This legislature that has just started is marked by the escalation of tension with the judiciary. The proposal for the amnesty law was received with great suspicion - if not rejection - but what has united the entire judicial career are the insinuations of some and the direct accusations of others that the judiciary has carried out a 'lawfare', that is, judicial persecution against political leaders for their ideology. This deep discomfort has worsened in the attempt by Junts and ERC to bring judges and prosecutors to investigative commissions so that they can give the appropriate explanations.
Despite the fact that the PSOE signed an investiture agreement with Junts in which it assumed the existence of 'lawfare', the Government, and mainly the Minister of the Presidency, Justice and Relations with the Cortes, Félix Bolaños, has ruled out any option that the judges are summoned to testify.
“The Government will always defend independence and integrity wherever it comes from. This Government will always defend judges, magistrates and prosecutors because that is defending the rule of law,” he noted on Monday in his speech during the delivery of dispatches from the LXI promotion of the prosecutorial career.
It was the leader of the socialists, Pedro Sánchez, who gave the go-ahead to sign the investiture agreement with Carles Puigdemont's party, which opened the possibility of holding investigative commissions to uncover the 'lawfare' in cases such as the Operation Catalunya or Pegasus espionage.
The President of the Government has expressed this week his total disagreement with summoning the judges to give statements in Congress about processes in which they have intervened. This means that the PSOE will vote against the inclusion of magistrates in the lists of those appearing in these investigative commissions.
Their argument is that the law that regulates appearances in the investigative commissions of the Cortes establishes the obligation to appear for citizens who are called, although it leaves the “safeguarding” of the constitutional rights of all in the hands of the Congressional Committee. the assistants.
Article 399 of the Organic Law of the Judiciary (LOPJ) establishes that civil and military authorities “shall refrain from summoning judges and magistrates and summoning them to appear in their presence.” The exception to this article is that judicial assistance or cooperation may be given as long as “the act to be executed is not legally permitted or the jurisdiction of the judge or court is prejudiced.”
Furthermore, the General Council of the Judiciary (CGPJ) has already made an interpretation of article 76.2, in relation to article 117.1 of the Constitution, and due respect for judicial immunity, as an integral, inseparable and non-available element of judicial independence. , which “requires modulating said appearance when it comes to active judges and magistrates.”
Junts spokesperson, Josep Rius, has already warned judges that they could face “criminal consequences” if they do not appear before the investigative committees in the Congress of Deputies, since their attendance is “mandatory.” Junts has insisted on the Penal Code, mentioning the crime of disobedience if they do not appear when required legally and under warning.
The judges' body warns, on the contrary, that in the event of going and speaking about a judicial process, the judge in question runs the risk of being severely punished because it is expressly prohibited by law.
The judges, both progressive and conservative, have already said that they are not going to go because they neither should nor can do so. The CGPJ could prepare a technical report to leave in black and white how the responses of members of the judicial career should be if they are summoned.
The Francisco de Vitoria Judicial Association has already prepared its own technical report in which it concludes that, if the Cortes Generales summon a judge to testify on the judicial cases in which he has intervened, “not only does he have the right to refuse to appear for report on its actions as such, but is obliged to do so, in order to preserve judicial independence and the separation of powers".
Recently, the judge of the Supreme Court that regulates the activity of the National Intelligence Center (CNI), Pablo Lucas, already refused to go to Parliament to be questioned about the use of Pegasus spy software by the intelligence service that he controls. To justify his non-appearance, the judge invoked two articles, one of them 399 of the LOPJ. Lucas also cited the law that regulates the CNI, which establishes that the magistrate in charge of judicial control of the CNI "will make appropriate arrangements to safeguard the confidentiality of its actions, which will be classified as secret." The Parliament table even filed a complaint with the Prosecutor's Office for the non-appearance, which has already been filed.
In 2017, Daniel de Alfonso requested to attend the investigative commission on Operation Catalunya. In that agreement, the CGPJ warned this judge – who wanted to testify voluntarily – that the questions could not concern data or statements “that refer to his position or jurisdictional function” but only about his time as head of the Anti-Fraud Office.
Initially, the origin was the investiture agreement signed by Junts and PSOE on November 9. In one of the points it was expressly stated: "the conclusions of the investigation commissions that will be established in the next legislature will be taken into account in the application of the amnesty law to the extent that situations falling within the concept of lawfare or judicialization could arise. of the policy, with the consequences that, where appropriate, may give rise to liability actions or legislative modifications".
Following this point, several political leaders opened the way to the possibility of summoning judges to these investigative commissions. The icing on the cake was put last week by the Junts spokesperson in the Congress of Deputies, Míriam Nogueras, by launching harsh attacks on judges whom she named by name and surname, such as the president of the Criminal Chamber of the Supreme Court, Manuel Marchena, or the magistrate Pablo Llarena, to later charge against the “indecent judges” who, in his opinion, deserve to be tried and dismissed.
After those words, the president of the Supreme Court, Francisco Marín Castán, called off the meeting he had planned with the Minister of Justice, Félix Bolaños. Although the words came from the Junts spokesperson, the Supreme Court holds the PSOE responsible for having signed that investiture agreement, with the amnesty law included, in exchange for revalidating Pedro Sánchez as President of the Government.
Bolaños has been insisting for several days that the Government is going to defend judicial independence, which has led Marín Castán to reschedule the meeting, scheduled for this Thursday, December 21.
For his part, the president of the CGPJ, Vicente Guilarte, said publicly that the judges were not going to go to the investigative commissions and demanded that politicians not contribute to "undermining citizens' confidence in Justice": "Please "Reduce the tension. Leave us alone," he claimed.
