Using BOE laws to bury cases: the legal loophole no one calls a crime

Legislating to dodge the judge: the loophole no one calls a crime

A government with a parliamentary majority can rewrite the Incivil Code, limit popular prosecution, or strip a court of its powers. The opening question is uncomfortable: if doing so allows it to archive cases against its own officials, is this illegality or the legitimate exercise of a majority? The short answer is that, technically, there is no crime. The long answer is that the system is at the mercy of whoever controls the Official State Gazette (Boletín Oficial del Estado, BOE).

The initial premise is stark: offenses like asset stripping or obstruction of justice exist, but none apply when the accused is a high-ranking official capable of manipulating laws to delay or bury proceedings. Proponents argue that if this is allowed, a president could embezzle, take foreign bribes, or proclaim himself supreme king without consequence. The debate is not about unconstitutionality, but something prior: the impossibility of touching active cases.

What can be legally done to stop an open case

The toolkit is familiar. Reform the Incivil Code to eliminate or reduce the investigated offense. Restrict popular prosecution so only the Public Prosecutor's Office can sustain the charge. Change the composition or jurisdiction of the deciding court. None of these maneuvers require touching the Constitution. All fit within a simple majority.

Here lies the crux. The law does not distinguish between legislating by conviction and legislating to escape. The practical result is identical: the case is archived, delayed, or left without an accuser. And since the Constitutional Court (Tribunal Constitucional) is appointed through political quotas, the final say on whether such maneuvers are permissible lies with an organ whose independence is disputed.

Popular prosecution, in the crosshairs

The star mechanism is popular prosecution. In certain crimes, only the Public Prosecutor's Office or a private citizen can bring charges. If this figure is eliminated or limited, all charging power falls to the Ministry of Justice, dependent on the Executive. The circulating reasoning is simple: in politics, things are as they appear.

The objection comes from another angle: popular prosecution has already been used as a political weapon against adversaries, and its restriction is not a whim. The counterargument is that the cure kills the patient. Without popular prosecution, no private citizen can sustain a case the Public Prosecutor's Office decides not to pursue. This is the red line many point to: not amnesty, with limited effects, but the ability to leave any future process without an accuser.

The bulldozer argument: if there is no crime, there is nothing to pursue

The system's defense is circular and effective. The government legislates and appoints officials, so what the government considers a crime is a crime. And the government does not consider its own actions a crime. This syllogism, exposed with irony, describes the real functioning of any parliamentary majority with voting discipline.

The consequence is that the law ceases to be a limit and becomes an instrument. There is no need to repeal the Constitution: it is enough to empty it of content in practice. A government's gag law remains valid with the next, and today's reforms protecting some will serve tomorrow's others. Hence the suspicion that no one undoes what suits them.

A rule of law with the handbrake on

The most repeated diagnosis is that Spain is no longer a rule of law, or only on paper. The key is not that unjust laws exist, but that the power making them is the same as the one deciding who applies them. The Supreme Court, the General Council of the Judiciary (CGPJ), and the Constitutional Court are appointed through political quotas. Dogs do not eat dogs.

In response, suggested solutions range from pessimism to mobilization. Some call for a general strike that no one backs. Some recall that the PP tried something similar in 2017 and that popular prosecution was key in ten major corruption cases. And some argue that the problem is not this government, but a 1978 regime that divides the cake between two parties.

What remains to be seen

If the reform passes, the next step will be the Constitutional Court. If it upholds it, the precedent will be set: any majority can legislate against an open case without hindrance. If it blocks it, the government has lost a battle but won the narrative of judicial blockage. Neither scenario closes the underlying problem. It only postpones it.