Joaquín Urías: ‘The Spanish government has forced some judges to make a fool of themselves’

Joaquín Urías is a professor of Constitutional Law at the University of Seville and he used be a judge in the Spanish Constitutional Court. In recent weeks he has spoken out harshly against Madrid’s crackdown on Catalan secessionism: imposing direct rule via article 155 of the Constitution and pressing sedition and rebellion charges against Carles Puigdemont, Oriol Junqueras, government ministers and grassroots leaders Jordi Sànchez and Jordi Cuixart.

Urías has also laid down several legal arguments against the interlocutory statements issued by judge Pablo Llarena, who is keeping four separatist leaders in custody because of their political views, which Joaquín Urías believes is “the state’s most outrageous move against Catalonia’s independence bid”. Thanks to his tenure with the Constitutional Court, he is well acquainted with the court’s workings and the Spanish government’s pressure to convey its will to the bench. He decried the Constitutional Court’s refusal to consider whether Article 155 has been lawfully invoked until direct rule has been lifted.

Now he is critical of the precautionary measures adopted to prevent Carles Puigdemont from being voted president and the fact that the Constitutional Court has delayed its decision to hear or reject the Spanish government’s appeal. Furthermore, Urías discusses the spiral of silence that envelops Spain’s judiciary and he explains why no more public figures like himself are speaking out against the excesses of Spain’s justice system against Catalan secessionism.

—You have been very critical of the Constitutional Court’s precautionary measures to prevent Puigdemont’s election in parliament. Have they crossed a line?
—Nobody had requested those precautionary measures. The Constitutional Court has ignored the rules it is governed by. They have overstepped the line. Until now, the court’s decisions were fair, to a greater or lesser extent, and they fell within its purview. But now the court has issued rulings on matters that are not for the court to decide.

—Why did that happen?
—I think it is the result of the Spanish government’s strategy to respond to Catalonia’s independence bid by means of the justice system. When faced with a political problem, rather than trying to offer a political response, with a political alternative or a negotiation, they have used the courts of law to ban everything. And there things that cannot be banned. The Spanish government is adamant to ban everything in a court of law and has forced some judges to make a fool of themselves. In order to meet the state’s demands, judges have taken things too far and have made decisions that violate the rule of law. Rules that were not for them to make.

—We have read that members of Rajoy’s government phoned the judges of the Constitutional Court to persuade them to agree to hear their appeal against Puigdemont’s election. You once served on that bench and are familiar with its inner workings. Are those reports credible?
—Yes, they are. They are perfectly true and that sort of situation is not infrequent. Depending on the issue, members of the Spanish government will approach the Constitutional Court to convey their concern to the judges. That is wrong in itself. But, worst of all, judges will allow themselves to be pressured. It’s not pretty when the government calls the members of the court, but it’s not against the law. But when a judge always does what the government asks, then that is unacceptable in a democracy.

—Did you witness judges being pressured by the Spanish government while you served on the bench of the Constitutional Court?
—Well, there is always some pressure. Phone calls, lunches … It’s relatively frequent for the PM to phone a member of the court and suggest lunch together. There are many ways you can apply pressure. Or, in other words, to convey to the bench what the government is hoping for. Rather than pressure, it is a way of showing the government’s intent. That is one thing; but when judges comply by overstepping their powers, it’s something else altogether.

—What are the legal grounds for the Constitutional Court to impose precautionary measures in order to prevent Puigdemont from being voted president?
—There are none. The court was able to issue the injunction partly because there is no higher-ranking court of law in Spain. Since the Constitutional Court sits at the apex of the Spanish justice system, it can’t be held to account for its decisions. That is why it has issued rulings which it legally couldn’t, they are highly suspect; but the court knows that it is not accountable to anyone, no matter what.

—Neither the Constitutional Court nor Spain’s Council of State agreed to hear Rajoy’s complaint, but the injunction was issued, nonetheless.
—That’s somewhat relative. There are many jurists working within the Constitutional Court and they do not constitute an independent body; rather, they issue reports at the request of a judge. In this particular case, the jurists that worked for the leading magistrate issued a legal report dismissing the complaint. To me that is not very important, as I am sure you could find a jurist within the Court that would hold the opposite view. But it does show us that there were judges who realised that they couldn’t possible agree to hear the complaint. The Court has done all this because it did not wish to consider the complaint or issue a ruling about it, as some of the judges didn’t want to do that. This shows that the court realised they couldn’t go ahed and do what they’ve done.

