judicial power

“The Spanish Government is maintaining its judicial offensive against the Catalan Government and no one is sitting at the table but the Government of Catalonia”, reported the Catalan Government spokeswoman, Neus Munté, this Tuesday. The statement comes after Catalonia’s Supreme Court (TSJC) notified the president of the Parliament, Carme Forcadell, that she will have to testify on the 16^th of December for allowing the pro-independence roadmap to be put in vote on the 27^th of July. Forcadell's case and the prosecution of the organisers of the 9-N symbolic vote held in 2014 are not an exception, but rather an example of the monopolisation of the Catalan question in the complaints issued by the Spanish Government to the Spanish Constitutional Court (TC). According to the data offered by Munté, the TC has 18 pending appeals issued by the Spanish executive against Catalan laws and 27 more issued by the Catalan Government for conflicts of competences.

Catalan judge Santiago Vidal faces a three-year suspension from office for writing a draft of a theoretical Catalan Constitution. Although the proposal was not supposed to replace any Constitution or be directly adopted if Catalonia became independent but rather to steer debate by putting on the table specific constitutional articles, Catalonia’s Supreme Court (TSJC) has confirmed Spain’s Judicial Power Council (CGPJ)’s decision, announced in February 2015, and has insisted that Vidal committed “a very grave offence” and “inexcusably failed to fulfil his judicial duties”. Thus, the appeal presented by Vidal, after considering the sanction to respond to “political and ideological criteria”, has been rejected by 21 magistrates, while 11 have expressed their conformity with the appeal.  

Barcelona Provincial High Court judge Santiago Vidal, who has openly supported independence, has been expelled from the judiciary for a 3-year period by the Spain’s Judicial Power Council (CGPJ). The sanction is far from unanimous and has been adopted after an 9-hour-long debate among the CGPJ’s 21 members, since the liberal minority was against sanctioning the judge for having written a draft Constitution for an independent Catalonia. However, the conservative majority considered Vidal to have committed a grave mistake regarding his duty to respect the Spanish Constitution. Vidal has been arguing over the past few weeks that such a draft was written in his free time and is part of his freedom of expression and ideology. In addition, he defended himself by saying that when working as a judge, he has always followed the current Constitution and legal framework. After hearing the CGPJ’s decision, Vidal stated that the decision is “political” because he is “hostile to the regime”, “an expression from 40 years ago that I thought I would not hear in democracy”.

Barcelona High Court judge Santiago Vidal, along with a team of other law experts, has presented a proposal for a future Catalan Constitution in the event of independence with the aim to steer debate. The draft includes 97 articles according to which Catalonia would become a parliamentary republic with no army. However, this proposal can be changed as a webpage has been created through which citizens can table amendments online. Along with this draft, two other constitution projects have been presented: ‘constitucio.cat’ created by a team of Catalan law experts living abroad, and another constitution draft presented by ‘Lawyers for independence’ from the National Assembly of Catalonia (ANC). Spain’s Judicial Power Council (CGPJ) has called for the expulsion of Santiago Vidal from the Judiciary for his pro-independence initiatives.

Spain’s Director of the Public Prosecution Office, Eduardo Torres-Dulce, has announced his resignation “for personal reasons”. However, it is well-known that Torres-Dulce has had several arguments with the Spanish Government, run by the People’s Party (PP) and chaired by Mariano Rajoy. The latest argument was about prosecuting the Catalan President and other members of the Catalan Government for the symbolic vote on independence held on 9 November. Several PP members announced the penal actions before Torres-Dulce had given the instruction to press charges. At that time, Torres-Dulce denied having been pressured by the Spanish Government, but many voices criticised the absence of a separation of powers. On top of this, the main public prosecutors in Catalonia initially rejected the criminal complaint, but Torres-Dulce – appointed by the Spanish Government – obliged them to file it. Furthermore, he has also had many arguments with the PP on account of the numerous corruption scandals being investigated.

