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  2   COMPENDIUM OF RIGHTS (For citizens to confront the abuses of Spanish Judges) Volume 1 R Recusal (of a judge lacking in impartiality) Luis Bertelli Member of the Law Society of Madrid English edit by J.A. Linn
  3   Contents Introduction------------------------------------------------------------------Page 3 Part 1 1) The right to recuse a judge. Initial explanation ---------------------Page 8 2) Basis of a judicial recusal --------------------------------------------Page 15 3) The grounds on which Spanish judges will accept being recused. P 25 4) End the reluctance to recuse -----------------------------------------Page 34 5) Procedures to be followed to initiate the recusal of a judge------Page 43 6) Complaint before the Constitutional Court on the right to an impartial judge.------------------------------------------------------------------------Page 52 7) Application to the Court of Strasbourg on account of a violation by the Spanish State of the right to an impartial judge-----------------------Page 59 Forms-----------------------------------------------------------------------Page 64 Part Two What Spanish judges are capable of doing----------------------------Page 96 The Bertelli Strategy --------------------------------------------------Page 140 It can be stated categorically that in human history there has never been any right that has been achieved without sacrifice and suffering.Luigi Ferrajoli. "Derecho y razón". (“Law and Reason”)
  4   Introduction The world is changing rapidly. There are still many good people in it, but they are often the victims. The problem is the lack of justice, which allows unscrupulous people to get the upper hand. In Spain, it is easier than in most other countries to experience an absence of justice, making it one of the most corrupt nations in the world, and therefore one of the least respected internationally. This privation of justice is acknowledged by: 1) Those who have been condemned (in the prisons where the author regularly delivers lectures on law, inmates from Third World countries can be heard saying Spain has the worst judicial system on the planet). But this is not because they are resentful of their sentences, as the judicial authorities claim to be the case in order to undermine their credibility, as they nearly always admit their guilt freely. 2) The judges, who went as far as to request at the opening ceremony of the Judicial Year of 2012, "the efforts of everyone to restore confidence in the judicial system"1 . But these same judges know that it is their own actions that are the cause of the very mistrust they were referring to. 3) The politicians of course, who are currently engaged in defending themselves in the many ongoing cases of corruption involving them directly, 2 mostly consider themselves lucky for not having reformed Spain's judicial system when they should have. 4) The Council of Spanish Lawyers, after its current President cynically said not long ago that, “we must do away with the vulnerability, mistrust and lack of protection of citizens.” 3                                                                                                                 1 Journal of the General Council of the Spanish Bar No . 75, September 2012 2 Thousands of Spanish politicians of the central, regional and municipal governments have been accused of corruption. 3 Journal of the General Council of the Spanish Bar Nº. 92, 2015.
  5   However, nobody does anything to improve the system, and litigants are paying the price for having to suffer those judges who behave like Voltaire’s4 description, with their contentious statements that we view with mounting suspicion. This was pointed out by the nineteenth century Spanish Justice Minister Alonso Martinez 5 . What is more worrying is that the university professors who are responsible for training lawyers are aware of the shortcomings of the system, but continue to say in private what they never tell their students in lectures: “No sensible man believes in what is referred to as justice ... it is no more than just hollow talk, a narcotic for the stupid” 6 . Faced with such hypocrisy, these budding lawyers are the first to be surprised when they realise, on starting their working lives, that what they believed in - and what had made them decide to become lawyers, -ergo, that justice was created for the welfare of the citizens - is a big lie. The inequalities go on as before, to the benefit of some people and to the detriment of others. These lawyers are trapped by the need to make money, but since they get no support from their professional associations, they have to tell their clients that they must grovel before the judges to win a case. This policy does not even work because all parties do the same. They do not realise that, like Emperor Julian, these magistrates admit in private they would be pleased if people actually dared to criticise them. This Compendium of Rights is aimed at all those who have little faith in the Spanish judicial system, and fear that if they ever come face to face with a judge they perhaps cannot rely on getting a fair hearing. It is also intended for those who have lost a court case, or fear losing one from the outset, because of the imperfections of the Spanish judicial system.                                                                                                                 4  Judges  are  oxen  with  the  authorities  and  tigers  with  the  citizens.   5 Preamble of the Criminal Procedure Act of 1882 6 J. Emilio Luque, La Justicia es un equívoco (Justice is a misunderstanding), p. 50.
  6   Here we will show the intolerable mistakes of Spanish judges and they way they frequently act according to their whims instead of according to the law; we will indicate how to defend ourselves against these wrongs. As in the author's previous publications7 , it is anticipated to make for enjoyable reading while at the same time providing valuable information. As an additional benefit, documentation that can be used to claim basic legal rights in the international courts, if we do not get justice in Spain, is included. The integrity of the judges of the Court of Human Rights in Strasbourg and the Human Rights Committee of the UN8 , is not in question, unlike the integrity of the Spanish staff that processes the complaints, and who have the power to reject them before the judges get to see them.  The aim should therefore be to remove that barrier so that it is possible to obtain the justice in Strasbourg that is denied to us in Spain.9 In the following text there is no alphabetical order, rather a sequence adjusted to the priorities of readers, giving them what they need most. Nowhere else can this information be found, and without it anyone is ill- equipped to defend themselves in Spain. We shall also describe the illegitimate persecution the author suffered for denouncing the prejudices and bias of Spanish judges, considering that these two decades-long saga is important enough to be revealed for the first time.                                                                                                                 7 Spanish law journals -“Spanisches Jura Magazine”, “Spanish Law Journal”, “Clan Judicial”, “Colección sobre Derechos Fundamentales” and “Jueces a Juicio”. 8 There are numerous occasions when its members voted against the decisions of the State that put them in office. Among others, ECHR cases 07.16.1971, Ringeisen v Austria, 08/06/1976, Engels and others v Netherlands, 26/06/1978, König v Germany, 13/06/1979, Marckx v Belgium, 05/13/1980, Arctic v Italy, 22/10/1981, Dudgeon v UK, 13/07/1983, Zimmerman v Switzerland, 10/07/1984, Guincho v Portugal and 26/10/1984, Mc Goff v Sweden. 9 Luis Bertelli asked the Spanish Parliament on 9th January 2013 to audit the performance of the Strasbourg court, without result. Apparently we have to keep insisting.
  7   If the author was able to defeat his tormentors, as indeed he succeeded in doing, any other person who loses in court when they have right on their side may do so too. It is important to be clear that if someone confronts a judge who aims to unfairly deprive him or her of their dignity, property, honour and even freedom - or who has done so already - they are defending themselves as they should, and it feels right. The first surprise for the judge will be when he or she realises that his or her inexcusable behaviour is being challenged. The second when the judge finds that such a confrontation can cause him or her problems because the law is being broken, a nd the offending judge does not want this to come out publicly. Therefore no-one should accept such a situation, although it is the conciliatory reaction most lawyers recommend. Defendants should fight tirelessly for their rights, which is what is proposed here and is what you will be shown how to do. Judges are only judges when integrity dictates their behaviour. In 2013, one of them10 wrote that there will be no real reform of the judicial system as long as we disregard the human values of a judge: honour, humility, considerate treatment of others, a belief in the truth, impartiality, and so on. If the judiciary is faithful to its duties, the nation will prosper, but when they spend their time, "…examining little vices through tattered clothes, hiding great vices with robes and furred gowns……."11 , the nation will crumble. Therefore the only way forward is the struggle that we recommend here, until we find judges worthy of saving Spain's judicial system, perhaps also helping to improve all of Europe's.                                                                                                                 10 Juan Carlos da Silva Ochoa. Aranzadi Law Journal nº 9, 2013. 11 Shakespeare, “King Lear”.
  8   Little wonder that the European Commissioner, Anna Cecilia Malmström, warned several years ago that, “three quarters of Europeans still consider corruption a great problem”. This institutional corruption will not disappear so long as judges permit it to go unpunished in exchange for the impunity granted them if they choose to destroy ordinary citizens. If on top of this the citizens do not exercise their full rights to defend themselves, they are irretrievably lost. First part 1) The right to recuse a judge. Initial explanation. Let it be made clear from the start that in the following we will show that any judge may be made to stand down if he or she acts in a way that can be shown as to be lacking in impartiality. We will explain what has to be done and will provide documents for the accuser's guidance. Moreover, we confirm that a judge suspected of bias can easily be moved off a case, contrary to widespread opinion that holds that such a possibility is very limited. The blame for this confusion lies with the erroneous pronouncements of the Spanish Constitutional Court, which is used by judges to block most of the challenges made against them. The Spanish Constitution of 1978 (hereafter SC) ended a long period in which most basic rights were not respected, and this supreme law, citing justice as its foremost value in the preamble, incorporates the fundamental rights that judges must necessarily guarantee citizens12 . This allows us to say that if the Constitution recognises these rights, we must retrieve them by challenging the decisions of any judge who does not take them into account.                                                                                                                 12 Article 9.1 states that “public authorities are bound by the Constitution”.
  9   However, something so simple to understand is not happening in practice because the vast majority of lawyers, in order not to antagonise a judge, do not dare to claim these rights for their clients, much less insist the judge corrects the situation when the judge's actions violate the client's rights. Not denouncing violations of our fundamental rights as soon as this occurs in the judicial process means we run the disastrous risk of not being able to appeal to the Constitutional Court later, or, even more importantly, to the Strasbourg Court of Human Rights or the UN Human Rights Committee in Geneva. These basic rights are many and varied - in this compilation we will analyse them all - and the most important is the one that ensures any judge or court settling a legal dispute must be impartial. Therefore, when we prepare for, or are even already involved in, a court procedure, we must be clear that we will begin by accepting what is called a process of collaboration. This means that we respect the established order: adversarial parties with an impartial judge presiding. However, if this equilibrium is upset and the person who should remain independent of the interests at stake - the judge - transgresses any of the established grounds justifying recusal as established by law13 , but continues to hear the case, or he or she takes the side of the opposing party, thus giving strong motives for suspicion of partiality, we must without hesitation in these situations move to a confrontation in which we question the acceptability of the judge. By recusing the judge because of lack of neutrality if it becomes obvious that he or she has decided to favour the other side, not only can we improve our personal legal situation, but also, indirectly, the                                                                                                                 13 Article 219 of the Organic Law of the Judicial Branch, which includes the grounds on which a judge may be recused, which will be included later.
  10   Spanish judicial system as a whole. One day it may become the system we deserve to have, and which we need to achieve together. 14 Therefore, by filing the recusal of a judge, we are not doing anything abnormal or intended to offend anyone; we simply do not want our possibilities of defence to be disadvantaged, which they almost certainly will be if we do not act immediately. Or, to put it another way, we must not accept the arbitrariness of the judge that could result in our legal situation being prejudiced. It is obvious that if our reasonable expectations are not addressed in the legal process, or if the exercise of the right of defence is systematically encumbered, or if the relevant evidence we submit is not admitted, or if we do not receive the same treatment from the judge as that received by the other party, or if the judge hands down arbitrary or unreasonable resolutions that are not in our favour, our right to a fair defence is severely impaired, a situation prohibited by article 24.1 of the SC. Moreover, if this violation of the Constitution come about as a result of the judge's or the court's bias, article 24.2 of the First Law, which guarantees the right to judicial fairness, will have been violated, and we must correct this immediately by recusing that judge or the court in order to have the wrongs amended. Explained like this, it is obvious that we should be ready to have removed from a case any judge we consider lacking in impartiality. In fact there are many people who would like to have the opportunity to recuse a judge or a court in Spain. The problem arises because judges will not tolerate being taken off a trial, frequently eluding this threat by accusing the litigant of irresponsibility.                                                                                                                 14 Socrates at his trial: "Athenians So, far from defending myself, I am actually defending you." Apologia of Socrates, by Plato.
  11   Nevertheless challenging a judge for the purpose of exercising the litigant's constitutional right to an impartial judge can hardly be referred to as irresponsible, whether on reasonable grounds or not. It is as if there exists a sacred rule, which obliges us to tolerate not having our claims treated fairly in law, as would be the case if impulsive and unreasonable decisions taken by the judge were allowed to pass unchallenged. Despite this, if we see from the beginning of the process that the judge’s behaviour may result in our losing the case, instead of thinking, as most plaintiffs do, 'We must resign ourselves; the least important thing is that we have right on our side.' Nobody appears to want to accept that if we decide to take challenge a judge, it is because he or she shows a clear interest in siding with the other party to our detriment. Throughout this Compendium of Rights we will demonstrate that in Spain there is no justice. Everyone is aware of it but nobody says it out loud, so we have to fight hard. This broken judicial system makes it extremely difficult to recuse a judge, because it is obvious that any judge suspected of partiality must be removed from the proceedings. Unsurprisingly, however, the judge that we have doubts about wants to continue in the judicial process at all costs, so that when the time comes that judge will hand down a sentence favourable to the other party. If the judge did not have any desire to favour the other party, he or she would not object to being removed from the proceedings; indeed it would not matter to them. It would be like those citizens who make up a jury and are in no way bothered if they are removed from it. They leave calmly and that’s it. Let us also remember that, where the circumstances demand it and prior to proposing his or her removal, the judge should decide unilaterally to abstain from hearing the case.
  12   If there was anything that could give rise to doubts about impartiality, and if this bias is discovered later as the result of a recusal, that judge's guilt is increased. Moreover, by not abstaining when knowing that there are reasons for doing so, a very serious disciplinary offence has been committed15 , which could result in the judge losing his post. Consequently, judges steadily resist being challenged, refusing to admit the recusal when it is presented, or giving absurd explanations for not allowing it, such as that the judge is responsible under the rules of allocation of cases, the composition of the courts, or as the appointed chairman of a tribunal, should not be obliged to stand down. Judges also argue that on account of the recusal the length of the trial may be extended to the detriment of the other party. They refuse to recognise the most important thing: that only with an impartial judge can there be the assurance that justice will be done, and as the interested party that we are, we should try to remove a judge at all costs if he or she is clearly siding with the other party. However much our lawyers may tell us that we should not challenge the judge because it will make things worse for us, when we decide to confront that judge it is because we can see the trial is going against us because of the prejudiced attitude of the judge. We may be told that our protests about the judge’s unfair behaviour may be considered libellous, which is not true. In exercising our constitutional right to freedom of expression16 we can express our opinion about the conduct of the judge, without what we say necessarily having to be true. 17 Such a denunciation has a higher tolerance because the alleged offender is a public servant and is subject to more rigorous monitoring of                                                                                                                 15 Article 417. 8 of the Organic Law of Judicial Power. 16 Guaranteed in Art. 20.1 of the Spanish Constitution and which we will talk about in this Compendium, distinguishing it from the right to information. 17  Constitutional Court rulings 9/2007 of 15th January, 50/2010 of 4th October and 41/2011 of 11th April).  
  13   his or her activities. Therefore, even if our criticism is wrong, insulting, or serves to annoy or displease a judge, there is no intent to offend, and if our actions were obstructed, "there would be no democratic society." 18 The sentence of the Spanish Constitutional Court -hereinafter SCC- number 216/2013, dated 19th December, has even admitted that the use of the term ‘dishonesty’ should not be considered excessive in view of what we want to convey, as it refers to a matter of public interest concerning the performance of a public official. As a result, if the partiality of the judge is making it clear that the outcome of the process will not be beneficial for us, we must recuse him or her without worrying at all about the terminologies that we will have to use. We must take care obviously that any phrases are not humiliating, offensive or outrageous, and also avoid all clearly unnecessary pejoratives and insulting descriptions to explain our reasonable doubts about any lack of impartiality. We would base the right to remove a judge from hearing our case on what the Order of the Spanish Constitutional Court notes -hereinafter OCC-number 238/2014, of 9th October, reiterating what was said in the previous OCC 180/2013 of 17th September: “The impartiality of every court is one of the basic guarantees of due process (Article 24.2 CE.), and even constitutes the first of them (OCC 60/1995, dated 16th March, FJ 3, 162/1999 of 27th September, FJ 5 and OCC 51/2011, of 5th May, FJ 2)”. This right must be exercised whenever we have doubts, objectively justified, that make us fear that the judge may be prejudiced and has been using his or her own personal considerations as a criterion rather than what the law dictates. As in the English adage: “Justice must not only be                                                                                                                 18 Constitutional Court rulings 9/2007 of 15th January or 110/2000, of 5th May, citing SCC 107/1988, of 8th June.
  14   done; it must be seen to be done”, or to the rule of appearances because, as we have indicated, when demanding our right to a fair trial, “it is not only a question of confidence which the courts must inspire in citizens, but also of public interest, in order to have a rational, correctly functioning, legal system” – Ruling of the European Court of Human Rights, (hereafter ECHR) ruling- in 24.02.1993, Fey v Austria. This position is also supported in theory by the Spanish Constitutional Court, although in practice it does nothing to enforce the judicial impartiality we are entitled to; “We recognise that in this area (having an impartial judge) appearances are important because what is at stake is the confidence that the courts should inspire in the accused and in other citizens in a democratic society” -SCC 69/2001, of 17th March, among many others. 2) Basis of a judicial recusal. Recusal, or challenge, is the means by which we aim to remove a judge from a trial because we believe that he or she lacks impartiality. SCC 231/2001, of 9th December and SCC 229/2003, of 18th December, considers it the ideal procedural remedy “to guarantee the right to a fair trial, removing from hearing the trial those judges whose attitude arouses suspicion.” The basis of the recusal is therefore the need to eliminate such fears or suspicions arising from the personal interest of the judge who handles the trial in favour of or against either party, which allows that judge's mediation to be considered problematic. Its presentation is justified by objectively reasonable doubts that the judge will not apply the law but instead will act according to his or her own criteria. This is recognised by the Spanish Constitutional Court, applying the doctrine of the Court in Strasbourg.19                                                                                                                 19 OCC 180/2013, which in turn reflects the STC 162/1999, of 27th September; 69/2001 of 17th March; 5/2004 of 16th January and OCC 26/2007 of 5th February.
