My English translation of two disturbing articles by Jordi Domingo i Garcia-Milà on the decay in Spanish institutions
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if need be, to read the whole post
Click here,
if need be, to read the whole post
1
Is someone prevaricating*? (1st part)
By Jordi Domingo i Garcia-Milà
24/02/2018
Allow me to start by saying that an unfair court ruling does not always imply the existence of a prevarication offence. Far from it. A judge, or court, can dictate an unfair resolution without prevaricating at all. Mistakes do happen and an incorrect appreciation of facts or evidence can unquestionably mislead the person that has to make a decision.
A separate issue is the intentional error (which is no longer an error by definition) for spurious purposes of whatever nature: economic, political, professional, ideological or of any other sort. When does a judge or magistrate really prevaricate? To find out we need to go to the Penal Code and verify that he or she would be doing so: (i) when knowingly issuing an unfair verdict or ruling; or (ii) when by gross negligence or inexcusable ignorance he or she issues a verdict or ruling that is manifestly unfair.
All this comes to light because of the judicial front of the so-called "Catalan process", taking into account a myriad of circumstances that have been surfacing in the media and court rulings that have been issued. Most specially, those relating to the preventive detention without bail of the Vice President of the Government of the Generalitat, Sr. Oriol Junqueras; of its Minister of the Interior Sr. Joaquim Forn; of the chair of the ANC, Sr. Jordi Sánchez, and the chair of Omnium Cultural, Sr. Jordi Cuixart.
Right now we can now assert that all that is taught in Spain's schools of law, especially in regard to constitutional law, criminal law and procedural rules, must be put in utter abeyance. Were it not for the gravity of the subject, we could tell endless jokes on the problems professors, lecturers and students will have in the next round of examinations to discern what the right answers are to key qüestions of legal certainty, the rules of competence or the typification of certain offences, given the evident divorce between what one can read in the doctrinal treatises and what judges and courts end up deciding whenever the "Catalan process" is involved.
What must never be accepted in a democracy is a sudden and flagrant divorce appearing between legal texts and the courts' interpretation of them at the behest of the executive branch or in response to its urgent needs. Opening that door leads, inescapably, to entering murky paths that flout the separation of powers, damage the rule of law, violate democracy, invite authoritarianism and inevitably rumble towards dictatorship. It is this serious and regrettable.
It is true that coincidences do happen and that roulette can hit the same number once, twice or thrice. But to hit the same number and colour all night long should alarm any minimally intelligent person. When, in judicial and legal terms, coincidences always harm the same people, it is legitimate to wonder whether something is not working properly. Let's look into this step by step.
For National High Court judge Sra. Lamela, to admit chief prosecutor Sr. Maza's indictment, on grounds of rebellion and sedition, in the first place, when the National High Court had been specifically declared incompetent to judge that kind of offence, is - at the very least - disturbing.
For it to be based on the text of the past dictatorship's Criminal Code is surprising.
For the investigating judge of the Supreme Court - Judge Sr. Llarena - to also admit his competence when, given the persons allegedly involved in the events and the place where these allegedly took place, that jurisdiction should correspond to the High Court of Justice of Catalonia, raises the eyebrows of specialists in the field of criminal law.
For the presentation of the aforementioned indictment, its correlative admission, the summons for questioning of the persons involved and the first imprisonments to all occur in under 72 hours (including the 24 hours of the November 1 public holiday) scandalizes any jurist for the possible violation of the fundamental right to defence.
On October 1, the date of the Catalan referendum, for the Spanish police bodies to fail to comply with the principles of proportionality, congruence and appropriateness that were applicable to their actions, despite the express mandate of the High Court of Justice of Catalonia judge, Sra. Armas, to avoid at all costs the disturbance of social peace, should be of concern to every democratic citizen.
For an investigation of a "general" nature (that is, not limited to the offences reported) to be opened on his own account by the judge of Barcelona's Investigating Court No. 13, Sr. Suñer, in response to a complaint filed in January 2017 against a judge (and former senator), Sr. Santiago Vidal, for an alleged cyberoffence and disclosure of secrets is, to put it mildly, tremendously striking.
It is as striking as the fact that the same judge, close to his retirement in March 2017, suggested extending his employment status for two years, with the approval of the General Council of the Judiciary, after having added - to the previous case - the suit filed by VOX against Sr. Vidal and two other people linked to the Catalan administration.
And then, the fact that Sr. Suñer himself indicated, in a written injunction, that his investigation was in no way aimed at discerning any issue related to the October 1 referendum, and that, in the meantime, the Civil Guard were conducting all sorts of proceedings (including arrests) indeed related to the said referendum, allegedly covered by the aforementioned proceedings opened in that very Court and without any express warrant (or so it seems) to do so, makes it logical for every kind of wariness to be aroused.
