Marchena's previous Supreme Court decision on the limits of protest and the protection of political rights
(19/05/2019) Two of the Catalan separatists at the Supreme Court were victims in the previous case; the chief prosecutor at the National High Court was Mr. Zaragoza, today prosecuting.
(Original published: 19/05/2019)
On July 7, 2014, the National High Court in Madrid ruled that Ángela Bergillos Alguacil had "at some point" followed a regional MP during a demonstration in Ciudadela Park in Barcelona in June 2011, "moving her hands", "with her arms held high" and "chanting the protest slogans" but "it does not appear she pushed him". There was no crime, the court decided, either against the institutions of the state or as an assault on any authority.
It framed the actions of Bergillos that day, and those of the other 18 defendants in the case, within the concept of freedom of speech in a society in which private media companies or "state owned [media] managed along partisan lines" restrict citizens' access to the public sphere, along with "the most absolute impossibility" of some of them to reach public opinion in any another way "to make their views and statements known". In this context, "we must allow a certain excess in the exercise of the freedom of speech or of protest" in "a democracy that is based on pluralism".
On June 15, 2011—one month after the birth of Spain's 15-M protest movement—up to 1,000 people surrounded the gates to the Catalan Parliament, "on the occasion of the approval of the region's budgets for that year, in protest over the reduction in social spending".
The slogan that day—Let's stop the Catalan Parliament, we will not allow them to approve cuts—meant, in the National High Court's judgement, that the demonstrators "did not want economic restrictions on public benefits and services, and those who adopted such decisions no longer represented them".
"From that point of view, it is worth noting that the protest meant a defence of the Constitution and its basic content". It even "got to the heart of the concept of democracy and how we exercise it in our systems" because at the regional elections six months earlier, "the governing parties, which had won a majority, had neither raised nor proposed in their manifestos the cuts in social spending they were now going to undertake".
The Public Prosecutor's Office at the National High Court—then headed by Javier Zaragoza, who now questions witnesses every day at the Supreme Court in the case against the Catalan separatists—appealed the decision, as did the Catalan government and the Catalan Parliament—life does take some strange turns, and July 2014 was only six months before the first separatist vote on November 9 that year.
Eight months and a half later, on March 17, 2015, the Supreme Court reversed the acquittal and found Bergillos and seven others (out of the 19 defendants in total) guilty for the same actions described in the original judgment.
Far from being innocent, that movement of hands and that chanting of protest slogans, in the context of what was intended that day in front of the Catalan Parliament, now became not only a crime against the institutions of the state but also affected "the right of citizens to take part in public affairs via their representatives", a concept that enjoys special constitutional protection.
The protesters not only harassed those people for those minutes that day, they also violated the right of everyone in Catalonia to take part in the political life of the region in a plural manner because those people were MPs freely elected at the ballot box and that morning they were also attempting to get to a vote.
The eight defendants found guilty were given three years in jail.
The appeal judgement, moreover, harshly criticised the previous National High Court document for containing "a clear error when it comes to solving the conflict arising from the convergence of constitutionally protected legal rights", the decontextualisation of constitutional precedent cited in the original judgment, and even "an erroneous and traumatic destructuring" of the right to political participation in a representative system.
The National High Court "confuses and distorts the constitutional meaning of the principles, values and rights at stake".
Who was the judge on the criminal bench of the Supreme Court who wrote that judgement in 2015? Manuel Marchena, who today presides over the trial of the 12 Catalan separatist leaders and who will also write the judgment in this case, in a few months time.
Two other justices on the court this year—Juan Ramón Berdugo and Luciano Varela—were also part of the majority decision in 2015.
Among those who were trying to get to the regional chamber that morning in 2011 were not only Artur Mas, then the First Minister of the Catalan government, and Nuria de Gispert, then the Speaker of the Catalan Parliament, but also Jordi Turull and Santi Vila—then regional MPs, now sat in the dock at the Supreme Court accused of rebellion, sedition, criminal organisation and the misuse of public funds.
The description of the proven facts in the 2014 ruling shows obvious similarities with the description of some of the events of September 20 or October 1, 2017 that witnesses have told the court about during the trial against the separatist leaders.
In June 2011, the Catalan Police, the Mossos d'Esquadra, moved protesters away "by force, on several occasions" to keep access open that morning. The start of the session was scheduled for 10:00 am. MPs tried to get in from 08:00 a.m. onwards but there were problems, including the arrival of the four-car convoy containing Mr. Mas and Mrs. de Gispert.
