Spain became embroiled this week in various judicial quagmires. Cases affecting two fugitives, one of its nationals abroad and a foreigner in the Peninsula, tested the relationship between politics and justice, and Spain’s handling of the Catalan issue.
This afternoon, sacked Catalan President Carles Puigdemont exited the German prison where he was held for twelve days after being arrested at the country’s border with Denmark.
His release followed a German judge’s decision on the arrest warrant issued by Spanish magistrate Pablo Llarena. The Court of Schleswig-Holstein decided to free Puigdemont on bail while they rule on the extradition request.
The court already discarded the rebellion charges, the most serious crime included in the arrest warrant. Puigdemont would face trial only on embezzlement once he is sent back to Spain.
For Catalan pro-independence forces, the decision reinforced their criticism of the politicisation of Spain’s judicial system and the peaceful nature of their bid for independence.
But the German court also wrote that “there was no indication” that Puigdemont could be exposed to political persecution, dismantling his main criticism addressed to Madrid.
Moreover, the judge said that violent acts were committed during the pro-independence referendum campaign held last October that could be attributed to Puigdemont, as Llarena argued. But that violence was not sufficient enough to qualify as “high treason” under German law, the equivalent of ‘rebellion’.
While Puigdemont bided his time in a German prison, last Wednesday Spanish police arrested former HSBC employee Hervé Falciani.
The French-Italian whistle-blower was requested by the Swiss authorities for the second time after fleeing in 2008 with a list of 130,000 tax evaders from across Europe.
The arrest was criticised by Green and Socialists MEPs, who said that Spain should not extradite him. The move also surprised Spanish judges, who rejected his extradition in 2013. After being convicted in absentia in 2015, Switzerland decided to pursue his extradition once again.
To make things more complex, two Catalan politicians facing prosecution have fled to Switzerland, and the authorities are not willing to send them back to Spain arguing that the charges are primarily political.
Any horse trading of fugitives involving Falciani, or attempts to tweak the terms of Puigdemont’s extradition, would cast a shadow on Spain’s already tarnished judicial system.
Courts are understaffed, judges are seen as politicised and decision-makers turn a deaf ear to calls for reform.
Spain only has 12 judges and prosecutors per 100.000 people, meaning that delays are the norm and some trials are scheduled beyond 2020.
A large majority of Spaniards have a bad or very bad opinion about the independence of judges. Only Bulgarians and Hungarians distrust more their system.
It is not only an issue of perception. The election model of the General Council of the Judiciary, a governing body, relies on the bargaining of political parties in Parliament.
Politicians are well aware of these and other flaws, but are not willing to fix them.
Spain was the country less engaged in implementing reforms suggested by the Council of Europe.
Part of the reason is that, unfortunately, politicians follow votes instead of leading voters. Despite the importance of having a flawless Justice system as a guarantor of the rule of law, only 2.7% of Spaniards name the shortcomings of our courts among the top three problems facing the country.
The Catalan crisis has put Spain’s judicial system under the spotlight. The country is not willing to give fresh ammunition to its critics. The Supreme Court is leaning toward accepting the extradition under the German terms, and the Government insists that there is no political manoeuvring between Spain and Switzerland in the Falciani case.
A broad pact to reform the judicial system remains a long shot. But after decades postponing a badly needed overhaul, it is the right time, particularly now that Europe is looking.
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