23/01/2021

Procedural suicide

3 min
Protests in Tetuan Square, Barcelona, October 2019
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He has done it: he has confessed some facts that he has not committed. Worse still, he has undertaken to pay substantial compensation for the repair of the damage made to a police van that he has not damaged, and compensation for the injuries of an officer who fell while beating him to arrest him. This decision hurts in anyone's soul: to defend one's dignity and truth, or to give in and buy security. This confession will swell the poisoned statistics that tomorrow will be used to show that the system works: police forces write up statements, the prosecution and private prosecutors hold up charges based on these statements, and finally a sentence is passed that closes the circle and validates the whole gear. Once the agreement is closed, a trial will be held. This trial is reduced to a bargain: the accusations reduce the penalty to ensure the accused person does not enter prison, in exchange for admitting the facts and the penalty. Our confession will serve to show that the police officers arrested the right person, that the prosecution and the other charges also charged the right person, and that the sentence has convicted the right person. What is clearer than a confession, to show that someone is guilty?

Those of us who are involved in anti-repressive criminal law are witnessing a painful phenomenon that we could call of collective procedural suicide. Many of the young people who were arrested in the October 2018 and 2019 protests are choosing to admit facts, even if they are not true or only partially true. This decision is not an absurdity, but has been driven by the system. On the one hand, the sentence of the independence bid trial has broken the confidence of a large part of the citizens in the impartiality of the judicial system. Along with this, the media have publicized the requests for imprisonment of some of these young people. The result is that the defendants and their families do not want to risk ending up in prison, which would break their life projects, and they opt for pragmatism, since neither their innocence nor the best of defence strategies can guarantee them an acquittal.

The reform of the Penal Code in 2015 and its potential consequences went unnoticed at the time. One of its perverse new features was the incorporation of an aggravated form of the crime of public disorder, which provides for various cases such as going with a covered face, carrying dangerous objects, or holding well-attended demonstrations, which carries a penalty of 1 to 7 years in prison. If we add to this some possible crimes of damages, of attack to the authority and of injuries, even if they are light, the penalties can be compared to those of a homicide. This crime had not been used until now, but the Prosecutor's Office began to use it in these last demonstrations, aware of the pressure this puts on the accused. The Prosecutor's Office is not the only protagonist in this dynamic. The Generalitat, in the name of the Department of Home Affairs and the Catalan police agents, is the one that conditions the closing of the agreement to the full payment of the compensations for injuries and for the damages in the police arsenal.

This situation is placing many defendants at a dead end. In the case of the 2018 and 2019 demonstrations, many of the defendants were very young and this is their first experience of repression. The system is being configured in such a way that only people with a political background and broad social support will be able to take the risk of going through a repressive judicial procedure. The rest of the anonymous people will not be able to assume the immolation that comes with defending their rights. The rage that comes from confessing to acts that were not committed, together with the progressive distrust of institutions, can mark a generation. As a society we cannot allow abuse and fear to represent our judicial system. The Government of the Generalitat cannot continue to be part of this repressive framework and at the same time continue to claim a country based on rights.

Laia Serra is a criminal lawyer

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