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Repression against the Catalan Independence Movement

THE CATALAN TRIAL

Generalitat de Catalunya

On 14 October 2019, the Spanish Supreme Court announced its decision regarding the so-called Catalan trial, a criminal proceeding against twelve Catalan political and civil society figures for their role in the events surrounding the Catalan referendum on self-determination of 1 October 2017. The sentences sum up to almost 100 years of prison for sedition, misuse of public funds and disobedience. Below we document extracts from the statement of the Catalan Ministry of Foreign Activities, Institutional Relations and Transparency.(1)
The trial began on 12 February 2019 and was remitted for decision four months later, on 12 June 2019, after 52 sessions and the testimony of 422 witnesses (80% of those called by the prosecution being members of the Spanish police forces) and 16 experts.
Apart from the State Prosecutor’s Office and the Spanish Attorney General’s Office, which represented Spain in court, the far-right political party Vox took part in the proceedings as private prosecution. In line with its aggressive anti-Catalan rhetoric and almost sacred notion of Spanish unity, Vox asked that the defendants be given the harshest possible penalties, demanding prison sentences of up to 74 years.
Nine of the twelve defendants—six former ministers, the former President of the Parliament of Catalonia and two grassroots activists—have spent nearly two years in pre-trial detention, since October or November 2017, or March 2018, depending on the defendant.
Although part of the case, the former President of Catalonia, Carles Puigdemont, and four of his ministers did not stand trial, as they are currently living in exile. Despite being accused in Spain, the European Arrest Warrants initially issued against them were eventually withdrawn following a number of decisions by European courts dismissing Spain’s extradition requests. The Supreme Court’s verdict is, without a doubt, an unacceptable ruling and a historical error. From the onset of the trial, the Government of Catalonia denounced the political nature of the proceedings, as well as the fact that the defendants were being judged for their democratic ideas. The Government of Catalonia has always argued that the only way out of this conflict is through dialogue and negotiation, rather than courtrooms and prison cells.
Criticisms of the trial have not been voiced from within Catalonia alone, however. Several international actors have also spoken up, including the United Nations itself, through its Working Group on Arbitrary Detention, which has issued two opinions demanding the immediate release of seven of the Catalan political prisoners. Other international organizations that have taken a stance in regard to trial-related matters, such as the pre-trial detention, include the UN High Commissioner for Human Rights and the International Commission of Jurists, in addition to manifestos, endorsed by figures from a range of countries, on the need to find a negotiated solution to the Catalan issue.
The Government of Catalonia wants to stress that the impact of this verdict extends far beyond Catalan borders. It has the potential to lead to a Spanish State where dissidence is criminalized and where Spanish, and therefore European, citizens’ civil and political rights are infringed upon.

THE CHARGES

The defendants were accused of the following crimes:
REBELLION: A »violent and public uprising« punishable by imprisonment of up to 25 years. The only precedent in modern Spain was the attempted coup d’état by Lieutenant-Colonel Tejero on 23 February 1981, when armed forces stormed the Parliament and tanks were deployed in the streets.
Sedition: A »public and tumultuous uprising« by force or by unlawful means to obstruct the implementation of the law carrying a penalty of up to 15 years in prison.
Criminal Conspiracy: Offence introduced to prosecute the activities of groups committing serious illegal acts (e.g. terrorism or drug trafficking). The offence of criminal conspiracy exists regardless of whether or not the criminal group was able to execute the intended illegal act.
Misuse of public funds: Crime committed when those who have the power to administer public funds use them for private purposes, adversely affecting the assets managed.
Disobedience: Charges of disobedience have been issued in Catalonia in recent years. In March 2017, former President Artur Mas and two of his ministers were convicted of disobedience for their role in organizing a non-binding referendum on independence on 9 November 2014.

