Rechtsbeugung: Spain’s punitive imagination
In Germany, the offence of Rechtsbeugung (‘perversion of the course of justice’ is the nearest English translation) is the crime committed by judges when they wilfully misapply the law. It has also been used to prosecute strict, but immoral, applications of the law. Although it is true that Spanish law is different, remember that Article 155 of the Spanish Constitution is a direct copy of Article 37 of Germany’s Basic Law. Germany has never used the original. For the Spanish government it is the salvation of Spain.
The Punitive Imagination: Law, Justice, and Responsibility (edited by Austin Sarat)
Yesterday, the Supreme Court extended the period of instruction for sedition and rebellion charges brought against pro-independence politicians and civil leaders at the behest of state attorneys and far-right political party, Vox. The decision allows the pre-trial imprisonment of Junqueras, Sànchez, Forn and Cuixart to be extended. Supreme Court judge, Pablo Llarena, has declared the case for sedition and rebellion against independentism ‘complex’. This means that the period of instruction, which was scheduled to take six months, could be extended to eighteen, meaning no trial for the four for another year. Among the arguments that the judge has laid out to justify the extension are the number of documents to be analyzed, the large number of procedural incidents related to precautionary measures and requests for investigation proceedings.
‘Complex’? Of course it’s ‘complex’! It’s made up! There is no evidence. The law is clear. There are pre-requisites not fulfilled and there’s no getting round it. Llarena has failed to give legal reasons for any of his decisions in any of his rulings. His reasoning is entirely political. See below an example, and there are many. A work of pure imagination.
It seems like every day there is a new headline, and yesterday’s is long forgotten. About ten days ago, there was a headline that I have not been able to get out of my head.
The reasons given for the pre-trial imprisonment of Junqueras, Forn, Sànchez and Cuixart and for rejecting their appeals are highly irregular and clearly intended to get, and keep, them out of the way. If the six exiled former members of the Catalan government that was usurped by the Moncloa and article 155 (five of whom are in Brussels and one in Switzerland) return to Spain, they will be arrested and imprisoned on the same charges. The Spanish government, speaking on behalf of the judiciary, have made that clear. The threat of imprisonment is enough to keep them out of the picture too.
To listen to Rajoy on Catalan TV discussing the possible candidates for the presidency of Catalonia is like listening to Florentino Pérez announcing Barça’s line-up for El Clásico. Obscene. As is the Partido Popular’s trumpeting of their success in ‘liquidating’ the previous president and government:
Gracias a la tenacidad y firmeza del gobierno de @marianorajoy con la aplicación del artículo 155 de la Constitución, el ex president fugado de la justicia renuncia a su candidatura para presidir el Govern de Cataluña. https://t.co/ogpuYx2ocm pic.twitter.com/UHu9m4UFeZ
— Partido Popular 🇪🇸 (@PPopular) March 1, 2018
The triumphant tweet is reminiscent of Soraya’s tipsy pre-election press conference:
Llarena’s rulings are not based on law, and everyone knows it. They’re hoping 155 will grind everyone into submission and, with the true government out of the way, they’re thinking up ways to reject the new government chosen to represent Catalonia yesterday. Ciudadanos have already filed a writ of amparo against the president of the Catalan parliament, Roger Torrent, for refusing to allow a motion of reconsideration tabled by the three Spanish unionist parties in the chamber. Ciudadanos regaled us with yet another display of prosaic political thuggery. Furthermore, the Spanish government has already stated that it will not allow any kind of ‘parallel structure’ of government outside Spain, although the precise legal nature of such a challenge is unclear.
President Puigdemont having stepped aside yesterday, the new government will be led by Jordi Sànchez, one of those in prison awaiting trial. Llarena has already stated he is disinclined to release him to allow his investiture. Some believe that this would be an example of prevarication, an abuse of authority, and therefore illegal. “To prevent the exercise of the right of active or passive suffrage without a final judicial ruling is the most serious crime of prevarication that can be committed in democracy. It is a direct crime against democracy,” said professor of Constitutional Law at the University of Seville, Javier Pérez Royo.
It is a pantomime. How much do you want to bet that, like Zoido, it won’t matter how long Llarena is given to prepare his case, he still won’t be able to come up with a credible argument? At best, for him, he is guilty of exceeding his powers, but in a country with an independent judiciary, in eighteen months’ time he would already have been suspended from office having been found guilty of Rechtsbeugung, perverting the course of justice, abuse of authority, of prevarication.
But Spain does not have an independent judiciary. In Spain, there is no separation of powers. Although it was relatively easy to get rid of Baltasar Garzón, at the behest of far-right ‘union’ Manos Limpias, there will be few judges prepared to go after Llarena and company. Garzón was on the wrong side. Llarena is with the fascists.
Some things never change; they just mutate.