Judicial impartiality and the Supreme Court

Judicial impartiality is an essential content of judicial independence and consists of the fact that judicial actions cannot be produced based on prejudices, prior political opinions or subjective opinions that the judge may have, but necessarily based on a reasoned and founded objective interpretation of the norm. and without incurring unequal treatment between some defendants and others.

Nor can judicial independence and the separation of powers be interpreted as an impossibility for the legislator to legislate in a direction contrary to that resolved by final and firm rulings issued by the Supreme Court or any other judicial body.

Judges are subject to the rule of law and, therefore, to the legislature, which is not the government and is hierarchically above the judicial power (arts. 117.1, 9.1 and 10.2 of the Constitution).

This basic scheme is called into question by the Supreme Court in the following specific cases.

1.- Non-application of the Amnesty Law and the consideration of its unconstitutionality (Organic Law 1/2024 of June 10 on Amnesty for the political and social institutional normalization of Catalonia).

In the Supreme Court Order of July 24, 2024, Cassation 3269/2022, a question of unconstitutionality of the aforementioned law is raised, fundamentally based on the literal reproduction of fragments by academic authors or who were once judges, who express legal opinions contrary to the law.

The legislator has constitutional competence to regulate the matters he deems appropriate, unless the content of the regulation contravenes the fundamental rights of the Constitution or directly and explicitly contravenes any constitutional precept.

Therefore, the presumption of constitutionality exists in the actions of the legislator. It cannot be interpreted that the legislator only has jurisdiction over matters for which they have been explicitly empowered or enabled by the Constitution.

Nor can it be established that the amnesty is prohibited by the Constitution by virtue of the prohibition of general pardon in art. 62.1 of the same: STC 147/86 of November 25 establishes that the aforementioned precept is not equivalent to the consideration of the amnesty as a general pardon and, therefore, to its prohibition. Their legal natures are completely different. The Order of the Supreme Court, indicated above, and that of July 1, 2024, Proc. 20907/2017, praises the 1977 amnesty prior to the Constitution. It is said that it was approved by a large parliamentary majority, but to this we must add that then the PP and VOX did not exist, but rather the UCD, which was different, and the political background of the current right, Alianza Popular and Mr. Manuel Fraga, was They radically opposed the aforementioned law.

It must also be taken into account that this law exonerated from criminal and all types of responsibility officials and people who had engaged in practices of torture, imprisonment, and even homicides against opponents of the Franco regime. These were not required, as is now pointed out, to adhere to the democratic regime and retract their political opinion during the Franco dictatorship.

In those years there was a movement of organized prisoners, who were not political prisoners, who through COPEL (Coordinator of prisoners in struggle) demanded that they be given the same treatment as politicians to avoid what they considered discriminatory treatment. .

The Amnesty Law of 1977 and the current one are based on unique and favorable treatment for the group of beneficiaries of the law, who in this case are those who incurred actions favorable to the so-called “procés” and the officials who repressed it.

These acts are of political intention, consisting of the demand, promotion or procurement of the secession and independence of Catalonia.

Just as in the 1977 Law, acts contrary to fundamental laws, then in force since they had not yet been explicitly repealed by the Constitution, were amnestied, now acts contrary to the constitutional order were also amnested.

The explanatory memorandum of Organic Law 1/2024 (BOE June 11, 2024) has an extensive preamble that sufficiently justifies its constitutionality. The law does not violate the right to equality and the prohibition of discrimination; As occurred with the 1977 Law, unique and favorable treatment is given to an identified group. It is not possible to compare it because there is no homogeneity or substantial equality with groups in another different framework, such as the demand for self-determination of the Sahara or the political protest against excessive rents.

Throughout the entire “procés” there was no physical or collective violence, which is why the “procés” sentence rejects the existence of a military rebellion or coup d’état and conviction for sedition. The Constitutional Order introduces for the first time a new and different fact, such as the attempted coup d’état, and states for the first time that there was a confrontation between coup plotters and democrats, a totally uncertain matter.

The aforementioned Order of July 1, 2024, considers the Amnesty Law inapplicable to the crimes of embezzlement of public funds. The Supreme Court completely distances itself from the criteria for interpreting the law contained in art. 3 of the Civil Code, since the literal nature of the rule requires that the use of funds be amnestied to cover the holding of consultations, electoral calls or preparation of events or subsequent ones, provided that there has been no purpose of personal enrichment.

The Order does not investigate whether or not the subjective requirement of enrichment purpose is met, but is limited to establishing a priori, in contradiction with the provisions of art. 1.4 and consistent with the law, that objectively there is personal enrichment because, instead of with public funds, they had to pay the expenses at their own expense, and by transferring these expenses to the funds, personal enrichment occurs. Too forced reasoning.

2.- The Supreme Court also commits unreasonable actions by admitting the complaint against the State Attorney General for revelation of secrets.

The Superior Court of Justice of Madrid considered the information note of the Prosecutor’s Office to be evidence of the crime of revelation of secrets; it contradicts its own thesis, regarding the scope of the right to information about judicial or prejudicial proceedings in the complaint against the Judge Peinado, in which he established the prevalence of the right to public information. It is also unconstitutional: an exercise of the right to public information cannot be considered an indication of a crime, especially if the legal obligation of information on the part of the Prosecutor’s Office is met.

According to the doctrine of the Constitutional Court (STC 177/2015, FJ 2°), the judicial body must previously assess whether the apparent crime of revealing secrets actually constitutes a fundamental exercise of freedom of information or expression, so that if this occurs element cannot constitute any criminal offense or indication, since the exercise of fundamental rights cannot in turn constitute a criminal offense (STC 89/2010 of November 15, FJ 3rd).

Despite this binding constitutional doctrine, the Supreme Court has initiated legal proceedings against the aforementioned prosecutor, entrusting the central unit of the Civil Guard, UCO, with the adoption of measures such as cloning all mobile devices, telephones, emails, etc., of the attorney general, although these excessive and disproportionate measures were later partially rectified. These measures violate art. 8 of the European Convention for the protection of human rights, protection of private life and confidentiality.

STC 173/2011, FJ 4º, of November 7, cites a ruling of the European Court of Human Rights of May 22, 2008, case Iliya Stefanov against Bulgaria, according to which the registration of a lawyer’s office, including the electronic data, is equivalent to an interference with your private life harmful to art. 8 of the agreement, and reasons that the judicial search warrant had been drawn up in excessively broad terms and was carried out disproportionately by the police.

The Supreme Court’s instruction also makes a legal error by pointing out that the UCO’s actions and report constitute expert evidence; in accordance with art. 247 of the Criminal Procedure Law and with reiterated doctrine of the Constitutional Court, police reports only have the value of a complaint and, in any case, if they are ratified in the oral trial of testimonial evidence, without enjoying the presumption of certainty, as occurs in the contentious administrative order with minutes of the Treasury Inspection or in the labor Inspection of Labor, STC 31/81 of 28 July, and 25/85 of February 22, 173/85 of December 16 FJ 2nd antepenultimate paragraph.

The very broad interpretation that the instructor makes of the crime of revealing secrets and the possible participants in the same in their institutional role as prosecutors may give rise to these broad interpretations also occurring in relation to the instructor himself, since articles 417.12 and 418.8 classify as a fault the disclosure by the judge or magistrate of facts or data known in the exercise of his function or on the occasion of this, when any damage is caused to the processing of a process or to any person.