Big names in the world of Justice have been warning for some time about its deterioration. For Perfecto Andrés Ibáñez, former judge of the Supreme Court, the General Council of the Judiciary (CGPJ) “exhibits since its first formation the stigma of partisan political-instrumental manipulation” and is “an instance that has been living for more than six lustrums in a serious crisis of legitimacy.” In 2015, Francisco Rubio Llorente, former member of the Constitutional Court and former president of the Council of State warned, regarding a reform, that the “Popular Party would throw a political burden on the Constitutional Court that would end up crushing it,” and he showed “mourning” for those who wanted to “free it from the sad fate of the Court of Constitutional Guarantees of the Second Republic, whose destruction contributed not a little to that of this one.”
Government and PP bring positions closer for the renewal of the Judiciary after nearly three years of deadlock
Now one of the most prestigious prosecutors in Spain has denounced the drift of “seeming to be witnessing a succession of coordinated actions […] that seek to achieve, based on blockades and sentences, what the ballot boxes have not given them”. This is the prosecutor Carlos Castresana, a great connoisseur of the judicial world due to his experience in different positions in the Public Prosecutor’s Office (Anti-Corruption, Supreme Court, Court of Auditors, etc.). Castresana was the author of the accusations that led to the prosecution of drug trafficker Laureano Oubiña, Jesús Gil, former Italian president Silvio Berlusconi and Chilean dictator Augusto Pinochet, which earned him being appointed Commissioner against Impunity in Guatemala by the UN and, recently, becoming a finalist in the election of prosecutor of the International Criminal Court. With several honorary doctorates to his credit and decorated with the Legion of Honor of the French Republic in recognition of his merits “in favor of justice and the rule of law”, Carlos Castresana receives elDiario.es to discuss the state of Justice.
Recently, you have written that in order to understand Justice in Spain one has to address “the never corrected origin of a career that tiptoed through the Transition”. What are you referring to?
Basically, in all transitions, as established by the instruments of transitional justice, a series of conditions must be met in order to transform an authoritarian state into a democratic state governed by the rule of law. In the first place, there must be representatives elected in reasonably transparent electoral processes. Second, the rulers, the governed, and the state apparatus must submit to the principle of legality. This elementary rule has not been sufficiently complied with. Neither the people, nor the structures, nor the institutions have changed. A democratic culture was not imposed, and these people, who came from serving for four decades in a dictatorship, continued doing what they had been doing: showing themselves to be strong with the weak and weak with the powerful.
This makes me think of the magistrate of the Criminal Division of the Supreme Court, Luis Vivas Marzal, a former Blue Division combatant, who boasted of having “served with enthusiasm” the Franco regime and retired with full honours in 1987.
There was no renewal: no one was removed or vetoed. The same people who had been magistrates and prosecutors in the Tribunal of Public Order passed in 1977, without any transition, by a decree of the Suárez government, to be magistrates and prosecutors in the newly created National Court. At the time, this measure was seen as positive because terrorism trials were taken out of military jurisdiction and transferred to this new special jurisdiction of the National Court. The manifestly anti-democratic profile of some people who should have been retired was not questioned, as was done, for example, with the military.
How long is the shadow of this original sin?
The rule to prosper in the judicial and prosecutorial career of the Franco regime was never to oppose the power, always to bow to the decisions that came from above, and that rule continued to be applied afterwards. Without a renewal of people and legal culture, we find ourselves with decisions that are not surprising.
The victims of Francoism. The norms in force in international law, ratified by Spain during the Transition, were deliberately ignored.
The people who have to apply these Spanish and international norms lack the democratic sensitivity and the notion of public service that would be indispensable to occupy a position of a certain responsibility. I am not referring to a village judge but, for example, to the magistrates of the Constitutional Court (TC). If one digs a little into the personal background of those who were elected magistrates of the Constitutional Court, except for excellent exceptions such as Tomás y Valiente or María Emilia Casas, it is a succession of magistrates who did not have the scientific or technical level to get there and who, above all, lacked the independence and democratic culture that would have been indispensable to put the entire State apparatus at the service of the citizens, which is what happens in a democracy and does not happen in an authoritarian regime.
