The decision of the German court on Puigdemont blows apart Judge Llarena’s entire strategy and calls into question the accusation of rebellion, which only courts as politicized as the Spanish National Court or the Spanish Supreme Court manage to see.
When Carles Puigdemont was arrested three months ago on the A7 German motorway, between Shuby and Jagel, the decision on his extradition fell into the lap of a court. The one on duty. The closest one. The one that rules over that particular German federal state. The Schleswig-Holstein court, barely half an hour away.
Had Puigdemont been arrested on that same motorway one hour earlier or one hour later, the decision would have fallen to a different court and different judges. Because in Germany -and presumably in Spain too- an essential juridical principle applies: the right to the natural judge; that is, any defendant must be judged by a court predetermined by law, the one with the corresponding jurisdiction, not whichever one the government or king prefers. It’s a fundamental human right and its purpose is to avoid obvious abuses. It’s one of the basic principles for a fair trial. A fair trial which, in the case of the pro-independence movement, does not seem to be guaranteed by the Spanish judiciary.
The Spanish Constitution includes the principle of the natural judge as well. Article 24 par. 2: the right to the “ordinary judge as predetermined by law”. Something which is in obvious contradiction to the existence of an extraordinary court, the Spanish National Court (Audiencia Nacional), which has no equivalence in any other European justice system and tackles many of the most sensitive decisions.
The National Court has only six central investigating courts. A mere six judges deal with the most delicate legal proceedings in the country. The fact that there are only six of them is an indication of the lack of guarantee of independence. Rather, it’s a guarantee for political power, since putting pressure on six judges, replacing six judges, promoting or punishing six judges is easier than controlling hundreds of ordinary judges all over the country.
Among other important state matters -such as terrorism, ‘dangerous tweeters’ or the fight against major economic corruption crimes-, the Spanish National Court has jurisdiction over extraditions. Had it been the other way round, and had a fugitive from German justice been detained at kilometre 180 of the A6 Spanish motorway, the National Court, and not a judge in Tordesillas, would have been appointed to pass sentence on whether to send him to Germany or let him or her remain in Spain.
What would have happened to Puigdemont if the decision over his extradition had been taken by a German National Court, upon which Angela Merkel would have had the means to exert pressure? We don’t know. But possibly something different to what did in fact happen.
The decision by the German court on Carles Puigdemont’s extradition strips the Supreme Court, and by extension, the whole Spanish judiciary, naked. The Schleswig-Holstein court does not acknowledge any crime of rebellion, which would have required a violent and armed uprising that never took place. This court’s decision blows apart judge Llarena’s entire strategy, his entire pre-trial proceedings, and it further calls into question an exaggerated accusation, namely rebellion. No courts in Europe other than the highly politicized Spanish National Court or Supreme Court acknowledge it.
To understand what has happened in the Supreme Court we should take a closer look at the system used to appoint judges to the highest Spanish court. A judge of the Supreme Court is appointed by virtue of a direct decision by the members of the General Council of the Judiciary (CGPJ, in Spanish) with no special merits being taken into account. In turn, the 20 members of the CGPJ are directly handpicked by the parliamentary majority of the Congress and the Senate. That is to say, for many years now, the only way to become a judge of the Supreme Court has been by obtaining the support of the conservative majority of the CGPJ, which is nominatively appointed by Spain’s Popular Party (PP). With their unavoidable blessing. Spain is almost the only country in Europe in which the appointment of the Supreme Court judges takes place in this way; that is, almost directly by the political power in place, without prioritising the criteria of merit or experience, a state of affairs that has has been criticized on several occasions by the European Council.
Take judge Pablo Llarena, for instance. He came to the Supreme Court in 2016 having served as president and spokesman of the APM, the conservative judicial association. After holding a prominent position in the APM, he was promoted to the Supreme Court with the votes of the members arbitrarily appointed by the PP. He had not dealt with any criminal pre-trial proceeding for years.
One of the clearest abuses of the entire criminal process against the independence movement lies here, in the matter of which judges get to decide whether the pro-independence leaders are guilty or not. Theoretically, the jurisdiction over the crimes of rebellion and sedition in Spain corresponds to the provincial courts, not to the National Court. This was the criterion applied when Baltasar Garzón attempted to investigate the crimes of the Francoist regime; the Supreme Court decided that rebellion was outside his jurisdiction. Similarly, when air traffic controllers were prosecuted for sedition, each one of them was tried in the provincial court closest to their corresponding airport, not in the National Court. However, in the case of the Catalan independence movement, the criterion of the Prosecutor’s Office and of the courts changed, and the jurisdiction switched, as if by magic, from the Provincial Court of Barcelona to the National Court.
The strategy used to bring the Supreme Court into play was even more startling. In theory, the members of an autonomous community who enjoy parliamentary immunity are judged by the High Court of Justice of their autonomous community. In the case of Puigdemont or Junqueras, they should have been judged by the High Court of Justice of Catalonia, not by the Supreme Court, which only deals with persons whose immunity does not stem from their membership of an autonomous parliament. Yet this is how the right to the natural judge works in Spain.
The argument used to pass this case up to the Supreme Court is that their alleged crimes affect all Spaniards, not only Catalans. And this is true, but it also happens to apply to many other crimes for which, nevertheless, the judges are not changed. The real and unmentioned reason was that the judges of autonomous high courts are partly appointed by autonomous parliaments. And, of course, Puigdemont and his fellow defendants would have faced judges promoted by their respective parties in the High Court of Justice of Catalonia, which is exactly what happens in the case of many other holders of parliamentary immunity in their dealings with the politicized Spanish judiciary.
P.S. Could King Juan Carlos de Borbón be investigated by the judiciary following the revelations about his business dealings and hidden assets in Switzerland, as confessed by his charming ex-girlfriend, Corinna Zu Sayn-Wittgenstein? Yes, he could. It’s probably what would happen to Joe Public if similar evidence emerged about him. Ever since he abdicated as Head of State, the emeritus King lost his full immunity and is bound by the same laws as anyone else. There’s only one difference: he enjoys immunity from standing trial in the lower courts. Hence, he can only be judged by the Supreme Court and its judges, who in turn have been appointed by members who’ve been handpicked by parliamentary majorities.
What if the decision to judicially investigate the former king depended on an ordinary judge, such as judge Castro, who’d never benefitted from political favours? Well, that would probably be a different story.
Ignacio Escolar is a journalist. He’s the director of eldiario.es. Author of escuela.net and political analyst on La Sexta. More about him at www.escolar.net/about.