Punishment without crime: the judgment against the Catalan leaders analysed
By Dick Nichols
October 22, 2019 — Links International Journal of Socialist Renewal — The unanimous verdict of the seven Supreme Court judges that set off the still expanding wave of protest that has engulfed Catalonia was calculatedly vindictive. The nine Catalan leaders—seven former ministers and social movement leaders Jordi Sànchez and Jordi Cuixart—were found guilty of “sedition” for preparing the October 1, 2017 Catalan referendum of self-determination. For this eighteenth-century crime, long deleted from the penal codes of many other European states, they were sentenced to jail terms ranging from 9 to 13 years.
The harshest sentence was handed out to former Catalan vice-president Oriol Junqueras as “leader of the sedition”. Former ministers Raül Romeva (foreign affairs), Dolors Bassa (social welfare) and Jordi Turull (minister of state) came next with 12 years: along with Junqueras they were also found guilty of “embezzlement”.
Former Catalan parliament speaker Carme Forcadell incurred 11.5 years jail for allowing the chamber to vote on the referendum’s enabling law after being instructed by the Spanish Constitutional Court not to do so.
The “sedition” of former Catalan interior minister Joaquim Forn (11.5 years) consisted in undermining the ability of the Catalan police to deliver and enforce Spanish state court orders while former territory minister Josep Rull was guilty of denying a Spanish Civil Guard ship mooring facilities and of making public buildings available as voting centres.
As for Òmnium Cultural president Cuixart and former Catalan National Assembly president Sànchez, their “sedition” was proven by the fact that they had called demonstrations against Civil Guard searches and urged people to defend voting centres against police and Civil Guard attempts to impound ballot boxes.
Along with these nine, who have already been held in preventive detention for up to two years, the court found former ministers Carles Mundó (attorney-general), Santi Vila (business) and Meritxell Borras (education) guilty of “disobedience”, fining each €60,000 and banning them from standing for public office for 18 months. The nine jailed leaders have been banned from standing for public office for the term of their sentences.
Why this verdict?
The verdict was the predictable result of the pressures operating on the Supreme Court and its chief judge Manuel Marchena.
The principal pressure was for the trial to produce an exemplary punishment of the Catalan leaders. They had humiliated the Spanish state by doing what the millions-strong movement for Catalan sovereignty and independence had asked of them—to successfully organise a unilateral referendum after 18 attempts to negotiate a Scottish-style referendum with Spanish governments had gotten nowhere.
A measure of the viciousness of the sentence is that the maximum punishment visited on Junqueras was exceeded in only three of the 33 sentences in the case of the failed Francoist coup of February 23, 1981. The average punishment for the military and Civil Guards who tried to reimpose the Franco dictatorship was six years jail: the sentences of the Catalan leaders average 8.3 years. In similar vein, the jail sentence for former Spanish Socialist Workers Party (PSOE) interior minister José Barrionuevo, organiser of the murderous Antiterrorist Liberation Groups (GAL) in the Basque Country in the 1980s, was only ten years. Endangering the unity of the Spanish state is a worst crime than reimposing dictatorship or setting up death squads.
The Supreme Court judges were doing the work set out for them by the previous Spanish government of People’s Party (PP) prime minister Mariano Rajoy: the Catalan movement humiliated his government by carrying off the referendum in the teeth of a massive operation by the Civil Guard, Spanish National Police and National Intelligence Centre to stop it. It was at that point that longstanding public declarations of Catalan pro-sovereignty organisations like Òmnium Cultural and the Catalan National Assembly (ANC), which no-one had previously even dreamed were legally actionable, became prima facie evidence of “rebellion” and “sedition”.
According to an infamous leaked WhatsApp message of PP Senate spokesperson Ignacio Cosidó, the Supreme Court’s Second Chamber, which heard the case, was controlled “via the back door”. There was no way its judges, even their “progressive” minority, were going to find the Catalan leaders innocent, or guilty only of the lesser charge of disobedience (which carries no jail sentence).
In this war of revenge the different defence strategies adopted by the various defence counsels weren’t ever going to matter—the clever winning gambit did not exist. The Supreme Court judgment wiped aside defence strategies based on nice points of Spanish law, those based on appeals to internationally recognised human rights and those combining both: all approaches were doomed before the determination of the judges to nail the Catalan leaders and rule the right to self-determination illegal in the Kingdom of Spain.
