Teresa Freixes, Jean Monnet Professor ad personam, president of the international organisation Citizens pro Europe, vice-president of the civic platform Societat Civil Catalana, and full member and vice-president of the Governing Board of the Royal European Academy of Doctors (RAED), reflects on current Spanish and international politics and the legal debates surrounding them in the articles “Evidence in criminal proceedings”, “Grandchildren laws”, “Political accountability”, “What is happening to education in Catalonia”, “Budgets in Catalonia and resignations in Madrid”, “The politics of shoddiness”, “The CJEU, the amnesty and the narrative”, “The Court of Auditors and the amnesty after the CJEU judgment” and “European inconsistencies”, published between 16 June and 21 July on the specialist portal Artículo 14 and the digital newspapers The Objective and El Imparcial. The prominent jurist also took part in the session “CJEU judgment on the Amnesty Law: analysis and consequences”, organised on 20 July by the law firm Andersen at its Valencia office.
In “Evidence in criminal proceedings”, the academic criticises interference by the Government in criminal proceedings and offers a clear explanation of the fundamentals of procedural law. “Ministers now determine whether criminal judgments are delivered with due regard for legally established evidence. They are also the ones setting criteria for judges, accusing them of knowingly issuing unlawful decisions whenever their rulings do not accord with the official political narrative of the moment. Meanwhile, citizens rack their brains wondering who is right, the judges or the politicians, because we have received such a poor education that we neither understand the separation of powers nor clearly know what the right to a trial with full guarantees means. Those guarantees necessarily include the principle that the presumption of innocence may be rebutted only by the existence of evidence,” she explains.
In “Grandchildren laws”, the expert addresses the controversy surrounding the bill being considered by the Executive to grant nationality to descendants of Spanish emigrants and the limited impact that the measure would have on election results. “Nationality certainly confers the right to vote in every kind of election. What matters in the case at hand-the votes of Spaniards residing abroad-is how that vote is organised and managed. Contrary to what some claim, votes cast abroad will not all be counted in Madrid; they will be entered in the electoral registers of the provinces from which the voters’ Spanish ancestors originated. Spain has no reserved seats for expatriate voting. Consequently, however large the number of votes may be, their distribution among provinces under the D’Hondt system means that they will influence the outcome only as a shift in tendency in the few provinces where the result is finely balanced and the final seat may change hands,” she notes.
In “Political accountability”, Freixes reflects on the absence of political responsibility that has taken root in Spain and on the uncritical, partisan response to corruption among the forces supporting the Government. “Political accountability is the obligation of rulers and public office-holders to answer for their management, decisions and use of power, accepting the political consequences of their own actions or those of their subordinates. Unlike other forms of responsibility, it does not require the commission of a crime or legal infringement; it is enough for the management to be regarded as misguided or inefficient, or for the person concerned to lose public or parliamentary confidence. This means that political accountability, as a concept, is not legally codified, but derives from assessments of fitness or political expediency. It affects both the conduct of the person chiefly responsible and that of their subordinates, and it is activated mainly by the loss of trust between ruler and governed, or between the office-holder and their political environment. The direct consequence of accepting political responsibility is the resignation of the person or persons concerned, without this in itself producing other legal consequences, which need not be solely criminal but may also be civil or administrative,” she states.
The RAED vice-president examines the Generalitat’s management of education in “What is happening to education in Catalonia”, explaining how the European Court of Human Rights has reaffirmed the position adopted by the Spanish courts regarding the right of parents in Catalonia to have their children receive at least 25% of school subjects in Spanish, and linking non-compliance directly to poor academic performance. “If language immersion has been a burden on the overall performance of the system and has introduced discriminatory measures against Spanish-speaking pupils, the failure to adapt curricula to genuine social needs-or their deliberate distortion-may deepen socio-cultural differences to the detriment of the great majority of Catalan society. This evidently does not affect the children of the elites, many of whom do not use the public or state-subsidised education systems, since they are generally sent to private multilingual schools where curricula are better adapted to what can be expected of a high-quality school today,” she argues.
