Ricardo Alonso Garcia – 5 FEB 2020 Image: Martin Elfman
I do not refer to the possible tiredness of the citizenship faced with the prominence that, forced in legal terms, has been gaining the judiciary before the Catalan pro-independence drift frontally contrary to the current constitutional order. I refer to the sure tiredness of the judges because of the escalation of expletives that, on the occasion of this prominence, has been intensified from the political arena, whose culmination has come from the hand of the new Vice President of the Government, who has rushed to declare in a television interview that “many European courts have ruled against our judges”, which constitutes “a humiliation for the Spanish State”. To finish fixing things, the Government, in an implicit response to a critical institutional statement of the CGPJ, has supported the vice president in favor of freedom of expression, which was never questioned by the CGPJ, which, through the unanimous opinion of its Permanent Commission, limited itself to appealing “to moderation, prudence and restraint and institutional responsibility to avoid the political use of justice or the questioning of the independence, impartiality and professionalism of the members of the Judiciary”.
I think the governing body of the judges did well showing their concern about the lack of serenity and temperance of the vice president when analyzing the role of our courts in the face of the ‘process’ (serenity and temperance for which, incidentally, Pedro Sánchez advocated expressly and specifically after the October ruling and that, at least for the moment, have seemed to penetrate in other newly appointed ministers who a few months ago were convinced, some of them, of the condition of “savior of the country” of the members of our highest judicial instances, members of “a wild, uncontrolled and ultranationalist power”).
The magistrates have not been responsible for bringing to the judiciary political disagreements
Neither the judges have been responsible for the bringing to the judiciary of the political disagreements translated into an extreme radicalism of certain defenders of independence; nor, much less, can they be blamed, directly or indirectly, for a politicization of justice when exercising their role of bastions of the rule of law: ¡let’s see if it is going to turn out now that the last culprits of the stressful situation in which we find ourselves are the judges!
Let’s see which are those “many” European courts whose pronouncements, dictated in a context of extraordinary legal complexity, require in order to be correctly assessed not a little knowledge of procedural law, criminal law, constitutional law and European Union law, and which, in opinion of the government, have meant a “humiliation” for the Spanish State.
On the one hand, the European Court of Human Rights (ECHR), whose Third Section unanimously decided, in its Decision of May 28, 2019 (Forcadell e.a.v. Spain case), to reject the appeal filed against the decision of the Constitutional Court to suspend, under writ of protection, the convening of the plenary session of the Parliament with a view to a possible declaration of independence. The reasons for the violation of the ECHR alleged were the violation of the right of the appellants (Forcadell and 75 other independent MCPs) to freedom of expression and freedom of assembly. Well, the ECHR considered that the decision of the Constitutional Court was the result of a predictable legal forecast, applied with the legitimate objective of ensuring “the maintenance of public safety, the protection of order and the protection of rights and freedoms from third parties”; to which it added that the convocation of the Mesa del Parlament had implied “a clear breach of the decisions of the Constitutional Court [concerning the suspension of the law relating to the referendum of self-determination], which aimed at the protection of the constitutional order”.
There is a certain tiredness of the judges in the face of the expletives that have been intensified from the partisan arena
On the other hand, there is the judgment of the Court of Justice of the European Union (CJEU) of December 19, 2019 (Junqueras case), issued in a very debatable procedural context (that of the supervening loss of the object of the process, which dealt with the provisional imprisonment of an elect to the European Parliament, having become definitive imprisonment at the time Luxembourg had to issue its ruling), to the point that the CJEU departed from the opinion of the general lawyer (which is a very peculiar figure of the judicial system of the Union, which only finds a match in the French system in which it was inspired and whose function is to assist the Court in the exercise of its jurisdictional function) that intervened in the matter. Regarding the merits, the apparent re-reading that the CJEU made of the protocol on the privileges and immunities of the Union must be taken into account, otherwise it is contrary to its interpretation not only by our Supreme Court, but also, it should be noted, of the Commission and the Parliament of the Union; re-reading, by the way, that leaves open a series of questions still to be resolved in academic and, probably, judicial headquarters. All this, in short, the product of a loyal behavior of the Supreme Court, given that it was precisely the Supreme Court, and not another, who addressed the CJEU, supreme interpreter of the law of the Union, seeking light when applying the European electoral framework. The same Supreme Court has just ruled in a January 9 decision assessing the scope of the Luxembourg ruling. And such an assessment and its internal effects can be discussed (I certainly consider it debatable). What cannot be discussed, in any way, is that we are faced with a very well worked out motivation.
I do not believe, therefore and in the end, neither that the European courts have contradicted at all our judges, nor, even less, that they have humiliated with their pronouncements the Spanish State.
What about the positions so far judicially held from Belgium and Germany? In relation to Belgium, just to point out that the denials of the Euroorders issued against Piugdemont and others were for purely formal reasons. And that they proceeded, by the way and without acrimony (as Alfonso Guerra would say), from a State, the Belgian, which was sentenced on July 9, 2019 by Strasbourg for breaching its obligations arising from the Euroorder, precisely in a linked case with Spain (specifically, in relation to the request for detention and surrender to the Spanish authorities of Natividad Jáuregui, a member of ETA allegedly involved in the murder of Colonel Romeo). And in relation to the German refusal, just to clarify that it came from a territorial court, and that it was based, against the opinion of its Prosecutor, on a possible excess of jurisdiction of the hearing itself.
If “setbacks” and “humiliations” are already expressions that should be banished when analyzing pronouncements that are objectively presumed from independent, impartial and highly qualified bodies, they should still more be banished in the context of a delicate judicial saga, like the one linked to the ‘proces’, whose future is yet to be written.
So serenity and temperance, ladies and gentlemen and also ministers. Serenity and temperance.
Ricardo Alonso García is a professor at the Complutense University and a member of the Royal Academy of Jurisprudence and Legislation.