In this light, it would seem clear that the most politically powerful defence was that adopted by Omnium Cultural president Jordi Cuixart and his defence team, namely that “self-determination is not a crime” and “we’ll be doing it again”— independent of what this show trial decides.
In a remarkable interview in the October 20 edition of Ara, Xavier Melero, lawyer for Joaquim Forn and exponent of the most legalistic defence strategy, implicitly confirmed that judgment when he confessed that “I was the mug.”
“Look how far my innocence went: I believed that a clever state would carry out an extremely liberal and open exercise in applying the law and interpreting the Penal Code, so as to reinforce its prestige domestically and abroad. I thought that it was an intelligent ploy to reduce the dimensions of the conflict in technical and criminal terms. When the WhatsApp message about Marchena came out, people told me to challenge his suitability. I thought no, that this man would be the one with the greatest interest in being even-handed. That’s why I think I’ve ended up worse-off than everyone.”
There was no ‘rebellion’
However, notwithstanding the irresistible pressure to inflict exemplary punishment on the Catalan leaders, the Supreme Court judges were also exposed to another heavy pressure: the harsh sentences the court was always going to impose had to be defensible in law—especially before a European Court of Human Rights (ECHR) that in 2018 upheld nine out of ten appeals against Spanish court decisions (including decisions of Marchena).
This pressure to find a plausible legal foundation for their decision meant one thing above all: the Supreme Court had to discard the charge against the Catalan leaders of “rebellion” because maintaining it would have undermined the authority of the judgment as a whole. Everything had to be done to proof their verdict against appeal because an ECHR ruling of unfair trial would have devastating consequences for Spanish state legitimacy.
The indictment of “rebellion” was originally brought by the investigating magistrate Pablo Llarena, basing the charge on Civil Guard fishing expeditions of Catalan public and private premises ordered by now defunct Barcelona Court Number 13 judge Juan Antonio Ramírez Sunyer. Llarena’s charge of “rebellion” was also backed by the Spanish prosecutor-general’s office and the “popular prosecution”, the ultra-right party Vox. (The “popular prosecution” is a Spanish institution originally designed to allow the representation of community or public interest.) Dropping the charge of “rebellion”, which a majority of Spanish jurists had already declared inapplicable, may also have been the price of a unanimous verdict between judges of different political temperaments.
It was also a political imperative. It helps Pedro Sánchez maintain the myth that Spain is a “law-governed state” with an independent judiciary and it also helps the European Union and its member states, fearful of any Catalan threat to the EU status quo, sustain the same fiction. After the sentence the PSOE government went on an offensive to persuade other countries of the immaculate character of the Spanish legal system: cabinet members with foreign languages made themselves available for interviews on whatever international channels would have them.
On October 15, the Members of the European Parliament (MEPs) of the PP, PSOE and Citizens sent a letter to their fellow deputies assuring them that the trial of the Catalan leaders had taken place in a “transparent way, with all the guarantees for the accused persons and ensuring the strict separation of powers”. No state, it said “would allow a challenge to its basic legal norms.” Spokespeople for the European Commission and the British government were soon robotically repeating this line from Madrid.
Caught in contradictions
However, the dropping of “rebellion” was not cost-free, because the whole Spanish-patriotic view of the October 1 referendum, from Spanish King Philip down, is that it was a deliberate assault on the Spanish Constitution. Sensitive to the angst that their verdict would cause in these circles, the Supreme Court judges devoted around 200 pages of the 493-page judgment to arguments against the “rebellion” hypothesis of Llarena, prosecutor-general Javier Zaragoza and Vox.
There was a notable contrast, for example, between the Spanish establishment uproar about a supposed smoking gun proving “rebellion” and the near complete silence of the Supreme Court’s decision on this supposedly critical piece of evidence. This was the document EnfoCATS, which sketches out possible routes to independence and was found by the Civil Guard in a raid on the house of Josep Maria Jové, the deputy secretary of the Catalan Department of Economy. According to Daniel Baena, the Civil Guard lieutenant-colonel who ran the fishing expedition, EnfoCATS was proof of the existence of “insurrection” in Catalonia. However, the court’s judgment of Baena was harsh: “A witness who presents no facts but only personal valuations slights the reasons for which he was summoned to give evidence.”
