He has just been appointed president of the Independent Judicial Forum to replace Fernando Portillo, a judge who at the association’s last congress, to which Bolaños was invited to attend, did not hesitate to raise the race’s objections to his reforms to him. … Continuing his colleague’s mandate, Barcelona Regional Court Judge Roberto García Cenicero looks with concern at the attack launched by “some politicians” against the Supreme Court for the conviction of García Ortiz. He warns that attacks on the judiciary have been occurring for some time “with greater frequency” and “more dangerous intensity.”
Several associations of judges called on the government to take responsibility for its criticism of the Attorney General’s ruling. Do you think the government has crossed the line of institutional respect?
Some statements, of course, exceeded the limits of respect for institutions, separation of powers, and independence of the judiciary. The procedure itself is sad for all citizens, regardless of the punishment, because the image of the prosecutor’s office was greatly damaged. What seems absolutely unfair to me is now launching this kind of wild criticism against the Supreme Court justices who made that decision, not just because they disagree with the ruling, which seems to me completely understandable and respectable, but because there is political intent attributed to the person who made it. It crosses all limits because the commission of the crime is directly attributed to these judges, and this is very serious.
– Why was all this importance given to the Supreme Court to present the ruling when this was done on other occasions, and in fact the Constitutional Court always does this?
– With the Constitutional Court, this is common practice, and this is true. Here I think that whoever wanted to criticize the ruling has sought all the arguments at hand. It is true that this ruling is particularly important to the person and the institution it affects, and it would have been better to know the arguments at the same time, but beyond that, what is dangerous, as I said, is to attribute political intentions directly to the justices of the Supreme Court.
The freedom to criticize judicial decisions has been resumed. Where is the dividing line between the freedom to express an opinion and the judicial decision, and what is happening now?
– Criticism of the decision seems quite legitimate to me, but it is not the same for the ordinary citizen who criticizes it as for the head of another authority of the state, because if the person speaking is a member of the government or a representative of Congress, then this branch of the state indicates the content of the judicial decision or tries to influence it. It is true that this trial had a very important public exposure, but those who know the full extent of the evidence are the judges themselves. We can all have an opinion about whether García Ortiz is innocent or guilty, and in this sense, the citizen can, as I understand it, criticize the content of the decision. And what crosses all borders is what some politicians said here: which is what the judges condemned because they wanted to attack a particular government, and attributed to it political intent, by the way, I don’t know if they also attributed it to individual votes, because if the judges dictated their decisions on the basis of their political affiliations, then I understand that they would be both. I don’t think anyone should tear themselves apart when it’s said that a judge made a mistake. The problem is that judges make mistakes, which is why the appeals system exists. Neither I nor any of my colleagues have the right to consider ourselves infallible. In fact, the system itself is designed specifically around the possibility of judicial error, but that is another thing because when he says that a judge deviates from the rule of law, from the evidence he has seen, because of his political affiliations, he is directly accused of evasion. It is as if I am saying now that a minister or representative issues a decree or votes for or against a specific law for an economic interest or an interest that exceeds the public interest… then I attribute to him the crime of corruption. And I think this is nothing more, nothing less, what these politicians do when there are judges like this.
– Do you think that there has been a political campaign against the judiciary for some time? Is separation of powers in danger?
– It is clear that there are clear attacks, and it is also clear that they are occurring with greater frequency and more severe intensity. I want to believe that the independence of the judiciary is not in danger, but it is true that we are witnessing continuous attacks, almost daily.
Was the Public Prosecutor’s conviction expected?
-Honestly, I didn’t have any ready judgment on this subject. I’m not a criminal lawyer and I also have a habit of not being too tainted by these media trials. It’s a personal question, since almost since I started my studies, I’ve already had enough of those on the table without starting to make value judgments about the issues others are dealing with. Yes, I am aware of the work behind it, and how difficult it is to prosecute something without knowing all the evidence, which is often the case, and above all, the danger involved in parallel prosecutions.
Should he have left his position before the trial?
