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THE TRUTH ABOUT
CATALONIA’S
BID FOR
INDEPENDENCE
Last update: 10 October 2019
This document is subject to the evolution of the events
it contains and will be periodically updated. Please note
the date of the last update and, if necessary, request the
latest version from: [email protected]
1. Timeline of the Independence bid
CATALONIA’S BID FOR INDEPENDENCE
THE CATALAN INDEPENDENCE BID ON TRIAL
2. The acts of 2017 and their prosecution
3. The five Articles of Spain’s Criminal Code that landed the procès
defendants in the dock
4. Safeguards for the accused during the trial
5. Independence and safeguards of the Spanish legal system
6. Private prosecution: What is it?
THE TRUTH ABOUT SPAIN AND ITS CATALAN
REGION
7. The secessionists’ falsehoods
8. Spain is a state made up of Autonomous Communities
9. The price Catalonia is paying for the independence bid
10. Spain in international rankings
QUESTIONS AND ANSWERS
Contents
APPENDIX
CATALONIA’S BID
FOR INDEPENDENCE
1. Timeline of the
Independence bid
Massive demonstration day (or Diada) for independence11 SEPT
2012
“Consultative process” • Promoted by the Catalan Regional
Government [known as the Govern], presided by Artur Mas.
Suspended by Spain’s Constitutional Court.
• According to the Catalan regional administration [known as the
Generalitat] 2,305,290 citizens voted and 80.76% of them voted in
favour of independence.
9 NOV
2014
27 SEPT
2015
Elections to the Catalan Regional Parliament• Organised in accordance with Spanish law.
• 4,130,196 citizens voted. The independent parties with
parliamentary representation obtained 1,966,508 votes, 47.8% of
the valid votes and 72 of the 135 seats.
9 NOV
2015
“Resolution 1/XI of the Catalan Parliament, on initiating the
political process in Catalonia as a consequence of the
election results of 27 September 2015”
• The separatist parties approved said Resolution which, inter alia,
• says:
• “The Catalan Parliament solemnly declares the initiation of the
process to create an independent Catalan State in the form of a
republic.”
• “The Parliament of Catalonia, as a depositary of sovereignty and as
an expression of the constituent power, reiterates that this chamber
and the democratic uncoupling process from the Spanish State will
not be subject to the decisions of the institutions of the Spanish
State, in particular of the Constitutional Court, which it considers
lacks legitimacy and competence as a result of the judgment
handed down in June 2010 on Catalonia’s Statute of Autonomy,
previously voted by the people in referendum, among other
judgments.”
6
11 JAN
2016
Investiture of Carles Puigdemont as president of the
Generalitat• In response to a demand by the CUP coalition, Artur Mas renounced
his investiture as President of the Generalitat and chose Carles
Puigdemont as his successor.
28 SEPT
2016
11 APR
2017
Carles Puigdemont announces a referendum• In the Catalan Regional Parliament, Carles Puigdemont announced:
“Catalan demands will, therefore, be resolved as follows: either we
hold a referendum, or we hold a referendum. I say this again: ‘Either
we hold a referendum, or we hold a referendum’ (Loud and prolonged
applause.) Let it be clear, I repeat, that we will seek agreement to the
very end. We will work with determination to hold a referendum in
agreement with the [Spanish] State at all times, but if we reach the end
of this term of parliament and there has been no positive reply in this
respect, we will be prepared and ready to climb up the last step before
effectively proclaiming Catalonia’s independence and, at the latest, call
a referendum for the second half of September next year. With this we
will fulfil the mandate we were given on 27 September.”
Carles Puigdemont tweets a photo of himself with the 5
notifications sent to him by the Constitutional Court.Tweet of Carles Puigdemont, 11 April 2017, 11:57:
• “Today I've received the fifth notification from the Constitutional
Court. We will not stop moving forward.”
14 JUL
2017
Carles Puigdemont reshuffles the Govern• Front page of the newspaper Ara of 15 July:
• “Tailor-made Govern for 1 October. Puigdemont is only replacing
regional department heads of the PDECat party to face the final
stretch of the referendum, in a decision which the opposition
denounces as a purge.”
• Front page of the newspaper El Punt Avui of 15 July:
• “Strengthened for 1 October. Firmness: Puigdemont renews part of
• the Govern to face the referendum cohesively.”
• Front page of the newspaper El País of 15 July:
• “Junqueras takes control of a desperate government. Puigdemont
replaces hesitant department heads in order to invest fully in the
referendum. Rajoy considers dialogue impossible after ‘the purge
and triumph of the radicals’. Juncker restates that an independent
Catalonia would be left outside the European Union.”
7
29 AUG
2017
Carles Puigdemont explains the difference between the
referendum organised for 1 October 2017 and the
consultation of 9 November 2014• Reply by Carles Puigdemont in a citizen's interview via FacebookLive:
“The difference between the one on 9 November [2014] and this
referendum is that we will abide to the result, whichever way it falls.
Because we consider it to be politically binding. And that’s why I said
that now the ability to change things is in the hands of each one of
you. You have the ability to change things. The Govern will not decide
this for you, neither will parliament or the political parties, or powers in
general. The 1 October vote will have consequences and, therefore, all
those who may have doubts should not have any about our
commitment: the Govern will implement whatever result emerges from
the polls.”
• Reply by Carles Puigdemont in a citizen's interview via FacebookLive:
“Àngels is asking me whether I am convinced that ’yes’ will win. Well,
I’m not convinced that either ’yes’ or ’no’ will win. What I am
convinced of is that there should be a large turnout. And that the
result - whether a ’yes’ or a ’no’- will be, for me, the sovereign result,
the democratic result. If the winning vote is ’yes’, we will implement
the Transition Act and begin the transition process. If ’no’ wins, then
there will be regional parliament elections.”
6 SEPT
2017
The separatist parties approve, in the Catalan Regional
Parliament, “Act 19/2017, on the referendum on self-
determination”• Article 2: The people of Catalonia are sovereign political subjects and,
as such, they exercise the right to freely and democratically decide
their political status.
• Article 3.3: All authorities, individuals and legal entities that directly
or indirectly take part in preparing, holding and/or implementing the
result of the referendum are protected by this Act, which implements
the exercise of the right to self-determination that forms part of the
current legal system.
• Article 4.3: The result of the referendum is binding.
• Article 4.4: If, after counting the votes validly cast, there are more
affirmative than negative votes, such a result means the independence
of Catalonia. For that purpose, the Parliament of Catalonia, within two
days after the official results have been proclaimed by the Electoral
Board, will hold an ordinary session to make the formal declaration of
Catalonia’s independence, define its effects, and initiate the
constitutent process.
8
7 SEPT
2017
The separatist parties approve, in the Catalan Regional
Parliament, the “Act on the Legal Transition and the
Founding of the Republic”• Prior to the processing of the uncoupling Acts, several Resolutions
had been handed down by the Constitutional Court which prevented
the processing of any initiative to hold a referendum. The separatist
parties, however, decided to pass these Acts.
• Article 1. Catalan State. Catalonia is constituted as a rule-of-law,
democratic and social Republic.
• Article 3. Supreme law. Until the Constitution of the Republic is
approved, this Act is the supreme law of the Catalan legal system.
• Article 88.2. […] None of the decisions of the constituent Assembly, in
exercise of the constituent power, may be controlled, suspended or
challenged by any other power, court or tribunal.
• Third Final Provision. This Act shall come into effect following its
approval by the Parliament of Catalonia, its official publication, and
compliance with the provisions set out in Article 4.4 of the Act on the
referendum on self-determination of Catalonia.
12 SEPT
2017
Interview with Carles Puigdemont at El Món on RAC1, the
most listened to radio show in Catalonia.• Question by Jordi Basté: Will this be a repetition of 9 November
2014?
• Carles Puigdemont: 9 November, which, for me, was a great
milestone for this country and forms part of Catalonia’s democratic
heritage, had characteristics which the referendum [of 1 October]
does not have. The referendum [of 1 October] has a simple binary
yes or no reply, it is organised by the Govern, its result will be
binding, and there is a clear determination for the result to be
applied by everyone.
• Jordi Basté: So, if the ‘yes’ wins on 1 October, and there are polls,
and people go and vote…
• Carles Puigdemont: …the Legal Transition Act will enter into force
and we will start to function as an independent state.
• Question by Rocío Martínez-Sampere: […] A week ago I saw you in
the Catalan Parliament giving a standing ovation after the approval
of a foundational Act of the republic which puts an end to the
Catalan institutions that are legally regulated in Catalonia’s Statute
of Autonomy. In addition, it was approved with 47.8% of the votes
and a simple majority of seats, without the participation of at least
half of the citizens. Do you believe this is democratic? And if you
do—and I understand you do because you were applauding—can
you give me an example of any democracy in the world where the
basic laws that regulate coexistence can be eliminated by a simple
majority and new ones can be enacted by such a narrow majority?
7 SEPT
2017
• Carles Puigdemont: Just one clarification. The foundational Act was
approved, but it will not come into force if it is not backed by
citizens at the polls. I think this is a relevant point which should be
taken into account in determining whether such a significant
measure taken by a parliament has democratic guarantees or not.
Secondly, what I would like is to find precedents in the Spanish State
like the precedent we have found in other EU countries such as the
United Kingdom.
• Question by Antón Losada: There is a very important percentage of
Catalans who do not accept this legal order voted in the Catalan
Parliament, who do not want the referendum to be held, who are
not going to take part in the referendum, and who are not going to
collaborate in the holding of the referendum. First, I would like to
know whether you have anything to say to them, and second, what
do you intend to do when these Catalans who do not accept this
new legal order start to give you a taste of your own disobedience
medicine?
• Carles Puigdemont: First, let’s read this the other way round. If we
take into account that there is a majority that considers that this
should not be done, what should we say to those who consider that
it should indeed be done? Do we tell them to stay at home and shut
up? Do they have fewer rights than the rest? Because we don’t know
which of the two is the largest group—the only way of knowing who
can rally the most followers is by holding a referendum.
27 SEPT
2017
Order of the High Court of JusticeThe High Court of Justice of Catalonia ordered the Mossos d’Esquadra
(Catalan regional police), the Civil Guard, and the National Police to
prevent the use or opening of premises or buildings designated for
holding the referendum, or, if applicable, their closure if they had been
opened. It also ordered the seizure of all the material relating to the
referendum found at those premises. And lastly, it ordered the
prevention of the activity of public buildings used as logistic
infrastructure for and/or counting the votes of the referendum.
1 OCT
2017
Referendum on self-determination• Promoted by the Govern of Carles Puigdemont. Suspended by the
Constitutional Court.
• According to the Generalitat 2,286,217 citizens voted and 90.718% of
them voted in favour of independence.
10
3 OCT
2017
Speech by King Felipe VI on TV.“For a long time now, certain Catalan officials have been violating—
repeatedly, consciously and deliberately—Spain’s Constitution and
Catalonia’s Statute of Autonomy, which is the law that recognizes,
protects and safeguards their historical institutions and their self-
government. With their decisions, they have systematically
contravened provisions that have been legally and legitimately
approved, thus showing unacceptable disloyalty towards the powers
of the Spanish State. A state which, precisely, those officials represent
in Catalonia. […] To the citizens of Catalonia—to all of you—I want to
repeat once again that for decades we have been living in a
democratic state that offers constitutional channels for any individual
to defend their ideas, as long as they respect the law. Because, as we
all know, without this respect there can be no democratic social
harmony, in peace and freedom—not in Catalonia, not in the rest of
Spain, nor anywhere else in the world. In our constitutional and
democratic Spain, you well know that there is a space for concord and
for coming together with all your fellow citizens.”
10 OCT
2017
Carles Puigdemont declares and suspends independence.Carles Puigdemont in the Catalan Regional Parliament: “There is a
before and an after 1 October. And we have achieved what we
undertook to do at the start of the term of parliament. Now, at this
historic juncture, and as President of the Generalitat, I hereby, present
before you and our fellow citizens the results of the referendum, and
propose that the people’s mandate for Catalonia become a republic
and an independent State. (Loud and prolonged applause) This is what
we are doing today with all solemnity, responsibility and out of
respect. And, with that same solemnity, the Government and I propose
that Parliament suspend the effects of the declaration of
independence so that in the next few weeks we can engage in a
dialogue without which it is not possible to reach an agreed solution.”
