Justice Without Responsibility Is No Justice at All

By Ernesto Díaz-Bastien

Is it just for a person to be absolved by a criminal court after having been accused for eight or ten years? It could be that a declaration of innocence (“justice has been served” is sometimes declared) masks the harsh reality of injustices suffered during the period during which one lives under suspicion. Today, our compensation system is not up to the task of compensating a person for the damages suffered for having been investigated and subjected to legal procedures and, therefore, injured. When, in addition to being accused, the person is subject to injunctions, bail, frozen bank accounts, and restrictions on leaving the country or moving freely, the situation becomes dramatic and hard to repair. When the media covers that process, the damage to the person’s reputation and public image is simply and tragically irreparable. This week, along these lines, the 38 accused with respect to Bankia’s public offering were absolved.  All of them were absolved.  Will anyone require that the district attorneys or judges declare the type of probability of conviction they calculated beforehand?  Of 38 accused, 38 were absolved. Such a result certainly raises questions about the accusers.

In some sense, this is the case because the judicial system also suffers from the lack of any mechanism with which to hold the accusers responsible. The fact is that in our country, beyond mere abstract legal formulas, the law does not actively hold the actor responsible.  Because of this, no one fears that improper conduct of this sort will come back to haunt him.

Nevertheless, it seems clear that if a charge is made, it is important to act responsibly so as not to drag out unnecessarily a situation that is in itself a sentence. Those who deal out justice should undoubtedly be independent.  They should also be held accountable for their actions in order to guarantee that all citizens’ rights are protected. Independent, of course; but responsible, too.

Raising the issue of judicial and prosecutorial irresponsibility reveals the predicament of control.  Justice without control, however independent it may appear, would be a justice with fewer guarantees, and by no means true justice.  How can control be exercised democratically, then? In the terms foreseen by the prevailing law, control over justice is not currently sufficiently well established.  Rather, it is disperse, politicised and inefficient.  The system must be modified in order to admit evaluation mechanisms similar to the Anglo-Saxon concept of accountability.  Systems like the American one serve as inspiration in many regards.  Judicial and prosecutorial responsibility is imperative, in terms of being held to account for how they use the enormous powers conferred on them by society through the State.

Judges and prosecutors must be held to account, because only when there is an efficient mechanism for doing so can the system have the prestige and legitimacy necessary for maintaining its independence. The democratic system requires it, and it would vaccinate us against the temptations of populism and demagoguery, which unfortunately are not unheard of in our country.  There is already talk of “judicial populism,” which builds from the words that define it. In the words of a master: “The world was so new that many things lacked terms to define them;  In order to mention them required pointing to them with your finger.”  It is alarming that judicial populism has already become a term.