The first two days of the Catalan separtist trial
(14/02/2019) Defence teams say thousands of pages of evidence are out of reach at another court; prosecutor says the independence movement is not on trial.
(Original published: Feb 14, 2019, 12:30 pm)
Judge Manuel Marchena, presiding in the trial of the twelve Catalan separatists at the Supreme Court in Madrid, said on Tuesday morning that he would be "generous in the management of time" and the prosecution and defence teams have taken a day and a half to present their initial arguments on preliminary matters.
The defence teams especially have gone beyond purely legal arguments to ramble on multiple occasions with political rhetoric and arguments.
Defence lawyers, some more incisive and others more monotonous, have focused on protesting about an alleged attack on their clients' fundamental rights or the repetition of complaints about the court's refusal to admit testimony, expert witnesses or documentary evidence in rulings prior the start of the trial.
The clerk of the court read out the long list of charges, which includes the misuse of public funds, contempt, sedition—which the Attorney General's Office is seeking, with the correspondingly lower sentences—and criminal organisation, which Vox is seeking. With the crime of rebellion, she specified points one, "totally or partially repealing, suspending or modifying the Constitution", five, "declaring the independence of a part of the national territory", and seven of Article 472 of Spain's 1995 Criminal Code, "removing any kind of armed force from obedience to the Government".
This last point is related to the defendants' use of 17,000 armed police officers. "The Catalan Police (Mossos) that are completely on the side of the rebellion", in the words of one of the prosecutors, Fidel Cadena, on Wednesday morning.
In short, they stand accused of having planned and declared the independence of Catalonia in October 2017, "segregating it from the Kingdom of Spain", in the words of the clerk of the court, or via a "complete separation from the law", in the words of Mr. Cadena for the Prosecutor's Office, even though at a political level it did not last long with the flight of Mr. Puigdemont to Brussels and the suspension of home rule that very weekend, which brought with it the dismissal of the entire regional government.
On Tuesday morning, Andreu Van den Eynde Adroer, defending the former Deputy First Minister of the regional government, Oriol Junqueras, and the former regional foreign affairs minister, Raúl Romeva, called it "an exceptional trial" and claimed "we have the right to to live in democracy " because" there are rules even in war, that is civilisation".
On Wednesday morning, the Prosecutor's Office more or less agreed that they were right on that point. "This is the trial of the triumph of democracy", said Mr. Cadena, "of the rule of law and the principles of equality before the law". "Nobody is above the law", said his colleague, Javier Zaragoza, in "a trial in defence of Spanish justice".
Benet Salellas, counsel to Jordi Cuixart, the chairman of Omnium Cultural, lamented that "this trial is a collective defeat of Spanish society and should not start".
The defence teams reiterated their requests for the admission of any evidence or the presence of any witnesses, such as Carles Puigdemont, or people who could testify as to the identity of a mysterious Twitter user: "We have to find out if Mr. Baena is Machiavelli or Tacitus," said Olga Arderiu Ripoll, defending the former Speaker of the Catalan parliament, Carme Forcadell.
ATTACK ON FUNDAMENTAL RIGHTS
On Tuesday, several of the defence teams alleged there had been an attack on the fundamental rights of their clients, including the freedom of speech, the "right to protest" or the right to gather and demonstrate.
Mr. Van den Eynde (Junqueras, Romeva) alleged that the use of newspapers, conferences, shouting, chants, pot-banging or even paper planes "is being criminalised", even though "there is a Catalan question that must be able to be expressed" and that "what Catalans are doing is protest".
"Why is it always criminal law that has to intervene?", he wondered: "the investigation cannot prevent independence from being debated in a parliament".
Pedro Fernandez, for Vox, the private prosecution, alleged that "freedom of expression is subject in a democratic society to the limits imposed by national security, territorial integrity or public safety and the defence of order".
Mr. Salellas (Cuixart) described "a situation close to the violation of fundamental rights" whose ultimate goal would be to exert a "chilling effect" on other citizens in their dealings with the state and that "50 pages" of the indictment were devoted to describing people demonstrating, which was "incompatible with a social, democratic state".
"What must the state do with demonstrations?", asked Mr. Van den Eynde (Junqueras, Romeva), "Strasbourg is very clear on this: protect them".
