MADRID – In a rare unanimity, all legal associations in Spain, including the Consejo General del Poder Judicial (CGPJ), have strongly condemned the agreement between the socialist party PSOE and the Catalan party Junts.
This agreement, which suggests a review of judicial decisions in the context of ‘lawfare’, is seen as a direct attack on the independence of the judiciary and the separation of powers.
The term ‘lawfare‘ refers to the use of legal proceedings for political persecution or to destroy someone’s reputation. The term originated in the Anglo-Saxon world and is therefore, not a legal concept in Spain. Nevertheless, the agreement between the PSOE and Junts recognises the existence of ‘lawfare’. Furthermore, it emphasises the importance of recognising that in a rule of law, individuals can be targeted in court for ulterior motives.
The concept was introduced into the Spanish public debate by Podemos, rather than the Catalan separatists. This followed investigations into their alleged links with foreign countries and suspicions of irregular financing. However, now the concept is being used by separatist parties to respond to legal actions they say are unfairly targeted against them.
Alleged politicisation of the judiciary
The agreement between PSOE and Junts, which recognises the concept of ‘lawfare’, leads to accusations of politicisation of the judiciary. A phenomenon that the Spanish legal community strongly rejects. It emphasises that judges are exclusively subject to the law, as expressly stated in the Spanish Constitution. The judges criticise the agreement as a violation of their independence. Moreover, they point out that judicial decisions should not be subject to parliamentary review.
Legal experts who debunk fierce criticism
Following the opposition’s fierce reactions to the PSOE-Junts deal, with accusations that it would turn Spain into a dictatorship, other legal experts see it as greatly exaggerated. El País quotes Juan José Solozábal, professor of constitutional law, who considers these statements as “hyperboles” that do not correspond to reality. He emphasises the Spanish constitutional system, with the protection of the Constitutional Court, guarantees democracy and the rule of law.
“Criminal Code will continue to apply”
Solozábal clarifies: “The Criminal Code will continue to apply. “The amnesty is a measure of mercy that erases criminal responsibility for an action. But it does not imply the abolition of crimes.” Bosch emphasises that it affects “specific facts and specific people” and that “the Criminal Code is not being changed. Therefore, this means that this behaviour would not be covered by the amnesty in the future. The law only works on the past.” When asked whether Article 155 of the Constitution could be reapplied if necessary, both lawyers said yes.
Ximo Bosch, member of the Asociación Juezas y Jueces para la Democracia, and Mariola Urrea, doctor of law, agree that the negotiated measures fall within the bounds of the rule of law. They criticise the opposition’s use of violent statements and foul language. They would sow fear among citizens.
Finally, these magistrates find it unusual for members of the Constitutional Court to criticise a law they have not read. All three magistrates argue in this context that the Constitutional Court is overstepping its bounds by interfering with the separation of powers.
PSOE’s response to growing unrest
In response to growing unrest and criticism from the legal community, the PSOE has stressed that parliament will not review judicial decisions or monitor judges, as stipulated in the agreement.
