The Catalan Trial
On the 9th of June of 2017, President Carles Puigdemont, announced the date and the question of the Catalan Referendum of self-determination. On the 6th of september the majority of the parliament approved the law of the referendum and the same day the government of Catalonia approved the decree to arrange the 1-O referendum. On the day after the Constitutional court provisionally suspended the law. The Catalan government disobeyed the suspension of the Constitutional court and defended that voting is not a crime and the fact that they were just applying the political program which won the catalan elections. Also they argued that organizing an allegedly illegal referendum is not a crime in the spanish criminal code.
On the 20th of september the Spanish Police raided more than forty institutions across Catalonia. The main one was in the Catalan Ministry of Economy, in the city center of Barcelona. Thousands of people demonstrated in front of the building since the early morning, when the media published the information. The day finished with no clashes, riots or injured people and the judiciary commission made their job despite the fact that the big demonstration was in just in front of it and the people were angry calling for the release of the people detained that morning. Two days after, the prosecutor’s office denounced Mr. Cuixart and Mr. Sanchez, the two leaders of the main grassroots civil society organizations that called for the demonstration of two day before. The complaint has field without any police evidence and not only against the two civic leaders, but also against
an indeterminate number of demonstrators for a possible crime of sedition (15 years of prision).
On the first october the Referendum took place, despite the fact that the spanish police (the National Police and the Civil Guard) did around 115 violent interventions. As a consequence of the use of their force (also use of rubber bullets and tear gas), 991 people were injured and assisted in health centers. The people voting reacted with nonviolent attitude, just staying in the floor, making civil resistance, but without any direct attack to the police, except a very few amount of people. Human rights observers issued various reports verifying the peaceful attitude of citizens who attended in order to vote. In the same sense, among many others, the Catalan Ombudsman, Amnesty International and various United Nations rapporteurs also issued statements. The Commissioner for Human Rights of the Council of Europe sent a letter to the Spanish Minister for the Interior, highlighting “the disproportionate use of force against peaceful protesters…”.
The participation of the referendum reached a 43% of the population and the Yes won with more than the 90% of the votes. Two weeks after the “Audiencia Nacional” court send Mr. Cuixart and Mr. Sánchez to unconditional prison without bail, both accused of sedition for the demonstration of the 20th of september and for calling the people to vote on the first of october referendum. On 27 of october the Catalan parliament approved a Declaration of independence. On the 30ts of october the the General Attorney of the State presents two different complaints. One against the President of the Parliament, Carme Forcadell, and the members of the Parliamentary Bureau for rebellion, sedition and embezzlement of public funds in the Supreme Court. And the other complaint is filed against the Govern for rebellion, sedition and embezzlement of public funds in front of the “Audiencia Nacional” court. Just three days after, on the 3d of november, the Court decided to send to unconditional prison without bail Mr. Junqueras, Mr. Turull, Mr. Rull, Mr. Romeva, Mr. Forn, Ms. Bassa, Ms. Borràs and Mr. Mundó, all members of the catalan government. The same day the “Audiencia Nacional” court issued an european arrest warrant against President Puigdemont and the dismissed counselors Ms. Serret, Mr. Comín, Mr. Puig and Ms. Ponsatí. On the 24th of November, the Spanish Supreme Court, assumed the cause of the “Audiencia Nacional”, and united all the cases in one.
The Supreme Court investigation judge, Mr. Llarena, finished its work in the summer of 2018. The three accusations (general prosecutor, state’s attorney and the extreme right political party VOX) made the accusations in the autumn of 2018. The three of them made very high accusations and asked for more than 10 years of prison for the majority of the defendants.
The 12 of february of 2019 the trial against the 12 leaders of the catalan independentist movement started in the Supreme Court in Madrid. The trial lasted for more than three months with hundreds of witnesses and thousands of videos.
Even that the resolution is expected for October 2019, most of the politicians are still in pre-trial detention and the development of the trial showed that the accusations criminalized not just a political movement but the exercise of fundamental rights by spanish citizens.
1) FREEDOM OF EXPRESSION
The proceedings attempt to build a case against the 12 leaders based on acts that fall within the exercise of the right to freedom of expression such as speeches (in the streets or in the parliament), interviews, motions in the Parliament, websites or WhatsApp groups. This point of view entails the criminalisation of the expression, promotion and dissemination of political ideas to support a criminal conviction and constitutes a violation of the right to freedom of expression found in art. 10.2 European Covenant on Human Rights (ECHR), art. 19 International Covenant on Civil and Political Rights (ICCPR) and art. 20.1.a Spanish Constitution (SC). Furthermore, this violation could have a dissuasive effect on society regarding the use of a right that constitutes one of the essential foundations of democratic society. The prosecutor criminalizes in its narrative the political motto, ¡No pasarán!, and its use by Mr. Cuixart.
