The document that reveals the extraordinary Spanish pressure on the Venice Commission

At the weekend the Spanish state pressed the members of the Venice Commission to try to reduce the severe criticisms that the report makes on the reformation of the Constitutional Court. VilaWeb has managed to get the five-page document that reflects the changes the the representatives of the Spanish state would like to make to the original draft. The document (you can see the original at the end of this article) reveals both the extraordinary Spanish pressure and the refusal of the Venice Commission to accept the most scandalous changes.

It is thus particularly significant that the representatives of the Spanish state in three different paragraphs should call for the elimination of any reference to the fact that the Venice Commission understands that the Constitutional Court acts on behalf of its own institutional interests, as a party and not as an arbiter. This is the case in paragraphs 41, 71 and 75 (previously numbered as 43, 73 and 77). Spain demands the withdrawal (crossed out) or amendment (underlining) of the following phrases:

41 — In order to ensure that the Court is seen as a neutral arbiter and to avoid the impression that the Court acts on behalf of its own institutional interest

71 — Attributing the overall and direct responsibility for the execution of the Constitutional Court’s decision to the Court itself should be reconsidered, in order to promote the perception that the Constitutional Court only acts as since it could lead to the perception, be it justified or not, in the public that the Court pursues its own institutional interests behind a particular decision rather than being a neutral arbiter, as a judge of the laws.

75 — In order to enhance the perception of the Constitutional Court as a neutral arbiter avoid the impression that the Court acts on behalf of its own institutional interest…

With these demands, the representatives of the Spanish state aimed to dilute the criticism by softening the language. Spain also asked for the complete elimination of paragraph 35, where the original draft criticised the lack of clarity regarding the effects of turning the Constitutional Court into the executor of its own decisions.

The resistance of the Commission to diluting the criticisms
Through analysis of the document received by VilaWeb, it is outstanding how, despite the pressures from Spain, the Venice Commission avoids eliminating the criticisms and finds the way to express them’.

Therefore, for instance, in paragraph 46 (formerly 48) the commission is forced to make a final text as a compromise, but makes it clear at the same time that ‘the Venice Commission does not doubt that the Constitutional Court would apply these provisions proportionately, but studies the amendments from an abstract viewpoint’.

Another clear case is given when the Commission in paragraph 48 mentions the opinion of the Constitutional Court itself, in the sense that the penalties are not criminal in nature; but immediately after, in paragraph 49, firmly undermines this statement by saying that according to article six of the European Covenant of Human Rights, these penalties that Spain says are not criminal in nature must be considered criminal in nature.

Moldavia, by way of example
Finally, something highly clarifying is the Spanish state’s attempt to find examples of other countries with practices comparable to those of the Constitutional Court criticised by the Venice Commission.

The report of the Venice Commission says that the Spanish case is an exception, whereas the representatives of the Spanish government insist several times on giving Moldavia as a comparable example.  As the Council of Europe contains states with different levels of democracy, this shameful comparison is that which allows the Spanish state to insist that there is no European standard.

In this way it tries to divert the criticism which, however, is finally made very clear in paragraph 71 (formerly 73). In this paragraph, the report states that ‘the responsibility for contributing to the execution of its own decisions [of the CC] is an exception [in Europe]’.