‘If the EU sees Spain’s judicial practice as normal, what can be said of the EU’s judicial practice?’
Toni Strubell is a former MP in the Catalan Parliament, journalist, and author of What Catalans Want
Núria Bassa Camps is a Catalan writer and photographer
Llegeix en català aquí.
On Thursday [14 July], the Advocate General of the Court of Justice of the European Union (CJEU), M. Jean Richard de la Tour, informed the CJEU that the Spanish Supreme Court’s call for the extradition of Catalan exiled Culture Minister, Lluís Puig, was justified. Indeed, he scolded the Belgian courts for having refused similar cases of extradition to Spain with the argument that there was no reason to suspect that Spain was not a regular State of Law nor that it suffered from a general systemic failure of its judicial system. This unexpected turn has meant that Catalan MEPs Puigdemont, Comín and Ponsatí, whose extradition has repeatedly been turned down in various EU states, are once again faced with a very real threat of extradition for their part in the 2017 independence referendum. For the general advocate’s recommendations are generally followed by the court.
Coinciding with this dramatic development – which has caused a lot of upset in Catalonia – Barcelona magistrate Guillem Soler has come forward with ten reasons to counter la Tour’s idea that the Spanish judiciary guarantees the democratic standards of Justice. Indeed, he considers Spain to have seriously bent the law in dealing with the Catalan independence conflict in the last few years as journalist Mayte Piulachsreports in El Nacional. Magistrate Soler argues that since the 2017 referendum, a permanent state of “juridical exceptionality” has arisen causing a swing away from the traditional judicial and political practices associated with democratic judiciaries. This has led to a situation in which fundamental rights have been under-mined with the introduction of what he calls “juridical exceptionalities” that are specially designed to apply ‘lawfare’ against political opponents, in this case the Catalan indy movement. Magistrate Soler details ten cases of “juridical exceptionality” in this context.
1: The Constitutional Court veto on particular parliamentary debates and the prosecution for those enabling them
Soler points to the role of the Constitutional Court (CC) as a source of authoritarian control over parliamentary activity. He says that it is a “juridical exceptionality” that the court should not only issue orders “correcting” norms that have just been passed in the Parliament, but that it should intervene preventing normal parliamentary debate. In curtailing the Parliament’s functions, the Court is overstepping its own function. What makes matters worse is that this irregular practice opened the door to the prosecution of Carme Forcadell, the Catalan Parliament speaker, who received an 11-year conviction for having permitted the kind of parliamentary debates that any democratic parliament is allowed to hold. Former speaker Roger Torrent is currently facing similar charges.
2: Irregular prosecution for disobedience
Another flagrant breach of legal parliamentary practice that Soler identifies is the prosecution of elected representatives in cases of disobedience, especially when no previous personal warning has been issued by a court, as is the norm. The Constitutional Court proceeded to warp a norm that found that no rank and file MPs could be prosecuted (only the speaker and members of the parliamentary board) thus enabling the prosecution of MP Mireia Boya and forcing CUP leader and MP Anna Gabriel into exile in Switzerland, on charges of having lodged a parliamentary bill for debate.
3: Inappropriate court allocation
One of the key arguments in the appeals made against the 2019 trial of nine Catalan government members was the choice of court the trial was to take place in. Soler considers the fact that they were tried in Madrid’s Supreme Court both anomalous and discriminatory. According to Spanish law, offences are to be tried in the territory they were committed. Trying them at the Madrid Supreme Court meant subjecting them to a specially hostile environment with judges that had made no attempt to disguise their hostility to the Catalan cause. Yet again, the advocate general appears not to consider this as the serious shortcoming that it unquestionably is, insisting that there must be “trust” between state jurisdictions. The fact that various extradition orders had previously been turned down in Europe for this very reason seems not to affect him. Why this change with regard to EU law now?
4: Intermittent European Extradition Orders
Soler argues that Spain’s Supreme Court judge Llarena’s procedure was quite irregular in respect to the issue of European Extradition Orders, which he repeatedly issued and then withdrew. The fact that he intermittently placed and revoked these orders – in an attempt to avoid refusal for the charges of sedition – is seen by Soler as a strategic manoeuvre that is incompatible with mandatory judicial impartiality. But once again, in his recommendations to the CJEU, la Tour deemed there to be no irregularity in this form of judicial behaviour.
5: The “violence” required in a conviction for rebellion
Another serious issue pointed to by Soler is the fact that the Catalan defendants were accused of exerting violence right up to the final stages of the trial. This was a dishonest ploy used by the prosecutors to ensure the whole trial was conducted in the most dramatic terms despite the fact that, as it turned out, there was no real proof that the defendants had used or condoned violence. The violence charge was the mandatory ingredient to ensure that the defendants were actually jailed. All this served to create an environment of fierce statewide opposition to the Catalans to ensure hefty convictions. Iinternational observers reported that the defense had not been allowed to use vital video evidence showing that police reports were false, but this has clearly made no impression on la Tour.