24-25 OCT
2017
The JxSí party members of the Catalan Regional Parliament
hold more than 100 events all around Catalonia to explain
what would happen in the following days• Germà Bel in L’Hospitalet on 25 October 2017:
“There will be a Govern and a strategy will be implemented. […] Look,
there are three possible results. Three. And I will name them without
any order of probability: surrender, defeat or victory. Rule out
surrender.
11
[…] For a long time—not for months but for years—at events like this I
have been saying that it is very important to mobilise society, but in
major mobilisations children will not be allowed to attend. Well, 1
October was a test run, right? […] The Spanish Government will remove
the Catalan Govern. And the Catalan Govern will or will not obey. And
it will not obey. The Spanish Government will have to decide whether it
intends to imprison the Catalan Govern. And then, the Spanish
Government may be able to arrest them or not. But if the Spanish
Government tries to arrest the Catalan Govern—which does not
consider itself removed even when it does not have the governing
tools of state that normal states have—and orders their arrest and
they cannot be arrested, it is ceasing to be the State in Catalonia. […]
If this happens—and I am not saying I want it to happen—I can say
that, if this happens, if Article 155 fails because they fail to implement
it and, believe me, this can easily be the case, they will have to decide
whether to apply Article 116 and the state of emergency, which means
bringing the armed forces to Catalonia. But that’s up to them to
decide. It’s true that if they decide to do this, international anger will
be huge. Huge. But can you imagine that not 800,000 people, or
700,000, or 600,000, or 500,000, or 400,000, or 300,000, or even
200,000 people, but 100,000 or 150,000 people pour out onto Gran
Vía [one of Barcelona’s main thoroughfares] in the midst of a state of
emergency without having received any instructions to do so? That’s a
failed state.
26 OCT
2017
Carles Puigdemont calls a press conference to announce the
calling of regional elections which he later suspendsCarles Puigdemont called a press conference to announce the calling
of elections to the Autonomous Community of Catalonia.
• Jordi Cuminal, member of the Catalan Regional Parliament for the
JxSí party, tweeted: “I don’t agree with the decision to call elections. I
hereby give up my seat in the Catalan Parliament and cancel my
membership in @Pdemocratacat.”
• Albert Batalla, member of the Catalan Regional Parliament for the
JxSí party, tweeted: “I respect the decision, but I do not agree with it at
all. Right now, I resign as MP and cancel my membership in
@Pdemocratacat.”
• Gabriel Rufián, MP for the ERC party in Spain’s Congress of Deputies
tweeted: “155 pieces of silver”
• Carles Puigdemont announced he would not call elections.
• Raphael Minder, New York Times correspondent, tweeted: “Even by
the high standards of confusion in Catalan conflict, latest twists and
turns set a new benchmark: elections were off, on and now off.”
12
27 OCT
2017
Declaration of independence in the Catalan Regional
ParliamentCarme Forcadell, speaker of the Catalan Regional Parliament: “By virtue
of all the foregoing, as democratic representatives of the people of
Catalonia, in the free exercise of the right to self-determination, and
pursuant to the mandate received from the citizens of Catalonia;
• We constitute the Catalan Republic, as an independent and sovereign,
democratic and social state under the rule of law.
• We provide for the entry into force of the Act on the Legal Transition
and the Founding of the Republic.
• We initiate the democratic, citizen-based, cross-cutting, participative
and binding constituent process.
• We assert our will to initiate negotiations with the Spanish State,
without prior conditions, aimed at establishing a collaboration system
to the benefit of both parties. The negotiations shall necessarily be on
equal terms.
• We inform the international community and the European Union
authorities of the establishment of the Catalan Republic and the
proposal to negotiate with the Spanish State.
• We urge the international community and the European Union
authorities to intervene to stop the ongoing violation of civil and
political rights, and to monitor and witness the negotiation process with
the Spanish State.
• We express our will to construct a European project which strengthens
citizens’ social and democratic rights, as well as our commitment to
continuing the uninterrupted and unilateral application of the provisions
of European Union law, and the provisions of Spanish law and Catalan
regional law that transpose EU law.
• We affirm that Catalonia has the unequivocal will to join the
international community as soon as possible. The new state undertakes
to respect the international obligations that are currently applied in its
territory and to continue being part of the international treaties to
which the Kingdom of Spain is party.
• We appeal to states and international organisations to recognise the
Catalan Republic as an independent and sovereign state.
• We urge the Government of the Generalitat to adopt the necessary
measures to enable the full effectiveness of this declaration of
independence and of the provisions of the Act on the Legal Transition
and the Founding of the Republic.
• We call upon each and every citizen of the Catalan Republic to make
us worthy of the freedom that we have been given and to construct a
state that translates the collective inspirations into action and conduct.
• We assume the mandate of the people of Catalonia expressed in the
referendum of self-determination of 1 October and declare that
Catalonia has become an independent state in the form of a republic.”
13
27 OCT
2017
The Spanish Senate approves Article 155 and the Spanish
Government removes the Govern and calls elections to the
Catalan Regional Parliament for 21 December 2017• eldiario.es: “On Friday the plenary of the Senate ratified the
application of the measures of Article 155 of the Spanish Constitution,
which had been approved by the Spanish Government to intervene
the Autonomous Community of Catalonia. A long plenary session,
lasting for more than six hours, resulted in no surprises—the absolute
majority of the People’s Party (PP), together with the votes of the
Socialist Party (PSOE) and the Ciudadanos party, was overwhelming
against the rest of the political groups: 214 votes in favour, 47 votes
against and one abstention. The approval of the measures which will
now have to be decreed by the Spanish Cabinet did not give rise to
applause or joy on the faces of the senators; quite the opposite, even
for the PP MPs.”
• El País: “This was the surprise in Rajoy’s appearance. The President of
the Spanish Government announced a call for regional elections in
Catalonia next 21 December. Following the proclamation of the
Catalan Regional Parliament, Mariano Rajoy gave a press conference in
Moncloa shortly after 8 pm to announce the first measures of his
Government in response to the separatists’ defiance. First, he informed
the country of the removal of Carles Puigdemont and the entire
Catalan Regional Government, as well as of the termination of certain
institutions of the Generalitat. Just a few minutes later, he announced a
call for snap elections.”
28 OCT
2017
Assessment of the events by Andreu Mas-Colell, head of the
Catalan Economy Department in the Govern of Artur Mas
from 2010 to 2016• Diari Ara, Andreu Mas-Colell:
“One day, we will ask ourselves how we managed to transform a
victory, that of 1 October, into a defeat. Most particularly, those who
on that fateful Thursday 26 October had the audacity to accuse
President Puigdemont, who was negotiating an outcome which most
likely would have been better than the one ahead of us, should ask
themselves that question and reflect on the answer. We should banish
the term ‘traitor’ from our political jargon. It has caused great harm. It
is extraordinary how the fear of such a term has influenced our
political leaders.”
• TV3 broadcast the image of the half-empty parliament with the
text “THE CATALAN PARLIAMENT DECLARES THE INDEPENDENCE
OF CATALONIA” showing the separatist MPs standing up chanting
the anthem of Catalonia and the empty seats of the pro-unity
constitutionalist MPs who had left the chamber before the voting.
14
“In this scenario, the call, within Article 155, for regional elections on
21 December has been a surprise, at least for me. Indeed, last week he
predicted that they would never be called, because the central
government would never end up finding a sufficiently favourable
moment. This call is a tactically ingenious move. Spain’s central
government has so far played a smart endgame (post 1 October).”
30 OCT
2017
Carles Puigdemont appears in Brussels. 2 October 2017 /
Oriol Junqueras is sent to prison by National High Court
judge Carmen Lamela• In his book La crisis catalana: Una oportunidad para Europa [The
Catalan Crisis: An Opportunity for Europe] Carles Puigdemont wrote
that there was an agreement for him to leave the country:
“After 27 October, the majority of the Catalan Government left
Catalonia to move abroad. I stayed, as did the Vice President. On the
27th I slept at home, and also on the 28th. But in the evening of that
very 28 October, at an undisclosed location in the province of Girona, I
met with Marta Rovira i Vergés, secretary-general of the Esquerra
Republicana de Catalunya (ERC) party, who had just spoken to
members of the Government in exile and to other people. We met to
decide what steps it was advisable to take next. After analysing the
situation, we concluded that the best option was for us to also go into
exile. That’s what we decided.”
• Oriol Junqueras said during an interview with Crític that there was an
agreement to go on with business as usual.
Question: Gabriel Rufián said during an interview with Crític that there
was an agreement that on the Monday after the unilateral declaration
of independence, all the Department heads would go to their
respective Departments. Was this really the case? And if so, why didn’t
it happen?
Oriol Junqueras: Yes. I went there. So did Josep Rull, who was the first,
early in the morning. Other department heads were also at their posts
first thing in the morning.
Question: Did Puigdemont’s decision to go into exile surprise you?
Didn’t you know anything about that?
Oriol Junqueras: I respect everyone’s decisions. It was a very difficult
moment. And everything is understandable.
Elections to the Catalan Regional Parliament• Organised pursuant to Spanish law.
• 4,392,891 citizens voted. The separatist parties with parliamentary
representation obtained 2,079,340 votes, 47.5% of the valid votes,
and 70 of the 135 seats.
21 DEC
2017
15
THE CATALAN
INDEPENDENCE BID
ON TRIAL
2. The acts of 2017 and their
prosecution
INTRODUCTION
February 12 was the first day of the oral hearing of special case 20907/2017, at which
the seven-judge Court of the Criminal Chamber of the Supreme Court tried twelve
leaders of the Catalan independence bid (popularly known as the procès). For the
Spanish justice system and for Spain’s highest jurisdictional court, this is one of the
most important trials since the beginning of constitutional democracy in 1978, given
the nature of the acts on which judgment is being passed, and their national and
international repercussion.
The preliminary proceedings of the case started with the filing in October 2017, by the
then Chief Public Prosecutor (José Manuel Maza), of a criminal complaint against 18
leaders of the secessionist process, which was admitted for examination. Judge Pablo
Llarena Conde was appointed as the investigating judge of the case, and conducted
the corresponding proceedings between November 2017 and July 2018, charging the
defendants with the crimes of rebellion, misappropriation, and disobedience. The
Appeals Chamber of the Criminal Chamber confirmed all the terms of these charges.
Only 12 of the separatist leaders were tried after 12 February, because Spanish
criminal procedural law does not provide for prosecution in absentia. Six of them
absconded from Spanish justice and are now in Belgium, Switzerland, and the United
Kingdom.
The defendants whose prosecution started on 12 February are Oriol Junqueras (in
preventive detention), Jordi Turull (in preventive detention), Raül Romeva (in
preventive detention), Josep Rull (in preventive detention), Dolors Bassa (in preventive
detention), Joaquim Forn (in preventive detention), Jordi Sánchez (in preventive
detention), Jordi Cuixart (in preventive detention), Carme Forcadell (in preventive
detention), Carles Mundó (released on bail), Santi Vila (released on bail) and Meritxell
Borrás (released on bail). The first nine were charged by the Public Prosecution Service
with the crime of rebellion aggravated by that of misappropriation, and the State
Legal Service charged them with a crime of sedition linked to that of
misappropriation. For its part, the private prosecution brought by the Vox political
party added a further crime: that of having formed a criminal organisation. The last
three, in turn, were tried for the crimes of disobedience and misappropriation.
Carles Puigdemont, Antoni Comín, Clara Ponsatí, Marta Rovira, Lluìs Puig, and
Meritxell Serret were not tried because they absconded from Spanish justice, although
they were charged with the offences of rebellion and misappropriation.
18
Not permitting defendants to be judged in absentia is one of the safeguards
enshrined in Spain’s criminal procedural law. The fugitives will be arrested and handed
over to the judicial authorities if they return to any part of Spanish territory.
ACTS CONSTITUTING CRIMES
The acts considered by the investigating judge in the indictment charging the
defendants, and by the Public Prosecution Service, the State Legal Service, and the
private prosecution, in their writs of provisional conclusions, as constituting crimes are
the following:
• The approval on 6 and 7 September 2017, at the Catalan Regional Parliament, of the
following Acts: i) The Referendum Act, which set forth the voting rules for a binding
consultation on the self-determination of Catalonia, creating a central electoral board,
territorial electoral boards, an electoral roll, and other details; and ii) The Legal
Transition Act of the Republic, which de facto repealed Spain’s Constitution and
Catalonia’s Statute of Autonomy in Catalonia, without the majority required to amend
the Statute (a 2/3 majority), and set forth transitional provisions for the
institutionalisation of the new republic as the form of the independent Catalan State.
