On February 12, the trial of 12 Catalan politicians and social movement leaders involved in the October 1, 2017 independence referendum is set to begin in the Spanish Supreme Court.
The leaders face sanctions as harsh as 25 year’s jail for their alleged offences — rebellion, sedition and embezzlement of public funds.
It is the first of three trials. Other defendants, including former police chief, José Lluís Trapero, will face the National High Court. Those members of the Catalan parliament who allowed discussion and voting on the referendum enabling law will face the High Court of Justice of Catalonia (TSJC in its Catalan initials).
Nine of the defendants have been in preventive detention for between 12 and 15 months, with all their appeals for release on bail rejected.
The case will be decided by seven magistrates, led by Supreme Court chief justice Manuel Marchena.
Marchena was marked to become Spain’s top judge in a deal done between the governing Spanish Socialist Workers Party (PSOE) and the opposition People’s Party (PP). However, he declined the appointment as president of the General Council of the Judicial Power (CGPJ in its Spanish initials) to preside over the Catalan case.
The judges will hear from three prosecution teams — the prosecutor-general, the solicitor-general and the ”popular prosecution” of the far-right neo-Francoist party, Vox.
The popular prosecution is an institution enshrined in the Spanish constitution that allows individuals or organisations not directly involved in a case to participate in it on the grounds of public interest and/or defence of due legal process. Defence lawyers have asked for Vox to be removed from this role but their applications have been rejected.
In the case of the 18 Catalan leaders not in exile, the prosecutor-general is asking for a total of 177 years prison, the solicitor-general 116.5 (with the charge of rebellion dropped), Vox over 700.
According to Vox secretary-general Javier Ortega, who leads for them in court: “Spain is not in play, not for negotiation, not to be voted about. Spain is to be defended until the final consequences.”
The pressures on Marchena
Judge Marchena and his magistrates will have a hard job. On the one hand, they know that the function of the trial is to make it clear to the people of Catalonia that the Spanish state does not tolerate challenges to its unity. Any exercise, even symbolic, of the right to self-determination by Spain’s constituent nations will be treated as a mutiny to be crushed, with participants jailed, stigmatised and confronted with economic ruin.
That’s already the case with former Catalan premier Artur Mas and three of his ministers. For allowing a purely indicative consultation on Catalan statehood on November 9, 2014, Mas has been barred from holding public office until 2020 and been hit with a fine of nearly €5 million by the Court of Public Accounts (presently being appealed).
On the other hand, given Spain’s status as a member of the European Union, the trial of the Catalan leaders has to at least appear to meet standards of fairness, impartiality and independence. Otherwise it is almost inevitable that any sentence it brings down will be struck down by the European Court of Human Rights (ECHR).
In 2018, the ECHR upheld nine out of 10 appeals against Spanish court decisions, most notably in the case of Basque left-nationalist leader Arnaldo Otegi. The leader of the Basque left pro-independence coalition EH Bildu was found not to have received a fair trial in a case in which he was found guilty of affiliation to the banned military-terrorist organisation Basque Homeland and Freedom (ETA).
Marchena’s form
Marchena was a key actor in a case where the ECHR found a Spanish sentence violated the right to a fair trial. This was a 2008 Supreme Court sitting involving the speakership panel of the Basque parliament, which had in 2003 refused a court order to dissolve the parliamentary group Patriotic Socialists (Sozialista Abertzaleak), held to be connected to the banned pro-independence organisation Batasuna.
At one point in a long chain of hearings, the prosecutor-general for the Basque Country decided not to appeal a decision of the High Court of Justice of the Basque Country to shelve the case. That decision left the popular prosecution, which was run by the far-right, Spanish-patriotic “trade union” Clean Hands, as the only party wanting to maintain the hunt for the Basque MPs.
Clean Hands’ cause looked hopeless, because the Supreme Court had just ruled, in a case involving the Banco Santander, that a legal suit could not be launched or continued solely on the application of the popular prosecution.
That decision had rescued Spain’s richest banker, Emilio Botín, from facing trial for selling dodgy financial instruments, and became known as the “Botín doctrine”.
Didn’t this “doctrine” now protect Basque parliament speaker Juan María Atutxa and his two fellow speakership panellists? Not for Marchena. In April 2008, just two months after his “doctrine” had rescued Botín, Marchena drafted a convoluted ruling that said it didn’t apply in cases where there was no material victim, such as in cases of disobedience.