THE SUPREME COURT’S RULING

The Spanish Supreme Court issued almost 100 years of imprisonment for the nine Catalan political and grassroots leaders currently imprisoned. The sentences are between nine and 13 years of prison for sedition. The Spanish Supreme Court published the verdict in the morning of 14 October 2019, four months after the trial ended in Madrid. The highest prison sentence is for the former Vice-president of Catalonia, Oriol Junqueras, who was condemned for 13 years’ imprisonment for sedition and misuse of public funds. He was also banned from holding office for 13 years. The high court in Madrid also issued 12 years’ imprisonment and a 12-year’s ban from public office for the former ministers Raül Romeva, Jordi Turull and Dolors Bassa for the same crimes as Vice-president Oriol Junqueras. Regarding, Carme Forcadell, the former President of the Catalan Parliament was sentenced to 11 years and a half in prison, while the former ministers Joaquim Forn and Josep Rull were acquitted of misuse of public funds, but they were found guilty of sedition. They were sentenced to 10 years and a half in prison. The grassroots leaders, Jordi Cuixart and Jordi Sànchez, who were the first to be jailed, have also been sentenced with nine years in prison. Regarding those ministers who are not in custody, Carles Mundó, Meritxell Borràs and Sant Vila, they were found guilty of disobedience and have been fined during 10 months and banned from holding office for one year and eight months.

KEY ARGUMENTS

With this verdict, of almost 500 pages, the Supreme Court assumes the request of the Spanish Attorney General’s Office, who called for imprisonment for sedition with misuse of funds. The judges consider that violence has been proven because it must be »instrumental, functional, preordered in a direct way, without intermediates«. The judges also emphasized that there was »violence to achieve secession, not violence to create a climate or a scenario in which a subsequent negotiation becomes more viable«. In addition, the Court values that, in order to carry out the crime of sedition, the defendants must have had to misappropriate public funds, in advance.

AN UNACCEPTABLE RULING

From the onset of the trial, the Government of Catalonia denounced its political nature and motivations, stressing that negotiation and dialogue - rather than courtrooms and prison cells - are the only way out of the current political impasse, and calling for the only acceptable outcome: the complete acquittal and liberation of all the defendants. In the Government of Catalonia’s opinion, this verdict is a historical error and evidence that the defendants of this political trial have been judged for their democratic ideas. The spurious interpretations of the Criminal Code, the irregular investigations, the unorthodox deviations from case law and established juridical practice attest to the struggle of the Spanish judiciary to legally punish the defendants’ political activities.
As pointed out by International Trial Watch in its final report on the trial, »when all the investigated actions are alien to the Criminal Code and it must be overstretched in order to keep sustaining the accusation so that these actions are punished, an unequivocal sign appears that behind such charges there is a prosecution not of criminal conducts but of political ideas«.(2)
The Government of Catalonia has always sustained that this issue cannot be resolved through further conflict, but rather politically and democratically, and with a key focus on dialogue. However, the trial has made it clear that Pedro Sánchez is not only incapable of resolving the situation, but entirely unwilling to. This fact is highlighted by the penalties asked for by the State Prosecutor’s Office and the Spanish Attorney General’s Office, both of which were appointed upon the Spanish Government’s proposal. In addition, this ruling will now put more pressure on the international community. It is time for global actors to step up; nobody can stay silent in light of this unacceptable verdict, whereby fundamental rights have been violated. Silence is not a solution anymore: it has failed to fix the problem and will now only serve to further delay its resolution.
So why does the Government of Catalonia believe that this Supreme Court ruling is unacceptable, as repeatedly denounced?

THE CHARGES WERE UNACCEPTABLE

1. They seek to criminalize a decriminalized action

The referendum of 1 October was not a criminal offence under Spanish Law. In 2005, the Spanish Parliament adopted Organic Law 2/2005, which modified the Spanish Criminal Code by removing the articles that had hitherto defined this matter as a crime. As stated in the Preamble to Organic Law 2/2005, those articles »refer to conducts that do not have the sufficient entity to deserve a criminal reproach, especially if the foreseen penalty is prison […]. The exercise of the powers to summon or promote consultations by those to whom they are not legally attributed is perfectly controllable by means other than the criminal ones«.

2. They seek to deliberately depict a constitutional crisis and a criminal act

The deliberate misrepresentation of political activities as criminal rather than unconstitutional seeks to obscure the political nature of the trial and to lend a façade of legal rightfulness to the defendants’ incarceration. Professor López Garrido, the author of the Criminal Code’s article on rebellion, argues that »the proceedings have shown […] a very questionable blend of what is unconstitutional […] with what is contrary to the Criminal Code. A declaration of independence […] is not a crime if it does not use violence; but it is radically unconstitutional […]. What is unconstitutional is not to be confused with what is criminal. […] We have witnessed a bipolar trial, in which the political and criminal domains have been confusedly mixed«.