In the 1990s and 2000s you worked as an anti-corruption prosecutor in several of the most important cases of that time. You maintain that “in the few but important cases in which major political or economic interests are involved, the judiciary continues to show a worrying lack of independence and corporatism”.
Some of the most important jurisprudential twists and turns have names that can be identified with the Ibex 35. It is a symptom and you have to know how to interpret it. It is no coincidence that the change in the doctrine of abbreviated proceedings and the exercise of the popular action is called the ‘Botín doctrine’, the change in the interpretation of the statute of limitations in the Supreme Court is the Alierta case, and the same change in the TC is known as the ‘Albertos’ case; it is a constant. I am not talking about corruption. I do not believe that these magistrates had been bribed, but that the democratic legal culture has not sufficiently permeated, and that these magistrates are part of that inheritance that leads them to not be rigorous with those powerful people we all know. The other enormous problem in criminal proceedings is that of equality of arms, which is preached so that the defence has the same possibilities as the prosecution. In Spain it is often the other way around: the defence has many more resources than the prosecution, and prosecutors usually go into these macro-proceedings like Don Quixote against the windmills.
Can you give us a concrete example?
I found myself in the Jesús Gil case before the Malaga Court alone against fourteen defendants defended by the fourteen most important law firms in Spain.The consequence was that the defence’s capacity to manage the process was infinitely superior to that of the prosecutor. There is a disproportion of forces. We have seen it now in all the important cases that come before the Audiencia Nacional, cases of corruption or economic misuse of power. There is an ostensible imbalance between the prosecutors’ and the defence’s capacity to act in court. Always like David against Goliath. Society is defenceless because those who represent its interests before the courts have much less capacity for articulation than those who are accused of having violated those interests.
The democratic legal culture has not sufficiently permeated. There are magistrates who are part of this inheritance that leads them not to be rigorous with those powerful people we all know.
Is there an institutional blockade by the opposition?
It is, once again, a policy that suffers from a lack of democratic culture. I don’t see any difficulty in the system of parliamentary election of the members of the CGPJ, it is a system of guarantees, especially if the judges are elected from a previous selection of the representatives of the career. The magistrates of the German Constitutional Court and those of the US Supreme Court are elected through parliamentary bodies, and that does not pose any difficulty. The problem in Spain is that the Congress and the Senate have not been up to the task, they have not made a truly objective selection of the best candidates on the basis of their professional merits and their proven independence, which I believe to be the essential conditions. The problem is not, therefore, how they are chosen, but who is chosen. I believe that the current deadlock is not caused by the election system. It seems to me to be a pretext.
Why is that?
It is because the opposition does not want to renew these bodies because it prefers to maintain the transmission belt between the political and the jurisdictional – which should not exist, but is a reality – as it does not have the political majority it enjoyed a few years ago, when these bodies were elected. This is a pretext, I insist, because the election system is not the problem. A procedure can be devised to ensure that the best people are elected under this system or another; that is what is important. However, in all fairness, I believe that this is not just a problem for the opposition: almost nobody is interested in getting the best people, only the most loyal or the most like-minded.
The professor of Constitutional Law Joan Ridao agrees and reminded us that “Justice is a power of the State, not a guild; it is the parliamentary majorities, which have direct legitimacy, who must electhe Judiciary”.
Corporate elections are only legitimate within the corporation itself. It is normal that lawyers elect the representatives of the bar associations and that these elect the General Council of Lawyers, but in few places we have seen in the public bodies corporate elections; that corresponds rather to ideologies in line with the Italian fascism, with the elections of the Procurators in the Francoist Courts. It would make no sense, and no one sensible is proposing, that the director of the Tax Agency should be elected by the tax inspectors, or that the director general of the Registries should be elected by the notaries and registrars. I do not know why the Judiciary should be elected by judges.
Hardly anyone is interested in having the best people in the judiciary, but only the most loyal or the most like-minded ones.