Both Acts were presented in defiance of the decision that had previously been handed
down by Spain’s Constitutional Court. They were processed via an urgent mechanism
in less than 20 hours each, infringing the rights of the other parliamentary groups, as
was declared by the Constitutional Court. They were approved by the pro-
independence majority—which had a wafer-thin majority at the Catalan Regional
Parliament, not even enough to amend the Catalan Statute (this requires two thirds of
the Chamber, i.e. 90 members)—with the abstention of certain members of the En
Comú Podem group, as well as in the absence of the opposition. The two Acts were
suspended by the Constitutional Court. The Referendum Act on the very 7 September
(finally declared unconstitutional on 17 September 2017), and the Legal Transition Act
on 12 September (finally declared unconstitutional on 8 November 2017). In all of the
Constitutional Court’s decisions, the defendants were ordered to prevent or stop any
initiative that involved ignoring or eluding the decision to suspend holding the
referendum.
• The mob siege of the Economy Department of Catalonia’s Generalitat in Barcelona
on 20 September 2017, when a crowd prevented the mobility of the judicial
committee and of the members of the national law enforcement bodies who were
accompanying them, causing damage to police vehicles and casting insults and
aspersions.
• In view of the repeated non-compliance by the Generalitat authorities, criminal
proceedings were initiated at the High Court of Justice of Catalonia.
19
These proceedings led to a court ruling on 27 September 2017, which ordered the
closure of the premises where the referendum was going to be held or which were
necessary for its infrastructure (centres for processing, managing or counting votes),
and the seizure of all the material relating thereto. The national law enforcement
bodies acted on 1 October in compliance with that court ruling.
• The holding on 1 October 2017 of an illegal referendum on self-determination in the
entire territory of Catalonia, which was partially carried out with a universal electoral
roll, without an electoral administration, pursuant to a Catalan Regional Parliament Act
of 6 September that was declared unconstitutional by the Constitutional Court on 17
September, which had also ordered—and this did take place—the dissolution of the
central and territorial electoral boards.
• When the national law enforcement bodies sought to enforce the court order to
close the polling stations and hand over the electoral material, in certain places there
were strong altercations with individuals who had gathered there to prevent the
action of the national police.
• The unilateral declaration of independence by the Catalan Regional Parliament on 27
October 2017 (only 70 out of 135 voted in favour).
WHAT HAPPENED IN SEPTEMBER AND OCTOBER 2017?
• During the sessions held in the Catalan Regional Parliament on 6 and 7 September
2017, the Referendum Act and the Legal Transition Act were passed, contrary to the
orders of three Constitutional Court decisions. The secessionist parliamentary
majority imposed the approval of these uncoupling Acts in less than 24 hours,
thereby violating the democratic rights of the non-secessionist opposition. The
approval of these Acts also flouted Catalonia’s own Statute of Autonomy as well as
Spain’s Constitution, which were de facto repealed by this vote. The opposition
parties left the parliament in protest.
• Pursuant to the aforementioned Acts, the so-called “referendum” of 1 October
would be binding, irrespective of voter turnout and the number of votes in favour,
and would lead to secession within 48 hours. Even though the opposition parties
had repeatedly expressed their rejection of this process, the secessionists went
ahead with their plans.
• On 7 and 12 September, the Constitutional Court suspended both Acts and
reiterated the duty to prevent or to stop any initiative that involved ignoring or
eluding their suspension. Despite this, the Generalitat authorities continued to
prepare the referendum.
20
• Subsequently, the Constitutional Court confirmed the infringement of democratic
rights in the enactment of the uncoupling Acts. Moreover, it declared these Acts
unconstitutional, and warned of the consequences for the Catalan authorities if the
Court’s mandate were not respected. The Catalan authorities were warned
repeatedly that they would be in breach of the Constitution if they went ahead with
their plans.
• On 20 September 2017, a judicial committee and a number of law enforcement
officers were carrying out a court-ordered search of the Catalan Economy
Department building in Barcelona. These court officials and the Civil Guard officers
were unable to leave the building for several hours. Outside, altercations were
taking place and law enforcement vehicles were being destroyed.
• In view of the actions of the Generalitat authorities, criminal proceedings were
initiated at the High Court of Justice of Catalonia. These proceedings led to a court
ruling on 27 September 2017, which ordered the closure of the premises where the
referendum was going to be held or which were necessary for its infrastructure
(centres for processing, managing or counting votes), and the seizure of all the
material relating thereto. The national law enforcement bodies acted on 1 October
in compliance with that court ruling.
• The “referendum” of 1 October 2017 did not have the minimal democratic
safeguards, as defined by institutions such as the Venice Commission, neither in the
manner in which it was called, the voting process itself, or its outcome. There was
no electoral roll, nor any “no” campaign. There were, however, multiple irregularities,
and the process was not observed by any recognised international institution
(OSCE, Council of Europe, EU). The votes, therefore, were cast under absolutely
irregular circumstances and considerable tension.
• According to the then President of the Generalitat, Carles Puigdemont,
approximately 42% of the electorate participated, with 90% of this 42% voting in
favour (around two million people). There is, however, no objective element that
confirms that data.
• The Government of the former Catalan President, Puigdemont, ignored the Spanish
Government’s requests that he call elections and for the restoration of
constitutional and statutory legal order. These requests were made pursuant to
Article 155 of the Spanish Constitution (principle of federal coercion, based on a
similar Article included in the Basic Law for the Federal Republic of Germany).
• On 27 October, despite the requests made by the Spanish Government and by
other political and social stakeholders, and despite all the rulings of the
Constitutional Court, the secessionists declared a “Catalan Republic”, with votes in
favour from 70 out of 135 members of the Catalan Regional Parliament,
representing little over 45% of the electorate. Here it should be underscored that
amending Catalonia’s Statute of Autonomy requires a majority of 2/3 of parliament.
21
• Consequently, the Executive led by the then President of the Spanish Government
Mariano Rajoy requested the Senate to approve the application of Article 155 of
the Spanish Constitution.
• Following negotiations with the PSOE [the Socialist party], then the opposition, and
with the Ciudadanos party, this application was approved for a limited period of
time and focused on removing the authorities of Carles Puigdemont’s Government
and calling regional elections in Catalonia on 21 December.
• Application of Article 155 served to restore order and safeguard Catalonia’s
institutions, whose activity was not suspended, and also to prevent them from
making any further illegal use of the autonomous community’s resources and
institutions.
The Spanish Government, with the authorisation of an absolute majority of the Senate,
removed the Government of the Autonomous Community of Catalonia on that same
day, 27 October; it maintained the Generalitat institutions and called for regional
elections on 21 December 2017. These measures were taken pursuant to the
provisions of Article 155 of the Spanish Constitution, which stipulates:
If an Autonomous Community does not fulfil the obligations imposed upon it by theConstitution or other laws, or acts in a way seriously prejudicing the general interestsof Spain, the Government, after lodging a formal request with the President of theAutonomous Community and, in the event of not receiving satisfaction therefor, may,following approval granted by an absolute majority of the Senate, take the measuresnecessary in order to enforce compliance with said obligations, or in order to protectthe above-mentioned general interests.With a view to implementing the measures provided in the foregoing clause, theGovernment may issue instructions to all the authorities of the AutonomousCommunities.
This Article draws its inspiration from Article 37 of the Basic Law for the Federal
Republic of Germany, which refers to the necessary steps that the Federal Government
may take if a Land acts against the general interest; Article 155 constitutes the
“federal coercion” clause for cases in which the authorities of an autonomous
community—previously forewarned by the central government—jeopardise the
general interests of Spain and do not comply with the law. To counter these measures,
the Catalan Regional Parliament filed a constitutional challenge before the
Constitutional Court, as did Unidos Podemos, the confederal parliamentary group in
Spain’s Congress of Deputies. The Constitutional Court dismissed these two
challenges on 2 July 2019.
• The Catalan elections of 21 December were the third to be held in five years; that is
to say, from the earliest stages of the secessionist process. They produced similar
results in terms of the balance of secessionist forces—around 47% of the electorate—
and opposing forces.
22
• The caretaker Government of Pedro Sánchez (PSOE) is committed to dialogue in
Catalonia and to restoring harmony to a divided society, as well as to dialogue
between the Spanish Government and the Catalan Regional Government, channelled
through constitutional and statutory mechanisms.
HOW ARE THE CRIMINAL PROCEEDINGS BEING
CONDUCTED?
• As a result of these events at the end of 2017, various judicial proceedings have
been opened in Spain. The proceedings brought against 25 individuals before
Spain’s Supreme Court involve the principal figures responsible for these events. In
these proceedings, seven of the accused have fled the country, and nine are in
preventive detention. The accusations include crimes of rebellion, sedition,
misappropriation of public funds, and disobedience. These crimes, whether or not
they are defined in exactly the same terms, are included in the criminal codes of
most Western democracies.
• Some people have categorised those individuals currently in preventive detention
as political prisoners. In fact, they stand accused of committing crimes defined in
the Spanish Criminal Code and have been tried with all the safeguards inherent to a
democratic state under the rule of law. No intergovernmental organization
operating in the sphere of human rights, nor any NGO active in this same field (for
example, Amnesty International or Human Rights Watch) has recognised these
individuals as political prisoners or prisoners of conscience. They have, however,
criticized their lengthy preventive detention while awaiting trial.
• Under Spanish procedural law, the decision to adopt the measure of preventive
detention lies entirely with the judge. This measure, provided for in Spanish law (as
it is in that of all comparable countries, some with even longer terms), is in
compliance with the Charter of Fundamental Rights of the European Union and the
European Convention on Human Rights (Council of Europe). In the present case, the
Court has considered this measure to be justified by one or more circumstances:
flight risk, the risk of recidivism, and/or the risk of destruction of evidence. The
Constitutional Court has recently confirmed the proportionality of this measure.
• The trial, which began on 12 February 2019, was public and carried out with the
utmost transparency. Moreover, the Supreme Court guaranteed, both through
television broadcasting and online streaming, that it could be followed by the
widest possible audience. As is customary in a democratic state, there was no
recognition or accreditation of “international observers”. Any individual wishing to
“observe” the court proceedings in person was free to do so, with the only
limitation being the space available. However, the courtroom used was larger than
usual. Sufficient space was reserved to ensure that two or three family members of
each defendant could be present. Catalan-Spanish/Spanish-Catalan interpretation
was also available so that any of the accused could choose to express themselves in
their first language.
23
• The Spanish judiciary is independent from the executive and legislative powers. This
independence is expressly enshrined in the Spanish Constitution.
• The proceedings regarding the acts related to the independentist process in
Catalonia were held in the Criminal Chamber of the Supreme Court, which is a body
with national jurisdiction. Normally, it is an appeals court, but it also has powers to
hear criminal proceedings brought against individuals in public office. In this case it
holds jurisdiction pursuant to the Statute of Autonomy of Catalonia (Article 57.2).
• The Criminal Chamber of the Supreme Court is a completely independent court. Its
judges are selected by the General Council of the Judiciary with an enhanced
majority and they are appointed for indefinite terms, ending upon their retirement.
This provides a maximum guarantee of their independence: It is common for
judges to be labelled as “conservative” or “progressive”, but the reality is that their
decisions are based not on political but on strictly legal criteria.
• Individuals’ rights are rigorously safeguarded in Spanish criminal proceedings, more
so than in most of Europe. These proceedings fully respect the fundamental rights
of the accused: presumption of innocence; the right to a defence; the right not to
incriminate oneself; and the right to a fair trial.
To provide evidence of the circumstances in which the acts were committed, in
addition to testimony from experts (on financial matters; physicians; and sociologists),
more than 500 witnesses appeared: 256 at the request of the Public Prosecution
Service and the State Legal Service, 56 at the request of the private prosecution, and
the rest at the proposal of the defence (all parties coincided in requesting the
deposition of certain people). Witnesses included 51 officials of the Generalitat, 69
witnesses of the siege of the Economy Department in Barcelona on 20 September
2017, seven former members of the Spanish Government, 13 officials of the Catalan
Regional Parliament, 115 officers of the National Police (including five commanders),
22 politicians, 37 members of the Catalan regional police force (including 21
commanders), 84 Civil Guard officers (including two commanders), and two members
of the Barcelona municipal police force.