The judges, in fact, accepted the version of events of the majority of the defence lawyers: namely that for their clients the October 1 referendum was a way of pressuring the Rajoy government into negotiations and not—as the vast majority of referendum organisers and the voters actually believed—a genuine exercise in self-determination. For the judges October 1 did not involve “preconceived, deliberate and functional” violence aimed at achieving Catalonia’s separation for the Spanish state. In reaching this conclusion the decision put weight on the testimony of Basque premier Iñigo Urkullu, who tried to mediate between the Catalan leaders and the Rajoy government and advocated for former Catalan president Carles Puigdemont’s offer of new Catalan elections if the Rajoy government agreed not to suspend Catalan self-rule.
However, in dropping “rebellion” and adopting the charge of “sedition”—which was supported by the Spanish solicitor-general’s office and has only been applied four times since 1980—the judges fell into a painful contradiction. They stated: “The over-excited citizens who believed that the positive result of the so-called referendum would lead to the hoped-for horizon of a sovereign republic were unaware that the right to decide had changed into an atypical right to bring pressure.”
But if that argument was valid against the charge of “rebellion”, how was it not also valid against that of “sedition”? The only difference in Spanish law is that “rebellion” is a crime against the constitution and “sedition” a crime against public order. Also, why apply the law with special harshness against something you’ve described as a “performance” that at no moment endangered the unity of the Spanish state? Why bring down the legal sledgehammer on people you’ve painted as pretty hopeless as rebels?
The judges’ answer was to smother this contradiction in lurid accounts of the events of September-October 2017. These were largely based on the well-rehearsed evidence of Spanish National Police and Civil Guard officers, whom during the trial Marchena kindly spared from the ordeal of defence cross-examination backed by visual evidence. Key evidence of “sedition” was the September 6 and 7 vote of the Catalan parliament that enabled the referendum and was ruled unconstitutional by the Constitutional Court.
It was this event and the huge peaceful demonstrations and non-violent protests that followed that became “sedition”—in contradiction with what sedition actually means. That is, in the words of Antoni Bayona (former senior counsel to the Catalan parliament) “an uprising that is violent or with sufficient capacity of intimidation or threat as to overcome the resistance of the institutions of the state.”
Judges above the law
The judges’ ruling has therefore opened the door to any standard protest activity, like trade union pickets or organised attempts to stop evictions, being regarded as “seditious” and carrying penalties greater than those for homicide (up to 15 years). Against the argument that “sedition” will only apply henceforth to plans to achieve independence, Josep Pagès, Barcelona Autonomous University professor of constitutional law, asks: “What are the limits to protest that ensure it is not sedition? They’ve been erased.” Indeed, to be consistent the judges should have laid the charge of “sedition” at the doors of everyone who came out to vote on October 1.
The effective message of the sentence to the defendants and to the two million plus people they represent was this: “We accept that what you did was not rebellion as defined by the Criminal Code, but that doesn’t matter: we’re going to throw the book at you, and charging you with sedition is the next best way we can devise to do it.”
Rosa María Seoane, the Spanish solicitor-general, congratulated herself for focussing her office’s case against the Catalan leaders on “sedition” and avoiding an unthinkable outcome: “If this alternative hadn’t been offered to the court, the defendants could have been found innocent.”
In interpreting sedition so elastically, the judges have also usurped the function of the Spanish Congress, whose job it is to define criminal offences and sanctions. As former Constitutional Court counsel Joaquin Urías wrote in the October 20 Ara:
“The Supreme Court has reinterpreted the concept of sedition with the specific aim of being able to punish the pro-independence leaders […] It has changed the legislation without any intervention by parliament and that, it needs to be said, is a violation of the rule of law. The rule of law is based on the predominance of the law, not of judges. If the judicial power can’t manage to set limits to its activities and not invade the spaces of the other state powers, the whole democratic structure runs the risk of becoming an empty shell.”
What Urías touches on here is the process of increasing authoritarian degeneration of the Spanish state in the face of the Catalan movement for self-determination. Beginning with the fishing expeditions of the Civil Guard acting on vague warrants allowing wholesale ransacking of premises during searches, it has ended in the vindictive sentences of October 14. This is a dynamic in which the law increasingly takes precedence over democratic rights and the judges trusted by the Spanish-unionist establishment and the police increasingly take precedence over the law.
