In recent weeks, senior judges in the loftiest halls of the Spanish legal system — the Supreme Court, the National High Court and the Constitutional Court — have been exposed as subverters of a fair legal process, lackeys of Spain’s almighty banking elite and bumbling incompetents, writes Dick Nichols from Barcelona.
The revelations of their unfitness to judge guarantees the Spanish legal establishment’s impending show trials of Catalan political leaders and law officers will be the most politically explosive since the transition from the Franco dictatorship in the late 1970s.
Next January, 18 former Catalan ministers, MPs and social movement leaders will stand trial in the Supreme Court for having allegedly organised Catalonia’s “unlawful” independence referendum October 1 last year. Nine have been in preventive detention for more than a year. The charges they face range from rebellion and embezzlement to disobeying court orders.
After a verdict is brought down in that case, former Catalan chief of police Josep Lluís Trapero, his lieutenant and the former heads of Catalonia’s police and attorney-general’s departments will stand trial in the National High Court (the direct continuation of the Franco-era Court of Public Order).
The charges they face range from rebellion and sedition to participation in a criminal organisation. These are usually reserved for cases involving terrorism and organised crime. They were laid against the Catalan police and department heads for allegedly allowing the referendum to take place via deliberate inaction, thus sabotaging Spanish National Police and Civil Guard efforts to stop it.
The penalties sought by the Spanish prosecutor-general are as high as 25 years jail, in the case of former Catalan vice president Oriol Junqueras, leader of the Republican Left of Catalonia (ERC).
The prosecution is also seeking 17 years jail for the president of the Catalan language and cultural association Òmnium Cultural Jordi Cuixart, former president of the Catalan National Assembly (ANC) Jordi Sànchez and former speaker of the Catalan parliament that passed the law enabling the referendum Carme Forcadell.
Trapero and the department heads face 11 years jail. The smallest penalty is reserved for members of the Catalan parliament’s speakership board — fines of between €24,000 and €30,000.
All defendents face disqualification from holding public office for the term of their sentences.
Bank always wins
However, these trials will take place at a time when the credibility of the Spanish justice system has never been so low.
On October 18, a panel of the Third Chamber of the Supreme Court, devoted to issues of administrative and commercial law, overturned a ruling of a Madrid lower court. This ruling had made the mortgage-holder, and not the lending institution, liable to pay the Spanish mortgage documentation fee (between 0.5% and 1.5% of the value of the mortgage).
The panel’s in-principle ruling that the fee is a bank liability shocked the financial sector. It has been the beneficiary of more than €60 billion in public support since the 2008 financial crisis threatened to overwhelm it.
Now the banks would be exposed to paying out €3.6 billion to borrowers who have taken out a mortgage in the past four years and up to €25.6 billion if the fee were to apply to mortgages contracted since 2003. On October 19, the share price of Spain’s six big banks dropped.
However, banker blood pressure was relieved on the very same day, when the chamber’s chief judge Luis María Diéz-Picazo Giménez suspended the application of the panel’s ruling due to its “enormous social and economic implications”. This was despite his having been informed of the ruling and accepting it.
But he had been tapped on the shoulder by the Supreme Court’s chief justice, Carlos Lesmes, whose own shoulder had been tapped by the financial powers.
Diéz-Picazo then convened a meeting of all Third Chamber judges to reconsider the ruling. This was unprecedented in Supreme Court history.
On October 25, Lesmes made a public apology for the situation that “we haven’t managed well”. But on November 6, he got the result he sought: the Third Chamber full bench brought down a 15-13 ruling that once again made bank clients liable for the documentation fee.
Reaction to this umpteenth gift to Spain’s hated banks was explosive. The social networks fumed.
Judges for Democracy, the most progressive of Spain’s associations of magistrates and closest to the ruling Spanish Socialist Workers Party (PSOE), tweeted: “We totally disagree with the way the Supreme Court has handled the question of mortgages and with the harm done to citizens and the justice system.
“We demand the immediate resignation of Lesmes and Díaz Picado and we call on parliament to act in defence of consumers.”