The politicians called to testify include former President of the Spanish Government
Mariano Rajoy, former Vice-President of the Spanish Government Soraya Sáenz de
Santamaría, and former Minister of the Treasury Cristóbal Montoro. The mayor of
Barcelona, Ada Colau, and the city’s former mayor, Xavier Trías, were also called, as
were the Basque Regional President, Iñigo Urkullu, and several nationalist members of
the Congress of Deputies, among others.
In preliminary questioning—at the start of the oral hearing—the Court finally allowed
the use of the Catalan language, and for that reason admitted the presence of two
interpreters in the courtroom. Places were also foreseen for members of the families
of the defendants and the presence of journalists taking turns in the courtroom,
although, also at the decision of the Court, all the sessions of the oral hearing—held
in the mornings and afternoons on Mondays, Tuesdays, Wednesdays, and
Thursdays—were broadcast live for the duration of the trial.24
The court allowed parliamentary observers but not international observers,
considering them completely unnecessary and inappropriate, and because it believed
that the live broadcast of the sessions offered total transparency. Spaces were likewise
created for the many journalists of more than a hundred accredited news media.
The defendants in preventive detention (nine of the 12 who were going to be tried)
remained in that situation because first the investigating judge, and later the Appeals
Court, considered that they met the requirements for detention: risk of flight and risk
of reoffending. Risk of flight has been justified by the fact that six of the accused had
already fled, and set up an infrastructure in Belgium and Switzerland that could be
used by the others. The risk of reoffending was observed in the declarations made by
the defendants, saying that they would behave in the same way as they did during the
periods when they allegedly committed the offences with which they were charged.
Once the oral hearing concluded, with the defendants’ turn to exercise their right to a
final word, the court adjourned to deliberate. The reporting judge, who is the
presiding judge Manuel Marchena, drew up a draft judgment which was submitted for
discussion among all members of the Court. The drafting of this report and
subsequent debate has taken months. Judgments are reached by majority, and judges
who disagree with the decision or with any of the arguments outlined in it may cast a
private dissenting vote (disagreement with the operative part of the judgment) or a
concurring vote (agreement with the decision, but disagreement with some or all of
the arguments).
The judgment handed down is final, but an appeal may be lodged against this
decision before the Constitutional Court, which will review whether the safeguards
and rights of the defendants have been respected.
If the Constitutional Court does not allow the appeal or delivers an unfavourable
verdict for the defendants, they may appeal to the European Court of Human Rights
of Strasbourg, which will only consider possible human rights infringements pursuant
to the Convention. According to 2017 data regarding the European Court of Human
Rights, 635 claims were declared inadmissible and only seven judgments were
delivered with regard to Spain (a very low admission rate).
25
Note: In the framework of the Catalan independence process, apart from the case at the
Supreme Court, there are three other criminal proceedings involving other judicial bodies.
The National High Court is investigating four people (Josep Lluís Trapero, Cesar Puig,
Pere Soler, and Teresa Laplana) for crimes of rebellion, for the first three, and the crime of
sedition for the latter. On the other hand, the High Court of Justice of Catalonia is also
investigating Lluís Corominas, Lluís Guinó, Anna Simó, Ramona Barrufet, Joan Josep
Nuet i Pujals, and Mireia Boya for alleged crimes of disobedience. Lastly, Investigating
Court no. 13 of Barcelona has a case open for the crimes of sedition, misappropriation,
malfeasance, and disobedience in a pre-trial investigation that has not yet concluded.
Moreover, the Constitutional Court has yet to rule on the decisions made by investigating
judge Llarena—which were upheld by the Supreme Court following an appeal, and
subsequently challenged before the Constitutional Court—regarding which the defence of
some of the individuals in preventive detention and some of the fugitives allege “restriction
of the right to representative political activity”, provided for in Article 23 of the Constitution.
Judge Llarena’s contested decisions were: i) denial of the request made by some of the
detainees and fugitives to physically attend the investiture vote, with the corresponding
appointment of a representative to take their place; ii) prohibition of the investiture of
Puigdemont and Turull because they were, respectively, a fugitive and a detainee in
preventive detention; and iii) suspension of the exercise of public office for the majority of
the defendants formally accused of rebellion by virtue of Article 384 bis of the Criminal
Procedure Act.
26
3. The five Articles of Spain's
Criminal Code that landed
the procés defendants in the
dock
The trial at the Supreme Court of Spain—in which 12 people were tried for the
criminal offences of rebellion, sedition, misappropriation, and disobedience—was a
criminal proceeding like many others that the Spanish criminal justice system
addresses every year. In these proceedings, as in every other trial held in Spain, the
only issues at stake are punishable acts, i.e. human actions which have violated the
law. And not just any law: only those provisions included in the Criminal Code.
The Criminal Code defines the acts that undermine the most important values for any
community, and sets forth the corresponding punishments. It does so proportionally
to the severity of the conduct involved, and also in proportion to the specific
circumstances under which each criminal offence was committed, and of each person
accused.
The Criminal Chamber of the Supreme Court, where the alleged criminal offences were
tried, did not decide what was on trial, nor could it have done so: rather, the charges
were based on punishable acts determined by an investigating judge, and on the
categorization of the criminal offences proposed by the accusing parties: the Public
Prosecution Service, the State Legal Service, and the private prosecution (acusación
popular) brought by the far-right party Vox.
It is incumbent upon the prosecution to convince the court that criminal offences have
been committed by presenting sufficient evidence to overcome the presumption of
innocence of the accused. The defence, in turn, seeks to prove the contrary, or to
contradict the prosecution's evidence.
What was at stake, therefore, in the so-called procès (Catalan independence process)
trial was to establish whether the 12 defendants had broken the law. Not all of them
were being accused of the same criminal offences. However, there were five specific
provisions on which this trial was based:
27
Rebellion“A conviction for the offence of rebellion shall be handed down to those
who violently and publicly rise up for any of the following purposes: [...]
5. To declare the independence of any part of the national territory.”
This is the most serious accusation (punishable with a prison sentence of
15 to 25 years), as this is an offence against the Constitution, and due to
its impact on society as a whole.
Violation of this provision, allegedly through a joint strategy, was
attributed to members of the former Govern, the former Speaker of the
Catalan Regional Parliament, and the principal leaders of two civil
society organizations, which, allegedly, collaborated in this rebellion by
inciting and directing the mobilization of their supporters and of
protesters on the streets to support the illegal measures adopted.
Art. 472
Art. 544
Sedition"A conviction for the offence of sedition shall be handed down to those
who, without committing the criminal offence of rebellion, publicly and
in an unruly manner rise up to prevent—by force or by unlawful
means—application of the law; any authority, official corporation, or
public officer from lawfully exercising their duties; enforcement of the
decisions of the latter; or enforcement of administrative or court
decisions."
The corresponding prison sentence for this crime is also very high (10 to
15 years, if the accused are the main perpetrators and are also persons
"in positions of authority"). The provision for this type of criminal
offence is essentially intended to defend public order, and ensure
application of the law and compliance with court decisions.
MisappropriationMisappropriation of public funds occurs when an official or civil servant
having the authority—whether under law, granted by an authority, or
undertaken through a legal transaction—to administer public assets
violates that authority in the exercise of their duties, to the detriment of
the public assets being administered.
This criminal offence (which can have a prison sentence of 4 to 8 years
when the most aggravating circumstances concur) has been attributed
to members of the Govern who allegedly devoted public resources to
the procès by, for example, ordering the use of public buildings to hold
the referendum, or allegedly paying "international observers".
Art. 432
28
DisobedienceAn offence incurred by "Authorities or civil servants who blatantly
refuse to duly fulfil court rulings, decisions, or orders from a higher
authority, handed down within the scope of their respective powers
and in compliance with legal formalities." This offence is punishable by
3 months to 1 year of prison.
Those accused of this criminal offence allegedly received direct orders
from the Constitutional Court, demanding that they abstain from
continuing with those of their actions that violated the Constitutional
Court's decision to suspend the referendum.
Art. 410
Art. 570
Criminal organizationIn the case of the private prosecution by the political party Vox, some
of the defendants were also accused of the offence of participating in
a criminal organisation. Article 570 bis considers a criminal
organisation a group, formed in a concerted and coordinated manner
for a stable or indefinite period, by more than two people, to share
various tasks or functions in order to commit criminal offences. This
offence is punishable by 3 to 8 years of prison.
29
4. Safeguards for the accused
during the trial
Right to the presumption of innocence
This is, without doubt, the most significant right, and is fully protected.
It is not just the fact that during any trial the defendant must be
treated as innocent, but that to be able to issue a guilty verdict certain
minimum conditions must be met: A conviction can only be handed
down based on evidence that has been legally obtained, that has been
submitted to the court, that there is evidence for the prosecution, and
that this is assessed rationally.
Ultimately, the burden of proof lies with the prosecution. Without
sufficient and convincing evidence, it cannot be said that a crime has
been committed, and there can be no conviction. That is why, in the
event of doubt, the court must not take into account anything that
may be harmful to the defendant’s case (in dubio pro reo). To
guarantee the above, the court will be obliged to provide reasoning in
its judgment as to why it considers certain evidence credible and other
evidence not credible; therefore, the account of proven acts can never
be arbitrary, but must be specifically linked by the court to the
evidence submitted.
If it is considered that the judgment infringes the presumption of
innocence, it could be overruled for that reason, which would lead to
its reversal and replacement with an acquittal, in this case ruled by the
Constitutional Court.
Right to defence
This is the basic safeguard that encompasses a large part of the
powers and rights recognised during the trial.
The right to defence is exercised primordially through legal assistance,
namely through lawyers.
• Principle of audi alteram partem. The clearest manifestation of the
right to defence is the principle of audi alteram partem (right for both
parties to be heard), which refers to the fact that all the lawyers may
participate in the taking of all evidence: each time a witness makes a
statement, all the lawyers—not just the one that called the witness—
may ask whatever questions they consider pertinent, even those
serving to question the credibility of said witness or their evidence.
30
The same is true for expert testimony or recordings presented as
evidence. If the court (through its presiding judge) rejects a question,
it must offer a justification (in other words, if it considers the question
to be leading, suggestive, or not relevant to the case), and lawyers
may put their objections on the record.
The lawyer of a party may also request that any question put by
another lawyer or by the prosecutor not be admitted.
• Protected witnesses. Another example of the above occurs with
regard to protected witnesses: There are several in the case at hand,
whose identity has to date remained hidden. If requested by the
defence lawyers, their identity may be given (although this will not be
made public), so that the accused have a fully effective right to defend
themselves (which requires knowing who is the person declaring
against them, in order to, if applicable, be able to discredit the
credibility of their testimony).
• Right to evidence. Another manifestation of the right to defence is
the right to evidence: the accused were able to ask the Court to take
all the evidence they considered pertinent. The Court responded to
these petitions in its writ of 1 February 2019: Refusal to submit the
requested evidence must be justified and an objection may, again, be
lodged (for the purpose of later being able to challenge the judgment
for this reason).
Right to an impartial court
It is the right of the accused that no members of the court may have
any relationship with them, their lawyers, or the case itself that could
bring into question their impartiality. The formula for denouncing
infringement of this right is the recusal of any judge whose impartiality
is in doubt on any legal grounds. Recusal must be immediate upon
learning of the situation (otherwise, it is understood that the
impartiality of the judge concerned has been accepted).
Principle of equality of arms
Closely connected to the above, all parties to the proceedings must
receive the same treatment by the court. Both parties must be given
the same opportunities to make petitions to the court and to examine
evidence.
In the event of an infringement, an objection must be put on the
record, so as to later be able to challenge the judgment for this
reason.
31
Right to remain silent and avoid self-incrimination
This safeguard is exercised during the examination of the defendant,
which will be taken as first evidence. The defendants may refuse to
testify, and their silence can in no way prejudice them. They may also
decide to only answer their lawyer's questions and not those of the
prosecution and/or those of the private prosecution; again, this option
cannot be used against them.
