Daniel Escribano: "The judiciary has consistently overprotected the unity of Spain."

BarcelonaDaniel Escribano (Palma, 1978) holds a PhD in sociology and is a translator. He has published Political trials under Spanish militant democracy (Documenta Balear), in which he analyzes four judicial processes: the conviction of Batasuna senator Miguel Castells for pointing the finger at the government for the dirty war against ETA, the case of the siege of the Parliament in 2011, the case against Valtónic and the judicial repression of the Process.

What is the common thread in these cases?

— Historically, political crimes were considered to involve violence. Or not necessarily, but they could: two typical examples are rebellion and assassination. In these four cases, violence was absent. The criminalized conduct is protected under the exercise of fundamental rights.

Castells' conviction dates back to the 1980s and was overturned by the European Court of Human Rights (ECHR). Does the judiciary learn from its mistakes?

— On the contrary. There has been a hardening of the law, which, moreover, affects not only Spanish judicial bodies but also the European Court of Human Rights. This is primarily related to the hegemony of the right wing. Iñigo Iruín, a lawyer with extensive experience in political trials, said that, in the past, the real battles for political crimes took place in the Supreme Court, on appeal. There was a very high rate of reversal or reduction of sentences by the National Court. a court highly criticized by legal scholars. Currently we are facing the opposite situation.

He says there has been a hardening of the political landscape linked to the hegemony of the right, but the PSOE has been in power in Spain since 2018. How can this be explained?

— For five years, the General Council of the Judiciary's mandate had expired. The People's Party (PP), knowing it was a strategic body, refused to renew it. Initially, there was a preliminary agreement between the Socialist Party (PSOE) and the PP whereby the well-known Manuel Marchena would have been president. In any case, the government has not dared to proceed. to apply the same as with RTVEwhich is to reform the organic law of the judiciary so that a qualified majority is not required.

Marchena was the judge who handed down the sentence against the activists of Aturem el Parlament. Was there already an embryo of the October 1st sentence there?

— Yes, of course. The National Court acquitted the activists, with a dissenting opinion from the current Minister of the Interior, but the Supreme Court found a crime against state institutions and convicted them. This ties in with the argument used in the October 1st ruling, when it spoke of a "coercive climate" which implies that a gathering of people exercising their right to assembly, due to its size, can already constitute a crime.

Taking advantage of the fact that this Saturday was Constitution Day: has the Spanish justice system completely turned the page on a regime like Franco's?

— If we compare it to that... But one of the things that is seen a lot, and even including the same ECHR ruling on provisional detention And the denial of prison furloughs to Sánchez, Turull, and Junqueras highlights the central role played by the unity of Spain as a legal right to be protected. This overprotection has remained unchanged. On October 1st, no one defended the referendum results militarily or violently. Javier Pérez Royo, for example, has said that with the application of Article 155, all of that could have ended there. When there is no direct threat, resorting to criminal law is difficult to understand. And, within the high judiciary and the economic elite, changes have also been minimal.

Can there be a Spain, as a state, that does not overprotect this unit?

— Yes. Resorting to criminal repression only complicates conflicts. It exacerbates and accelerates the crisis. These are arguments often used by the PSOE, but here it's quite true.

Now it is the PSOE itself that is talking about lawfare. Is this good news or is it opportunistic?

— It could be one thing or another. We'll have to see, because the PSOE specializes in making announcements and then doing nothing. I think it's quite obvious they're suffering. lawfareAlthough I haven't studied it in depth. One nuance: not all repression is lawfare. He lawfare It is a form of political harassment against authorities by simulating economic crimes.

The book concludes that Spain is a militant democracy. Please explain what this means.

— The concept was devised by Loewenstein, a German liberal constitutionalist exiled in the United States during the interwar period. It outlines measures that restrict fundamental rights and are applied in defense of state institutions. These include insults against the Crown, the head of state, or other authorities; disqualifications from holding public office; and the removal from public service of officials deemed unsupportive of the regime. It also includes the banning of political parties. He praises it, saying it demonstrates a democracy determined to endure.

When these tools are used against the far right, is that also a bad idea?

— Loewenstein speaks of protecting against communism and fascism. But, in practice, it's clear against whom it will be used. And beyond that, there's a principle that criminal law is the last resort.

Since 1978, has the State accepted the multilingual reality?

— One of the positive aspects of this legislative session is that the other official languages of the Iberian Peninsula can now be used in Congress. However, in the case of the judiciary, it's outrageous. There are no guarantees of truly accurate interpretation or translation. And indeed, there have been many cases of bad faith interpretations and translations of documents, some involving terrorism cases in the National Court.