Suspicions are further aroused by the fact that after lifting the "sub judice" status, after an unusually long period of time, about thirty people turn out to be investigated, on top of the initial three, when the number of alleged crimes, or of investigated persons, cannot be expanded during a sub judice period.
Meanwhile, the fact that almost seven months after filing a lawsuit against the Civil Guard Police for alleged crimes of forging of documents and usurping functions, the Court has not yet admitted the case also seems - to put it mildly - surprising.
Is all this a coincidence? Let's admit that it's hard to accept. Someone will have to reach a conclusion on it. Many - including Supreme Court - judges have told me, in chats over coffee, that they have never received a call to influence them in the resolution of a case. I believe them. I know that there are countless judges and magistrates in Spain who maintain, as they should be, their absolute independence from the executive power. Havind said that I believe there may be others who do not need any call. It is enough for them for their professional, promotional or political objectives to be clear in their minds... or to suffer for the terrible fear of losing what they have.
I shall not - for the time being - tire you any more. Legal and judicial issues tend to be cumbersome. I leave for the second part of this article the pitiful issue of preventive imprisonment and other aspects as surprising as they are hard to explain from penal and constitutional standpoints. We shall also try, of course, to answer the question in the title. Suffice it to say, - and I am sure you will agree - that things do not seem to be on the right track.
2
Allow me to start by saying that an unfair court ruling does not always imply the existence of a prevarication offence. Far from it. A judge, or court, can dictate an unfair resolution without prevaricating at all. Mistakes do happen and an incorrect appreciation of facts or evidence can unquestionably mislead the person that has to make a decision.
A separate issue is the intentional error (which is no longer an error by definition) for spurious purposes of whatever nature: economic, political, professional, ideological or of any other sort. When does a judge or magistrate really prevaricate? To find out we need to go to the Penal Code and verify that he or she would be doing so: (i) when knowingly issuing an unfair verdict or ruling; or (ii) when by gross negligence or inexcusable ignorance he or she issues a verdict or ruling that is manifestly unfair.
All this comes to light because of the judicial front of the so-called "Catalan process", taking into account a myriad of circumstances that have been surfacing in the media and court rulings that have been issued. Most specially, those relating to the preventive detention without bail of the Vice President of the Government of the Generalitat, Sr. Oriol Junqueras; of its Minister of the Interior Sr. Joaquim Forn; of the chair of the ANC, Sr. Jordi Sánchez, and the chair of Omnium Cultural, Sr. Jordi Cuixart.
Right now we can now assert that all that is taught in Spain's schools of law, especially in regard to constitutional law, criminal law and procedural rules, must be put in utter abeyance. Were it not for the gravity of the subject, we could tell endless jokes on the problems professors, lecturers and students will have in the next round of examinations to discern what the right answers are to key qüestions of legal certainty, the rules of competence or the typification of certain offences, given the evident divorce between what one can read in the doctrinal treatises and what judges and courts end up deciding whenever the "Catalan process" is involved.
What must never be accepted in a democracy is a sudden and flagrant divorce appearing between legal texts and the courts' interpretation of them at the behest of the executive branch or in response to its urgent needs. Opening that door leads, inescapably, to entering murky paths that flout the separation of powers, damage the rule of law, violate democracy, invite authoritarianism and inevitably rumble towards dictatorship. It is this serious and regrettable.
It is true that coincidences do happen and that roulette can hit the same number once, twice or thrice. But to hit the same number and colour all night long should alarm any minimally intelligent person. When, in judicial and legal terms, coincidences always harm the same people, it is legitimate to wonder whether something is not working properly. Let's look into this step by step.
For National High Court judge Sra. Lamela, to admit chief prosecutor Sr. Maza's indictment, on grounds of rebellion and sedition, in the first place, when the National High Court had been specifically declared incompetent to judge that kind of offence, is - at the very least - disturbing.
For it to be based on the text of the past dictatorship's Criminal Code is surprising.
For the investigating judge of the Supreme Court - Judge Sr. Llarena - to also admit his competence when, given the persons allegedly involved in the events and the place where these allegedly took place, that jurisdiction should correspond to the High Court of Justice of Catalonia, raises the eyebrows of specialists in the field of criminal law.
For the presentation of the aforementioned indictment, its correlative admission, the summons for questioning of the persons involved and the first imprisonments to all occur in under 72 hours (including the 24 hours of the November 1 public holiday) scandalizes any jurist for the possible violation of the fundamental right to defence.
On October 1, the date of the Catalan referendum, for the Spanish police bodies to fail to comply with the principles of proportionality, congruence and appropriateness that were applicable to their actions, despite the express mandate of the High Court of Justice of Catalonia judge, Sra. Armas, to avoid at all costs the disturbance of social peace, should be of concern to every democratic citizen.
