Inés Herreros and private prosecution in Spain: shield or sanity?

Herreros criticises the all-powerful nature of private prosecutions: who will report corruption?

CGPJ member Inés Herreros has hit a nerve: can a private prosecution act as an unaccountable prosecutor, intimidating citizens with endless lawsuits? The question divides commentators. On one side, some see her words as an attempt to strip ordinary citizens of the only tool they have to take on corrupt officials when the Public Prosecutor's Office looks the other way – which is not rare, given its dependence on the Executive. On the other, critics point to the abuse by large corporations that, with unlimited resources, use private prosecution to crush individual defendants, turning incivil law into a tool of economic coercion.

The double-edged sword of private prosecution

This legal figure was created to allow any citizen to exercise incivil action, but practice has revealed two faces. In the hands of the powerful, it becomes a weapon of attrition: proceedings that drag on for years, with legal and psychological costs that would make anyone give up. In the hands of citizens, it is the last resort against political corruption. The paradox is that those who defend private prosecution most fiercely are often the same people who suffer it when a corporation uses it against them. The debate boils down to a classic: people like the rules as long as they benefit; when they turn against them, they call for reform.

The shadow of 'lawfare' and the statute of limitations

Another emerging issue is distrust of the Public Prosecutor's Office, perceived as politically docile. If the prosecution service does not act, private prosecution remains. But what if the real problem is that prosecutors should be independent and are not? There lies the crux: instead of limiting citizen participation, some advocate reforming the prosecutors' statute and, along the way, strengthening corruption offences with aggravated penalties and no statute of limitations. Something, incidentally, that no government with pending court cases seems willing to push through.

The ball is still in the air. Meanwhile, Herreros's remarks will fuel the debate over whether the remedy (controlling private prosecution) may not be worse than the disease – leaving those who only have the law on their side defenceless.