They may also decide to answer certain questions and to refuse to
answer others, without this having prejudicial consequences.
Non-existence of trial in absentia
Spanish law does not permit trials in absentia, which is one of the
measures that provide safeguards in Spanish criminal procedural law.
The accused cannot be tried if they have absconded from Spanish
justice.
Right to public proceedings
Safeguarded by the live broadcast (streaming) of the sessions and
online publication of the decisions handed down during the trial.
Right to the last Word
At the end of the sessions, the defendants have the right to take the
stand to make a general assessment of the proceedings and of their
position, so that these are the final words heard by the court.
32
5. Independence and
safeguards of the Spanish
legal system
1. The Spanish Judiciary is completely independent from the executive and legislative
powers. This independence is specifically enshrined in the Spanish Constitution.
From an institutional standpoint, the guarantee of independence lies in the fact that
the Ministry of Justice does not direct the Judiciary, does not determine who is a
judge or who is promoted or transferred within the judicial organisation, or which
judges should be penalised for incorrectly conducting their duties. These duties
correspond to an internal governance body of the Judiciary, the General Council of the
Judiciary (CGPJ), which has counterparts in France and Italy.
The CGPJ is a constitutionally established body (Article 122 of the Constitution) in
charge of ensuring judicial independence. It comprises 20 members and a president
(who at the same time is President of the Supreme Court). These 20 members are
appointed by Parliament: 10 by Congress, 10 by the Senate, in both cases by
reinforced majority (3/5), so there must be a consensus between the predominant
political forces. Of these 20 members, 12 must be judges, and eight jurists of
recognised competence. Their mandate is for five years, and cannot be renewed.
From a functional outlook, the guarantee of independence consists in recognising
that when the judges take their decisions, they are only bound by law: There is no
hierarchy in the Judiciary; the higher courts, in the event of an appeal, may overturn
the decision of the lower courts, but cannot oblige them to take a specific decision.
2. The proceedings for the majority of the acts relating to the independentist process
in Catalonia were conducted in the Criminal Chamber of the Supreme Court, which is
a body with national jurisdiction.
Normally, it is a court that is concerned with resolving appeals, but it is also
competent to hear criminal cases against certain persons, by reason of the public
office they hold.
Pursuant to Catalonia’s Statute of Autonomy, the case was conducted at the Supreme
Court by reason of the office held by several of the defendants at the time when the
alleged crimes were committed. This is not an imposition, but the result of applying a
rule of jurisdiction decided by the Catalan Regional Parliament, and later endorsed by
the Spanish Parliament.
33
3. The Criminal Chamber of the Supreme Court is a completely independent court.
Its judges are selected by the General Council of the Judiciary with an enhanced
majority and they are appointed for indefinite terms, ending upon their retirement.
This provides a maximum guarantee of their independence: It is common for judges
to be labelled as “conservative” or “progressive”, but the reality is that their decisions
are based not on political but on strictly legal criteria. The clearest proof of the
Supreme Court's independence is that it upheld judgments that ordered the
imprisonment of numerous political figures imposed by a lower court (among these,
former ministers and high-ranking officials, from across the political spectrum).
4. Spanish criminal proceedings, as currently regulated, are among those that offer the
most safeguards in Europe.
Spanish criminal proceedings fully respect the fundamental rights of the accused to
the presumption of innocence, to defence, to non-self-incrimination, and to judicial
impartiality. The law also precludes trials in absentia, unlike in other democracies
similar to Spain.
Here, the special case against the leaders of the procès has been handled in all its
phases with the maximum respect for safeguards. During the initial phase of the
investigation, the lawyers of the investigated persons had full access to the records,
and were able to intervene actively throughout the investigatory process (depositions
of the investigated persons and witnesses, rebuttal of expert reports). During the trial,
the rights of the defendants continued to be safeguarded, as in any other trial in
Spain.
In particular, the Court has been very careful as regards a fundamental safeguard:
publicity and transparency. To that end, it enabled a channel permitting the live TV
broadcasting of all the sessions of the trial. Access by the accredited media did not
face restrictions or limitations other than those imposed by proper management of
the sessions, and the political groups related to the defendants were allowed to be in
the Chamber at all times. In addition, all major events and all decisions handed down
are accessible to the public on the website of the General Council of the Judiciary.
34
6. Private prosecution:
What is it?
• Private prosecution is a procedural option whereby any citizen, whether or not
affected or harmed by a crime, may accuse others in defence of the law. This is
included in the Spanish Constitution (Article 125) and in the Criminal Procedure Act.
• This is an institution with few parallels in other procedural systems, whether under
continental law or common law.
• The institution of a private prosecution is based on the legislator’s commitment to
allow citizens to be involved in criminal prosecutions. Through private prosecution,
any citizen who may be interested in the prosecution of a public crime can ensure
that the necessary means are provided in order to do so.
• The private prosecutor can only participate in criminal cases. In fact, private
prosecution may not be pursued in the entire criminal jurisdiction, but only with
respect to crimes that can be prosecuted sua sponte, excluding other types of
offences (semi-public and private).
• Although at first the right to private prosecution was not accorded to legal entities,
a precedent was created by Constitutional Court Decision 241/1992 of 21
December, which provided for the first time for the legal right of legal entities to
intervene in proceedings as private prosecutors.
• In recent years the need for a legal reform to more precisely define the scope of
private prosecutions has been raised on different occasions. One possibility would
be to grant judges greater powers of discretion when it comes to assessing the
suitability and true interest pursued by those individuals or legal entities who
intend to participate in proceedings as private prosecutors.
• The private prosecution brought in Special Proceedings 20907/2017 (“the procès
trial”) by the political party Vox does not in itself constitute an anomaly, because
there are various precedents of political parties that have fulfilled this same role in
the recent past. Among these examples we can cite the following: that of Iniciativa
per Catalunya-Els Verds in the Botín case (2007); that of the PP in the Gürtel case; or
that of the PSOE, in the framework of the legal actions against police
superintendent Villarejo (specifically, the "Reserved Funds” collateral proceedings).
The most striking case perhaps is that of the CUP, an extreme left-wing
independence coalition that has exercised private prosecution in at least two cases:
that of the so-called “3%” (which implicated the now extinct CiU party for the
payment of illegal commissions), and that which concerned the increase in salaries
of the Catalunya Caixa bank.
35
THE TRUTH ABOUT
SPAIN AND ITS
CATALAN REGION
7. The secessionists’ falshoods
This is yet another of the battles being waged in the world against disinformation and
fake news. Listed below are some of the falsehoods that have been spread about the
procès and the situation in Catalonia, contrasted with the objective facts that refute
them.
Fake Fact
“Spain is
robbing us”
Catalonia is the Autonomous Community with the highest GDP in Spain,
amounting to almost 224 billion euros, equivalent to 19.2% of the GDP of
the entire country. Madrid’s GDP is lower. (2017 figures, National Statistics
Institute (INE), 2017). The contribution system of Spain’s Autonomous
Communities is proportional: each Autonomous Community contributes
based on its wealth and receives based on its population.
This perception of unfairness is common and occurs in many other regionsof Europe with a decentralised territorial organisation.
“The State
plunders
Catalonia fiscally
and
economically”
Taxes collected from Catalonia are a consequence of the proportional tax
contribution system of Spain’s Autonomous Communities to the Spanish
State and the distribution between the richest and poorest individuals.
In addition, it is the State that has helped Catalonia when the Generalitat
has had problems dealing with outstanding debts and paying suppliers.
Through the Autonomous Liquidity Fund—a credit line through which the
central government lends money to Spain’s Autonomous Communities—the
Ministry of the Treasury disbursed more than 80 billion euros so that the
Catalan Regional Government could cover these debts. Naturally other
Autonomous Communities have received similar economic support when
they have required it, but it has always been of a lower amount than that
provided to Catalonia.
“Spain doesn't let
Catalonia vote”
It is not true that the Catalans cannot exercise their right to vote under the
same conditions as the rest of the Spanish people. Indeed, since 1977 the
Catalans have voted at:
10 municipal elections
12 regional elections
13 national parliamentary elections
7 European elections
2 referendums on Catalan autonomy
4 national referendums
The right to vote is subject to universal suffrage and is guaranteed for all of
the nation's citizens. In the referendum to approve the Statute of Catalonia
(2006), voter participation was 48.85%. In the referendum to ratify the
European Constitution in 2005, only 26% of Catalans voted against. There
are even legal channels at Congress for reforming theConstitution.
Fake Fact
“Spain does not
permit any kind of
vote on self-
determination”
Like all the other constitutions of Western countries, the Spanish
Constitution does not permit the right to self-determination. International law
does not provide for this option either, except in situations involving
decolonisation, which, as is well established, in no way applies in the case
of Catalonia.
“The Spanish
Constitution is
hostile to
Catalonia”
The Spanish Constitution defends equality and is fully democratic. It was
approved by a referendum in which 68% of Catalans took part and which
obtained the backing of almost all of them (90.5%). In addition, two of the
seven "fathers of the Constitution" responsible for drafting the document
were Catalans: Jordi Solé Tura and Miquel Roca Junyent.
A notably higher proportion of Catalans voted in the referendum on the
Constitution than in the referendums on the 1979 and 2006 Statutes of
Autonomy, in which less than 60% and 48.8% took part, respectively.
In fact, Catalonia is one of the three historical Communities, together with
the Basque Country and Galicia, to which the Constitution grants the highest
levels of autonomy and the most powers (Article 151).
“After
independence we
would remain in
the EU”
The Lisbon Treaty is as clear as its interpretation by the present leaders of
the EU. An independent Catalonia would be a "third country" and would
therefore automatically be outside the European Union. If it wished to form
part of the EU, it would have to apply for accession, and said accession
would have to be accepted unanimously by all the Member States.
Moreover, various European leaders have already spoken out on the matter,
such as former President of the European Parliament Antonio Tajani, who
made it clear that: “No one will ever recognize Catalonia as an independent
country.”
“The UN
recognises the
right of peoples to
self-
determination”
The UN and public international law recognise the right to self-determination
of peoples who have been oppressed or colonised, which does not apply in
this case. Catalonia forms part of Spain, it is recognised as one of its
regions, it has its own institutions, it is a bilingual society, and it forms part of
a state governed by the rule of law—Spain—which ranks among the world’s
20 full democracies.
In an interview with the newspaper El Mundo (30/10/2015), the UN
Secretary-General declared that Catalonia was not included in the category
of territories to which the UN could guarantee the right of self- determination.
Besides, the UN does not admit the right of self- determination in democratic
states such as Spain, without prejudice to what has been termed “internal
self-determination” regarding language rights, culture, education, etc.
39
Fake Fact
“We Catalans do
not have
sufficient
autonomy”
Since 1979 Catalonia has been one of the Spanish regions with the most
powers conferred by the Spanish State, amounting to powers in a total of
189 spheres. It is one of the most autonomous regions in Europe (Ministry
of Territorial Policy and of the Civil Service). Its parliament has legislative
powers on all matters under its purview, which include the public media,
health, education, penal institutions, and overseas trade delegations.
“If we were
independent, we
would have an
economic
surplus”
Catalonia is the most indebted Autonomous Community in Spain. It owes
more than 78 billion euros, mainly to the State. To finance itself, the
Catalan Regional Government has issued bonds which the rating agencies
have ranked as "junk bonds”. (Fitch, Moody’s, S&P). The Spanish State is
currently helping to address this situation through public funds, but without
said aid, the situation could become far worse.
“We are a nation”
The Constitution recognises a Catalan "nationality"—just as it recognizes a
Basque and Galician “nationality”—due to the cultural, linguistic, historical
and political peculiarities of these Autonomous Communities. But in its
ruling of 16 July 2010, the Constitutional Court determined that references
to Catalonia as a "nation" had no legal effect.
“Spain has been
oppressing us
since the war of
1714”
A significant proportion of historians in Spain and in other countries agree
that it was an international war or a dynastic war, a war of succession, and
not of secession. “This was a dynastic war, with international intervention”
(José Álvarez Junco, El País, 16 /10/2017)
“The Catalan
language sets us
apart”
Apart from Catalan, other official languages are spoken in Spain: Galician,
Basque, Valencian, and Spanish (the latter being the most widespread and
an official language throughout the entire State). The Spanish Constitution
recognises that "the wealth of Spain's different linguistic modalities
constitutes cultural heritage which shall be subject to special respect and
protection” (Article 3.3).
