Power politics: EU turns a blind eye to Spain’s attack on judicial independence while accusing Poland and Hungary of violating the rule of law

The EU commission and parliament say a Spanish law that will allow the parliament to review judicial rulings against Catalan separatists and check if prosecutors and judges made politically based decisions is simply an “internal matter”

editor: REMIX NEWS
author: Olivier Bault
Spain's acting Prime Minister Pedro Sanchez applauds he was chosen by a majority of legislators to form a new government after a parliamentary vote at the Spanish Parliament in Madrid, Spain, Thursday, Nov. 16, 2023. (AP Photo/Manu Fernandez)

The left-liberal commissioners and MEPs now defending Spain’s left-wing government are the same ones at the forefront of the rule-of-law conflict with Poland and Hungary. A new law from Spanish Prime Minister Pedro Sánchez is said to make a mockery of judicial independence by Spain’s top judicial bodies, including its Supreme Court and its General Council of the Judiciary (CGPJ), as well as the country’s main associations of judges, including one that is known to be left-leaning, i.e., ideologically close to the Sánchez government, and was initially in favor of an amnesty law for Catalan separatists.

Street protests had already been underway in many Spanish towns for more than two weeks when incumbent Prime Minister Pedro Sánchez announced the composition of his new government on Nov. 20, hoping to win the support of 179 deputies in the 350-seat Congress of Deputies.

On Saturday, Nov. 18, hundreds of thousands of Spaniards took part in a demonstration in Madrid called by civic organizations with the support of Vox and the center-right People’s Party (PP). According to some, it was the largest such demonstration in a quarter century.

Spain’s Conservative Popular Party opposition leader Alberto Nunez Feijoo, center, gestures surrounded by crowds with Spanish flags in the central Puerta del Sol during a protest in Madrid, Spain, Sunday, Nov.12, 2023. The Popular Party is protesting the Spanish socialists’ deal to grant amnesty to Catalan separatists in exchange for support of the new government. (AP Photo/Joan Mateu Parra)

But Sánchez eventually went ahead with his agreement negotiated in Brussels and Geneva with Carles Puigdemont, the former president of the Spanish region of Catalonia, who fled justice after the illegal independence referendum he organized with public money in 2017, and his party Junts per Catalunya (Together for Catalonia), also called “Junts.” Puigdemont, who finally found shelter in Belgium, was elected to the European Parliament in 2019 and is now an MEP.

Spain’s Supreme Court confirmed last June that the proceedings against Puigdemont are valid and that his actions could incur a punishment of up to 12 years in jail for misuse of public money and disobeying rulings by courts, including by the Constitutional Court, which said that a referendum on independence could not take place.

Catalonia regional President Carles Puigdemont, right, and Catalan regional Vice-President Oriol Junqueras attend a plenary session in Barcelona, Spain, Wednesday, Sept. 6, 2017. Catalan lawmakers voted on a bill that will allow regional authorities to officially call an Oct. 1 referendum on a split from Spain, making concrete a years-long defiance of central authorities, who see the vote as illegal. (AP Photo/Manu Fernandez)

After the left’s thin victory in July’s parliamentary elections, however, the seven Junts MPs now sitting in the Congress of Deputies were necessary to confirm Sánchez as the country’s prime minister, at the head of a coalition of his socialist PSOE party, with the radical left now embodied by Sumar.

Sumar is a new alliance of far-left parties created by Yolanda Díaz, a former member of the Communist Party of Spain, that was previously allied with Podemos under the name of United Left (Izquierda Unida), to form Unidas Podemos. Unidas Podemos was the PSOE’s government coalition ally in the previous legislature, when Yolanda Díaz was Minister of Labour and Social Economy in the Sánchez government. She now is Sánchez’s second deputy prime minister in his new government.

The PSOE and Sumar do not have an absolute majority, however, and apart from Junts, Pedro Sánchez will have to negotiate each new law with several far-left parties as well as with regional autonomist or separatist parties, mainly from Catalonia, the Basque country, and Galicia.

To make things worse, the seven Podemos deputies left the Sumar group last week and made clear that each vote in the Congress of Deputies will have to be negotiated separately with them as well.