  15   This obligation not to be 'both judge and jury' or 'one's own judge' can be summarised in the SCC 162/1999 of 27th September, in two rulings, According to the first, the judge cannot exercise in the trial any functions that can be considered lacking in objectivity; in the second, the judge may not act in a way that would give the impression he or she may have pre-formed opinions concerning any of the participants” 20 . The European Constitution expressly states the right to be heard by an impartial judge, noting in Article 10721 , “Everyone has the right to have his case heard ... by an independent and impartial judge.” The European Convention of Human Rights and Fundamental Freedoms also includes this with the same wording in its Article 6.1, and the same text appears in the International Covenant on Civil and Political Rights - article 14.1. In Spain, however, judicial impartiality is not mentioned in the Constitution. Those who drafted it did not see the need for impartial judges; maybe because politicians are not so interested in having impartial judges, or because tradition dictated that Spain has never had judges who respected the law22 . The lack of explicit recognition of this right led the Constitutional Court to integrate it into article 24.2 SC. This provision recognises the right to a trial with full guarantees and these include the right to an impartial judge. The SCC 133/2014 of 22nd July or the SCC 164/2008, of 15th December states that “the Court holds that the grounds for abstention and recusal, inasfar as they are intended to safeguard the impartiality of the judge, contain this fundamental right enshrined in article 24.2 SC (including the                                                                                                                 20 It also cites in support the ECHR rulings dated 20th May, 1989, Langborger against Sweden; of 25th November, 1993, Holm versus Sweden, and 20th May, 1998, Gautrin and others against France.   21 Included in Part II, Title VI, dedicated to "JUSTICE". 22 The Roman Emperor Justinian, the Visigoth King Euric or in the Middle Ages King Alfonso X the Wise, to name just a few examples, were forced to ask the judges to apply the law and not to judge cases at will.
  16   latest, SCC 306/2005, of 12th December, FJ 2; and 116/2006 of 24th April, FJ 3).” Article 24.2 SC also ensures the right to challenge a judge, “so that the deprivation of the right to remove the judge means restricting an essential guarantee that is legally established to safeguard the impartiality of the judge protected by the Constitution (for all, SCC 116/2008 of 13th October, FJ 2)” - SCC 205/2013 of 5th December. And this right to call for the removal of a judge also means -SCC 69/2001: “that the party’s claim should be conducted through the procedure laid down by law and that the question should be dealt with by a judge other than the one that has been subject to recusal (SSCC 47/1982, of 12th July, FJ 3, 7/1997, of 14th January, FJ 3 and OCC 227/1990, of 4th June)”. This is something to bear in mind because the recused judges themselves often do not allow the plaintiff's application to be processed. They themselves reject the challenges as they arise, and it can even been seen in the Constitutional Court, because, although it states in its SCC 155/2002, of 22nd July, that the rejection of the recusal by the recused judge himself can only take place "in very exceptional cases", accepting that “the recused judge may reject a recusal made against him, when it is clear that it has been made for spurious ends and is contrary to good faith, involving as it does abuse of rights and legal fraud…”. Also in SCC 234/1994, of 20th July, the questionable judge was permitted it as “reckless, abusive and contrary to the right to trial without undue delay”. It would be understandable if the challenged judge rejected the recusal on account of it not having been filed in time, or because it was proposed by a third party who is not involved in the trial, as the aforementioned Constitutional Court states, but to let the very judge suspected of bias decide not to accept the recusal, arguing reasons such as that the alleged motives are illusory or arbitrary, or that it has been formulated with the sole intention of hindering the exercise of their function, or that the
  17   alleged friendship or enmity is imaginary, or that the recusal is simply unfounded, is intolerable. It is obvious that these assessments should be made by another judge who will hear the recusal application after investigating whether the recusing party's claim has any factual basis, but never by the very judge who does not want to be made to stand down. The law severely punishes a recusing party who acts in bad faith, 23 but what should never be done is to deprive the defendant of the right of the recusal to be duly treated. We must prevent it from being rejected in this arbitrary way, especially in the case of a right that is inalienable, according to ECHR ruling 30/11/1987, H v Belgium. According to the precedents of the Spanish Constitutional Court24 , following a statement by the Strasbourg Court25 , there are two types of impartiality. Firstly, subjective impartiality, which ensures that the Judge has never had an inappropriate relationship with any of the participants in the judicial process. Here the behaviour and the personal convictions of the judge are discussed, making sure he or she does not position himself or herself for or against either party. From the subjective point of view, the constitutional guarantee is intended to ensure that the trial should be decided by a third party unrelated to the parties and the interests at stake, and that his judgment criteria should be based solely on the law and not on “personal or ideological sympathies, antipathies, principles or even prejudice, or, which is the same, motives unrelated to the application of the law” -SCC 60 / 2008 of 26th May-. The neutrality of the judges is related therefore to this subjective point of view, taking into account the correct attitude shown towards the parties, without bias and without                                                                                                                 23 OLJP article 228.1 sets the imposition of a fine of up to 6,000 euros. 24 SCC 26/2007 of 12th February; 60/2008, of 26th May; 47/2011, of 12th April or 133/2014 of 22nd July. 25 ECHR rulings of 24th February 1993, Fey v Austria and 15th October, 2009, Micallef against Malta.
  18   intervening in the dispute. It is imperative to avoid a situation in which the judge's decisions owe anything to influences outside the law, so that if there is a suspicion of inappropriate relations of a judge with either party, this would be a lack of subjective impartiality and we would proceed to recuse him or her on those grounds. As regards the kind of evidence required to demonstrate bias, the Strasbourg Court considers it appropriate to find evidence that aims to prove whether a judge has displayed hostility or ill-will for personal reasons -ECHR ruling 26th October, 1984, De Cubber v Belgium. Then there is objective impartiality, referring to personal aspects, these ensuring that the judge offers sufficient guarantees to exclude any legitimate doubt in this respect, and that there is nothing that could affect his or her impartiality and fairness of judgement. For example, among other assumptions: a) That there has not been previous contact with the case the judge is going to try, as would happen if the judge had participated in the instruction/investigatory (see footnote Explanatory Note) phase in a criminal trial that he or she later presides over, or when that judge has handed down a court ruling in an earlier court case. The Constitutional Court has considered as true acts of instruction involving objective impartiality, 26 among others, taking statements from witnesses or from the detained or accused party, making decisions about their personal situation or the admission of a complaint or lawsuit, or carrying out the investigatory procedures involved in the complaint, or necessary for the                                                                                                                  EXPLANATORY  NOTE   Under  Spain's  legal  system,  the  investigation  process  is  carried  out  by  a   magistrate  nominated  for  that  purpose,  with  or  without  the  assistance  of  the   police.  Once  this  procedure  has  been  concluded  and  the  results  of  the   investigation  phase  have  indicated    the  case  should    go  to  trial,  a  trial  judge  is   appointed,  who  must  by  law  have  not  been  involved  in  the  investigative   procedures.  
  19   investigation of the facts27 . Since the judgment of the Strasbourg Court of 24th May, 1989, Hauschild versus Denmark, the loss of judicial impartiality has started to be considered from this objective point of view when the judge who is passing sentence, and as a consequence of having had previous contact with the case, has taken a decision based on issues that will have to be included later in the ruling, or  also taking into account any possible criminal element if the judge has expressed any decision regarding possible guilt, albeit of a circumstantial or provisional nature. b) Objective impartiality could similarly be seen to exist if there were any hierarchical or other links between the judge and one of the parties that could influence his or her decisions. The former typically can happen in a military context. c) If the judge had previously been the lawyer or teacher of either of the litigants and presides over the case after having joined the judiciary. d) If the judge has occupied a public office in which he or she may have participated in the object of the dispute, or had knowledge of it, having formed an opinion that would affect his or her impartiality. In the case of a collegiate body – a court made up of several judges – the court may be recused even if only one of its members is thought to be lacking impartiality. This is recognised by the Spanish Constitutional Court; “It is enough that one of the magistrates should not be part of this tribunal... the guarantee of impartiality of the judge must necessarily be linked to the judge’s intervention in the case, regardless of the influence that his or her vote can have on final decision, since it is precisely the participation in the hearing, considerations, and voting on the issue by a judge who shows or may show any of the legally provided grounds for                                                                                                                 27 SCC 145/1988, of 12th July; 11/1989 of 24th January; 151/1991 of 8th July; 113/1992 of 14th September; 142/1997 of 15th September; 310/2000 of 18th December or 45/2006, of 13th February.
  20   recusal, which we aim to safeguard through this guarantee, irrespective of their possible influence on the deliberations leading to the final decision in the case ...” 28 The law states that only the parties and the public prosecution can challenge a judge29 , and the reasons for recusal basically affect the relationship between the judge and these parties. Therefore, lawyers and procurators cannot recuse directly, only on behalf of their clients, as they are collaborators in the judicial process that defends and represents their clients. It would be different if the judicial impartiality of the litigants were compromised by the friendship or enmity of the judge with these professionals, and although the Constitutional Court in principle seems to rule out this reason for recusal, 30 it ends up by recognising, logically, that in some cases these relationships can affect the loss of subjective impartiality of the judge; “In cases where there are circumstances which may give rise to the legitimate fear that the judge’s close friendship or evident enmity towards others involved in the trial may mean that their criteria of judgment is not the impartial application of the law - circumstances which should be examined in each particular case-, it may be considered that the judge does not meet the conditions of subjective suitability and that therefore the right of the party to a fair trial prevents them from hearing the case.” -see the OCCs mentioned.                                                                                                                 28  SCC 230/1992, of 14th December; 51/2002 of 25th February; 231/2002 of 9th December or 140/2004 of 13th September.   29 Art. 218 of the Organic Law of Judicial Power. 30  OCC 380/2005 of 25th October; 178/2005, of 9th May and 25/2008, 23rd January, citing many others.  
  21   Judicial impartiality can also be influenced by pressure from the media during a trial. The SCC 69/2001, of 17th March, mentioning what was said in the previous SCC 136/1999 of 20th July and citing the doctrine of the Strasbourg Court, states that “protection against statements in the media about ongoing cases and parallel trials is based on the fact that they may not only influence the prestige of the courts, but, in particular, they can potentially prejudice the courts’ impartiality or appearance of impartiality, as the publication of alleged or real public conception about the trial and its sentence may influence the decision that the judges should make. When these circumstance effectively arise, the right to a trial with all the guarantees may be infringed, even without requiring proof that the influence has had a concrete impact on the decision of the case, because, due to the nature of the values involved, the existence of a well-founded likelihood that this influence has occurred is enough (JECHR, of 29th August, 1997, case of Worm,)...”. Therefore, it would be possible to request the recusal of the judge or court if there are ever grounds to question whether they may act in favour of either party, based on what was said or published in the media. Something that happens very often is that the appointed judge 31 , following the established duty programme and having notified his or her designation to the parties, as required by LOPJ article 203, is subsequently replaced by another during the course of the trial, and that this substitution, even when the litigants were not informed about it as required by law and the Constitutional Court32 , can be considered a mere procedural irregularity, without the possibility of cancelling the change of                                                                                                                 31  The judge who is responsible for presiding over the case, deciding what evidence is admitted and proposing and drafting judgments and taking other decisions.   32  SCC 180/1991 or 230/1992, among others.  
  22   judge, unless this failure of notification has prevented that judge's recusal because he or she is censured on any of the grounds regulated in the LOPJ article 219. 33 Again, the defendant's constitutional rights are violated when there is an unexpected change of trial judge, bearing in mind the defendant has the right to the original appointed to preside. Questioning whether this may undermine the impartiality of the court is considered by the judiciary to be a ‘purely speculative or generic allusion, a hypothetical and unfounded suspicion, if not also fanciful conjecture, and, naturally, a stalling tactic’. Logically all this is insufficient, according to the sentences we have referred to, to be considered that the plaintiff’s right to a fair trial with all guarantees, presided over by an impartial judge may have been violated. We understand that at these times it is essential to continue giving priority to the importance of appearances, as the Court of Strasbourg insists, and the guarantee that the judge’s impartiality represents for the administration of justice in a democratic society. For this reason, and to clear up any doubts caused by a change of judge, it is imperative to start by accepting that the parties may be suspicious of any substitution, and to avoid this it is only necessary to do what the law dictates, which is almost never done, viz.: Firstly, together with the announcement of the replacement of the judge, a list of the substitute judges must be provided to all parties, so that it can be seen that the replacement judge has been assigned because he or she were next on the list. Secondly, advise all parties of the specific reason or reasons why the original judge has been replaced, 'without using abstract or repetitive explanations'                                                                                                                 33  SCC 230/1992; 282/1993; 64/1997; 6/1998…  
  23   Both requirements are laid down in LOPJ article 203.2, and if they are not met, the citizen has every right to demand access to the information referred to above. It is obvious that if the request is not addressed, any doubts about the possible lack of impartiality of the judge who has unexpectedly appeared at the trial, must be considered legitimate. Finally, it must be made clear that the requeriments for the right to a fair trial is confined to the courts, without being extrapolated to members of an administrative body, who provide less reason for abstention and recusal34 . The SCC 14/1999 of 22nd February considers it natural that a public employee should always be subject to a hierarchy, and being a public official who is necessarily part of a hierarchical structure cannot be, cause for loss of constitutionally-required objectivity. Therefore, members of the Administration cannot be obliged on the basis of article 24.2 SC to act with the same fairness that we ask of members of the judiciary. They can only be expected to behave objectively, performing assiduously their administrative duties in the proceedings 35 , as the Constitution demands. Moreover, the guarantee that they will act with impartiality is the possibility of being taken to court over their performance to ensure it is legal.36 The SCC 22/1990 declares, “without detriment to the prohibition of all arbitrariness and the subsequent judicial review …………… the strict impartiality and independence of the judicial authority is not, in essence, predicable to the same extent as that of an administrative authority”. Moreover, as already advised, we must bear in mind that suspicions about the lack of impartiality of a judge have to be consistent and justified – JECHR of 7th August, 1996, Ferrantelli and Santangelo versus Italy.                                                                                                                 34 Art. 28.2 of Law 30/1992 of 26th November on the Legal Regime of Public Administrations and Administrative Procedures. 35 SCC 234/1991, 172/1996 and 73/1997. 36 Art. 106.1 of the Spanish Constitution.
  24   To demand the recusal of a judge during the trial there must be well- founded suspicions of partiality, which must be assessed in each individual case37 . 3) The grounds on which Spanish judges will accept being recused As already indicated, Spanish judges do not like to be removed from a case, and find all kinds of excuses to prevent it. The most important one is that you can only remove them for the reasons set out in Article 219 of the Organic Law of Judicial Power (hereafter OLJP) without accepting any other. As can be appreciated after reading these specific causes shown below, it is obvious that any judge who is affected by the causes referred to should not resolve the legal dispute, even if the law does not specifically prohibit him or her from doing so. Below are the causes: 1) Marital ties or a comparable situation, or the fact the judge is related by blood or affinity to the fourth degree with the parties or the representatives of the prosecution. 2) Marital ties or a comparable situation, or the fact the judge is related by blood or affinity to the second degree with the lawyer or procurator of any party involved in the case. 3) Being, or having been, legal counsel or member of the tutelary agencies of either party, or having been under the care or custody of any of these. 4) Being, or having been, charged or accused by any of the parties on the grounds of being responsible for a crime or misdemeanour, provided the charge or accusation led to the initiation of criminal proceedings which did not result in acquittal or dismissal.                                                                                                                 37  SCC 162/1999, of 27th September, FJ 5; 140/2004, of 13th September, FJ 4; 26/2007 of 12th February, FJ 4; 60/2008 of 26th May, FJ 3; and 47/2011 of 12th April, FJ 9.  
  25   5) Having been punished under disciplinary proceedings initiated as the result of a complaint by, or on the initiative of, either party. 6) Having been a defence counsel or representative of either of the parties, or having delivered a verdict on the case or cause as a lawyer, or having participated in the case as a prosecutor, expert or witness. 7) Being or having been, plaintiff or accuser of either party. 8) Having litigation pending with either party. 9) Close friendship or evident enmity with either party. 10) Having direct or indirect interest in the lawsuit or cause. 11) Having participated in the investigation of the criminal case or having intervened in the lawsuit or cause on a previous occasion. 12) Being, or having been, one of the subordinate parties of the judge responsible for presiding the trial. 13) Having held public office, employment or exercised professionally, participating either directly, or indirectly, in the matter that is the subject of the litigation or in any associated with it. 14) In cases involving the public administration, being acquainted with the authorised judge or magistrate or with the civil servant who initiated the legal action either directly or indirectly or carried out the action for which reason the trial is taking place, in any of the circumstances mentioned in causes 1 to 9, 12, 13 and 15 of this article. 15) Marital ties or a comparable situation, or the fact the judge is related by blood or affinity to the second degree with the judge or magistrate who had handed down the sentence or assessed an appeal, or taken part in any later stage of the process. 16) The judge or magistrate having held public or official office by which they may have had knowledge of the object of the case and could have formed an opinion at the expense of due impartiality.
