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Lawfare or the Politicization of the Criminal Justice System: The Case of Spain
Manuel Cancio Meliá*
I. Introduction
In Spain, there has been no talk of “lawfare” until very recently; however, the politicization of the (criminal) justice system and, accordingly, the judicialization of politics has been talked about for many years. My task today is to present the situation in Spain. Without wanting to theorize here—I am by no means an expert in the field of “lawfare”—in my opinion, this is a case of domestic lawfare, if not yet at the level of a “dripping coup” discussed by Valeria Vegh Weis.[1]
In many of today’s political conflicts, the criminal justice system in Spain plays a very important role. To put it succinctly: some criminal courts, in particular the criminal division of the Supreme Court (Tribunal Supremo), are, in my view, participating in a political campaign against the current government and the wafer-thin parliamentary majority that supports it. This has been particularly the case with regard to the conflict in Catalonia that has been ongoing since 2010, as evidenced by the application of the amnesty act (Ley Orgánica de Amnistía, June 2024) (hereinafter LOA) for the crimes of Catalan separatists that was passed a few months ago.[2] The rapid development in recent times of various criminal proceedings, which are apparently intended to undermine the decision of the parliamentary majority to draw a line under the Catalan conflict with the amnesty law, leads me to believe that the criminal courts are making politics and attacking the current center-left government.
To describe the current situation in Spain, it is first necessary to briefly outline recent Spanish history, in particular the transition from the military dictatorship to the current constitutional state (“Transición”) (II.). After that, the background of the Catalan separatist movement will be outlined very briefly (III.). I will conclude with some thoughts on the current situation (IV.).
II. The Transformation of the Spanish State Since 1977
The dictatorship, which ruled Spain for almost forty years under the leadership of General Francisco Franco Bahamonde, initially appeared to be fascist, then (of course: from 1945 onwards) primarily national-Catholic. It used criminal law as a fundamental element of its repressive apparatus, as probably all such regimes do. In the early days, in a perverse reversal of the facts, politicians, civil servants, and, in particular, members of the armed forces who remained loyal to the democratic Spanish Republic against the rebellious military were tried as traitors and either killed or sent to concentration camps. Later, armed and peaceful opposition were both criminalized as “terrorism” or “banditry”.[3] Criminal law as a political weapon, and especially the use of the label of terrorism, were therefore among the ingredients of the recipe for repression in Spain from the very beginning.
In the so-called “Transición”, an arrangement was reached between the reformist forces within the dictatorship and most of the (illegal) parties and armed groups that were acting against them.[4] The succession determined by the dictator in the person of Juan Carlos Bourbon was respected (no referendum was held on this), the flag of the dictatorship (and the monarchy) was retained (instead of choosing the flag of the Spanish Republic; later the coat of arms was changed), and a democratic constitution was adopted that was accepted by a large majority of the population. Part of this new pact was a general amnesty law passed in 1977 (before the new constitution), to which I will return later.
During this transition period, the army was fundamentally reformed—especially after the attempted coup in 1981—so that it soon no longer posed a threat to the new constitutional state. However, the criminal law system (courts and police) remained completely untouched. Gradually, authoritarian legislation, particularly in the field of criminal law, was adapted to the Western European environment, but not a single judge who had participated in the judicially veiled crimes and human rights violations of the National Catholic dictatorship was prosecuted, and the police torturers of the dictatorship also remained undisturbed in office.
Today, the state examination system for becoming a judge is ridiculously archaic (the law codes must be learned by heart and recited orally), and its obvious stupidity encourages a certain nepotism. Politically, the Spanish judiciary is much further to the right than the general citizenry. Furthermore, it should be noted that the Criminal Chamber of the Supreme Court is responsible for a special court jurisdiction (“aforamiento”) for members of the government and parliamentarians, a relic from authoritarian times. The appointment of the members of this chamber is therefore a political issue, and the two major national parties (the conservatives of the Partido Popular and the social democrats of the Partido Socialista Obrero Español) attach great importance to appointing judges they trust. At present, there is a large majority of right-wing judges in this chamber. The political stance of the various judges is well known, and it is easy to predict how they will vote in politically relevant proceedings.