We should, therefore, expect this new Sánchez government, to adopt even more radically leftist, anti-liberty laws than before. But that is not the only issue. As shown by the amnesty bill agreed with Junts and its fugitive leader, Carles Puigdemont, Sánchez will not hesitate to tramp on constitutional principles and the rule of law to remain in power.

In addition to an amnesty for all those who have been criminally prosecuted or received sentences related to the organization of an illegal consultation on Catalan independence in 2014 or an illegal independence referendum in 2017, the agreement signed with Junts provides for the creation of parliamentary committees to look into judicial decisions and prosecutors’ actions in search of alleged cases of their committing “lawfare.”

This term, which appears in the signed agreement, is a combination of the words “law” and “warfare” and it refers to an alleged instrumentalization of the law for the benefit of political struggle on the part of some prosecutors and judges in their proceedings against Catalan separatists.

In the election campaign, Sánchez had pledged that under his government, there would be no amnesty for Catalan separatists. However, in a speech to the Congress of Deputies on the day the composition of the new government was presented on Nov. 20, he spoke of the need to form a front of progressives to counter the “reactionary” forces of the right, thereby justifying the far-reaching concessions made to Catalonia’s separatists.

The Supreme Court, the General Council of the Judiciary, and Spain’s four main judiciary organizations have protested against this blatant interference in the operation of the judiciary, which, in their opinion, will violate the principle of independence of judges and the principle of equality of citizens before the law.

In an interview with the ABC daily, for example, the president of Spain’s judicial council said that parliament’s review of the actions of prosecutors and judges in search of cases of “lawfare” and parliament’s direct oversight of the courts’ interpretation of the amnesty law provided for in the settlement with Junts would be a clear violation of the principle of the separation of powers.

A debate in the European Parliament on this projected violation of the principle of judicial independence was demanded by the political groups to which Spain’s center-right People’s Party (PP) and conservative VOX party belong, respectively the European People’s Party (EPP) and the European Conservatives and Reformists (ECR).

This debate took place on Nov. 22. Like in the case of most past debates on similar issues concerning Poland and Hungary, few MPs were present apart from the nationals of the concerned country. During that debate, European Commissioner for Justice Didier Reynders, from Belgium, reiterated that although the European Commission will carry out a “careful, independent and objective” review of Spain’s amnesty bill, it believes that it “remains an internal matter for Spain.”

This attitude, which is very different from the Commission’s usual stance towards countries like Poland and Hungary — countries governed not by a coalition of the left and the far left but by right-wing conservatives — comes as no surprise.

In the past, the European Commission did not protest when Sánchez appointed his justice minister to the position of attorney general, even though reuniting the two functions in Poland as per an electoral pledge made by Law and Justice in the run-up to the 2015 election was, in the eyes of the EU Commission, an attack on democracy and the rule of law. Many legal experts protested Sánchez’s decision in Spain but not in Brussels.

Likewise, the fact that since 1980, it has been parliament that elects the judges who sit on Spain’s judicial council has not resulted in the withholding of Spain’s share of NextGenerationEU funds as it has in the case of Poland.

As a matter of fact, Hungary has had to reform its judicial supervision system due to pressure and financial blackmail from the European Commission, to give more powers back to its National Judicial Council (OBT), whose members are elected by judges, to the detriment of the National Office for the Judiciary (OBH), whose president is elected by parliament.

For five years now, the Spanish parliament has been unable to renew the country’s General Council of the Judiciary (CGPJ) because the opposition People’s Party (PP) demands that a reform be voted on first for the CGPJ’s members to be elected by judges, something that is refused by the Spanish governing left.

In the last decade, it has also become the position of the European Commission that to guarantee full independence of the judiciary in member states, the body in charge of supervising the judiciary in each country should be made up of judges elected by their peers. This was a standard that Poland’s Law and Justice wanted to change in order to put an end to the chronic corporatism of the judicial profession and the impossibility of disciplining and sanctioning corrupt or incompetent judges.

Nevertheless, the very same situation has led to the withholding of funds in the case of Poland and to financial blackmail in the case of Hungary, but not in the case of Spain.

