The Popular Party and the Judiciary. Separation of Powers? Not quite.

In recent years the Popular Party has systematically used the judiciary to silence political opposition and to ensure widespread corruption at every level of government went unpunished. In addition they have used police, prosecutors and complicit media to fabricate evidence seeking to incriminate the leadership of Podemos and Catalan pro-independence politicians. Today they are using the judiciary to silence criticism and criminalise Catalan politicians and civil society.


How does the Popular Party control the Judiciary?

State Prosecutors

Here things work following a simple chain of command. The government appoints directly the head prosecutor, who in turn appoints all other prosecutors. In cases which are important to the government, prosecutors are seen to act systematically to promote the government’s interests. Prosecutors have strong incentives to comply with the government’s wishes in order advance their careers in the judiciary. Their leniency in relation to cases of corruption involving the Popular Party or figures or the royal family speaks volumes. As does their far harsher treatment of cases involving certain twitter users, rappers, Catalan separatists, or activists in general. In these cases charges of “apology of terrorism” can be applied to puppet shows, “sedition” to peaceful protests, or “terrorism” to bar brawls.

Judges

Judges are assigned and promoted by the Council of the Judiciary, whose 20 members are chosen by a 3/5 majority procedure by congress and senate -in practice a PP-PSOE deal. These magistrates in turn make appointments throughout the system. When the government has a direct interest in any proceedings, legal tricks come into play. These range from the state prosecutor taking the case to one court or another to recusing judges if a case is assigned to a judge who is not sufficiently friendly. In certain more extreme cases, judges have been removed from the judiciary, accused of prevarication. The Constitutional Court is appointed in much the same manner as the Council of the Judiciary, but in this body the government can appoint directly 2 of the 12 magistrates, hence guaranteeing an even stronger influence over rulings.

On the whole the PP and the PSOE make deals to fill the top posts in the judiciary with magistrates they can fully trust. These two parties, which have been alternating in power since 1982, always insist that “the Judiciary is fully independent”.

In spite of both parties, but mainly the Popular Party, facing many criminal procedures for their corruption, these do not generally come to very much. This is in part because for offences such as embezzlement, bribery, money-laundering, tax fraud or illegal political financing, the PP and the PSOE have legislated to shorten the statute of limitations to 4 or 5 years. In practice their capacity to make investigations drag out for many years keeps them safe. Additionally the government can use its legal prerogative to pardon convicts discretionally if ultimately needed.


Some high-profile cases which reveal the political manipulation of the Judiciary in Spain.

The Anti-Corruption Prosecutor’s Office

Spain also has a judicial prosecutorial body to fight corruption. This body was created in 1995 and reinforced in 2004 when the Socialist Party was in power. It has led many of the key investigations into cases of corruption. Its head prosecutor, however, is appointed by the Head State Prosecutor, which makes its independence unreliable. In early 2017 the head anti-corruption prosecutor was replaced by Manuel Moix, a prosecutor who had previously denounced Judge Silva on grounds of prevarication in relation to the Bankia/Caja Madrid case. The bank had been involved in numerous shady dealings which led to tens of thousands of small savers losing their savings and an unrecovered bail-out amounting to 25 billion euros. In 2013, Silva, an investigating judge at a court in Madrid, placed the bank’s former president, Miguel Blesa (a political appointee) in provisional detention. Through Moix’s initiative, Silva was subsequently removed from the judiciary, while Blesa, who had been rapidly released, later on received a six year sentence on one charge. He was facing more charges, but in July 2017 his body was found after he apparently shot himself through the chest with a hunting riffle.

But back to Moix. In early 2017 he was promoted to head anti-corruption prosecutor. Within days he set about trying to undo all the hard work that had been done by anti-corruption prosecutors, and putting a break on ongoing investigations. (This was widely reported in Spain’s most reliable media). Shortly after, in a leaked telephone conversation, former regional president of Madrid, Ignacio González, who is currently in prison facing multiple corruption charges for which there is overwhelming evidence, was heard by the whole country telling former Valencian regional president Zaplana “how good it would be if we could place Moix there” (referring to his appointment as head anti-corruption prosecutor). Fortunately Moix did not last long in the job as, soon after, the press came into evidence of him having a shell company to his name in Panama, and the government felt compelled to let him go in the face of mounting pressure. The Socialist Party was forced to take a stand and head state prosecutor Maza was reproved by a majority in parliament, as was the Minister of Justice. This, however, did not lead to either of them stepping down or being sacked.

Judge Garzón ousted for investigating corruption

The Gurtel case involved a vast interconnected network of bribery and embezzlement spanning dozens of local and regional authorities ruled by the Popular Party. The investigation kicked off in 2007, (it is currently drawing to an end), and in 2009 Judge Garzón ordered wire-taps on a number of people involved. This led to him being accused of prevarication and removed from the judiciary. Eventually, in 2013, the request he sent to Switzerland to investigate accounts held by PP national treasurer, Luís Bárcenas, revealed the latter had held up to 47 million euros there. Shortly after, Bárcenas’ hand-written parallel accounts sheets were leaked, showing the extent of bribery amongst the highest ranking officials in the party over the course of many years. Many of these were former ministers under Aznar, including Rajoy himself. Garzón’s removal from the judiciary was also based on prevarication charges, which were brought against him by openly fascist organisations, in relation to his declaring himself competent to investigate crimes committed by Franco’s regime. He had done so under the cover of the Historical Memory Act, which had been passed by the Zapatero socialist government.