6: Irregularities regarding the pardons
Another legal grievance that the defendants suffered involved the litigation of the partial pardons granted by the Spanish government in June 2022 to the nine Catalan defendants. Although this enabled them to leave prison after serving three years, in no way can the procedure be termed regular. Again an exceptional circumstance was to arise. Until that date, the Supreme Court had denied political parties the right to call for the annulment of a pardon. But a subsequent change in the composition of the court, thanks to the “providential” replacement of one of the magistrates, allowed the surgical revision of this criterion. Again, Spanish legislation had never contemplated the possible revocation of a pardon until then. Was the fact that Catalan independentists were involved enough to force those two suspicious changes? Yet again, the EU advocate general appears to have seen no irregularities here.
7: Article 155 and the annulment of Catalan self-government
Article 155 of Spain’s Constitution is designed to allow measures to be taken by the State to take back control in “unruly” autonomous communities. Its content is subject to differing interpretations. But however extreme these may be, the measures taken against Catalonia’s self government are judged by Soler to show clear signs of “juridical exceptionality”. To dissolve the democratically elected Catalan Parliament and transfer its sovereignty to the Spanish government, as occurred, is considered by Soler to have been wholly anti-constitutional, indeed tantamount to a coup d’état. Yet not even this dire irregularity was seen as a sign of systemic deficiency by la Tour, whose only guideline seems to be the kind of blind faith in the Spanish judiciary that the EU denies Poland.
8: Prospectives or «catch-all» investigation
The fact that in the Catalan conflict, political issues are automatically subject to criminal law should have dissuaded la Tour from opening the door to the extradition of Lluís Puig and the other exiles. As Soler points out, not only is there an abuse of prospective investigation. Law suits against Catalan activists and politicians are also kept in the waiting room until the right “strategic” moment crops up, the timing of which is clearly political. To claim that there is separation of powers in Spain becomes increasingly preposterous, but obviously not to la Tour. Furthermore, rather than particular offences and offenders being tried, prosecution for reasons of ideology is unquestionably present, and convictions are all too often made without any form of proof. As shown by Dr. Damià del Clot’s excellent book “Lawfare, Spain’s judicial repression strategy against the Catalan independence movement”, in Spain it is lawfare that is constantly being applied against the Catalans.
9: Spain overlooks MEP immunity
It is hard to believe that la Tour can believe Spain offers juridical guarantees when one considers the Constitutional Court’s disregard for the immunity of MEP Oriol Junqueras in January 2020. la Tour must be aware that the same CJEU had called for MEP Oriol Junqueras’ immediate release so he could take up his seat in Strasbourg. Only a very forced and irregular argument that defied EU Parliament norms justified keeping Junqueras in prison, a fact that should have led the advocate general to get wise to Spain’s thirst for vengeance against the independentist leaders. Yet, despite repeated cases of Spanish contempt for European rulings, la Tour insists on speaking about the mutual trust that must exist between state institutions.
10: The Courts usurps the power to decide on language policy in schools
One last example of Spain’s judicial shortcomings has monopolised the news in Catalonia this year, after the Superior Court of Justice of Catalonia (TSJC) ruled that the Spanish Language was to get 25% curricular presence in schools. However, the law establishes that only the Catalan Parliament can take such a decision. Soler points to a further case of juridical exceptionality when the same court ruled that the request of just one student’s parent could lead to the classes be conducted in Spanish regardless of the opinion of the other classmates’ parents. A new case in which the flagrant disregard for legal norms suggests a far wider range of systemic irregularities than could be expected from a democratic State of Law. But once again, la Tour obviously has his reasons for thinking otherwise.
In his conclusions on the systemic judicial irregularities in Spain, Soler insists on the presence of politically motivated discrimination. He speaks of a constant state of exception to subdue the Catalan people and exclude them from exerting their legitimate rights. He suggests that these irregularities would disappear if the political motivations that motivate them were absent. Yet he also claims that the juridical exceptionality of the Spanish judiciary knows no limits in two particular areas: the protection of the Spanish crown and the Catalan issue. He goes so far as to compare it with principles described by Günther Jakobs and Carl Schmitt. The first spoke of the “criminal law of the enemy” with which judicial guarantees are suspended to enable the State to prosecute its enemies. The second centred on the distinction that is made – and the Nazi regime excelled in this – between friend and foe citizens. But la Tour seems to perceive none of this abuse in the Spanish context. Why?
One cannot help thinking that the EU needs Spain and cannot afford to have her status as a democratic State of Law undermined despite considerable evidence to the contrary. Hence defense lawyer Gonzalo Boye’s statement last Thursday to the effect that the fate of the Catalan exiles now depends on convincing the CJEU that Spain’s systemic irregularities exist. He announced his intention to reveal this by showing up the State sewers, the Villarejo tapes, the judicial scaffolding created to annul political opponents, the systemic invention of police versions to frame them, Pegasus spying on politicians and defense lawyers as occurred in Catalangate, the non-observance of the the immunity of elected deputies and so many other phenomena that la Tour obviously pays little attention to. If the EU sees Spain’s judicial practice as normal, what can be said of the EU’s judicial practice?
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