3. They do not fulfil the requirements set by the Criminal Code itself

The crimes of rebellion and sedition (Arts. 472 and 544-545 of the Spanish Criminal Code) both hinge on the use of violence against the established order. Indeed, in his final statement, the State Prosecutor insisted that »the violent nature of an uprising does not mean there has to be either serious or armed violence«. However, the Constitutional Court determined that, »by definition, [the crime of] rebellion is committed by a group which has the intention to illegitimately use weapons of war or explosives with the aim of destroying or severely damaging the constitutional order« (STC 199/1985).

As pointed out by former Supreme Court Judge Joaquín Giménez, »there is violence in many general strikes: roads are blocked, cars are burnt. Not all violence can be used to invoke the criminal offence of rebellion«. Even Professor López Garrido – again, the author of the Criminal Code’s article on rebellion – argues that »the mere fact that the Government […] did not think of invoking a state of siege or of emergency after 1 October proves that the alleged ›violence‹ […] did not have the necessary strength to endanger the territorial integrity of the State, which is the interpretation of article 472 of the Criminal Code«. Furthermore, the UN Working Group on Arbitrary Detention stated that »the Spanish Government […] did not provide information on specific activities carried out by the defendants which could have implied violence and thus constitute an offence in accordance with the applicable law«.

4. They have been politically motivated

The insistence on the charges of rebellion and sedition is not a coincidence. Under the Spanish Criminal Procedure Law (Art. 384 bis), prisoners facing charges of rebellion can be temporarily barred from holding public office. Indeed, the choosing of these charges (over others, such as disobedience, which was used to prosecute the organization of the 2014 non-binding referendum) has been instrumental in keeping nine of the defendants in pre-trial detention, as well as in artificially altering the democratic choices of the Catalan people:
Parliament of Catalonia (December 2017): Encroachment on the judiciary in the normal functioning of the Parliament of Catalonia prevented nine of the defendants and a total of 15 democratically elected pro-independence MPs from discharging the functions that the citizens of Catalonia had entrusted to them. Moreover, it interfered in the election as President of Catalonia of three MPs, led to the resignation of eight MPs and eventually resulted in the loss of the parliamentary majority of the pro-independence parties.
General elections (April 2019): Five of the Catalan leaders in prison were elected in the general elections held in April 2019. Former Vice-President Oriol Junqueras, grassroots leader Jordi Sánchez, and former ministers Jordi Turull and Josep Rull were all elected Members of the Spanish Parliament, whereas former Minister Raül Romeva won a seat in the Senate. They were suspended and thus stripped of their rights as elected representatives.
Elections to the European Parliament (May 2019): Three Catalan pro-independence leaders were elected Members of the European Parliament in May 2019: former President Carles Puigdemont and former Minister Toni Comín, both exiled in Belgium, together with former Vice-President Oriol Junqueras, currently in pre-trial detention. Despite the popular support received (1,720,500 votes, 49.7%), they have been unable to assume their duties as MEPs.

THE PROCEEDINGS WERE IRREGULAR

The Government of Catalonia considers the trial proceedings to be riddled with irregularities:

1. Ignoring the procedure to follow when fundamental rights are at stake

No one should be prosecuted for exercising fundamental rights. As stated by ITW’s first report on the trial, in this regard, »the formulation of charges would be inverting the interpretation order constitutionally enforceable«. In other words, the »charges do not take into account the fact that some of the defendants’ actions may be covered by fundamental rights«, such as freedom of assembly or the right to demonstrate. It should have been initially established whether this was the case, because »then defendants could have not possibly committed any offence«. Moreover, international observers have criticized the Court’s repeated refusal to allow questions on fundamental rights (9th Week Report), and voiced their concern that »questions raised by the prosecution point at a criminalization of the practical exercise of the right to demonstrate« (3rd Week Report).

