I remember that, when Judge Llarena processed in March 2018 for rebellion the defendants of the you process, I was so stunned that I called a professor of Criminal Law. The first thing he told me was that it seemed to him that, although it couldn’t be said, Llarena was prevaricating. It seemed to me that he was exaggerating, but then I turned to the Penal Code, which describes the “Rebellion” type in its articles 472 to 484. Read them, it is worth it to see to what extent the professor’s suspicions were justified. There they speak of rising “violently and publicly”, of “troops or any other kind of armed force”, of “the military man who, knowing that it is a matter of committing a crime of rebellion, does not denounce it immediately”, that “An intimation will not be necessary from the moment the rebels break fire.” What the crime of rebellion in the Penal Code describes is a classic military coup, in which a group of uniformed men take power by force. Whatever had happened in Catalonia did not enter the criminal category by any means. Legally it was untenable … but there was a whole Supreme Court judge declaring in a car that he saw rebellion.
He was not the only one. A good part of the right and certain sectors of the PSOE had been insisting on the “Coup d’état” for months. But one thing is the political brawl, whose objective is to persuade – when not to inflame – and the legal perspective is quite another, which must abide by the criminal type described in the law. The crime “Coup d’etat” does not appear in the penal code. What appears is “rebellion”, and, if a judge could see “rebellion” in the events of October 2017, then legal security disappeared at a stroke, because it meant that the written letter of the law was so lax that in the In fact, the entire structure of the rule of law was being left in the hands of the particular interpretive idiosyncrasy of the judges. Or, what is the same, the rule of law was being dismantled, which is based on the assumption that words have their own meaning, a meaning around which a society can agree on certain minimums.
Let us recall the Cifuentes case, which can be said to be the opposite model, as a guarantor, with respect to the destruction of the presumption of innocence. The provincial court saw proven that a teacher falsified the record (she was sentenced to a year and a half in prison) and that a Cifuentes advisor was the one who pressured her to do so (three years in prison). But it did not consider proven that Cifuentes herself – who was the only person on planet Earth likely to benefit from such a forgery, and the direct boss of the advisor – had ordered the crime. It is the opposite case to that of Llarena. Cifuentes is shielded the presumption of innocence to extremes that make the behavior of the people who are sentenced absurd (what would they want, own motive, falsify a record?) and therefore make the acts that are condemned illogical. The defendants of the procés, on the contrary, are built with arguments by the hair a whole crime of which it is necessary that they be guilty. In one case, all available legal resources are used so as not to destroy the presumption of innocence, in the other an assumption of forced guilt is built. At least three questions are of interest here.
The first is that of the legal guarantees of the rule of law. What happens if a judge prevaricates or, without going so far, goes to an interpretation that damages the rights of the accused? The answer is obvious: it recurs. There are other higher instances that you can go to. This ladder of resources is a kind of division of powers internal to the judiciary. Judges and courts that control each other. The problem is that Llarena was already at the top of that ladder and it was uncontrollable by a higher authority in Spain. That is why what has happened in Europe with all the judicial decisions in this regard is so significant. There has not been a single judge in the European Union who has endorsed a single of the decisions of his Spanish colleagues, quite the contrary. Not a miserable Euro order, nothing. Neither Belgium, nor Germany, nor any country on the continent in which something related to the judgment of the procés has been judicially resolved has understood what was done here. The European rule of law has spoken, and it has done so in an incontestable way. But here, in court, like who hears rain …
The second refers to the classical understanding of the division of powers, which is established between the powers of the state. The mechanisms to reinforce it consist of decoupling the election and execution of judges with respect to the other two powers. That is what they are freed from, that is what is proceeded to “divide”: some powers with respect to others. The problem arises when the element that manipulates the judge is not another power, but its own ideology, its own sense of what to do. In these cases, no external pressure is necessary: it is oneself who cannot separate from – or “divide against” – his own conscience. It has been much insisted that Spain is a full democracy, and that all democracy indexes place us in the first places. And of course that is the case, but perhaps those indices are not designed to measure the judicial problem that arose here with the procés. Here something else happened.
And that brings us to the last thought. Did Llarena Prevaricate? No, of course: everything is much more complex. The Penal Code, when it defines prevarication, is expressed as follows: “the judge or magistrate who, knowingly, will issue a sentence or resolution unfair… “. It’s funny because, in a sense, what happened was probably the opposite. Not that Llarena knew that his indictment for rebellion was unfair. It is reasonable to assume that what he assumed was rather not just that it was fair, but also that it was the only way to do justice to politicians who, according to he himself saw fit to make it clearThey had committed something perfectly comparable to the Tejero coup. If he believed – politically or morally, so to speak – that the Catalan events represented a coup d’état that could break Spain and cause a tragedy, and if, at the same time, the Penal Code did not have any clear type in which to fit those facts … was it fair that, as they said at the time, they were “out of hand”? What Llarena, and later the entire Supreme Court, came to do is probably dictate what they considered fair, that is: just the opposite of prevaricating. The problem is that, in doing so, they blew up the legal basis on which the rule of law is built. There was no other Spanish higher court that could fix this incursion of justice on legal matters … until Europe arrived.
Meanwhile, and on a purely political level, in these three years after the ruling, the independence movement has grown in Catalonia. Not only that: the most powerful reason that, from a strictly democratic point of view, was alleged from the non-independence side – namely: that the independent Catalans were a majority in seats, but a minority in votes – has disappeared. And some still oppose pardons. If they really understood the meaning of the word “nation” – which is always a spontaneous and unfettered feeling of belonging, never obedience or “loyalty” to a covenant – they would clap their ears. That breva will not fall.