On Trial: The Spanish judiciary

Justice, administered and delivered by judges and magistrates in Spain, is administered and delivered in the name of the King. The King, in addressing a legal profession gathering in Barcelona, has reminded judges that it is they alone who impart justice. On Saturday, the King's son-in-law appears in a Palma court. The judge presiding over the "caso Nóos" is consulting with not just the prosecution but also the government and the Partido Popular as to whether they wish the King's daughter, Princess Cristina, to be indicted as part of this case.

Make of this little mix what you will, as there is an awful lot that can be made of it.

Under the Spanish Constitution, the judiciary is independent, and so of course it should be. But the extent to which it truly is independent or neutral is coming under increasing scrutiny. The Garzón affair has raised serious doubts, and the royal family having become embroiled in the wider investigation and trial of the former president of the Balearics, Jaume Matas, raises more doubts.

Let's be clear. If, and one stresses if, there is a case for the King's daughter to answer, then so be it. The royal household, from the outset of the investigation of the Duke of Palma, has made it clear that it respects the actions of the judiciary, but justice being administered and delivered in the name of King when it might involve the King's daughter, as opposed to a commoner (which the Duke is), highlights just how much of a dilemma has been created by the investigation.

For Judge Castro, the dilemma is enormous. By consulting with the government and a political party, he runs the risk of being seen to be subject to political influence. Should it not be his decision and his decision alone? Possibly. But by counselling the wishes of the political class, or a part of it, he is placing the dilemma in the hands of this political class.

In some respects, one could say he is playing a blinder, as he is handing responsibility elsewhere. But however the political class decides to play things, it will be criticised. Firstly, it will be criticised for getting involved at all. Secondly, if it says it does not wish the Princess to be indicted, it risks being accused of applying one rule for one and one rule for another (assuming, that is, there genuinely is a case to answer, and most noises have suggested not, as with the evidence of former Olympic sailing gold medallist, "Pepote" Ballester). Thirdly, if it says it does wish the Princess to be indicted, then it potentially opens up a massive can of worms.

The reason why this can of worms might be opened up is that a trap has been laid by the right-wing union Manos Limpias. In calling for the Princess to be indicted, if the government and the PP were to follow its demand, the union would, in effect, receive official backing. For the government to be perceived as acceding to the wishes of a union with the type of associations it has, i.e. Francoist, could be hugely damaging.

The government will be damned if it does and damned if it doesn't, and a further problem is that the Spanish people, generally speaking, are indifferent to many members of the royal family, with the definite exception of the King, who is held in such enormous regard, and rightly so.

The whole affair surrounding the Duke couldn't have come at a worse time for the Spanish judiciary. The world is having its say about a Spanish system that has tried, convicted and removed from office a leading judge at the behest of right-wing forces. Daniel Kaufmann, senior fellow at The Brookings Institution, has suggested that a travesty has been committed in respect of Judge Garzón, that judicial independence has been compromised, and, moreover, has presented evidence which indicates a decline in Spain's rule of law.

However much the Spanish judiciary is theoretically independent, there is a suspicion of politicisation and partiality. And it is caused not just by politics but also by professional rivalries within the judiciary (the Garzón affair is said to have been influenced by these). Garzón himself is not above charges of politicisation, and it is such charges, for the wider judiciary, which suggests that there needs to be some reform.

At the heart of all this, and a reason why it is all so important, is that the judiciary is a vital instrument of democracy. And in Spain, so is the monarchy. Both institutions, the legal system and the monarchy, are being placed or potentially being placed on trial.


Any comments to andrew@thealcudiaguide.com please.