2. Based on an irregular investigation

As the Spanish media outlet Público put forth in a number of articles published in 2018 and 2019, the charges rested on evidence gathered as a result of a »prospective investigation« launched in 2015 to investigate a political movement and its potential implications, rather than specific facts. As pointed out by ITW, »this proves that a general cause – proscribed in our legal system – was opened« and the existence of »a whole pre-process procedure in which the defendants did not have the possibility of knowing or challenging the materials already gathered«. Along the same vein, Público’s research revealed that the official in charge of the investigations used Twitter to attack »politicians whom he investigates in the three court cases open in relation to the 1 October [referendum]«, »pouring his political ideas into investigations that ought to be objective«.

3. Violation of the right to an ordinary judge predetermined by law

With regard to the right to be judged by an ordinary judge predetermined by law (Art. 24.2 SC and Art. 6 ECHR), ITW reports that »the manifest lack of competence of the National Court has vitiated the procedure as null«, going on to say that »the transfer of the case to the Supreme Court cannot amend the previous irregularities. Neither of them is the constitutionally recognized ›natural judge‹. Instead, and according to the legal system in force, the Superior Court of Justice of Catalonia is«, continues. On the other hand, the United Nations Working Group on Arbitrary Detention was not convinced that »the courts currently handling the alleged offences of this case were the ones predetermined by law« (§135), thus concluding that the defendants’ right »to be judged by a competent and impartial Court has been disregarded« (§136).

4. Violation of the right to an impartial tribunal

As stated by the report by the Catalan Ombudsman, »from an objective point of view, judicial impartiality has been compromised when, from the most senior ranks of the judiciary, including the President of the Supreme Court, public statements have been made in the spirit of considering that the judiciary’s mission […] is to guarantee the unity of Spain«.
Likewise, the Catalan Ombudsman recalls that »the examining magistrate of the Supreme Court, in some of his interlocutory orders, appears to feel personally offended by the alleged crimes he is investigating, and thus shows a lack of impartiality that impairs his capacity as a judge, even as an examining magistrate«. The latter criticism refers to the use of personal considerations in orders issued by Judge Llarena (e.g., when he evokes the pro-independence project as »the strategy we are suffering through«). This contravenes the Constitutional Court’s position that a judge cannot »demonstrate or externalize a previous state of mind in favor or against [the defendant]« (STC 140/2004).
Similarly, ITW reports indicate that the defenses repeatedly questioned the impartiality of »at least four of the seven magistrates, as they were part of the courtroom that accepted the complaint submitted by the prosecution, and had studied the details of the case«, going on to say that »they are not fit to judge these facts, as they are contaminated given the legal assessment they made during the pre-trial phase«.

5. Violation of the right of appeal

In line with the European Convention on Human Rights (Art. 2, Protocol 7) and the International Covenant on Civil and Political Rights (Art. 14.5), Spanish Constitutional case law has established that »among the guarantees of the criminal proceeding generically referred to by the Constitution in its Art. 24.2, there is the appeal in a higher Court« (STC 42/82). Additionally, European Democratic Lawyers (AED-EDL) claimed that »the fact that the defendants are being tried in the Supreme Court eliminates the possibility of appealing. An eventual conviction would have to be taken up to the Constitutional Court, with the procedural limitations this presents«.

6. Unacceptable pre-trial detentions

Pre-trial detention for nine of the twelve defendants is a completely unjustified measure given the inexistence of any alleged crimes that would serve to justify it, given its exceptional nature and, among other reasons, given its justification on ideological grounds. Criticism of the measure’s disproportionate nature has been echoed by a number of international organizations (see page 14). The United Nations Human Rights Council, through its Working Group on Arbitrary Detention, has stated on two occasions (May 2019 and June 2019) that these incarcerations qualify as arbitrary pretrial detention.