  26   The Spanish Judiciary focuses on these grounds that the law provides for the recusal of any judge who may be implicated accordling. It does not admit any other possibility, suggesting that if the law does not specify any other options, they do not exist, or, what is worse, suggesting that when the legislators have listed these specific reasons for admitting recusal, they are saying that it is not admissible to recuse a judge for any other reason. Fortunately this simplistic argument can be easily destroyed: Firstly, because it is unlikely that the average citizen will know if the judge in a trial is affected by any of the grounds cited in this legal precept. Actually they should not need to know, as it would correspond to the Judge to inform the court about such circumstances, but obviously this does not happen, and if the judge is silent about the existence of any of these issues, it will not be possible to recuse him or her on the basis of same, whatever rights the citizen may have, or however biased the behaviour of the judge may have become during the course of a trial. As an example, we cite the SCC 45/2006 of 13th February. The judge in question had been significantly involved in the investigative phase of a criminal case, later participating in the appeal against the sentence heard by the criminal court. However, his name did not appear on the copy of the appeal sentence that was made available to the defendant. In the copy it appeared that the bench that ruled on the appeal had only consisted of two judges instead of three, and the third judge, whose identity was not revealed to the appellant, as the law demands, turned out to be the one who had initially questioned him when investigating the process and who now condemned him on appeal. If the appellant had known this, it would have allowed him to request the recusal of the judge on the grounds that he was prejudiced as a result of his previous involvement in the proceedings.
  27   In other words, the 11th cause of article 219 OLJP could have been cited, but the defendant was not informed of this and therefore could not challenge the judge to prevent him from participating in his appeal. The second compelling reason to repudiate the exclusive grounds for recusal so exhaustively stipulated by law is that there are many other reasons to recuse the court or judge for lacking impartiality. Moreover, as these are not included among the specific legal grounds and it is not officially possible to request a recusal for any other reason, there is no way to remove the judge from the case. The third argument that invalidates this inconsistent theory that a judge can only be recused if he or she can be implicated on any of the grounds expressly established by the law, is that the criteria of the appearance of impartiality imposed by the Court of Strasbourg could not be used in Spain. This would mean that however wrong we think the judge’s behaviour may have been during the trial proceedings, that judge may not be recused. Even the most palpable evidence that may be presented demonstrating the judge's lack of impartiality will not be admitted. A straightforward reading of these specific cases shows that a judge may be acting with complete lack of impartiality but it proves impossible to recuse him or her. The obligation of being restricted to the grounds set out in article 219 LOPJ, can lead to, for example, the following hypothetical situations: 1) There may have existed a marriage or relationship that causes 1 and 2 of the legal provisions allow for, dissolved by annulment, divorce, or termination for whatever other reason. Notwithstanding the effect that the break-up could have had on the judge, he or she can still participate in a trial in which his or her former partner is involved. The retribution that could possibly be exercised by the judge against his or her ex-partner would be no cause for recusal.
  28   2) If a judge has been denounced -4th cause - and criminal proceedings had not been instituted against him or her, or the case had been dismissed or he or she were acquitted of the alleged offence (quite normal in 99% of cases), the animosity that the judge logically feels for the complainant does not mean he or she cannot preside a trial in which the person who had denounced him or her were one of the parties. 3) If the judge has been accused of an alleged disciplinary offence -which can happen more often than we imagine during the course of a trial-38 , the resentment that such a complaint causes would not be an obstacle to the recused judge continuing to hear the case. Moreover, it would give rise to the paradox that during the trial the judge would be handling the disciplinary proceedings against themselves initiated by the complainant. However, as that judge was not subject to disciplinary sanctions, as required by the 5th cause of OLJP Article 219, this resentment would exist and it would not be possible to recuse him or her. We could continue analysing the inconsistencies of limiting the grounds for recusal in this way, without regard for the one and only overriding factor that is paramount when recusing a judge: lack of impartiality. This is the situation that unfortunately has been imposed, and Spanish judges do not accept grounds for recusal other than those listed in OLJP Article 219. This precept is generally accepted, as in this recent sentence of the Provincial Court of Madrid, Section Three39 ; “We have interpreted the doctrine of the Supreme Court as establishing that the analysis of the existence or otherwise of any of the grounds for abstention and recusal                                                                                                                 38 Abuse of authority or disregard for the parties, lawyer or procurator; use of unnecessary, irrelevant or offensive language in resolutions; revealing details of the process; abandoning or leaving the court, not meeting deadlines and schedules of trials, or not attending them; unwarranted delay in the proceedings, inexcusable ignorance in the performance of their duties, absolute lack of motivation in their resolutions. These are some of disciplinary offences included in OLJP art. 417, 418 and 419. 39 Sentence dated 10th June 2015, appeal number 922/2015.
  29   must be made with strict reference to the regulated grounds in the governing provisions, which do not allow an analogous interpretation (Sentences of Chamber 2 of the Supreme Court of 8th and 12th February and 14th June 1991, 14th May and 11th November 1992, 6th November 1993, 28th February, 9th May and 27th September, 1994, 17th June 2003, 29th March 2005, 15th and 26th April 2011 ...”). After this, the judges of this Court in Madrid have no qualms about giving their personal reasons as to why only the causes stipulated in article 219 OLJ are valid. “This is for obvious reasons of legal security and to serve the need for avoiding unfounded recusals or mere estimations concerning members of judicial bodies, as well as possibly abusive manoeuvres directed at having a specific judge removed from a case, and also to avoid purely dilatory or obstructionist actions by the parties.” Such arguments cannot be valid if the most elementary logic is applied. The fact that there are reasons other than those established in article 219 LOPJ does not mean that they may be spurious. However, the sentence of the Criminal Chamber of the Supreme Court, First Section40 , uses the same version of why the Spanish legal system sets out specific grounds for recusal and does not admit any other, exhaustively in this article 219 of the Organic Law of the Judiciary. It explains: “The assessment of the reasons why a judge should abstain from a hearing is not left to the discretion of the judge, nor has the authority to indicate the causes that allow recusal by questioning or denying the judge's impartiality been left to the discretion of the accuser, rather, to ensure legal certitude and to avoid hasty and unfounded abstentions and abusive recusals, we have exhaustively specified the situations that serve as an accepted evaluation for abstention and recusal.”                                                                                                                 40 Sentence dated 9th May, 2008, appeal number 10922/2007.
  30   To reinforce the limitation of grounds for recusal that does not appear among those specified in OLJP article 219 -without embracing the only thing that counts being a judge acts without a shadow of partiality- the Spanish Constitutional Court has basically led the way41 , making it clear that the suspicions about the lack of impartiality of a judge “must be based on causes that are assessed and interpreted restrictively, with no possibility of extensive or analogous claims.” This absurd ruling of the Constitutional Court, which aims to back up the judicial impartiality ensured in SC article 24.2, is still mistakenly reproduced -OCC 238/2014 of 9th October, reiterating the ruling, in the OCC 180/2013 of 17th September, FJ 2-: "Whatever the failure of impartiality that is alleged ... it must be redirected to one of the aforementioned legal grounds ... Outside of the ambit of such legal grounds, apprehensions or misgivings that the parties may express are legally irrelevant.” Moreover, all Spanish courts, taking advantage of the Constitutional Court’s oversight, have repeated this endlessly. Among their recent resolutions: Order of the Civil Chamber of the Supreme Court, First Section, dated 2/11/15. Appeal 921/2014: “The recusal must be based on factors restrictively assessed and interpreted, with no possibility of extensive or analogous applications (OCC 60/2008, 26th May).” Order of the Social Chamber of the Supreme Court, First Section, of 03/10/2015, dictated in appeal 13/2013, “the recusal must be based on restrictively assessed and interpreted grounds with no possibility of extensive or analogous applications [OCC 60/2008, 26th May]” Or the Order of the Civil Chamber of the Supreme Court, First Section, of 07/08/2015, dictated in the appeal 64/2015: “The recusal must be based                                                                                                                 41 Constitutional Court sentence number 60/2008, of 26th May, among others.
  31   on restrictively assessed and interpreted grounds with no possibility of extensive or analogous applications (OCC 60/2008, 26th May).” The trouble is that when a judge decides to abstain for other reasons - realising for example that his or her judgment cannot be objective-, it is the court that the judge presides which my not allow it. It is obvious that to agree to such unilateral abstentions would be admitting that there may be other motives of abstention and recusal not included in OLJP article 219. This in fact happened with the Order of the Constitutional Court Nº. 146/2009 of 11th May, which did not accept the abstention requested by a judge of that Court, pursuant to article 219.2 of the Organic Law of Judicial Power. The reason was that his son, a procurator of the court, had acted as authorised representative for the plaintiff under the previous legal process that would lead eventually to an appeal for clemency. The court did not consider this abstention justified because “the fact that he was involved in the trial prior to this constitutional process is not sufficient reason to propose, let alone admit, this request for abstention.” Then it reminds the court, to reinforce the rejection of the request for abstention by the member of the Court, of “the restrictive criteria, often underlined by the constitutional doctrine (for all, OCC 162/1999 of 27th September and OCCs 289/2007 of 19th June and 81/2008, of 12th March), which should guide the implementation of the grounds for abstention and recusal of judges of this court.” The same happened in the OCC 456/2006, of 14th December, where the abstention requested by the Constitutional Court was also rejected, claiming that it is one thing for his son to act as procurator in the previous trial and another for him to do it later before the Constitutional Court, something that did not in fact happen.
  32   It is clear that in all these matters relating to the decision to be taken by that judge in the appeal presented to the Constitutional Court, the important thing was the fact that the procurator son had been paid by the client who was now appealing to the judge father, and for the present and future interests of the judge’s offspring it would have been advantageous for the plaintiff to be successful, regardless of whether or not the son were appearing before the Constitutional Court to represent the client. However, agreeing to the abstention requested would have meant that on the many other occasions when it was not relatives of the Constitutional Court judges who appeared in appeals, but professional third parties, there would have to be identical abstentions. The concern is that if we seek to refute serious injustices that are only possible to challenge for the reasons defined by the law, all established sources consulted agree on the need to defend this unjustifiable position. One after another, Spanish jurists have maintained that it is only possible to recuse a judge on one of the grounds specified in article 219 of the Organic Law of Judicial Power, agreeing that these grounds constitute a closed list, making other reasons inadmissible. Although some studies cite sentences dating back many years42 , admitting other reasons for recusal not covered by the law in question, these do not indicate the grounds on which the impartial judge was made to stand down. So, definitively, in the following we present the method that will allow the removal of any judge acting without the standards of impartiality required by law.                                                                                                                 42 On the occasion of the creation in 2004 of the Jurei Foundation (Responsible and Independent Justice) and the subsequent development of the website Justicia-Pueblo (Justice for the People).
  33   4) End the reluctance to recuse The constraints that we have referred to in the matter of recusing a judge were not always thus. The Constitutional Court ruling 157/1993, 6th May, in line with what the European Court of Human Rights had been stating concerning judicial impartiality, guaranteed in Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR), ruled: “Such pronouncements can result in identifying cases of abstention and recusal so far not covered by our legislation, which could arguably lead to the demand for a modification of Spanish law to international standards....” The Supreme Court ruled identically, 43 accepting the approach taken by the Constitutional Court in OCC 157/1993 and also that of the Special Chamber of the Supreme Court in its rulin of 1/10/1997, recognising also that “it is possible to identify cases of abstention and recusal that are not clearly and expressly allowed for in the legislation mentioned.” Equally compelling was the Social Chamber of the High Court of Justice of Catalonia, stating in its ruling of 23/09/2004 that “The suspicion of partiality may be caused by any circumstances, not necessarily one of those included in OLJP article 219”. Indeed, other courts have followed this elementary logic, such as the Provincial Court of Cuenca, First Section, ergo the statement by the Supreme Court in its Sentence 20/2005, dated 2nd February, issued in civil appeal 225/2004, “It is possible to find cases where abstention must be obligatory and recusal legitimate in spite of the fact that they are not clearly and explicitly covered by the legislation (SSC 30th November, 2001 and 22nd November, 2001, among others)”. Or the Order of the Provincial Court of Las Palmas, Section 4, of 12th April, 2006, appeal                                                                                                                 43 Sentences of the Criminal Division, First Section, dated 22/11/2001, appeal number 1017/2000, ref. TOL 4,963,971, and 30/11/2001, TOL 129,113.
  34   257/2006, referring to the flexibility shown by the Strasbourg Court in this matter: “The right to having an impartial judge is not restricted to cases of abstention and recusal, and in this context the European Court of Human Rights has been very perceptive with regard to the problems of judicial impartiality in its dual facet of the subjective side, consisting of a judge’s dispassionate relationship with the case and, in particular, that there should be no inappropriate contact with the parties; and on the objective side, insisting that there should be no shadow of doubt cast on the court by any other circumstances.” But Spanish judges had already decided to reverse or reinforce their obstructionist approach. They did not want to admit further grounds for recusal other than those already established by law, when it is obvious that they should have been doing exactly the opposite44 . Even the Constitutional Tribunal was in favour of this doctrine, in spite of the fact it had no basis in truth. Its subsequent ruling of Sentencia 69/2001, of 17th of March, pointing out:“The character of numerus clausus of the legal grounds for recusal: These are only those laid down by law and must necessarily be included accordingly in any of those suppositions that the guidelines define as such”. This Sentence cites the previous OCC 157/1993, attributing this statement to it, although as we have seen this was not the case. From then on this idea became accepted; “The restrictive approach, often emphasised by the constitutional doctrine (passim, OCC 162/1999 of 27th September and OCCs 289/2007, of 19th June and 81/2008, 12th March), that should guide the application of grounds for abstention and recusal of the judges of this court.” -OCC 146/2009 of 11th May-, until the                                                                                                                 44 “In a democratic society, the right to good administration of justice occupies such an eminent place that a restrictive interpretation of Article 6.1 of the ECHR would not correspond to the aim and purpose of this provision”. –ECHR ruling of 17th January, 1970, Delcourt v Belgium-.
  35   publication of the recent OCC 238/2014 that we have quoted, causing other Spanish Judges to repeat the doctrine. The existence of these limited grounds generates a serious problem: whatever evidence there may be that a judge is not acting impartially, that judge will not admit his or her recusal if the reason is not among those specified in OLJP article 219. We are facing an intolerable injustice imposed by the Spanish judiciary, which seem intransigent in demanding that any recusal must exclusively meet those specific causes defined by law, without accepting other grounds. However, everyone is aware that the mere fact that a judge is not acting impartially justifies that judge’s immediate recusal. It is enough to remove the judge from the case if he or she appears to be angry or irritated, something that in Spain happens all too often, and however much we point out the judges’ mistakes, the more they persist in defending them, since they prefer to maintain their position stubbornly than admit they were wrong, 45 (without necessarily being the spouse, relative, friend or foe of any of the parties, or having been denounced by either of the litigants, or having a lawsuit pending with one or more of them, or having held a post of any sort that prejudices their neutrality, or being implicated on any of the grounds that the legislation specifies.) This clear impossibility of recusal in the vast majority of cases, even when there is an appearance of judicial bias, means that the litigant in such circumstances does not know what to do, and needs to search through the legally established causes to find one that adjusts to their proposed challenge. When they do not find one, they attempt to define the judge's apparent bias in court as one of the two grounds of OLJP article 219 that they hope will be adequate: the close friendship or evident enmity – the ninth reason; or having a direct or indirect interest in the                                                                                                                 45 Seneca. On Anger, Book I, XVIII
  36   trial –the tenth reason. However the judges are ready and waiting to reject the applicant's challenge, indicating, as far as the first alleged cause of friendship or enmity is concerned -OCC 180/2013 of 17th September, reiterating what was said in the OCC 226/1988 of 16th February in the SCC 162/1999, of 27th September -, that “The legal reason for recusal is not any friendship, but an implication of the character of intimacy between two people....and mere sentiments of acceptance or rejection resulting from the fact of belonging to political parties, associations, corporations or social groups, as well as in relation to the assumption of religious beliefs and ideologies of diverse nature, are, therefore, excluded as plausible indicators of friendship or enmity, so long as they have not been translated into individualised acts of friendship or enmity ... (OCC 358/1983, of 20th July, FJ2)”. Regarding the next cause which the recusing party chooses to rely upon in the absence of other reasons - direct or indirect interest - according to consistent jurisprudence this would have to be: “always of a personal and not a professional nature, so it is not permissible to make an accusation of misconduct because of the judge being involved in previous judicial activities” - OSC, Special Chamber of 25/2/2010, appeal Nº 6/2009, among many others. In other words, this interest cannot be derived from or be contingent upon the decisions taken by the judges and courts in the exercise of their functions. All this means that although we manifestly perceive that the judge in a trial is not acting in an impartial way, and finds against us as a result of a personal desire to favour the other party; or we see that instead of the lack of bias that should dictate his or her actions, the judge has already decided the final outcome of the trial and there will be no way to challenge that interest or friendship that benefits the other litigant.
  37   We will base the recusal precisely on article 24.2 of the Spanish Constitution -the First Act-, as well as on ECHR article 6.146 , which recognises as we have said the right to a fair trial and an impartial judge and the equal right to be able to recuse any judge not acting impartially. We would therefore have two options when it comes to making the recusal: 1 - If the judge can be challenged on any of the grounds included in OLJP article 219, we would invoke these to halt the case. This is the option that 47 generally accepted and there should be no impediment to this course of action. 2 - If the reason for the challenge is not included in the stated causes for allowing recusal, and the judge's lack of impartiality is patently clear, we could recuse the judge, as we have stated, under EC article 24.2. For some time now, the Spanish Constitutional Court has made it clear that the 1978 Constitution is directly applicable in courts of law 48 , categorically denying that their articles are a mere declaration of principles without any practical efficacy, as indicated by other judicial bodies49 . We would also base our case on the doctrine of the Strasbourg Court, in other words, evaluating the behaviour of the judge, and observing how he or she reacts while presiding over the trial. Therefore, we only have to worry about whether this suspicion is correct and whether our doubts about the fairness of the judge are reasonable. This will be enough to recuse the judge for their lack of ability, although, we insist, we do not cite any reason from among those indicated in OLJP                                                                                                                 46 In accordance with SC Articles 10.2 and 96.1, which impose their application in Spain. 47 Art. 106.1 of the Spanish Constitution. 48 SCC 16/1982 of 28th April 80/1982 of 20th December. 49 Sentences of the Court of Seville of 31st January 1980 and the Civil Chamber of the Supreme Court of 8th April 1982.  