For an investigation of a "general" nature (that is, not limited to the offences reported) to be opened on his own account by the judge of Barcelona's Investigating Court No. 13, Sr. Suñer, in response to a complaint filed in January 2017 against a judge (and former senator), Sr. Santiago Vidal, for an alleged cyberoffence and disclosure of secrets is, to put it mildly, tremendously striking.
It is as striking as the fact that the same judge, close to his retirement in March 2017, suggested extending his employment status for two years, with the approval of the General Council of the Judiciary, after having added - to the previous case - the suit filed by VOX against Sr. Vidal and two other people linked to the Catalan administration.
And then, the fact that Sr. Suñer himself indicated, in a written injunction, that his investigation was in no way aimed at discerning any issue related to the October 1 referendum, and that, in the meantime, the Civil Guard were conducting all sorts of proceedings (including arrests) indeed related to the said referendum, allegedly covered by the aforementioned proceedings opened in that very Court and without any express warrant (or so it seems) to do so, makes it logical for every kind of wariness to be aroused.
Suspicions are further aroused by the fact that after lifting the "sub judice" status, after an unusually long period of time, about thirty people turn out to be investigated, on top of the initial three, when the number of alleged crimes, or of investigated persons, cannot be expanded during a sub judice period.
Meanwhile, the fact that almost seven months after filing a lawsuit against the Civil Guard Police for alleged crimes of forging of documents and usurping functions, the Court has not yet admitted the case also seems - to put it mildly - surprising.
Is all this a coincidence? Let's admit that it's hard to accept. Someone will have to reach a conclusion on it. Many - including Supreme Court - judges have told me, in chats over coffee, that they have never received a call to influence them in the resolution of a case. I believe them. I know that there are countless judges and magistrates in Spain who maintain, as they should be, their absolute independence from the executive power. Havind said that I believe there may be others who do not need any call. It is enough for them for their professional, promotional or political objectives to be clear in their minds... or to suffer for the terrible fear of losing what they have.
I shall not - for the time being - tire you any more. Legal and judicial issues tend to be cumbersome. I leave for the second part of this article the pitiful issue of preventive imprisonment and other aspects as surprising as they are hard to explain from penal and constitutional standpoints. We shall also try, of course, to answer the question in the title. Suffice it to say, - and I am sure you will agree - that things do not seem to be on the right track.
2
Is someone prevaricating*? (2nd part)
By Jordi Domingo i Garcia-Milà
06/03/2018
Things are most definitely not going well. They are going very badly.
The distortion of justice, of the division of powers, of the rule of law and, ultimately, of democracy is grave and the existence of prevarication seems more than evident.
Neither does the monarch fulfil his constitutional role, nor does the government respect the division of powers, nor do the courts seem to have any interest in protecting their independence.
For, let's face it, everyone believes that if they go to a demonstration they are protected by the freedom of expression and the right of assembly and association. Well, that's not the case if they do that in Catalonia. Even when they do so peacefully, they may be automatically accused of sedition (or worse, rebellion).
They likewise consider that "in their head" the only bosses are you. And that, whatever they think, their ideological freedom are guaranteed. Nope! If they commit the audacity of "thinking", for example, of a republic, they will also find someone who will accuse them of being ideologically opposed to the regime and will therefore keep them in preventive detention, without the legal requirements to do so being met.
We all consider that violence is something very serious that is exercised through the use of physical force (even with weapons) to dominate someone or to impose something against their will, at a specific moment in time.
This has ceased to be obvious in Catalonia. Indeed, here "it has been decided" that violence can be mental and even "tendential", if we stick to what the judge Mr. Llarena says in some of his injunctions.
All of those that work in the world of law know perfectly well that without "violence" there can be no rebellion and, as in reality there has never been violence in the so-called "Catalan process" (except when it was exercised by the state security forces on October 1), it has to be "found", in the full awareness that it is artificially invented, through interpretations that are ridiculous and that denigrate those that think them up and verbalize them.
We aspire to the courts treating us just like any other citizen, of whatever rank, economic resources or social or political influence, regardless of whether our name is Rodriguez, Fernández, Urdangarín, Millet or "M.Rajoy". In this aspect, comment is superfluous.
Similarly, we all more or less believe we have the right to a fair trial and that, consequently, we will be assigned a judge (as laid down in the law); that nobody will change the rules "in the middle of the game"; and that - of course - nobody is going to invent facts or crimes to simply harm or intimidate us. Well: regrettable as it may be, these principles have been openly violated in the so-called Catalan case. Just review the court injunctions, and you can verify this with your own eyes.
