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Spain's Right-Wing Supreme Court Is Riding Roughshod Over Democracy – Jacobin magazine

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Podemos MP Alberto Rodríguez has been stripped of his seat in Congress following an unjustified assault conviction. His removal shows how a Supreme Court packed with right-wing judges is undermining Spain’s basic democratic standards.
The president of the Second Chamber of Spain’s Supreme Court Manuel Marchena in Madrid, 2021. (Gustavo Valiente / Europa Press via Getty Images)
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“The democratic votes cast by thousands of [Spanish citizens] in the Canary Islands are being attacked without any legal basis.” So said former Podemos MP Alberto Rodríguez after he was stripped of his parliamentary seat on October 22. The move came after he was convicted of assaulting a police officer — the dubious result of what was already a highly politicized trial.
Even centrist newspaper El País condemned the “political dimension to the case,” claiming that it “further undermines confidence in the judiciary” and gives “the appearance of a political punishment” for a Podemos MP. The conservative majority in the second chamber of Spain’s Supreme Court convicted Rodríguez despite the lack of any physical or visual evidence of the alleged 2014 assault, instead solely relying on the testimony of the accusing police officer. In their dissenting opinion, the two progressive judges on the court insisted that the evidence was “very far” from sufficient for a guilty verdict and that “it is plausible the officer was wrong in identifying” Rodríguez.
This affair has also detonated a major crisis in the country’s progressive coalition government, after Congress speaker Meritxell Batet — an MP for Prime Minister Pedro Sanchez’s Socialist Party (PSOE) — to disqualify Rodríguez as a MP. Unidas Podemos has now demanded Batet’s resignation, accusing her of “fail[ing] to defend the legislative branch from an unacceptable intervention by the judiciary.” Batet has insisted that she had no choice in carrying out what she saw as the Supreme Court’s sentence. But the Congress’s own legal team insisted that the Court’s ruling had only barred Rodríguez from standing in future elections, during the application of his suspended jail term.
Ultimately, however, these conflicting positions can only be understood in the context of a relentless lawfare campaign being waged by the upper echelons of the judiciary against the government — and PSOE’s reticence toward confronting such politicized and reactionary judges.
Batet’s move came after intense pressure from the chief magistrate in the case, the right-wing Manuel Marchena, who penned a clarification two weeks after the court’s ruling when it looked like the parliament was not going to take any disciplinary action against Rodríguez.
Here, Marchena insisted that the ruling had implied that the MP should be disbarred, adding that the Speaker was obliged to act — albeit without explaining why so. For El País, this was an “outlandish conclusion” to draw. But unwilling to engage in a confrontation with the Supreme Court — and with right-wing parties already threatening legal proceedings against her before the same court if Rodríguez was not removed — Batet caved.
In prioritizing respectability and suing immediately for peace, she and PSOE have probably only encouraged further attacks from within the judiciary and security forces. These forces, in conjunction with a radicalized parliamentary right and conservative media outlets, are intent on destabilizing both the coalition and the progressive multiparty majority in Congress on which it rests.
The charges against Rodríguez stem from a series of clashes between protesters and police at a January 2014 anti-government march in Tenerife. But only months later was the then trade unionist informed that he was suspected of assaulting a police officer on the demonstration. Both Rodríguez and other witnesses have insisted he was not present for these clashes, instead placing him six hundred meters away, at the other end of the march.
The initial investigation stalled, and it was only reopened in 2017 after he had become a Podemos MP, with the Supreme Court then finally green-lighting the trial in early 2021. The officer on whose testimony the case rested claimed that Rodríguez had kicked him on the knee but also admitted in court the supposed kick left no physical mark. In the actual video footage of the confrontations between police and protesters (in which the officer is clearly visible), Rodríguez never appears, and no other officer on the scene was able to identify him as present.
“From a strictly legal point of view, the ruling seriously damages the fundamental right to the presumption of innocence,” argues constitutional law professor Joaquin Urias. “A person cannot be convicted of a crime based simply on the testimony of the victim.” He continues:
The message the ruling conveys is that when a member of the security forces makes the accusation, the burden of proof is reversed and the accused must prove their innocence. That the conviction came from the Supreme Court means all Spanish judges will now see themselves as within their right to condemn other activists in similar circumstances.
This is a particular concern because Rodríguez’s fabricated conviction is just one of a string of recent cases targeting left-wing activists and officials which have been based solely on police testimony (though until now they had at least drawn on multiple sources).
In a case very similar to Rodríguez’s, Isa Serra — Podemos’s former chief in the Madrid region — was sentenced to a nineteen-month suspended prison term and was disqualified from public office for a supposed assault on a police officer at a 2014 anti-eviction protest. Her defense team submitted more than a hundred videos showing her nonviolent behavior throughout the protest but the judge sided with the testimony of the officers involved, despite various contradictory statements and incongruences in their evidence.
This January down in Zaragoza, a group of six young anti-fascists were sentenced to prison terms of between one and seven years for supposed rioting — which they deny. “There is no evidence [of their involvement] but the only yardstick the judge used to measure the facts was the police testimony, simply presuming its veracity,” insisted one of the youths’ parents.