2) RIGHT TO PEACEFUL ASSEMBLY
The accusations, encouraged by the decisions of the Supreme Court itself in this Special Proceedings, convert peaceful acts of protest into criminal acts, violating the right of assembly of Art. 11 ECHR, 21 ICCPR and Art. 21 of the Spanish Constitution. The basis of the motion is the leaders participation and public intervention in and calling for peaceful mobilisations; including, by way of example, the mass rallies of 11 September, the National Day of Catalonia. These events cannot be criminalised, since the same event cannot be both a crime and an exercise of a fundamental right. This was stated by the UN Special Rapporteur Michel Forst on the status of human rights defenders in his report issued December 2018, in which Mr. Cuixart was cited.
3) RIGHT TO FREEDOM
Most of the defendants have been in pre-trial detention for many months. Article 5 ECHR establishes the right to freedom and safety of any citizen as a general principle; a right also included in Art. 17 of the Spanish Constitution and in Art. 9 ICCPR. At the time, the ECHR specified that it is not sufficient for provisional detention to be carried out with the aim of maintaining order and preserving peace. It also established the obligation of case-by-case judicial review, without the possibility of only taking into account the severity of the penalties provided as the sole criterion. In this particular case, the State’s interference in the said right is not duly justified. In addition, there are indicia, arguments and affected subjects indicating that the provisional detention was adopted to intimidate the political independence movement, clearly with purposes falling outside the criminal process.
4) THE RIGHT TO BE PRESUMED INNOCENT
The presumption of innocence, recognised in Art. 6.2 ECHR, Art. 14.2 ICCPR, and 24.2 Spanish Constitution, it obliges all public authorities to refrain from prejudging the outcome of a trial, refraining from making public statements affirming the guilt of the accused. In the present case, in the Spanish legislative chambers, there have been numerous interventions, debates and approvals of motions regarding the possible granting of pardons to the defendants, with the implication being that the State authorities already assume them to be guilty. This and other signs of the absolute lack of respect for the presumption of innocence on the part of the authorities in the context of their repeated and unacceptable statements, and in the absence of any measure designed to protect the presumption of innocence of the accused publicly attacked by the media, the present procedure has become a manifest violation of art. 6.2 ECHR and 14. 2 ICCPR.
5) THE RIGHT TO A FAIR TRIAL
5.1) THE RIGHT TO THE ORDINARY COURT
Art. 6 ECHR, art. 14.1 ICCPR and art. 24.2 of the Spanish Constitution contain provisions regarding the principle that access to the ordinary court established by law is an essential element for a fair trial. Spanish law provides that when a crime is committed in Catalonia, a Catalan court has the jurisdiction to investigate and judge the case. Indeed, the Supreme Court is an exceptional court just for persons with granted immunity, but social leaders (like Mr. Cuixart and Mr. Sánchez) are citizens without any privileges. By maintaining the jurisdiction in the Supreme Court there is a violation of the fundamental right to the ordinary court and the jurisdictional judge.
5.2) THE RIGHT TO HAVE A SENTENCE OR CONVICTION REVIEWED BY A HIGHER COURT
In article 14.5, the ICCPR states that any person convicted of an offense has the right to have a guilty verdict and conviction reviewed by a court at a higher jurisdiction in accordance with the law. In this proceeding the Supreme Court has declared itself to be the sole instance. Its decisions are final and the Constitutional Court will be restricted to examining whether fundamental rights have been respected without entering into considerations of fact or law, without justifying at all the reason why an unprivileged person should submit to such a restriction in this case. This constitutes a violation of the right to a second hearing.
5.3) THE RIGHT TO AN IMPARTIAL AND INDEPENDENT COURT
The right to an impartial and independent court is included in art. 6.1 CEDH and 24.2 of the Spanish Constitution. The lack of independence of the judges of the Supreme Court and the close links between this court and the political power are the result of a structural problem in Spanish justice.
In fact, it was made public that the two main political parties in Spain made an agreement for choosing the president of the criminal courtroom of the Supreme Court Mr. Marchena, the one judging this case, as the president of the General Council of Judiciary. The law states that are the members of the General Council of Judiciary that must elect the president, not the political parties. Mr. Marchena also acted as assistant to the Public prosecutor, appointed by a Government of the Popular party. He was elected to the Supreme Court with the votes of the ten representatives of the Popular party within the General Council of Judiciary. Moreover, a senator of the Popular party sended a mobile message to group of the conservative party saying that with this agreement “they get control the criminal courtroom of the Supreme Court”. Other example is the case for the President of the Supreme Court, Mr. Lesmes. The latter was previously a member of the executive, as Director General of the Ministry of Justice, appointed by former Prime Minister.
The complaint that gave rise to the present proceedings was signed and led by a public prosecutor who was a judge on leave of absence from Chamber that is to decide on the admission, investigation and prosecution of such proceedings. This fact means that the magistrates called to appraise the case have, for 14 years, been fellow members of the same Chamber of one of the parties to the proceedings.
In addition, the Spanish Government has made strong statements attributing the current imprisonment and exile of the main independence leaders to the work of the Spanish Government, and all this in a context of continued international questioning about the methods of appointment of the judicial branch in the state and its harmful effect for the independence and perception of impartiality of justice.
