On the present trial in the Spanish Supreme Court of twelve Catalan political and social movement leaders (Cartes per la República)
Aquesta carta s’ha escrit per oferir una explicació detallada i la més acurada possible de les irregularitats del judici a l’1 d’octubre.
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I am sending you this email as a member of a volunteer group of ordinary citizens of Catalonia. We are committed to exposing the serious decline in democratic freedoms and human rights that has been taking place in Spain since the people of Catalonia started calling for a Scottish-style referendum on independence almost eight years ago.
I am raising this issue with you as a democrat, irrespective of your opinion on the issue of Catalan independence. I would very much appreciate your taking a few moments to read the following important background information on the trial of twelve Catalan political and social leaders that is presently taking place in the Spanish Supreme Court in Madrid.
In this trial, the accused, nine of whom have been in preventive detention for up to 18 months, face a possible total of 177 years jail for allowing the citizens of Catalonia to vote on the future status of their country in the referendum held on October 1, 2017. The nine leaders in preventive detention have all been accused of “rebellion”: under the Spanish criminal code this will entail prison terms ranging from 15 to 30 years if they are found guilty of “violent and public revolt” against the Spanish government.
Two of the accused, former Catalan National Assembly president Jordi Sànchez and Òmnium Cultural president Jordi Cuixart, are community organisers who are also accused of rebellion for having taken part in a spontaneous, thousands-strong peaceful demonstration on September 20, 2017 against a Spanish Civil Guard search of the premises of the Catalan economy ministry.
The former president of Catalan parliament, Carme Forcadell, faces the charge of rebellion simply for having allowed the Catalan parliament to debate the legislation that enabled the October 1 referendum.
Against this background there are solid grounds for serious misgivings about the impartiality of Spanish justice system: the material below provides ample evidence of the causes for concern.
A. Incomplete separation of powers and lack of impartiality
1. The process of appointment to the senior levels of the Spanish judiciary assigns a key role to the country’s major political parties, the People’s Party (PP) and the Spanish Socialist Workers Party (PSOE). For an explanation of how this has affected Catalonia, see this article by Maastricht University professor Michal Natorski and this background article by Spanish and Catalan history professor at Cardiff University, Andrew Dowling.
2. The Audiencia Nacional (National High Court), which initially ordered the preventive detention of the defendants, is the direct continuation of the Court of Public Order of the era of the dictatorship of Francisco Franco (1939-1975), and has been widely questioned by global human rights organisation.
3. Evidence of anti-Catalan bias within the Spanish judiciary has appeared in leaked chats between judges, in which the political situation in Catalonia is compared with that of Nazi Germany (as reported in this item in Catalan News).
4. On November 19, 2018, the degree of possible party political manipulation of the Spanish justice system was revealed by an article in the online newspaper El Español. It disclosed a whatsapp message from PP Senate spokesperson Ignacio Cosidó to PP MPs, in which he boasted that their party would be controlling the trial of the Catalan leaders “via the backdoor”.
5. The investigating magistrate in the case, Pablo Llarena, has so far refused to respond to a summons to appear before the Belgian legal system to answer a suit for partiality and bias brought against him by former Catalan premier Carles Puigdemont. (Any legal expenses Llarena incurs will be met from the Spanish public purse.)
B. Irregularities in bringing the case to court
Eminent jurists in Spain have criticised the case against the twelve Catalan defendants since its inception, as have international judicial associations. The irregularities noted by observers in the preparation of the case include the following:
1. The entire case should have been handled by the Supreme Court of Justice of Catalonia (TSJC) and not have been shared between the Supreme Court in Madrid, the National High Court and the TSJC. This decision means that defendants in one part of the case will be witnesses in another and that the full bench of the Spanish Supreme Court will, in the case of appeal, sit in judgment on the verdict of its Second Chamber (hearing the present Catalan case).
2. In the preliminary hearings previous to the decision in favour of preventive detention, the presiding National High Court judge gave the defence only 24 hours to prepare its brief.
3. The very broad definition of “rebellion” and “sedition” being applied by the prosecutions in the case risk undermining the rights of freedom of assembly, expression and association. According to a statement by the International Commission of Jurists:
The ICJ is concerned that prosecutors, and the Supreme Court in admitting the indictment in the case, have ascribed an unduly broad meaning to the offence of “rebellion” under article 472 of the Criminal Code.
According to that article, the offence requires violent insurrection to subvert the constitutional order.
But the referendum organizers are not accused of using or advocating violence.
Rather, they are being tried on the basis that they should have foreseen the risk of intervention and the use of force by the police.
It is therefore alleged that the defendants were criminally responsible for the violence that ensued from their decision to carry on with the referendum, despite it being declared illegal.
4. Defence counsel, conscious that the defendants may well not receive a fair trial in Spain, have been lodging appeals to Spanish jurisdictions since the beginning of the case, with a view to exhausting the avenues within the Spanish justice system and having the case arrive in the European Court of Human Rights (ECHR) as rapidly as possible. Under Spanish law, the Constitutional Court is required to bring down a ruling on an appeal within 30 days, but after one year it had not made any relevant decisions. At this point, in early December 2018, four of the prisoners went on a hunger strike for 21 days in order to force the court to act on their appeals, which it eventually started to do.
