Carlos Castresana, fiscal: "We do not have a truly independent judiciary"

BarcelonaCarlos Castresana has just published Under the Gowns (Tusquets, 2025) on judicial errors throughout five centuries of history. This career prosecutor, since 1989, has been a member of the Anti-Drug Prosecutor's Office and the Anti-Corruption Prosecutor's Office of the Supreme Court and is currently a prosecutor at the Court of Auditors. His career is notable for having authored the complaints that led to the prosecution of Generals Pinochet and Videla.

You are doing something unusual, which is pointing out judicial errors.

— It's not that unusual. It's true that there's little tradition of this in Spain, but there is in Anglo-Saxon countries and France. In my case, I've worked for many years in the criminal justice system and have repeatedly identified procedural flaws. The book aims to draw attention to these errors and prevent their recurrence, which is also a sign of humility for legal professionals. We deal with sensitive material and must handle it with care. Sometimes people approach the justice system frivolously.

With little humanity?

— Yes, with little humanity. Because you may think a crime is horrific, but behind it are human beings: the perpetrator and the victim. We must correct these situations without making them worse than we found them: provide reparations to the victim and give the perpetrator what the law dictates, not what the judge decides. The problem isn't that mistakes happen—all human endeavors are imperfect—but that they aren't corrected and the system continues to perpetuate them.

It reviews judicial errors spanning up to five centuries. Which are the most far-reaching?

— Sometimes these are not just mistakes, but infamies or intentional actions. I have classified errors into different groups. The first is the error of words, which we sometimes overvalue in the context of legal proceedings, for example, when there is only one witness corroborating certain facts and we must ensure that they are not mistaken or lying. But sometimes the opposite also occurs, that a witness is disregarded, for example, the testimony of a woman who says she was raped. Words must be valued appropriately. The second group is circumstantial evidence and incriminating and exculpatory facts. Circumstantial evidence is the most difficult to apply in criminal proceedings and the one with the most unjust convictions. And the third group, I have titled He bullringThis is when someone maliciously takes advantage of criminal law to sweep away the enemy, and the issue here is that the system must detect it and prevent an innocent person from being convicted.

Now that you mention circumstantial evidence, I must ask you about the conviction of the Attorney General, at least without direct evidence. What do you think?

— I prefer to wait for the full text of the ruling. I haven't commented yet either, because I'm a practicing prosecutor and I'm advocating that no pressure should be put on the courts. We should wait for the court to issue its ruling on the defendant's release and then see if the decision is justified.

Why is it controversial in the State to criticize a court ruling?

— In this country, there hasn't been much criticism, and even some apprehension. I believe it should be there because it's good for pluralism and transparency in the courts' actions. The problem in Spain is that there's no democratic tradition in the judiciary. We inherited an apparatus from a dictatorship that hasn't been thoroughly reformed like the army, the Civil Guard, and the intelligence services were during the Transition. We have an authority [the judiciary] that generates fear and doesn't connect with society; there's opacity, and this doesn't help citizens feel a sense of belonging to the system.

What changes should be made?

— The judicial system in Spain must be completely reformed. The competitive examination system must be more pluralistic and transparent, and there must be greater openness to society so that candidates for judgeships and magistrates do not always come from the same conservative social sector.

This is one of the changes the Spanish government is proposing. Do you agree with the other major change it's pushing for, which is for prosecutors to take over judicial investigations?

— There are not enough prosecutors now to implement this change. The issue isn't who is conducting the investigation; the issue is whether they have sufficient independence and the guarantees necessary for citizens to trust that the investigation will be impartial and not driven by any political agenda.

Are prosecutors now considered independent?

— No, the relationship between the government and the attorney general is not transparent. It's a shadow of distrust that hangs over the entire system.

And the investigating judges?

— Relatively speaking. They depend on the General Council of the Judiciary (CGPJ), which is itself elected by political parties and associations and which, at crucial moments, has become a conduit for the Congress and the Senate. There is a blurring of roles that allows us to assert that, from the Transition to democracy until now, we still do not have a truly independent judiciary, and this is very important in a state governed by the rule of law.

Are there judges who act politically?

— Judicial activism has always existed because politicians have not been able to solve the problems.

Is the Begoña Gómez case a case of judicial activism?

— I will not comment on cases that are in progress.

What reform would you make to the General Council of the Judiciary?

— It's not about who proposes the candidates, but rather about ensuring a genuine vetting process to select the best based on merit and ability, because they are the ones who safeguard judicial independence. They cannot be a mere mouthpiece for political parties. Their rulings should be scrutinized to guarantee they meet the required standards of excellence.

Should having convictions against Strasbourg count?

— This should be a major disqualifying criterion, as it means that what has been dictated is not in accordance with the European human rights system.

How was Pinochet persecuted?

— It was interesting, an unusual and somewhat naive initiative that was nonetheless full of reason. Pinochet's case wouldn't have been possible in the 1980s because of the Cold War, nor in the 2000s with the war on terror. International justice works like the tides: it comes in when conditions are favorable and recedes when conditions are hostile.

The possibility of universal jurisdiction has been closed in the State.

— We had success with Pinochet, with Videla, then progress was made in the case of Guatemala, and when Tibet and Guantanamo were brought up... the first lock was put in place under the Zapatero government and then under Rajoy, and now there is no universal jurisdiction. It is a setback and puts us in a position of non-compliance with our international obligations, which is to prosecute genocide and crimes against humanity universally.

Has Netanyahu committed genocide?

— There is circumstantial evidence. The International Criminal Court must move forward with the proceedings and demand accountability.

And Putin?

— It's different; I see crimes against humanity and war. It's harder to say he wants to exterminate the Ukrainians, but I think that in the case of the Israeli leaders, they do have that intention. They don't hide it; they say they want to rid Gaza of Palestinians, which is the same thing Hitler said about Germany and the Jews.

How do you assess the fact that the crimes of the Franco regime have not been investigated in Spain?

— Not only have we been unjust to the victims of the dictatorship, but we have also been unduly amnesiac about our own history. We need a truth commission. That way, surely, there wouldn't be so many far-right youth.

What do you think of the amnesty?

— I will not comment, it is sub iudiceIn short, I would say that amnesties imply recognizing that there has been an exceptional situation and that, in the interest of society, we must turn the page for the sake of reconciliation and coexistence. Any measure that contributes to coexistence should be viewed favorably, but I am not making a specific comment on this amnesty law.

The trial against the Pujol family begins this Monday. Do you believe the former president should be tried?

— The Penal Code states that, as a general rule, except in cases of very serious crimes, people over seventy should not be imprisoned even if they are guilty. A ninety-five-year-old would hardly be in a position to defend themselves adequately. The rules would make it repugnant to allow such an act, which would be almost an act of revenge against someone who cannot defend themselves; it would be an abuse of power.