III. The Catalan Conflict and Its Roots
Since the 19th century, Spain has had structural problems with its territorial organization. In the series of civil wars that followed Napoleon’s invasion of the Peninsula and the dissolution-implosion of the Spanish Empire (in two phases, first on the American continent from 1810, then, in 1898, with respect to various residual island territories in the Caribbean and the Pacific), the question of Spain’s territorial organization was always, together with the social question, one of the driving forces of the conflict that culminated in the Spanish Civil War of 1936. In the course of this endemic political violence throughout the Spanish 19th century, in the second half of that century, the so-called peripheral nationalisms[5], that is, the construction of a Basque, Catalan, and Galician nation (territories with their own language), as nations separated from the Spanish identity, began to take shape. Synthetically, it can be said that the demand for the maintenance of the complex territorial organization of the Ancien Régime was opposed to the centralizing will of the new post-imperial Spanish State, with a liberal vocation (even though its political regime was authoritarian) and the program of unifying the various sub-state entities that had made up the Spanish monarchy.
The Catalan nationalism that “discovered” and “built” the Catalan national identity, starting from the claim of its own language, was adapted to the peculiar position of the Catalan economy at that time—the second half of the 19th century—which had been the one that had most clearly generated an industrial revolution. A pact was sought with the central government to develop protectionist policies towards Catalan industry, especially its textile industry. The idea of Catalan independence took a long time to establish itself and began to be defended as a political option only in the 20th century. When integrated into the general Spanish right-left conflict during the Spanish Republic (1931-1939), Catalan nationalism—similarly to Basque nationalism—although mostly politically and economically conservative, chose to align itself with the Spanish left-wing forces more sensitive to territorial demands. Thus, the Constitution of the Spanish Republic of 1931 already incorporated the possibility of a sui generis asymmetrical federalism, and subsequently, a Statute of Autonomy for Catalonia was approved. The Spanish political right wing—and the military rebels, led by General Franco, who wanted to carry out a coup d’état that led to the civil war—added to their program of political-economic reaction and traditional Catholicism the unity of Spain as an identity vector; it was not only a question of avoiding a “red Spain,” but also a “broken Spain” due to the demands of the peripheral nationalists. The military dictatorship resulting from the rebels’ military victory, with the essential help of Fascist Italy and Nazi Germany, can be defined as National-Catholic: vindicating a Spanish nationalism, exclusive, authoritarian, and Catholic.
During the forty-year-long night of the military dictatorship, the political alignment remained stable. The political forces of the left and the Basque and Catalan nationalist groups—even if they were right-wing—coincided in the front against the dictatorship, while Spanish nationalism identified itself to a large extent with the Franco regime. In the negotiation process between political forces opposed to the dictatorship and representatives of the regime, the territorial question was one of the hotly contested issues. The compromise document that emerged, as mentioned above, the Spanish Constitution of 1978, incorporated a peculiar decentralization regime, the so-called “State of Autonomies,” which went so far as to establish quasi-federal powers for these autonomies. However, the constitutional text is very unclear as to the point of arrival of this process, and makes it clear that the reform of the Constitution in this area is simply impossible: Spanish constitutional law does not provide any realistic mechanisms (since it demands majorities impossible in practice) for constitutional change when it comes to the fundamental elements of the pact between the opposition and the regime’s reformist forces, that is, the monarchical form government and the unity of Spain. As a culmination of this negotiation between the representatives of the military dictatorship and the opposition forces, an amnesty law was passed in 1977, before the Constitution, which covered all political activity against the regime, including armed activity, as well as the thousands of individuals who had committed very serious crimes against dissidents as henchmen of the National-Catholic dictatorship. In other words: in Spain, a law of “punto final” was passed to move on to the next phase.
