Sp - Session 17 Judicial System

Session 17 Spanish Judiciary Politics in Spain: Processes and Institutions ► IES Barcelona ► FALL 2007 PROGRAM

► Instructor:

Andrew Davis ► e-mail: [email protected] 1

Spanish Judiciary ► the

organization of the judiciary chosen during the transition to democracy has had a strong effect on how the judiciary has subsequently developed ► both institutionally with regards to its position within Spanish government more broadly, as well as its relationship with the legislative and executive branches of government more specifically.

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Stability in a sea of change ► Despite

the high level of institutional instability in Spanish politics over the nearly two centuries since the Constitution of Cadiz, the organization of justice has served during that time as a peculiar constant, ► the organization of the judiciary – with a few notable exceptions – was left relatively intact during the transition. WHY?

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Judicial History ► First,

Spain’s civil law tradition ► In contrast to what was generally understood to be a highly politicized judicial environment during the Second Republic, Franco depoliticized the judiciary by training judges to see themselves as civil servants rather than as quasi-policy makers. 4

Judicial History ► These

‘politicized activities’ were instead forwarded to special courts outside the judiciary, such as the Court for the Repression of Masonry and Communism (Tribunal de Represión de Masonería y Comunismo) and the Court of Public Order (Tribunal del Orden Publico). ► Combined with the fear that a contentious debate over the reorganization of the judiciary might threaten the transition itself, the basic judicial infrastructure to allowed continue mostly intact through the transition.

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CGPJ ► The

great exception to this judicial continuity, ► The General Council of the Judiciary (Consejo General del Poder Judicial, hereafter CGPJ), was the independent body created to oversee the judiciary as well as to guard its independence. ► It is made up of 20 members, who elect a President from amongst themselves (or from the outside the group, which makes the body 21 persons). 6

CGPJ ► The

problem - the Constitution is ambiguous as to how those members should be elected to the board ► This has, whether by intention or by omission of clarification, politicized this process. ► The result is that the organization of the CPGJ has changed with the parliamentary majorities of the day 7

Constitutional Tribunal ► The

Constitutional Tribunal (hereafter TC) loosely follows the institutional organization of similar courts in Germany and Italy, which functions as an independent entity outside of the judicial organigram. ► Its role is to determine whether laws (at any level) are in conflict with the Constitution of 1978, most importantly as it applies to the protection of rights and the separation of powers. 8

Constitutional Tribunal’s power ► TC’s

influence over the levels of decentralization, institutionalized through the right of both central government and autonomous communities to appeal a perceived violation of jurisdiction to the Court. ► Therefore, to a certain degree it is the courts which have ultimately articulated the nature and extent of decentralization in Spain 9

TC and Decentralization ► The

most influential decision made by the TC in this regard was the LOAPA law (detailed in an earlier chapter), which struck 14 of its provisions. ► But it also made the TC as the unconditional arbiter of disagreements over the distribution of competencies.

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TC and Decentralization ► Its

power was also shown via the autonomous statutes of autonomy, embarked upon by Socialist Prime Minister Zapatero after that party’s 2004 general election victory. ► The change in the statute of autonomy of Catalonia has been particularly controversial, and appealed as unconstitutional by the opposition Partido Popular. 11

TC and Decentralization ►

Enrique Múgica, the Ombudsman, appealed to the TC regarding the unconstitutionality of the Catalan statute based on a long list of areas which he argued violated citizens rights

►

Múgica found that the preamble of the Estatut was of a ‘substantially political content’ with regards to its references to the ‘historic rights of the Catalan people’ (el pueblo catalán), defined in the text as a ‘nation’. He argued that this questioned the viability of the national sovereignty, which according to the Constitution rests solely in the ‘pueblo español’.

►

The case is still in the courts.

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The Supreme Court ► Initially

envisaged under the Cadiz Constitution of 1812, the Supreme Court was created in 1834. ► A major reorganisation in 1870 established the Court’s basic structure which survived until the post-Franco transition to democracy. ► Like the Constitutional Tribunal, its makeup has become part of the political disputes. 13

The Supreme Court ► The

Supreme Court as a final ‘court of appeals’ should be understood from a common law perspective. ► The Court’s ability to hear appeals is relatively restricted, and is not meant to question precedent, but to hear cases when the legal norms do not seem to have been applied correctly or when the appropriate procedures have not been followed within the lower courts. 14

The Supreme Court ► although

there is no formal hierarchical relationship between the two bodies, the Constitutional Tribunal is generally seen as the court of last resort in Spain. ► it is considerably less significant in political terms than the Constitutional Tribunal 15

The Supreme Court ► Secondly,

the establishment of Higher Courts of Justice (TSJs) in each autonomous community devolved significant elements of judicial authority downwards as well. ► The Supreme Court maintains competence over all matters not specifically attributed to the regional courts, but the TSJs have exclusive competence in regards to ‘fueros’ (special laws with historic precedents in certain regions, notably the Basque Country and Navarra).