Podemos and the United Left called a Madrid demonstration for November 10, with United Left leader Alberto Garzón tweeting: “The private banks are thieves, the main enemies of the democracies and responsible for pillaging our economies.
“Today, the Supreme Court majority takes their side, confirming that justice has a price and that the system is rotten and worn-out.”
So virulent was public reaction that the PSOE government, straight after announcing its “respect” for the decision, was forced to move to calm the rising storm.
On November 7, Prime Minister Pedro Sánchez announced that his government would legislate to have the fee henceforward paid by the banks, even as lawyers for mortgage-holders said they would appeal the Supreme Court decision all the way to Europe.
Spanish justice loses again
On November 6, Spanish justice suffered a humiliation. That day, the European Court of Human Rights (ECHR) in Strasbourg ruled that Basque left pro-independence leader Arnaldo Otegi and four other defendants had not had a fair trial in the 2011 National High Court case against them. They had been charged with being members of terrorist organisation Basque Homeland and Freedom (ETA).
According to the ECHR decision, “the applicants’ fears of a lack of impartiality had been objectively justified”.
University of Barcelona law professor David Bondia said of the ECHR ruling: “It’s a slap in the face for the National High Court, but also for the Supreme Court and the Constitutional Court, because they didn’t bother to consider the issue of judicial impartiality.”
On hearing of the decision, Otegi, leader of the left pro-independence force EH Bildu, said: “Strasbourg has put on the agenda that there are courts in the Spanish state that are not impartial, that they are making up charges that are not based in reality and that they are capable of bringing down verdicts probably knowing that they are unfair.”
He hoped the decision would make the Spanish Courts think twice about their legal crusade against the Catalan leaders.
Otegi will now apply to have the ban on his standing for office lifted, opening the way for him to possibly stand in the 2019 European parliament elections.
These hammer blows to the credibility of the Spanish legal system have also taken place against a background of ongoing scandals. Recent revelations include attempts by former People’s Party (PP) general secretary Dolores de Cospedal to use crooked former police commissioner José Manuel Villarejo to derail investigations into PP corruption.
It also includes Villarejo’s own boast that he ran a ring of prostitutes to glean confidential information from senior government and legal figures.
Another revealing tidbit was a farewell letter from Lesmes to Juan Antonio Ramírez Sunyer, the examining magistrate of Barcelona’s Court Number 13, who died on November 4. Lesmes expressed his admiration “for the person capable of pursuing so tenaciously what he believes in and what constitutes his inspiration and goal — service to Justice, to the State, to Spain”.
This was the chief justice’s way of referring to Sunyer’s work against the Catalan independence movement.
Sunyer, who secretly began intelligence-gathering against the pro-independence government of president Carles Puigdemont in April last year, was responsible for authorising numerous phone taps on Catalan politicians and social movement leaders. He also ordered 40 Civil Guard raids on Catalan government institutions and private companies suspected of collaborating in the referendum.
Yet, despite accumulating 15,000 pages of information through such operations, Sunyer admitted on October 8 that he was unable to charge any of his targets with either rebellion or sedition.
This was confirmation that the decision of the Supreme Court and the National High Court to issue such charges was entirely subjective and political. It comes from a long-held stance of leading Spanish jurists with no sympathy for the Catalan independence cause.
It was also reflected in the Spanish solicitor-general’s recommendation to the Supreme Court to downgrade the charge of rebellion to that of sedition, and to seek a maximum penalty of 12 years jail.
This confirms that it all depends on the politics of those doing the accusing. For example, the far-right outfit Vox, which is the “popular prosecution” in the Supreme Court trial, has called for the Catalan leaders to be jailed for up to 74 years.
The real crime of the Catalan leaders was simply to do what they were elected to do — negotiate a Scottish-style consultation with Madrid and, if this proved impossible, carry out their own referendum.
With the authority of the Spanish legal system now near zero, the conditions for turning the Catalans’ looming trial into one of Spanish justice itself become more favourable.
[Dick Nichols is Green Left Weekly's European correspondent, based in Barcelona.]