It can be said that during forty years of constitutional regime since 1978, Catalan and Basque nationalism were integrated into the Spanish two-party political system. The majority Catalan nationalist party (conservative) was integrated into it as playing the role of a decisive group that handed the majority to one of the two big state (Spanish-identity) parties: to the social democrats of the Spanish Socialist Workers Party or to the conservatives of the Popular Party—always in exchange for “advances in self-government.” Even so, the Spanish right has always played the trick of projecting the suspicion that the social democrats, and the left in general, would be willing to betray Spain in exchange for retaining political power—a very serious reproach during the whole time of the terrorist activity of the Basque separatist terrorist group ETA. Compared to the Basque case, in Catalonia the small terrorist nationalist group “Terra Lliure” (“Free Land” in Catalan) active in the 1980s operated at a much lower level of intensity (they “only” caused one death) and soon ceased operations.
This situation of equilibrium in which conservative Catalan nationalism participated with normality in the management of the State government began to break down at the beginning of the current century. With a social-democratic government established in 2004, a procedure to “update” the self-government was initiated, producing a new Statute of Autonomy for Catalonia. This quasi-constitutional instrument—it is Spanish law and the highest ranking norm below the Constitution in the territory—has a very complex approval procedure: negotiation in the regional Parliament, negotiation with the Spanish Parliament, approval by referendum. Once the whole procedure was concluded, however, the majority of the members of the Constitutional Court—which was under the influence of the state political right wing—thoroughly revised the democratically approved Statute, rejecting, in particular—a matter of great symbolic importance—the use of the term “nation” to refer to Catalonia, even though it was only used in the introduction of the text and without normative significance.
This Constitutional Court judgment triggered an evolution—in Catalan: el procés—of disaffection of many Catalans towards Spain. This situation was compounded by the 2008 financial crisis, which hit Spain very hard. The result was a tendency toward radicalization of the Catalan nationalist political forces, which were moving from negotiation to rupture, from a specific, bilateral relationship with Spain to independence. Having won the regional elections, and therefore with a majority in parliament (even if they did not reach a majority of the popular vote), the three Catalan nationalist parties controlled the regional government and passed in the Catalan parliament several laws to prepare for the separation from Spain. These laws were plainly unconstitutional, and very obviously also contrary to any democratic process, since these laws intended to call a referendum on independence in which a simple majority would have sufficed.
In 2017, this unconstitutional and illegal referendum was held; it was followed by a Spanish police campaign of repression (now under a right-wing government) with a very heavy deployment of state police forces brought from other Spanish territories against the nationalist voters, which provoked surprise and indignation in the rest of the European Union. The Catalan Republic was proclaimed by the separatists in the Catalan government in a symbolic way (being suspended eight seconds after the proclamation); after the Spanish government declared the suspension of the autonomous government, criminal proceedings were initiated before the Spanish Supreme Court against the Catalan nationalist leaders, first for the crime of rebellion (in addition to disobedience and embezzlement, regarding public expenses for the referendum), and then for the crime of sedition.[6] The conviction for sedition in 2019—highly debatable from a technical point of view and extremely severe—generated riots in Barcelona (without any deaths) and a new wave of police repression. Some Catalan politicians fled to various European countries, while others stayed in Spain and were arrested, prosecuted, and convicted. European arrest and surrender warrants were met with the refusal by Belgian, German, and Scottish courts to hand over the prosecuted persons.[7]
A full-blown constitutional crisis erupted.
Once the new government of the socialist party was established, with the support of other left-wing forces and all the “peripheral” nationalist forces in the Spanish parliament, an attempt was made to deactivate the independence process. To this end, partial pardons were approved for the imprisoned leaders. The Spanish right wing raised the political temperature to the point of accusation of treason.
In this context, after the elections of 2023, with a new majority of leftists and peripheral nationalists, the Socialist Party also needed the votes of right-wing Catalan nationalists: seven votes in the Spanish parliament. Faced with the passage of the amnesty act, approved in June 2024, the Spanish right—and some courts—have gone into “homeland under threat” mode.
Political rhetoric has escalated to levels unheard of since 1978. Political passion also permeates the academic debate on the constitutionality of the LOA.
