Spain’s Judicial Power will not punish 33 judges that supported Catalonia’s right to self-determination

Barcelona (CNA).- The Disciplinary Commission of Spain’s Judicial Power Council (CGPJ) has finally stated that the 33 judges who signed a manifesto supporting Catalonia’s right to self-determination in March did not break any norm. According to the CGPJ’s statement released on Thursday, from “a strictly legal” point of view, the 33 Catalan judges – some of them very senior – were expressing “an opinion on an issue of legal, social or political interest” and such an action “is protected by fundamental freedoms such as the freedom of expression and opinion, guaranteed by Article 20 of the Constitution”. The 33 Catalan judges emphasized that “Catalonia is a nation”, “without discussion”, and therefore has “full sovereignty to decide on its own future”. They added that the Spanish Constitution already recognizes “Catalonia’s national reality” and they concluded that the right to self-determination fits into the current constitutional framework and is in line with international law. 9 months after such statements, the  CGPJ has filed the case and will not take disciplinary actions against them, after an extreme-right and Spanish nationalist organization, Manos Limpias (which has nothing to do with its Italian homonym), had filed a criminal complaint against them. Besides, Madrid-based newspaper ‘La Razón’ had published on its front-page the ID pictures of the 33 Catalan judges, which had probably been leaked from Spanish Police files, as a sort of ‘most wanted’ warning. This Thursday, after knowing the CGPJ decision, the President of Catalonia’s Supreme Court (TSJC), Miguel Angel Gimeno, asked the 33 judges for “an appearance of impartiality” and he pointed out that they should not carry out any action that could go against this principle. A spokesperson from the 33 judges welcomed the CGPJ’s decision. However they do not think their action was wrong from a deontological point of view, as the Madrid-based body suggested.

Some of the manifesto’s signatories work in provincial High Courts and have been members of the body governing judicial power in Spain (CGPJ). It was the first time that Spanish State civil servants have made such a clear statement supporting Catalonia’s right to self-determination. Judicial power in Spain is totally centralized and has a deep centralist tradition. Judges working in Catalonia come from all over Spain and they are managed by a Madrid-based body.

The 33 judges stated that the Spanish Constitution already recognizes “Catalonia’s national reality”. They add that if “this recognition was not more explicit at that time” it is because of the transition model from dictatorship to democracy and “the danger of involution or authoritarian threat”, confirmed in 1981 “with the coup d’état”. According to these legal experts, the right to self-determination is not mentioned within the Spanish Constitution and, therefore, it is to be interpreted according to international legislation and from a “lively and dynamic perspective, not a sacrosanct one”. They conclude that the Catalan people’s right to decide on its relationship with the rest of Spain fits into the current constitutional framework and is in line with international law.

The CGPJ criticizes the 33 judges from a “deontological” point of view

The CGPJ Member, Jesús Fonseca-Herrero, who had been dealing with the disciplinary actions to be taken against the 33 judges stated he cannot identify any irregular action from a “strictly legal” point of view. The judges would only “seek the goal of sharing with the citizenry their opinion about an issue of legal, social or political interest”, recognizing that this action “is protected by fundamental freedoms such as the freedom of expression and opinion, guaranteed by Article 20 of the Constitution”, wrote Fonseca-Herrro. They were “only giving their legal opinion in order to protect the right of citizens to participate in public affairs and to decide on potential legal affairs”. 

However, the CGPJ stated that from a “deontological” point of view, what the 33 Catalan judges did is “censurable”, since “it damages the citizen trust in the judicial power”, particularly “because they make a statement without normative support and it contradicts the Constitutional doctrine when they implicitly recognize Catalonia’s quality of legal, political and sovereign subject”.

“Catalonia is a nation”

According to the manifesto, the key issue of the debate is whether the reality of Catalonian nationhood and therefore its “full sovereignty to decide on its future” is accepted or rejected. The judges stated that it is a fact “that does not admit any discussion: Catalonia is a nation” because of its history, culture, own language and a “repeated and persistent will to be recognized as a distinct society, fully compatible with its integrating character”. 

Catalonia’s national reality is “at the basis of the 1978 Constitution” and in the Statutes of Autonomy of 1979 and 2006. “If such a recognition were not more explicit at the time”, it was because of “the model of transition from dictatorship to democracy” and the “danger of involution or authoritarian threat”, which was confirmed in 1981 “with the coup d'état” that took place on the 23rd of February. Furthermore, the manifesto pointed out that the 2006 Statute of Autonomy was “grossly distorted” by the Constitutional Court “in essential aspects regarding national identity and self-government”.

Catalonia’s “undoubted nationhood status […] inevitably involves the recognition of its right to self-determination”.  The so-called ‘democratic principle’ frames both the international legal framework and that of the European Union. Therefore “the denial” of Catalonia’s right to self-determination “can only be understood and expressed by strictly following ideological and political criteria that deny the national reality of Catalonia”.

The restrictive interpretation of the Spanish Constitution created the current situation

The ruling of the Constitutional Court in 2010 created the current situation, according to the judges, who mentioned the massive demonstrations of 2010, 2012 and 2013. They also highlighted the opinion polls and published statements made by political parties, trade unions and social organizations, which showed that “a large part of Catalan society wants to decide the nature of its connection with Spain, and to do so choose from all the options, including independence”.

For the manifesto signatories, the right to self-determination can be exercised within the current Constitutional framework. They underlined that the 1978 text is based on the principles of freedom, justice, equality and political pluralism. “In any case, any Constitution should allow an ongoing discussion and evolution process and the subsequent acceptance of any legitimate project aiming to modify the constitutional order”, the judges said.

Then the text detailed some articles of the Constitution that protect political rights and freedoms, including the organization of referendums. In addition, the judges state that “the Constitution’s precepts relating to fundamental rights and freedoms must be interpreted according to the Universal Declaration of Human Rights and the international treaties and agreements ratified by Spain”. 

International legislation supports Catalonia’s right to self-determination

The manifesto cited Article 21 of the Universal Declaration of Human Rights which stipulates that “the will of the people shall be the basis of the authority of government”, as well as the right to self-determination contained in the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.

The judges pointed out that according to criteria related to the recent case of Canada, the right to self-determination is “not only limited to the peoples ruled or oppressed by foreign powers, but it extends to those people that, despite being integrated into a democratic state, suffer a limitation of their right to self-government”.

Therefore, the judges concluded that “in the current Constitutional framework, interpreted in the light of international legislation and the fundamental principles and rights that inspire it, the legitimate exercise of the right to consult [the citizens] demanded by a majority of Catalan society is justified”.