A contemptible ruling

The Catalan president can’t have committed judicial disobedience

MARTA PÉREZ / EFE
JAVIER PÉREZ ROYO
JAVIER PÉREZ ROYO Professor of Constitutional Law University of Seville

Monday’s Supreme Court ruling that upholds the Catalan president’s conviction for a crime of disobedience is yet another step in the process of decay of Spain’s justice system. It is not a small step, but a very significant one.

Article 410 of Spain’s Criminal Code deals with the crime of disobedience and it establishes two different kinds. One, which we could call “judicial disobedience”, and another that we might refer to as “administrative disobedience”.

Judicial disobedience is the most important supposition and the one that received the most attention from the lawmakers. This is the opening sentence of Article 410: “Any authority or public worker that openly refuses to comply with a court order …” So any authority or civil servant, be they in the Spanish, regional or local administration, who openly refuses to comply with a court order will be guilty of a crime of disobedience. Nobody is exempt from complying with this obligation and the administration they happen to work for makes no difference: local, regional or country-wide.

Administrative disobedience occurs when an authority or a civil servant openly refuses to comply with “decisions or instructions from a higher authority” (Article 410.1). Therefore, it is a crime that can only be committed within a particular public administration. The presupposition here is that someone in authority or a civil servant refuses to comply with an order or a decision from a “hierarchically superior” authority.

The hierarchy principle operates within “each” administration. Within the Spanish, regional or local administration, which are not communicating vessels, but airtight compartments. At the top of Spain’s administration is the Spanish prime minister. The highest authority in a regional administration is the regional president. And, at a local level, it is the mayor. There is no hierarchical relationship between them whatsoever.

Therefore, the prime minister of Spain, a regional president and a mayor do not have any hierarchical “superiors” whose orders they may disobey. Owing to the position they occupy in the government system as established in the Constitution, they are unable to commit a crime of administrative disobedience. This is undisputed evidence in our legal doctrine. Therefore, it beggars the question: could president Torra have committed a crime of disobedience?

He can’t have committed judicial disobedience because Spain’s Central Election Board (JEC) is not a court of law, but an administrative body. It is part of the electoral administration, not the judiciary. It does not issue rulings, but administrative decisions which can be appealed before an court of administrative law.

Could president Torra have committed a crime of administrative disobedience? Could Spain’s Central Election Board be understood as an administrative authority that is “superior” to the Catalan president, so that when refused to take its orders or comply with its decisions, he might have committed a crime of disobedience? The answer is blatantly obvious.

It is obvious that the Catalan leader refused to comply with an JEC order, but it is equally obvious that his decision didn’t break the law. In order for it to be a crime, president Torra should have been given an order by Catalonia’s High Court (TSJC). Had he ignored it, then he would have committed a crime of judicial disobedience, which is the only crime of disobedience that a regional president can commit at all.

But that is not what happened. The TSJC did not command president Torra to comply with the instructions of the JEC. That is made clear in the first statement of the facts in the High Court’s ruling. Given that there was no court order, the Supreme Court has determined that the JEC is a hierarchically “superior” body to the president of Catalonia during an election campaign and, therefore, when president Torra refused to comply, he committed a crime of administrative disobedience.

This shifting interpretation of the hierarchy principle cannot be justified through any of the interpretation rules generally accepted in law, less so in a criminal case. It is impossible for the Supreme Court judges who issued the ruling not to be aware of this. They can’t be unaware of the fact the the Central Election Board is a “superior body” only within the electoral administration. There is —and there can never be— no hierarchical relationship between the JEC and the presidency of Catalonia, or any other regional government. I would like to emphasise that this is something which the judges of the Supreme Court simply must know. It is a basic notion that you learn as part of your law degree. So this is not a case of “inexcusable ignorance”, but a textbook example of a knowingly unjust ruling.

The ruling that has upheld president Torras’s conviction is contemptible, judicially contemptible. It is as contemptible as the ruling that convicted Juan Mari Atutxa, the Speaker of the Basque Parliament, in 2008.

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