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Attorney General ► Traditionally

seen in Spain as providing a formal link between government and judiciary ► Formally, its principal functions are to promote the observation of justice and legality, to defend the rights of citizens, to defend the public interest in a manner consistent with the law, and to ensure the independence of the courts. 17

Attorney General ► Whilst

the post does not confer cabinet status (in contrast to some other countries, such as the USA), it has been seen by some observers as overly dependent on government patronage, in spite of the legal requirement that he attorney general should act independently and impartially 18

AG and Patronage ► In

November 2002 anti-corruption prosecutors within the Attorney General’s office (Fiscalia anti-corrupción) indicted César Alierta, Chairman of Telefonica, for insider trading related to alleged crimes he had committed while Chairman of Tabacalera (a partly privatized Spanish tobacco firm) in 1997, which became known as the Caso Tabacalera or Caso Alierta . ► This was a sensitive issue for the PP government as it was they who had nominated him to the Tabacalera chairmanship in 1996.

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AG and Patronage ► In

December 2002, Attorney General Jesús Cardenal (also nominated by the PP) ruled that prosecutors - who had recommended bringing charges against Alierta - had not produced enough evidence to go to trial for insider trading. ► Cardenal stood firm with his decision against heavy criticism, even when in March 2003 it was revealed that 12 further members of Alierta’s family had purchased shares in Tabacalera shortly before announcements were set to be made which increased the stock price. 20

AG and Patronage ► The

case was later taken up and reviewed by the Audiencia Provincial in Madrid, but closed for lack of evidence in November 2005. ► However, the Supreme Court ruled in June 2007 that the case had been prematurely closed, forcing the Audiencia Provincial in Madrid to re-open proceedings against Alierta, still Chairman of Telefonica, in July of that year. ► The current Attorney General, Socialistappointed Candido Conde-Pumpido, had already expressed his willingness to allow charges to be brought in the case. 21

AG and Patronage ► Cardenal’s

successor Candido CondePumpido has likewise been charged with complicity with Socialist government policy, most notably over the handling of the peace process with ETA. ► The negotiations that the Socialist government opened with ETA as part of peace talks were a site of strong contention between the attorney general, the government and the opposition, with the AG being accused of supporting and abetting the government’s anti-terrorist policy while selectively applying the law.

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AG and Patronage ► These

charges by the opposition relate to the decision by the Attorney General to drop charges of inciting terrorism which his office had lodged against Arnaldo Otegi, spokesman for the outlawed political party Batasuna. ► Protests were mounted in front of the Attorney General’s offices in Madrid, organized by conservative groups both officially and unofficially linked to the PP (most notably by Nuevas Generaciones, the Partido Popular’s youth wing, and the Foro Ermua, a civil society group critical of the Socialists’ anti-terror policy).

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Stone and Judicial Power ► In

a recent comparative work on European judiciaries which included the Spanish case, an argument was made that a combination of 1) strong levels of embedded rights, in conjunction with 2) the existence of a constitutional court, ‘constitutes a massive, virtually open-ended delegation of policy-making authority’ to the judiciary

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Judicial Power in Spain ► As

it applies to the case of Spain, the answer to the question – to what degree has the power of the judiciary expanded since the institution of democracy in 1978 increased? ► The answer is mixed.

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GAL ► The

precedent for inter-branch power disputes between the government and the judiciary began in 1988, when the Socialist government led by Felipe González came under investigation for its suspected role in a so-called ‘dirty war’ against the Basque terrorist group ETA. ► The charges alleged government collusion (via the Spanish Secret Service, CESID) in the murder of 27 suspected ETA members and sympathizers and the intimidation of many others.

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GAL ► The

investigation into the alleged offences was led by Baltazar Garzón, an investigation judge within the Audiencia Nacional, who uncovered the existence of the clandestine death squads within Spanish police and security services later publicly named as the Antiterrorist Liberation Group (Grupos Antiterroristas de Liberación, or GAL).

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GAL ► The

government, however, saw the GAL investigation as overreach, particularly with regards to executive power and privilege. Its reaction was to actively obstruct and stonewall the investigation. ► With the Interior Ministry claiming executive privilege, Judge Garzón’s investigation into the possibility that two police detectives were taking orders from higher-ups in the government became extremely difficult. 28

GAL ► The

government’s obstruction was later justified by González himself, who after resigning as head of the Socialist party in 1997 complained that because of a deep-seated historical trepidation of a return to authoritarian government, the judiciary was instilled with disproportionate power for an unelected branch of government. 29

GAL ► The

investigation dragged on for 10 years, leading to the conviction of former Interior Minister José Barrionuevo in 1998, but absolved Prime Minister González as the judiciary was unable to prove any direct link between the two. ► Regardless of a direct link between the Prime Minister and the GAL, damage to Spanish democracy was done in other ways:  González’s government had threatened the independence of the judiciary and its legitimate role as part of a system of checks and balances. 30

International Power ► One

of the most important effects of the organization of Spanish justice which has only come to light more recently is the ability of the judiciary to prosecute international crimes with little, or no, connection to Spain.