“We
independentists
represent the
majority”
The quarterly survey of the Generalitat’s Public Opinion Research Centre
(Centre d'Estudis d'Opinió) has never indicated that the independentist
movement represents a majority. In July 2019, for example, independentist
supporters barely surpassed 44%, while more than 48% of the citizens
consulted were opposed to breaking away from Spain. The statistics
clearly show that since 2012, support for the independentists has always
been below 50%.
40
Fake Fact
“There is no
freedom of
expression in
Spain”
Freedom of expression is a fundamental right included in Title I of the
Constitution.
This essentially means that, just as has occurred, in Spain one can, inter
alia:
• Defend the independence of an Autonomous Community in any
medium, autonomous parliament or political platform.
• Organise pro-independence demonstrations.
• Discuss the organisation of the State in parliament.
According to the recent "Democracy Index 2018" published by The
Economist, our country is one of the planet’s 20 "full democracies". A 2019
report by Freedom House ranks Spain in 19th place , giving it a very high
score: 94 out of 100, the same as that of the United Kingdom and Germany
and higher than that of the United States.
Moreover, Spain belongs to international organisations and is subject to
international laws on freedom of expression. Our country has a democratic
Constitution and a system of fundamental rights and safeguards. The
politicians who are currently in preventive detention continue to make use
of their freedom of expression from prison, from where they hold interviews
with the media.
“There is no real
democracy in
Spain”
Spain forms part of the same international institutions as any other
European nation. The Economist’s "Democracy Index 2018" classes it as
one of the planet’s 20 "full democracies", whilst Freedom House’s 2019
report places it on a footing with Germany and the United Kingdom, and
even above the United States.
It cannot then be thought that Spain is not a democracy, because it is
obvious that the people are sovereign, that there is independence between
the powers of the State, that elections are free and fair, and that the
Constitution safeguards the fundamental rights and freedoms of our
citizens.
“Spain does not
respect civil
rights”
In its latest report, the NGO Human Rights Watch does not refer to any
violation of citizens’ rights during the events of 1 October in Catalonia.
Civil rights are safeguarded by the current Constitution, Article 1 of which
states that Spain is “established as a social and democratic State, subject
to the rule of law, which advocates as the highest values of its legal order,
liberty, justice, equality and political pluralism”.
41
Fake Fact
“Many politicians
have had to go
into exile”
Some of the individuals involved in the so-called procès absconded and
others stayed. But those who absconded did so because they knew that
they were going to be accused of serious crimes. Spain’s democratic
safeguards are such that it is not possible to try fugitives in absentia. The
Constitution safeguards the right to a defence, opens lines of appeal for any
judicial decision, and provides for an independent judiciary. In addition,
Spain has for decades been subject to the jurisdiction of the European
Court of Human Rights in Strasbourg, to which the defendants may appeal
if the Supreme Court delivers a guilty verdict.
“There are no
legal safeguards
in Spain”
No international authority questions the separation of powers or the
existence of legal safeguards in Spain.
In the trial of the so-called procès there were no violations, nor any lack of
legal safeguards. The defendants were transferred to Catalan prisons so
that they could be near their families (they were only transferred to Madrid
for the trial). They have been able to speak freely with whatever media they
wanted, even giving interviews from prison to national and international
media. In addition, the procès trial was public and transparent and the
public broadcasting service TVE had the television signal, which was also
accessible to other news media. More than 600 accredited journalists were
present.
“Spain is a
medieval regime
with Inquisition-
like institutions”
Spain is one of the top-rated countries in the Human Freedom Index
prepared by the Cato Institute, the Fraser Institute and the Friedrich
Naumann Foundation for Freedom. It has the maximum score for freedom
of movement, freedom of association, and freedom of press. The
Economist’s "Democracy Index 2018" ranks it as one of the planet’s 20 "full
democracies", whilst the 2019 Freedom House report puts it on a footing
with Germany and the United Kingdom, and even above the United States.
Spain’s Constitution was approved by referendum in 1978 after a
constituent process and consequently there is no direct inheritance from the
pre-democratic era.
“The private
prosecution in the
trial is in the
hands of an
extreme right-
wing party called
Vox”
In Spain, both the institution of the jury and the possibility of individuals and
legal entities appearing in court as private prosecutors are ways in which
citizens contribute to the administration of justice. Any other political party
or group could have been a party to the suit as Vox was.
42
Fake Fact
"The
independentist
movement is a
peaceful
movement”
As with all movements, the conduct of those involved has been varied.
There have been sectors that have become radicalized and have been
involved in violent actions. An example of this was the mob siege of the
Department of the Economy of the Generalitat in Barcelona on 20
September 2017, when a crowd obstructed the movement of the judicial
committee and of the national law enforcement officers, causing damage to
police vehicles and resorting to insults and obscene language. These acts
formed part of the procés trial and it has therefore been the responsibility of
the judges to determine whether or not they constituted acts of sedition or
rebellion.
The difference between sedition and rebellion lies in there being a public
and violent uprising. The Public Prosecution Service and the investigating
judge believe that there was violence because acts of intimidation were
committed to obtain Catalonia’s independence. The State Legal Service,
however, understands that there was public disorder aimed at preventing
the law from being applied, but no violence. Both Services explained their
criteria in a lengthy account of the facts submitted to the Court and it was
the responsibility of this Court to assess it and decide accordingly.
“Catalans had the
right to vote in the
referendum on
independence
called by the
Generalitat, and
the Spanish State
acted in an anti-
democratic
manner by
attempting to
prevent it”
There is no right to participate in a voting process which has been declared
illegal by the Constitutional Court—Spain’s utmost interpreter and
guarantor of fundamental rights.
“On 1 October
2017, the police
used force in
confronting
peaceful citizens
who only wanted
to vote”
It is not clear that the resistance of certain people occupying the polling
stations was entirely passive. In total, 111 national law enforcement officers
were injured (this is reflected in the reports forwarded to the judicial
authorities); 10 of these officers were obliged to take medical leave.
On the other hand, the report issued by the Catalan Health Service of the
Generalitat on the people who received medical attention as a result of the
incidents that occurred on 1 October only referred to 11 national law
enforcement officers.
43
Fake Fact
“In Spain there is
no separation of
powers”
No international body questions the separation of powers or the impartiality
of judges in Spain. Spain is, moreover, according to the recent “Democracy
Index 2018” published by The Economist, one of the world’s 20 “full
democracies”.
It is true that current laws on the election of the members of the judiciary’s
highest internal governance body (the General Council of the Judiciary)
accords a key role to political parties, a factor which has received some
criticism within the Council of Europe. This point refers, precisely, to one of
the GRECO recommendations with which Spain has yet to comply.
However, the Spanish Government has expressed its willingness to comply
with all the recommendations made, which will require prior legal reform.
A considerable number of the recommendations have been included in the
Spanish legal framework (through Organic Law 4/2018, of 28 December).
It should be noted, nonetheless, that the ranking awarded by GRECO to
our country is similar to that of several of our EU partners. Its latest report
on our country (December 2017) expressly states: “GRECO wishes to
underline, as it already did in the Fourth Evaluation Round Report, that
there is no doubt as to the high quality of the judiciary and the prosecutorial
service in Spain, as well as to the strong spirit of public service and
dedication of individual judges and prosecutors.”
Another example of the independence of the Spanish judiciary is the fact
that the preceding Spanish Government fell in June 2018 as a result of a
vote of no confidence triggered by the media uproar over the severe
corruption sentences issued by the courts against former leaders of the
then-governing party.
More recently, in May 2019, the Supreme Court and the Constitutional
Court upheld Mr Carles Puigdemont’s right to stand as a candidate in the
elections to the European Parliament.
The Spanish Courts deemed that—given its fundamental nature—no
restrictions should be placed on a citizen’s right to participate as a
candidate in elections provided that the individual in question has not been
found guilty of any crime by a court of law, even if said individual has been
indicted and is evading Spanish justice, as is Mr Puigdemont’s case.
44
Fake Fact
“During the day
on which the
(illegal)
referendum on
self-determination
took place, police
action resulted in
injuries to more
than a thousand
people”
Without going into the matter of how many people suffered contusions of
some kind during that day, it must be highlighted that only three people
were hospitalized with injuries directly resulting from police charges. 48
hours later, only one of these people was still in hospital.
“The Spanish
police, sent by the
central
government to
repress the
Catalans who
voted on 1
October, acted
with total
impunity”
The police officers were not sent by the central government, but by the
courts, in compliance with a court order.
There are currently a number of legal cases pending in relation to the use
of force on the day of the referendum. Certain officers are being
investigated; the courts will be in charge of determining the corresponding
responsibilities.
“The 1 October
‘referendum’
resulted in a
democratic
mandate in favour
of Catalonia’s
independence”
Turnout in the “referendum”, which was annulled by Spain’s Constitutional
Court, was of 38%, according to data provided by its organizers (the
Generalitat). This was subsequently corrected upwards by five points,
placing it at 43% (by the Generalitat, which provided no explanations), and
the percentage of “Yes” votes was 90.18%.
However, these data are totally unverifiable, especially given that the
Catalan Regional Government—in the absence of an electoral board—
made available, on the very day of the referendum, the possibility of an
“open census”, so that there were people who had the opportunity to vote
several times and at different locations. (This did in fact occur, and can be
verified through different sources, including audio-visual material).
The referendum was not democratic, neither in its origin nor in the voting
process itself. It lacked the minimum democratic safeguards, as defined by
institutions such as the Venice Commission. There was no register of
voters, or a campaign for “no”, nor was the Catalan public media in any way
impartial. There were a great many irregularities and it was not observed by
any recognised international institution (OSCE, Council of Europe, or the
EU). It was annulled by Spain’s Constitutional Court.
According to a recent survey by GESOP (Study and Opinion Bureau of
Catalonia), only 28.8% of Catalans consider that there is a democratic
mandate to proclaim secession, compared with 68.4% who think the
opposite.
Fake Fact
“The individuals
who are in
prison because
of the
‘referendum’ are
only there
because they put
out ballot boxes
so that the
people could
vote”
The individuals tried were accused of participating in the implementation of
a plan aimed at unlawfully creating a de facto State in the territory of the
current Autonomous Community of Catalonia.
This process entailed the public authorities’ disregarding the Spanish
Constitutional Court (something which several of the accused called on the
public authorities to do), as well as public mobilization that was not limited
to the organization of demonstrations, but also included acts of resistance
to public authority that were considered in the trial. Under the Spanish
Criminal Code—as in that of many other countries—it is a crime to prevent
law enforcement officers from carrying out their duties.
They are not, therefore, accused of putting out ballot boxes, but of the
alleged commission of crimes defined in the Spanish Criminal Code.
Thousands of people continue to defend their political ideas, and some of
them are even doing so from prison. They are accused of acts that give rise
to criminal responsibility.
As far as the day of the 1 October "referendum" is concerned, the
accusations against the defendants do not refer to the action of "putting out
ballot boxes", but to that of organizing the occupation, classified as illegal
by the Constitutional Court, of the schools designated as voting centres in
order to prevent, once again, the action of the police. And, incidentally, to
protect evidence that was necessary to pursue an ongoing criminal
investigation.
¨The situation in
Catalonia has
nothing to do with
the recent rise of
the far-right (the
Vox party) in
Spain¨
Actually, the facts suggest otherwise, given that the events surrounding the
illegal referendum on independence in the autumn of 2017 paved the way
for Vox’s ascent. The “Catalan question”—in connection with the defence of
national unity—was the topic Vox exploited the most during the campaign
leading up to the elections of 28 April 2019, well ahead of issues such as
immigration. In said elections, Vox obtained 10.26% of the popular vote,
compared with just 0.20% in the preceding elections (June 2016).
46
Fake Fact
“It is inadmissible
in a democracy
for a
democratically
elected official to
be sent to prison”
The law is the same for everyone. In a democracy, no one is exempt from
abiding by the law. Those who have public duties and powers are subject to
the law and to the Constitution, just like any other citizen. The defendants
were not accused—and this can be easily verified—for demonstrating or for
making statements during their mandate, but for their actions while in office.
