The dark side of Spain’s Supreme Court

‘It’s a clear violation of civil rights and something must be done. They can’t just sit back and do nothing in the face of such injustice’. These were Lluís Mestres’ thoughts in autumn 2017, leading him and a group of colleagues to take action following the imprisonment of political prisoners and the exile of a part of the Catalan government.

They decided to set up Associació Atenes [Athens Association] as a conscious decision to make a contribution to the legal fight against Spain’s crackdown. They paid particular attention to Spain’s judicial leadership, to the corrupt practices which had been going on for many years, culminating in the vindictive measures taken against independence supporters. The entity has acted discreetly in coordination with the individuals concerned and their defence teams, in order to help without getting in the way.

As a result of their efforts, they have lodged two legal complaints. The first was in reference to the report issued by GRECCO, the Council of Europe’s anti-corruption monitoring body, which criticised Spain for the lack of judicial independence in the appointment of judges. The complaint was against all twenty members of Spain’s General Council of the Judiciary (GCJ) for having broken the rules concerning the appointment of judges, thus committing an ongoing administrative violation. They listed seven instances of the appointment of judges with ties to the Partido Popular (PP). The Associació subsequently added to the complaint following the appointment of Carmen Lamela to the Second Chamber of the Supreme Court (SC) and, an even more blatant case, the preferential treatment given to Sofía Marchena, the daughter of the president of the court which is to hear the case against the political prisoners.

The second complaint was made against the Constitutional Court and members of the Rajoy government for having violated Carles Puigdemont’s political rights and for preventing him from being voted president a year ago.

Having painstakingly combed through the actions and decisions of the Supreme Court judges throughout this eventful year of legal action against the independence movement, the Associació Atenes is clear as to the key points which discredit the prosecution’s case and some of the scandals which prove the Spanish judicial system does not operate in a normal manner. Lluís Mestres explains the situation in ten points.

1. A trial full of irregularities and lacking a legal basis
This is a trial that has no legal basis. Of course, they made an attempt to try to respect the proper legal safeguards as soon as the case reached the Supreme Court. However, right from the start it was a disaster. They violated the most basic rights due to any defence. You can’t inform someone who lives in Barcelona that the next day they have to be in Madrid and appear before the National Court when it’s a bank holiday, ​​giving them less than twenty-four hours to study the charges brought against them. This is a serious breach of protocol. But once the process was underway, although there were certain instances in which they didn’t follow the correct procedures to the letter, one can see that the Supreme made an attempt to adhere to the procedural guarantees so that no one could accuse them of ignoring them. But ultimately it’s window-dressing. The whole case is totally illegal, since they’re presiding over a case in the full knowledge that no crime has been committed. It’s that serious. I can’t believe a Supreme Court judge can say there’s evidence that a crime has been committed. No lawyer with a modicum of dignity would say that the case is based on actual crimes.

2. The Supreme’s strategy is to hear the case even though it does not fall within its jurisdiction
It appears as if the court feels there’s a national interest in them doing so. And they’ve invented a legal excuse by arguing that, since the events in question affect Spain as a whole, they will hear the case as they are highest-ranking court in the land: the Supreme Court. This is an argument seriously lacking a legal basis. Some of the defendants in this unique trial have only been charged with disobedience. And obviously the highest court in the land can’t hear a case of disobedience. So in order to ensure the outcome isn’t challenged, these defendants are being sent to the High Court of Justice of Catalonia (HCJC). But it’s basically a tactical move; the Supreme’s decision isn’t grounded on legal criteria, it’s due to strategic reasons and self-interest. They’re interested in being able to get the case over as quickly as possible and making the actual trial as short as possible. Sending a few of the defendants to the HCJC with the excuse of disobedience, the Supreme Court saves itself from putting them on trial, thus only needing to sit twelve individuals in the dock. It’s an opportunistic decision rather than a legal one. It’s a decision taken by someone who is making a political calculation. They are dealing with the case based on political criteria. Which is why the defendants and their defence teams feel justified in saying that it’s a political trial and that they must defend themselves politically. Legally speaking there is no case to answer since no crime has been committed. And to all this we have to add the fact that there’s a huge disadvantage in the Supreme’s rulings, in that there isn’t a higher judicial authority to whom one can appeal.