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International Power ►A

possibly inadvertent aspect of the laws which govern the Spanish judiciary is a section that declares that the judiciary could try crimes committed outside Spanish territory, by anyone, which were related to genocide, terrorism, piracy, money forgery, prostitution, drug trafficking and ‘any other matter that according to international treaties ought to be prosecuted in Spain’.

► What

are the effects of that legislation? 32

International Power ► In

essence, this opened the door to prosecution of any crime under international law which has been ratified by Spain, including (but not limited to) the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading forms of Treatment and the Geneva Conventions. 33

Audiencia Nacional ► First,

we need to explain where these types of trials are handled ► within the Spanish judiciary process the instructing judge (juez de instrucción) handles the evidence-gathering process, and decides whether or not to press charges. ► This is a peculiar leftover from the French civil law tradition, although in most other countries (including in France), instructing judges have either been abolished or severely curtailed.

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Audiencia Nacional ► If

there is an indictment, all evidence gathered is passed on for prosecution (in the form of a sumario), which is executed by the public prosecutor. ► The institutional independence of the instructing judge is important as it relates to the prosecution of international crimes, as political influence would be more likely, if allowed, in cases of international importance 35

Audiencia Nacional ► Instructing

judges with competence to investigate these international crimes work within the Audiencia Nacional (the Spanish High Court), another institution which is relatively unique in comparative law. ► The High Court can be likened to a ‘federal’ court, as while Spain is not officially a federal entity, the High Court exhibits similar functions. 36

Audiencia Nacional ► The

most high profile case, however, was filed in July 1996, when the first charges against General Augusto Pinochet were also filed in a Spanish court.

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Audiencia Nacional ► General

Pinochet, military ruler of Chile from 1973 to 1990, was accused of being complicit (via the Chilean secret police, DINA) in a pan-American operation named ‘Operation Condor’, which sought to seek out and kill opposition to right wing governments in Argentina, Chile, Brazil, Bolivia, Paraguay and Guatemala. ► Even after his retirement, he enjoyed immunity in Chile, but arrived in Britain in September 1998 for medical treatment.

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Audiencia Nacional ► Spanish

judicial authorities subsequently issued an extradition request to the United Kingdom, beginning a drawn out legal battle over Pinochet’s extradition from Britain to Spain. ► Proceedings lasted until March 2000, when Home Secretary Jack Straw ordered Pinochet released on health grounds, and the former dictator returned to Chile.

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Audiencia Nacional ► While

Pinochet was never extradited to Spain, the process by which the case moved forward highlighted the delicate power struggle between the judiciary and the government within Spain.

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Audiencia Nacional ► the

Attorney General at the time, Jesús Cardenal, had actively, and unsuccessfully, appealed the extradition request on technical grounds, which was widely seen as part of an effort to eliminate what was an embarrassing episode for the conservative Aznar government. ► The Attorney General’s motion was rebuffed unanimously by the High Court, agreeing with Judge Garzón that Spanish law allowed universal jurisdiction.

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Audiencia Nacional ► Since

the Pinochet case, the High Court has begun investigations into several highly contentious international cases. ► These include two cases involving China: the first involves accusations that the Chinese government was involved in the mass killing of Falun Gong members, the second deals with accusations against former President Jiang Zemin and former Prime Minister Li Peng, alleging their involved in massacres in Tibet. 42

Audiencia Nacional ► Other

High Court investigations under way involve cases in Rwanda (related to the deaths of nine Spanish citizens during the Rwandan civil war) and several investigations related to Argentina, including the most recent prosecution of Ricardo Miguel Cavallo, a members of the Argentinean military regime of the late 1970s and early 1980s charged with genocide and terrorism.

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On Balance: Power of the Spanish Judiciary ► Juxtaposing

the GAL and international cases, the power of the Spanish judiciary can be bifurcated between domestic and international realms. ► With regards to the more traditional balance of power between the judiciary, executive and legislative branches, the Socialists’ ability to undertake the reforms of the judiciary in the 1980s implies a fairly powerful executive ► Although the power of the judiciary is shown as it pertained to decentralization.

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On Balance: Power of the Spanish Judiciary ► As

it applies to international justice, the Spanish judiciary appears comparatively more powerful. ► The Pinochet case demonstrates that the power of these judges within the judiciary to pursue what can only be a highly contentious and problematic case for the government of the day to be quite strong, given the inability of government squelch the extradition request. ► The government was instead forced to endure four years of legal turmoil until the British Home Secretary ordered the General

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Spanish Paradox: One More ► Indeed,

it seems odd if not legally hypocritical that the Spanish judiciary is now bringing to justice several members of the authoritarian dictatorships of Latin America – from Argentina to Chile to Guatemala –while simultaneously remaining faithful to the unwritten pacto de silencio in terms of its own authoritarian past. ► What do you think? 46