IV. Lawfare and the Ongoing Criminal Proceedings Against Catalan Separatist Leaders
Beyond the constitutionality of the LOA, there is, of course, the question of whether it is desirable—i.e., whether it is better to close this chapter by pardoning the pro-independence leaders, or whether it is more convenient to comply with the rulings already handed down and continue with the criminal proceedings against them, to eradicate any temptation of rupture in the future. To consider this question, it seems appropriate to consider the criminal proceedings that already have been conducted in Spain against the pro-independence leaders. From my point of view, these trials have departed from the basic rules of criminal procedure in a state under the rule of law, which speaks in favor of the need for the amnesty act.
If there is such a thing as lawfare, it is certain, in my view, that these proceedings fall within the concept.
The criminal proceedings that were initiated in 2017, on the one hand, referred to the obvious crimes committed: disobedience and embezzlement (by financing the illegal referendum). On the other hand, however, the “main course” consisted in framing the demonstrations of various kinds as well as the events connected to the Spanish police repression to prevent the referendum, as crimes of rebellion or sedition.[8] The crime of rebellion refers to the typical (military) coup, whereas sedition was an offense that concerned lesser forms of violent activity against state officials.
From my point of view, the criminal proceedings that have been undertaken—not all, but the most important ones—display features of great exceptionality, I would say, in strictly legal terms. They are processes that—and I insist, not politically, but from the point of view of Spanish criminal law—have gone off the rails to some extent, because they use criminal law in a way that clearly does not respect the letter of the Spanish law (regarding both procedural and substantive elements) in various aspects. This derailment is what explains why our European partners, both in the Federal Republic of Germany, and then in Scotland as well as in the Belgian courts, have reacted with incomprehension and surprise in the face of certain extradition requests hat have reached them and are reaching them from Spain.
I will begin with the general process of the procés. My German teacher, Professor Günther Jakobs—who quotes Hegel in turn—points out that a self-confident society can punish less than a society that feels insecure about its own identity.[9] And I believe that in Spain we have felt insecure when it comes to reacting to a constitutional challenge such as that posed by the procés. First of all, jurisdiction: why were these events not tried before the competent courts in the territory of Catalonia? Why did the Supreme Court try them? This is not normally discussed in public debate, but it would have been normal for this process to have been conducted before the High Court of Justice of Catalonia, the competent court for the territory where the crimes in question were committed. This is striking. Normally, the competence of the courts in Spain is very clear.
From the beginning of this case, the Spanish Prosecutor’s Office displayed considerable stubbornness; there was only one way: violence and rebellion. Against this, sedition—for which the Catalan leaders were finally sentenced to a maximum of thirteen years in prison—provided an alternative that represented a, let us say, secondary, consensus option.[10] Why this stubbornness in charging the defendants with rebellion, against the scarce jurisprudence of the Supreme Court and the entire doctrinal literature on the crime of rebellion? I say scarce because, fortunately, we have had only one rebellion since 1981 (the above-mentioned attempted coup). It was clear that without organized armed violence there can be no rebellion.[11] How is it possible that from the judicial investigation by the State Attorney General’s Office, this pretense of prosecuting a rebellion was maintained practically until the end? Perhaps it has something to do with article 384(a) of the Code of Criminal Procedure, which establishes the possibility of suspending an elected official, when it is a question of—note the antiquated terminology carried over from the former regime—“terrorist or rebel elements.” A rebel or a terrorist was needed. This might help to explain the stubborn insistence on alleging the organized violence necessary for both the crime of rebellion and the crime of sedition. The unanimous conviction by the criminal chamber of the Supreme Court resulted in the imposition of very high penalties for sedition.
From my point of view, the crime of sedition, now happily repealed, was unconstitutional; it belonged to another era, it was a dead fossil in the Code until it was revived by the procés. There was hardly any jurisprudence on this offense because in Spain we do not need a crime of sedition. No country under the rule of law needs a crime like sedition; that is for other types of societies and other types of political situations. Leaving aside that this crime itself was extraordinarily questionable, as was its application to this case, consider that the Supreme Court ruling nowhere makes any mention of article 547 of the Penal Code (since repealed), which established a privileged type of sedition for the cases in which no serious harm to institutional life had occurred. Also, according to the doctrine of the Constitutional Court, the Courts of Justice cannot do whatever they want in sentencing but must provide a rationale for the specific sentence imposed. The Supreme Court’s decision does not. It is a judgment that, in my view, wholly apart from doubts concerning the crime charged and its application to the case at hand, raises grave doubts about the penalty imposed, which flies in the face of the principle of proportionality.
