In principle, every citizen enjoys a right that is lacking in those who have jurisdiction before the Supreme Court, including the current Attorney General of the State, Álvaro García Ortiz. The right to appeal to a higher court to review the sentence. “Every person found guilty of a crime shall have the right to submit the sentence and sentence to a superior tribunal,” establishes the International Covenant on Civil and Political Rights that Spain ratified in 1977, when pre-constitutional democracy was just beginning. For decades, Spain has received repeated international condemnation for failing to provide the possibility of appeal and for asking a higher court to question the facts and evidence of the convictions. The 2015 reform corrected this anomaly and now the Superior Courts of Justice and the National Tribunal examine the appeals of those convicted at first instance. This is not the case with the Supreme Court when it prosecutes those given jurisdiction.
The state attorney general, whose conviction the Supreme Court announced on Thursday, is the latest example, but not the only one. And not even the Popular Party senator José Manuel Baltar, the former Podemos deputy Alberto Rodríguez, the Catalan politicians convicted in the trial against processes in 2019, neither then-judge Baltasar Garzón in 2012, nor former socialist Interior Minister José Barrionuevo in 1998 were able to appeal their sentences. At most they have asked for protection before the Constitutional Court, which does not discuss the facts or the evaluation of the evidence: the protection appeal only verifies whether fundamental rights have been violated in the proceedings, in which case it can annul the sentence –as it partly did in 2024 with the conviction of Rodríguez. It is the only path left for García Ortiz when his sentence is final.
The European Court of Human Rights, whose doctrine recognizes the right to a second instance and to which even convicted criminals can appeal, was ambiguous in the case of convicted criminals. “Privilege carries its own penance,” summarizes Javier Melero, professor of criminal law at Pompeu Fabra University and lawyer of one of the independence activists convicted in 2019 by the Supreme Court. “Strasbourg always says that the Spanish system has a problem, but it has not annulled the sentences because it believes that the fact that the Supreme Court judges you is a strengthened guarantee.”
Although the most recognizable people are politicians – all members of the Government, Congress and Senate, led by their presidents –, dozens of magistrates and prosecutors are also found before the Supreme Court, not only the General of the State, but also those in the Supreme Court chamber. Hundreds of defendants who in turn, when they are tried, drag their co-defendants into the same situation. Both the entrepreneur Víctor de Aldama and Koldo García, who in principle would have the right to the second degree because they are not qualified, will suffer the same fate as the former minister José Luis Ábalos, still a member of parliament and therefore qualified in the case of the masks: they will be tried in the first and only degree by the Supreme Court. If they are convicted, they will not be able to appeal.
Rodrigo Tena, notary and trustee of the Hay Derecho foundation, believes that beyond the specific case of those who have legal personality, dragging other non-certified people into the same situation could represent a serious problem before the Strasbourg Court. “It certainly seems to me that this is a fairly clear weakening of the guarantees in the criminal process for those who are not politicians,” he says. Santiago Torres, lawyer and former magistrate, agrees. “It has always seemed to me that this is in conflict with the doctrine of the European Court of Human Rights, which recognizes this right at a second instance. Even in the case of the Attorney General, if you notice, he had this right during the investigations: they were organized in such a way that an appeals chamber resolved the appeals.” But not so in the sentence.
“It is a problem that is good to explain, but which has no solution”, says the professor emeritus of criminal law Luis Arroyo Zapatero, who is in favor of maintaining the arrests. It has no solution because there can be no higher court than the Supreme Court. “The second case has the same reason as measurement: people judge them with more equanimity, which is usually the result of experience,” he says. Arroyo Zapatero, however, in the case of García Ortiz believes that there was a previous problem, which will reach the Court of Guarantee: “The Constitutional Court does not examine the evidence, unless it is manifestly insufficient. And here the evidence was obtained in a very dubious way”, he says regarding the acts of the Attorney General’s Office ordered by the investigating judge.
“It’s not just that he was prevented from appealing to another level, it’s that the chamber of five that accused him is the same chamber, together with two others, that tried him,” explains Perfecto Andrés Ibáñez, magistrate emeritus of the Supreme Court. in his book Third in contentionIbáñez questions the value of politicians’ ability because it can hardly be separated from its privileged nature. The Hay Derecho Foundation advocates its abolition or minimization. “In France, for example, the President of the Republic, the Prime Minister and the members of the Government are registered. Here it might make sense, but nothing more”, assures the notary Tena. The sentence against García Ortiz will be final as soon as it is pronounced.