In “Budgets in Catalonia and resignations in Madrid”, the president of Citizens pro Europe questions the negotiations that enabled the Generalitat’s budget to be passed, contrasting them with the resignations of the Director-General of the Tax Agency and the directors of Collection and Financial and Tax Inspection. “The major concessions that have been made public-there are also hidden ones-consist, in order to secure the vote of ERC, of promoting the creation of the Catalan Airport Authority so as to influence the management of El Prat and the other Catalan airports, and of granting the Generalitat a 40% stake and Barcelona City Council a 15% stake in the Barcelona Free Trade Zone Consortium (CZF), hitherto controlled by the State. En Comú Podem, for its part, has secured PSC support for its proposal to restrict home purchases by large property owners,” she lists.
In “The politics of shoddiness”, she likewise criticises the low standard of Spanish politics. “I do not know what we Spaniards have done to deserve being machine-gunned with political botch jobs of this magnitude. Well, actually I do: we voted for incompetent people and failed to react when they decided to make shoddiness the leitmotif of their policies. They do not care about the discredit this brings, either domestically or internationally. Since the survival manual governing their actions legitimises anything that keeps them in office, they have no need to be rigorous or to abide by the facts. Whatever they do is deemed valid, however it is done and whoever may object,” she begins, before setting out several examples from current affairs.
In “The CJEU, the amnesty and the narrative”, the distinguished jurist analyses the judgment of the Court of Justice of the European Union on the questions raised concerning the Amnesty Law. “What the CJEU does in its two judgments is leave the interpretation and application of the Organic Amnesty Law (LOA) in the hands of Spanish judges and courts. The CJEU introduced political considerations into its judgments and exceeded its remit, which was simply to answer the two requests for preliminary rulings submitted by the Spanish courts. The issue was whether the LOA’s provisions on embezzlement and terrorism complied with EU law. The rest is mere rhetoric into which the CJEU should not have strayed-particularly its observations on whether the LOA pursued institutional reconciliation or its questioning of whether serious human-rights violations occurred during the ‘procés’. Ultimately, it appears that the only matter of concern was whether the EU budget would receive more or less revenue,” she states.
Dr Teresa Freixes
Freixes returns to the same issue in “The Court of Auditors and the amnesty after the CJEU judgment”, where she explains how the response already given by the Court of Auditors should be interpreted. “In EU law, as in domestic law, lifting the stay on internal proceedings following a CJEU judgment on a preliminary reference does not entail a single procedure for implementing the judgment, nor does it result in the automatic closure of the case. The outcome depends in each instance on the judgment’s precise terms. In the matter before us, the CJEU considers that the EU’s financial interests must be affected in order to exclude the application of the amnesty. It is therefore for the domestic courts, in accordance with national law, to rule on the issue once the stay has been lifted and after considering the parties’ submissions. Settled European case-law holds that procedural safeguards would be breached unless the parties were given an opportunity to submit their observations,” she emphasises.
Finally, in “European inconsistencies”, she again addresses the judgment celebrated by the Government of Pedro Sánchez. “It is not true that the CJEU endorsed the LOA in the two judgments already delivered, as the government narrative and separatism seek to impose. Rather, it stated that the embezzlement-which it does not deny-does not affect the EU’s financial interests and that terrorism, in order to be covered by an amnesty, must entail serious violations of human rights. It also considers that several provisions of the LOA breach the right to effective judicial protection, yet inconsistently denies the systemic nature of those breaches, even though a single violation of a fundamental right such as effective judicial protection would justify declaring defective the law that causes it. It further finds that, if it has not been possible to prove that the embezzlement affected the EU’s financial and budgetary interests, this is precisely because the procedural problems created by the LOA made such proof difficult. As for terrorism, the CJEU states that, although the point at which conduct does or does not produce serious human-rights violations is not specifically regulated, the acts committed at the time fall within the scope of the relevant European directives. In its legal reasoning, the CJEU did not take account of the mandatory specific report issued by the European Commission, but essentially followed the arguments of the Advocate General,” she concludes.
Read “Evidence in criminal proceedings”
Read “Grandchildren laws”
Read “Political accountability”
Read “What is happening to education in Catalonia”
Read “Budgets in Catalonia and resignations in Madrid”
Read “The politics of shoddiness”
Read “The CJEU, the amnesty and the narrative”
Read “The Court of Auditors and the amnesty after the CJEU judgment”
Read “European inconsistencies”