“The unilateral
declaration of
independence of
Catalonia was
symbolic and had
no legal effects;
therefore, it
should not serve
as grounds for
criminal charges”
Even while accepting that the unilateral declaration of independence had
no legal effects—although it was unquestionably political—the truth is that
on 6 and 7 September 2017, the independentist majority in the Catalan
Regional Parliament approved—in violation of that parliament’s own
internal rules—an “Act on the Legal Transition and the Founding of the
Republic” repealing Spain’s Constitution and Catalonia’s Statute of
Autonomy in Catalan territory. This was no “symbolic act”, because it was
published in Catalonia’s Official Journal.
Moreover, in April, former President of the Govern Carles Puigdemont
made several statements to the media, reaffirming that the unilateral
declaration of independence was not a symbolic act, and that it was still—
according to him—in force, awaiting implementation.
“It is
unacceptable that
the defendants
are being accused
of a crime of
rebellion, which is
applicable to the
military, not to
civilians”
Each country has its own criminal law. Therefore, it is natural for there to be
differences between national regulations. In Spain’s Criminal Code,
rebellion does not necessarily have to be committed by a member of the
military.
The above notwithstanding, it is not true that in all other countries the
offence of rebellion is defined as being limited to the military or to
paramilitary forces. In fact, the offences that in a country such as Germany
could be equivalent to rebellion as set forth in Spanish law—high treason
against the Federation or against a Federated state—may be committed by
civilians.
“The Supreme
Court has not
accepted
international
observers, which
is proof that the
trial has no
safeguards”
No accreditations were granted to international observers, because the trial
was public. Anyone who wished to “observe” the trial, in any capacity, was
able to freely access the courtroom, with the only limitation being the
room’s capacity. Moreover, anyone wishing to follow the trial was able to do
so via a streaming service. The proceedings could not have been more
transparent.
47
Fake Fact
“The former
speaker of the
Catalan Regional
Parliament, Carme
Forcadell, has been
prosecuted solely
for having
organized a debate
in Parliament”
The parliamentary debate in question is only part of the story. Ms
Forcadell was not solely judged for having allowed “a debate”, but
because this decision was inextricably linked to her active participation in
enacting laws which, on paper, repealed the Spanish Constitution in
Catalonia, deprived Catalans of rights, and violated mandates of the
Constitutional Court.
During this entire process, Ms Forcadell—as well as several of the
accused—repeatedly ignored each and every one of the expert opinions
of the Catalan Regional Parliament’s own legal services, which insistently
warned of the blatant illegality of the actions that were being planned.
The prosecution, moreover, considers Carme Forcadell—as well as
several of the people who stood trial with her—to have been party to a
plan that aimed to achieve the de facto independence of Catalonia, by
declaring its independence in the Catalan Regional Parliament and using
the Generalitat, its resources and its civil servants—including the 17,000
armed regional police officers—as guardians of the new State.
“The law is being
violated by
holding in Madrid
a trial that should
be conducted in
the High Court of
Justice of
Catalonia, given
that the deeds and
actions to which
the trial refers
took place in this
latter territory”
The High Court of Justice of Catalonia would have been competent had
the defendants been accused of acts that had only been committed in
Catalonia. This is not the case, because it is obvious that the secession
process that was taking place in that territory also had implications beyond
Catalan territory, and even outside Spanish territory.
¨The fact that a
far-right political
party (Vox) is
pursuing a private
prosecution in the
context of these
proceedings
proves that
Francoism is still
present in
Spanish
institutions¨
Under Spanish law, private prosecution is a procedural option whereby
any citizen, whether or not they have been harmed or affected by a
specific crime, may accuse others in defence of the law. This possibility is
provided for in the Spanish Constitution (Article 125).
The private prosecution pursued at the trial by the political party Vox did
not in itself constitute an anomaly, since there were various precedents of
political parties fulfilling this same role in the recent past. Among these are
Spain’s two main parties: PSOE and PP. But also, for example, the CUP
(a far-left Catalan independentist coalition).
Fake Fact
“The Catalan
language, an
essential aspect
of Catalonia’s
identity, is at
serious risk, and
only
independentism
can ensure its
survival”
Catalonia has full powers in the sphere of education. Since 1984, the
regional authorities have applied a language immersion policy, making
Catalan the working language in schools and universities. Catalan is,
moreover, a co-official language—together with Castilian—in Catalonia,
and is the language of choice within the regional public administration.
On 25 April 2019, the Constitutional Court handed down a ruling on an
appeal against Catalonia’s Education Act, upholding the aforementioned
language immersion model in its entirety.
“Catalans had the
right to vote in the
referendum on
independence
called by the
Generalitat, and
the Spanish State
acted in an anti-
democratic
manner by
attempting to
prevent it.”
The so-called “referendum” of 1 October 2017 lacked the minimum
democratic safeguards, as defined by institutions such as the Venice
Commission. It was not democratic, neither in its origin nor in its voting
process. There was no register of voters, or a campaign for “no”, nor was
the Catalan public media in any way impartial. On the contrary, there were
a great many irregularities and it was not observed by any recognised
international institution (OSCE, Council of Europe, or the EU).
Catalans have voted approximately 30 times since the restoration of
democracy, including three referendums that were crucial to Catalonia’s
political status in Spain: the referendum on the Spanish Constitution in
1978; the referendum on Catalonia’s Statute of Autonomy in 1979; and the
referendum on a new Catalan Statute of Autonomy in 2006. This Statute is
the one that is now in force in Catalonia, after being reviewed by the
Constitutional Court in 2010 which only declared some of its Articles
unconstitutional.
Without following the established procedure for its reform, this Statute was
also the one which the secessionist majority in the Catalan Regional
Parliament ignored and repealed, as it did the Spanish Constitution, by
approving the Referendum Act and the Legal Transition Act, on 6 and 7
September 2017.
49
Fake Fact
“On 1 October
2017, police
action resulted in
injuries to more
than a thousand
people.”
This figure was provided by the Generalitat and by members of the
secessionist movement. The truth is that only three people were admitted to
hospital with injuries directly resulting from police action. A large number of
photographs disseminated that day depicting scenes of alleged violence
had in fact been taken during other events and on other dates, as reported
in international media such as The Guardian and Le Monde.
As in every democratic country, police excesses are against the law. The
courts will be in charge of determining the corresponding responsibilities.
“The
independentist
prisoners are
political
prisoners”
This is false. Obviously, there are no political prisoners in Spain. No
Catalan politicians have been prosecuted for their ideas. Every day,
independentist leaders—including the President of the Catalan Regional
Government—express themselves freely in the media, some even from jail.
The accused are being prosecuted for alleged offences that are defined in
Spain’s Criminal Code and they are being tried with all of the safeguards
inherent to a democratic State under the rule of law. No human rights
organization, and no NGO active in this same sphere (such as Amnesty
International or Human Rights Watch) has recognized these individuals as
political prisoners or prisoners of conscience, despite having criticized their
lengthy preventive detention while awaiting trial.
Moreover, preventive detention is a concept that exists in practically all
countries similar to ours and, in some cases, the maximum periods of
preventive detention are longer than those allowed under Spanish law.
Only the judge can decide to adopt such a measure, in the light of different
aspects, including flight risk. Regarding flight risk, it should also be stressed
that Spain’s judicial system—in which safeguarding defendants’ rights is
highly prioritised—does not provide for the possibility of prosecution in
absentia.
50
8. State of Autonomies: core
ideas and key messages
Spain is a fully democratic state governed by the rule of law.
• Spain is a social and democratic state governed by the rule of law based on the
Spanish Constitution, which was approved by referendum in 1978.
• Since 1977, Spain has belonged to the Council of Europe and has been a party to
the 1950 European Convention on Human Rights, and as such it is subject to the
European Court of Human Rights in Strasbourg.
• The Spanish Constitution guarantees the separation of powers, a common feature
of Europe’s most robust and most consolidated democracies. According to the
Spanish Constitution, justice emanates from the people and is administered in the
name of the King by a judiciary formed by judges who are independent,
irremovable from office, accountable and—above all, subject only to the rule of law.
• The Spanish Constitution, one of the most progressive in the world, provides for
mechanisms for its comprehensive reform, unlike the German and French
constitutions.
The Autonomous Community of Catalonia played a decisive role
in establishing Spain’s democratic Constitution. More than 90%
of Catalan voters said "yes" to the 1978 Constitution.
• The territory in which the Constitution obtained most support from the people—
more than any other Spanish region—was Catalonia.
• In the referendum, the four Catalan provinces surpassed the national average for
“yes” votes (91% compared with 88%).
• Two of the seven "fathers of the Constitution" responsible for drafting the text were
Catalans: the socialist Jordi Solé Tura and the nationalist Miquel Roca Junyent.
51
Catalonia is one of the European communities with the highest
levels of self-government
• The model of the Spanish State—which encompasses 17 Autonomous Communities
and two Autonomous Cities—permits substantial powers to be transferred to the
territories for their self-government and management of their interests.
• Spain’s organisation differs from Germany’s federal model, Italy’s regional model,
and France’s unitary model.
• Catalonia has a regional government, which manages all the powers and
responsibilities of the Autonomous Community. The more than 60 areas in which
powers have been devolved to the regional government include education, the
police (the Catalan regional police force enjoys full policing powers in the territory),
health and social services, and the management of prisons.
• The Catalan Regional Parliament enjoys legislative powers in all matters under its
purview, as well as the right to propose legislation at the national level. In other
words, it has the capacity to propose laws, including the reform of the Constitution,
to Spain’s Congress of Deputies, something which, however, it did not do during
the recent independentist process.
52
9. The price Catalonia is paying
for the independence bid
A fearful economy
In 2012, the Fundación Campalans, linked to the Socialist Party of
Catalonia (PSC), began a series of analytical studies on Catalonia,
cataloguing social differences within the region, and over the years
these studies have included more and more information on the
procès. The latest such publication, the 2018 Social Report, devotes an
entire chapter to this issue, entitled “Balanç econòmic del procés” [The
economic balance of the Catalan bid for independence]. The author of
this chapter, David Fuentes, an economist and former chief of staff of
the Head of the Department of Economy and Finance of the Govern
from 2007 to 2010, concludes that the procès has reduced economic
growth, increased poverty and provoked the economic emigration of
young people from Catalonia, remarking, “Without the political
uncertainty brought about by the procès during the autumn of 2017,
Catalonia and the rest of Spain would have had stronger growth for
the year as a whole”.
The report takes into account the impact of the procès at all levels of
the Catalan economy, including the consequences of the departure of
companies and banks from the region. “It is quite clear that their links
with Catalonia will no longer be the same. The loss of talent and the
absence of a robust financial and insurance structure with decision-
making capacity in Catalonia will affect the solidity of the Catalan
economic base in the coming years”.
The independentist process has had tangible economic costs for Catalonia, according to
the data published on 2 November 2018 by the Independent Authority for Fiscal
Responsibility (AIReF), which showed that the Catalan economy was growing at a
lower rate than the average for Spain. In addition, the independence debate has caused
profound social divisions, as highlighted by historian Santos Juliá in his article Un sol
poble; una sociedad dividida [A single people; a divided society] published in the journal
Revista de Libros in June 2018. The media and social networks report daily attacks on
non-independentist politicians. Lastly, freedom of expression and the freedom of the
press have also been harmed, according to dossiers compiled by Reporters Without
Borders (2017 #RespectPressCAT, 2018 World Press Freedom Index, 2018 Annual Report).
The last few years have been especially negative for the press in Catalonia, because “there
are continual attacks on freedom of information, especially against reporters working in
the street” or against “those who are active on social networks”.
53
According to the Spanish Association of Commercial Registrars, more
than 5,350 companies and banks left Catalonia during the 12 months
commencing in October 2017, the most heated period of the procès.
Small, medium-sized and large companies (including CaixaBank,
Pastas Gallo and Bruixa d’Or) made this decision due to the “risk
arising from the political tension”, as Fuentes says, but also “due to
related reputational issues, such as commercial boycotts, which have
affected both sides”.The impact of the procès on Catalonia’s reputation
has also affected its credit rating. The leading agencies (Moody’s,
Fitch, and S&P) equate Catalan debt with “junk bonds” in their
respective 2018 reports, a classification that directly affects the
financing of one of the most prosperous regions in Spain.
