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The independence of the Judiciary in Spain has been brought into question as a result of recent events in Catalonia. The arrests and preventive imprisonment of former Catalan Ministers and authorities, as well as the two leaders of the main organisations behind the siege of official buildings on the 20th September 2017, has been heavily criticised and portrayed as State repression from a fascist and francoist Spanish Government.

Legally speaking, there are overwhelming reasons to suspect that all those who were arrested actually committed one or more criminal offences. In the case of the unusual crime of “rebellion” the courts will have to determine whether physical violence is necessary nowadays for the actions to be considered punible. The rest of requirements for the facts regarding the other charges appear to have been fulfilled at first sight. Without wanting to preclude the judges’ technical appraisal of the facts, the actual involvement of the defendants and their rights to a fair trial, the alleged facts for those criminal charges were self-publicised well in advance and partly televised. It will for the courts to determined whether the Declaration of Independence was just symbolic, as some now claim, or to what extent the siege of an official building was actually organised and promoted by the leaders of Omnium and ANC. During the events, the mobs destroyed 3 police cars and prevented law enforcement and judicial officers from leaving the building for about 19 hours.

International Amnesty has criticised aspects of the judiciary enquiries leading to preventive imprisonment. Legal experts and the prestigious progressive-thinking group of judges “Jueces para la Democracia” question the appropriateness of such a radical measure. I fully agree with most of what has been said. Preventive imprisonment is only applicable when there are substantial reasons to believe that the person accused is going to persist in the commission of the crime or is going to elude the actions of the Justice. If we look at the situation of the ex-ministers, ex-president and ex-vice-president of the Catalan Government accused, they all have been dismissed from their positions via the application of Article 155 of the Constitution and therefore don’t have the possibility to rebel from within the institutions any more. Moreover all of them have sufficient roots in the country to assume that they will not scape. Even ex-president Puigdemont, currently in Belgium, has presented himself to the police over there and claim to be ready to collaborate with the Spanish authorities. Preventive imprisonment is disproportionate.

However, International Amnesty have also made it clear that these are not political prisoners. The focus of the criminal investigation and judicial proceedings is the actual and verifiable actions of these politicians, not their ideas. They are probably prisoners of their politics, more than anything else. Independence for Catalonia is not illegal in Spain, as a political ideology. Anyone is indeed allowed to demonstrate in favour of independence and pursue it politically as openly as they wish. What nobody should be allowed to do in a democratic society, particularly if they hold a public office, is to violate constitutional Spanish and Catalan laws that establish legislative processes and types of parliamentary majorities for something as fundamentally structural and sensitive as independence. Each one of the rules of the game whereby self-determination can be legally pursued by a sector of the population embodies legitimate rights of the rest of the population that need to be protected.

I believe that the issue of the preventive imprisonment will hopefully be resolved soon from within the system itself. In order to understand how this is being addressed at the time of the writing of this article, we need to look at two particular aspects of Spanish law:

In the Spanish system there is special protection for elected MPs. The only court that can deal with criminal offences that an MP may have committed is the Tribunal Supremo. Some of the Catalan politicians accused of rebellion and other crimes are still acting MPs, since there is a Committee within the Catalan Parliament (La Mesa) that remains  operative even after its dismissal until an new Parliament is voted in (the forthcoming elections will be held on 21 December 2017). That explains why the case of these specific MPs was taken to the Tribunal Supremo. The rest of the politicians, including ex-president Puigdemont and ex-vice-president Junqueras, lost their status as MPs when they were dismissed as they are not members of that Committee. Therefore their cases had to be brought to the either the Tribunal Superior de Justicia of Cataluña or to the Audiencia Nacional in Madrid. The latter court took the case because the judge felt that the alleged offences had an impact beyond Catalonia, which is one of the reasons why it can impose its hierarchy over tribunals in each Autonomous Community.

One of the substantial differences between the Audiencia Nacional and the Tribunal Supremo is that the Tribunal Supremo has a higher standing and is likely to be more sensitive to public opinion and political factors when applying its discretion. Given that procedural laws allow the concentration of various cases stemming from the same events before one court, surely the cases of Puigdemont and Junqueras, along others, currently in the Audiencia Nacional, will soon be passed to the Tribunal Supremo, the higher court of the two. The Supremo has certainly shown a different, fairer, approach to preventive imprisonment than Judge Carman Lamela, from the Audiencia Nacional. In 9 November 2017 the Supremo decreed bail for Carmen Forcadell, President of the Parliament, and the other members of the permanent parliamentary Committee. This is clearly a signal that the Audiencia Nacional judge was over-zealous, or perhaps influenced by a different kind of public noise and media pressure.

The criticisms made by Javier Pérez Royo today in Zona Crítica are very legitimate. He claims that the 21st of December 2017 elections will be “definitively flawed”.  There is a long established tradition in the Spanish system to suspend any trials of offenders who decide to run for elections in order not to interfere in the electoral process. He argues that the Government of Spain should have instructed the State Public Prosecutor not to press charges knowing that elections were being called. Now everything has been tainted because the pro-independence parties have been destabilised. The divisions in the pro-independence camp were already there, anyway. Besides, I am not sure what benefits who, to be honest or how much in control of this situation the Government really is. Remember that they clumsily and brutally sent the police to stop a referendum on the 1st of October which had been annulled already and would have no legal effect, inflicting pain and damaging their chances to bring about some kind of reconciliation in the near future. Soon, as the images and videos of politicians released from prison and addressing the crowds start to circulate, we will see high spirits. The preventive imprisonment has just made hate towards the Spanish State and the Conservative Partido Popular and Ciudadanos parites, and even the Spanish Socialist Party and, to a lesser extent, their Catalan counterparts, grow stronger amongst a wide sector of Catalan society.

