Something’s Rotten in the State of Spain

April 12, 2011
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A news item buried  in yesterday’s edition of the Spanish e-paper El Plural called attention to a little-known case pending in Spain’s Constitutional Court, whose outcome could have definitive repercussions on two of Garzón’s three cases.

There is an anomalous figure in Spanish law known as “acusación popular”, which allows unharmed citizens to press charges, not on behalf of themselves as individuals, but rather on behalf of the commonwealth, or the rule of law.  In normal circumstances, where there is a healthy and apolitical judicial system, those accusations, if they are well grounded, would be endorsed by the country’s Ministry of Justice and its prosecutors, who are charged, precisely, with upholding the rule of law.

Well, as we’ve learned over the last few years,  there’s little normal–and a lot of unhealthiness–in Spain’s judicial system.  In all  three cases brought against Garzón, the government prosecutors see no signs of wrongdoing and oppose prosecution. In motion after motion they have petitioned for the dismissal of the three cases.  In two of the cases, moreover–the investigation of Francoist crimes against humanity, and the so-called Banco Santander case–the only party doing the accusing are “popular accusers” –i.e., unharmed, third parties, with “no dog in the fight.”  Although in normal circumstances, the identity and attributes of an accuser should have no bearing on the evaluation of the soundness of the accusation, in the upside-down world of Spain’s judicial system today, it is interesting to note that the original accusers in the two cases are Falange (heirs of the Spanish fascist party), Manos Limpias (a fringe right-wing pseudo-union), and two lawyers who seem to have made the harassment of Garzón and the Banco Santander into a full-time job.

As the article in El Plural explains, there is currently a case before Spain’s Constitutional Court, which will decide the following question:  If the sole accusers in a case are “popular accusers”–i.e., if the government prosecutors do not endorse the charges formulated by the “acusación popular”–can the trial proceed?  There are contradictory precedents in the Supreme Court.  In one case (oddly enough, against the President of the Banco Santander, Emilio Botín), the Supreme Court ruled that, absent the presence of other accusers (government prosecutors and/or injured parties –known as “acusación particular”), a trial can not move forward.  This is known as the Botín Doctrine, and it was subscribed by, among others, the Judge presiding over Garzón’s own Banco Santander Case, Manuel Marchena! In another case (against a Basque politican, Atutxa, with alleged links to ETA), the Supreme Court ruled that a trial can move forward even if the sole accuser is an unaggrieved third party (acusación popular).  This stance is known as the Atutxa Doctrine.  If the Constitutional Court comes out in support of the Botín Doctrine, two of Garzón’s cases would, by all lights, have to be dismissed immediately. If they side with the Atutxa doctrine, the two trials can go on indefinitely.

Some experts speculate that the Supreme Court will delay the two cases in question until the Constitutional Court issues a ruling on this issue.  There is a lot at stake here.  If a “popular accusation” is all that is needed for the Supreme Court to put a fellow judge on trial, what mechanism is there in place to impede the Court from using this anomaly to settle scores or to incapacitate a colleague?  Would these kinds of shenanigans be covered by the concept of “judicial independence”?  Unsettling though it may be, there is a significant body of evidence in the handling of the three cases against Garzón that points in that unseemly direction.  Like when the presiding judge in the Francoist-crimes-against-humanity case coached the popular accusers so that their formal writ of accusation could be deemed acceptable by the court.

Coincidence? Yesterday, the judge presiding over Garzón’s third trial–involving the jailhouse wiretaps Garzón ordered in his investigation of a vast corruption scandal that implicates high-ranking officials of the Partido Popular–officially opened the trial against Garzón, even though there are still some unresolved motions.  This strange haste, together with the unusual prosecutorial tone of the judge’s writ, which to many seems more like a condemnatory sentence than a neutral formulation of charges, has puzzled experts and angered Garzón and his defense team.

Here’s the rub:  The “Gurtel” wiretaps affaire is the only one of the three cases in which allegedly injured parties–the lawyers whose conversations with imprisoned clients were wiretapped–are acting as accusers.  As such, it is the only case of the three which would be unaffected by the Constitutional Court’s decision, should that court choose to side with the Botín Doctrine –a distinct possibility, though not a slam dunk.  A ruling from that court espousing the Botín Doctrine would almost certainly invalidate the charges in the other two cases against Garzón, and, as a consequence, remove the cause for Garzón’s suspension from the bench.

Except that now, the third case, has hastily been declared open, which will allow the “independent Spanish judiciary” to keep Garzón suspended indefinitely, even if the other two charges are thrown out by the ruling from the Constitutional Court.

Something is rotten in the state of Spain.

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