Mariano Bergés, defending Dolors Bassa (former regional works minister), added comments about the restriction of liberty and his client's remand situation, arguing all citizens should feel secure in the knowledge of which conditions might lead to them being deprived of that liberty, and that his client had complied with all of the requirements to appear before the court imposed so far by the investigating judge.
NARRATIVES
In his opening narrative, Mr. Van den Eynde (Junqueras, Romeva) contrasted "democratic criminal law" with "the criminal law of the enemy" and even spoke of "the dark side" criminal law, as if this were the latest instalment of Star Wars.
He argued there was only "constitutional reform" or "war", and that a third "peaceful solution" was lacking, in his opinion.
He did not mention Article 168 of the Spanish Constitution that has since 1978 allowed for complete reform, with the approval of a two-thirds majority of both houses of parliament, and the double approval of the Spanish people, who are sovereign, in a general election and then in a national referendum
The narratives were an attempt to "distort reality" and "discredit the law", said Mr. Zaragoza (Prosecutor's Office) on Wednesday, rejecting the role of antagonist: "It does not seem right to blame the state for a lack of dialogue as a factor that irrevocably leads to that unilateral process of the breaking of the constitutional order and secession".
INVESTIGATING COURT Nº13
Several of the defence teams protested about the matters in investigating court no. 13 in Barcelona. Mr. Van den Eynde (Junqueras, Romeva) described it as the "original source of all investigations" and alleged "a complete indetermination of facts" from that court, "because it does not justify the object [of its investigation]" and because it had been "undertaken without any type of justification".
He also presented arguments in relation to a supposed extra-judicial investigation by the Public Prosecutor's Office, which he said had gone back as far as March 2016 and the previous independence vote on November 9, 2014.
Ms. Arderiu (Forcadell) said that evidence should be voided due to the "thousands and thousands of pages" that have came out of that court. She also said her client should be treated the same as the other six members of the Speaker's Committee, who will be tried by courts in Catalonia, not the Supreme Court, for the same events.
"The violation of the right to use Catalan has already occurred," she added.
"Access to an impartial judge has not been violated", said Mr. Fernández for Vox.
Mr. Bergés (Bassa) protested that because of that investigation, evidence "has been obtained behind the backs of the accused" and that "we have been denied most of the steps we have requested", which "violates the right to effective judicial protection".
In no way had that happened, replied Mr. Cadena (Prosecutor's Office) on Wednesday: "all the lawyers and all the defendants had access to all of the documentation for the trial of this case."
Judit Gené Creus, defending Mertixell Borrás (former regional minister of governance), said that "100% of the material" against her client had come out of court no. 13 in Barcelona and that "the investigation into the misuse of public funds has occurred in another investigation altogether", wondering how "the misuse of public funds and contempt are investigated on the basis of the signing of a decree".
Mr. Zaragoza (Prosecutor's Office) responded to the allegations of a general investigation that "it is not true, it is not the independence movement that is being judged", adding that "political activities are not a free licence" to commit crimes.
"It is a fallacy that must be proclaimed to the four corners of the earth, they have not been prosecuted for their ideas, but for their actions, they have only been prosecuted when they have broken the law."
He also rejected including another trial on possible police violence in this one, pointing out that issue is already being investigated in several ordinary courts in Catalonia.
Josep Riba Ciurana, for Carles Mundó (former regional minister of justice), said that "we are not a party [to the investigation] at court nº 13 in Barcelona [...] and we have not been able to intervene", while the Prosecutor's Office, the Attorney General's Office and Vox have, as well as having access "to that court in a case to which I am not a party".
Such a situation, he said, affected the principle of equality of evidence that governs criminal trials to prevent the defencelessness of the accused.
AN EXERCISE IN LAW
"We stand before this court because there have been criminal acts" outlined in the Criminal Code, said the lawyer for the Attorney General's Office, Rosa María Seoane López: "This is an exercise in democratic criminal law".
"There is no democratic legality outside of constitutional legality," said Mr. Cadena (Prosecutor's Office): "There is no sovereignty of the Catalan people, there is the sovereignty of the Spanish people, the few may not decide on what belongs to everyone".
The trial continues tomorrow, Wednesday, at 10:00 am, with the first statements by one of the accused, Oriol Junqueras, the former Deputy First Minister of the regional government.