What is aforamiento? Spain's special court for politicians explained, and how many aforados there are

Aforamiento is one of those Spanish words that has no neat translation, because the thing it names barely exists elsewhere. It means that certain office-holders, if they are accused of a crime, are investigated and tried by a specific higher court instead of the ordinary courts that would hear anyone else's case. Spaniards call those people aforados. Ending aforamiento is one of the clean-up measures proposed by Democracia 21 in its launch speech, and it comes up in almost every Spanish debate about corruption, so it is worth knowing exactly what it is.

Who is aforado and why

The core is in the Constitution. Article 71.3 says that in cases against deputies and senators, the competent court is the Criminal Chamber of the Supreme Court. Article 102.1 says the criminal liability of the Prime Minister and the other members of the government is enforceable before the same chamber. The Organic Law of the Judiciary extends the list to the presidents of Congress and the Senate, members of the judicial council, Constitutional Court and Supreme Court judges, the Attorney General, members of the Court of Audit and the Council of State, the Ombudsman and the European Prosecutor, plus whatever the regional statutes of autonomy add. Judges and prosecutors accused of offences committed in office are tried by the regional High Court of Justice. Since 2014, the King who abdicated and his consort also have their cases heard by the Supreme Court.

Aforamiento is often confused with two other protections. Inviolability, in article 71.1, means MPs can't be prosecuted for opinions expressed in the exercise of their functions. Immunity, in article 71.2, means they can't be charged or prosecuted without the prior permission of their chamber, a request known as a suplicatorio. Aforamiento does neither of those things. It only decides which court hears the case.

The classic justification is that a high court protects the function. Judges at the top are supposed to be more experienced and less exposed to local pressure, and a single court can filter out politically motivated complaints against those who govern. The classic objection is just as simple: it creates a special track for the political class, and it puts politicians' cases before a court whose senior judges are appointed by a council that politicians elect, which is why the debate about aforamiento is tangled up with the debate about the judicial council.

How many aforados are there?

Nobody knows exactly, because there is no official list, and the figures in circulation depend on who is counted. In August 2014 the then justice minister Alberto Ruiz-Gallardón proposed cutting the number from 17,621 aforados to 22, according to a study by the constitutional law professor María Luz Martínez Alarcón. His reason was that citizens saw the institution as a privilege, even if he did not. The Objective reported in 2018 that the figure of about 17,600 political office-holders, judges and prosecutors came from data the head of the judiciary, Carlos Lesmes, gave Congress in 2017, and that some experts put the purely political aforados at around 2,000.

The headline figure of about 250,000 adds some 232,000 state and regional police officers. That count deserves caution. The 1986 law on the security forces sends offences committed by officers in the course of duty to the ordinary courts, and the paragraph that gave them a special forum is marked in the official consolidated text as declared unconstitutional and void by the Constitutional Court in 1990.

How rare it is in Europe

Very rare, for MPs. Martínez Alarcón's comparative study concludes that a special forum for members of parliament is a prerogative European constitutional law does not usually recognise, and that Spain is an exception in the European context. The constitutions of Germany, France, Italy, Portugal, Austria, Belgium and the Nordic countries provide none; only the Netherlands and Greece have narrow versions. Special forums for heads of state and ministers are more common. France, for example, has a dedicated court, the Cour de justice de la République, for ministers' acts in office.

Attempts to end it

Spain has been here before. In September 2018 Pedro Sánchez announced a constitutional reform to end aforamientos, and in January 2019 the government sent Congress a bill, drafted with the Council of State, that would have limited the Supreme Court forum for MPs and ministers to crimes committed in the exercise of their office. It has been parked ever since. The PP said in 2018 that its programme proposed limiting all aforamientos, with the Crown excluded. The regions moved faster: Canarias was first, with its 2018 statute, followed by Cantabria and Murcia in 2021, Aragón at the end of 2022 and Baleares, while La Rioja's reform has been slower.

Changing articles 71.3 and 102.1 requires the ordinary reform procedure of article 167: three-fifths of each chamber, with a referendum only if a tenth of the members of either chamber asks for one. Spain has done this twice, in 2011 for the budget-stability rule and in January 2024 for the disability article, each time in a matter of weeks. The King's inviolability is a different matter, because changes to the title on the Crown require the much heavier procedure of article 168.

Where the radical centre stands

The left's case here is equality before the law, and it is strong: those who make the laws should answer to the same courts as everyone else. The right's concern is also real: government needs protection from complaints filed to harass it, and the law has to stay predictable for those who hold office. The idea that belongs to neither camp is Karl Popper's, whose Open Society we explain today: every institution is a hypothesis, and this one has failed its test, because it convinced most citizens that the powerful have their own rules. Even Gallardón admitted as much in 2014.

So we would end aforamiento for deputies and senators completely, follow the European pattern of a narrow Supreme Court forum only for ministers' acts in office, and give the ordinary courts a fast, specialised filter for complaints against any office-holder, so that harassment is weeded out quickly by a judge and not by privilege. The reform of article 167 is within reach whenever the two large parties want it. They have both said they do.