LAWFARE -- JUDICIAL WARFARE IN SPAIN : the strategy of repression against the catalan independence.. movement

For centuries, the Spanish state has proved to be an expert system for repressing political dissent and any threat that could jeopardize the maintenance of the status quo. It has done so using all the institutions and all the areas of power that were necessary, for the end has always justified the means. Carles Mundo, Catalan Minister of Justice, 2016-2017. There is no book in Spain that talks about lawfare. Nor is there a book that deals with the system of judicial repression of political dissidence deployed by the Franco regime. Nor is there a book that denounces the judicial system inherited from the dictatorial regime and that was later embodied in the 1978 Constitution. Lawfare (the combination of law and warfare) thus fills a void to the extent that it penetrates the authoritarian judicial system and highlights the democratic deficits of the Spanish judiciary. The politicization of justice began with the appointment, as president of the Constitutional Court, of a prominent member of the People's Party (Partido Popular PP) in 2013. Thereon started a process of judicialization of politics via reform of the Organic Law of the Court Constitutional. The referendums of November 9, 2014 and October 1, 2017 entailed the criminalization of the Catalan independence movement and a drastic reduction in fundamental rights linked to the exercise of political choice. This was confirmed by the judgment handed down by the Supreme Court in 2019, culminating in a lawfare strategy that has led to the criminal conviction of two presidents of the Generalitat Artur Mas and Joaquim Torra and the exile of a third president, Carles Puigdemont. Lawfare is the first book to link in a broad way the thinking of German jurists of the Nazi period to the training of judges in Spain both up to and during the Franco regime, and beyond. Published in collaboration with the Department of International History, London School of Economics Cover 1 Contents 7 The LSE Spanish History Series 11 Preface by Carles Mundó 14 Prologue by Jaume Alonso- Cuevillas i Sayrol 18 Glossary of Terms and Abbreviations 22 Introduction Repressing the Enemy 25 Chapter 1 Conceptual Framework The Importance of Language in the Lawfare Strategy 30 1.1 Lawfare as a Strategy of Repression 31 1.2 The Language of Lawfare 33 1.2.1 The Law and Laws 34 1.2.2 The Rhetoric of the Rule of Law 35 1.2.3 Judicial Elites 36 1.3 The Aims of Lawfare 37 1.3.1 Carl Schmitt and Friend-Enemy Rhetoric 38 1.3.2 The Internal Enemy. The problem of “España” 41 1.3.3 The Catalan Independence Movement. “A por ellos” (Go get ‘em!) 42 P ART ONE The Repression of the Enemy in Spanish Judicial Culture 47 Chapter 2 Francoism Repression in its Historical Dimension 49 2.1 The Doctrinal Construction of Repression 51 2.1.1 Political Law. The Construction of the New State 51 2.1.2 Penal Law. The Dogmatics of Totalitarianism 53 2.2 The Juridical Architecture of Repression 55 2.2.1 Legal Repression. The Criminal Law of the Author 56 2.2.2 Judicial Repression. Special Jurisdiction 58 2.2.3 Police Repression. Political Police 60 2.3 Rebellion in Francoist Culture 61 2.4 The Judiciary as a Tool for the Legitimization of Repression 63 Chapter 3 The Transition Repression as an Inheritance 66 3.1 The Legacies of the Franco Regime 67 3.1.1 Culture of Violence and Fear 67 3.1.2 Culture of Silence and Amnesia 69 3.1.3 Culture of Legality 71 3.2 Raison d’état and Calculated Deviation 71 3.3 The Survival of the Francoist Judicial Elite 74 Chapter 4 Democracy The Institutional Design of Repression 77 4.1 Governing Democracy 78 4.2 The Government of Judges 79 4.2.1 The Constitutional Court as the Guardian of the Constitution 80 4.2.2 The General Council of the Judiciary as a Government in the Shadows 82 4.2.3 The Audiencia Nacional (National High Court) as a Tool of Political Repression 85 4.2.4 The Court of Auditors as a Tool of Economic Repression 87 Chapter 5 Partitocracy The Actors of Repression 89 5.1 The Control of Justice 89 5.2 Unwritten Tools of Control 90 5.2.1 The System of Quotas 90 5.2.2 The Blocking System 91 5.2.3 The Sponsorship System 92 5.3 The Politicized Judge 93 5.3.1 The Colonization of Spaces of Power (the Popular Party) 95 5.3.2 Judicial Revolving Doors (the Socialist Party) 98 5.4 The Politicization of Justice 100 P ART TWO Lawfare, or the Criminalization of the Catalan Independence Movement 103 Chapter 6 Lawfare The Strategy of Legal Repression 105 6.1 The Triple Dimension of the Legal War 107 6.1.1 The Strategic Dimension 107 6.1.2 The Judicial Dimension 108 6.1.3 The Media Dimension 109 6.2 The Political Use of the Law 110 6.3 Punitive Populism 112 Chapter 7 Dual State Repression in its Exceptional Dimension 114 7.1 Fraenkel’s Dual State 115 7.1.1 Duality and Exceptionality 116 7.1.2 Law and Arbitrariness 117 7.2 Specifying the Deep State 119 7.2.1 The Spanish Deep State 120 7.2.2 The Judicial Deep State 122 7.3 The Specification of Exceptionality 123 7.3.1 Criminal Law of the Enemy 124 7.3.2 Procedural Law of the Enemy 126 Chapter 8 The Judicial State The Implementation of Repression 129 8.1 The Judicial State. Or the Judicialization of Political Spaces 130 8.2 Operation Catalonia 132 8.3 The Macro-Case Against the Pro-Independence Movement 134 8.3.1 Cases in the Ordinary Jurisdiction 135 8.3.2 Cases in the Constitutional Jurisdiction 137 8.4 The Courts of the Process. Analysis of the Sociological Profile 139 8.4.1 The Supreme Court Profile 142 8.4.2 The Constitutional Court Profile. 144 Chapter 9 The Political Trial The Implementation of Repression 148 9.1 The Concept of a Political Trial 149 9.2 The Construction of a Political Trial 150 9.2.1 The Construction of a Lawsuit 151 9.2.2 The Construction of an Offence 153 9.2.3 The Construction of a Special Judge 156 9.2.4 The Construction of an Investigation 157 9.2.5 The Construcction of an Indictment 160 9.2.6 The Construction of a Trial 161 9.3 The Construction of a Political Sentence 164 Chapter 10 The International Jurisdiction Or the Weakness of Lawfare 167 10.1 The Fiasco of the EAWs 168 10.1.1 The Puigdemont Case 169 10.1.2 The Puig Gordi Case 170 10.2 The Junqueras Doctrine 171 Conclusion Returning to Politics 174 Notes 177 Index 194