Elpidio José Silva (born in Granada, 1959) is known as the first Spanish judge to have put a banker in prison. The banker concerned was Miguel Blesa, even if a few weeks later he was already back on the street. Later, the judge and businessman crossed paths again; this time, however, it was Silva who was in the dock. The judge was disqualified from practicing for 17 years, after being accused of perverting the course of justice. Subsequently he founded a political party, Democratic Civic Renewal, with which he contested the 2014 election for the European Parliament and failed to win any seats. At present he has a legal practice and has written numerous books, among them the one whose Spanish title translates as 'Justice evicted: no country for judges'.
The Supreme Court has denied the right of the Catalan independence leaders who are MPs-elect, Junqueras, Forn and Sànchez, to attend the Parliament, although it allows them to vote. How do you see this?
Judge Llarena has saved their right to vote, but this is a contradiction with respect to Puigdemont, who is not allowed to undertake an investiture [as Catalan president] without being physically present. I do not agree with this thesis. The parliamentary regulations do not foresee it; therefore, they do not prohibit it either. If a person can vote from prison it means that the judge does not see the question of presence as central and is allowing the vote to be delegated. Thus, there's a contradiction there.
The parliamentary regulations do not prohibit the long-distance investiture of Puigdemont
Does he consider, then, the possibility that an investiture could be carried out digitally?
We are in the digital era. We have to accept this. Saying to a member of parliament that the regulations do not allow a telematic investiture is a serious error. The parliamentary regulations could not have foreseen this and, obviously, they do not prohibit it either. If the result of the Catalan election is that the political forces that have a majority want to designate Puigdemont as president, any stratagem that opposes this is, to my understanding, deeply antidemocratic. Especially so, taking into account that Puigdemont is in Belgium and that Spain had to withdraw its European Arrest Warrant for Puigdemont because it understood that the basis claimed for the arrest had no equivalent at European level.
On the other hand, we know that the content of article 155 of the Spanish constitution, as the Popular Party (PP) has interpreted it, is deeply antagonistic to the constitution. This article does not foresee the dismissal of a president, or the cessation of ministers. To this we have to add that article 500 of the Spanish Criminal Code establishes that MPs cannot be arrested, due to their parliamentary immunity, if they have not committed a flagrant crime, and the crime that is attributed to these men here never existed.
Do you consider, then, that there are no offences of rebellion and sedition in this case?
The rebellion and sedition that they speak of was not accompanied by the necessary violence, nor the intentionality that is contained in the concept of revolt. As no justification has been given anywhere for the preventive detention dictated, nor for the crime committed, nor for the relevant acts that could have been produced by this offence, nor for the issues relating to parliamentary immunity, which are summarised in article 500 of the Criminal Code - preventing an MP from being arrested, except in the case of a flagrant offence - it is evident that the situation should be reviewed and it does not seem appropriate, if a minimum of democratic rigour is applied, to rule that Puigdemont cannot assume the [presidential] post from Brussels.
The Spanish government and the opposition have already announced that they will appeal any long-distance investiture of Puigdemontto the Constitutional Court...
They will appeal it immediately, but all these appeals can be reviewed [at European level] in Strasbourg. The Spanish criminal courts are defining a truth that is absolutely deformed and does not match the reality - neither the facts, nor an adequate interpretation of the legal system.
But this would take a long time. What option remains so that the annulment of the investiture could be avoided?
Puigdemont could come here and be invested in person. Probably, with article 500 of the Criminal Code in hand, he could not be arrested. Although in reality he can't even be detained at all, because at no time has he committed a crime of rebellion or sedition, but we can already see the interpretation that is being given in Spain. Therefore, he does run the risk of being imprisoned.
If the 'Jordis' and Forn are not freed now, Spain will have lost its juridical bearings. It is a scandal
Given the situation of the four Catalan prisoners, Junqueras, Forn and the 'Jordis' - Sànchez and Cuixart - it would be the most probable outcome.
If the 'Jordis' and Forn are not freed now, Spain will have lost its juridical bearings. There will then be a huge danger that anything could happen and, thus, I can completely understand that Puigdemont backs an investiture from Belgium, as he does not want to take risks that are evident. We cannot anticipate the resolutions the courts will make, but I believe that the line being followed in Spanish courts is deranged, it is a line that does not have juridical support. Because of that, there is a large part of the legal community that is protesting about it. It is a scandal.
You mentioned Strasbourg. Do you believe that if the case was brought to the European courts the situation would change?
As long as the judge who heard the case at Strasbourg was impartial. We have detected that in the European Court there are a series of appeals that have been made against Spain and that the hearings of these matters have been assigned to an Andorran judge. I believe that when a judge who depends on a satellite state of France and Spain carries out the formality of admitting a case to the European Court, there is not enough objectivity. However, if a clearly impartial judge carries out the admission hearing, it will open Pandora's box... a box with very smelly contents. Whoever reads about all that has happened here, under European legal norms, will not find it acceptable.
