I am getting into a swampy terrain: the harsh criticism raised by the order of Judge Pablo Llarena, of January 12, 2023, and the order of the second chamber of the Supreme Court, of February 13, 2023, for which Manuel has been a rapporteur Marchena. Both contain, according to their critics, political comments that imply using the judiciary for improper purposes. These critics admonish both magistrates for not accepting that a new political majority (the current Government and its partners) has granted a partial pardon and has promoted a legal reform to prevent judges and the Supreme Court from "abusing" criminal law again, to resolve a peaceful political conflict. Because, and therein lies the core of his thesis, the Catalan crisis of 2017 was only a resolvable constitutional crisis at the political-constitutional level without the need to resort to criminal law.
The question is this: Is legitimacy a letter of marque, so that whoever has it can do what is best for them, with no other limit than formal legality to the extreme? Or put in silver: Can the holder of a legitimate power do whatever he wants, even against the general interest?
The legitimate adjective applied to our Government is exact. Just as legitimate are their parliamentary supports. But the fact that they are legitimate does not mean that we should remain undaunted and silent in the face of what we consider their “abuses”. Exercising this criticism is more than a right: it is a duty. Therefore, the division of powers does not prevent judges and courts from denouncing the impunity that the recent penal reform has caused, by leaving subversive behaviors of the constitutional order without sanction.
So much so that the Criminal Code provides in its article 4.2 –heir to a bicentennial tradition– that “in the event that a court becomes aware of any fact that it deems worthy of repression and is not punishable by law (…) it will expose to the Government the reasons that assist it to believe that it should be subject to a criminal sanction”. It is true that judges and courts cannot amend the legislator, which is the responsibility of the Constitutional Court, and they must comply with the law, but this does not mean that they have to limit themselves to it as if they were silent syllogistic machines programmed to execute the will of the legislator. , abstracting from the circumstances of the case. Absolute justice does not exist; There is only justice in the specific case, and pursuing it is the task of judges and courts.
Although the doctrine of abuse of rights is not directly applicable to the relations between the three powers of the State, it does serve to illuminate them, as an emanation that is from a general principle of law. After all, article 7.2 of the Civil Code that regulates it is found, in its preliminary title, which is general theory. This precept provides that "the law does not protect the abuse of rights", which it defines as "any act or omission that, due to the intention of its author, its object or the circumstances in which it is carried out, manifestly exceeds the normal limits of the exercise of a right, with damage to a third party”.
Consequently, and in this case, if a judge or court considers, in the exercise of its judging function, that the norm to be applied has some negative effect, it must: 1) Comply with the law without excuse. 2) Leave a record in its resolution of what it considers to be negative effects of the standard applied in response to the general interest.
The division of powers does not mean that the three powers should be encapsulated in their respective areas, with no more communication than a rigid formal dialogue. Democracy requires that there be a fruitful dialogue between them that, without infringing the law or implying an immission of jurisdiction, contributes to the achievement of what is the ultimate objective of a democratic regime: the general interest.
The judiciary is the last defender of the law, which makes us all free and equalizes us all. It is, therefore, the last bulwark of democracy. They have been and are the magistrates Marchena and Llarena. Thank you.