—Can the precautionary measures be appealed before the European Court of Human Rights?
—Yes, but it would be futile. Our problem is that the Constitutional Court should be the fairest, most impartial court of all. And the situation in Catalonia has proven the exact opposite. An appeal before the European Court of Human Right or some other body that might reverse the decision is possible, but the ECHR’s ruling would not be binding and would not change the current state of affairs. Spain needn’t heed the ECHR’s rulings. Besides, it could be years before a verdict was handed down.

—Could we not ask Strasbourg to lift the Constitutional Court’s injunction as a precaution?
—That is possible in some cases. But it is difficult in this particular instance because, as it turns out, the Constitutional Court hasn’t even agreed to hear the appeal lodged by the Spanish government. The appeal makes no sense at all. It was preventive and they filed it before anyone had a chance to break the law. The Court had to decide whether to hear the appeal or not and, since it was a controversial decision, it has shown a lack of respect and has gone as far as not even agreeing to consider it. Now it is in limbo and we do no know if it will hear it or not. Meanwhile, it has ordered a number of illegitimate precautionary measures. It is not useful to resort to a European court and demand precautionary measures before the appeal has been heard. You need to wait at least until the court has made a decision about the hearing the appeal or not. The ECHR is a possible avenue, but it is a complex one. All the more so, now that the Constitutional Court is a political player. It may well be that you file an appeal in Strasbourg in the current situation and the next day the Spanish Constitutional Court agrees to hear or dismisses the Spanish government’s appeal, in which case your request would no longer make any sense.

—If the Court refuses to hear the Spanish government’s appeal, will the precautionary measures remain in place?
—No, that couldn’t happen. That is the crux of the matter. The Constitutional Court is trying to avoid taking a stand. Remember: they held an urgent meeting on a Saturday because the Catalan parliament was scheduled to convene on the following Tuesday and, rather than getting down to work, they gave themselves ten days to decide whether they would agree to hear the appeal or not. That time is up but the Court has not agreed to hear the appeal yet. Deep down, the Constitutional Court does not want to address the issue, actually. If they dismiss the Spanish government’s appeal, then Puigdemont could be voted president and the precautionary measures would be lifted automatically. But I have a feeling that they will agree to hear the appeal and the parliamentary session will be suspended.

—These days a number of Catalan leaders have been summoned before the Supreme Court: Artur Mas, Marta Rovira, Anna Gabriel … Could judge Llarena have them held in custody?
—Look, at the moment I daren’t make any predictions. With all the process, we are seeing the Supreme Court issue interlocutory statements on political grounds. Judge Llarena’s issued one the other day, to keep Joaquim Forn in remand, and it was awful. He claimed that, since Forn supports independence and the independence movement is still around, he should not be released. Given the current climate, where the Supreme Court is championing against secessionism … I daren’t make any predictions. I find it hard to believe that the people you mention might have committed any crimes. Myself and 99 per cent of all jurists struggle to accept that you can have a crime of rebellion without any violence. Or that passive resistance may be regarded as a form of violence. We find it shocking, but that’s what’s happening. Individuals are kept in prison because the Supreme Court argues that you can have a non-violent rebellion. The correct course of action would be to release them and for all charges be dropped.

—Llarena’s interlocutory statements refer to the defendant’s political views to justify keeping Forn, Junqueras, Sànchez and Cuixart in prison.
—I believe that these statements would be reversed by the Constitutional Court under any other circumstances. Frankly, I think they are unconstitutional. Prison without bail is for specific cases and it cannot be used for other things. And the Supreme Court argues that these people’s views are tied to the possibility of committing those crimes. I think it makes no sense. At the end of the day, they are in jail for holding separatist views. And that is a violation of their freedom of thought enshrined in the Spanish constitution. It gets worse every day. Those interlocutory statements are the state’s most outrageous move against Catalonia’s independence bid.

