Law System
Situation of the Judiciary in Spain
The Great Lie of Spanish Politicians and Leaders
José Luis Rodríguez Zapatero, Prime Minister:
“The Law has always been enforced in good set terms.”
Source: Europapress.es, 16th May 2007, 6:00 PM
María Teresa Fernández de la Vega, Graduate in Law
Vicepresident and Government Spokesperson:
“We are better off because we abide by the law,” to which she added that “the Rule of Law lays the foundations for our democracy.“
Source: Europapress.es, 2nd August 2008, 8:00 PM
Mariano Rajoy Brey, Opposition Leader and Chairman of PP (Partido Popular)
“Nobody is above the Law; it is enforced on everyone without distinction.”
Source: COPE News, 4th August 2008, 4:00 PM
But the truth is:
1) In SPAIN we do not have a responsible and independent justice system, and for that very reason we have established this law firm, which aspires to achieve the justice we deserve in a country which is said to abide by the “Rule of Law”. In fact, there is only one Power –the Executive— which has absorbed the other two powers and, as in the past, the Judiciary resigns itself to the loss of independence in exchange for the privilege of immunity.
Every judicial procedure is surrounded by the utmost obscurity and secrecy one may conceive, contrary to the transparency which the Constitution and the Law demands of such procedures. An impassable barrier prevents us from learning how issues are distributed and how judges are appointed to exert leading opinion. Neither is it possible to learn the motives for abstention or challenge which render a judge unfit to rule. These circumstances allow for suits to be settled in favour of one of the parties even before the proceedings start (no bigger depravity is imaginable), for illegitimate interests outweigh any claims brought forth by a party, to which the impartiality of the Judge or Court remains unknown.
2) It is extremely difficult, one may say impossible, to hold judges and members of the Bar responsible for their actions, due to the strong esprit de corps existing among them. Many of them belong to one of the four Judges Associations in Spain, whose agenda is “to defend the professional interest of its associates.” As membership to these associations is kept secret, there is a chance that the judge sitting upon a challenge for malpractice belongs to the same association as the defendant and therefore has the duty to protect the interest of his fellow associate.
Very similar problems arise when there are claims for civil or disciplinary liability: every day, the courts and the Spanish Consejo General del Poder Judicial –a political body, not a member of the Judiciary— make it very clear that all efforts are in vain.
It is not possible to challenge these judges. One may try, but almost every time the challenge will be dismissed and the challenger will have to pay for court costs. What’s more, no sifting of evidence will be admitted to demonstrate the existence of a legitimate motive for the challenge.
3) Since practically all claims and challenges against judges and Bar members are “dismissed” before trial begins, those judges who have been challenged or brought to court may still take part in the process. There are good grounds to suspect partiality, such as the hostility and animosity of judges who have been challenged by any of the parties to the claim; the result of these proceedings is easy to imagine. This is a result of the Ley Orgánica 19/2003, dated 23rd December, which requires that, in order to challenge a judge, “legal proceedings for a criminal case shall have commenced…” And thus, since no criminal proceedings are ever allowed to start, it is not possible at all to challenge those who are suspect of breach of duty!
The argument used by the Judiciary that a judge may only be removed from trial of a case after criminal proceedings against him/her have started is not only naïve but inappropriate. The set of laws contains adequate and forceful mechanisms which may be enforced in the event that a serious breach of duty occurs.
4) Lawyers are not protected by any professional body of association, because such professional associations are more than likely to fight on the side of the judges, in order to deliver a more powerful blow on those lawyers who wish to carry out their professional duties freely and independently. As lawyers are aware that challenging a judge may damage the interests of their clients, very few claims and challenges are brought against judges in Spain.
Barristers are unlikely to put their friendship with members of the Judiciary at risk. That makes it rather difficult to find a barrister who will sign a claim or challenge against them. Even those who do it will generally place the following rubric next to their signature: “For the sole purpose of representation.” That means that they do not support the content of the document, carefully drafted by the lawyer, and they leave him/her alone in such a difficult and dangerous pursuit, as if the lawyer were some kind of madman. Lawyers are aware that they will be labeled “persona non grata” by their peers, that is to say, a controversial professional; for in Spain those who lie or keep their silence are preferred to those who tell the truth.
5) If someone should dare to denounce the illegal behaviour they have witnessed in members of the judiciary, even if responsibly, legally and rightfully so, they will be the object of terrible retaliation by the Judiciary as a whole (needless to say, there are some judges who will not take part in such despicable means of persecution). As we mentioned before, the claims filed by those above will be dismissed, and to make matters worse there will be a counter-claim for “false accusation.” In these Kafkaesque trials, they will not be allowed to lay proof for their accusations. They will also be helpless since they will not be able to find an upright lawyer to defend them, and will be forced to face this discouraging situation alone, seeing how judges act beyond the law with complete impunity and knowing that those judges will not be prosecuted, whatever it is they do.
6) The bodies and authorities of the State must respect the Constitution and the rights of citizens above all—these bodies include the Crown, the Government, the Courts, the Consejo General del Poder Judicial, the Parliamentary Commissioner for Administration (Defensor del Pueblo) and other state and regional institutions. When it comes to their knowledge that claims have been filed against judges for breach of duty, they do not fulfill their own duty to bring such claims to the public prosecutor (Ministerio Fiscal, in Spain), so that they may start due criminal process. It is also uncommon that the public prosecutor brings charges against judges or Bar members, and those brought forth by private citizens are more often than not dismissed.
7) Legislators are kept well informed of the lack of efficient control on the performance of our judges and this law firm has even asked them to effectively review their acts by means of a Special Jury resembling the one created during the Republic in 1931. But they will not lift a finger to redress the situation, because it is precisely politicians, joining forces with the powerful (untouchable during the dictatorship and even now in a democracy), who have most to gain with a system of justice in which no liability may ever be claimed of its members. It is not difficult to imagine the benefits some of them may derive from certain court rulings.
8) Those who file claims against the judiciary are helpless and left to their own means. Well aware of the situation we are describing, they seek to win their claims by way of flattery, or even worse, through corruption. This goes against the ethical code of conduct one may expect, but they often refuse to hire lawyers who actually come face to face with the judges when there is a breach of duty, preferring to choose lawyers who are on good terms with judges, in an attempt to obtain a ruling in line with their interests.
9) The rest of the citizens, including the media, are as terrified as they were during the past regime, and still follow the advice they were given back then: “Be quiet or it will get worse,” “you’d better leave it be,” etc. Others get on the side of the powerful (the System), having so much more to gain than by opposing it, or they choose to wash their hands of the problem, until it is their turn. Then they become another number in the long list of victims of the Judiciary and remain helpless and abused, in a country where the spirit of the dictatorship is fostered during democracy. How long will it be?
10) This is a problem endemic to Spain, which has led to the Judiciary being the least valued of its institutions, to the utter frustration of those Judges, Attorneys and Lawyers who have integrity and independence and who are dismayed to witness that their rightful performance is completely useless and that they are ostracized or brutally retaliated against when they refuse to give up their honour and dignity. Our justice system still resembles that spider´s web which Solon the Wise spoke of: “a web which entangles the weak but is easily torn by the strong”.
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