Suspension of judge who wrote draft of Catalan Constitution proceeds

Catalonia’s Supreme Court (TSJC) has refused the appeal presented by Catalan judge Santiago Vidal in order to repeal Spain’s Judicial Power Council (CGPJ)’s decision to expel him from the judiciary for a three-year period. 21 magistrates voted in favour of the sanction since they considered that Vidal committed ‘a very grave offence’ by writing a draft of a theoretical Catalan Constitution and that he ‘inexcusably failed to fulfil his judicial duties’. On the other hand, 11 magistrates voted against the suspension. Vidal, who is currently a senator for left wing pro-independence ERC in the Spanish High Chamber, considered the CGPJ decision to respond to ‘political and ideological criteria’ and noted that the judge who promoted the sanction, Antonio Fonseca-Herrero, missed the deadline when presenting the initiative in February 2015.

Thus, Catalonia’s Supreme Court has confirmed the sanction adopted by Spain’s Judicial Power Council (CGPJ), which is the judiciary’s top authority, in February 2015. However, the decision wasn’t unanimous; 21 magistrates rejected Vidal’s appeal and therefore backed the CGPJ decision. They consideredVidal to have committed ‘a very grave offence’ and ‘inexcusably failed to fulfil his judicial duties’. However, 11 magistrates expressed their disconformity with the sanction. Furthermore, they announced theirwish to make publicthe individual votes of each magistrate. Catalonia’s Supreme Court had been discussing the question for months before giving its verdict.

Vidal has already made clear that if Catalonia’s Supreme Court rejected his appeal he would bring the case to the European Court of Human Rights (ECHR).

A ‘political decision’
Vidal decided to present an appeal against the CGPJ’s sanction, announced in February last year, arguing that the decision ‘responded to political and ideological criteria’ rather than to ‘legal arguments’. Indeed, the draft written by Vidal was not supposed to replace any Constitution or be directly adopted if Catalonia became independent, rather its objective was to steer debate by putting on the table specific constitutional articles. However, the conservative majority considered Vidal to have committed a grave mistake with this activity regarding his duty to respect the Spanish Constitution and the diffusion he has been making of it, participating in press conferences and round table discussions.

Vidal argued that such a draft was written in his free time and the same goes for his participation in public events to talk about it. Furthermore, he is a judge but also a citizen who has freedom of expression and freedom of ideology, and these activities are an exercise in such freedoms. In addition, he defended himself by saying that when working as a judge, he has always followed the current Constitution and legal framework.

A sanction which divided the CGPJ
The CGPJ’s plenary approved Vidal’s sanction with 12 votes in favour and 9 votes against. After the 20 regular members had voted and there were 11 votes in favour and 9 against, the head of the CGPJ – who is also the President of the Supreme Court – Carlos Lesmes voted in favour of sanctioning Vidal. Members of the CGPJ are directly appointed by the Spanish Parliament, which is currently controlled by the conservative and Spanish nationalist People’s Party (PP). All 11 members that voted in favour of the sanction had been appointed by the PP.

The liberal minority voting against the sanction, which has been appointed by a wide representation of political parties, added amendments to the final resolution criticising the decision. Proof of the lack of consensus within the top body that governs Spain’s judiciary: the 9 hours it took the CGPJ members to debate Vidal’s case, after weeks of surrounding public controversy.