3. A speedy, no holds barred attempt to punish the independence movement
Even if the authority of the Supreme Court judges were completely isolated from the executive branch, they would still act in the exact same way. They don’t need to be influenced by anybody; they already act on their own initiative. There is no need for a phone call from Soraya [Soraya Sáenz de Santamaría, the former Deputy PM of Spain] (who did in fact call several times). They already act autonomously with the intention of defending the State. This is their function. The composition of the court and its instructions are suited to what it does. And I’m convinced that at times there have been moments of strong disagreements between the government and the Spanish Supreme Court, especially now that the PSOE is in power. I think that the PSOE doesn’t want anything to do with this trial, or at least wants to prolong it as long as possible so it doesn’t take place before the upcoming local elections. However, the Supreme has chosen a path and it’s going to stick to it. Right now I don’t think the current administration has the same connection with the SC as Rajoy’s government, and there’s even certain disagreements. But the Supreme has its own way of working, and presently they’re convinced that they’re the guardians of the state.

4. The unorthodox appointment of Llarena as the investigating magistrate
When Llarena was appointed to the criminal chamber of the Supreme Court, there were twelve judges. When a judge is appointed to preside over a special case such as the 1-O trial, it is important to realise that certain judges can’t hear the case because they were part of the chamber which initially admitted the case; Likewise, those who are already involved in special trials or are members of another chamber are ruled out. In total, seven judges were unable to preside over the trial. This left five judges who were eligible. Trials are always assigned based on seniority; Llarena was the most junior member of the court, the last on the list. But, for a reason unknown to us, none of the four judges before Llarena took the case. And there’s no shadow of a doubt that Llarena was specifically chosen to hear the trial. But that doesn’t mean that we have definitive proof, because we’ve tried to gain access to the Supreme’s internal documents to find out how it was decided that Llarena was to hear the case rather than the other four, but they wouldn’t let us see it. They kept on referring us to the rules regarding the access to information, which we’re already well aware of. We don’t have access to the decision itself. We believe that Carlos Lesmes found him the easiest to control. If other judges like Colmenero or Del Moral were in charge, with their many years’ experience and with their own criteria and thanks to being more senior than Marchena or Lesmes, they wouldn’t be so easy to control. With Llarena, on the other hand, there’s a friendly relationship there, but also he’s easier to control. The idea behind having Llarena take the case was for everyone else to be in the background controlling the trial.

5. Marchena’s hand controlling everything
According to judges who know the inner workings of the Supreme, many decisions are made over a coffee. It’s hard to imagine an investigating judge of a special trial such as this one not discussing their decisions with their colleagues. I’m almost certain that Llarena talked about a lot of his decisions with his colleagues and that many decisions were taken over coffee, drinks or a cigar. And I understand that Llarena wanted to make sure that, in the event of any appeals, he could be sure that it would be handled with his typical firmness. Since everything happens in the same chamber, it’s easy to discuss everything with one’s colleagues. There are only twelve of them. Marchena couldn’t interfere, but I’m sure that Llarena didn’t take his decisions alone. Meanwhile, Marchena’s resignation to preside over the GCJ was a manoeuvre designed to keep him in control of the 1-O trial. The PP’s political strategy, revealed in the scandal over Cosidó’s [the PP’s spokesman in the Senate] leaked WhatsApp message, was clearly carefully thought out in order not to remove Marchena from the chamber. And this is one of the problems with the Supreme Court: if everything takes place in the same chamber, if everything is concentrated in the Second Chamber, it’s very difficult to separate the investigation from the actual trial, and I’m certain that Marchena and the other members of the court knew all about Llarena’s investigation and they’ve discussed it.

6. Ultra-conservative judges
Marchena has a tarnished reputation and his impartiality has been called into question. He’s had problems in the Supreme and his professional life that prove he’s directly affected by this case. Quite frankly, he ought to step aside. But, honestly, the chamber as a whole should say it’s unable to try this case and they ought to send it back to Catalonia. In fact, there shouldn’t have been a trial in the first place. And all the judges have a very similar profile in terms of their way of thinking and the attitude they will have during the trial. They’ll try to scrupulously respect the procedural norms, but the decision has already been taken. And it’s a collective decision. I can only imagine that the decision to do things in a particular way was taken by a small group of individuals. Every time the defence teams have lodged an appeal against the investigation which has been dealt with by the appeals court within the same chamber in the Supreme, it’s ended up taking a tougher line than the investigating judge. When we were convinced that the investigating judge, Pablo Llarena, had committed a series of irregularities or made statements that were out of line, the appeals court backed him up and defended him. The judges are all hard-line conservatives, some are ultra-conservative, highly influenced by the Opus Dei. As far as I can see, these people aren’t in the Supreme because they are the best jurists in the country, but because they have the closest affinity to those in power and they can be trusted to uphold the unity of the state.