The prevarication scenario seems perfectely deliberate
But what is happening to public suffrage, as an expression of the right to political participation?
Very straightforward. They are literally hacking it away. The Spanish government is doing, with the inestimable help of the courts, all it can - and cannot - to avoid the will expressed in the polls by the majority of citizens of Catalonia becoming a reality. And that is prevaricating.
If citizens legally exercise their vote and give their support to options that legally and legitimately stand for election, with what right can the current government or the Courts exercise the power to prevent, at all costs, these people from exercising their right of political participation?
What has happened in Catalonia? You will remember perfectly that, since last October, various ministers challenged President Puigdemont to stand for the 21 December election. Government spokesman Mr. Méndez de Vigo publicly stated that the executive would "welcome" the participation of the dismissed President. He literally added:
-
"Puigdemont and all political leaders can participate in the election because they have their right. It would be good because it is a way for Catalans to judge and comment on the policies that Sr. Puigdemont has carried out in the last year."
But this result is being blocked by the illegitimate action of the Spanish government, in collaboration with supporters of article 155 measures and the courts, despite the fact that none of the elected politicians had, or have, their political participation rights impaired.
What happened behind the scenes last January 25 and 26 so that, on Saturday 27, the Constitutional Court (CC) drafted the operative part of several more than "surprising" precautionary measures related to the convocation of the investiture debate in the Parlament de Catalunya?
Let us recall that the Council of State had informed the government (on January 25) that there was no basis for it to support a constitutional appeal against the call for the investiture session of President Mr. Puigdemont, convened for Tuesday January 30th.
Even so, the government filed an unconstitutionality appeal before the TC.
What comes, in such cases, is that the TC admits -or not- the appeal and decides on the suspension of the challenged rule or resolution.
However, what the TC did, with the speed and urgency that characterizes it when it comes to the "Catalan case", was to give an unprecedented period of ten days to the parties to State their cases before deciding on the admission of the appeal and, until it decides, it also invented some "precautionary measures" that nobody had requested and whose content is absolutely grotesque from a legal point of view.
To start with, it unlawfully took over the interpretive function that legally corresponds only to the Bureau of the Parlament, to interpret the House Rules. Then it decided, on its own risk and without any legal basis, that the debate and the vote of investiture of the candidate could not be held by telematic means, or by substitution of another MP.
But there is more to come: in a triple somersault without a net, the figure of a judge is introduced to interfere directly in the golden rule of democracy: the link between the citizenry's free and democratic vote and the parliamentary representation that derives from such a vote.
For this purpose, he launched what I consider to be a true torpedo below the waterline of any democracy and, in his eagerness to satisfy the needs of the executive, it determined that the candidate could not be invested "without the relevant court authorization" - even if he appears personally in the Chamber - if a court search and imprisonment warrant is in force.
The folly is huge.
Does the fact that the Spanish government publicly acknowledged their calls to the TC not raise your eyebrows? Are not you alarmed that it accommodates its schedules to the needs and urgency imposed by the executive? Does it not cause you discomfort when the media close to to the regime announce what the National High Court or the examining magistrate of the Supreme Court will do, or will not doing, even before the suspects have made their statements?
Does the Minister of Justice, for example, not make you react by announcing court resolutions or calendars, without them having yet spoken? Does it not make you blush when certain judges draft decisions clashing with their own doctrinal sentences, only to keep the government happy in its fight against the "Catalan process"? It does me.
So all that I have said makes it clear that there is no separation of powers in Spain. And if there is no separation of powers, there is no rule of law. And if there is no rule of law, there is no true democracy.
On the other hand, what does exist is a perfect breeding ground for prevarication. Misguided ambitions to prosper politically or professionally; the misunderstood fidelity; servility; the desire to please superiors; the panic of losing what one has; downright fear; the loss of outlook; mediocrity; veiled threats..; all these are factors that help the government to systematically block the independence of the courts at certain levels.
For all of this has happened and is still happening. The State, and its government, have a political problem in Catalonia and, instead of resolving it politically and democratically, they have jointly and severally instituted the "Go get 'em" mantra. And, to be sure, everything fits into that mantra . And some of those who are in the top echelons of the courts and institutions have put themselves at the service of those in government, both to "fine-tune" whatever is necessary (Minister Fernández Díaz dixit) and to adapt decisions to the political needs of the government. And that has a name: prevarication. And yes, someone is prevaricating.
* "Prevarication" is an offence committed when an authority, judge / lawyer or public official issues an arbitrary resolution in an administrative or court affair, in the knowledge that this resolution is unfair, and therefore violates the duties of the public servant.
Such acts are displays of abuse of authority.
See another equally scathing article by the same author, in English, here: http://estudiscatalans.blogspot.com/2018/03/jordidomingo2.html
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