Protecting the Monarchy: Infanta Cristina and Iñaki Urdangarín

This case involves the current king’s sister and her husband. As with the Gurtel case, investigations began in 2007, and an initial verdict was only reached earlier this year. Princess Cristina’s husband and his partner set up a scheme which involved a company and a foundation. They basically provided services organising events for the regional governments of Valencia and the Balearic Islands. Access to political power allowed them to massively overcharge public coffers for these events, and, to shift proceeds through their foundation, embezzle millions of euros. The princess was a signatory to all these deals but, when questioned in court, she claimed to be merely an innocent housewife, who trusted her husband when he asked her to sign documents. Throughout the trial the state prosecutor was seen to act as a defence attorney. In terms of her legal council, Miquel Roca, one of the drafters of the Spanish constitution, was actually the lawyer she hired. As expected, she was left off the hook, and ultimately her husband sentenced to 7 years in prison, which he is appealing. Throughout this process neither of them has set foot in jail. They both live in Switzerland.

Judge Lamela: Jailing Separatists

Judge Lamela, who is now in charge of the case involving Catalan government officials and social leaders, Jordi Sánchez and Jordi Cuixart, has been condecorated by the Ministry of the Interior. Earlier this year, following an incident in the Basque Country in which there was a violent confrontation between a group of youths in which two police officers were injured, Judge Lamela indicted the youths on charges of terrorism, even though no arms as such were involved: it kicked off in a bar at 3 a.m, and the worst injury was a broken ankle. The alleged terrorists are facing sentences of up to 50 years each. They have been in prison in Madrid since November 2016, pending trial.

No Jokes at the Audiencia Nacional

The Audiencia Nacional is a national high court that provided continuity for the Francoist Tribunal for Public Order. Many legal experts have throughout the years pointed to the incongruity of the very existence of this court, as the underlying logic of the court system should be one in which cases are first brought to jurisdictional (territorial) courts and to higher courts when appeals on jurisdictional rulings are put forward. The Audiencia Nacional allows state prosecutors to bypass district courts and take cases, in which the state takes an interest, directly to this court in Madrid, over whose magistrates there is greater political control. It is the court of choice for cases involving tweets and rap lyrics which are said to contain expressions which “highten terrorism” (a legal figure). Regardless of the context of these tweets, which are often jokes or ironic, the Audiencia Nacional seems to have made it its mission to persecute dissenting opinion when it finds an excuse. A case in point is the story of Casandra, a young student who wrote 13 tweets with jokes involving ETA, for example a joke regarding Carrero Blanco, Franco’s prime minister who was blown-up in 1973. She was sentenced to one year in prison. There have been numerous such cases in recent years. Funnily enough social media are full of Spanish twitter and facebook accounts openly instigating violence against leaders of Podemos or Catalan separatists. But these don’t seem to find their way to a court hearing. The Audiencia Nacional has also been the court chosen for Catalan social leaders Jordi Cuixart and Jordi Sánchez, where they face charges of sedition, as well as the members of the deposed Catalan government, who face charges of rebellion.

Operation Catalonia: Deep State Manouvers

Earlier this year a dedicated congressional commission concluded that the government had used the police to spy on Catalan separatist parties and spread libellous news about them. In 2015, the Minister of the Interior, Fernández Díaz, in leaked conversations with the head of the antifraud office of Catalonia (“an independent body”), discussed efforts to find evidence of corruption amongst Catalan politicians that could be used to smear them and weaken them politically. In the conversations the minister described how he could talk to the head state prosecutor to ensure the evidence that had been collected/fabricated would be used effectively. As part of this “operation”, which also involves corrupt journalists, what was ultimately proved to be fabricated evidence was leaked to the media. It suggested former mayor of Barcelona, Xavier Trias, held 12.9 million euros in undeclared accounts in Andorra. Police reports lacking appropriate numbering and authorship were the starting point for complicit journalists’ “investigations”. The accusations worked wonders in the media. Pablo Iglesias, the leader of Podemos, was also the victim of fabricated evidence of this nature making its way into the media, and reported as originating in a police investigation.

Conclusion

We have tried to provide a comprehensive picture of the way politics and the judiciary interact in Spain, with examples that cover different aspects. There are many more cases of the kinds described above. We have chosen to leave the cases involving Catalan separatist political and social leaders, as well as recent persecution of teachers, firemen and ordinary citizens in Catalonia following the 1 October referendum for another article. Hopefully, this one has helped shed some light on the level of independence of the Spanish judiciary.

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