Last week, coincidentally the day before the National Day of Catalonia, the General Council of the Judiciary (GCJ) inaugurated the new judicial year with a harsh speech delivered by its president. Carlos Lesmes defended the power he represented and labelled those who say that no judge can rule against the popular will thoroughly ignorant. Lesmes also argued that, in the age of post-truth, immunity is pursued in the disguise of popular will. Without making any explicit reference to the Process [as the fight for Catalan independence is known], he implied that many Catalans are ignorant liars, while vigorously defending Spanish judicial resolutions before European courts which dared to unilaterally interpret autonomous legal concepts in the European area of freedom, security and justice. In his speech, Lesmes declared that the principle of mutual trust between states, based on a community of values built through a lengthy process involving the coalition of wills, has now been fractured due to these European resolutions. He ended with a pearl of wisdom that won’t fail to leave any democrat indifferent, by shamelessly stating that an excessive use of the freedom of expression and the right to legal counsel was an attempt to erode the legitimacy of the judiciary.
The words of the president of the GCJ and the Supreme Court (SC) are hardly trivial, and they have not gone unnoticed. Even before the speech, the dean of the Bar Association of Madrid not only refused to support the lawyer Gonzalo Boye, but in a singularly bizarre written statement he legitimized all of Judge Llarena’s actions. Some days later the Bar Association of Madrid ratified its decision not to grant Boye its support, and the Bar Associations of Málaga and Melilla issued a statement giving all their support to Judge Llarena. Thanks to Lesmes’ post-truth world, certain bar associations have fallen into the same trap and are eroding one of the EU’s most important fundamental rights: the right to counsel. The magnitude of the catastrophe will have immediate consequences. At a time like this, it is worth remembering that the Paris Bar Association has a room containing portraits of the deans who were beheaded for defending the right to counsel during the French Revolution. Meanwhile, in a Spain at the time of the Catalan process we may well have to set aside rooms to hang the pictures of deans who defended the judges and who failed to protect the lawyers who saw their freedom of counsel under threat. The French eighteenth century legal system was certainly more admirable than its Spanish counterpart of the twenty-first century, or at least a part of it is.
The other front that Lesmes was questioning was the excessive use of the freedom of expression, a fact which is also very worrying in any modern democracy. The European Court of Human Rights (ECHR) in Strasbourg has already overturned key Spanish rulings, such as one involving the burning of photographs of the King of Spain, seeing these actions as falling within the framework of the freedom of expression. It goes without saying that the ECHR’s rulings ought to serve to reunify the interpretations of the various states’ legal systems in accordance with their case law. If the ECHR interprets any fundamental right in such a way, it is the correct interpretation since it is the only one.
The refusal to extradite Majorcan rap singer Valtonyc has dealt a further severe blow to the Spanish judicial system and ultimately to Spanish democracy, since no democracy can exist without a judicial power which is independent from all sides of the proceedings. In Spain, it has been shown that this independence has been endangered when the integrity of the state’s institutional framework is called into question. When the president of the CGPJ and the SC himself seeks to reduce the size and scope of the right to counsel and the freedom of expression, there is nothing left to say. The Belgian court has thrown out the crimes of inciting terrorism, and insulting and threatening the royal family and considers that the singer's lyrics are covered by the right to the freedom of expression, an interpretation shared by the ECHR, thus unmasking and exposing the Spanish justice system as repressive and vindictive.
It is not a question of ideology. Rather, it is a question of rights, and when the third authority in the state (fourth, if we count the monarch) and the head of the judiciary complains about excesses in the right to counsel and the freedom of expression and denies the legal system the ability to evolve, the entire system of guarantees on which the rule of law is based is being torn apart, a rule of law that no longer exists because the separation of powers —also an eighteenth century creation— has ceased to exist.