Spanish commentator confirms ALBA hypothesis

April 17, 2011

In yesterday’s Público, Ernesto Ekaizer laid out the same hypothesis that we proffered on the ALBA blog last week, in an op-ed appropriately titled “The Judicial Puzzle.”  The hypothesis is the following: One of the main reasons the Supreme Court Justice in charge of the Gürtel case is making so much haste is the fact that a pending case before Spain’s Constitutional Court, which on the face if it is wholly unrelated, may undo one of Garzón’s current suspensions from his post at the National Criminal Court. At stake is the status of the so-called acusación popular in the Spanish judicial system. The acusación popular allows unharmed citizens to press charges, not on behalf of themselves as individuals, but rather on behalf of the commonwealth, or the rule of law.  This case before the Constitutional Court will decide the following question:  If the sole accusers in a case are “popular accusers”–i.e., if the government prosecutors do not endorse the charges formulated by the “acusación popular”–can the trial still proceed?

The case is a face-off between two different doctrinas: the so-called doctrina Botín (which holds that an acusación popular in itself is not sufficient to proceed with a case) and the doctrina Atutxa (which holds that it is). Garzón’s trial based on the charge of prevaricación in the investigation of Francoist crimes against humanity is based solely on an acusación popular, without the backing of government prosecutors. So is the second of the three cases, related to his sabbatical year in the United States. Lately there have been indications that the Constitutional Court may rule against the doctrina Atutxa. Such a ruling would automatically lift Garzón’s suspension in relation to the investigation of Francoist crimes. By hastily opening the trial for third case–alleged illegal wiretaps in Garzón’s investigation of a major political corruption scandal, the Gürtel racket–the Supreme Court has triggered a second suspension, this one not subject to the ruling of the Constitutional Court: as it happens, the Gürtel case is the only one of the three that is based on more than an acusasión popular. Read ALBA’s editorial here. Read Ekaizer’s op-ed here.