  38   article 219, because they are neither applicable nor necessary. Moreover, we base our case to support this recusal on CE article 24.2 of the 'Magna Carta', since: From a subjective perspective it is evident that we do not have an impartial judge in our trial, if, as a result of a possible relationship with one or more of the parties “a prior interest may arise to favour them or harm them ...” -SCC 36/2008. Or from the objective side, if the judge, even though he or she may not favour either of the parties or externalise any personal conviction, has had a previous involvement in the legal proceedings that may prejudice judicial impartiality. In theory, the Spanish Constitutional Court, as it could hardly otherwise do, requires simply, “that the accused shall be guaranteed that there is no possibility of reasonable doubt about the existence of bias or prejudices in the judiciary, including those which, from an objective perspective, may occur”. 50 Moreover, the Constitutional Court accepts that we would simply be looking at a lack of subjective impartiality if there were any suspicions about a judge’s inappropriate relations with either party, and if there has been a previous involvement in the case by the judge, which would be considered a lack of objective impartiality51 . The absurdity of it all, as we have seen, is that the recuser must base the complaint on one of the grounds listed in OLJP article 219. In other words, the lawmakers insist: “Subjective impartiality that guarantees that the judge has not maintained improper associations with the parties, in which all matters arising from the judge’s relationships with the parties are included, and objective impartiality, i.e., referring to the object of the                                                                                                                 50  SCC 39/2004, of 22nd March; 41/2005 of 28th February; 143/2006 of 8th May.   51  SCCs 145/1988, 11/1989, 136/1992, 372/1993, 32/1994 and 162/1999…  
  39   proceedings, ensuring that the judge approaches the matter to be decided without having taken a prior position on it.” Nor does the Court then question whether the recusal will proceed, provided that “There are objectively justified doubts, i.e., externalised and supported by objective data, that make it possible to justify legitimately that the Judge is no stranger to the case, or permit the apprehension that, because of possible familiarity with the specific case, the judge is not going to use the standard of judgment demanded by law, but instead using other considerations outside the law.” But then the Court notes -Orders of the Constitutional Court 180/2013 and 238/2014, which we have quoted-, that whatever the breach of impartiality that is alleged, it must necessarily be redirected to one of the aforementioned legal reasons established in OLJP article 219. A real contradiction, because among “those doubts” about the lack of impartiality of the judge there will also appear those that are not included in the aforementioned legal precept, and it is illogical that these doubts cannot be used as allegations for the purpose of filing a recusal on grounds not listed. If the Spanish Constitutional Court persists in not correcting this intolerable error, we must look to Strasbourg for rectification, especially since the recent reform of the Spanish Criminal Procedure Act allows plaintiffs to request a review of a final judicial decision of a Spanish court, when the Court of Human Rights has declared that the resolution violates some of the rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, or any of its Protocols.52                                                                                                                 52 Law 41/2015, in force as of 7th December, 2015, amends article 954 of the Criminal Procedure Act, adding this new reason for revision in its third paragraph. See also current OLJP article 5a.
  40   To impose such an unreasonable position at all costs, that is to say limiting the only accepted grounds for recusal to those specified by this law, in practice means that this rule is not always respected by the courts. Thus, the Constitutional Court in its SCC 164/2008, of 15th December, declared that a judge had acted with a lack of impartiality, despite the fact that his conduct was not one of the grounds for recusal in OLJP article 219. The Public Prosecution alleged, aware that it was unusual , that the Constitutional Court has been pointing out the causes of bias reflected in OLJP article 219: “do not constitute a closed list”. Moreover, the Attorney General also maintained the same position, indicating that according to the doctrine of this Court, the stipulated grounds for alleging bias are not of a “restricted nature”. Neither of them cites any judgment by the Constitutional Court substantiating their surprising conclusions; they would know that there is only SCC 157/1993, later invalidated by the many sentences that caused it to be questioned. Moreover, so as not to assume that the right to judicial impartiality has been breached, against its conciliatory doctrine, the Constitutional Court seeks the justification that it is not that Court’s responsibility, but that of the judges of the ordinary courts, to decide whether the cause that motivates the recusal is or is not listed among those included in OLJP article 219. But having manifested this it does not after all respect the decisions of these judges, who decided to reject the recusal that had been filed53 , inasmuch as the alleged cause “is unfortunate, because the condition of the Judge of the Social Chamber who took part in the judgment of the Contentious-Administrative Chamber does not fall into the category of a judge having participated in the instruction of the criminal case or having pronounced on the case or cause previously”. OLJP article 219.11, which the Constitutional Court would then ignore                                                                                                                 53 Order of 22nd March 2005
  41   in order to grant protection by accepting a lack of impartiality of the judge on grounds that were not on the 'official' list. It is obvious therefore that both the Constitutional Court, altering the decision of the judges of ordinary courts, and the Prosecutor and the Attorney General, when they all accept that the reasons listed for recusal in OLJP article 219 are not the only ones that can be cited to remove a biased judge from a case, show that we are right. It is also be very clear to us that the only relevant matter when recusing a judge is whether or not he or she is acting fairly. As noted by the Court in Strasbourg, to which we shall refer when we make the recusal, the Spanish Constitutional Court refuses to change its doctrine once again. 5) Procedures to be followed to initiate the recusal of a judge. As stated in the 17th final provision of the Code of Civil Procedure, the formula for the recusal of judges and magistrates is set out in Article 223 and subsequent articles in the Organic Law of Judicial Power. OLJP article 223.1 states that the recusal must be filed as soon as we know the cause on which it is to be based, and it will not be admitted in the event there is any delay. Specifically, it fixes a deadline of ten days after becoming aware of the identity of the judge to be recused, from the date of the notification of the first court decision. However, it is likely that we do not know if the judge in question should be challenged on the basis of one of the reasons listed in OLJP article 219, or for his or her lack of impartiality according to the way they behave towards us at the trial. In these cases, it would not be possible to initiate the recusal until we have sufficient reasonable grounds for doubting his or her impartiality.
  42   There are many occasions where recusals are being rejected on the grounds that they were filed too late. This is what the Spanish Constitutional Court stated in its Order 238/2014, of 9th October, quoting OCC 180/2013 of 17th September, it rejected the recusal, on the basis that: “as stated in the first paragraph of OLJP article 223.1, the recusal must be presented as soon as knowledge of the cause on which it is based comes to light, or otherwise it will not be admissible”. The Court justifies this rejection of the allegedly too-late recusal as “preventing the possible recusal of a judge from becoming any kind of threat or pressure on a judge, to avoid making it a weapon that a party might use for his or her own expediency, sine die, protected by the inability to determine - or difficulty of proving - the moment of realisation [of the lack of impartiality of the judge].” In SCCs 140/2004, of 13th September; 28/2007, of 12th February, and 60/2008, of 5th December, the Court did not accept a complaint against being deprived of the right to an impartial judge if the person concerned had previously had the opportunity to recuse the judge or court, but had not done so at the required moment. However, even accepting that there may have been a delay in making the recusal, and that this delay caused its rejection, raises a doubt about the presiding judge's impartiality. Just thinking about it sends signals of the wrong sort to everyone who believes in the basic right that every trial should be heard by an impartial judge. Moreover, the judge described by ECHR article 6.1 is not simply a person who reached the position by virtue of his or her professional qualifications; he or she must also be independent and impartial54 , or rather, judges must inspire confidence in all of us concerning their independence and impartiality. 55                                                                                                                 54 ECHR ruling of 28/671981, Le Compte and Others v Belgium. Order of 29.04.1988, Belilos against Switzerland 55 ECHR ruling of 25.02.1997, Findlay v United Kingdom. Or the oldest of 01.10.1982, Piersack against Belgium.
  43   If a recusal is rejected because it was not filed in time, and the inadequacy of the judge has not been dealt with, his or her removal could still be demanded for the same reason. We would make an application repeating why we think the judge should be removed from the trial. If on grounds included in OLJP article 219, we would indicate accordingly, but otherwise we would base the recusal on what is stated in EC article 24.2 and ECHR article 6.1, which guarantees the right to an impartial judge. If our application for the judge to be removed is not acknowledged, then it is clear that we have denounced a case of lack of impartiality before the courts of this country and there has been no attempt to address the situation. It is obvious that the fact that the recusal was not made within the very limited window of time provided does not mean that no lack of impartiality has been established, or that the judge or court should not be admonished 56 . The law has two specific ways of removing a judge from a trial, these being recusal and abstention, and although there exists the possibility that no objection has been filed within the statuary period of ten days, we insist that it is clear that here is a judge acting with a lack of impartiality. We could complain to the Constitutional Court that our application revealed the absence of an essential guarantee for the normal conduct of the trial, and that although the judge should have abstained from presiding over the trial of his or her accord, he or she did not do so. As a result, the Court should acknowledge that the right to a trial with all guarantees has not been fulfilled, given the non-availability of a judge.                                                                                                                 56 So it is imposed by OLJP art. 217, and not doing it, as already noted, means committing the very serious disciplinary offence typified in the art. 417.8 of identical Legal Text.
  44   It is important to note that the Strasbourg Court has not considered it necessary to establish the need to recuse judges suspected of bias, because everyone who would have been involved in the judicial process at other stages should have been able to correct the violation57 , specifically: 1) In the ruling of the ECHR of October 28th , 1998, against the Spanish Government's defence that the plaintiff had been informed of the identity of the judges who were to try him, but did not take steps to recuse them. The Strasbourg Court ruled: “even though neither the plaintiff nor his lawyer filed a recusal ... the Courts of the State being accused did not lack opportunities to correct the alleged breach of Article 6.1 of the Convention”. And the plaintiff, although he had not filed a recusal, said in his appeal to the Supreme Court that the court judging him could not be considered impartial because two of its judges had previously heard his appeal against the indictment. He also lodged a complaint against the Spanish Constitutional Court for breaching his right to a fair trial. 2) In the ECHR ruling of 17th June, 2003, the Spanish courts rejected a recusal because it was filed nearly two years after the start of the trial, even though, as was indicated, the plaintiff was previously aware of the reason for the alleged lack of impartiality. And the International Court of Human Rights ruled: “In Spanish law there is a provision, Article 221 of the Organic Law of Judicial Power, which requires the judge in question, on any of the grounds for abstention and recusal established by law, to refrain from hearing the matter without waiting to be recused.” Again this made it clear that it was not necessary to file the recusal, it being                                                                                                                 57 ECHR rulings of 28th October, 1998, Case of Castillo Algar v Spain; 25th July, 2002, Perote Pellon v Spain; 17th June, 2003, Pescador Valero v Spain and 22nd July, 2008, Gomez de Liano v Spain.  
  45   sufficient that the judges involved in the dispute were aware of the accusation of bias. 3) And in the ECHR ruling of 22nd July, 2008, which also rejected the recusal for its late filing, answered the argument of the Spanish Government that the rules on recusal impose a time-limit, and that this must be when the accuser becomes aware of the prejudiced situation: “The applicant applied twice to the Court to prevent it from hearing the trial ... (and) members of the Court, aware of the plaintiff’s fears, saw no reason to abstain.” After citing its ECHR ruling of 24th May, 1989, Hauschild v Denmark, and Pescador Valero v Spain, the European Court of Human Rights reiterated: “In Spanish law there is a provision, Art. 221 of the Organic Law of Judicial Power, that obliges the judge concerned, on one of the grounds for abstention or recusal prescribed by law, to abstain from hearing the case without waiting to be recused ...”. The Strasbourg Court commented that after having had his recusal rejected because it was filed late, the plaintiff complained of lack of impartiality in the hearing before the Supreme Court, and also before the Spanish Constitutional Court, so as not to be accused of lack of determination. In Article 223 of the Organic Law of Judicial Power, second paragraph, it indicates that the recusal should be made in writing, laying out clearly the cause or causes on which it is based. As indicated by the SCC 126/08, 13th May, “The constitutional doctrine is established, which stems from SCC 109/1981 of 30th October, and reiterated in the SCCs 115/2002, of 10th July, 195/2003, of 12th June, and 267/2003 of 15th July, or, most recently, OCCs 80/2005, of 17th February, 18/2006, of 24th January, 177/2007, of 7th March and 81/2008 of 12th March, established that for the request for recusal to be admitted it is an essential requirement that the application expressly, specifically, and clearly states the reason for
  46   the recusal, stating the grounds on which it is based and accompanied by prima facie evidence to that effect.” We therefore have to ensure there is a good basis for the recusal, without being limited to a mere reference to the legal grounds that may permit the judge to be removed from the case – always supposing the judge is implicated. We cannot simply claim that the persons challenged are not impartial and have breached CE article 24.2, in the event that we rely on this precept, but on all occasions we must present facts and sound arguments that prove the lack of impartiality we allege. We must do this to avoid being accused of filing a recusal in order to delay the trial or in order to get rid of the judge without valid reasons, because in such a case we can be fined between 180 and 6,000 euros if it can be shown we have acted in bad faith. The application must be prepared meticulously because we are the ones with most to gain by removing a judge whose actions have been damaging to us, in circumstances that became clear before or after that judge was assigned to the case. The recent SCC 180 / 2013 of 17th September, pronounced in the same way on a recusal being invalid for not complying with the inexcusable requirement of indicating precisely the cause that it is based on, laid out in the SCC 126/2008. This same OLJP article 223 also requires that the recusal to be filed be signed by the lawyer, by the Procurator58 , who must also have a special power to recuse59 , and also by the plaintiff in whose name the recusal is filed. If it is a trial that does not require the participation of both professionals, the plaintiff should simply ratify the recusal by presenting it to the clerk of the court. If it has not been possible to make the recusal while the process is ongoing because there was no prior knowledge of the cause or for any                                                                                                                 58  A professional in Spain who acts in judicial proceedings representing the litigant.   59  This power may be acquired by appearing before any court clerk in Spain.  
  47   other reason it was not possible to attribute any cause to the recused party, the plaintiff must make the recusal in his or her appeal against the sentence - SCC 140/2004 of 13th September. If it is not admitted in the appeal, it can be presented in the motion for dismissal of proceedings stipulated by article 241 of the Organic Law of the Judiciary, as such appeals have also been admitted by the Constitutional Court60 . But, we repeat, this option exists only if it has not been possible to make the challenge earlier, since it will not be accepted at the appeal if the party is negligent and does not present the recusal in time. This is justified by the ruling that “If this were possible it would infringe the rights of the other parties who, having obtained a favourable resolution, may have it denied them as a result of an issue that could have been remedied during the trial, but in fact was not admitted until after sentencing. (SCC 60/2008 of 26th May, FJ 3) ...”. It is also untrue, as stated in SCC 55/2007, of 12th March, citing SCC 140/2004, of 13th September, that the party challenging the lack of neutrality of a judge can choose between recusal and annulment of the sentence by that allegedly biased judge. This latter possibility will only be applicable when the recusal is not allowed. The litigant must always file a recusal, since some courts have indicated that judicial impartiality is an acknowledged right for the parties although not for the solicitors or procurators who represent them61 . However, although they are not the ones guaranteed the right to an impartial judge, there is no doubt that the improper behaviour of a judge towards the lawyer or procurator acting on behalf of the defendant could breach this                                                                                                                 60 SCC 159/2004 of 4th October; 240/2005 of 10th October and 306/2005 of 12th December. 61 SSC, Fourth Chamber, First Section dated 17/02/2004. Appeal 3550/2003.
  48   right, as we have pointed out, and would be explained in the application for recusal. Once the recusal has been formulated, it must be transmitted to the other parties in the trial within three days, so that those parties can state whether or not they agree with it. Once this deadline expires, the recused judge must indicate the following day whether or not he or she accepts the objection. This should be the judge’s only involvement in the recusal brought against them, but unfortunately recused judges often do not admit objections filed against them and reject them it as soon as it is presented, violating SC Article 24.2. If the rejection was for reasons other than its late submission, and if our reason for removing the judge from the case is well-founded, we should launch an appeal against the decision, asking him or her to accept it for processing and allow it to be dealt with by the corresponding judge62 . We would quote in such an appeal SCC 47/1982, of 12th July, which recognises “the need for the application made to be carried out through the due process of law”, and we would also demand that this “should not be processed by the same judge or judges who are the subject of the recusal, but by the ones that the law dictates resolve the question”. If the judge persists in an arbitrary refusal to admit a well-founded recusal against him or her, the next step would be to lodge a complaint against the judge for depriving us of the ability to exercise the fundamental right to recusal - article 542 of the Penal Code - and even a complaint to the General Council of the Judiciary for the extremely serious disciplinary offense of breach of duty to abstain. It would also be possible to bring a civil lawsuit claiming that the judge has violated his or her duty of allegiance to the Constitution, which constitutes another very                                                                                                                 62 OLJP art. 224 indicates who must instruct the recusal, depending on the judge or court that has been recused.