They could not get in: "when they saw the difficulty of getting through that gate, they turned round and went back the way they had come, moving away from the place". As they were turning around, they encountered a group of protestors for "a few seconds". Some came closer, "even touching the bodywork" and "someone tried to open the doors—which were locked—and lashed out several times". Another individual "raised his hand and right arm when the First Minister's car was turning". Someone threw a traffic cone at one of the cars.
"Several demonstrators confronted" Jordi Turull, who was accompanied by another MP. One man said they should not be let past and took out a banner. "Mr. Llop and Mr. Turull avoided the group and left with their companions, a driver and a secretary, and then they had an altercation with other protesters, who surrounded them at the door of a garage, and decided to seek the protection of police officers. They arrived at the Catalan Parliament in a helicopter around 10:20 am".
Santi Vila "encountered a group of protesters while he was walking towards the Catalan Parliament, who reproached him for the public spending cuts policies and told him that he did not represent them". Although police had to accompany him "to move past the protesters", "there is no evidence he was assaulted or pushed".
Different demonstrators forced other MPs to "change their course" or to seek the help of officers to reach the enclosure. Protesters blocked their way, scolded them, shouted at them, surrounded them, followed them or threw liquids at them. One demonstrator sprayed the back of Montserrat Turia's (Catalan Socialist Party) jacket and bag with paint.
"To paralyse the ordinary work of the legislative body means not only to affect the fundamental right to political participation held by political representatives and, in general, by Catalan citizens, but also to attack higher values of the democratic order", says the Supreme Court judgement.
The protest had "a very clear aim". Demonstrators did not intend to "express disagreement with the restrictive budgetary policies by means of a protest in the vicinity of the Catalan Parliament" but "to attack the very roots of the democratic system".
The fact that Catalan Police riot officers had to use force to drive demonstrators away and "leave open" an access route for MPs is only proof they were blocking the way and "judgment regarding the description of the crime is not altered by officers' greater or lesser success when it came to setting up security perimeters that might have been advisable given the build up of citizens in the vicinity of the Catalan Parliament".
The specific actions of the defendants were on trial, not the police officers.
The incident with the cars containing Artur Mas and Nuria de Gispert "is a good example of the coercive climate" or even of the "intimidating atmosphere" with which the protesters sought to "bring the protest's slogan to a successful conclusion"; it "could not be more explicit" and included a call to "stop Parliament and stop budgetary measures of a restrictive nature from passing".
In the case of Ángela Bergillos Alguacil, who "at some point" followed the MP Alfons Lopez i Tena, "with her arms raised, waving her hands, chanting protest slogans", the Supreme Court ruled her actions could not be interpreted as "a simple gesture".
They had to be seen in the context of "that trapping situation" in which MPs "suffer harassment from about a hundred people, some of whom—not identified—spit on them, shout at them and spill liquid on their clothes".
"The defendant knows, because she is part of the group of a hundred protesters, which the proven facts describe, who are harassing a democratically elected representative chosen to carry out his tasks in the legislative body".
She knows it and she chants the protest slogan: "Let's stop the Catalan Parliament".
"In short, she adds her own particular contribution to the collective act of obstructing parliamentary business" and contributes "with her actions to reinforcing the violence and intimidation suffered" by López i Tena, preventing him from "the normal undertaking" of his parliamentary duties.
Article 498 of Spain's 1995 Criminal Code says that "those who use force, violence, intimidation or serious threat to prevent a member of Congress, the Senate or a regional Legislative Assembly from attending his meetings, or, by the same means, restrict the free manifestation of his opinions or the casting of his vote, will be punished with a prison sentence of three to five years".
Describing the criminal relevance of the actions of one of the defendants against Santi Vila, the Supreme Court concluded it did not matter the MP had not been attacked or shoved: "the crime on which the accusation was based does not protect the physical integrity of the components of the parliamentary body, but its normal functioning, as an expression of the principles on which the functioning of the democratic system is based".
The Public Prosecutor's Office, the Catalan government and the Catalan Parliament all appealed and the Supreme Court considered the relevant part was Article 849.1 of the Criminal Procedure Act: the incorrect application of the Criminal Code, given the proven facts.
Judge Perfecto Andrés Ibáñez wrote a dissenting opinion that supported the National High Court's initial interpretation.
The "conflicting social reality" in which the facts were framed, with "millions of people, very hard hit in their basic rights" does not allow the court "to sanction as criminal behaviours that have now been so [sanctioned] in the judgement I disagree with".
He did not see violence, or force, or intimidation or threat in the personal behaviour of each of the accused.