And finally, and with this I will conclude, the criminal anomalies continue in spite of the amnesty act passed by the Spanish parliament. There are several cases in which the Spanish courts—and, above all, the Supreme Court—simply refuse to apply the LOA.
I cannot explain here what the technical reasons are, but they are obvious, in my opinion; simply considering the facts of each case seems to me to show what is going on: insubordination to the law, lawfare against the parliament.
Take the so-called Tsunami case. Once the passage of the amnesty act in parliament was set in motion in 2024, an investigating judge requested that the Supreme Court investigate the president of the Catalan government who organized the unconstitutional referendum, Carles Puigdemont—who is subject to the Court’s special jurisdiction as a member of the European Parliament—and other separatist leaders for having committed crimes of terrorism in the context of the activities of the so-called “Tsunami Democràtic”: a group of people who had called for protests against the first ruling of the Supreme Court in 2019. Apart from other striking elements, such as the timing chosen by the investigating judge for this procedural step (apparently, in the preceding four years there had been no opportunity to take it, and the case coincidentally was activated precisely at the time of the negotiations for the investiture of the president of the government), or the interesting idea that the death of a French citizen from a heart attack (suffered en route to the Barcelona airport, which was blocked by separatist activists) could be classified as terrorist homicide, it is surprising that the crime of terrorism would be applied to the separatist activities since they lacked the essential element of these crimes: the use of massive violence to generate terror.
Facts such as those alleged in the Tsunami case might be classified as terrorism in Moscow, Istanbul, or Tehran. They would never be so classified in Berlin, Paris, or Bern. And in law, neither would they be in Madrid. It is possible, of course, that they are criminal: if there really was a concerted effort to organize riots in the street, violently attacking the forces of public order and cutting off public roads, it could be a matter of various offenses against public order provided for in the Penal Code. But . . . terrorism? Without weapons, without attacks?
How is this delirious legal classification possible, absolutely incomprehensible from the perspective of the legal systems of the other Member States of the European Union?
The Tsunami case does not stand alone. Several other judicial resolutions concluding that acts committed in the secessionist process fall outside the scope of the amnesty law (LOA) and, therefore, must be prosecuted, continuing the processes already in progress.
I will only mention two. First, the majority of the Supreme Court has adopted a test for determining whether acts of embezzlement are covered by the amnesty law that can only be described as highly unusual: it has held that activities generating expenses for the public treasury in the context of the procés qualify as embezzlements in pursuit of a personal benefit, since the leaders (although not some of their subordinates within the the Catalan Government) otherwise would have had to incur those expenses, and, therefore, experienced a saving, which amount to a personal benefit. As a magistrate (attached to the progressive faction of the Supreme Court) points out in her dissenting opinion against the non-application of the LOA, it is obvious that legislative intent is not being respected here. It is not necessary to be a jurist to understand that there was no “personal benefit of an econonic nature” for the secessionist leaders.[12]
Second, an examining court in Barcelona has reactivated—in another curious coincidence of timing with the passage of the amnesty law—a prosecution for crimes of treason under the Penal Code.[13] To construe the acts of the pro-independence leaders as satisfying article 2 of the amnesty law—which is limited to conduct posing an “effective and real threat” against the independence of Spain, through the aid of a foreign power—would require extravagant flights of fancy more at home in a vaudeville act than in a contemporary court of law: Perhaps Russian marines parachuting into downtown Barcelona?
Clearly, lawfare is possible not only in America, but also in Europe. At least in its southwest corner.
* Universidad Autónoma de Madrid.
[1] Valeria Vegh Weis, Indicators of Lawfare: Assessing the Criminalization of Progressive Politics in Latin America, MCLR+ (crimlrev.net) (Oct. 28, 2024).