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Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English
Compendium-of-Rights-Vol-I-English

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Compendium-of-Rights-Vol-I-English

  • 2.   2   COMPENDIUM OF RIGHTS (For citizens to confront the abuses of Spanish Judges) Volume 1 R Recusal (of a judge lacking in impartiality) Luis Bertelli Member of the Law Society of Madrid English edit by J.A. Linn
  • 3.   3   Contents Introduction------------------------------------------------------------------Page 3 Part 1 1) The right to recuse a judge. Initial explanation ---------------------Page 8 2) Basis of a judicial recusal --------------------------------------------Page 15 3) The grounds on which Spanish judges will accept being recused. P 25 4) End the reluctance to recuse -----------------------------------------Page 34 5) Procedures to be followed to initiate the recusal of a judge------Page 43 6) Complaint before the Constitutional Court on the right to an impartial judge.------------------------------------------------------------------------Page 52 7) Application to the Court of Strasbourg on account of a violation by the Spanish State of the right to an impartial judge-----------------------Page 59 Forms-----------------------------------------------------------------------Page 64 Part Two What Spanish judges are capable of doing----------------------------Page 96 The Bertelli Strategy --------------------------------------------------Page 140 It can be stated categorically that in human history there has never been any right that has been achieved without sacrifice and suffering.Luigi Ferrajoli. "Derecho y razón". (“Law and Reason”)
  • 4.   4   Introduction The world is changing rapidly. There are still many good people in it, but they are often the victims. The problem is the lack of justice, which allows unscrupulous people to get the upper hand. In Spain, it is easier than in most other countries to experience an absence of justice, making it one of the most corrupt nations in the world, and therefore one of the least respected internationally. This privation of justice is acknowledged by: 1) Those who have been condemned (in the prisons where the author regularly delivers lectures on law, inmates from Third World countries can be heard saying Spain has the worst judicial system on the planet). But this is not because they are resentful of their sentences, as the judicial authorities claim to be the case in order to undermine their credibility, as they nearly always admit their guilt freely. 2) The judges, who went as far as to request at the opening ceremony of the Judicial Year of 2012, "the efforts of everyone to restore confidence in the judicial system"1 . But these same judges know that it is their own actions that are the cause of the very mistrust they were referring to. 3) The politicians of course, who are currently engaged in defending themselves in the many ongoing cases of corruption involving them directly, 2 mostly consider themselves lucky for not having reformed Spain's judicial system when they should have. 4) The Council of Spanish Lawyers, after its current President cynically said not long ago that, “we must do away with the vulnerability, mistrust and lack of protection of citizens.” 3                                                                                                                 1 Journal of the General Council of the Spanish Bar No . 75, September 2012 2 Thousands of Spanish politicians of the central, regional and municipal governments have been accused of corruption. 3 Journal of the General Council of the Spanish Bar Nº. 92, 2015.
  • 5.   5   However, nobody does anything to improve the system, and litigants are paying the price for having to suffer those judges who behave like Voltaire’s4 description, with their contentious statements that we view with mounting suspicion. This was pointed out by the nineteenth century Spanish Justice Minister Alonso Martinez 5 . What is more worrying is that the university professors who are responsible for training lawyers are aware of the shortcomings of the system, but continue to say in private what they never tell their students in lectures: “No sensible man believes in what is referred to as justice ... it is no more than just hollow talk, a narcotic for the stupid” 6 . Faced with such hypocrisy, these budding lawyers are the first to be surprised when they realise, on starting their working lives, that what they believed in - and what had made them decide to become lawyers, -ergo, that justice was created for the welfare of the citizens - is a big lie. The inequalities go on as before, to the benefit of some people and to the detriment of others. These lawyers are trapped by the need to make money, but since they get no support from their professional associations, they have to tell their clients that they must grovel before the judges to win a case. This policy does not even work because all parties do the same. They do not realise that, like Emperor Julian, these magistrates admit in private they would be pleased if people actually dared to criticise them. This Compendium of Rights is aimed at all those who have little faith in the Spanish judicial system, and fear that if they ever come face to face with a judge they perhaps cannot rely on getting a fair hearing. It is also intended for those who have lost a court case, or fear losing one from the outset, because of the imperfections of the Spanish judicial system.                                                                                                                 4  Judges  are  oxen  with  the  authorities  and  tigers  with  the  citizens.   5 Preamble of the Criminal Procedure Act of 1882 6 J. Emilio Luque, La Justicia es un equívoco (Justice is a misunderstanding), p. 50.
  • 6.   6   Here we will show the intolerable mistakes of Spanish judges and they way they frequently act according to their whims instead of according to the law; we will indicate how to defend ourselves against these wrongs. As in the author's previous publications7 , it is anticipated to make for enjoyable reading while at the same time providing valuable information. As an additional benefit, documentation that can be used to claim basic legal rights in the international courts, if we do not get justice in Spain, is included. The integrity of the judges of the Court of Human Rights in Strasbourg and the Human Rights Committee of the UN8 , is not in question, unlike the integrity of the Spanish staff that processes the complaints, and who have the power to reject them before the judges get to see them.  The aim should therefore be to remove that barrier so that it is possible to obtain the justice in Strasbourg that is denied to us in Spain.9 In the following text there is no alphabetical order, rather a sequence adjusted to the priorities of readers, giving them what they need most. Nowhere else can this information be found, and without it anyone is ill- equipped to defend themselves in Spain. We shall also describe the illegitimate persecution the author suffered for denouncing the prejudices and bias of Spanish judges, considering that these two decades-long saga is important enough to be revealed for the first time.                                                                                                                 7 Spanish law journals -“Spanisches Jura Magazine”, “Spanish Law Journal”, “Clan Judicial”, “Colección sobre Derechos Fundamentales” and “Jueces a Juicio”. 8 There are numerous occasions when its members voted against the decisions of the State that put them in office. Among others, ECHR cases 07.16.1971, Ringeisen v Austria, 08/06/1976, Engels and others v Netherlands, 26/06/1978, König v Germany, 13/06/1979, Marckx v Belgium, 05/13/1980, Arctic v Italy, 22/10/1981, Dudgeon v UK, 13/07/1983, Zimmerman v Switzerland, 10/07/1984, Guincho v Portugal and 26/10/1984, Mc Goff v Sweden. 9 Luis Bertelli asked the Spanish Parliament on 9th January 2013 to audit the performance of the Strasbourg court, without result. Apparently we have to keep insisting.
  • 7.   7   If the author was able to defeat his tormentors, as indeed he succeeded in doing, any other person who loses in court when they have right on their side may do so too. It is important to be clear that if someone confronts a judge who aims to unfairly deprive him or her of their dignity, property, honour and even freedom - or who has done so already - they are defending themselves as they should, and it feels right. The first surprise for the judge will be when he or she realises that his or her inexcusable behaviour is being challenged. The second when the judge finds that such a confrontation can cause him or her problems because the law is being broken, a nd the offending judge does not want this to come out publicly. Therefore no-one should accept such a situation, although it is the conciliatory reaction most lawyers recommend. Defendants should fight tirelessly for their rights, which is what is proposed here and is what you will be shown how to do. Judges are only judges when integrity dictates their behaviour. In 2013, one of them10 wrote that there will be no real reform of the judicial system as long as we disregard the human values of a judge: honour, humility, considerate treatment of others, a belief in the truth, impartiality, and so on. If the judiciary is faithful to its duties, the nation will prosper, but when they spend their time, "…examining little vices through tattered clothes, hiding great vices with robes and furred gowns……."11 , the nation will crumble. Therefore the only way forward is the struggle that we recommend here, until we find judges worthy of saving Spain's judicial system, perhaps also helping to improve all of Europe's.                                                                                                                 10 Juan Carlos da Silva Ochoa. Aranzadi Law Journal nº 9, 2013. 11 Shakespeare, “King Lear”.
  • 8.   8   Little wonder that the European Commissioner, Anna Cecilia Malmström, warned several years ago that, “three quarters of Europeans still consider corruption a great problem”. This institutional corruption will not disappear so long as judges permit it to go unpunished in exchange for the impunity granted them if they choose to destroy ordinary citizens. If on top of this the citizens do not exercise their full rights to defend themselves, they are irretrievably lost. First part 1) The right to recuse a judge. Initial explanation. Let it be made clear from the start that in the following we will show that any judge may be made to stand down if he or she acts in a way that can be shown as to be lacking in impartiality. We will explain what has to be done and will provide documents for the accuser's guidance. Moreover, we confirm that a judge suspected of bias can easily be moved off a case, contrary to widespread opinion that holds that such a possibility is very limited. The blame for this confusion lies with the erroneous pronouncements of the Spanish Constitutional Court, which is used by judges to block most of the challenges made against them. The Spanish Constitution of 1978 (hereafter SC) ended a long period in which most basic rights were not respected, and this supreme law, citing justice as its foremost value in the preamble, incorporates the fundamental rights that judges must necessarily guarantee citizens12 . This allows us to say that if the Constitution recognises these rights, we must retrieve them by challenging the decisions of any judge who does not take them into account.                                                                                                                 12 Article 9.1 states that “public authorities are bound by the Constitution”.
  • 9.   9   However, something so simple to understand is not happening in practice because the vast majority of lawyers, in order not to antagonise a judge, do not dare to claim these rights for their clients, much less insist the judge corrects the situation when the judge's actions violate the client's rights. Not denouncing violations of our fundamental rights as soon as this occurs in the judicial process means we run the disastrous risk of not being able to appeal to the Constitutional Court later, or, even more importantly, to the Strasbourg Court of Human Rights or the UN Human Rights Committee in Geneva. These basic rights are many and varied - in this compilation we will analyse them all - and the most important is the one that ensures any judge or court settling a legal dispute must be impartial. Therefore, when we prepare for, or are even already involved in, a court procedure, we must be clear that we will begin by accepting what is called a process of collaboration. This means that we respect the established order: adversarial parties with an impartial judge presiding. However, if this equilibrium is upset and the person who should remain independent of the interests at stake - the judge - transgresses any of the established grounds justifying recusal as established by law13 , but continues to hear the case, or he or she takes the side of the opposing party, thus giving strong motives for suspicion of partiality, we must without hesitation in these situations move to a confrontation in which we question the acceptability of the judge. By recusing the judge because of lack of neutrality if it becomes obvious that he or she has decided to favour the other side, not only can we improve our personal legal situation, but also, indirectly, the                                                                                                                 13 Article 219 of the Organic Law of the Judicial Branch, which includes the grounds on which a judge may be recused, which will be included later.
  • 10.   10   Spanish judicial system as a whole. One day it may become the system we deserve to have, and which we need to achieve together. 14 Therefore, by filing the recusal of a judge, we are not doing anything abnormal or intended to offend anyone; we simply do not want our possibilities of defence to be disadvantaged, which they almost certainly will be if we do not act immediately. Or, to put it another way, we must not accept the arbitrariness of the judge that could result in our legal situation being prejudiced. It is obvious that if our reasonable expectations are not addressed in the legal process, or if the exercise of the right of defence is systematically encumbered, or if the relevant evidence we submit is not admitted, or if we do not receive the same treatment from the judge as that received by the other party, or if the judge hands down arbitrary or unreasonable resolutions that are not in our favour, our right to a fair defence is severely impaired, a situation prohibited by article 24.1 of the SC. Moreover, if this violation of the Constitution come about as a result of the judge's or the court's bias, article 24.2 of the First Law, which guarantees the right to judicial fairness, will have been violated, and we must correct this immediately by recusing that judge or the court in order to have the wrongs amended. Explained like this, it is obvious that we should be ready to have removed from a case any judge we consider lacking in impartiality. In fact there are many people who would like to have the opportunity to recuse a judge or a court in Spain. The problem arises because judges will not tolerate being taken off a trial, frequently eluding this threat by accusing the litigant of irresponsibility.                                                                                                                 14 Socrates at his trial: "Athenians So, far from defending myself, I am actually defending you." Apologia of Socrates, by Plato.
  • 11.   11   Nevertheless challenging a judge for the purpose of exercising the litigant's constitutional right to an impartial judge can hardly be referred to as irresponsible, whether on reasonable grounds or not. It is as if there exists a sacred rule, which obliges us to tolerate not having our claims treated fairly in law, as would be the case if impulsive and unreasonable decisions taken by the judge were allowed to pass unchallenged. Despite this, if we see from the beginning of the process that the judge’s behaviour may result in our losing the case, instead of thinking, as most plaintiffs do, 'We must resign ourselves; the least important thing is that we have right on our side.' Nobody appears to want to accept that if we decide to take challenge a judge, it is because he or she shows a clear interest in siding with the other party to our detriment. Throughout this Compendium of Rights we will demonstrate that in Spain there is no justice. Everyone is aware of it but nobody says it out loud, so we have to fight hard. This broken judicial system makes it extremely difficult to recuse a judge, because it is obvious that any judge suspected of partiality must be removed from the proceedings. Unsurprisingly, however, the judge that we have doubts about wants to continue in the judicial process at all costs, so that when the time comes that judge will hand down a sentence favourable to the other party. If the judge did not have any desire to favour the other party, he or she would not object to being removed from the proceedings; indeed it would not matter to them. It would be like those citizens who make up a jury and are in no way bothered if they are removed from it. They leave calmly and that’s it. Let us also remember that, where the circumstances demand it and prior to proposing his or her removal, the judge should decide unilaterally to abstain from hearing the case.
  • 12.   12   If there was anything that could give rise to doubts about impartiality, and if this bias is discovered later as the result of a recusal, that judge's guilt is increased. Moreover, by not abstaining when knowing that there are reasons for doing so, a very serious disciplinary offence has been committed15 , which could result in the judge losing his post. Consequently, judges steadily resist being challenged, refusing to admit the recusal when it is presented, or giving absurd explanations for not allowing it, such as that the judge is responsible under the rules of allocation of cases, the composition of the courts, or as the appointed chairman of a tribunal, should not be obliged to stand down. Judges also argue that on account of the recusal the length of the trial may be extended to the detriment of the other party. They refuse to recognise the most important thing: that only with an impartial judge can there be the assurance that justice will be done, and as the interested party that we are, we should try to remove a judge at all costs if he or she is clearly siding with the other party. However much our lawyers may tell us that we should not challenge the judge because it will make things worse for us, when we decide to confront that judge it is because we can see the trial is going against us because of the prejudiced attitude of the judge. We may be told that our protests about the judge’s unfair behaviour may be considered libellous, which is not true. In exercising our constitutional right to freedom of expression16 we can express our opinion about the conduct of the judge, without what we say necessarily having to be true. 17 Such a denunciation has a higher tolerance because the alleged offender is a public servant and is subject to more rigorous monitoring of                                                                                                                 15 Article 417. 8 of the Organic Law of Judicial Power. 16 Guaranteed in Art. 20.1 of the Spanish Constitution and which we will talk about in this Compendium, distinguishing it from the right to information. 17  Constitutional Court rulings 9/2007 of 15th January, 50/2010 of 4th October and 41/2011 of 11th April).  
  • 13.   13   his or her activities. Therefore, even if our criticism is wrong, insulting, or serves to annoy or displease a judge, there is no intent to offend, and if our actions were obstructed, "there would be no democratic society." 18 The sentence of the Spanish Constitutional Court -hereinafter SCC- number 216/2013, dated 19th December, has even admitted that the use of the term ‘dishonesty’ should not be considered excessive in view of what we want to convey, as it refers to a matter of public interest concerning the performance of a public official. As a result, if the partiality of the judge is making it clear that the outcome of the process will not be beneficial for us, we must recuse him or her without worrying at all about the terminologies that we will have to use. We must take care obviously that any phrases are not humiliating, offensive or outrageous, and also avoid all clearly unnecessary pejoratives and insulting descriptions to explain our reasonable doubts about any lack of impartiality. We would base the right to remove a judge from hearing our case on what the Order of the Spanish Constitutional Court notes -hereinafter OCC-number 238/2014, of 9th October, reiterating what was said in the previous OCC 180/2013 of 17th September: “The impartiality of every court is one of the basic guarantees of due process (Article 24.2 CE.), and even constitutes the first of them (OCC 60/1995, dated 16th March, FJ 3, 162/1999 of 27th September, FJ 5 and OCC 51/2011, of 5th May, FJ 2)”. This right must be exercised whenever we have doubts, objectively justified, that make us fear that the judge may be prejudiced and has been using his or her own personal considerations as a criterion rather than what the law dictates. As in the English adage: “Justice must not only be                                                                                                                 18 Constitutional Court rulings 9/2007 of 15th January or 110/2000, of 5th May, citing SCC 107/1988, of 8th June.
  • 14.   14   done; it must be seen to be done”, or to the rule of appearances because, as we have indicated, when demanding our right to a fair trial, “it is not only a question of confidence which the courts must inspire in citizens, but also of public interest, in order to have a rational, correctly functioning, legal system” – Ruling of the European Court of Human Rights, (hereafter ECHR) ruling- in 24.02.1993, Fey v Austria. This position is also supported in theory by the Spanish Constitutional Court, although in practice it does nothing to enforce the judicial impartiality we are entitled to; “We recognise that in this area (having an impartial judge) appearances are important because what is at stake is the confidence that the courts should inspire in the accused and in other citizens in a democratic society” -SCC 69/2001, of 17th March, among many others. 2) Basis of a judicial recusal. Recusal, or challenge, is the means by which we aim to remove a judge from a trial because we believe that he or she lacks impartiality. SCC 231/2001, of 9th December and SCC 229/2003, of 18th December, considers it the ideal procedural remedy “to guarantee the right to a fair trial, removing from hearing the trial those judges whose attitude arouses suspicion.” The basis of the recusal is therefore the need to eliminate such fears or suspicions arising from the personal interest of the judge who handles the trial in favour of or against either party, which allows that judge's mediation to be considered problematic. Its presentation is justified by objectively reasonable doubts that the judge will not apply the law but instead will act according to his or her own criteria. This is recognised by the Spanish Constitutional Court, applying the doctrine of the Court in Strasbourg.19                                                                                                                 19 OCC 180/2013, which in turn reflects the STC 162/1999, of 27th September; 69/2001 of 17th March; 5/2004 of 16th January and OCC 26/2007 of 5th February.
