Spain’s judiciary in crisis
Today is the 43rd anniversary of the death of Spanish military dictator, Francisco Franco Bahamonde, yet the pillars of Spain’s democracy seem as fragile as ever. There have always been question marks over the legitimacy of Spain’s judiciary; hardly surprising considering that the country’s transition from full-blown dictatorship to supposedly exemplary democracy was conducted without root and branch reform, dependent on an amnesty for the criminals of the Ancien Régime – an oblivion law – and involving the restoration of the Bourbon monarchy, a perpetuation of the privileges and influence of the Catholic Church and political continuism. The events of the past year have thrown into relief the judiciary’s politicised nature and its susceptibility to the hegemonic forces of the State.
The Spanish judiciary’s lethargy in tackling the endemic corruption during the period leading up to the 2008 crash and its aftermath is in stark contrast to its expeditious reaction to political dissent and ideological divergence. Nowhere has this been more marked than in its mobilisation to halt the pro-independence movement in Catalonia. As the judiciary trudges, leaden-footed, through the swamp of corruption with a political flavour, over 1,600 according to a General Council of the Judiciary (Consell General del Poder Judicial or CGPJ) report in 2013, waves of charges have been issued by the Supreme, High and Regional Courts using Spain’s terrorism, lèse-majesté, rebellion, sedition, obstruction, embezzlement, hate crime and public security (or ‘gag’) laws to demobilise secessionists and silence dissenters and critics.
Waves of charges have been issued by Spanish courts to demobilise secessionists and silence dissenters and critics
While the Council of Europe’s Group of States against Corruption – GRECO – report, published at the beginning of 2018, concedes “the high quality of the judiciary and the prosecutorial service in Spain”, it also sent a clear message that the “systems of appointment of its governing bodies and certain higher rank officials” and the statute of the prosecution service aimed at strengthening autonomy of prosecution require reform. It also concluded that the Commission of Judicial Ethics is non-functioning, a code of conduct for the profession necessary, but non-existent, and a new disciplinary framework required.GrecoRC4(2017)18-Final-eng-Spain-Interim-PUBLIC.docx
The renewal process of the CGPJ undertaken in recent weeks reveals that the Spanish State has taken none of GRECO’s recommendations into account. The process, unique in Europe, remains as political as ever. It is not only clear evidence of a lack of separation of powers in Spain, it is also as deserving of Article 7 of the EU’s Lisbon Treaty as anything seen in Hungary or Poland. Writing in eldiario.es, judge and jurist, Joaquim Bosch, former spokesperson for Judges for Democracy (Juezas y jueces para la Democracia – JpD) argues that the problem is systemic.
The initial designation of the new conservative head of the CGPJ and the Supreme Court, Carlos Marchena, was made not by the twenty members of the Council, as it should be, but by the minority Socialist government (Partido Socialista Obrero Español – PSOE) and the Popular Party (Partido Popular – PP). The naming of the Council members by the same two parties has followed with eleven and nine picks respectively. One progressive proposal from PSOE’s partners in government, Podemos, Victoria Rosell, was vetoed by Marchena himself. The bad relationship between the two Canarian judges stems from legal disputes between Rosell and Marchena’s friend, disgraced former PP Industry Minister José Manuel Soria, who was forced to resign in 2016 due to his involvement with offshore companies revealed in the Panama Papers. Accusations made by Soria had a negative effect on Rosell’s political career and Marchena’s referral of Rosell’s case against Soria back to the Canarian High Court (Tribunal Superior de Justicia – TSJ – de Canarias) resulted in its being dropped.
