, the independence of the Prosecutor’s Office, and the challenges stemming from parliamentary fragmentation and institutional gridlock. We also delve into public perceptions of the judiciary and the General Council of the Judiciary (CGPJ), the implications of the recent Amnesty Law, and the role of the European Commission in promoting democratic standards in Spain.
Through this conversation, Elisa de la Nuez provides a precise diagnosis, inviting reflection on the role of politics, civil society, and citizens in protecting the rule of law.
INTERVIEW:
(ER): How do you assess the current state of the rule of law in Spain compared to other European countries?
(EdN): The state of the rule of law in Spain has shown a progressive decline, as reflected in recent reports by the Hay Derecho Foundation (2022-2023). At the Foundation, we analyze key indicators such as the separation of powers and the diminishing role of the legislature, which help diagnose the state of the rule of law. However, this phenomenon is also evident in other European countries. Overall, the situation regarding the rule of law is worse, as evidenced by periodic European Commission reports highlighting specific problems affecting the rule of law.
In Spain, one of the greatest challenges is the separation of powers. Judicial independence, while not always genuinely compromised, is significantly affected by public perception and the political-media debate, where politicians often accuse judges. Moreover, issues related to the General Council of the Judiciary (CGPJ), particularly its composition and appointment process, severely threaten this separation. Finally, the ongoing accusations of lawfare by politicians against judges damage the perception of the judiciary, and judicial responses are often insufficient due to limitations on their freedom of expression in the exercise of their functions.
(ER): The abusive use of decree laws is becoming increasingly common, often replacing parliamentary debate. What impact does this practice have on democratic quality and the balance of powers in Spain?
(EdN): The decree law is an exceptional constitutional tool granted to the Executive, meant exclusively for situations of “extraordinary and urgent necessity.” However, data show that in Spain, it has become a common legislative method—in other words, the norm. This is an anomaly that alters the traditional legislative process, which involves multiple stages, such as public consultation and technical review, starting with a draft bill. The procedure for a decree law bears no resemblance to that of a standard legislative process.
The decree law procedure bypasses important safeguards, such as reviews by consultative bodies like the Council of State or open public consultations, which are standard for a bill. Furthermore, Parliament can only validate or reject the decree, with no other options. This practice negatively impacts democratic quality, limiting the role of the legislature as the state’s lawmaking body and reducing opportunities for citizen participation due to the decree law’s limited procedural framework. Additionally, from a technical standpoint, laws enacted through this mechanism tend to be of lower quality.
(ER): The Prosecutor’s Office, as an autonomous body responsible for promoting justice, should be one of the most important checks on power. How do you think recent appointments linking the Attorney General to the government—both the current and previous ones—affect the rule of law?
(EdN): The situation of the Prosecutor’s Office and the Attorney General is a clear example of the deterioration of the rule of law. This institution, which should be autonomous and a defender of the principle of legality, appears to have become an extension of political power, akin to another government department—particularly when a former Minister of Justice has held the position of Attorney General.
This perception undermines the credibility of the Prosecutor’s Office as an independent body, as it is seen as an instrument of the Executive. Ultimately, the mere appearance of political dependence erodes public trust and hinders the Prosecutor’s Office from fulfilling its constitutional role effectively.
(ER): The repeated delays in approving the General State Budgets (PGE) have caused economic uncertainty on multiple occasions. What are the consequences of these delays for public management and the Spanish economy? Do you think these delays stem from parliamentary fragmentation or a lack of political planning?
(EdN): There is insufficient emphasis on the fact that approving the General State Budgets within the established timeframe is a constitutional obligation, not an option. This obligation reflects whether the government has the necessary parliamentary majority to govern. When such a majority does not exist, issues such as delays or budget extensions arise.
It is important to distinguish between unavoidable situations, such as the calling of elections or a provisional caretaker government, where budget extensions are necessary, and cases where this becomes a habitual practice. Delays and failures to approve the budgets represent a democratic anomaly. In such cases, the dissolution of Parliament should be considered, as has happened in other instances.
When these anomalies become normalized, they also have economic consequences, as extended budgets are not tailored to current economic needs. Additionally, parliamentary oversight of an extended budget is far less effective than that of a recently approved one, limiting the ability to adapt to current circumstances.
(ER): How do you evaluate the development of laws that seem aimed at securing parliamentary majorities, whether for an investiture or to pass other measures?