The citizen participation process on independence has kicked off at 9am on November 9 despite the temporary suspension of the Constitutional Court. Finally, the 1,317 voting centres hosting 6,695 polling stations have opened their doors without major incidents, as has been confirmed by the Catalan Government. Long queues of voters were waiting to cast their ballot in a festive atmosphere from early morning. The vote is being run by 40,930 volunteers, but the Catalan Executive is actively behind the process. During the day it will offer turnout figures and it should announce the results on Monday. The ballot boxes are located in high-schools run by the Catalan Government or in municipal centres in small towns and villages. A delegation of international observers is monitoring the process. Several Spanish nationalist parties and organisations have filed judicial complaints asking for the vote to be stopped and members of the Catalan Government to be arrested. In addition, the Public Prosecutor Office – obeying the Spanish Government –asked the Catalan Police to identify the volunteers opening the voting centres, but the Catalan Government refused to do so as they had authorised volunteers to access public venues.

The Disciplinary Commission of Spain’s Judicial Power Council (CGPJ) will have to decide whether it suspends Santiago Vidal, judge of Barcelona’s High Court, for having worked in his free time on the drafting of a proposal for a future Catalan constitution in the event of independence, together with other law experts. The CGPJ judge in charge of investigating other judges, Antonio Jesús Fonseca-Herrero, recommended Vidal’s temporary suspension for “infidelity to the Constitution” of Spain. On Friday, the Catalan judge defended his freedom of expression and argued that this activity did not affect his work as he was doing it during his free time. The CGPJ decided to investigate Vidal, despite not having done the same with judges participating in activities of the People’s Party political think tank, for instance.

The 33 judges who signed the manifesto in favour of Catalonia’s right to self-determination, stating that it “is a nation without discussion”, and therefore has “full sovereignty to decide on its own future”, have filed a complaint after photos of their personal profiles were published in a Madrid-based newspaper on Monday. The complaint was filed for revealing personal information, arguing that such pictures can only have been accessed from computers used by the Spanish Police or the Spanish Ministry of Home Affairs. Therefore, the judges have asked to open an investigation to find out who divulged such confidential information.

33 Catalan judges have signed a manifesto supporting Catalonia’s right to self-determination. The judges emphasise that such a right fits into the current constitutional framework and is in line with international law. Some of the signatories work in provincial High Courts and have been members of the body governing judicial power in Spain (CGPJ). It is the first time that Spanish State civil servants have made such a clear statement supporting the right of the Catalan people to decide freely on their collective future and their relation to Spain. Judicial power in Spain is totally centralised and has a deep centralist tradition. According to these law experts, “Catalonia is a nation”, “without discussion”, and therefore has “full sovereignty to decide on its own future”.

On the same day, the Court re-affirmed its decision to keep its current Chairman in position despite his anti-Catalan public stance and having been a member of the governing People’s Party (PP) until 2011. On top of this, Catalan and Basque Members of the European Parliament from five different parties formally asked the European Commission to intervene against the politicisation of the Spanish Constitutional Court, stressing that EU democracies should have an independent judiciary. The Constitutional Court is the highest interpreter of Spain’s legislation, has to guarantee the respect of fundamental rights and acts as a referee between the different government levels and political actors. In this capacity, it ruled against the appeal presented by the Spanish Socialist Party (PSOE) against the law that abolished the requirement to know Catalan for working as a public servant in Majorca, Minorca, Ibiza and Formentera, despite it being the local language.

The Catalan Finance Minister, Andreu Mas-Colell, sees the appeal as “a sabotage of Catalonia’s public finances” with the objective of making the deficit targets harder to reach and then greater control mechanisms can be enforced from Madrid. If the Constitutional Court accepts the Spanish Government’s appeal, the drug prescription and judicial fees approved by the Catalan Executive will be stopped. Mas-Colell explained that this would represent a loss of €140 million per year. The Spanish Executive justifies the appeal because Catalan citizens would have to pay more than those in other parts of Spain. For Mas-Colell, this justification is “sarcastic” and “populist” as it is decided by the same government that “has not increased pensions”.

Spain’s Constitutional Court has responded to an appeal from the Catalan Parliament dating from 2004. The appeal was against the Judicial Power’s last reform, approved by the Spanish Parliament, in the time of José María Aznar. Now, the Constitutional Court states that the Catalan Government only has competence over the non-judicial staff working in the justice administration, but not over the judges and other judicial staff. This means that the knowledge of Catalan language will not be a condition to work as a judge in Catalonia. Therefore Catalan citizens may not be able to use their mother tongue in their justice procedures or they will have to use interpretation services.