  • 15.   15   This obligation not to be 'both judge and jury' or 'one's own judge' can be summarised in the SCC 162/1999 of 27th September, in two rulings, According to the first, the judge cannot exercise in the trial any functions that can be considered lacking in objectivity; in the second, the judge may not act in a way that would give the impression he or she may have pre-formed opinions concerning any of the participants” 20 . The European Constitution expressly states the right to be heard by an impartial judge, noting in Article 10721 , “Everyone has the right to have his case heard ... by an independent and impartial judge.” The European Convention of Human Rights and Fundamental Freedoms also includes this with the same wording in its Article 6.1, and the same text appears in the International Covenant on Civil and Political Rights - article 14.1. In Spain, however, judicial impartiality is not mentioned in the Constitution. Those who drafted it did not see the need for impartial judges; maybe because politicians are not so interested in having impartial judges, or because tradition dictated that Spain has never had judges who respected the law22 . The lack of explicit recognition of this right led the Constitutional Court to integrate it into article 24.2 SC. This provision recognises the right to a trial with full guarantees and these include the right to an impartial judge. The SCC 133/2014 of 22nd July or the SCC 164/2008, of 15th December states that “the Court holds that the grounds for abstention and recusal, inasfar as they are intended to safeguard the impartiality of the judge, contain this fundamental right enshrined in article 24.2 SC (including the                                                                                                                 20 It also cites in support the ECHR rulings dated 20th May, 1989, Langborger against Sweden; of 25th November, 1993, Holm versus Sweden, and 20th May, 1998, Gautrin and others against France.   21 Included in Part II, Title VI, dedicated to "JUSTICE". 22 The Roman Emperor Justinian, the Visigoth King Euric or in the Middle Ages King Alfonso X the Wise, to name just a few examples, were forced to ask the judges to apply the law and not to judge cases at will.
  • 16.   16   latest, SCC 306/2005, of 12th December, FJ 2; and 116/2006 of 24th April, FJ 3).” Article 24.2 SC also ensures the right to challenge a judge, “so that the deprivation of the right to remove the judge means restricting an essential guarantee that is legally established to safeguard the impartiality of the judge protected by the Constitution (for all, SCC 116/2008 of 13th October, FJ 2)” - SCC 205/2013 of 5th December. And this right to call for the removal of a judge also means -SCC 69/2001: “that the party’s claim should be conducted through the procedure laid down by law and that the question should be dealt with by a judge other than the one that has been subject to recusal (SSCC 47/1982, of 12th July, FJ 3, 7/1997, of 14th January, FJ 3 and OCC 227/1990, of 4th June)”. This is something to bear in mind because the recused judges themselves often do not allow the plaintiff's application to be processed. They themselves reject the challenges as they arise, and it can even been seen in the Constitutional Court, because, although it states in its SCC 155/2002, of 22nd July, that the rejection of the recusal by the recused judge himself can only take place "in very exceptional cases", accepting that “the recused judge may reject a recusal made against him, when it is clear that it has been made for spurious ends and is contrary to good faith, involving as it does abuse of rights and legal fraud…”. Also in SCC 234/1994, of 20th July, the questionable judge was permitted it as “reckless, abusive and contrary to the right to trial without undue delay”. It would be understandable if the challenged judge rejected the recusal on account of it not having been filed in time, or because it was proposed by a third party who is not involved in the trial, as the aforementioned Constitutional Court states, but to let the very judge suspected of bias decide not to accept the recusal, arguing reasons such as that the alleged motives are illusory or arbitrary, or that it has been formulated with the sole intention of hindering the exercise of their function, or that the
  • 17.   17   alleged friendship or enmity is imaginary, or that the recusal is simply unfounded, is intolerable. It is obvious that these assessments should be made by another judge who will hear the recusal application after investigating whether the recusing party's claim has any factual basis, but never by the very judge who does not want to be made to stand down. The law severely punishes a recusing party who acts in bad faith, 23 but what should never be done is to deprive the defendant of the right of the recusal to be duly treated. We must prevent it from being rejected in this arbitrary way, especially in the case of a right that is inalienable, according to ECHR ruling 30/11/1987, H v Belgium. According to the precedents of the Spanish Constitutional Court24 , following a statement by the Strasbourg Court25 , there are two types of impartiality. Firstly, subjective impartiality, which ensures that the Judge has never had an inappropriate relationship with any of the participants in the judicial process. Here the behaviour and the personal convictions of the judge are discussed, making sure he or she does not position himself or herself for or against either party. From the subjective point of view, the constitutional guarantee is intended to ensure that the trial should be decided by a third party unrelated to the parties and the interests at stake, and that his judgment criteria should be based solely on the law and not on “personal or ideological sympathies, antipathies, principles or even prejudice, or, which is the same, motives unrelated to the application of the law” -SCC 60 / 2008 of 26th May-. The neutrality of the judges is related therefore to this subjective point of view, taking into account the correct attitude shown towards the parties, without bias and without                                                                                                                 23 OLJP article 228.1 sets the imposition of a fine of up to 6,000 euros. 24 SCC 26/2007 of 12th February; 60/2008, of 26th May; 47/2011, of 12th April or 133/2014 of 22nd July. 25 ECHR rulings of 24th February 1993, Fey v Austria and 15th October, 2009, Micallef against Malta.
  • 18.   18   intervening in the dispute. It is imperative to avoid a situation in which the judge's decisions owe anything to influences outside the law, so that if there is a suspicion of inappropriate relations of a judge with either party, this would be a lack of subjective impartiality and we would proceed to recuse him or her on those grounds. As regards the kind of evidence required to demonstrate bias, the Strasbourg Court considers it appropriate to find evidence that aims to prove whether a judge has displayed hostility or ill-will for personal reasons -ECHR ruling 26th October, 1984, De Cubber v Belgium. Then there is objective impartiality, referring to personal aspects, these ensuring that the judge offers sufficient guarantees to exclude any legitimate doubt in this respect, and that there is nothing that could affect his or her impartiality and fairness of judgement. For example, among other assumptions: a) That there has not been previous contact with the case the judge is going to try, as would happen if the judge had participated in the instruction/investigatory (see footnote Explanatory Note) phase in a criminal trial that he or she later presides over, or when that judge has handed down a court ruling in an earlier court case. The Constitutional Court has considered as true acts of instruction involving objective impartiality, 26 among others, taking statements from witnesses or from the detained or accused party, making decisions about their personal situation or the admission of a complaint or lawsuit, or carrying out the investigatory procedures involved in the complaint, or necessary for the                                                                                                                  EXPLANATORY  NOTE   Under  Spain's  legal  system,  the  investigation  process  is  carried  out  by  a   magistrate  nominated  for  that  purpose,  with  or  without  the  assistance  of  the   police.  Once  this  procedure  has  been  concluded  and  the  results  of  the   investigation  phase  have  indicated    the  case  should    go  to  trial,  a  trial  judge  is   appointed,  who  must  by  law  have  not  been  involved  in  the  investigative   procedures.  
  • 19.   19   investigation of the facts27 . Since the judgment of the Strasbourg Court of 24th May, 1989, Hauschild versus Denmark, the loss of judicial impartiality has started to be considered from this objective point of view when the judge who is passing sentence, and as a consequence of having had previous contact with the case, has taken a decision based on issues that will have to be included later in the ruling, or  also taking into account any possible criminal element if the judge has expressed any decision regarding possible guilt, albeit of a circumstantial or provisional nature. b) Objective impartiality could similarly be seen to exist if there were any hierarchical or other links between the judge and one of the parties that could influence his or her decisions. The former typically can happen in a military context. c) If the judge had previously been the lawyer or teacher of either of the litigants and presides over the case after having joined the judiciary. d) If the judge has occupied a public office in which he or she may have participated in the object of the dispute, or had knowledge of it, having formed an opinion that would affect his or her impartiality. In the case of a collegiate body – a court made up of several judges – the court may be recused even if only one of its members is thought to be lacking impartiality. This is recognised by the Spanish Constitutional Court; “It is enough that one of the magistrates should not be part of this tribunal... the guarantee of impartiality of the judge must necessarily be linked to the judge’s intervention in the case, regardless of the influence that his or her vote can have on final decision, since it is precisely the participation in the hearing, considerations, and voting on the issue by a judge who shows or may show any of the legally provided grounds for                                                                                                                 27 SCC 145/1988, of 12th July; 11/1989 of 24th January; 151/1991 of 8th July; 113/1992 of 14th September; 142/1997 of 15th September; 310/2000 of 18th December or 45/2006, of 13th February.
  • 20.   20   recusal, which we aim to safeguard through this guarantee, irrespective of their possible influence on the deliberations leading to the final decision in the case ...” 28 The law states that only the parties and the public prosecution can challenge a judge29 , and the reasons for recusal basically affect the relationship between the judge and these parties. Therefore, lawyers and procurators cannot recuse directly, only on behalf of their clients, as they are collaborators in the judicial process that defends and represents their clients. It would be different if the judicial impartiality of the litigants were compromised by the friendship or enmity of the judge with these professionals, and although the Constitutional Court in principle seems to rule out this reason for recusal, 30 it ends up by recognising, logically, that in some cases these relationships can affect the loss of subjective impartiality of the judge; “In cases where there are circumstances which may give rise to the legitimate fear that the judge’s close friendship or evident enmity towards others involved in the trial may mean that their criteria of judgment is not the impartial application of the law - circumstances which should be examined in each particular case-, it may be considered that the judge does not meet the conditions of subjective suitability and that therefore the right of the party to a fair trial prevents them from hearing the case.” -see the OCCs mentioned.                                                                                                                 28  SCC 230/1992, of 14th December; 51/2002 of 25th February; 231/2002 of 9th December or 140/2004 of 13th September.   29 Art. 218 of the Organic Law of Judicial Power. 30  OCC 380/2005 of 25th October; 178/2005, of 9th May and 25/2008, 23rd January, citing many others.  
  • 21.   21   Judicial impartiality can also be influenced by pressure from the media during a trial. The SCC 69/2001, of 17th March, mentioning what was said in the previous SCC 136/1999 of 20th July and citing the doctrine of the Strasbourg Court, states that “protection against statements in the media about ongoing cases and parallel trials is based on the fact that they may not only influence the prestige of the courts, but, in particular, they can potentially prejudice the courts’ impartiality or appearance of impartiality, as the publication of alleged or real public conception about the trial and its sentence may influence the decision that the judges should make. When these circumstance effectively arise, the right to a trial with all the guarantees may be infringed, even without requiring proof that the influence has had a concrete impact on the decision of the case, because, due to the nature of the values involved, the existence of a well-founded likelihood that this influence has occurred is enough (JECHR, of 29th August, 1997, case of Worm,)...”. Therefore, it would be possible to request the recusal of the judge or court if there are ever grounds to question whether they may act in favour of either party, based on what was said or published in the media. Something that happens very often is that the appointed judge 31 , following the established duty programme and having notified his or her designation to the parties, as required by LOPJ article 203, is subsequently replaced by another during the course of the trial, and that this substitution, even when the litigants were not informed about it as required by law and the Constitutional Court32 , can be considered a mere procedural irregularity, without the possibility of cancelling the change of                                                                                                                 31  The judge who is responsible for presiding over the case, deciding what evidence is admitted and proposing and drafting judgments and taking other decisions.   32  SCC 180/1991 or 230/1992, among others.  
  • 22.   22   judge, unless this failure of notification has prevented that judge's recusal because he or she is censured on any of the grounds regulated in the LOPJ article 219. 33 Again, the defendant's constitutional rights are violated when there is an unexpected change of trial judge, bearing in mind the defendant has the right to the original appointed to preside. Questioning whether this may undermine the impartiality of the court is considered by the judiciary to be a ‘purely speculative or generic allusion, a hypothetical and unfounded suspicion, if not also fanciful conjecture, and, naturally, a stalling tactic’. Logically all this is insufficient, according to the sentences we have referred to, to be considered that the plaintiff’s right to a fair trial with all guarantees, presided over by an impartial judge may have been violated. We understand that at these times it is essential to continue giving priority to the importance of appearances, as the Court of Strasbourg insists, and the guarantee that the judge’s impartiality represents for the administration of justice in a democratic society. For this reason, and to clear up any doubts caused by a change of judge, it is imperative to start by accepting that the parties may be suspicious of any substitution, and to avoid this it is only necessary to do what the law dictates, which is almost never done, viz.: Firstly, together with the announcement of the replacement of the judge, a list of the substitute judges must be provided to all parties, so that it can be seen that the replacement judge has been assigned because he or she were next on the list. Secondly, advise all parties of the specific reason or reasons why the original judge has been replaced, 'without using abstract or repetitive explanations'                                                                                                                 33  SCC 230/1992; 282/1993; 64/1997; 6/1998…  
  • 23.   23   Both requirements are laid down in LOPJ article 203.2, and if they are not met, the citizen has every right to demand access to the information referred to above. It is obvious that if the request is not addressed, any doubts about the possible lack of impartiality of the judge who has unexpectedly appeared at the trial, must be considered legitimate. Finally, it must be made clear that the requeriments for the right to a fair trial is confined to the courts, without being extrapolated to members of an administrative body, who provide less reason for abstention and recusal34 . The SCC 14/1999 of 22nd February considers it natural that a public employee should always be subject to a hierarchy, and being a public official who is necessarily part of a hierarchical structure cannot be, cause for loss of constitutionally-required objectivity. Therefore, members of the Administration cannot be obliged on the basis of article 24.2 SC to act with the same fairness that we ask of members of the judiciary. They can only be expected to behave objectively, performing assiduously their administrative duties in the proceedings 35 , as the Constitution demands. Moreover, the guarantee that they will act with impartiality is the possibility of being taken to court over their performance to ensure it is legal.36 The SCC 22/1990 declares, “without detriment to the prohibition of all arbitrariness and the subsequent judicial review …………… the strict impartiality and independence of the judicial authority is not, in essence, predicable to the same extent as that of an administrative authority”. Moreover, as already advised, we must bear in mind that suspicions about the lack of impartiality of a judge have to be consistent and justified – JECHR of 7th August, 1996, Ferrantelli and Santangelo versus Italy.                                                                                                                 34 Art. 28.2 of Law 30/1992 of 26th November on the Legal Regime of Public Administrations and Administrative Procedures. 35 SCC 234/1991, 172/1996 and 73/1997. 36 Art. 106.1 of the Spanish Constitution.
  • 24.   24   To demand the recusal of a judge during the trial there must be well- founded suspicions of partiality, which must be assessed in each individual case37 . 3) The grounds on which Spanish judges will accept being recused As already indicated, Spanish judges do not like to be removed from a case, and find all kinds of excuses to prevent it. The most important one is that you can only remove them for the reasons set out in Article 219 of the Organic Law of Judicial Power (hereafter OLJP) without accepting any other. As can be appreciated after reading these specific causes shown below, it is obvious that any judge who is affected by the causes referred to should not resolve the legal dispute, even if the law does not specifically prohibit him or her from doing so. Below are the causes: 1) Marital ties or a comparable situation, or the fact the judge is related by blood or affinity to the fourth degree with the parties or the representatives of the prosecution. 2) Marital ties or a comparable situation, or the fact the judge is related by blood or affinity to the second degree with the lawyer or procurator of any party involved in the case. 3) Being, or having been, legal counsel or member of the tutelary agencies of either party, or having been under the care or custody of any of these. 4) Being, or having been, charged or accused by any of the parties on the grounds of being responsible for a crime or misdemeanour, provided the charge or accusation led to the initiation of criminal proceedings which did not result in acquittal or dismissal.                                                                                                                 37  SCC 162/1999, of 27th September, FJ 5; 140/2004, of 13th September, FJ 4; 26/2007 of 12th February, FJ 4; 60/2008 of 26th May, FJ 3; and 47/2011 of 12th April, FJ 9.  
  • 25.   25   5) Having been punished under disciplinary proceedings initiated as the result of a complaint by, or on the initiative of, either party. 6) Having been a defence counsel or representative of either of the parties, or having delivered a verdict on the case or cause as a lawyer, or having participated in the case as a prosecutor, expert or witness. 7) Being or having been, plaintiff or accuser of either party. 8) Having litigation pending with either party. 9) Close friendship or evident enmity with either party. 10) Having direct or indirect interest in the lawsuit or cause. 11) Having participated in the investigation of the criminal case or having intervened in the lawsuit or cause on a previous occasion. 12) Being, or having been, one of the subordinate parties of the judge responsible for presiding the trial. 13) Having held public office, employment or exercised professionally, participating either directly, or indirectly, in the matter that is the subject of the litigation or in any associated with it. 14) In cases involving the public administration, being acquainted with the authorised judge or magistrate or with the civil servant who initiated the legal action either directly or indirectly or carried out the action for which reason the trial is taking place, in any of the circumstances mentioned in causes 1 to 9, 12, 13 and 15 of this article. 15) Marital ties or a comparable situation, or the fact the judge is related by blood or affinity to the second degree with the judge or magistrate who had handed down the sentence or assessed an appeal, or taken part in any later stage of the process. 16) The judge or magistrate having held public or official office by which they may have had knowledge of the object of the case and could have formed an opinion at the expense of due impartiality.
