Beccaria said it more than two hundred and fifty years ago in his masterful treatise ‘On crimes and penalties’: “A man cannot be called a criminal before the judge’s sentence, nor can society take away his public protection until it is decided that it has violated the covenants under which it was granted. And Manuel Marín has said it in his column on August 4 that he titled ‘Inocentes y miserables’: “The preventive sentences, the set sentences and the news trials are disgusting (…). Trials always arrive contaminated with armored prejudices and insufferable and out-of-date technicalities because the fire burned long before ». In other words, something similar to what one day
I told that good and just man who is Raúl del Pozo, that our judicial Spain is like a great platform where some acting as a court of the common people, others as gallows judges, others as chicken coop prosecutors and the rest of the devil’s lawyers , we judge everyone and even send them to the guillotine in the style of the Jacobin public health committees.
Advertising is the soul of justice and fosters a public opinion that, in the reverse case, would be mute and powerless. Certain. As much as it is that if the media deal with criminal matters assiduously it is because people are very interested in it, although, to tell the truth, that curiosity of the public not infrequently has a playful side and examples or sample buttons they are not lacking. The judgment of a renowned politician, like that of an Ibex 35 businessman or an elite athlete, helps some to escape their own lives and take care of that of others. Recalling the satire X that Juvenal dedicates to the seductive power of circuses, it could be said that today the problems of citizens can be digested with “bread and judicial circus.” The attraction for these processes has created a kind of public square or neighborhood patio where instead of gossiping about others, it is made up of characters sitting on the bench or entering, if possible, handcuffed, into a courthouse.
The criminal process, seen in this way, is threatened with death. The principle of publicity degenerates into disorder and noise, a situation of which a certain press is guilty that follows cases with indiscreet recklessness and reprehensible impudence against which almost no one is capable of reacting. It is clear that by censoring these practices I am not proposing to restrict freedom of expression or the right to receive truthful information. Very far from my intention to do so. What I do regret is the undervaluation of the constitutional guarantees in which some communication media incur and the abuse of what Francisco Tomás y Valiente called “condemnatory fruition” and produces an overwhelming tension in the administration of justice. A decline for which, on many occasions, some assault prosecutors and certain ‘Harrelson’ police units are responsible for setting up operations with pompous labels, carrying out spectacular entrances and house searches and making unnecessary arrests, all recorded in images that, in line with often, they are aired in the press, radio and television, which, apart from the fright they cause, constitutes a criminal violation of summary secrecy that would be urgent and necessary to tackle.
To get to know this perversion of the so-called ‘paper’ trials, it might be healthy to read some pronouncements of the US Supreme Court that declare the nullity of the proceedings for violation of the ‘due process’ or right to a fair process, considering that the massive publicity of the trial with abuse in the exercise of freedom of expression and information violates the right of defense of the accused. They are assumptions that happen because in the criminal process the idea of the law and the reason for force prevails over the force of law and reason. Human justice is done in such a way that not only are men made to suffer because they are guilty but also to know if they are or not.
But there is more. I am referring to the consequences of the acquittal after a painful procedural way of the cross of noise and fury. How is the honorability of someone who has been subjected to a very summary judgment and ‘parallel’, better, ‘drying’, restored? The terrible mechanism of the criminal process, imperfect and, today, difficult to perfect, means for the investigated, prosecuted, accused or whatever you want to call it, a real ordeal with all the possible stations to imagine. From the derision to the family and work ruin and even the preventive prison, to later not even receive excuses from those who, consciously or unconsciously, have upset and even destroyed his life. The accused exposed in the arena of public opinion, even if in the end he is acquitted, will probably leave this world with the mark of an outlaw.
The official data I have is more than worrying. Between 2002 and the end of 2020, several thousand people, some of whom had even endured pre-trial detention, were acquitted. Why is this happening? Well, because in the criminal process the idea of executing prevails over that of doing justice and indistinctly those investigated and convicted are thrown into the same pit. You are a criminal or you are not. There are no alleged criminals, but convicted criminals or, where appropriate, persons protected by the only constitutionally relevant presumption: that of innocence, which also implies that the burden of proving the crime corresponds to the person who imputes it.
In cases that present indications of criminal responsibility, we are obliged to be clear. Definitely. But it is also necessary that this desired clarity is not clouded by the emergence of certain bad practices, the result of confusion or the erasure of the boundary that separates what is valid from what is not worth. The new Leviathan is perfectly entitled to pursue crime, but only on the condition that he does not endorse the old Leviathan’s motto that everything is allowed.
Our Nobel Prize in Literature Camilo J. Cela often warned us that in Spain there is an excess of passion and a lack of serenity. The popular courts never liked moderation. Neither the forms. The solemnity for them is a liturgy in a tracksuit and walking around the house or, if you prefer, from house to house, which is so much riding. The lavish harvest of defendants killed by the verdicts of the mob can serve as decoration or decoration for a television program and, in particular, as ‘telejustice’, where the conduct of others is judged by uncouth wooden judges, but never a a benchmark of justice that, in any case, must be neutral, calm and cold.
Javier Gómez de Liaño is a lawyer. He was a magistrate and member of the General Council of the Judiciary