While EU liberal democratic politicians are screaming about undemocratic judicial systems in Poland and Hungary, the worst case in the EU is politely ignored: Spain
Toni Strubell is a former MP in the Catalan Parliament, journalist, and author of What Catalans Want
Núria Bassa Camps is a Catalan Photo Journalist
Edited by BRAVE NEW EUROPE
Despite Ursula von der Leyen’s August 27th announcement that the rule of law practiced in EU countries is to be carefully monitored, it seems unlikely that Spain’s judiciary will come any nearer to the condemnation it never got for being such a loyal heir to the Franco regime and its infamous judiciary. So the EU will probably continue to overlook the deeper implications behind a recent Belgian court refusal to extradite Catalan ex-Culture minister Lluís Puig (for his part in the 2017 Catalan Independence Referendum), which may wrongly be seen as a mere anecdote. For the Belgian court ruling, far from dabbing in formalities as former ones had, goes as far as to question the very legitimacy of Spain’s Supreme Court in condemning Junqueras and eight other Catalan political prisoners to long prison sentences.
Although the EU may not react, some observers predict that this could be the first of a series of legal decisions exposing the serious lack of independence cited by NGOs and experts concerning the upper echelons of Spain’s judiciary. Indeed, it might help to explain the fury displayed by leading Supreme Court prosecutor Javier Zaragoza’s in a recent article slamming the Belgian courts for not extraditing Puig. Indeed, some see his diatribe as an expression of panic that the ECHR might one day revoke the unjust sentences made by Spain’s courts against the Catalans. Or even that Spain’s whole justice system – wholly incapable of curbing corruption and implementing a clear separation of powers – might be seriously questioned by the EU for the first time since Franco’s death.
The exposure of Spain’s current legal shortcomings, though, is no novelty. According to the NGO Transparency International, Spain’s judiciary’s track record falls behind those of Botswana, Qatar, Taiwan or Puerto Rico. In recent years, Spain has dropped positions in the EU as regards its capacity and willingness to curb corruption as well as the perception citizens have of its judicial independence which worsen with regard to 2017, especially in the light of the concept of “pressure exerted by Government or politicians” on judges. In contrast with fifteen years ago, the judiciary – along with the once-popular monarchy – are now the two most untrustworthy public institutions in Spain.
But it is the Council of Europe’s anti-corruption monitoring body, GRECO, recurrent reports that are most devastating for Spain. The 2019 report revealed that two major anti-corruption recommendations which the EC has made over the last six years have been unattended. Firstly, the need to grant the State prosecutor greater autonomy. But also the need to suppress the conservative Partido Popular (PP) and social democratic PSOE’s (these two parties have been in power since the «restoration of democracy» monopoly in appointing the members of the vital General Council of the Judiciary (GCJ) and other high court magistrates, none of whom are appointed in answer to merit or experience. The Greco report explicitly regrets that a Spanish parliamentary subcommission working on the make-up of the Council had been a failure and complains that no attempt whatsoever had been made to implement measures called for by the EC to ensure judicial independence and a cut-back in the excessive politisation of Spain’s justice sytem. It also insisted that Spain’s political authorities (PP and PSOE) were not to participate in any way in the selection of the State’s judiciary bodies as occurs now. Never have these demands been met because, as ex-President Zapatero once said, to readjust such practices would be to put the State itself in jeopardy.
Indeed, the lack of judicial independence has been a constant feature in Spain since Franco’s time. In the last few years the European Court of Human Rights (ECHR) has regularly condemned Spain for this. The most striking case was the recent condemnation for “lack of impartiality” against one Audiencia Nacional judge accused of violating ECHR Article 6 of the European Convention of Human Rights. This occurred in the “Bateragune” trial against Basque leader Arnaldo Otegi once his unjust six-year sentence had been served. Clearly, EU justice was of little use here. Cases like this reveal an urgent need to replace the magistrates that have controlled Spain’s high courts for the past forty years since Franco died.
Despite the recommendations coming from Europe, it does not seem that the Spanish State has any intention of reducing the degree of politisation that its justice system is prey to. This is not so much because of an inability, but rather a lack of a will to do so, as the parties that have dominated in Spain since the eighties would lose their traditional control of the court justice system. If no one in the EU has questioned the watertight impunity Spain offered to Franco’s crimes and criminals in 1977, why should there be any concern about the monopoly the PP and PSOE have to decide what is just in Spain, who runs the courts, and who is allowed to get away with what.