7. A structure created and designed by Federico Trillo
The way to approach the judicial process, when it began in the fall of 2017, was shared by the whole of the Supreme Court, the public prosecutor and the Spanish government headed by Rajoy and Sáenz de Santamaría. They were all in agreement, following the manual written by Federico Trillo, the mastermind of the current judicial structure. The system for deciding judicial appointments and placing sympathetic individuals in the various chambers to hear special corruption cases or those involving politicians, as in the current case, is Trillo’s brainchild. When the PP decides there is a need to defend the state and put the judicial machinery in motion, the system runs as smooth as silk, everything is perfectly coordinated, having been prepared to act in situations exactly like this one. It’s obvious that politically the PP and the Supreme are in complete harmony. The whole thing went like clockwork. Thanks to the structure designed by minister Trillo, individuals with the conservative profile which they were looking for could be appointed to the highest positions within the Spanish justice system. The centre of power is located at the GCJ. Whoever controls it also controls the justice system. As a result, the key aspect was to change the way judges are appointed, replacing what, in principle, according to law, ought to be based on merit and experience. However, an analysis of those who have been appointed shows that it was less to do with merit and experience and more to do with their close ties to the PP.

The GCJ appoints everyone from the president of the Supreme Court to the presidents of the provincial courts across Spain. The GCJ controls the whole system. If there’s a short-list for a specific position, it’s the GCJ who decides who will fill it by examining their merits and qualifications. But of course, seeing how the Second Chamber has had three vacancies, how they fill them, and who they appoint…

8. The Concepción Espejel scandal
Concepción Espejel’s is a classic case of political meddling in the appointment of senior officials to the Spanish judiciary. She was a member of the criminal chamber of the Spanish Court and when the first trial as part of the Gürtel case [one of the largest corruption scandals in recent Spanish history, involving senior members of the PP] came up, her colleagues informed her that she would be unable to take the case since she’s a close friend of María Dolores de Cospedal. As a result, she turned down the case before they could recuse her. But it occurred to the PP at that precise moment that the criminal chamber needed a president. They created the position and Concepción Espejel was duly appointed to fill it. As a result, she went from being a peer of judges who had informed her she was unfit to hear the case, to being their president and, therefore, to having control over the chamber. The PP sought this particular solution as a means of not losing control of the situation.

9. The Sofia Marchena scandal
Marchena studied to become a judge and she’s ended up being a prosecutor, when this isn’t possible, since they’re two distinct career paths and separation is essential. Her career began at a school where Gema Espinosa, Llarena’s wife, was the director. Marchena became ill and dropped out halfway through. When she came back she wasn’t able to apply for the position she wanted, so instead of starting all over, she was aided by someone in obtaining another position: quite simply, Gema Espinosa wrote a letter saying that Sofía Marchena had the skills and abilities required to sit the exam to become a prosecutor, a position which was still open. However, there were vacancies for thirty-five positions which had already been filled. Marchena wasn’t eligible based on her exam results. So they created a thirty-sixth position, changing the requirements so that Sofia Marchena’s results were good enough. In addition, we had to lodge a third complaint against the prosecutor, Luis Navajas, who is the one who challenges all our activities and does everything he’s supposed to do as a prosecutor in the Second Chamber.

10. The prosecutor Navajas scandal
In the case of Sofía Marchena, he responded that there was no reason to investigate it and finally stated that they had contacted the individual who was offered the thirty-sixth post as prosecutor and that they had turned it down. We have this in writing. It turns out that five hundred people had been preparing for years and they were more suited to the post than Sofía Marchena. And it just so happens that the person initially selected turned it down after receiving a phone call from the chief prosecutor. The prosecutor has the cheek to put this all in writing. It’s not his job to make any phone calls. Obviously, we filed a complaint against this prosecutor with anti-corruption. There are two possibilities: that whoever was assigned to the thirty-sixth post was tired, they didn’t want to be a prosecutor, they were a friend of Marchena and politely declined the post or they were paid to do so. Either way, corruption was involved.