A few days ago, a prosecutor took to Twitter to complain about criticism of the Prosecution’s approach in the Catalan procés trial from certain sectors of the media. The tweet said that people have seen very few trials and the real work of the Prosecution begins once the cross-examining of witnesses has ended. I couldn’t agree more: the procés trial is being viewed by society as if it were a form a mass entertainment, expecting great speeches, unlimited oration and heated questioning. Perhaps the influence of American courtroom drama television series has confused the layperson who expects a resolute prosecutor cornering the defendant with incisive questioning while pointing the finger and beckoning to the public in the style of the The Good Wife. Justice in Spain is something different entirely and this, at least, is being made clear to the collective consciousness.
I believe, in fact, that we will emerge from this trial more mature as a society. The most important trial in the recent history of Spain will show us a number of things. First, that Justice is the last resort and should only act when all other public powers have failed. The trial of the procés will not mend the social fracture nor heal the wounds and it certainly won’t change anyone’s mind. It will only resolve the criminal dispute. Full stop. The Executive Power and society itself are responsible for resolving what’s happening in Catalonia.
The second lesson is that Justice and vengeance are two different things. Justice is not about being found to be right, as Ulpian said, but “to render each his own”: for the judge or court to apply the law to the facts deemed to be proven. The law applied won’t be the law that each individual citizen at home on their armchair would like to see applied, but the law in force, the law that the Legislative Power – which we all vote for every four years (or at least that was the case until recently) – creates, regulates and enforces for citizens. Thankfully, the judges in the Second Chamber of the Supreme Court and those who apply justice daily in every judicial district in Spain are subject only to the rule of Law.
The trial of the procés will also show us that the Judicial Power has become the lifeline of the State. For all the pressure on judges and all the media attention on the trial and all the noise made outside, the Second Chamber shall decide what is just, which is nothing other than ruling in accordance with the Law. Not only because judges in Spain, as Article 117 of the Spanish Constitution states, are independent, irremovable and subject only to the rule of Law, but also because they are European judges and, as public power, subject to the international agreements to which Spain is a party. The trial of the procés is evidence that the Judicial Power is always there, ready to ensure the rule of law and protect the rights of all.
As I stated at the beginning, if there is anything else this trial may be useful for it is to improve the legal culture of this society, which claims not to trust the Justice system, but which turns to the courts with blind faith to resolve its issues and follows with interest the development of the trial. This trial will serve to bring Justice closer to the citizen; it will help the public understand what the generales de la ley oaths are, understand the function of the Prosecutor, the Abogado del Estado and the private prosecution. Unfortunately, it will also serve to show the despair that will be felt, on the day after sentencing, whichever way it goes, by good people when they realise that the sentence won’t resolve anything, that the problem lies somewhere else and that it’s not the judges’ responsibility to fix it. That we are where we are is the fault of the governability pacts, personal egos and manipulation of one and the other.
The actions of the court presided by Manuel Marchena have been exemplary. Some have criticized the presiding judge for his deference to the defendants, while, as a jurist, I cannot but applaud this approach. The evidentiary value of the questioning of defendants is only fully appreciated when they recognise facts that are damaging to them. Logically, any defendant will present the version of the facts that is most beneficial to them. Let’s not forget that in Spain the Constitution allows defendants to lie. Therefore, it is not important if the defendants speak and talk about things that do little to contribute to their defence or their acquittal. Ultimately, in the end, the examination is another evidentiary element that, where it proves incriminatory, should be sustained in other evidence, as reiterated by the jurisprudence. However, restricting the deposition of the accused runs the risk of being deemed to violate their right to a defence.
The Prosecution, they say, is being too “soft” by not pressuring the accused. A trial being broadcast by live stream for the whole world produces artificial questioning, in which the unnatural nature and lack of preparation of the declarations is evident. There are many types of prosecutors and questioning methods but that will not impact the final result of the trial. What purpose does aggressive questioning serve? Do they really think that the prosecution will base the accusation on this type of evidence? And, more importantly, do they believe that the court will be convinced by a more belligerent prosecutor? Returning to the original tweeter and colleague: it is now that the Prosecution, after questioning the accused, must reveal all its accusatory arsenal.
In years to come, historians will write about this convulsive period in Spanish history in which, between December 2015 and April 2019 (less than four years) we’ll have held three general elections and experienced the biggest institutional crisis known to date thanks to those currently on trial at the Plaza de la Villa de París. They will study the instability, the coalitions between parties, the struggles for power, but also the solidity of the Judicial Power which, at times when the State needs it, will have stood up to the challenge and responded as expected. Not only the Supreme Court but also the courts of Catalonia where judges, prosecutors, lawyers for the justice administration and civil servants work in a manifestly hostile environment and yet continue to resolve the problems of citizens. Like the Cindarella of State Powers, working in silence.
*** Natalia Velilla Antolín, Judge and member of the AJFV National Committee