THE LACK OF INDEPENDENCE OF THE SPANISH JUDICIARY

Independence of the judiciary is fundamental in a democratic society and crucial for public confidence in its institutions. The GRECO Interim Compliance Report on Spain adopted in December 2017 concluded that none of the recommendations contained in the Fourth Round Evaluation Report had been implemented satisfactorily, including reforming the legal framework of the General Council of the Judiciary. GRECO also recommended reviewing the appointment of the higher ranks of the judiciary. Similarly, a judicial association issued a statement denouncing the outrageous management of the appointment policy by the General Council of the Judiciary.
Spain is the sixth worst member state in the EU’s judicial independence perception index. According to the European Commission’s Justice Scoreboard 2018, 49 percent of Spaniards believe that the independence of their courts and judges is ‘quite bad’ (32%) or very bad (17%). That is almost one out of every two people surveyed. The only member states with a worse score were Italy (53%), Slovenia (54%), Bulgaria (57%), Slovakia (58%) and Hungary (69%). A year ago, Spain was the third-to-last country on the list.
This perception index was backed by a number of polls published after the Spanish Government’s decision to call for a general election in April 2019. One survey highlighted that 68.5% of Catalan respondents doubted that the defendants would have a fair trial. In addition, the judges of the Supreme Court, who will write the Catalan trial’s verdict, are chosen by the General Council of the Judiciary, which is chosen by the Spanish Congress and the Senate. This mechanism of selection has been harshly criticised by the Council of Europe, through the Group of States against Corruption, as it does not guarantee the independence of the judiciary.

CONSEQUENCES BEYOND CATALONIA

The stakes of this trial go far beyond Catalonia. The object of trial and verdict can set a precedent that may eventually affect political dissidence in Spain as a whole, as well as the freedom of demonstration and citizens’ civil and political rights in Spain and, hence, in the European Union.
Spain has already seen such cases in recent years, including the imprisonment of two puppeteers who allegedly praised terrorism in a theatre show in Madrid in February 2016. Another example is Valtònyc, a rapper condemned for alleged slander, defaming the crown and glorifying terrorism in his lyrics, who, days before he was due to begin a prison sentence of three and a half years, fled to Belgium in May 2018 to avoid arrest.
The Public Safety Law, or ›gag law‹ as it is popularly known, was passed by the Spanish Government, then led by Mariano Rajoy, in 2015 and it is still in force today. This law was born amidst fully fledged opposition and major social rejection, as it was interpreted as a threat to the exercise of the freedom of expression and the right to demonstrate. In response to this, Amnesty International published the report Tweet… If You Dare, which criticized how the vaguely worded counter-terrorism laws in Spain restrict freedom of expression.
Apart from this controversial law, the Supreme Court’s verdict concerning the Catalan trial will set another precedent on the base of criminalizing dissidence and muzzling the Spanish society. Former Vice-President of the Spanish Constitutional Court and former judge of the European Court of Human Rights Luis López Guerra argued that »if the concept of violence is unduly extended – if we call violence any kind of action – we are endangering the exercise of rights such as the freedom of expression, of demonstration or of assembly. And this trial is being used to define them«.
In the same vein, a manifesto by over 300 Spanish jurists and law professors concluded that »in the public prosecutor’s mind […] the danger lies in promoting demonstrations, thus turning the exercise of fundamental rights into a crime«. Similar concerns were voiced by the UN Special Rapporteur on the Right to Freedom of Opinion and Expression, who claimed to be »concerned that charges of rebellion for acts that do not involve violence or incitement to violence may interfere with rights of public protest and dissent«.
Not surprisingly, the Parliamentary Assembly of the Council of Europe announced it would look into the situation of incarcerated politicians in both Spain and Turkey following a motion expressing concern »about the growing number of national, regional and local politicians prosecuted for statements made in the exercise of their mandate, in particular in Spain and Turkey«.
All in all, the ruling against the Catalan leaders has the potential to contribute to the formation of a muzzled society and to an environment in Spain where dissidence is criminalized. Therefore, this worrying drift is not only a problem for Catalonia, but for the whole of Spain and even the entire European Union. As the European Network of Councils for the Judiciary wrote in a letter to the President of the European Commission, »the independence of the judiciary is being severely threatened, and the separation of powers between the executive branch and the judicial branch is being dismantled. […] Member States are seeking to use the judiciary in their countries primarily as an instrument for government policy. The destruction of judicial independence will have serious consequences for the citizens of all Member States«.

The Generalitat de Catalunya (Government of Catalonia) is the institution under which the Spanish autonomous community of Catalonia is politically organized consisting of the Parliament of Catalonia, the President of the Generalitat de Catalunya, and the Executive Council of Catalonia.

(1) Some subheadings have been slightly modified by the editors.
(2) See: https://internationaltrialwatch.org/wp-content/uploads/2019/07/ITW-OBSERVATION-REPORT_ENG.pdf.