Judge who wrote draft of Catalan Constitution is expelled from judiciary by Spanish authorities

Barcelona (ACN).- Barcelona Provincial High Court judge Santiago Vidal, who has openly supported independence, has been expelled from the judiciary for a 3-year period by the Spain’s Judicial Power Council (CGPJ), which is the judiciary’s top authority. This severe sanction is far from unanimous and has been adopted after an 9-hour-long debate among the CGPJ’s 21 members, since the liberal minority was against sanctioning the Catalan judge for having written a Constitution draft for a hypothetical independent Catalonia. This draft was not supposed to replace any Constitution or be directly adopted if Catalonia became independent, rather its objective was to steer debate by putting on the table specific Constitutional articles. However, the conservative majority considered Vidal to have committed a grave mistake with this activity regarding his duty to respect the Spanish Constitution and the diffusion he has been making of it, participating in press conferences and round table discussions. 

Vidal has been arguing over the past few weeks that such a draft was written in his free time and the same goes for his participation in public events to talk about it. Furthermore, he is a judge but also a citizen who has freedom of expression and freedom of ideology, and these activities are an exercise in such freedoms. In addition, he defended himself by saying that when working as a judge, he has always followed the current Constitution and legal framework.

Vidal considers the decision to be “political” and argued he was using his freedom of expression

After hearing the CGPJ’s decision, Vidal stated that the decision is “more political than legal”. Furthermore, he told the press that it seems that Spanish authorities consider him to be “hostile to the regime”, “an expression from 40 years ago that I thought I would not hear in democracy”, he said. Furthermore, added said that he would once again write a constitutional draft for a Catalan Republic.

The CGPJ’s plenary approved Vidal’s sanction with 12 votes in favour and 9 votes against. After the 20 regular members had voted and there was 11 votes in favour and 9 against, the CGPJ – who is also the President of the Supreme Court – Carlos Lesmes voted in favour of sanctioning Vidal. Members of the CGPJ are directly appointed by the Spanish Parliament, which is currently controlled by the conservative and Spanish nationalist People’s Party (PP). All the 11 members that voted in favour of the sanction had been appointed by the PP.

The liberal minority voting against the sanction, which has been appointed by a wide representation of political parties, has added amendments to the final resolution criticising the decision. Proof of the lack of consensus within the top body that governs Spain’s judiciary: the 9 hours it took  the CGPJ members to debate Vidal’s case, after weeks of surrounding public controversy. 

Vidal has received the second most severe sanction

Ultimately, Vidal has been sanctioned for a “very severe mistake” in “violating his basic duty to be loyal to the Constitution and the legal framework”, which is a regulation included in article 147.14 of the Judicial Power Law (LOPJ). However, at the same time, the CGPJ has also recognised that in drafting a proposal for a Catalan Constitution, he did not carry out “activities that are not compatible with his position as judge”.

The CGPJ has condemned him to a 3-year ban from the judiciary without pay. The 3-year sanction is the second most severe one possible, after lifetime expulsion. It also means that Vidal will lose his post as judge of Barcelona’s High Court and, if he decides to return to his judicial career, he will be assigned a new post somewhere in Spain. Now, he can appeal to the CGPJ, request to review the decision, or he can take the case to the Supreme Court, which is dominated by conservative and Spanish nationalist judges. Vidal announced he will take his appeal to the Supreme Court, which can take years to reach a final decision on the case. 

Some members of the CGPJ wanted lifetime expulsion 

The CGPJ initially had on the table lifetime expulsion, as it was recommended by the promoter of the disciplinary process, Antonio Fonseca-Herrero. Some conservative members of the CGPJ were backing this sanction. However, the CGPJ has finally rejected the idea that Vidal developed an activity incompatible with his career as judge, an accusation that would have resulted in lifetime expulsion. Despite this fact, the body governing the judiciary has taken into account many of Fonseca-Herrero’s arguments, such as the one which states that any judge has always to act in respect of the current Constitution and that Vidal had not done it. Another argument that has been used by the CGPJ conservative majority is Vidal’s repeated public statements and participation in public events to debate about Catalonia’s independence. 

Vidal argued that the Constitution recognises freedom of expression, freedom of ideology and the possibility to propose Constitutional changes or to publicly debate about issues not included in the current legal framework. Fonseca-Herrero argued that judges do have those freedoms, but with more restrictions, since they have to appear as neutral in the court. A few weeks ago, when the Catalan judge went to Madrid to present his defence, Vidal insisted that he has always been neutral in the trials over which he presided during his wide career as judge and has always acted within the current legal framework. He also added that his political ideology and public activities does not affect his career as judge, as many other judges throughout Spain participate in public conferences expressing political opinions and they are not sanctioned by the CGPJ.