Moreover, the politically motivated appointments of the CGPJ have a knock-on effect. Once it has been formed, these political appointees will handpick the Supreme Court judges, the presidents of the Regional Courts and the Provincial High Courts, and the temporary replacements for judges investigating major corruption cases in the National High Court. If anyone were still in any doubt as to the political nature of the selection process, Ignacio Cosidó, the PP spokesperson in Spain’s Senate – rather injudiciously shared a message in the Whatsapp group containing the party’s 146 members in the upper chamber, reassuring them that the party’s influence would not be negatively affected by the new appointments. He expressed delight that the party would be “controlling the second chamber from behind and chairing chamber 61”. The former is the only chamber that has the power to try members of parliament, the Senate and government ministers, and the latter is responsible for the illegalisation of political parties, among other responsibilities. The Senator claims he has been “misinterpreted”, that his messages do not reveal the political agreement behind Marchena’s selection and has not resigned despite calls from other parties for him to do so.
Resignation is a last resort for Spanish politicians. It has, however, led to Manuel Marchena’s shock refusal to head the CGPJ and the Supreme Court this morning in an attempt to preserve the severely damaged image of the Spanish judiciary. The PP, whose careless bragging about their level of control of the judiciary, in particular the chambers that would be dealing with cases against Catalan pro-independence politicians and parties, have now broken their agreement with PSOE over the make-up of the new CGPJ until the Minister of Justice, Dolores Delgado, resigns. Nevertheless, Marchena is now free to preside over the second chamber of the Supreme Court, which will try the case against “the Catalan process”.
Such loose, but enlightening talk is common from PP politicians. Who could forget Soraya Sáenz de Santamaría’s post-lunch electioneering last December when she asked the following question: “Who has achieved that currently Esquerra Republicana de Catalunya, Junts per Catalunya and the rest of independentists have no leaders because they have been decapitated? Mariano Rajoy and the Partido Popular!” Also memorable was ex-Justice Minister Rafael Catalá Polo’s total indifference to Spain’s supposed separation of powers in his four years in the Ministry of Justice during which he repeatedly exposed his government’s interference in judicial affairs. As recently as last week, the Socialist Party of Catalonia (Partit Socialista de Catalunya – PSC) – the Spanish government’s Catalan branch – made its second call for pro-independence politicians to renounce the unilateral path in order to facilitate the release of the Catalan political prisoners, yet more confirmation that there is no separation of powers in Spain.
In September, the Spanish judiciary’s desperate need of a code of conduct and an effective disciplinary framework was evident when a thread of messages from the official channel of the Official Council of the Judiciary – the third most important independent power of the State and which directs the courts and the Spanish judiciary – revealed judges referring to the independence process as a “coup d’état”, its leaders as “Nazis”, a “virus”, “germs”, “sons of bitches” or “rapists, and Catalan independentists as “idiots”, “criminals” and “violent extremists” to whom the “penal code must be applied”. No disciplinary action was taken as the opinions were expressed privately, albeit in an official channel. The lack of impartiality, however, is clear.
Also in September, recordings came to light in which Spanish Justice Minister, Dolores Delgado, discussed with former National Police Commissioner, José Manuel Villarejo (currently on remand in Madrid on charges of money laundering and belonging to a criminal organisation) a trip to Cartagena de Indias in Colombia coordinated by the CGPJ. During the conversation the minister revealed that public prosecutors and judges had had sex with underage girls. No investigation has been undertaken to identify the officials involved, no disciplinary action has been taken and the minister refused to resign over the revelations.
One of the most shocking of recent judicial decisions has been the Supreme Court’s climbdown over mortgage tax legislation. Having decided that the banks would assume the costs of the stamp duty payable when taking out a mortgage, within days, and under pressure from the banks, the Supreme Court took the unprecedented step of reversing its decision. The scandal sparked demonstrations across the country and, in an act of now typical populism, Prime Minister Pedro Sánchez promised to overturn the court’s final word by decree-law.
Neither the government nor the Spanish public have been quite so vocal regarding the Supreme’s most aberrant of rulings in the past year: the decision to go ahead with the prosecution of pro-independence politicians, civil leaders and officials in judge Pablo Llarena’s case against “the process”. Pedro Sánchez continues to use the supposed separation of powers between the executive, legislative and judicial branches of government as an excuse not to intervene. Rather revealingly, however, he has expressed his intention to review the rebellion law so that it it could safely be applied to the defendants in the case, which would suggest that even he feels that the law is being misapplied.