We don't know what the Belgian judge would have said, but we do know something very important: Spain does not want to hear it
As in the case of the European Arrest Warrant...
Exactly. Puigdemont and his ministers in Belgium are in a situation of full liberty. The Kingdom of Spain and its Supreme Court assumed that the European Arrest Warrant was about to be rejected, which would clearly look ridiculous, and they had to withdraw it before the Belgian court made its pronouncement. Really, they got out quickly. This demonstrates that the Kingdom of Spain and the Supreme Court are not working according to the European norms.
In principle, the European Court has to tend to favour the arguments of the MPs who are so assailed, who are in prison and cannot do the parliamentary and democratic work mandated to them by the expressed popular will.
Well, we don't know what the Belgian judge would have said...
We didn't have the opportunity to know what the Belgian judge would have said, but we know something very important: Spain does not want to hear it.
There is no way that crimes of rebellion or sedition have been committed
How can it be that - in both cases within the EU - in Spain the crime of rebellion is punished by 30 years of prison and in Belgium with much less?
By reading a country's Criminal Code, you can more or less get to know its history. In general terms, countries react to the bitter and traumatic experiences they have had. Spain has undergone the bloody and destructive effect of a dictatorship, I would say even more so than Germany. After the finish of the Second World War, we lived for 40 more years under dictatorship. A revolt, with the precedents that the inheritance of Franco could present to us, is obviously, punished in a very severe way in the Spanish Criminal Code... I understand that in the tragic circumstances that have been experienced in Spain, the last event being Tejero's [attempted coup in 1981], there are high penalties. However, the point is that, there is no way, not even close, that it could be considered that the actions subject of these accusations could constitute crimes of rebellion or sedition.
They consider it an act of sedition to organize a demonstration...
If within the demonstration there are numbers of people who commit offences, for those offences to be attributable to the persons who called the demonstration, it is necessary to prove that there was animosity directed specifically at the generation of these offences. Even if it were proved that those imprisoned today intended to destroy a public vehicle (the Civil Guard wagon), this would still not be sedition, nor rebellion, and not revolt either. A revolt is aimed at the institutions of a country, and that is what is punished in the Criminal Code. In the case of sedition it has to be determined that the events were directed specifically at state bodies so that they could not carry out a series of activities. That didn't happen. Not at all!
If the Catalan National Day protests are a crime, the Spanish government has also committed a crime
As well as these charges, preventive detention has been applied to the accused because they are considered to have a risk of escape, destruction of evidence, or of repeating the offence.
Repeating the offence cannot apply as it was never even started. It's difficult to repeat something that you never started. There has not been anything that resembles rebellion. So, by repeating the offence do they refer to holding more demonstrations in the street calling for the independence of Catalonia? This is not a crime! The Diades, the Catalan National Days, are not a crime! If the Diades are a crime, the Spanish government also allowed them, so they also would have committed an offence. But as they are not a crime, nobody has committed an offence.
Moreover, hiding evidence? Hiding evidence, of what? I don't understand this, if the crime configured is not even configured. Here they are putting together a story with the idea that, even if it is not true, if you say it enough, the people end up believing it.
All this, for what purpose? To prevent independence?
I don't understand that this story is being told to prevent independence. Independence has never been possible. There have never been circumstances under which it was possible to pursue that in a specific and operative way independence was possible. Even if they had wanted to commit the crimes of rebellion and sedition, the conclusive acts of these offences were ridiculous in terms of the aim of achieving independence. Independence requires a form of behaviour that I have not seen here at all. Through demonstrations, nobody becomes independent. Moreover, Catalan society is sufficiently divided if you take an electoral approach.
And so?
The problem is not independence. The problem is much simpler. Rajoy cannot sit down to negotiate, he cannot allow the appearance of a photo of him sitting with Puigdemont negotiating, because he would lose all the votes of the extreme right. That is the vote of the followers of Aznar's views. Rajoy has a problem in the PP, he has a million and a half, or two million voters, on the extreme right, which will not even let him sit down. He cannot negotiate. We are looking at a leader who does not have the room to negotiate.
Rajoy was ready to negotiate with Artur Mas, but he couldn't because the PP has an extreme right wing that would not allow it
How has it got to this point?
The appeal made [by the PP] in 2006 against Catalonia's new Statute of Autonomy was idiotic, it made no sense. The [Constitutional Court's] final resolution on this in 2010 destroyed, violently, the territorial basis of the state. At that moment there was a very special need to make a pact. In fact, I believe that Rajoy was ready to negotiate with Artur Mas, but he could not because the PP has an extreme right wing that does not allow him to. Moreover, there is a great fear in the PP of losing power due to all the legal cases that it is facing.