Coming back to the Judiciary, we must bear in mind that interpreting and applying the law, whether we like it or not, involves a degree of discretion, as the law, typically made of statements for a wide range of real life situations, does not always, and cannot, encompass all possible cases. There is not such a thing as a totally objective judge. As humans, they also receive influences from all sort of sources. They read newspapers, they sense values, they have their own opinions. Within the framework established by the law, they find solutions to cases. In a democratic society, the independence of the Judiciary must be upheld, but we cannot expect judges not to be influenced by what goes on in society.

There is not such a thing, either, as absolute independence of the Judiciary, not in Spain, nor anywhere else. This, by the way, would not be desirable. The bodies and committees that oversee the activities of the judiciary and select its top members must have some democratic legitimacy, some form of connection with the social base. Otherwise, the judiciary would become a sort of bunker accountable only to itself.

In this respect, the judicial system in Spain is as good or as bad as in any other European Country. Some would argue that in a federalising political system like the Spanish there should be a greater involvement of the Autonomous Communities in all sorts of decisions, including those concerning the structure and composition of the Judiciary. I totally agree. Spain lacks those type of fine-tuned institutions, which many federalists in the Left have been proposing for decades. Germany may provide an interesting example of this sort of shared federal decision-making: judges for the five top Federal Courts are selected by a Committee made up of the 16 States’ (Landers) Justice Ministers and 16 Bundestag (Parliament) representatives. However, the German system presents other problems, including lack of transparency, which have been highlighted by the Greens and the Left parties over there. Their judiciary is not more “independent” from political interference than the Spanish at all. It is true that their selection system seems to be more agreeable from an ethno-territorial point of view, as Landers can have a greater influence in the selection process, but in Spain, unlike in Germany, the body who appoints the judges of the Tribunal Supremo, the Consejo General del Poder Judicial, is made up of 21 lawyers and magistrates elected by the Congress and the Senate, 12 of which are appointed from a shortlist of 36 judges agreed by the professional bodies representing judges themselves.

Having seen some reactions in the Catalan government-owned media and pro-independence outlets, I cannot emphasise strong enough that we need to be cautious about the language we use in these debates. Remember the shivers provoked in Britain to many of us when the right-wing media and the Brexit establishment called the Lord Justices involved in the Article 50 case “The enemies of the people”, produced all sorts of demeaning representations of Gina Miller and threatened with taking it to the streets.

We need to look after our Judiciaries. They have protected our fundamental rights across Europe, including the constitutional and historic rights to self-government in Catalonia over decades. It is not fair or sensible to condone the siege of buildings where judicial investigations are being carried out, like the one organised by the two leaders of the Catalan “civic” organisations who are currently in prison and ended up in acts of vandalism. One day, that type of popular mobilisations that we all rightly celebrate when they are staged against dictators in other parts of the world can turn against judges defending rights that we seem to be taking for granted in an increasingly unstable Europe, such as religious freedom, ethnic equality or free movement.

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Often the judiciary is blamed for blatant injustices in Spain. For instance, the speed of response to the countless corruption cases, the leniency of the sentences for tax fraud. In the case of the former, it is the complexity of the issues, plus the lack of police resources and willingness to investigate (the police depends of the Ministerio del Interior or Home Office) what makes it difficult to prosecute more people and dispatch cases in a more speedy manner. As for the latter, the priority given to the recovery of the tax evaded and the role played by Hacienda (Inland revenue) in cutting legal deals with offenders, make it legally difficult for judges to give prison sentences. I believe that if we want a more effective judiciary we need a more independent police force and tax authorities, as well as more democratically accountable public prosecutors. The current State Prosecutor (Fiscal General del Estado) is designated by the Government and I think we could do with Parliament appointing him or her by qualified majority. It is not so much about the independence of the judges as to their real scope for action in an environment in which they rely on other agencies.

In general, judges and prosecutors in Spain are an example of professionalism and dedication. They have sent to prison numerous politicians from the party in Government and maintain, tenaciously and in adverse conditions, their investigations against corruption in both Spanish and Catalan parties. Moreover, the system of access to the profession of judge in Spain guarantees also a notoriously more balanced composition of the judiciary in terms of gender and social background, for instance, than the one in the UK.

It is true that root and branch reform is probably needed in specific aspects of the Judiciary of each major country in Europe. Nobody is perfect. Just look at the farcical events at the Crown Prosecution Service reported by the Guardian, never mind the numerous public enquiries of all sorts that lead nowhere, but at the same time, we need to consider the wider picture and ask ourselves:

How can we articulate participatory democracy in Europe ensuring at the same time that we do not to end up ruled by a faction of the establishment who imposes a self-preserving law of the loudest and attacks the Rule of Law?

How far are we ready to accept one of the favourite chants of the Catalan “Procés” “Els Carrers serán sempre nostres” (The streets will always be ours) as the driving force for politics in Europe, no matter how fervent it may be, and turn a blind eye to national-populism?

 

 

 

 

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