As if Llarena’s narrative in the prosecution of nine Catalan political and civil leaders on rebellion charges for organising the 1 October referendum in Catalonia – a “violent uprising” without any visible violence or promotion thereof on the part of the accused – were not enough to suggest that the case has always had its origins in the executive and administrative branches of government and beyond, Llarena himself has been accused of revealing his own lack of impartiality in the case through his first person expressions of opinion in his rulings and privately disregarding the all-important presumption of innocence.
There are also a raft of procedural irregularities that should mean the case against “the process” never reaches trial. Firstly, Llarena was handpicked for the second chamber of the Supreme Court and, in order to achieve this, normal procedures were ignored and the Law of Judicial Power breached. An appeal against the appointment presented by JxD was rejected without due consideration. On top of this, it has now come to light that there have been serious breaches of the rules concerning partiality and autonomy of prosecution which GRECO were so insistent upon. Llarena failed to follow correct committal procedure when the investigating judge decides whether the proceedings will be preliminary or summary. In fact, he skipped this essential step completely. This resulted in the Admission Board both admitting the case and initialising the investigation, breaking European Court of Human Rights rules on impartiality. Are such irregularities acts of incompetence or deliberate rules breaches that will give the Spanish State a way out of the legal cul-de-sac they have gone down should they need one?
Like Marchena, Llarena was put in place to do a particular job by the powers that be, regardless of the legitimate reservations so strongly expressed and so summarily ignored. As they have yet again clearly demonstrated, the PP and PSOE control the judiciary, an occasional bone is thrown in the direction of the left, but control is never relinquished. The PP also controls Spain’s Senate. Even when out of government, the party of Franco’s heirs retains a high level of control of the institutions.
Even when out of government, the party of Franco’s heirs retains a high level of control of the institutions
Whilst discussing the influence of politicians on the judiciary, we ignore the influence of the judiciary on the beliefs and politics of the Spanish people. Judge LIarena has effectively controlled Catalan political life for a year and the lawfare waged against Catalan secessionists would not have been possible without the most political of Spain’s courts, the National High Court, persecuting dissidents and critics since 1940 in one or other of its incarnations. It is Spain’s Thought Court.
It was born the year after the Spanish Civil War ended as the Tribunal for the Repression of Freemasonry and Communism (Tribunal Especial para la Represión de la Masonería y el Comunismo), sentenced tens of thousands of Spaniards to up to 30 years in prison and ruined the “guilty” financially. In December 1963 it became the Public Order Court (Tribunal de Orden Público – TOP). Its main goal was to prosecute “those crimes whose characteristic was to subvert the basic principles of the state or to wreak havoc in the national conscience”. In other words, it persecuted political beliefs. In January 1977, during the Transition, it was reborn once again as the National High Court (Audiencia Nacional). The net of political repression has been widened to include Catalan and Basque independentists, republicans, feminists, artists, musicians, film-makers, journalists, puppeteers, rappers, users of social media and so on. In short, anyone but Spanish nationalists. In contrast, the court tends to go easy on the far-right though, protecting them whatever they do or say, handing down suspended or lenient sentences, while persecuting the left and prosecuting dissidents and critics.
The net of political repression has been widened to include Catalan and Basque independentists, republicans, feminists, artists, musicians, film-makers, journalists, puppeteers, rappers, users of social media …
In a recent decision, the High Court decided not to take on the case against Manuel Murillo, the Francoist gun enthusiast from Terrassa, who was planning to kill Spanish prime minister, Pedro Sánchez, for his attempts to disinter Franco’s remains from El Valle de los Caídos, the Francoist pilgrimage site outside Madrid. The Spanish press painting the would-be assassin as a mad lone wolf justified the High Court’s decision not to try Murillo on terrorism charges. His defence has argued that the political situation in Catalonia be considered as a mitigating circumstance, which is to ask that the courts go lightly on him as he was acting for the unity of Spain.