Even Spain’s current deputy prime minister and Unidas Podemos leader Yolanda Díaz only escaped assault charges arising from her participation in a strike protest outside parliament in 2019 because of the strong presence of the national media. The level of coverage ensured the officers’ accusations against her and two of the party’s other MPs could be conclusively rebutted.
The injustice of Rodríguez’s conviction is also a reflection of the bias and political makeup of the court that tried him, with the second chamber of the Supreme Court stacked with loyalists for the right-wing Partido Popular (PP). In a leaked 2019 WhatsApp message at the time of the Catalan independence leaders’ trial for sedition, PP senator Ignacio Cosidó boasted his party could “control [the court] from behind the scenes.” Since Aznar came to power in 1995, the PP have pursued a ruthless strategy of colonizing the judicial system — above all by hijacking the system by which top judges are appointed.
The Supreme Court in particular has been a key target for the party. In 1995, the Supreme Court had seven progressive judges and six conservatives, whereas by 2020, the makeup had radically changed with eleven conservatives and only two progressives.
This was achieved with a move straight out of the US Republicans’ playbook: blocking the renewal of the official body which appoints top judges (known as the General Council of the Judiciary) whenever the PP finds itself in opposition. Renewal of the council currently requires 60 percent of MP votes — so is only possible if the major parties reach an agreement.
Because the PP refuses to do so, it can unconstitutionally maintain control of judicial selections beyond the existing council’s mandated five-year term. Its current incarnation dates from 2013 when the PP’s Mariano Rajoy was prime minister; its mandate expired a thousand days ago but even in its current “caretaker” mode the PP majority simply continues using its powers to appoint judges.
Yet many of these PP loyalists in the judicial hierarchy have also taken up an increasingly interventionist role in Spanish politics, in particular waging opposition against the PSOE–Unidas Podemos coalition. “In Spain there is a problem with the separation of powers” writes El Diario editor-in-chief Ignacio Escolar. “But it is not the government that is overstepping the powers assigned to it but the judiciary. The latter is seeking to exercise functions that are not its own and engaging in politics. . . . For quite a while the political right has been acting in coordination with the right-wing of the judiciary.”
This has been clear in recent months in relation to the government’s policy on the Catalan territorial crisis, with the Supreme Court seeking to undermine the coalition’s moves toward reducing tensions with Catalonia’s pro-independence regional government.
First in May, as Prime Minister Sánchez was preparing to pardon the jailed Catalan leaders, the Supreme Court released a report on the case, which, as Escolar notes, voiced opposition based largely on polemical grounds rather than more strictly legal arguments. In language reminiscent of PP talking points, the report claimed the pardons were not warranted because their issuing would in fact constitute “self-pardons”  — an allusion to the fact that the government’s majority in parliament depends on pro-independence votes  — while also ruling them out because the prisoners had not shown remorse.
Then in September, the supreme court justice Pablo Llarena sought the extradition of exiled Catalan leader Carles Puigdemont from Italy, raising tensions once again. The likelihood that the Italian courts would grant the request was very slim given the issue of Puigdemont’s legal immunity as a Member of the European Parliament was still not resolved by the European Court of Justice. Llarena must have known that, so the real objective of the warrant was political: to derail the ongoing negotiations between the Catalan and Spanish governments.
Another example of such judicial sabotage was the extraordinary decision taken by the slim conservative majority on the Constitutional Court to declare the state of alarm that was passed by the government at the beginning of the pandemic to be unconstitutional.
The case, which was brought by the far-right Vox party and which saw the justices vote along party and ideological lines, retroactively struck down the legal basis for the country’s initial three-month lockdown. In recent months, the court has also sided with Vox on the unconstitutionality of the second lockdown in the fall, as well as other more specific COVID-19 constraints, such as the restrictions on the number of MPs in the parliamentary chamber.
Yet the central thrust of the lawfare campaign directed against the coalition has come in the form of a series of bogus criminal investigations of various ministers, which have seen public prosecutors, judges, and police repeatedly collude to undermine the authority of the executive.
In May 2020, the coalition was rocked by an investigation centered around PSOE interior minister Fernando Grande-Marlaska and the government’s supposed negligence in allowing Madrid’s 2020 International Women’s Day march to proceed days before the pandemic hit (a major far-right conspiracy theory). It ended with senior figures within the Guardia Civil (including the commanding officer in the Madrid region) being removed from their posts for faking a key report. Not before one government official, the PSOE’s José Manuel Franco, had already been charged with malfeasance by right-wing judge Carmen Rodríguez-Medel.
Former deputy prime minister Pablo Iglesias was also subjected to months of judicial investigations and a media frenzy over baseless claims that he faked the theft of his assistant’s mobile (which had in fact been taken by a corrupt police officer who was spying on him and the party).
The former foreign minister Arancha González Laya remains under investigation for malfeasance and falsifying documents in relation to the leader of the Polisario Front’s entry to Spain for medical aid. And equality minister Irene Montero is being investigated for supposedly using her governmental advisor as a nanny (of which the main piece of evidence is a short video in which the advisor happens to be holding the child).