5. The trial is proceeding in the absence of the leader of the alleged rebellion and sedition, former Catalan president Carles Puigdemont. According to the University of Seville constitutional law Professor Javier Pérez Royo, this is simply unconstitutional because “it is absurd to think the ministers, who decided nothing, can be judged and found guilty of rebellion in the absence of the president, who decided everything.”(Ara, July 13, 2018)
C. Role of Vox as the popular prosecution
The Spanish legal system has a unique institution called the popular prosecution (acusación popular), the purpose of which is to allow representation of community and/or public interest in specific cases. Popular prosecutions usually represent groups of citizens in some way affected by a case but not directly party to it.
In the present case, the popular prosecution is the far-right party Vox, which not only advocates the elimination of Spain’s present system of regional government, enshrined in the 1978 Constitution, but has called for a total sentence of 620 years jail for the defendants, as explained in this article from Spain in English.
Vox’s lawyers also opposed the release from preventive detention of former Catalan interior minister Joaquim Forn when he was found to be suffering from tuberculosis. Even though the Prosecutor-General agreed with Forn’s request for release, the judge ruled in favour of the Vox position and Forn remained in prison.
D. Contradictions between rulings of Spanish and other European jurisdictions
On October 30, 2017, Catalan President Carles Puigdemont went into exile to Belgium with three ex-ministers, while a fourth decided to go to Scotland. He took this course of action in order to avoid arrest within Spain and to preserve Catalan institutions, which had been previously annulled by the vote of the Spanish Senate to enable Article 155 of the Spanish Constitution (which annuls regional self-rule).
Unlike the Spanish judiciary, courts in Belgium, the United Kingdom, Germany and Switzerland allowed the Catalan leaders in exile to remain at liberty while their extradition cases were being heard. When European courts began ruling on Spain’s extradition requests against the exiles, the Regional High Court of Schleswig-Holstein refused to extradite Carles Puigdemont on the rebellion charge, being unconvinced of the evidence for such a crime, while it supported the case for extradition on the lesser charge of embezzlement of public funds
The Spanish Supreme Court at this point dropped its arrest and extradition demands for all of the exiled politicians, who are now completely free in Europe but still wanted in Spain. The contrast in Spain’s approach is one of the reasons why people refer to the nine defendants held in Spanish jails as political prisoners.
E. Mistreatment of the political prisoners
The arrest and detention of the Catalan political prisoners was marked by incidents of mistreatment denounced by defence lawyers. The mistreatment included their being handcuffed in the back on the police vans; strip-searching; and being made the butt of obscene jokes. No law enforcement or prison officer has been sanctioned for this behaviour.
The present trial is the result of a political decision of the previous Spanish government of Prime Minister Mariano Rajoy, namely to treat the challenge represented by the Catalan movement for independence as a matter for the criminal justice system.
The Spanish Supreme Court is being asked to mete out an exemplary sentence to deter dissent regarding the present structure of the Spanish state, as well as other important political issues such as the legitimacy of the Spanish monarchy and freedom of speech.
Since holding a referendum was actually removed as a crime from the Spanish criminal code in 2005, the charges of rebellion and sedition had to be adopted by the prosecutions to enable sufficiently punitive sentences.
This strategy has been subjected to criticism by numerous Spanish jurists and legal academics, In November last year 120 Spanish law professionals called for the release of the Catalan prisoners and the dropping of charges for “non-existent crimes”.
The entire case against the Catalan leaders is based on highly questionable Civil Guard and Spanish National Police reports asserting degrees of crowd violence on September 20 and October 1, 2017 that might substantiate the charge of rebellion.
They differ starkly from the version of events given by international observers and media. Instead of police violence resulting in injuries to 1066 voters (figure of the Catalan Ministry of Health), these reports blame the passive resistance of voters outside polling stations for the use of force by the Spanish law enforcement authorities and for causing injuries to these authorities themselves.
However, it is is clear from the vast amount of video evidence available that, as Amnesty International and Human Rights Watch have stated, the responsibility for the violence lay with the Spanish forces of order.
As for the Spanish Prosecutor-General and Solicitor-General, they have not only shown no interest in establishing the actual role of the Civil Guard and Spanish National Police in the events in question, but have effectively been acting as their attorneys in the trial.
G. Possible action
You might want to raise the issue in the parliament of which you are a member and/or help create a group of MPs in your legislature who are concerned that justice and democracy prevail in the Catalan case. Examples of such groups are the UK parliament’s All-Party Parliamentary Group on Catalonia and the European Parliament’s EU-Catalonia Dialogue Platform.
[For legal professionals:]
You might want to raise the issue in your Bar Association, have it pass a motion of concern and/or offer to support or participate in the International Trial Watch team that is presently monitoring the trial.
[For trade unionists:]
You might want to raise this issue in your union and have it express formal concern at the trial proceedings and the treatment to which the defendants are being subjected.
Any resolution or motion adopted should be sent to: [DETAILS according to country]
Please do not hesitate to contact me if you would like further information about this breach of human rights and due process in a Europe that prides itself on being a defender of democratic rights.
P.S. I enclose some links to English-language websites that are covering the present trial and the Catalan situation more generally.
Daily coverage of Catalan trial
- International Trial Watch
- Live Blog | Catalonia on Trial: The Spanish State vs. The Catalan 12
- Catalan Public TV: Catalan Independence Trial
- Spain in English: The Catalan Trial
What happened on October 1, 2017?
Human Rights Situation