Parliamentary business was altered that day, Ibáñez wrote, but as a result of the actions and interaction of three different groups of people: "some [of the actions], by the crowd, were criminally indifferent in and of themselves; others, certainly criminal, but their authors unidentified; and others were indeed attributable to certain people but, as I have explained, do not reach the standard of criminal description in accordance with those precepts".
The eight defendants concerned filed an appeal before the Constitutional Court.
INTERPRETING PROVEN FACTS
José María Vázquez Moreno:
Proven facts: "…he approached [Montserrat Tura, PSC] from behind and painted two black strokes on the back of her jacket with a spray, as well as her shoulder bag".
Supreme Court: "The action carried out by José María Vázquez—painting two black strokes on the back of the MP's jacket with a spray and dirtying the bag she carried on her shoulder—cannot be interpreted in a decontextualised manner as a simple intentional attack on the property of Monserrat Tura […] we understand the defendant carried out an action that is the exact fulfilment of the collective aim held by the protestors".
Francisco José Cobos García:
Proven facts: "…he stood in the way of the MPs [Gerard María Figueres Alba, Convergencia, and Alfons López i Tena, Solidaritat Catalana] with his arms held up in a cross, at some point. There is no evidence he spat on them. He followed the regional MP Mr. López i Tena with his hands raised, shouting the gathering's slogans".
Supreme Court: "... this Chamber considers that standing in the way of two MPs who were only trying to get in to the place where they were supposed to carry out their representative function, and to do so with his arms in a cross, means executing an intimidatory act, which is nothing other than the fulfilment of the slogans broadcast by the organisers of the demonstration. Francisco José turns his intention to paralyse the Catalan Parliament and to prevent budget cuts from passing into reality".
Jordi Raymond Parra:
Proven facts: "…he asked that they not be allowed to pass, so that they could not vote, while unrolling a banner to display a slogan; other protesters answered that they should only talk to the MPs. Messrs. Turull and Llop [CiU] avoided the group and left with their companions, a driver and a secretary".
Supreme Court: "The defendant Jordi Raymond Parra knows he is harassing two MPs, along with others who have not been identified. And he expressly asks they not be allowed to pass. He did not do so with an aim that was far removed from the protest's slogan, but '…so that they could not vote' […] The facts fit the description of the crime with absolute clarity. The defendant uses the atmosphere of coercion exerted by another hundred people, whose identity has not been accredited, and asks other protesters to block the way of MPs Llop and Rigol so that, due to their obligatory absence, they cannot vote. The outcome is none other than the need to fly over the obstacles created by the protesters in a helicopter".
Ciró Morales Rodríguez:
Proven facts: "Among the people who surrounded [Ernest Maragall, PSC] and chanted the protest slogans was Mr. Ciró Morales Rodríguez, always behind him".
Supreme Court: "The defendant Ciro Morales wants to prevent MP Maragall from entering the Catalan Parliament. To this end, together with other people ("a large group of demonstrators"), he surrounded the political representative, while, with open hands and his arms held high, he chanted the demonstration's slogan that—as we have insisted and as the proven facts describe—sought to paralyse parliamentary activity aimed at passing budgetary measures that restricted public expenditure".
Ángela Bergillos Alguacil:
Proven Facts: "…at some point, she followed Mr. López i Tena with her arms raised, waving her hands, chanting the demonstration slogans".
Supreme Court: "With that description of the action under investigation, the Chamber cannot see in that following, with her arms raised, while the demonstration's slogans are shouted, a simple gesture on the part of Ángela Bergillos. The defendant knows, because she is part of the group of a hundred protesters, which the proven facts describe, who are harassing a democratically elected representative chosen to carry out his tasks in the legislative body".
Rubén Molina Marín, Olga Álvarez Juan, Carlos Munter Domec:
Proven facts: "The MP, Mr. Santi Vila i Vicente, from CiU, encountered a group of protesters while he was walking towards the Catalan Parliament, who reproached him for the public spending cuts policies and told him that he did not represent them. Among those protesting were Ms. Ólga Álvarez Juan, Mr. Rubén Molina Marín and Mr. Carlos Munter Domec. Police officers accompanied the MP so that he could move past the demonstrators. There is no proof he was assaulted or shoved".
Supreme Court: "Going only by the trial record, however, we conclude that Olga Álvarez, Rubén Molina and Carlos Munter, demonstrators who had agreed with a slogan that filtered all of their actions and called for paralysing parliamentary business aimed at the passing of certain budgetary measures, coercively prevented the MP, Mr. Vila i Vicente, from moving freely towards the representative body of the Catalan people. And only the intervention of a group of police officers, who accompanied the MP, allowed him to move past the protesters".