5.4) THE RIGHT TO DEFENSE
There have been numerous procedural violations that make it impossible to consider that we are receiving due process as required by Art. 6 ECHR and 24.2 Spanish Constitution, and such violations have led to a serious situation of defencelessness, mainly regarding three issues:
The conclusion of the summary proceedings: the Court Order of the Chamber that confirms the conclusion of the summary proceedings postpones the examination of the defences’ claims regarding the existence of procedural violations that give rise to defencelessness; infringements which violate the right to effective judicial protection and the right to a fair trial. The postponement of these matters to a later time in the proceedings means that reported violations will continue to be felt during the proceedings. This should lead to the suspension of the oral trial due to the invalidity, as a matter of law, of the court order on the summary conclusion issued by the investigating magistrate. We are dealing with an inquisitorial procedure in which guaranteeing the defendant the right to avail himself of the relevant means of evidence has been dispensed with.
The judicial investigation of Court No. 13 of Barcelona: the investigator of the proceedings in the Supreme Court has merely “brought together” supposedly incriminating material produced outside these judicial proceedings, without any possibility of intervention or contradiction by the parties, and delegated the investigation to other courts, mainly Investigating Magistrates Court No. 13 of Barcelona, and to a certain judicial police unit. Since they were not summoned to those proceedings, it has not been possible to identify the documents or procedural acts against which a claim must be filed, and thus the only way to protect fundamental rights is to be granted access to the said proceedings or to eliminate from these proceedings all the material arising from Court No. 13.
The activity of the judicial police: the inquiries of the judicial police have produced reports that are clearly biased towards social and political processes and do not concern the investigation of facts related to any offence.
In addition, the essential decisions taken in these Special Proceedings are contradictory and arise from attempts to meet a pre-established schedule, designed to interfere with and shape the political landscape in Catalonia.
5.5) LANGUAGE RIGHTS IN ACCORDANCE WITH THE EUROPEAN CHARTER FOR REGIONAL AND MINORITY LANGUAGES, A SIGNED AND BINDING INTERNATIONAL TREATY
The European Charter for Regional and Minority Languages establishes in its art 9.1.a.I that criminal proceedings must provide that “the courts, at the request of one of the parties, shall conduct the proceedings in the regional or minority languages”, a principle that refers to Catalan (which is spoken by 11 million people worldwide), Galician and Euskera, as stated in the spanish ratifying document. The linguistic rights have already been injured and will remain so while the trial is held before the Supreme Court and such injury will not disappear by the fact that the Tribunal “allows” the defendants to declare in one language or another. In the case there are thousands of sheets in Catalan and thousands of hours of video where people speak Catalan. The Supreme Court does not know that language. Any Court located in Catalonia, yes.
5.6) THE PRESENCE OF A CHAUVINISTIC AND XENOPHOBIC PARTY SUCH AS VOX FILING A CIVIL MOTION FOR ELECTORAL PURPOSES UNDERMINES THE ESSENCE OF THIS PROCEDURAL TOOL AND CONTRADICTS INTERNATIONAL COMMITMENTS
We draw attention to the warped and twisted use, for electoral purposes (in May there are local elections in Spain), of the procedural tool known as the “civil motion”, rather than for purposes of upholding justice or the general interest. Once this has been verified in the proceedings, this usage must be corrected by the rejection of the case (Article 11 of the Spanish Organic Law on the Judiciary and 247 of the Civil Procedure Act).
The Court, by protecting the presence of the far-rightist party VOX, turns the judicial procedure into a speaker of an ideology contrary to international treaties on human rights signed by Spain. By allowing VOX to remain as the filer of a civil motion, not only is this discriminatory ideology not prevented, but rather the public authorities are also incurring in a dereliction of their duty to combat such ideologies.
6) THE RIGHT TO SELF-DETERMINATION
From the indictment it is evident that what is being criminalised is not so much a specific manifestation of the right to self-determination, but rather the self-determination aim itself. All the defendants are processed as a result of his activities in support of the universal right to self-determination of the art. 1 ICCPR and ICESCR. There is a misconception that the Spanish Constitution prevents the recognition of Catalonia’s right to self-determination. The Constitutional Court itself has declared that the Constitution does not address all the problems that may arise in constitutional matters, and that it is up to the public authorities to resolve them through dialogue and cooperation. The indictment uses a judgment of the Constitutional Court that cites the opinion of the Constitutional Court of Canada in relation to Quebec as an argument to deny the unilateral calling of a referendum on self-determination, when in reality that opinion endorsed the holding of a unilateral referendum in Quebec.
7) THE PRINCIPLE OF LEGALITY IN CRIMINAL LAW
Nobody can be prosecuted or convicted in the absence of a law that classifies the facts that the State wishes to sanction as a crime, as provided in Art. 7 ECHR, Art. 11.2 UDHR and Art. 15 ICCPR. One of the main facts of the indictment, i.e. the calling and holding of a referendum without authorisation, has been a manifestly atypical behaviour since 2005.
But even in the event that it was necessary to accept the application of criminal law to the facts, the accepted framework used by the accusations is absolutely lacking in the principle of proportionality, which should govern any State intervention in criminal matters, and may have a clear dissuasive effect on the exercise of freedom of expression and participation in public activity.