-As I said before, this process is particularly sad, regardless of whether it is an acquittal, because there have been leaks of archival data that came from the prosecutor’s office, and data from compliance negotiations, especially archival data. I think people sometimes don’t realize what that really means, because it’s not like leaking a statement from the accused, which is ultimately part of the proceedings and is often leaked by the parties, into a communication that is submitted with the prosecutor’s office to reach a compatible agreement. Because this is not a leak of a judicial proceeding, it is a leak of data that, in fact, we judges cannot know. They are so secretive that they are outside the procedure. And if you were seeking a matching agreement because you were accused and you were seeking it from the prosecutor’s office and it was the prosecutor’s office itself that leaked that information, then as head of the prosecutor’s office, you had to bear some kind of responsibility. Beyond that, the image of the Public Prosecutor on the stand wearing the robe of a State Prosecutor, accused in a proceeding in which a member of the Public Prosecutor’s Office, his subordinate, was also acting and intervening, in fact the role of the Public Prosecutor’s Office was completely unhelpful. The prosecutors who worked on this matter were clearly affected by this relationship of dependency, although they subsequently took appropriate measures internally.
– Do you think that the Public Prosecution is in a position to take over the criminal investigation?
-No, not at all. I say this with some regret, because when we say that judges must continue to carry out the investigation, this is not a matter of name, but rather that whoever undertakes the investigation must be a body, an institution, that operates with complete independence and autonomy, and in this case in Spain it is clear that it does not have that because at the top of the pyramid, with strict subordination relationships, there is the State Prosecutor who we all know is appointed directly by the Head of State. the government. The consequence of this is also clear: spaces of impunity may be created for crimes that may be committed by politicians who appoint these prosecutors, and which are subject to ex officio prosecution.
Another derivative of this is the limits of popular accusation. Could this reform create spaces for impunity?
– Certainly, and this is the biggest problem. It is true that the popular accusation was distorted to ultimately be a specific political intention, but the meaning of popular action is precisely this: apart from being a constitutional right, it is necessary in crimes in which there is no direct victim that will constitute a special accusation, such as corruption crimes, which can only be prosecuted through the Public Prosecution and popular action. If we limit popular action and have a public prosecution, as we said before, subject to executive authority, we open the way to the possibility of corruption that goes unpunished.
Before the summer, the judicial profession went on a historic strike. Will they return to the fray if the government goes ahead with the Bolaños law?
-Of course, if the project is rehabilitated, we will return to the battle, clearly, not only because the Access to Justice Act is the opposite of what we understand as necessary for judicial work, but also because, in addition, there are agreements signed with the Minister that have not yet been implemented.
-What concerns you about access to justice under the law?
-Okay, several questions. First, the civil servant stabilization project could very seriously affect the professional conditions for the recent promotions of judges, because although the text provides for the integration of substitute judges from behind, as planned for stabilization, they are able to advance over opposition judges. We also recognize that the access of a thousand people now to the judicial and financial professions would clearly violate the principles of merit and eligibility. The Minister is starting from a blatant lie when he tries to explain to us the benefits of this law by saying that Europe obliges us. It is true that Europe asked us to solve the alternatives program, but it must be solved in ways other than necessarily through entering the bloc. Not to mention the problem of independence, because it seems that the government, or even the legislature in this case, assumes the possibility of determining the thousands of people who can or cannot enter the judicial profession. We defend the current model of access to the judicial profession, the opposition model and the fourth shift system. Of course they are open to improvements, but what they seem to be trying to do is demonize the current opposition regime, which we understand to be a regime that has provided many benefits.
-Do you think there is an attempt by the government to politically influence the composition of the race?
This is the impression, without a doubt. There appears to be an intention on the part of the judge to conform to a certain political pattern. It is true that scholarships are necessary today so that no one is left out, but it is unfair to say that the current competitive examination system means that only privileged classes have access to a judicial career. I don’t think we’re special or children of judges or anything like that.
– What is Bolaños’ relationship with judicial societies?
– Bolaños behaved in a completely dishonest way, he conveyed false messages to the citizens, we have told him this many times and he will never correct it. He tries to justify his actions, such as integrating alternatives, by saying that they come from Europe and that’s it. The same thing happens with the system of electing Council members, but Europe does not care there. The Venice Commission said it supports the current electoral system. Either he has trouble with reading comprehension or he simply wants to lie. This is a working method that makes the relationship between associations and the judiciary in general with the Ministry of Justice very difficult.
– What can be done to comply with what Europe said? What tools do we have to force this change in the CGPJ election model?
– I believe that until Europe places some kind of sanctions and economic measures against the government of Spain for not meeting the standards of judicial independence and respect for the rule of law, we will continue as we are. It is clear that the current government has no desire to reform the system of electing members of the judiciary. The Venice Commission has been quite clear on this, so we will have to keep fighting. We don’t have more. The truth is that the situation is worrying.