With the planned amnesty law, Spain is going to have its parliament review past judicial rulings and investigate past trials and prosecutors’ proceedings in search of alleged political motives behind those proceedings. For the left in the European Parliament as well as, apparently, for commissioners Reynders and Jourova, who have in the past so aggressively questioned Polish and Hungarian laws, this is okay (as long as the word “lawfare” does not appear in the amnesty law, though).

Comparing this to its attitude towards Poland, one cannot but think of the European Commission’s criticism of a Polish reform, enacted in 2017, that allowed for the appeal of old judicial decisions through a new institution called “the extraordinary appeal,” which can be activated by people like the prosecutor general and the ombudsman when they feel a past ruling violates the rights and freedoms of citizens enshrined in the Polish Constitution, or they are a flagrant breach of the law, or there is an obvious contradiction between the court’s findings and the evidence collected.

In the Polish case, it is not parliament but a newly created chamber of the Supreme Court that was to review such cases, and it was linked to the fact that, after the fall of communism, there was rampant corruption in the judicial system that led to some truly outrageous judgments.

The European Commission nonetheless pointed to this reform as something that put in question the principle of legal certainty and said that “it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called in question.”

This was one of the motives given by the European Commission in December 2017 to activate the Article 7 rule-of-law procedure against Poland.

There has been an openly double-standard approach in the European Parliament as well, where the S&D group commented on the request for a debate in the European Parliament by tweeting on their official profile:

“We truly regret that the EPP (PP) is leaving the existing pro-European majority to embrace an alliance with the far right like ECR (Vox). Their collaboration on bringing their hate speech from Spain to Brussels is a sad attempt to deviate public attention from their failure to win a majority, create bridges and respect the will of the Spanish people and democracy.”

However, the most blatant case of the double standard applied to Poland and Hungary on the one hand, and Spain on the other, have been the declarations made by the Spanish socialist Juan Fernando López Aguilar who said during the debate in the European Parliament, about his country’s planned amnesty law and the protests against it:

“The Spanish People’s Party has failed in its attempted investiture of its candidate for the Presidency of the Government before the Congress of Deputies. Not content with that bitter taste in its mouth, it is trying to refresh it here in this Parliament with a forced debate on a legitimate initiative adopted in accordance with the Spanish Constitution. (…) In this organic law, or bill, there is no threat to the rule of law or democracy in Spain. (…) There is no threat to judicial independence in Spain other than the blocking of the [renewal of the] General Council of the Judiciary by the People’s Party.”

The same MEP, who chairs the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (also called the LIBE Committee), is the author of the report based on which in 2020, the European Parliament green-lighted the Article 7 procedure activated against Poland by the European Commission.

Among the litany of reproaches against Poland that are contained in the Spanish socialist’s report, there is one about the Polish Supreme Court’s new Extraordinary Chamber and its ability to review old judgments. In his report, which was the LIBE committee’s proposal for a resolution and which was adopted as such by the European Parliament, López Aguilar “calls on the commission to urgently start infringement proceedings in relation to the national provisions on the powers of the Extraordinary Chamber, since its composition suffers from the same flaws as the Disciplinary Chamber.”

The flaws in question are linked to the judges of the Polish Extraordinary Chamber being appointed by the Polish president based on candidacies proposed by a judicial council whose members are now elected by parliament, just as in… Spain. It is the same reason behind “the blocking of the [renewal of the] General Council of the Judiciary by the People’s Party” mentioned by López Aguilar.

“As regards the rule of law in the strict sense of independence of the judiciary, the situation in Poland is far from improving and concerns remain or increase in every aspect exposed in this report,” this extraordinarily hypocritical Spaniard wrote in his report against Poland in 2020, then mentioning among his causes of concerns “the creation of the chamber of extraordinary appeal inside the Supreme Court.”

Well, in socialist Spain, there are going to be special parliamentary committees to review old judgments against those engaged in the organization of the illegal 2017 independence referendum and to investigate the judges’ motivations behind those judgments.

But in this precise case, López Aguilar, like his political friends in Brussels, sees no threat to judicial independence.

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