(EdN): There is a distinction between making concessions to pass laws in the context of a lack of a parliamentary majority and legislating solely to secure the votes necessary for agreements, such as in an investiture. In some cases, making concessions when lacking a broad majority is understandable but must be done carefully.
Legislating with a focus solely on the short term or satisfying specific partners carries significant technical risks. If the main goal is to appease a coalition or a particular party, the law risks lacking coherence and jeopardizing legal certainty, as was the case with the “Solo sí es sí” Law. In such situations, political satisfaction is prioritized over the technical soundness of the law.
It is essential for laws to be technically robust and fit for their intended purpose. When legislation is drafted hastily or reactively, serious issues can arise that compromise the effectiveness and coherence of the legal framework.
(ER): Regarding the recently debated Amnesty Law, do you think it fits within our legal framework and meets the standards of the rule of law?
(EdN): It is important to differentiate between the approval of a general amnesty law, which would be more of an academic or doctrinal discussion, and the specific case of the recent Amnesty Law. In this particular case, questions arise not only about its compatibility with the rule of law but also about its alignment with the Spanish Constitution.
The law raises significant doubts because it seems to have been conceived as a political trade-off to secure votes for an investiture. Moreover, it was processed urgently, without reports from consultative bodies, public hearings, or adequate debate. It appears tailored to specific circumstances or individuals, further complicating its constitutional justification.
That said, we must remember that the Constitutional Court will have the final say on its validity, unless there is a ruling from the European Court of Justice (ECJ) through a preliminary reference.
(ER): In a recent article by the Hay Derecho Foundation, you highlighted that 87% of respondents in a Metroscopia survey for the CGPJ believe politicians try to influence and control the judiciary, damaging Spain’s image in Europe and gravely harming democracy. What measures would you propose to reverse this perception and strengthen public trust in judicial independence?
(EdN): First and foremost, politicians and the media must adopt a far more prudent stance when addressing issues related to the judiciary. When public discourse is filled with constant accusations against judges, labeling them as politically motivated, and the media amplifies these criticisms, it creates a negative perception that significantly undermines trust in the judicial system.
The situation with the CGPJ is particularly concerning due to its apparent politicization and involvement in political debates. Although few judges actively intervene in public debates, it is crucial to maintain greater restraint. Moreover, judicial associations with clear ideological positions contribute to the perception of a politicized judiciary, further damaging its image of impartiality.
Encouraging moderation in criticisms of judges is essential. While questioning specific judicial decisions is legitimate, generalizing and accusing the judiciary as a whole of political activism crosses a line that erodes public confidence.
Additionally, the CGPJ should establish clear parameters to operate with greater independence and avoid engaging in political controversies. Although achieving these changes in a polarized climate may be challenging, they are necessary and worth pursuing.
(ER): How do you evaluate the agreement between the PP and PSOE last June to renew the CGPJ? Do you think it represents a shift in the dynamics of appointing its members?
(EdN): I viewed it positively, as it ended five years of institutional deadlock. While it is not the ideal agreement, it represents an opportunity to progress toward a transition. There are signs of somewhat greater autonomy in this new council, but much remains to be seen. They now bear the responsibility of establishing a new process for appointing judges, something still pending. Therefore, we remain expectant of how this stage will unfold.
(ER): The European Commission has recommended that at least half of CGPJ members be judges chosen by their peers. What is your opinion on this proposal, and how could it be implemented in the Spanish context?
(EdN): The European Commission’s recommendation aligns with European standards, suggesting that at least half of CGPJ members be judges elected by their peers. However, this system must be carefully designed to avoid judicial associations monopolizing appointments. Ideally, every judge, regardless of affiliation, should be able to participate in the process.
This approach would require a detailed procedural framework to prevent potential abuses, but the general idea is sound. Critics of corporatist selection may have valid concerns if associations dominate the process, something we must strive to prevent.
(ER): Given the perceived deterioration of the rule of law in Spain, what concrete measures would you propose to strengthen judicial independence and ensure impartial and effective justice?
(EdN): More than normative changes, the system needs a shift in institutional culture and mindset. Political parties must respect the rules and guarantee institutional independence. Citizens and civil society also play a fundamental role by demanding transparency and accountability.
It would also be beneficial to refine specific norms, such as the Statute of the Prosecutor’s Office, to ensure greater autonomy. Ultimately, strengthening the rule of law requires a collective commitment to respect the legal framework and enhance institutional quality.