What the Judiciary does not fail to do is to deny protection to judges when they fight the illegality of political or economic power. When the magistrate Marino Barbero investigated the Filesa case, the former president of the Junta de Extremadura, Juan Carlos Rodríguez Ibarra, accused him of intervening in politics without standing for election, “just like ETA, which wants to participate in political life by planting bombs”. It has also happened recently to the magistrate José Ricardo de Prada regarding the corruption of Mariano Rajoy’s PP.
That is where, unfortunately, the CGPJ has no effective presence. Beyond administrative formalities, which could perfectly well be dealt with by the Ministry of Justice, the Judiciary should be the body that watches over the independence of judges. And when there have been serious crises of judicial independence, in cases involving political or economic power, the Council has been conspicuous by its absence. It is not fulfilling that function. The only Council that worked reasonably well was the first one, because it still maintained the spirit of consensus of the Transition. From 1985 onwards it has been getting worse, until today.
Five years ago Perfecto Andrés Ibáñez, former emeritus judge of the Supreme Court, told me that the problem of the CGPJ “has no solution”. Do you share his pessimism?
Yes, I am not optimistic. I fear that people will continue to arrive who are not suitable. The first Councils had distinguished jurists; not all of them, but enough to represent a certain change in democratic quality. Afterwards, the alignment of the members with the parties that had proposed them has been increasingly predominant. The debates in Congress and in the Senate to elect these members were scandalous, if we compare them with the same process of the first Councils.Or in the USA, which is not a perfect system either, but in which each candidate for the Supreme Court spends two or three days from morning to night, answering all the questions imaginable from the congressmen of the two big parties about his professional and private life; and here it is a five-minute procedure. If the Council has even had members with criminal records! How did they manage to get there?
Finally, I would like to address the legitimacy of the Constitutional Court.
The Constitutional Court, as a Court of constitutional guarantees, should not have any executive power but only a declaratory function. The Court declares what is or is not in accordance with the Constitution, and then it is the powers of the State that have to apply the material consequences of what it has declared. The first serious dysfunction occurred on the occasion of the procés. They gave the TC the function of prior control of constitutionality with the capacity to suspend the appealed acts. This threw the Court into the day-to-day political arena, and it has left a good part of its skin in the back-and-forth with the Generalitat of Catalonia. This would not be essential either, however, if the democratic background, quality and commitment of those elected allowed them to administer these powers with common sense. Unfortunately this has not been the case.
That is to say?
The best have not arrived, and those who have arrived have done so with a partisan political affiliation; not only ideological – because you can be conservative or progressive or whatever, as long as you have a conscience of the State. However, with a party card in their mouths, they make politics, and that is not what is expected of the TC.
The Constitutional Court began with distinguished jurists: García Pelayo, Tomás y Valiente or Rubio Llorente, but it has been degraded over time.
The Constitutional Court has made an enormous contribution. In the 1980s and 1990s it built the State from a democratic and constitutional point of view, that is, it gave content to fundamental rights and all the institutions from a democratic perspective, interpreting the organic laws, and I think it did this reasonably well. However, there are still some unresolved issues such as that of the victims of Francoism, for example, where a taboo of impunity has been consolidated since the Transition that seems immovable, and in this area there has not been a single step that we can consider positive. I do not understand how in four decades the TC has not been able to establish in the interpretation of our fundamental rights a bridge of constitutionality between 1931 and 1978, because the main guarantees were already in the Constitution of the Republic, and were never validly repealed. How could they not have known how to make a constitutional interpretation of the 1977 Amnesty Law? Rather, they have not wanted to. That said, the Constitutional Court has deteriorated beyond sight. I don’t think anyone can deny it, because unfortunately it has become a transmission belt of the parties and the debates of the court, which should express the maximum of constitutional guarantees, have become the ordinary debates of any commission in Congress.
The judges of the Constitutional Court play politics with their party cards in their mouths. That is not what is expected of this court.
During the interview he insisted on the lack of democratic culture.
Yes, we need to change the democratic attitude of the people who embody the institutions and from there, at least, they should open their ears. The democratic culture that we enjoy comes fundamentally from having joined the European Union and from having ratified the Convention on Human Rights and the entire legal system of the Council of Europe. In other words, the rule of law comes to us from Strasbourg and Brussels, but it is not born in Madrid, as it should be.