No right of self-determination
The other main issue that the Supreme Court bench decided required its attention was whether an internationally recognised national right to self-determination exists and whether it overrides a Spanish constitution and a Catalan Statute of Autonomy that make no mention of such a right. This task, which was actually irrelevant to the charges being faced, absorbed 23 pages of the judgment.
The sentence asserts that “the safeguarding of the territorial integrity of already constituted states [sets the] natural limit to what has been called the external dimension of the right to self-determination”—in plain English, new states can’t secede from consolidated national entities. The judges treat the recent examples that would seem to contradict this precept—Quebec, Montenegro, Scotland, Kosovo—as each in their own way anomalous and without relevance to the case of Catalonia.
On Quebec: “No similarity can be adduced between the historical origin of the demand of Quebec and the unilateral act of secession attributed to the accused.” This assertion on the one hand contains a truism—that all processes of national self-determination are specific because the way oppressed national entities are inserted into sovereign states is itself always specific---and a lie: Quebec carried out two unconstitutional referenda that eventually led, without any of their protagonists being taken to court, to a Supreme Court of Canada ruling setting the terms in which such a referendum could constitutionally take place in the future. The Supreme Court’s judgment cites the parts of the Canadian court ruling on Quebec that suit its case—“[Quebec] does not enjoy in international law a right to carry out a secession of Quebec in a unilateral fashion”—while leaving out the main finding of the court. This is that if Quebec carried out a referendum and it received a majority for independence, the Federation of Canada would be obliged to amend the constitution to allow Quebec its independence.
On Scotland: The Scottish 2014 referendum was the result of negotiations in a country without a written constitution, as if Spain’s written constitution would prevent a Spanish government that actually wanted to solve the Catalan issue via consultation from so doing. Yet Article 92 would provide the path for such a consultation if a Spanish government ever wanted to consult the Catalan people on the relation they seek with the Spanish state.
On Kosovo: The judges’ decision refers to the 2010 opinion of the International Court of Justice (ICJ) that Kosovo’s unilateral declaration of independence did not violate international law, but then stresses the position of the European Commission that “the question of the status of Kosovo is sui generis, and as such establishes no precedent.” However, as noted by political scientist Jaime Pastor, the ICJ decision accepted the legitimacy of unilateral secession on condition that there was no possibility of negotiated solution and the desire for independence of the people involved had been expressed unequivocally and democratically—a position with increasing relevance to the Catalan case.
The pages of the Supreme Court’s decision “disproving” the existence of an internationally recognised right to national self-determination amount to a shabby Jesuitical exercise that argue in effect that no possible example of national self-determination in the rest of the world has, or could even have, any relevance to the Spanish state, whose constitutional order will always and in all situations take precedence over this democratic principle.
In an October 16 interview in the Catalan daily Ara, Jordi Sànchez stated his view of the decision from prison.
“The sentence unequivocally lies. It doesn’t specify any detail of the supposed strategy of sedition. Not one confirmed meeting, not one email, only declarations in public ANC events and the calling of demonstrations. The Supreme Court judges’ hostility towards us has betrayed them. Their animosity towards us has leaked out in the sentence in the form of false statements to justify the prison terms.”
In short, the purpose of the sentence was never to establish guilt or innocence but to aid the Spanish establishment in its war against the movement for Catalan sovereignty and independence. The “guilty parties” were never just the 12 defendants sitting in the dock in Madrid, but the millions of Catalans who believe that Catalonia is a political subject with a right to decide its future.
The judges’ verdict has served as an occasion to unleash new moves in the judicial war against Catalonia’s right to decide. One the same day the verdict was announced the Spanish electoral commission banned the convicted Catalan leaders from standing in the November 10 Spanish general election and judge Llarena reissued a European arrest warrant for the extradition from Belgium Puigdemont. On October 21, the National High Court ordered a Civil Guard search of the house of Puigdemont’s lawyer Gonzalo Boyé.
However, on the Catalan side the enormous, growing tsunami of mass protest started to roll. In Jordi Sànchez’s words: “They believe that they will put an end to people’s sentiments by beheading those they think are leaders of the process. They are having the opposite effect.”
Dick Nichols is Green Left Weekly’s European correspondent, based in Barcelona. An initial version of this article has appeared on its web site.