Five of the 12 judges dissented, some on the grounds that it was exceeding the court’s powers by actually making law, others on the grounds that the Botin doctrine shouldn’t be retrospectively adjusted to fit new circumstances.
Notwithstanding, Marchena’s ruling — now known as the “Atutxa doctrine”— allowed Clean Hands to continue its crusade against the Basque MPs, whom the Supreme Court fined and disqualified from holding public office. The ECHR overturned that decision in 2017.
The law versus a democratic right
Marchena’s ingenuity will tested to the limit in the case of the Catalan leaders. This is most of all because of the July 2018 finding of the Regional High Court of Schleswig Holstein that former Catalan president Carles Puigdemont could not be extradited for rebellion.
Because of that decision and the subsequent withdrawal by investigating magistrate Pablo Llarena of all European arrest warrants against Catalan leaders in exile, their comrades in jail are being tried for acts regarded as criminal only in Spain.
That highlights the political nature of the trial: those who support the democratic right to self-determination over and above Spanish state unity have been placed in the dock and in preventive detention.
This will not be a trial about “what really happened”. Arguments about individual incidents aside, the prosecutions and defences actually agree on the basic course of events. But where pro-sovereignty Catalans see only a step to implement the will of the majority, judge Llarena and the Spanish establishment sees a conspiracy.
For example, on December 19, 2012 Catalan premier Mas publicly signed the “Agreement for a National Transition and for Guaranteeing the Stability of the Government of Catalonia”. For Llarena, this act marked the sinister starting point of the Catalan leaders’ rebellious course.
Yet none of these actions was a secret before the October 1 referendum, and none of the Catalan leaders were charged with any offense until October 1 had taken place.
Their basic line of defence is spelled out in detail in the submission to the Supreme Court of Òmnium Cultural president Jordi Cuixart, already available in English translation on the .
Irregularities galore
The defence is mounting a prosecution case against the trial itself, described as “a result of the overprotection of the territorial unity of Spain”.
This zeal for “overprotection” led the Spanish government, police and courts to violate multiple rights, including, beside that of self-determination, those of free expression, peaceful assembly and the presumption of innocence.
The document also details a host of legal irregularities. Handing the courts the job of breaking the Catalan movement has meant violations of due legal process have then been inevitable. For example:
- The collection of evidence amounted to a vast fishing expedition by the judge of Barcelona court 13, who disallowed any challenge to his summonses. He was later congratulated by CGJP and Supreme Court chief judge Carlos Lesmes as a “patriot”.
- The wrong courts are hearing the trials. To guarantee the right of appeal, the initial trial of all defendants should have been held in the TSJC, allowing appeal to the Supreme Court. As matters stand, the Supreme Court full bench will act as the first court of appeal on the decision of its Second Chamber, to be followed by the Constitutional Court;
- The Supreme Court’s grounds for continuing to refuse bail to the defendants keeps changing: the first ground was the possibility that they might re-offend in their acts of rebellion and sedition. Its latest refusal to grant bail cites the establishment of the Catalan Council for the Republic in Brussels as creating a possibility that the defendants might flee abroad.
Also, while the Supreme Court is allowing 500 witnesses to be heard, it has ruled out hearing from purely “ideological” witnesses such as Noam Chomsky. While the trial will be televised live, international observers will not be allowed to attend.
A battle in the ongoing war
As far as Catalonia is concerned, it is not new for the Spanish legal establishment to bend the law for its political masters. The most notorious recent example was the 2010 decision of the Constitutional Court to amend the Catalan statute of autonomy, which had been passed by the Spanish and Catalan parliaments and endorsed by referendum in Catalonia.
Constitutionally, the statute as amended should have been re-submitted to the parliaments and to referendum but the Constitutional Court overlooked that — it knew its “retouched” statute would have been rejected out of hand.
University of Seville constitutional law professor, Javier Pérez Royo summarised the case like this:
“I would like to be wrong, but the way in which the October 1 case has proceeded so far inevitably points to a guilty verdict. The trial will be a farce, even though they will abide by all the legal procedures while it is being held. But the verdict has already been written.”
That being so, supporters of Catalonia’s right to decide will be doing everything they can to make the Spanish state pay as high a political price as possible.
[Dick Nichols is the European correspondent for 91̳ Weekly, based in Barcelona. His live blog is reporting details of the trial.]