Javier Borrego, a Spanish judge with a distinguished judicial career, sat down with europeanconservative.com to discuss the state of the rule of law in Europe. A former judge at the European Court of Human Rights in Strasbourg who has served as a public prosecutor, and also sat on the Spanish Supreme Court, he is an authoritative voice in assessing the threats that judicial independence faces in Europe.
In this interview, Borrego warns of the dangerous drift of European justice towards politicization. He also criticizes the Spanish proposal of an amnesty law, describing it as a direct attack on the fundamental principles of the European Union.
With your experience on the Spanish Supreme Court and the European Court of Human Rights, how do you assess the health of the rule of law in Europe?
In general terms, European justice functions well within its different judicial systems, both continental and British. The existence of the Court of Justice of the European Union to ensure the primacy of EU law and the Strasbourg Court to protect human rights proves this. However, political and media pressures are affecting judicial independence.
Are European courts becoming politicized?
The European judicial system is not isolated from the global political context. A worrying problem is the ‘spiral of silence’ described by Elisabeth Noelle-Neumann: certain groups manage to impose their opinions through media pressure, leading to sensitive issues such as surrogacy or adoption by same-sex couples being decided based on media visibility and not necessarily on strictly legal criteria.
A case in point is a German case where a married man who legally changed his sex wanted to be registered as a mother after the birth of his child. After going through several judicial instances and reaching the European Court of Human Rights, a complex judgment was handed down that did not resolve the underlying problem, leaving the door open to future controversies.
Another worrying example is the recent ruling against Marine Le Pen in France, where a legislative reform allowed immediate political disqualification despite the suspension of other penalties. These examples well illustrate how media and political pressure can influence critical judicial decisions.
Speaking of the Marine Le Pen sentence and media pressure: does the same also happen in Spain with cases like the radical gender-based violence laws?
Yes, indeed. The ‘only yes is yes’ law in Spain has generated situations in which media and political pressure has significantly interfered with judicial independence. For example, in the case of the footballer Dani Alves, the Catalan High Court of Justice recently corrected an initial conviction, influenced by public and media pressure, for lack of evidence. The high court judges resisted media pressure, but the case reflects the dangerous trend of the ideologization of justice.
Legislation similar to the Spanish gender-based violence laws have recently been promoted at the European level. What consequences could this have for justice in Europe?
This measure could seriously erode fundamental principles such as the presumption of innocence, transferring the mistakes made in Spain to the European level. The proposal promoted by certain political groups in the European Parliament equates very different situations under the same legal umbrella, generating legal uncertainty and reducing the quality of the rule of law.
Another key issue is the conduct of the Spanish Constitutional Court in the ERE case [a corruption scandal involving the misuse of public funds meant for early retirement schemes by regional socialist officials for personal enrichment]. How do you assess this case and what implications may it have?
The ERE case is one of the biggest corruption scandals in Europe, and the actions of the Spanish Constitutional Court that play into the hands of the socialist have eroded confidence in the Spanish justice system. There are judicial sectors in Europe concerned about the independence of the Spanish Constitutional Court, especially after decisions that are highly questionable from a legal point of view, such as those promoted by the Court’s president, Cándido Conde-Pumpido [in favour of corrupt socialist politicians]. This reflects a worrying politicization of justice in Spain, with even more serious implications than those observed in the cases of Hungary or Poland, countries that Brussels has relentlessly pursued citing judicial independence issues.
And how might the European Court of Human Rights react to the amnesty law, seeking to withdraw legal action against Catalan separatists, being proposed in Spain?
The amnesty law proposed for purely political reasons is a clear violation of fundamental principles of the European rule of law. It is possible that the European Court of Human Rights will condemn Spain for violating fundamental rights, especially considering that the amnesty is used [by the Spanish socialist government] to obtain specific political support, which is unacceptable in European legal terms.
How do you see the balance between national sovereignty and European competencies in judicial matters?
Europe cannot and should not replace national justice but can act as the ultimate guarantor when national justice fails. However, the trend towards a European supra-state that erodes national legal sovereignty is worrying. The case of Catalan separatist leader Carles Puigdemont [who has been living in Brussels as a free man ever since he fled Spain in 2017 when an arrest warrant was issued against him] clearly shows how European institutions can be politically instrumentalized. We must strengthen our national institutions and use Europe as a resource, but we must always defend our sovereignty and independence. It is essential to prevent situations like those experienced in Spain, where judicial institutions are politically manipulated.
