October 16, 2021

Judges And The Duty Of Impartiality

5 min read

The resignation of the magistrate Antonio Narváez to participate in the rulings on the Catalan independence process before the challenges raised against him were debated has left a residue of frustration in the Constitutional Court.

Nobody doubted his impartiality, but the conviction was imposed that his permanence in the plenary session – after having compared the procés with the coup d’etat of 23-F – could destroy in European instances the work carried out by the Spanish justice on this issue. The magistrates agree that they do not enjoy the same right to freedom of expression as ordinary citizens, and that on this point they have, instead, a glass ceiling.

The members of the Constitutional who come from the judicial career know that they must always express themselves with great prudence. Its governing body, the General Council of the Judiciary, reminds it periodically. But in the court of guarantees there are jurists who come not only from the judiciary, but also from universities or the legal profession.

The internal debate on Narváez has been intense , because some magistrates wanted to defend him until the last minute, understanding that his right to freedom of expression cannot be of a worse condition than that of any citizen. And the Constitutional, precisely, is there to guarantee it.

Along with this, the fear that, by accepting Narváez’s resignation, prevails in the Constitutional Court, the bar has been set too high, and that any opinion expressed by whoever comes to the court of guarantees may turn against him.

This same week one of the magistrates gave a telematic conference, and after having diverted several questions, someone asked him about euthanasia. His answer was that he couldn’t talk about this matter either. “In the end – he later commented in court – we will only be able to talk about the weather, and with great care, because then there is still a competence dispute over meteorological services.”

Narváez was recused last October by Gonzalo Boyé, lawyer for former president Carles Puigdemont , and a few days later all the prosecutors did the same.

They considered that the magistrate had lost all semblance of impartiality because in a conference delivered in Granada in November 2017, he said that what happened in Catalonia in September and October of the same year was “much more serious, due to its consequences,” than the Tejero assault. to Congress in 1981. After the challenge, the magistrates showed their support for Narváez, who understood that this solidarity freed him from any obligation to withdraw from the case.

Five months later, however, things had changed. He had settled in the Constitutional the idea that judgments of the proces could happen something like what happened with the case of Arnaldo Otegi, in which the European Court of Human Rights considered that the nationalist leader had not had a fair trial for a sentence addressed to him by the magistrate of the National Court Angela Murillo in the oral hearing of the Bateragune case in 2011.

Murillo asked Otegi if he condemned the ETA violence, and in the absence of a response, he said: He wasn’t going to answer that question ”.

That statement earned Spain the conviction in 2018 for having tried Otegi with a poorly constituted court, for not guaranteeing enforceable impartiality. Several magistrates cited this and other precedents to Narváez, who, however, at no time showed the will to abstain. At the same time, the processing of the resources of the procés was paralyzed, waiting for how the challenge would be resolved.

Both the Prosecutor’s Office and the State Attorney’s Office and Narváez himself presented extensive allegations defending their impartiality.

Due to being challenged, Narváez – who until then had worked side by side with the also magistrate Cándido Conde-Pumpido – stopped attending the meetings of the commission that both directed to analyze all the appeals for protection presented by the leaders of the procés and prepare the corresponding resolutions of the Constitutional Court.

In the case of Narváez, the rapporteur for the challenge, Encarnación Roca, vice president of the Constitutional Court, had prepared a resolution in which it was agreed to remove him from the resources of the procés .

The existence of the written order, and the certainty that the court was very divided on the case, led Narváez to abstain, which in the end was received with relief by the rest of the magistrates, most of whom were concerned about the possibility of that the Strasbourg Court later found that the Constitutional Court had acted without guarantees of impartiality.

By dispensing with Narváez for this task, the court has become both a broken and a ripped apart, because the magistrate, a career prosecutor, is a specialist in criminal law, precisely the one that concerns the resources of the independence leaders. And once he has abstained, now he can no longer touch a single paper related to the cause of the procés .

The European Court of Human Rights and the Constitutional Court itself have developed extensive jurisprudence on the importance of appearances to preserve confidence in justice. The concern for ensuring fairness has grown a lot in recent years.

Traditionally, challenges have been successful in which it could be argued that the questioned magistrate had an “interest” in the case, understanding this concept as the “inclination of the mind towards an object, a person or a narrative”.

In various resolutions it has already been considered that such “inclination” exists when the challenged has expressed opinions that imply “an authentic taking of side on the object of the process”, given “the tenor, the forcefulness and the radicality” with which he has expressed them .

And a 1982 ruling by the Strasbourg Court – known as the Piersack v. Belgium case – developed the concept of “objective impartiality”, understood as “the absence of prejudice or bias”.

In another ruling, dated March 2002, the European judges stressed that “the increased sensitivity of the public about the guarantees of a good administration of justice justifies the growing importance attributed to appearances.”

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