Criminal defense lawyerIn a book published at the beginning of the year (On the Rule of Law), its author, Javier Cremades, warns about the fragility of the rule of law.
The central thesis of the book starts from a fundamental idea: democracy is a fragile conquest that each generation must maintain and try to consolidate, relying on the judiciary as the ultimate counterbalance to maintain the established order. If the credibility of this power erodes with collective or unfounded criticism, the alternative we are left with is not institutional dialogue, but, ultimately, force.
For this reason, beyond any personal disagreement that a certain resolution may generate, the assessment should always be respectful and, as far as possible, based on a careful and impartial reading.
Despite this, the very virtue of the democratic values we have granted ourselves empowers us to criticize any resolution emanating from the judiciary. The Constitutional Court has spoken on the scope of this right, reminding us that respectful criticism is not only protected by freedom of expression but also forms part of the public and academic debate on justice, contributing to transparency and the improvement of the system.
In my opinion, legitimate criticism is directed at the legal reasoning, the interpretation of the law, or its application, without attacking the institution or its author.
With the purported fidelity to this premise of reasoning, I find it not easy to assess the recent ruling issued in the case against Begoña Gómez, in which restrictive precautionary measures are imposed on her personal liberty and that of another investigated person, for reasons that include my considering them incomprehensible.
Change of judge's criteria
From the outset, it is difficult to understand what the stimulus is that justifies the investigating judge's change of criteria, who, after almost two years of investigation, had not considered it necessary to adopt any precautionary measures. Given that this type of decision is made in a matter of hours, it is also not easy to discern the reasons why it has taken five days to issue an interlocutory order which, under normal circumstances, any investigating judge issues during on-call service in a matter of hours.
The resolution is based on premises of doubtful legal solidity and culminates in a series of personal assessments that, beyond the evidence of an interpretative bias, compromise the prestige of certain groups called upon to ensure, precisely, the validity of the rule of law.
As is known, the theoretical foundation for the application of a precautionary measure restricting personal liberty is based on an idea: absolute exceptionality and necessity to avert the risk of flight, destruction of evidence, or repetition of criminal acts, which are seriously compromised when the investigating judge's criteria have been repeatedly censured or corrected by the reviewing superior.
Adding to the exceptional nature of these safeguards is the fact that they affect the spouse of the president of the Spanish government. Beyond the reputational issue, the prohibition of leaving national territory compromises the diplomatic function inherent in the position.
In this scenario of reasonable doubt about the solidity of the commented resolution, we must continue to trust the jurisdictional system. The system of rights and guarantees that applies to criminal proceedings includes the possibility of referring any disagreement to a body empowered to confirm or revoke the investigating judge's criteria. And this is precisely the destination of the interlocutory order in question. We will all have to wait a few weeks until we can confirm whether the intuition of a few is well-founded or if, on the contrary, the Provincial Court shares the need to cautelarily ensure the presence of the investigated parties in the proceedings.
Despite everything, in the interim, whatever the decision of the Provincial Court, we will continue to lack a norm that carefully defines the personal and professional status of the spouse of the president of the government, to whom we cannot demand that, for the mere fact of being so, she renounces her personal and professional expectations.
