Ramón Sáez Valcárcel, Spanish High Court judge: "We are witnessing institutional decay of General Council of the Judiciary and we must seek replacement models"

BarcelonaRamón Sáez Valcárcel is not one of the High Court's most mediatic judges, but he has heard cases which have been all over the headlines, such as the acquittal of Catalan police major Josep Lluís Trapero or the protest surrounding the Catalan Parliament in 2011. In the interview, however, he declines to answer any questions about cases he has handled. He is in Barcelona to give a conference called Dialogue and Reparation as a Means and Objective of Criminal Justice within the framework of the Chair of Social and Restorative Justice of Universitat Rovira i Virgili - Pere Tarrés Foundation, directed by Professor Esther Giménez-Salinas. It is the only one in Spain on the subject and, curiously, is organised by the Faculty of Social Education and Social Work and not the Faculty of Law.

Does Spanish justice tend to repair or to punish?

— In the last 25 years, especially since the reform of the Penal Code in 1995, there has been a tendency to exalt punishment and prison and, although the concept of restorative justice has been introduced, or the possibility of dialogue and agreements within judicial processes, these have been marginal expressions. Restorative justice has permeated the debate of ideas, but in practice it is a marginal issue compared to the exaltation of punishment and imprisonment.

Even in corruption offences there are sentences that explicitly opt for handing down prison sentences as an exemplary measure.

— This is another expression of the social and political context. It has been forgotten that criminal law, punishment and, above all, prison are the last resort. When criminal law has to intervene, what we see is that all the other mechanisms have failed.

Is it because there is not enough culture of mediation in Spain?

— There is no space for repairing the damage, for dialogue and for reintegrating the offender. In the times we live in it seems that everything that is given to the accused is taken away from the victim. We should look for alternatives where it is possible for the victims to intervene and listen to them, protect them and offer the reparations, also emotionally, but also the accused, because we have high rates of recidivism and it has been proven that the longer the sentences, the more recidivism there is.

Are victims sufficiently placed at the centre of the process?

— No. We have to ask whether the criminal justice system provides sufficient space to listen to the victims, to respect and restore their dignity, to repair them symbolically, and it seems to me that this is not the case. The victim continues to be treated as a witness to reconstruct the facts and to get a sentence passed.

Does the concept of justice need to be rethought?

— Yes, permanently, and even more so in criminal justice. The figures for imprisonment, to which we must add the people interned in detention centres for foreigners or refugee camps, are proof of a society and powers that believe in solutions that do not bring anything positive. We have to ask ourselves what kind of society we live in that is capable of feeling morally comfortable in the face of the deaths in the Mediterranean, which challenge us morally and challenge states and justice systems. Our societies are constructing the framework of what is human in a very selective way, believing some lives that are dispensable – and this should make us concerned.

Why haven't you become a Supreme Court judge?

— It doesn't depend on me, you get there by appointment

You have tried twice. The second time, you even questioned the court saying: "What's the problem?"

— No. The problem with appointment policies is that they apparently work on the mechanisms of meritocracy, but reality shows us that often it is not merit that works but other criteria such as cronyism, clientelism, and that is why these appointment policies are so questioned. The world of judges is a pluralistic world and we should be proud of it, and certain policies cut back on this pluralism.

Does this pervert the system?

— Obviously, merit and ability are objective criteria, but if they are not established, everything is open to opinion and everything seems open to opinion.

Should the configuration of the General Council of the Judiciary be changed?

— The General Council of the Judiciary made sense in the Spanish judicial system to guarantee an administration separate from the work of the judge who has to be able to exercise independence. The problem has arisen in practice and we are possibly witnessing phenomena of institutional decomposition and we will have to think of replacement formulae or juridico-political formulas that allow us to improve and generate more consensus.

Even if it were not a body like the one that now exists?

— The model of councils – like the Spanish one – only exists in some countries. In Germany, for example, it does not exist. There are more possibilities. The crisis of the institutional system of the judiciary's governing bodies raises this need to look for alternatives