  • 26.   26   The Spanish Judiciary focuses on these grounds that the law provides for the recusal of any judge who may be implicated accordling. It does not admit any other possibility, suggesting that if the law does not specify any other options, they do not exist, or, what is worse, suggesting that when the legislators have listed these specific reasons for admitting recusal, they are saying that it is not admissible to recuse a judge for any other reason. Fortunately this simplistic argument can be easily destroyed: Firstly, because it is unlikely that the average citizen will know if the judge in a trial is affected by any of the grounds cited in this legal precept. Actually they should not need to know, as it would correspond to the Judge to inform the court about such circumstances, but obviously this does not happen, and if the judge is silent about the existence of any of these issues, it will not be possible to recuse him or her on the basis of same, whatever rights the citizen may have, or however biased the behaviour of the judge may have become during the course of a trial. As an example, we cite the SCC 45/2006 of 13th February. The judge in question had been significantly involved in the investigative phase of a criminal case, later participating in the appeal against the sentence heard by the criminal court. However, his name did not appear on the copy of the appeal sentence that was made available to the defendant. In the copy it appeared that the bench that ruled on the appeal had only consisted of two judges instead of three, and the third judge, whose identity was not revealed to the appellant, as the law demands, turned out to be the one who had initially questioned him when investigating the process and who now condemned him on appeal. If the appellant had known this, it would have allowed him to request the recusal of the judge on the grounds that he was prejudiced as a result of his previous involvement in the proceedings.
  • 27.   27   In other words, the 11th cause of article 219 OLJP could have been cited, but the defendant was not informed of this and therefore could not challenge the judge to prevent him from participating in his appeal. The second compelling reason to repudiate the exclusive grounds for recusal so exhaustively stipulated by law is that there are many other reasons to recuse the court or judge for lacking impartiality. Moreover, as these are not included among the specific legal grounds and it is not officially possible to request a recusal for any other reason, there is no way to remove the judge from the case. The third argument that invalidates this inconsistent theory that a judge can only be recused if he or she can be implicated on any of the grounds expressly established by the law, is that the criteria of the appearance of impartiality imposed by the Court of Strasbourg could not be used in Spain. This would mean that however wrong we think the judge’s behaviour may have been during the trial proceedings, that judge may not be recused. Even the most palpable evidence that may be presented demonstrating the judge's lack of impartiality will not be admitted. A straightforward reading of these specific cases shows that a judge may be acting with complete lack of impartiality but it proves impossible to recuse him or her. The obligation of being restricted to the grounds set out in article 219 LOPJ, can lead to, for example, the following hypothetical situations: 1) There may have existed a marriage or relationship that causes 1 and 2 of the legal provisions allow for, dissolved by annulment, divorce, or termination for whatever other reason. Notwithstanding the effect that the break-up could have had on the judge, he or she can still participate in a trial in which his or her former partner is involved. The retribution that could possibly be exercised by the judge against his or her ex-partner would be no cause for recusal.
  • 28.   28   2) If a judge has been denounced -4th cause - and criminal proceedings had not been instituted against him or her, or the case had been dismissed or he or she were acquitted of the alleged offence (quite normal in 99% of cases), the animosity that the judge logically feels for the complainant does not mean he or she cannot preside a trial in which the person who had denounced him or her were one of the parties. 3) If the judge has been accused of an alleged disciplinary offence -which can happen more often than we imagine during the course of a trial-38 , the resentment that such a complaint causes would not be an obstacle to the recused judge continuing to hear the case. Moreover, it would give rise to the paradox that during the trial the judge would be handling the disciplinary proceedings against themselves initiated by the complainant. However, as that judge was not subject to disciplinary sanctions, as required by the 5th cause of OLJP Article 219, this resentment would exist and it would not be possible to recuse him or her. We could continue analysing the inconsistencies of limiting the grounds for recusal in this way, without regard for the one and only overriding factor that is paramount when recusing a judge: lack of impartiality. This is the situation that unfortunately has been imposed, and Spanish judges do not accept grounds for recusal other than those listed in OLJP Article 219. This precept is generally accepted, as in this recent sentence of the Provincial Court of Madrid, Section Three39 ; “We have interpreted the doctrine of the Supreme Court as establishing that the analysis of the existence or otherwise of any of the grounds for abstention and recusal                                                                                                                 38 Abuse of authority or disregard for the parties, lawyer or procurator; use of unnecessary, irrelevant or offensive language in resolutions; revealing details of the process; abandoning or leaving the court, not meeting deadlines and schedules of trials, or not attending them; unwarranted delay in the proceedings, inexcusable ignorance in the performance of their duties, absolute lack of motivation in their resolutions. These are some of disciplinary offences included in OLJP art. 417, 418 and 419. 39 Sentence dated 10th June 2015, appeal number 922/2015.
  • 29.   29   must be made with strict reference to the regulated grounds in the governing provisions, which do not allow an analogous interpretation (Sentences of Chamber 2 of the Supreme Court of 8th and 12th February and 14th June 1991, 14th May and 11th November 1992, 6th November 1993, 28th February, 9th May and 27th September, 1994, 17th June 2003, 29th March 2005, 15th and 26th April 2011 ...”). After this, the judges of this Court in Madrid have no qualms about giving their personal reasons as to why only the causes stipulated in article 219 OLJ are valid. “This is for obvious reasons of legal security and to serve the need for avoiding unfounded recusals or mere estimations concerning members of judicial bodies, as well as possibly abusive manoeuvres directed at having a specific judge removed from a case, and also to avoid purely dilatory or obstructionist actions by the parties.” Such arguments cannot be valid if the most elementary logic is applied. The fact that there are reasons other than those established in article 219 LOPJ does not mean that they may be spurious. However, the sentence of the Criminal Chamber of the Supreme Court, First Section40 , uses the same version of why the Spanish legal system sets out specific grounds for recusal and does not admit any other, exhaustively in this article 219 of the Organic Law of the Judiciary. It explains: “The assessment of the reasons why a judge should abstain from a hearing is not left to the discretion of the judge, nor has the authority to indicate the causes that allow recusal by questioning or denying the judge's impartiality been left to the discretion of the accuser, rather, to ensure legal certitude and to avoid hasty and unfounded abstentions and abusive recusals, we have exhaustively specified the situations that serve as an accepted evaluation for abstention and recusal.”                                                                                                                 40 Sentence dated 9th May, 2008, appeal number 10922/2007.
  • 30.   30   To reinforce the limitation of grounds for recusal that does not appear among those specified in OLJP article 219 -without embracing the only thing that counts being a judge acts without a shadow of partiality- the Spanish Constitutional Court has basically led the way41 , making it clear that the suspicions about the lack of impartiality of a judge “must be based on causes that are assessed and interpreted restrictively, with no possibility of extensive or analogous claims.” This absurd ruling of the Constitutional Court, which aims to back up the judicial impartiality ensured in SC article 24.2, is still mistakenly reproduced -OCC 238/2014 of 9th October, reiterating the ruling, in the OCC 180/2013 of 17th September, FJ 2-: "Whatever the failure of impartiality that is alleged ... it must be redirected to one of the aforementioned legal grounds ... Outside of the ambit of such legal grounds, apprehensions or misgivings that the parties may express are legally irrelevant.” Moreover, all Spanish courts, taking advantage of the Constitutional Court’s oversight, have repeated this endlessly. Among their recent resolutions: Order of the Civil Chamber of the Supreme Court, First Section, dated 2/11/15. Appeal 921/2014: “The recusal must be based on factors restrictively assessed and interpreted, with no possibility of extensive or analogous applications (OCC 60/2008, 26th May).” Order of the Social Chamber of the Supreme Court, First Section, of 03/10/2015, dictated in appeal 13/2013, “the recusal must be based on restrictively assessed and interpreted grounds with no possibility of extensive or analogous applications [OCC 60/2008, 26th May]” Or the Order of the Civil Chamber of the Supreme Court, First Section, of 07/08/2015, dictated in the appeal 64/2015: “The recusal must be based                                                                                                                 41 Constitutional Court sentence number 60/2008, of 26th May, among others.
  • 31.   31   on restrictively assessed and interpreted grounds with no possibility of extensive or analogous applications (OCC 60/2008, 26th May).” The trouble is that when a judge decides to abstain for other reasons - realising for example that his or her judgment cannot be objective-, it is the court that the judge presides which my not allow it. It is obvious that to agree to such unilateral abstentions would be admitting that there may be other motives of abstention and recusal not included in OLJP article 219. This in fact happened with the Order of the Constitutional Court Nº. 146/2009 of 11th May, which did not accept the abstention requested by a judge of that Court, pursuant to article 219.2 of the Organic Law of Judicial Power. The reason was that his son, a procurator of the court, had acted as authorised representative for the plaintiff under the previous legal process that would lead eventually to an appeal for clemency. The court did not consider this abstention justified because “the fact that he was involved in the trial prior to this constitutional process is not sufficient reason to propose, let alone admit, this request for abstention.” Then it reminds the court, to reinforce the rejection of the request for abstention by the member of the Court, of “the restrictive criteria, often underlined by the constitutional doctrine (for all, OCC 162/1999 of 27th September and OCCs 289/2007 of 19th June and 81/2008, of 12th March), which should guide the implementation of the grounds for abstention and recusal of judges of this court.” The same happened in the OCC 456/2006, of 14th December, where the abstention requested by the Constitutional Court was also rejected, claiming that it is one thing for his son to act as procurator in the previous trial and another for him to do it later before the Constitutional Court, something that did not in fact happen.
  • 32.   32   It is clear that in all these matters relating to the decision to be taken by that judge in the appeal presented to the Constitutional Court, the important thing was the fact that the procurator son had been paid by the client who was now appealing to the judge father, and for the present and future interests of the judge’s offspring it would have been advantageous for the plaintiff to be successful, regardless of whether or not the son were appearing before the Constitutional Court to represent the client. However, agreeing to the abstention requested would have meant that on the many other occasions when it was not relatives of the Constitutional Court judges who appeared in appeals, but professional third parties, there would have to be identical abstentions. The concern is that if we seek to refute serious injustices that are only possible to challenge for the reasons defined by the law, all established sources consulted agree on the need to defend this unjustifiable position. One after another, Spanish jurists have maintained that it is only possible to recuse a judge on one of the grounds specified in article 219 of the Organic Law of Judicial Power, agreeing that these grounds constitute a closed list, making other reasons inadmissible. Although some studies cite sentences dating back many years42 , admitting other reasons for recusal not covered by the law in question, these do not indicate the grounds on which the impartial judge was made to stand down. So, definitively, in the following we present the method that will allow the removal of any judge acting without the standards of impartiality required by law.                                                                                                                 42 On the occasion of the creation in 2004 of the Jurei Foundation (Responsible and Independent Justice) and the subsequent development of the website Justicia-Pueblo (Justice for the People).
  • 33.   33   4) End the reluctance to recuse The constraints that we have referred to in the matter of recusing a judge were not always thus. The Constitutional Court ruling 157/1993, 6th May, in line with what the European Court of Human Rights had been stating concerning judicial impartiality, guaranteed in Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR), ruled: “Such pronouncements can result in identifying cases of abstention and recusal so far not covered by our legislation, which could arguably lead to the demand for a modification of Spanish law to international standards....” The Supreme Court ruled identically, 43 accepting the approach taken by the Constitutional Court in OCC 157/1993 and also that of the Special Chamber of the Supreme Court in its rulin of 1/10/1997, recognising also that “it is possible to identify cases of abstention and recusal that are not clearly and expressly allowed for in the legislation mentioned.” Equally compelling was the Social Chamber of the High Court of Justice of Catalonia, stating in its ruling of 23/09/2004 that “The suspicion of partiality may be caused by any circumstances, not necessarily one of those included in OLJP article 219”. Indeed, other courts have followed this elementary logic, such as the Provincial Court of Cuenca, First Section, ergo the statement by the Supreme Court in its Sentence 20/2005, dated 2nd February, issued in civil appeal 225/2004, “It is possible to find cases where abstention must be obligatory and recusal legitimate in spite of the fact that they are not clearly and explicitly covered by the legislation (SSC 30th November, 2001 and 22nd November, 2001, among others)”. Or the Order of the Provincial Court of Las Palmas, Section 4, of 12th April, 2006, appeal                                                                                                                 43 Sentences of the Criminal Division, First Section, dated 22/11/2001, appeal number 1017/2000, ref. TOL 4,963,971, and 30/11/2001, TOL 129,113.
  • 34.   34   257/2006, referring to the flexibility shown by the Strasbourg Court in this matter: “The right to having an impartial judge is not restricted to cases of abstention and recusal, and in this context the European Court of Human Rights has been very perceptive with regard to the problems of judicial impartiality in its dual facet of the subjective side, consisting of a judge’s dispassionate relationship with the case and, in particular, that there should be no inappropriate contact with the parties; and on the objective side, insisting that there should be no shadow of doubt cast on the court by any other circumstances.” But Spanish judges had already decided to reverse or reinforce their obstructionist approach. They did not want to admit further grounds for recusal other than those already established by law, when it is obvious that they should have been doing exactly the opposite44 . Even the Constitutional Tribunal was in favour of this doctrine, in spite of the fact it had no basis in truth. Its subsequent ruling of Sentencia 69/2001, of 17th of March, pointing out:“The character of numerus clausus of the legal grounds for recusal: These are only those laid down by law and must necessarily be included accordingly in any of those suppositions that the guidelines define as such”. This Sentence cites the previous OCC 157/1993, attributing this statement to it, although as we have seen this was not the case. From then on this idea became accepted; “The restrictive approach, often emphasised by the constitutional doctrine (passim, OCC 162/1999 of 27th September and OCCs 289/2007, of 19th June and 81/2008, 12th March), that should guide the application of grounds for abstention and recusal of the judges of this court.” -OCC 146/2009 of 11th May-, until the                                                                                                                 44 “In a democratic society, the right to good administration of justice occupies such an eminent place that a restrictive interpretation of Article 6.1 of the ECHR would not correspond to the aim and purpose of this provision”. –ECHR ruling of 17th January, 1970, Delcourt v Belgium-.
  • 35.   35   publication of the recent OCC 238/2014 that we have quoted, causing other Spanish Judges to repeat the doctrine. The existence of these limited grounds generates a serious problem: whatever evidence there may be that a judge is not acting impartially, that judge will not admit his or her recusal if the reason is not among those specified in OLJP article 219. We are facing an intolerable injustice imposed by the Spanish judiciary, which seem intransigent in demanding that any recusal must exclusively meet those specific causes defined by law, without accepting other grounds. However, everyone is aware that the mere fact that a judge is not acting impartially justifies that judge’s immediate recusal. It is enough to remove the judge from the case if he or she appears to be angry or irritated, something that in Spain happens all too often, and however much we point out the judges’ mistakes, the more they persist in defending them, since they prefer to maintain their position stubbornly than admit they were wrong, 45 (without necessarily being the spouse, relative, friend or foe of any of the parties, or having been denounced by either of the litigants, or having a lawsuit pending with one or more of them, or having held a post of any sort that prejudices their neutrality, or being implicated on any of the grounds that the legislation specifies.) This clear impossibility of recusal in the vast majority of cases, even when there is an appearance of judicial bias, means that the litigant in such circumstances does not know what to do, and needs to search through the legally established causes to find one that adjusts to their proposed challenge. When they do not find one, they attempt to define the judge's apparent bias in court as one of the two grounds of OLJP article 219 that they hope will be adequate: the close friendship or evident enmity – the ninth reason; or having a direct or indirect interest in the                                                                                                                 45 Seneca. On Anger, Book I, XVIII
  • 36.   36   trial –the tenth reason. However the judges are ready and waiting to reject the applicant's challenge, indicating, as far as the first alleged cause of friendship or enmity is concerned -OCC 180/2013 of 17th September, reiterating what was said in the OCC 226/1988 of 16th February in the SCC 162/1999, of 27th September -, that “The legal reason for recusal is not any friendship, but an implication of the character of intimacy between two people....and mere sentiments of acceptance or rejection resulting from the fact of belonging to political parties, associations, corporations or social groups, as well as in relation to the assumption of religious beliefs and ideologies of diverse nature, are, therefore, excluded as plausible indicators of friendship or enmity, so long as they have not been translated into individualised acts of friendship or enmity ... (OCC 358/1983, of 20th July, FJ2)”. Regarding the next cause which the recusing party chooses to rely upon in the absence of other reasons - direct or indirect interest - according to consistent jurisprudence this would have to be: “always of a personal and not a professional nature, so it is not permissible to make an accusation of misconduct because of the judge being involved in previous judicial activities” - OSC, Special Chamber of 25/2/2010, appeal Nº 6/2009, among many others. In other words, this interest cannot be derived from or be contingent upon the decisions taken by the judges and courts in the exercise of their functions. All this means that although we manifestly perceive that the judge in a trial is not acting in an impartial way, and finds against us as a result of a personal desire to favour the other party; or we see that instead of the lack of bias that should dictate his or her actions, the judge has already decided the final outcome of the trial and there will be no way to challenge that interest or friendship that benefits the other litigant.
  • 37.   37   We will base the recusal precisely on article 24.2 of the Spanish Constitution -the First Act-, as well as on ECHR article 6.146 , which recognises as we have said the right to a fair trial and an impartial judge and the equal right to be able to recuse any judge not acting impartially. We would therefore have two options when it comes to making the recusal: 1 - If the judge can be challenged on any of the grounds included in OLJP article 219, we would invoke these to halt the case. This is the option that 47 generally accepted and there should be no impediment to this course of action. 2 - If the reason for the challenge is not included in the stated causes for allowing recusal, and the judge's lack of impartiality is patently clear, we could recuse the judge, as we have stated, under EC article 24.2. For some time now, the Spanish Constitutional Court has made it clear that the 1978 Constitution is directly applicable in courts of law 48 , categorically denying that their articles are a mere declaration of principles without any practical efficacy, as indicated by other judicial bodies49 . We would also base our case on the doctrine of the Strasbourg Court, in other words, evaluating the behaviour of the judge, and observing how he or she reacts while presiding over the trial. Therefore, we only have to worry about whether this suspicion is correct and whether our doubts about the fairness of the judge are reasonable. This will be enough to recuse the judge for their lack of ability, although, we insist, we do not cite any reason from among those indicated in OLJP                                                                                                                 46 In accordance with SC Articles 10.2 and 96.1, which impose their application in Spain. 47 Art. 106.1 of the Spanish Constitution. 48 SCC 16/1982 of 28th April 80/1982 of 20th December. 49 Sentences of the Court of Seville of 31st January 1980 and the Civil Chamber of the Supreme Court of 8th April 1982.  