Even if there is very little hope of these types of investigations reaching trial, they operate as very effective forms of opposition as they bog down the government in pointless controversy, fuel polarization, and exhaust and demoralize those involved.
Meanwhile, as the documented evidence mounts of PP corruption scandals involving former premier Rajoy and the inner circle of his government, the judiciary refuse to even open investigations against them — narrowly containing scope of convictions to the likes of former PP treasurer Luis Bárcenas.
In the context of this weaponization of the judiciary, the idea that a faked kick in the knee could be used as sufficient grounds for the Supreme Court to strip an elected representative of his position has particularly sinister implications. This is not least the case given that his removal was achieved not as an explicit legal sanction, contained within the written sentence, but via political pressure directed at Speaker Batet.
Iglesias has argued that Chief Magistrate Marchena did not want to sentence Rodríguez to “active” debarment from public office in the trial’s official sentence as he had already been sanctioned by the European Court of Human Rights in 2017 over the Atutxa case involving the wrongful disbarment of Basque regional MPs. He did not want to risk a further, likely career-ending condemnation from the Strasbourg Court.
Yet, in Marchena’s subsequent “clarification,” two weeks after sentencing, he sought to force the decision on Batet, who in turn chose to ignore the legal advice of the parliamentary legal team and instead falling into line with Marchena within hours of receiving the written clarification. “Meritxell Batet, who knows that the trial against Alberto Rodríguez was a disgrace, withdraws his status as deputy,” tweeted Iglesias. “As in the Weimar Republic, the monster advances with allies.”
Batet’s timid capitulation is indicative of PSOE’s wider failure to formulate a strategy to deal with judicial activism. But while the PSOE remains wedded to the old rules of the game and cross-party consensus, a radicalized right (both in the parliament and the courts) simply sees this as a weakness to be exploited.
Just as there is a need for a political response to Trump and the GOP’s capture of the US Supreme Court, there are legislative options open to Sánchez. Yet, like the Democrat leadership, he seems paralyzed faced with the need to intervene and institute reforms. Just as the Democrats have no appetite for increasing the number of Supreme Court justices to restore the previous balance on the court, Sánchez and the PSOE lack the will to reduce the parliamentary threshold for renewing the General Council of the Judiciary, even three years after the previous representatives’ mandate expired.
Their stasis is partially due to a centrist attachment to what a “politics of state” should be, as well as a deep fear of the media and political backlash and likely EU opposition to any rule change. A further issue is that it would break the bipartisan monopoly on appointing top judges, forcing them to concede seats on the Council to the likes of Unidas Podemos and Catalonia’s Esquerra Republicana.
This is still unthinkable — but it is not clear what the alternative is. “To think, at this point, that an agreement can be reached with the PP to renew the Council is, in my opinion, naive,” insists Iglesias. “[PP leader] Pablo Casado does not have the slightest incentive to comply . . . as the current situation protects him as well as allowing him to attack his adversaries.”
And so, the coalition remains exposed to further judicial harassment even as it seeks to navigate the internal tensions and distrust spurred by Rodríguez’s removal. Meanwhile Rodríguez has announced his withdrawal from politics, stepping down from his internal role in Podemos. Vowing to continue the fight to clear his name, he was met by hundreds of supporters at Tenerife airport after leaving Madrid, where, he acknowledged “they have won for now.”
Exemplifying his principled left-wing values, Rodríguez insists he will now return to his class and his people. “I have requested my reincorporation to my post as an industrial worker [at an oil refinery],” he wrote on Facebook this Friday. He continues:
I’ve never seen political representation as means of individually make a living, at all costs; rather it should be the opposite: a period of generosity and of great personal effort that aims to defend the rights and freedoms of our people. . . . I now return to my job and my profession, to earn my crust and continue building up life experiences and shared struggles with my fellow workers.
Rodríguez represented the best of Podemos and of the Spanish left — demonstrating that not all politicians are the same. That was why he was framed, and that is why he is no longer in Congress.
Eoghan Gilmartin is a writer, translator and Jacobin contributor based in Madrid.
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“The democratic votes cast by thousands of [Spanish citizens] in the Canary Islands are being attacked without any legal basis.” So said former Podemos MP Alberto Rodríguez after he was stripped of his parliamentary seat on October 22. The move came after he was convicted of assaulting a police officer — the dubious result of […]
“The democratic votes cast by thousands of [Spanish citizens] in the Canary Islands are being attacked without any legal basis.” So said former Podemos MP Alberto Rodríguez after he was stripped of his parliamentary seat on October 22. The move came after he was convicted of assaulting a police officer — the dubious result of […]
“The democratic votes cast by thousands of [Spanish citizens] in the Canary Islands are being attacked without any legal basis.” So said former Podemos MP Alberto Rodríguez after he was stripped of his parliamentary seat on October 22. The move came after he was convicted of assaulting a police officer — the dubious result of […]
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