By taking a look at just two courts – the National High Court (Audiencia Nacional) and the Court of Auditors (Tribunal de Cuentas) – we can get a fuller picture of just how crooked the judiciary is and how much of a grip the old Francoists still have on it today.
The National High Court (NHC – Audiencia Nacional) is perhaps the biggest anomaly Spain has to offer in terms of democratic standards. This court is a direct inheritance of the Francoist Court of Public Order (CPO), which in turn was a by-product of the repressive anti-Communist court of the first years of the Franco regime, with thousands of political executions on its record. Incredibly, its sentences have never been annulled, just declared “illegitimate”, as if such a term held any weight in juridical terms. On the same day in 1977 the CPO was abolished, the National High Court was created, having more or less the same objectives. The majority of its judges passed directly from one court to another with a firm will to apply the same penal code as Franco applied. No trials took place to judge their actions during the Franco regime and no steps were taken to “re-educate” them. They continued as judges without any need to change gear. The remaining judges of the CPO were transferred directly to the Supreme Court. Today political manoeuvring continues to make sure judges of the right political affinities are presiding in the right courts at the right time. One way of ensuring competing judges are kept away from these key posts is to send them on cushy very well paid jobs abroad, as has often been the case.
Yet it is surely in Spain’s Auditing Court (Tribunal de Cuentas) that some of the worst instances of political corruption occur. Officials working there are amongst Spain’s best paid civil servants. All twelve members of the Auditing Court are chosen by the Parliament, again ensuring that PP and PSOE have full control of a court which is regularly used in the prosecution and punishment of political opponents, with crippling fines that the Court is free to impose (eg. almost €5M for ex Catalan president Mas for organizing a non-binding poll). Not surisingly, several declared Francoists have held the presidency of Spain’s Auditing Court over the years. Its first president after Franco’s death was a Falangist called Servando Fernández, who fought for Hitler as a volunteer in the Second World War. Yet what is probably the greatest scandal regarding this institution is that of its 700-strong staff, approximately 15% are irregularly appointed friends and family members of PP Government ministers and past and present senior members of the Court itself. What kind of impartiality can be expected from an Auditing Court of this nature?
There is no excuse for the EU to continue overlooking the particularly perverse dimensions this practice has taken on in Spain. The pats on the back Spain got in the seventies when endeavouring to be recognized as a democracy – in a process during which not one Francoist was tried – should never have precluded a more serious in-depth examination of the mechanisms controlling the appointments made in the judicial hierarchy all these years. Too many Francoist practices and too many fascists have made it through the «selection process».
No jurist can overlook the fact that the current association between the PP, the PSOE, and the crown, blessed by the Deep State, is of a mafioso nature. The famous Gürtel sentence (an expansive corruption case involving the PP), however much the PP might have sought the most favourable of court scenarios, defines the PP in similar terms. Today, this trio commands for its own benefit a perverted justice system in which the separation of powers is clearly missing. It acts with the same arrogance that Franco did. Its absolute priorities are the sacred unity of Spain and the maintenance of the status quo of the 1978 regime grafted onto the Francoist state. This attitude was clearly reflected in Felipe VI’s ominous speech of October 3, 2017 (an uncompromising response to Catalonia’s suppressed independence referendum). To achieve their goals, he PP and the PSOE have publicly admitted they are willing to pay any price. This means that the use of the most perverse pseudo-legal methods to achieve their goals, such as those used in Operation Catalonia, is on the cards.
What is most worrying, though, is that all this is happening with the almost total acquiescence of the EU for which enables the threshold of democratic standards in Spain to remain in its nadir. The price to pay by Spain and the EU has already involved adverse international court rulings such as those reaped by courts in Germany, Switzerland, Scotland, and Belgium where vain attempts were made to extradite Catalan political exiles. In any case, the crass perversity of the Spanish legal system has now been highlighted for all with the unchecked flight of former king Juan Carlos I to the Persian Gulf with the stolen fortune he has accumulated over the years. He was able to do with the absolute silence of the EU which is becoming increasingly tolerant to the absence of credible rule of law in Spain today. Even the international press has shown its surprise and disapproval. Wasn’t Spain supposed to be that exemplary monarchy? The EU cannot continue to overlook this degeneration process if it wants to maintain its own credibility. If not, Belarusian tyrants may continue to respond to EU demands for the release of political prisoners by saying that the EU should have Catalan political prisoners released first. Now, wouldn’t that be embarrassing?