[2] On the issue of the constitutionality of this amnesty, see Cancio Meliá, https://elpais.com/opinion/2023-09-20/amnistia-constitucional-y-necesaria.html; Aragón Reyes/Gimbernat Ordeig/Ruiz Robledo, La amnistía en España. Constitución y Estado de Derecho, 2024.
[3] See Cancio Meliá, Strafrecht und Terrorismus in Spanien. Anmerkungen zur Entwicklung der Terrorismusgesetzgebung nach der Diktatur, in: Journal der Juristischen Zeitgeschichte 1/2009, pp. 15 ff.
[4] With the exception of the most important terrorist organization, ETA, “Euskadi ta Askatasuna” (in Basque, “Basque Country and Freedom”). ETA was founded in the late 1950s. Originally a purely Basque nationalist organization, it later adopted a pseudo-Marxist guise and urban guerrilla rhetoric in line with popular liberation movements in the colonies of Western powers, to keep up with the times, so to speak. During the dictatorship, the organization carried out a few deadly attacks, mainly against the military and members of the political police. However, the assassination of Admiral Carrero Blanco, the President of the Government (and a hard-line representative of the regime) in a spectacular bombing in the center of Madrid in 1973 is noteworthy because of its significance for the entire transition process. ETA killed more than 800 people, and even today the apparatus of punishment in this field is still running at full speed – after the unilateral end of its violent activity in 2011, in contrast to the development in Ireland with the IRA, no measures to limit criminal prosecutions of the organization’s activities were taken. Asúa Batarrita (in: Cancio Meliá/Gómez-Jara Díez, Derecho penal del enemigo. El discurso penal de la exclusión, vol. 1, 2006, p. 250) is right to say that in Spain the judicial application of terrorism offenses offers a great deal of material, and even in recent years, there have been many criminal proceedings regarding not only crimes of the past, but especially online-“glorification” of ETA (see Cancio Meliá/Díaz López, ¿Discurso de odio y/o discurso terrorista? Música, guiñoles y redes sociales frente al artículo 578 del Código Penal, 2019).
[5] Since the state capital Madrid, in the center of the Spanish heartland Castile, is located in the center of the country, these nationalisms exist on the periphery/coastlands of the Iberian peninsula.
[6] See Cancio Meliá, Sedición y proporcionalidad en la STS 459/2019, in Una perspectiva global del Derecho Penal. Libro Homenaje al profesor Dr. Joan J. Queralt Jiménez, 2022, pp. 457 ff.; Cancio Meliá, Ya era hora. La derogación del delito de sedición: desidia y ficción, in: https://elpais.com/opinion/2022-11-11/ya-era-hora-la-derogacion-del-delito-de-sedicion-desidia-y-ficcion.html.
[7] Lo que mal empieza…, in: https://elpais.com/elpais/2018/07/12/opinion/1531423992_793847.html; https://cat.elpais.com/autor/manuel_cancio_melia/a/.
[8] Cf. Presentation by Iñigo Ortiz de Urbina, in Criminalizing Sedition: The Indian Debate in International Perspective, Modern Criminal Law Review, MCLR+ (Oct. 2, 2023) (https://www.youtube.com/live/FbuHzNw6438?si=RblMbRgRZsWOqrRW).
[9] See Jakobs, Strafrecht Allgemeiner Teil. Die Grundlagen und die Zurechnungslehre, 2nd ed. 1991, 2/25c.
[10] To obtain a unanimous vote of all members of the criminal chamber of the Supreme Court.
[11] There is a longstanding consensus in scholarship and case law that the crime of rebellion requires large-scale, organized and armed violence.
[12] See art. 1 LOA, which excludes these cases from the scope of the amnesty (“beneficio personal de carácter patrimonial”).
[13] The crime of treason in the Criminal Code requires the perpetrator to provide military aid to a foreign power against Spain.
Suggested Citation: Manuel Cancio Meliá, “Lawfare or the Politicization of the Criminal Justice System: The Case of Spain,” MCLR+ (crimlrev.net) (Oct. 28, 2024) (https://crimlrev.net/2024/10/28/lawfare-or-the-politicization-of-the-criminal-justice-system-the-case-of-spain-manuel-cancio-melia/) [➡︎ pdf]