If in the end Junqueras, Forn, Sánchez and Cuixart are in prison to keep part of the extreme right happy, who demand harsher treatment, and to silence the independence movement, can we speak about political prisoners?
Why are they political prisoners? Simply because they are not in prison for committing any crimes. They are in prison because they have carried out a series of actions that from a political and ideological point of view cannot be tolerated and accepted by the government of the nation. They cannot be accepted by the government of the PP. This situation under a government of the Socialists [PSOE]... We may or may not like their attitude on article 155 very much, but the reality is that a situation of this nature has never occurred with the Socialists. The constitution has worked. With Zapatero, for better or worse, the Catalan Statute of Autonomy went ahead. This is a matter of the right, of a part of the right. A part of the right which we thought that we had taken into the constitution and which in the end turns out not to be there.
And the solution?
You have to sit down to talk, community by community, discarding the use of force in any case. And taking into account that crimes have not been committed, but rather a series of events of a symbolic character so that Madrid can understand that the protest of approximately two and a half million Catalans is enormous. There are many people in the Catalan Socialist Party who neither understand nor approve nor accept the idea that certain politicians have been put into jail basically for their ideas.
I would not be surprised if the Jordis were set free. The regime knows how much it can sustain and now it has a lot of weight on its back
They are asked whether they will obey the constitution or if they defend a unilateral approach...
In the approach that the Supreme Court is taking, the MPs are being required to make declarations that relate to the ideological choices, about how they see the political context. This is a question that is beyond the area of the law, of criminal law. They are asked what they think and depending on what they think, with the actual facts set to one side, they are released or not. Even if the facts are the same for all of them, there are some who have been allowed their freedom, some in Belgium and others in Spain. I do not know what will happen, but now (after the court appearances of Thursday 11th January) I would not be surprised if the Jordis were set free. After all, the regime knows how much it can support. And now it has a lot of weight on its back.
When I have two million right wingers who are claiming a disproportionate reaction by the state because some people don't share their ideology. What is being done with this preventive prison has an electoral format. Until now we have seen a very consistent script being followed, a script that has been reproduced by the Public Prosecutors and by the judges. This is very suspicious, when there are politicians who initiate measures which are executed by judges the following day.
This puts judicial independence in doubt...
These episodes demonstrate that judicial independence is non-existent and that there is no separation of powers. But I don't know to what extent right now the Spanish government is interested is retaining these prisoners. There could arrive a moment within the regime when the court starts believing in what is doing. It could be that the Supreme Court does not want to stop when the Spanish government says that it is time. This is difficult to know. I believe that there is point beyond which the Spanish government will not be interested in continuing like this. It is a scandal. It must be stopped.
Why will they no longer be interested? Is there pressure from Europe?
In Europe, Spain's position is extraordinarily weak at the moment. The European Central Bank has turned off the tap. It has expressed very clearly that it will not continue to buy sovereign debt. This shows that our pension system is already in the balance, it has already burst, it is in default, it has sunk. The country is technically in default on its sovereign debt. We lived through years of prosperity, surviving the crisis, because the European Central Bank bought our sovereign debt at very low interest. Because of that we have a very contained risk premium. But this could change, and it depends on what happens regarding the political prisoners. Catalonia is an economic motor for Spain. If there is a crisis there, the response of the markets will be very harsh.
The Supreme Court will not change its mind. The decision is made. There is no-one who can change the script
Then, can all this pressure ease the judicial situation for the Catalan ministers and the Jordis?
Now that the Supreme Court has already agreed on prison for Junqueras, and repeated a series of criteria over and over again it is very difficult for this to be overturned. What would we imagine? That the Supreme Court will acquit them? That it would recognize it is not competent to judge these matters? A court will not change its view in such profound terms because that would bring down some very high and intense responsibilities on the judges themselves. Because of that the dance has to continue, it is a monsters' ball, which in the end will return a guilty verdict. It is decided. There is no-one who can change the script.
Are we saying that they will end up being found guilty?
At the moment it is very difficult for me to imagine they would be absolved. There is no hope that these judges will sit down to study the rules in an orthodox way.
So, they could be sent to prison for 30 years...
If you took a bicycle and were distracted and knocked down an old lady, you would be in trouble, I wouldn't say that you would come out of it okay - although it would be necessary to look at aspects such as her actions as she crossed the road, etc - but you couldn't be accused of murder. It would be a scandal, and nobody would understand. Nobody goes round on a bike with the intention of killing old ladies. Why am I saying this? Because to accuse people of crimes of rebellion and sedition in the case we are talking about is even more disproportionate than my little story. Therefore, when a court gets involved in this issue - the Supreme Court, moreover, which does not hold the competency as it is held by the High Court of Justice of Catalonia (TSJC) - then, anything is possible.