N/A

This case constitutes a clear example of how the use of the disciplinary regime can, at times, collide with the judges' right to freedom of expression. Prior to analyzing the Court's reasoning, it is interesting to understand the arguments raised by the appellant in his complaint. Judge Vidal appealed the disciplinary sanction on procedural grounds (expiration and rejection of evidence) and substantive grounds. We are particularly interested in understanding and analyzing the substantive reasons alleged to request the nullity of the disciplinary measure.

The judge requests the nullity of the sanction, among other reasons, because: i) he believes that drafting a constitution and participating in events organized by civil society had a scientific, rather than political, intention; ii) he also argues that the obligation to uphold and enforce the constitution does not require ideological adherence to it; iii) he criticizes that the sanction is based on the interpretation of a disciplinary provision? with an essentially indeterminate content, "ignorance of judicial duties,”; and finally iv) he denounces the indeterminate content of the concept of "constitutional loyalty" (Article 417.1 Organic Law of the Judiciary), reproaching the Council for attributing to him the violation of two offenses whose content actually overlaps. Thus, the judge understands that he is accused of violating judicial duties (Article 417.14 Organic Law of the Judiciary) and failing to fulfill the duty of loyalty (Article 417.1 Organic Law of the Judiciary), when in reality, the former is a manifestation of the latter.

The Court ultimately rejected all allegations and upheld the sanction imposed by the Council on Judge Vidal. To do so, it relied on various reasons. Firstly, it established that when taking office, the judge promises to uphold the constitution (Article 318 Organic Law of the Judiciary) and is bound by the compliance of the constitution (Articles 9.1 and 9.3 of the constitution), and the rule of law (Article 117 Organic Law of the Judiciary). In this sense, the Supreme Court understood that participating in a process advocating for Catalonia's independence through a constituent process outside the constitutional reform procedures is contrary to the judge's statutory mandate to uphold the constitution. This mandate is not limited solely to actions taken in the exercise of judicial functions but extends to actions outside the judges’ work.

Secondly, the Court emphasized the distinction between violating judicial duties (Article 417.14 Organic Law of the Judiciary) and being disloyal to the constitution (Article 417.1 Organic Law of the Judiciary). The Supreme Court argued that the scope of application of both types of offenses is different. The former can occur when the judge acts in the exercise of judicial functions, but also when acting outside of it. Meanwhile, the latter occurs only when the judge acts in the exercise of judicial functions. However, the Court asserted that this did not preclude actions taken outside the scope of judicial functions from affecting the appearance of independence and impartiality that the judge must maintain when exercising judicial functions. Otherwise, it would erode public trust in the justice system. Hence, it considered the judge to have committed two different disciplinary offences.

The Supreme Court wanted to make it very clear that Mr. Vidal is not suspended for his ideas but for collaborating with citizen groups that promote a political process in Catalonia outside or directly against what is established in the constitution and its reform clauses. Alongside the majority vote, the judgment included a series of concurring and dissenting opinions. For example, the concurring vote of Justice Sieira Míguez emphasizes that any act of political nature in which a judge participates, presenting themselves in their capacity as a judge, constitutes a violation of their judicial duties (Article 417.14 Organic Law of the Judiciary) that may jeopardize the appearance of independence and impartiality, thereby undermining the principle of public trust in the justice system.

On the contrary, Justice Garzón Herrero expressed disagreement with the majority. According to the dissenting judge, the majority demands a positive adherence to the constitution from the judge, as if Spain were a model of militant democracy, which is not the case. In this regard, the judge refers to the jurisprudence of the European Court of Human Rights (ECtHR) to point out that judges, despite the duty of prudence, are also entitled to the right to freedom of expression. Justice Menéndez Pérez also dissents from the majority. In his view, the facts do not prove Judge Vidal's lack of loyalty to the constitution, as there is no evidence that he advocated for its violation. Despite being a borderline case, he does not consider that judge Vidal has violated statutory obligations that would cast doubts on his impartiality and independence since he always remained prudent and measured in his statements.

As can be seen, the resolution of the case was not unanimous, and only the appellant and one of the dissenting judges relied on the jurisprudence of the European Court of Human Rights (ECtHR). Interestingly, there is no reference to European jurisprudence in the majority opinion of the Supreme Court.