Misc 23/01/2019

False dichotomy

The way in which the October 1 case has proceeded so far inevitably points to a guilty verdict

Javier Pérez Royo
3 min

Professor of Constitutional Law (University of Seville)Last Sunday [Barcelona daily] La Vanguardia published a very lengthy piece about the defence strategies of the Catalan leaders who are to stand trial following the October 1 referendum on independence. The story underscored the alleged split between those who wish to foreground the “political” angle and the defence teams that will emphasise the “technical” aspects. On Monday, Madrid-based El País ran a shorter story insisting on this point: “Differences in defence strategies to set tone of October 1 trial”.

In my opinion, this is a false dichotomy. Needless to say, every defence will be “technical”. The opposite would be impossible. But not all of them will share the same reference framework —inevitably, of a political nature— without which nothing can be understood. There won’t be —there can’t be— “technical” versus “political” defences, only “technical” defences that will necessarily be “political”, too. And that is owing to strictly judicial reasons: without adding the “political” element, lodging an appeal on the grounds of unconstitutionality —which must precede an eventual appeal before the European Court of Human Rights (ECHR)— would become a nearly impossible uphill struggle.

In the process that led to the referendum of October 1 2017 —and during the weeks following the vote— it seems clear to me that some Catalan leaders engaged in unlawful actions. My impression is that we can all agree on that. The point of contention is what offence these actions constituted, specifically. Did the Public Prosecutor press charges in accordance with the law or was he, in fact, merely concealing political motives under the guise judicial proceedings? This is the crux of the matter. And the answer to this question will determine everything else.

In my view, it was the latter of the two. The decision by Spain’s Public Prosecutor, José Manuel Maza, to bring charges of rebellion [against the Catalan leaders] before Madrid’s Audiencia Nacional court had no legal base, neither from a substantive nor from a procedural point of view. The defendants’ actions did not constitute a crime of rebellion —as confirmed by over one hundred criminal law professors from universities across Spain— and the Audiencia Nacional, following a decision taken by all its members in an earlier case, could not be the default court to see the matter as established by law. Here lies the original vitiation, which has not been righted by bringing the entire case before the Supreme Court: it is not the ordinary, default court of law and there is no higher ranking court in Spain with which an appeal may be filed after the verdict, thus preventing the defendants from exercising their right to do so. Not just one, but two basic rights have been infringed upon. The erratic trajectory followed by the examining magistrate, Pablo Llarena, before European courts of law, is evidence that there were no legal grounds for pressing rebellion charges. Although the Higher Court of Schleswig-Holstein is the only one to have handed down a resolution on the European arrest warrant issued by the Spanish judge, Llarena’s eventual decision to withdraw the warrant across Europe has granted the German court’s ruling a general scope. This has proved, beyond all doubt, Justice Llarena’s inability to persuade any European judge that the defendants had committed a crime of rebellion.

This legal category has led to the adoption of the most extreme of all cautionary measures: pre-trial detention, which is difficult to argue convincingly from a legal standpoint. At the time of writing, Spain’s Constitutional Court is considering an appeal by Oriol Junqueras based on the ECHR’s jurisprudence.

Is a “technical” defence at all possible, if it disregards these precedents? Can we reasonably expect the Supreme Court to review the characterisation of the defendants’ actions as a crime of rebellion post-trial, bearing in mind that this court has confirmed every single decision by the examining magistrate, which has led to the defendants spending a significant length of time in prison and has prevented some of them from being voted in as president of Catalonia in a manner which —to my mind— is openly unconstitutional and at odds with Catalonia’s Statute?

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 proceedings while it is being held. But the verdict has already been written.

There is no Jordan river that can wash off the original vitiation. The legal counsels must point this out throughout the trial, as this will provide the optimal basis for an appeal on the grounds of unconstitutionality and, if dismissed by the Constitutional Court, a further appeal before the ECHR.

Politics and law have gone hand in hand in the actions by the Prosecutor and the Supreme Court. They must also do so in the defence of the indicted.