There is no state in the European Union where the justice system has left the realm of democracy to such a degree as in Spain.
Chris Bambery is author and broadcaster. Co-author (with George Kerevan) of Catalonia Reborn: How Catalonia Took on the Corrupt Spanish State and the Legacy of Franco (Luath Press, June 2018)
Spain has created a first in Europe. The Spanish Supreme Court has decided to ignore a European Court of Human Rights (EHCR). That is unprecedented but this body, made up of a number of politically appointed judges, has a growing track record of reaching highly politicised verdicts, particularly in relation to the Basque Country and Catalonia.
This decision, reached on Monday 14 December, is widely seen as embarrassing the current Socialist – Podemos government in Madrid, damaging the Basque peace process and having serious implications for the nine pro-independence leaders the same court jailed for in total over 100 years for organising the October 2017 independence referendum. They are appealing their sentences to the EHCR and the implication of this verdict is that if they win their appeal the Spanish Supreme Court will simply order a fresh trial.
This decision concerns Arnaldo Otegi, a central leader of the left wing Basque pro-independence coalition, EH Bildu, and a key figure in the Basque peace process.
Back in October 2009 he was arrested for attempting to put the banned party Harri Batasuna back together, and for being a leader of the terror group ETA receiving a ten-year sentence. In May 2012 that sentence was reduced to 6½ years by the Supreme Court of Spain as they found enough evidence to prove his membership, but not the alleged leadership of ETA.
While in prison Otegi was banned from running in the Basque elections by Spain’s electoral committee. In March 2016 he was released having served his full sentence, receiving no prison leave as would be normal.
In November 2018 the EHCR ruled against Spain on the basis that Otegi did not receive an impartial trial. Yet it was not until August 2020 that that the Spanish Supreme Court finally overturned their verdict against Otegi.
In Spain there are judges who are political appointees who owe their position to either the PP or the PSOE. As the distinguished historian of modern Spain, Paul Preston, notes:
“Both the Socialist and subsequent Partido Popular governments were able to appoint party sympathisers to leading posts in the Constitutional Court, the Supreme Court and, especially, the General Council of the Judiciary, which has overall responsibility for Spain’s legal system.”
Currently the bulk of those judges selected in this way were appointed under the right wing Popular Party government forced from office in November 2018 after senior party officials were found guilty of corruption on an industrial scale.
The decision reached follows on from the government of Pedro Sánchez finally getting their budget through the Spanish parliament with the votes of EH Bildu and the pro-indepedence Left Republicans of Catalonia. That sent the Spanish right into near hysteria with retired military officers appealing to the king to act against a “social-communist” government threatening the unity of Spain. One of those who signed this was the grandson of General Franco, the victor of the Spanish Civil War and dictator from 1939 until his death in 1975.
A group of retired air force officers discussed in a WhatsApp group sending planes to bomb the offices of the pro-independence Catalan National Assembly in Madrid. Spanish nationalism runs deep in the Spanish state, always a Castilian state, and the Spanish elite, and not just on the right:
“Guillermo Fernández Vara, the Socialist leader of the regional government of Extremadura, said this month that Mr Otegi’s role in deciding the budget left him in need of anti-nausea drugs. Felipe González, Socialist prime minister for 14 years in the 1980s and 1990s, added last week that he would not “do a deal with those who want to destroy the country”.
In Catalonia the Supreme Court’s decision was seen as a clear move to thwart an eventual ECHR decision to overturn the sentences awarded to the nine jailed leaders. Spain has ignored calls from Amnesty International, Human Rights Watch and even from the United Nations to release them.
In addition, the decision shows the contempt Madrid has for the peace process in the Basque Country.
Otegi has been a key figure in this, the equivalent of Gerry Adams in Ireland. The comparison is apt because Sinn Fein has played a key role in advising ETA and the Basque radicals. Key players in the Northern Ireland and South African peace process got involved, establishment figures like Jonathan Powell, Tony Blair’s key political adviser. They have had no thanks from Madrid!
Brian Currin is South African lawyer who was instrumental in the establishment of the Truth and Reconciliation Commission there following the end of Apartheid. Since 2004 he was involved in trying to resolve the conflict in the Basque Country and in 2010 helped set up the International Contact Group for the Basque Country. The Group had a mandate “to expedite, facilitate and enable the achievement of political normalization in the Basque Country.”
The ICG was not recognised by the Spanish or French governments, the body which represents victims of ETA asked the group to not get involved, and the Popular Party and Socialist Party argued it had no knowledge of the realities of the Basque conflict.
The Popular Party government at the time t refused to acknowledge ETA’s dissolution and disarmament. It also refused any concessions, particularly on Basque political prisoners.
In the immediate wake of ETA’s eventual dissolution and destruction of its arsenal the ICG ended it work and existence. Currin was interviewed about the peace process and was forthright in his conclusion:
“My own theory – and I wrote about it – was that actually Madrid didn’t want a peace process, they didn’t want ETA to go away, because if ETA continues to exist, you stick to your security legislation if Europe or the International Community says, you can’t have these laws that violate human rights you say “well, we’ve got a terrorist organization, we have to” and then they leave you alone. And that’s what happened, they were left alone. Also, when there’s a terrorist organization, you can say “well, this isn’t a political issue, this is an issue of terrorism you never then have to engage with the political issue. But once ETA is gone, what’s left? The political issue! So now you have to talk. Now it’s pure politics. Let’s talk about the right to decide, and the parties are talking about that.”
Meanwhile , in the same week as the Supreme Court’s decision on the Otegi case, Spain’s Constitutional Court ruled in December 2020 by a single vote that insults against the country’s flag are not protected by freedom of expression.
This ruling involved the case of a Galician trade union leader who urged people to set fire to “la puta bandera de España” (“the fucking flag of Spain”) during a demonstration in 2014.
No doubt his actions were provocative and insulting but it’s hard to envisage a court in the UK deciding on such a ruling if the case involved the burning of a Union Jack.
Behind all of this run two features of the Spanish state. The first is that its effective creation during the 19th century it has always been a Castilian state in which Catalan and Basque demands for self-determination are denied. Secondly, the transition from Franco’s dictatorship to parliamentary democracy involved no fundamental change in the institutions of the state with police torturers, generals and judges left in place and leaving political appointed judges in place and doing nothing to hinder the corruption of Spain’s political order, whether of the PP or the Socialists.
The current Socialist prime minister, Sánchez, supported sending paramilitary police to Catalonia in October 2017 to physically stop the independence referendum and in recent months gone the extra mile to support Spain’s troubled royal family, warning off his junior coalition partner, Podemos, from creating trouble on that front. Not that they have tried to rock the boat in any way.
It might seem you would have to be deranged to see his administration as being “social-communist” but this can be seriously talked about shows how Franco’s legacy still casts a long shadow over today’s Spain.