The togados could face complaints for prevarication and civil and disciplinary responsibilities
The agreement reached this Thursday by the PSOE and Junts to invest Pedro Sánchez as President of the Government contemplates the possibility of undertaking "responsibility actions" if it is proven through parliamentary commissions that there were cases of 'lawfare' ('judicial war') against the Catalan independence movement, actions that could translate into accusations of prevarication against the judges and magistrates in those cases or financial claims to the Administration of Justice.
The agreement includes creating investigative commissions during the next legislature whose conclusions "will be taken into account in the application of the amnesty law to the extent that situations could arise within the concept of 'lawfare' or judicialization of politics, with the consequences that , where appropriate, may give rise to liability actions or legislative modifications".
Although the text does not give details, the former Catalan president Carles Puigdemont has clarified in a press conference from Brussels that they will be parliamentary commissions - specifically he has mentioned 'Operation Catalonia' or 'Catalangate' - where "evidence will be provided." and testimonies that will lead to the eradication of the rotten elements that have participated in the war against independence."
The legal sources consulted by Europa Press explain that, from the conclusions reached by the parliamentary investigation commissions, no type of action can be directly derived against those allegedly responsible for 'lawfare' against people related to the field of independence.
In this sense, they have indicated that, in any case, once concluded, and if they observe signs of a crime in their conclusions, they may file a complaint or complaint with the Prosecutor's Office or the corresponding court, which will be the ones to determine if there is matter to investigate.
Other sources add that, otherwise, if Parliament could directly undertake such "responsibility actions", it would mean "arrogating to itself the ability to judge judges", thereby breaking the principle of separation of powers.
For this reason, the sources consulted emphasize that this allusion to "responsibility actions" by 'lawfare' is actually a "toast to the sun", since the scope of these investigative commissions is what the legal framework allows.
The Organic Law of the Judiciary (LOPJ) establishes "the patrimonial responsibility of the State that may arise from judicial error or abnormal functioning of the Administration of Justice, without prejudice to the individual responsibility of judges and magistrates of a civil, criminal and disciplinary nature" .
The criminal responsibility of judges derives from crimes or misdemeanors committed in the exercise of their functions and is enforceable through open procedures by "order of the competent court or by virtue of a complaint from the Public Prosecutor's Office, from the injured or offended party, or through the exercise of popular action".
These actions could translate into accusations of crimes of prevarication - for "knowingly" dictating an "unjust sentence or resolution" -, punishable with penalties ranging from fines to between 10 and 20 years of disqualification and 1 to 4 years of prison.
Civil liability, for its part, implies the obligation to compensate for the damages caused, and can be pursued together with criminal liability or in an autonomous judicial procedure.
Since 2015, the LOPJ has contemplated the civil liability of judges and magistrates like "that of the rest of public employees." And it specifies that the damages and losses caused by them in the exercise of their functions "will give rise, where appropriate, to the responsibility of the State due to a judicial error or due to abnormal functioning of the Administration of Justice without, in any case, the injured parties being able to to go directly against them."
The rule explains that if the damages arise from "fraud or serious negligence" on the part of the judge or magistrate, the General Administration of the State - "once compensation has been paid to the injured party" - may demand from the responsible judge or magistrate the reimbursement of what was paid.
It also emphasizes that it will be the General Council of the Judiciary (CGPJ) -- "in accordance with the procedure it determines" -- who will determine whether or not there was said fraud or serious negligence.
Regarding disciplinary responsibility, it is the responsibility of the CGPJ to determine whether judges and magistrates have incurred minor, serious or very serious offenses, the latter falling into "excess or abuse of authority."
CLAIMS BEFORE THE ADMINISTRATION OF JUSTICE
Another possible way to demand compensation for 'lawfare' is property liability claims before the Administration of Justice. Article 121 of the Constitution states that "damages caused by judicial error, as well as those that are a consequence of the abnormal functioning of the Administration of Justice, will give the right to compensation at the expense of the State."
In this sense, the LOPJ develops this constitutional precept in articles 292 to 296. Article 292.1, specifically, establishes that "the damage caused to any property or rights due to judicial error, as well as those that are a consequence of the abnormal functioning of the Administration of Justice, will give all injured parties the right to compensation from the State, except in cases of force majeure".
It establishes that, "in any case, the alleged damage must be effective, economically evaluable and individualized in relation to a person or group of people." Furthermore, it clarifies that "the mere revocation or annulment of judicial resolutions does not in itself presuppose the right to compensation."
Of course, the law states that "the claim for compensation due to error must be preceded by a judicial decision that expressly recognizes it," which "may result directly from a sentence issued by virtue of a review appeal," he adds.
Both in the event of a declared judicial error and in the event of damage caused by the abnormal functioning of the Administration of Justice, the interested party must address their request for compensation directly to the Ministry of Justice, processing it in accordance with the rules governing property liability. of the State.
FOR THE CGPJ, "A BLACK DAY"
Faced with all this, it is worth remembering that, apart from the defense that each judge and magistrate against whom such actions are taken can exercise individually, the CGPJ is also called to play a leading role.
Sources from the governing body of the judges consulted by Europa Press advance that they will do so "through the law" to defend the work and independence of the members of the judicial career. "We will do it," they say without going into details.
They are already advancing that, in their opinion, we are witnessing "a black day" because "this breaks the Constitution, breaks the rule of law, breaks everything." If now they are going to "go after the judges," "what judge in this country is going to think of raising their voice and accusing a politician?" they say.
The CGPJ made its first official statement on the amnesty last Monday, warning that, if a law in that regard is finally approved, it would mean the "abolition" of the rule of law.
The interim president of the CGPJ, Vicente Guilarte, although he voted blank when approving this institutional declaration, considering it "premature" because there was still no text on the amnesty, he did emphasize that the defense of the actions of the jurisdictional bodies".