—There is a general feeling that the rule of law has been put on hold. That punishment and retribution against separatists prevails over any law or court.
—Outside Catalonia there is a growing number of jurists, who also oppose independence, that can see how the state will break the law, if necessary. The state’s decided to use its physical power against Catalonia’s pro-independence leaders in a brutal manner. And when it comes to using that brutal power, the law is not a limitation. Nowadays in Spain when the state decides to take action against someone, it bends the law and looks for judges who will alter the letter of the law and it does whatever it takes for its own ends. More and more jurists are beginning to realise that —whether we like it or not— Catalonia’s independence bid has prompted a very scary use of the law whereby those in power seem to be above it. That makes it very difficult to support the notion of rule of law in Spain.

—Are you familiar with the concept of lawfare?
—I am. It’s akin to using the enemy’s criminal law against terrorists and dissidents. It’s beginning to adapt to separatism. It is worse than a legal war. The state has the power to imprison you and prevent you from doing certain things. And they are using that power beyond what the rules allow. So I think we’ve gone beyond that. Some of their actions have no legal base. At the moment Mr Puigdemont has every legal right: he can be a candidate, run in an election … The Constitutional Court has made up the idea that he cannot be a candidate unless a judge gives him permission. From a legal standpoint, that’s entirely baseless and infringes upon Puigdemont’s basic rights. But they do it anyway. Likewise, the Catalan leaders who are in prison have seen their basic right to be free violated. If you support independence, your basic rights have shrunk.

—A few days ago Spain’s Justice minister stated that the pro-independence leaders would be barred from holding office at the end of March.
—It doesn’t mean that they’ll be barred from office, but rather that their civil rights will be suspended. They came up with that rule to prevent people who had committed terrorist attacks, mainly when ETA was active, from holding public office. They wanted to stop ETA convicts from running in an election and being elected to parliament. The law applies to terror offences and the crime of rebellion has been shoved in there as an afterthought. It means that this sort of crimes merit an exceptional suspension. Terrorists aren’t allowed to run in an election. Now they want to apply that to pro-independence leaders. The thing is, that would take a while because they may appeal against it and the suspension is not automatic. I doubt if it will have been applied in a month’s time, but I am certain they will try. By being stubborn and keeping the rebellion charges, even if there was no violence, they have found the perfect excuse to try to take away the political rights of these people. If we had a snap election, I can anticipate that none of the individuals facing charges would be allowed to run.

—In the case of Puigdemont and his ministers who are in Brussels and are not a party to the case, could their rights be suspended, too?
—Things are more complicated in their case. They would see their rights suspended as soon as they were indicted. The trouble is, because they have not appeared in court, they cannot be formally charged. The warrant against them will never be firm. The way I see it, their right cannot be taken away. But I am sure the Supreme Court will come up with something to suspend them.

—Yours is one of the few critical voices speaking out against the actions of the Spanish state and justice system.
—When I speak with my colleagues, jurists, professors and member of the judiciary in private … most of them are aware that some of the measures taken are unacceptable. The vast majority of jurists realises that they have overstepped the limits to some extent. The thing is, jurists have their own political views, too. And the state blackmails them like this: we know that we are not applying the law in an ordinary way, but the challenge to the state’s integrity is so huge that we need to bend the rules. Many jurists are saying nothing in public because they feel that, even though the law is being violated, the situation is so exceptional that this is preferable to seeing the state break up because the law can benefit the separatists in some instances.

—Spain’s unity prevails over the rule of law.
—Indeed. Silence is equivalent to saying that in exceptional situations you can ignore the rules. I think it’s madness because it is precisely when we find ourselves in a tight spot that we can truly see if the rule of law prevails. It is all very easy when there are no problems, in routine situations. But many people have personally persuaded themselves to accept practically anything to avert an institutional breakaway.

—Are fingers being pointed at those who criticise the state’s actions?
—Well… it’s uncomfortable. Anyone outside Catalonia who criticises a decision by the state is quickly accused of supporting independence … But that happens in other debates, too. It’s happened quite often in the last four decades. We saw it with anti-terror legislation, with conscientious objectors, squatters … They involved minorities, but it’s not the first time that the rule of law is suspended in Spain in order to deal with dissidents. It is much more far-reaching now, more obvious and it affects many more people. But it’s not the first time. And it’s always the same. Anyone who supports dissidence quickly gets pigeonholed ideologically. It happened with ETA, when measures were taken that were hard to justify. If you criticised it in public, they immediately said you were a terrorist and supported ETA. Now it’s the same.