Article traduït per AnnA @annuskaodena
In the world of law, it’ not just the contents but also the formalities and the appearances that matter; particularly when it comes to the right to an impartial judge as the European Court of Human Rights (ECHR) has stated in countless rulings. In the current trial against the Catalan politicians, formalities are being observed but appearances have been neglected and that is reflected in several situations which fall short of being admissible under ECHR doctrine, the knowledge of which, although not the assimilation, the president of the Second Chamber, Manuel Marchena boasts of so much.
In terms of appearances, especially with regard to impartiality, the trial is heading in a direction which won’t pass the ECHR’s filter and the Supreme Court should know that already. As Elisa Beni pointed out, there are two serious new problems the Supreme Court will have to resolve in the coming days: on the one hand, the role of far-right party Vox as popular accusation and, on the other, the lack of impartiality of two of the chamber’s magistrates who, in addition to prosecuting the Catalan politicians, are also members of the Central Electoral Board.
I have always been in favour of the idea of a popular accusation but never of political parties carrying it out, because they have other ways, means and opportunities to take part in public life. In the case of Vox and in this particular trial, a series of circumstances exist which will force the Chamber to speak out but also the Central Electoral Board itself.
The call for general elections makes the trial of the Catalan independence process an unprecedented media platform for a party that, if it were not for this trial, would have no space in television or media coverage on which to base its candidacy.
Vox, a party which aspires to place the right where Franco left it, has an excellent platform on the prosecution stand to promote both its rhetoric and Ortega Smith, its secretary general, while accusing politicians from other parties of crimes they have not committed. This accusation, which has little to do with the law and a lot to do with politics, is being rewarded by letting them sit on the stand during the election campaign.
With regard to this situation and Vox’s role, the questions are: is the principle of equality of arms being breached in the general elections or not? Can a political party use a legal platform to promote its politics during an election campaign? And to what extent does this situation undermines the right to a fair trial and even the impartiality of the Court?
The Central Electoral Board will have to rule on the first two questions, or do they think that no other political party will bring such a democratic anomaly up? The Second Chamber of the Supreme Court will have to decide on the third question, if any of the defendants raises it.
The other problem, which arises as a result of calling elections and which certainly neither Pedro Sánchez nor Manuel Marchena anticipated (or if they did, they did not care), is the one created by the presence of both magistrates Varela and Ferrer in the Central Electoral Board. This body has, among other functions, to ensure the correct running of the elections, resolve complaints (among which is the one affecting the role of Vox in the trial), correct sanctions imposed by the Local Electoral Boards and issue credentials to the elected candidates.
But the problem is not only the upcoming activities of the Central Electoral Board in the 28th of April election but also what has already been done because both Luciano Varela and Ana Ferrer have been members of this body since October 30, 2017 and, as such, they were involved in the 21-D electoral process where several of those now indicted stood as candidates, among others. In other words, the loss of impartiality has already taken place and now it can only have a greater impact.
As in low-budget circuses, where one person sells the tickets and also acts as a prompter, master of ceremonies, magician and animal tamer, in the trial against the Catalan independence process the same individuals are entrusted with safeguarding the transparency and correctness of the electoral process and, if necessary, for issuing credentials to those elected, while they prosecute them on the basis of the accusation of a political party which, led by its Secretary General, is also competing in that election.
Appearances have gone up in smoke and Marchena’s vain attempt to bring forward the testimony of those in political office is nothing more than a clumsy fix of something that will not withstand further away than the Pyrenees. This fact proves that we are facing a political trial but, in addition, it will generate helplessness because the defence lawyers have the right to question their witnesses after the accusations witnesses have testified. Here, however, they will testify not on the basis of who proposed them but on the basis of their political activity and, in law, the order of the factors does alter the product.
Marchena, as President of the Court, and well connected to Pedro Sánchez, should have foreseen that a general election could be called during the trial, but he did not do so because mistakes are human and his experience in trials is scarce or null. What is entirely attributable to his administration is having constituted panel of judges with two people who, since the 21st December 2017, have been tainted to try any politician who took part in the Catalan elections of 2017, when Varela and Ferrer were already on the Central Electoral Board.
The response of the Supreme Court is foreseeable, which together with generating a new and unsustainable narrative, stressing the fact that the functions of the Central Electoral Board do not affect the impartiality of the magistrates who constitute the chamber, a futile attempt to discredit the Spanish justice system, which is questioning the honour of excellent professionals, etc. etc.
But the reality is totally different, nobody is questioning the professionalism and honourability of Luciano Varela or Ana Ferrer, their careers are there to back them up. The Central Electoral Board not only makes decisions but also standardises criteria of interpretation that can or have already affected the 21-D elections, the defendants in their respective roles as candidates and, ultimately, no one is trying to discredit the Spanish justice sytsem with more than 5,000 judges who each day do their job well. What discredits the Spanish Justice system is the Supreme Court’s own actions in such matters.
It would be beneficial for Marchena to understand the ECHR’s jurisprudential criteria, which, in short, states that what must be determined is whether, regardless of the magistrate’s behaviour, there are objective facts that may raise doubts about their impartiality with respect to the specific case, and that in this sense “even appearances may be important” because, according to the ECHR, what is at stake is the trust that the courts must inspire in citizenship in a democratic society.
In short, and apart from the narratives that will be elaborated, this anomalous situation highlights, once again, the existence of systemic errors which prevent us from talking about a process with due guarantees and which forces us to reconsider whether this trial, in the current circumstances, should continue on this path when we can already assume that it will not stand the slightest inspection by the European Court of Human Rights.
A trial of this relevance requires better conditions and, above all, a chamber which isn’t eclipsed, from the beginning by a cloud of partiality since the moment when five of its members belonged to the Admissions Chamber and, now it turns out, the other two are members of the Central Electoral Board.
They may continue with the trial, they may convict the defendants and they may establish the narrative, locally at least, that we are seeing a trial with all the guarantees but the reality is obstinate and beyond the Supreme Court are the Pyrenees, where these things don’t go down well at all. All of a sudden, and by announcing elections, we have shifted from an alleged “fair trial” to a mistrial… the question is how much longer do they want to prolong the agony of a process that will not withstand either the passage of time or the weight of resources.
Source: El Nacional @elnacionalcat
Author: Gonzalo Boye @boye_g
Publication date: 21 February 2019