  • 38.   38   article 219, because they are neither applicable nor necessary. Moreover, we base our case to support this recusal on CE article 24.2 of the 'Magna Carta', since: From a subjective perspective it is evident that we do not have an impartial judge in our trial, if, as a result of a possible relationship with one or more of the parties “a prior interest may arise to favour them or harm them ...” -SCC 36/2008. Or from the objective side, if the judge, even though he or she may not favour either of the parties or externalise any personal conviction, has had a previous involvement in the legal proceedings that may prejudice judicial impartiality. In theory, the Spanish Constitutional Court, as it could hardly otherwise do, requires simply, “that the accused shall be guaranteed that there is no possibility of reasonable doubt about the existence of bias or prejudices in the judiciary, including those which, from an objective perspective, may occur”. 50 Moreover, the Constitutional Court accepts that we would simply be looking at a lack of subjective impartiality if there were any suspicions about a judge’s inappropriate relations with either party, and if there has been a previous involvement in the case by the judge, which would be considered a lack of objective impartiality51 . The absurdity of it all, as we have seen, is that the recuser must base the complaint on one of the grounds listed in OLJP article 219. In other words, the lawmakers insist: “Subjective impartiality that guarantees that the judge has not maintained improper associations with the parties, in which all matters arising from the judge’s relationships with the parties are included, and objective impartiality, i.e., referring to the object of the                                                                                                                 50  SCC 39/2004, of 22nd March; 41/2005 of 28th February; 143/2006 of 8th May.   51  SCCs 145/1988, 11/1989, 136/1992, 372/1993, 32/1994 and 162/1999…  
  • 39.   39   proceedings, ensuring that the judge approaches the matter to be decided without having taken a prior position on it.” Nor does the Court then question whether the recusal will proceed, provided that “There are objectively justified doubts, i.e., externalised and supported by objective data, that make it possible to justify legitimately that the Judge is no stranger to the case, or permit the apprehension that, because of possible familiarity with the specific case, the judge is not going to use the standard of judgment demanded by law, but instead using other considerations outside the law.” But then the Court notes -Orders of the Constitutional Court 180/2013 and 238/2014, which we have quoted-, that whatever the breach of impartiality that is alleged, it must necessarily be redirected to one of the aforementioned legal reasons established in OLJP article 219. A real contradiction, because among “those doubts” about the lack of impartiality of the judge there will also appear those that are not included in the aforementioned legal precept, and it is illogical that these doubts cannot be used as allegations for the purpose of filing a recusal on grounds not listed. If the Spanish Constitutional Court persists in not correcting this intolerable error, we must look to Strasbourg for rectification, especially since the recent reform of the Spanish Criminal Procedure Act allows plaintiffs to request a review of a final judicial decision of a Spanish court, when the Court of Human Rights has declared that the resolution violates some of the rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, or any of its Protocols.52                                                                                                                 52 Law 41/2015, in force as of 7th December, 2015, amends article 954 of the Criminal Procedure Act, adding this new reason for revision in its third paragraph. See also current OLJP article 5a.
  • 40.   40   To impose such an unreasonable position at all costs, that is to say limiting the only accepted grounds for recusal to those specified by this law, in practice means that this rule is not always respected by the courts. Thus, the Constitutional Court in its SCC 164/2008, of 15th December, declared that a judge had acted with a lack of impartiality, despite the fact that his conduct was not one of the grounds for recusal in OLJP article 219. The Public Prosecution alleged, aware that it was unusual , that the Constitutional Court has been pointing out the causes of bias reflected in OLJP article 219: “do not constitute a closed list”. Moreover, the Attorney General also maintained the same position, indicating that according to the doctrine of this Court, the stipulated grounds for alleging bias are not of a “restricted nature”. Neither of them cites any judgment by the Constitutional Court substantiating their surprising conclusions; they would know that there is only SCC 157/1993, later invalidated by the many sentences that caused it to be questioned. Moreover, so as not to assume that the right to judicial impartiality has been breached, against its conciliatory doctrine, the Constitutional Court seeks the justification that it is not that Court’s responsibility, but that of the judges of the ordinary courts, to decide whether the cause that motivates the recusal is or is not listed among those included in OLJP article 219. But having manifested this it does not after all respect the decisions of these judges, who decided to reject the recusal that had been filed53 , inasmuch as the alleged cause “is unfortunate, because the condition of the Judge of the Social Chamber who took part in the judgment of the Contentious-Administrative Chamber does not fall into the category of a judge having participated in the instruction of the criminal case or having pronounced on the case or cause previously”. OLJP article 219.11, which the Constitutional Court would then ignore                                                                                                                 53 Order of 22nd March 2005
  • 41.   41   in order to grant protection by accepting a lack of impartiality of the judge on grounds that were not on the 'official' list. It is obvious therefore that both the Constitutional Court, altering the decision of the judges of ordinary courts, and the Prosecutor and the Attorney General, when they all accept that the reasons listed for recusal in OLJP article 219 are not the only ones that can be cited to remove a biased judge from a case, show that we are right. It is also be very clear to us that the only relevant matter when recusing a judge is whether or not he or she is acting fairly. As noted by the Court in Strasbourg, to which we shall refer when we make the recusal, the Spanish Constitutional Court refuses to change its doctrine once again. 5) Procedures to be followed to initiate the recusal of a judge. As stated in the 17th final provision of the Code of Civil Procedure, the formula for the recusal of judges and magistrates is set out in Article 223 and subsequent articles in the Organic Law of Judicial Power. OLJP article 223.1 states that the recusal must be filed as soon as we know the cause on which it is to be based, and it will not be admitted in the event there is any delay. Specifically, it fixes a deadline of ten days after becoming aware of the identity of the judge to be recused, from the date of the notification of the first court decision. However, it is likely that we do not know if the judge in question should be challenged on the basis of one of the reasons listed in OLJP article 219, or for his or her lack of impartiality according to the way they behave towards us at the trial. In these cases, it would not be possible to initiate the recusal until we have sufficient reasonable grounds for doubting his or her impartiality.
  • 42.   42   There are many occasions where recusals are being rejected on the grounds that they were filed too late. This is what the Spanish Constitutional Court stated in its Order 238/2014, of 9th October, quoting OCC 180/2013 of 17th September, it rejected the recusal, on the basis that: “as stated in the first paragraph of OLJP article 223.1, the recusal must be presented as soon as knowledge of the cause on which it is based comes to light, or otherwise it will not be admissible”. The Court justifies this rejection of the allegedly too-late recusal as “preventing the possible recusal of a judge from becoming any kind of threat or pressure on a judge, to avoid making it a weapon that a party might use for his or her own expediency, sine die, protected by the inability to determine - or difficulty of proving - the moment of realisation [of the lack of impartiality of the judge].” In SCCs 140/2004, of 13th September; 28/2007, of 12th February, and 60/2008, of 5th December, the Court did not accept a complaint against being deprived of the right to an impartial judge if the person concerned had previously had the opportunity to recuse the judge or court, but had not done so at the required moment. However, even accepting that there may have been a delay in making the recusal, and that this delay caused its rejection, raises a doubt about the presiding judge's impartiality. Just thinking about it sends signals of the wrong sort to everyone who believes in the basic right that every trial should be heard by an impartial judge. Moreover, the judge described by ECHR article 6.1 is not simply a person who reached the position by virtue of his or her professional qualifications; he or she must also be independent and impartial54 , or rather, judges must inspire confidence in all of us concerning their independence and impartiality. 55                                                                                                                 54 ECHR ruling of 28/671981, Le Compte and Others v Belgium. Order of 29.04.1988, Belilos against Switzerland 55 ECHR ruling of 25.02.1997, Findlay v United Kingdom. Or the oldest of 01.10.1982, Piersack against Belgium.
  • 43.   43   If a recusal is rejected because it was not filed in time, and the inadequacy of the judge has not been dealt with, his or her removal could still be demanded for the same reason. We would make an application repeating why we think the judge should be removed from the trial. If on grounds included in OLJP article 219, we would indicate accordingly, but otherwise we would base the recusal on what is stated in EC article 24.2 and ECHR article 6.1, which guarantees the right to an impartial judge. If our application for the judge to be removed is not acknowledged, then it is clear that we have denounced a case of lack of impartiality before the courts of this country and there has been no attempt to address the situation. It is obvious that the fact that the recusal was not made within the very limited window of time provided does not mean that no lack of impartiality has been established, or that the judge or court should not be admonished 56 . The law has two specific ways of removing a judge from a trial, these being recusal and abstention, and although there exists the possibility that no objection has been filed within the statuary period of ten days, we insist that it is clear that here is a judge acting with a lack of impartiality. We could complain to the Constitutional Court that our application revealed the absence of an essential guarantee for the normal conduct of the trial, and that although the judge should have abstained from presiding over the trial of his or her accord, he or she did not do so. As a result, the Court should acknowledge that the right to a trial with all guarantees has not been fulfilled, given the non-availability of a judge.                                                                                                                 56 So it is imposed by OLJP art. 217, and not doing it, as already noted, means committing the very serious disciplinary offence typified in the art. 417.8 of identical Legal Text.
  • 44.   44   It is important to note that the Strasbourg Court has not considered it necessary to establish the need to recuse judges suspected of bias, because everyone who would have been involved in the judicial process at other stages should have been able to correct the violation57 , specifically: 1) In the ruling of the ECHR of October 28th , 1998, against the Spanish Government's defence that the plaintiff had been informed of the identity of the judges who were to try him, but did not take steps to recuse them. The Strasbourg Court ruled: “even though neither the plaintiff nor his lawyer filed a recusal ... the Courts of the State being accused did not lack opportunities to correct the alleged breach of Article 6.1 of the Convention”. And the plaintiff, although he had not filed a recusal, said in his appeal to the Supreme Court that the court judging him could not be considered impartial because two of its judges had previously heard his appeal against the indictment. He also lodged a complaint against the Spanish Constitutional Court for breaching his right to a fair trial. 2) In the ECHR ruling of 17th June, 2003, the Spanish courts rejected a recusal because it was filed nearly two years after the start of the trial, even though, as was indicated, the plaintiff was previously aware of the reason for the alleged lack of impartiality. And the International Court of Human Rights ruled: “In Spanish law there is a provision, Article 221 of the Organic Law of Judicial Power, which requires the judge in question, on any of the grounds for abstention and recusal established by law, to refrain from hearing the matter without waiting to be recused.” Again this made it clear that it was not necessary to file the recusal, it being                                                                                                                 57 ECHR rulings of 28th October, 1998, Case of Castillo Algar v Spain; 25th July, 2002, Perote Pellon v Spain; 17th June, 2003, Pescador Valero v Spain and 22nd July, 2008, Gomez de Liano v Spain.  
  • 45.   45   sufficient that the judges involved in the dispute were aware of the accusation of bias. 3) And in the ECHR ruling of 22nd July, 2008, which also rejected the recusal for its late filing, answered the argument of the Spanish Government that the rules on recusal impose a time-limit, and that this must be when the accuser becomes aware of the prejudiced situation: “The applicant applied twice to the Court to prevent it from hearing the trial ... (and) members of the Court, aware of the plaintiff’s fears, saw no reason to abstain.” After citing its ECHR ruling of 24th May, 1989, Hauschild v Denmark, and Pescador Valero v Spain, the European Court of Human Rights reiterated: “In Spanish law there is a provision, Art. 221 of the Organic Law of Judicial Power, that obliges the judge concerned, on one of the grounds for abstention or recusal prescribed by law, to abstain from hearing the case without waiting to be recused ...”. The Strasbourg Court commented that after having had his recusal rejected because it was filed late, the plaintiff complained of lack of impartiality in the hearing before the Supreme Court, and also before the Spanish Constitutional Court, so as not to be accused of lack of determination. In Article 223 of the Organic Law of Judicial Power, second paragraph, it indicates that the recusal should be made in writing, laying out clearly the cause or causes on which it is based. As indicated by the SCC 126/08, 13th May, “The constitutional doctrine is established, which stems from SCC 109/1981 of 30th October, and reiterated in the SCCs 115/2002, of 10th July, 195/2003, of 12th June, and 267/2003 of 15th July, or, most recently, OCCs 80/2005, of 17th February, 18/2006, of 24th January, 177/2007, of 7th March and 81/2008 of 12th March, established that for the request for recusal to be admitted it is an essential requirement that the application expressly, specifically, and clearly states the reason for
  • 46.   46   the recusal, stating the grounds on which it is based and accompanied by prima facie evidence to that effect.” We therefore have to ensure there is a good basis for the recusal, without being limited to a mere reference to the legal grounds that may permit the judge to be removed from the case – always supposing the judge is implicated. We cannot simply claim that the persons challenged are not impartial and have breached CE article 24.2, in the event that we rely on this precept, but on all occasions we must present facts and sound arguments that prove the lack of impartiality we allege. We must do this to avoid being accused of filing a recusal in order to delay the trial or in order to get rid of the judge without valid reasons, because in such a case we can be fined between 180 and 6,000 euros if it can be shown we have acted in bad faith. The application must be prepared meticulously because we are the ones with most to gain by removing a judge whose actions have been damaging to us, in circumstances that became clear before or after that judge was assigned to the case. The recent SCC 180 / 2013 of 17th September, pronounced in the same way on a recusal being invalid for not complying with the inexcusable requirement of indicating precisely the cause that it is based on, laid out in the SCC 126/2008. This same OLJP article 223 also requires that the recusal to be filed be signed by the lawyer, by the Procurator58 , who must also have a special power to recuse59 , and also by the plaintiff in whose name the recusal is filed. If it is a trial that does not require the participation of both professionals, the plaintiff should simply ratify the recusal by presenting it to the clerk of the court. If it has not been possible to make the recusal while the process is ongoing because there was no prior knowledge of the cause or for any                                                                                                                 58  A professional in Spain who acts in judicial proceedings representing the litigant.   59  This power may be acquired by appearing before any court clerk in Spain.  
  • 47.   47   other reason it was not possible to attribute any cause to the recused party, the plaintiff must make the recusal in his or her appeal against the sentence - SCC 140/2004 of 13th September. If it is not admitted in the appeal, it can be presented in the motion for dismissal of proceedings stipulated by article 241 of the Organic Law of the Judiciary, as such appeals have also been admitted by the Constitutional Court60 . But, we repeat, this option exists only if it has not been possible to make the challenge earlier, since it will not be accepted at the appeal if the party is negligent and does not present the recusal in time. This is justified by the ruling that “If this were possible it would infringe the rights of the other parties who, having obtained a favourable resolution, may have it denied them as a result of an issue that could have been remedied during the trial, but in fact was not admitted until after sentencing. (SCC 60/2008 of 26th May, FJ 3) ...”. It is also untrue, as stated in SCC 55/2007, of 12th March, citing SCC 140/2004, of 13th September, that the party challenging the lack of neutrality of a judge can choose between recusal and annulment of the sentence by that allegedly biased judge. This latter possibility will only be applicable when the recusal is not allowed. The litigant must always file a recusal, since some courts have indicated that judicial impartiality is an acknowledged right for the parties although not for the solicitors or procurators who represent them61 . However, although they are not the ones guaranteed the right to an impartial judge, there is no doubt that the improper behaviour of a judge towards the lawyer or procurator acting on behalf of the defendant could breach this                                                                                                                 60 SCC 159/2004 of 4th October; 240/2005 of 10th October and 306/2005 of 12th December. 61 SSC, Fourth Chamber, First Section dated 17/02/2004. Appeal 3550/2003.
  • 48.   48   right, as we have pointed out, and would be explained in the application for recusal. Once the recusal has been formulated, it must be transmitted to the other parties in the trial within three days, so that those parties can state whether or not they agree with it. Once this deadline expires, the recused judge must indicate the following day whether or not he or she accepts the objection. This should be the judge’s only involvement in the recusal brought against them, but unfortunately recused judges often do not admit objections filed against them and reject them it as soon as it is presented, violating SC Article 24.2. If the rejection was for reasons other than its late submission, and if our reason for removing the judge from the case is well-founded, we should launch an appeal against the decision, asking him or her to accept it for processing and allow it to be dealt with by the corresponding judge62 . We would quote in such an appeal SCC 47/1982, of 12th July, which recognises “the need for the application made to be carried out through the due process of law”, and we would also demand that this “should not be processed by the same judge or judges who are the subject of the recusal, but by the ones that the law dictates resolve the question”. If the judge persists in an arbitrary refusal to admit a well-founded recusal against him or her, the next step would be to lodge a complaint against the judge for depriving us of the ability to exercise the fundamental right to recusal - article 542 of the Penal Code - and even a complaint to the General Council of the Judiciary for the extremely serious disciplinary offense of breach of duty to abstain. It would also be possible to bring a civil lawsuit claiming that the judge has violated his or her duty of allegiance to the Constitution, which constitutes another very                                                                                                                 62 OLJP art. 224 indicates who must instruct the recusal, depending on the judge or court that has been recused.