Here is Murillo pictured with Civil Guard officers at a function at the beginning of this year.
¿Es el “francotirador franquista”?
¿Dónde y cuándo se hizo la foto?
¿Porta una condecoración? ¿Cúal? pic.twitter.com/R2HqZadZPr
— Jon Inarritu (@JonInarritu) November 14, 2018
The High Court is responsible for one of the most shocking injustices of the past year, when eight young people from the town of Altsasu-Alsasua in Navarre were jailed for up to thirteen years for a bar fight with off-duty Civil Guard officers in the summer of 2016. Initially charged with terrorism, three of the eight were placed in preventive prison for nearly two years before being found guilty on lesser charges.
At the beginning of this month, the ECHR found in favour of Basque politician, Arnaldo Otegi, and four others, and against Spain’s High Court for violating their right to a fair trial when the five were tried and imprisoned for the Bateragune case. Otegi had already been released in 2016 having served six and a half years of his ten-year sentence. The ECHR found that Justice Ángela Murillo had violated his basic rights, her impartiality contaminated by the prejudice shown in a previous trial against him.
If we consider too the selection process employed in regional courts and the political nature of many private prosecutions in Spain, one of the most litigious countries with one of the densest concentrations of legal professionals in the world, Spaniards can be forgiven for despairing of ever having a justice system of which they can be proud and Catalans for wanting out, tired of waiting for reform.
The role of the police, both Spanish and Catalan, in achieving the Spanish State’s ultimate goal while acting as the executive branch of the politicised judiciary is best left to another article, but it has been key in inhibiting activism. When people sing that they are not scared anymore, it is only true for the bravest among us. The rest are terrified of what might happen to them if they are ever caught in the widening net of prosecution.
The aim is not to do justice, or even achieve firm convictions, but to exact revenge whatever legal anomalies may be produced
Most prosecutions brought against independentists will only prosper in courts with favourable judges. Many low-level cases have already been filed and charges dropped. The aim of the judicial campaign against the pro-independence movement in Catalonia has been to stop it functioning by criminalising all involved, top to bottom, and to silence people by limiting their freedoms of expression, assembly and protest. Those that do prosper are very likely to come before the European Court of Human Rights in the coming years.
But what really matters is the present. Future censure from ECHR? The cases against “the process” and Otegi show how very little they care. If the legal abuse has had the desired short-term effect, Spain has won. The aim is not to do justice, or even to achieve firm convictions, but to exact revenge whatever legal anomalies may be produced. The Spanish State does not care if none of the charges is ultimately made to stick. By the time all the cases have been resolved, politicians, activists, dissidents and critics will have been through a legal hell, spent years in prison, had their careers destroyed, been ruined financially and suffered psychological damage. And most importantly, the State hopes that, in the meantime, the pro-independence movement will also have fallen apart.
Those that ask whether or not Spain is worried about its international image will be pointed in the direction of out-of-date and inaccurate league tables, told that Spain has a low number of cases going through the ECHR, though most of these charges are serious, such as allowing torture, false imprisonment, perverting the course of justice, lack of judicial impartiality and so on. And censure from the ECHR has few practical consequences for Spain’s judges; witness Ángela Murillo’s continuance. Like Llarena, she was put there to do a job. That Strasbourg should criticise her work is of little importance to the Spanish State.
The political nature of much of the work of Spain’s judiciary reflects not only a lack of independence in its rule of law but in all its public institutions. Spain is in need of a second transition. History shows that we never get such major decisions right the first time, like the Catalan referendum and the tepid push for independence. Countries, like people, advance more by trial and error than by grand design. Whatever might have happened to the pro-independence parties, there remain 2.3 million Catalans convinced that the Spanish State is as irredeemably corrupt, incorrigibly belligerant and relentlessly cruel as it has ever been.