As shown by the data published on 2 November 2018 by the
Independent Authority for Fiscal Responsibility (AIReF), the Catalan
economy presented slower growth than the average for Spain as a
whole, according to the GDP calculated for all the Autonomous
Communities for the third quarter of 2018, amounting to a year-on-
year national average of 2.5%. In addition, BBVA Research, in a report
published in October 2018, predicted that the Catalan economy would
grow by 2.5% and 2.3% in 2018 and 2019, respectively, compared with
2.6% and 2.4% for the Spanish economy as a whole. Similarly, the
November 2018 report issued by the Funcas think tank predicted that
the Catalan economy would grow more slowly than that of Spain as a
whole in 2019.
A society in conflict
But the consequences of the independentist process have not only
been economic; Catalan society has also been split apart. As observed
in Santos Juliá’s article Un sol poble, una sociedad dividida (Revista de
Libros, 13 June 2018), “The only thing the procès has achieved has
been to split into two factions, not only the Catalan people—a mere
concept—but also Catalan society”. Before the illegal referendum of 1
October 2017, singer-songwriter Joan Manuel Serrat described this act
as “a situation causing major social division which, in my opinion, will
take a very long time to repair”. After 1 October, Íñigo Urkullu, the
Basque Regional President, during a visit to Argentina, expressed his
concern in the following terms: “What is happening today in Catalonia
is not surprising, but deeply regrettable, particularly the incidents that
are aggravating the risk of a social divide”. For the most pro-
independence media, there is no such social divide, but rather “social
tension” (see, for example, the opinion piece “Fractura Social?” [Social
Divide] published in the Catalan newspaper Ara on 20 June 2018).
Other, more moderate, media outlets have tried to reflect the debate
by presenting both positions, as in the article “¿Hay o no fractura
social en Catalunya tras el 1-O?” [Is there a social divide in Catalonia or
not after 1 October?]”, published by La Vanguardia on 11 December
2017.
54
Many others have attested to the presence of social division in
Catalonia. “These days, I’ve been having problems with my sports
mates, and with my family...”, someone told the online journal El
Confidencial. “At work—I’m in sales—we’ve got clients from outside
Catalonia who say they no longer want to do business with us here.”
Television channels and newspapers began to publish these kinds of
stories about relationships breaking down due entirely to the procès.
For example, the Spanish national TV channel Antena3 broadcast a
report in September 2017 about estranged or separated families and
friends, while Euronews put out a report entitled “La independencia de
Cataluña divide a las familias” [Families divided over Catalan
independence]” (6 October 2017). A BBC programme, broadcast in
June 2018, also announced that its correspondent, Niall O’Gallagher,
was returning to Catalonia to talk about “the Catalan people divided
over their future”.
Harassment of politicians
This polarisation has also impacted strongly on the political class,
some members of which have suffered harassment, insults,
persecution and threats. Prominent leaders such as Albert Rivera (of
the Ciudadanos party), Inés Arrimadas (Ciudadanos) and Xavier García
Albiol (of the People’s Party or PP) have filed criminal complaints after
receiving death threats. An article published in the newspaper El
Mundo in April 2018 cited some of these threats: “They should kill him
and his family; ETA come back,” was a message posted on Twitter
about the leader of the PP in Catalonia.
The same article reported that a few days after the illegal referendum
of 1 October 2017, graffiti death threats against Arrimadas and Rivera
appeared in the Fontajau neighbourhood of Gerona. The article also
mentioned an attack on the headquarters of the constitutionalist—or
pro-unity—parties, as well as threats and harassment against dozens
of party members. The new headquarters of the Socialist Party of
Catalonia were sprayed with messages such as “Get out of Catalonia”,
“Fuck Spain” and “Spanish faggots”, while individual representatives
were called “fascists”, “torturers” or “the scum of this country.” On
several occasions the Catalan Regional Parliament building has been
besieged by protesters, who have even come close to kicking in the
doors, as reported by El Mundo and other publications. The last such
occasion was 1 October 2018, on the first anniversary of the illegal
referendum.
55
Bad times for freedom of the press
Journalists, too, have become a target for the independentist radicals,
as demonstrated on 22 February 2019 when two female TV reporters
were prevented from doing their job (reported by the online journal
elindependiente.com, on 22 February 2019, under the headline “La
presión independentista se ceba en Cataluña con los periodistas”
[Independentists pressurise journalists in Catalonia).
Reporters Without Borders (RSF), the non-profit organisation of
journalists from all over the world, publishes an annual report on the
state of freedom of expression, entitled the World Press Freedom
Index. The 2018 report states that Catalonia “continues to be hostile
terrain for radio and TV reporters”, especially those working in the
street.
In its 2017 report, RSF observed that journalists were collateral victims
of the conflict between the Spanish Government and the Catalan
Regional Government, created by the illegal referendum of 1 October.
The report also stated that many journalists who did not sympathise
with the independentist movement had been pilloried on social media,
sometimes at the instigation of press officers of the Generalitat.
The situation has changed little since then. According to the 2018
report “extreme political polarisation has contaminated the media and
their audiences to the point that journalists have become public hate
figures.”
RSF also published a specific report, #RespectPressCAT calling for
greater respect for press freedom in Catalonia, and stating that “local
journalists and foreign correspondents denounce cyberbullying
campaigns in social networks and propaganda pressure from the
Catalan Government”.
“Public broadcasters and subsidised private outlets are waging an
intense campaign not only in favour of secession but also against
those who oppose it and who defend the rule of law” warns the former
MP (for the now defunct, Catalan nationalist Convergència party) and
jurist Alfons López Tena, in a forthcoming essay entitled “La
democracia constitucional en el siglo XXI” [Constitutional Democracy
in the 21st Century] (Editorial Almuzara).
“Slanders against public officials, and biased and distorted—when not
directly demonising—presentations of constitutionalist arguments are
broadcast by publicly funded media with the Generalitat’s approval”
says López Tena, famous for coining the slogan “Spain is robbing us”.
He adds, “We cannot fathom any greater disloyalty towards the
citizens of Catalonia, nor any greater disrespect for the framework of
freedoms in a democratic society.”
56
During many years of government, says López Tena, radical
nationalism in Catalonia has been allowed to “centralise power,
monopolise the media, and create a patronage network...”.
An example of this is that, to date, no one proposed by the most
voted for party in Catalonia, Ciudadanos, or by the PSC, or the PP
(which together constitute almost half of the Catalan Regional
Parliament) has been elected as a member of the Catalan Audiovisual
Corporation (CCMA), a public organisation which manages public
radio and television in Catalonia.
The October 2018 edition of the Political Opinion Barometer published
by the Public Opinion Research Centre (Centre d’Estudis d’Opinió), an
organisation under the aegis of the Generalitat, highlighted the extent
to which independentist TV viewers are shutting themselves off from
other perspectives. The vast majority (80% on average) of those who
vote for CUP, ERC and JxCat (the independentist parties) only watch
TV3 (the public TV channel that broadcasts exclusively in Catalan),
while those who vote for the constitutionalist parties obtain
information from a variety of TV channels, including those leaning
most strongly towards Catalan nationalism. Thus, 10% of PP voters in
Catalonia watch TV3, as do 27% of the voters of En Comú Podem (a
left-wing coalition), while other Spanish-language channels, such as La
Sexta, TVE, T5 and Antena 3, attract audiences ranging from 8% to
30%.
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10. Spain in international
rankings
Set out below are a number of international indices in which Spain obtains high
marks, whether for the quality of its democracy, its transparency, or for the legal and
institutional safeguards it offers foreign investors. These rankings are of recognised
international prestige, such as that of The Economist Intelligence Unit, or the World
Bank’s Doing Business 2018, or the AT Kearney Foreign Direct Investment Confidence
Index. In some of these indices, Spain ranks higher than countries such as the United
States, the United Kingdom, France or Germany.
The Economist Intelligence Unit's Democracy Index
2018
The report includes Spain among the first 20 countries at world level
and among the 14 countries in Western Europe that enjoy a full
democracy, in particular obtaining good marks for its civil liberties,
electoral process and pluralism. Among the 21 countries of Western
Europe, France, Italy and Belgium were considered defective
democracies. The index offers an independent vision of the state of
the democracies of 165 countries and two territories, based on five
categories: electoral process and pluralism; civil liberties; the
functioning of government; political participation; and political culture.
http://www.eiu.com/Handlers/WhitepaperHandler.ashx?fi=Democracy_
Index_2018.pdf&mode=wp&campaignid=Democracy2018
Freedom House "Freedom in the World" ranking
2019In this recent index on freedom in the world, Spain obtained a very
high score of 94 out of 100, the same as that given to the United
Kingdom and Germany, and higher than the 86 accorded to the
United States of America. Of the 195 countries assessed by Freedom
House on the basis of their levels of political rights and civil liberties,
Spain ranked 19th . Founded in 1941, Freedom House is an
independent NGO dedicated to the proliferation of freedom and
democracy in the world.ttps://freedomhouse.org/report/countries-world-freedom-2019?order=field_fiw_combined_score&sort=asc
DEMOCRATIC QUALITY INDEX
58
Justice Scoreboards of the European Commission
The 2018 report shows that Spain made progress in efficiency, quality
and independence in the 2016-2018 period. The breakdown of data
shows that, in terms of efficiency, Spain’s score was close to the
average as regards the time needed to resolve cases, and the score
obtained for the independence of its judges was similarly close to the
average, according to the perceptions of the European Network of
Councils of the Judiciary. The report is prepared by the European
Commission for Justice, Consumers and Gender Equality and is a tool
used by the EU and its Member States to improve the effectiveness of
their judicial systems.
https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2018_en.p
df
Rule of Law Index
The World Justice Project Rule of Law Index— the most complete
assessment of the rule of law in the world—takes account of the
following eight factors: constraints on government powers; absence of
corruption; open government; fundamental rights; order and security;
regulatory enforcement; civil justice; and criminal justice. Spain ranks
21st out of a total of 126 countries in the Rule of Law Index 2019,
published at the beginning of the year. Spain obtained a score of 0.71
out of 1 as regards adherence to the rule of law, having climbed six
places with respect to the previous index. Its score for criminal justice
is also noteworthy: Spain obtained 0.66 out of 1 in this category,
ranking 20th place at the global level and 13th among the most
developed countries.
https://worldjusticeproject.org/sites/default/files/documents/WJP_Rul
eofLawIndex_2019_Website_reduced.pdf
TRANSPARENCY INDICES
Transparency International
The leading transparency index has Spain occupying 42nd place in its
most recent Corruption Perceptions rankings of 168 countries. This
index assesses perceptions of corruption on the basis of valuations by
business sector experts and representatives.
https://www.transparency.org/news/feature/corruption_perceptions_in
dex_2016?gclid=EAIaIQobChMI2OCAn8qO4AIVghbTCh0hwwLLEAAYA
SABEgKqZfD_BwE
59
The OECD’s Global Forum on Transparency and
Exchange of Information for Tax PurposesThe latest study, dated October 2018, placed Spain among the 11
countries—out of more than 100—found to be fully compliant with
the exchange of information standard.http://www.oecd.org/tax/transparency/exchange-of-information-on-request/ratings/
Reporters Without Borders (RSF)Spain ranked 31st out of 180 countries in RSF’s 2018 World Press
Freedom Index, coming in above France, the United Kingdom and the
United States of America. This index assesses the level of pluralism,
media independence, the environment for the media and self-
censorship, the legal framework, transparency and quality of the
infrastructure that supports the production of news and information.
RSF is an independent NGO with consultative status with the UN.https://rsf.org/en/ranking
The World Bank's Doing Business 2018 ReportIn this index Spain ranks 28th out of 190 countries, above France
(31st), Switzerland (33rd) and Japan (34th). In the breakdown of the
report, Spain ranks 1st for trading across borders and 24th for
protecting minority investors. This is the 15th report in a series of
annual reports that assess the regulatory standards and government
policies affecting business activity.http://www.doingbusiness.org/content/dam/doingBusiness/media/Annual-Reports/English/DB2018-Full-Report.pdf
The World Economic Forum’s Global
Competitiveness Report 2018The World Economic Forum’s Global Competitiveness Report 2018
highlights the strength of Spanish institutions, ranking Spain 26th out
of 135 countries. The report shows that—according to the business
executives surveyed—Spain made steady progress in terms of judicial
independence in the 2010-2017 period, and now ranks close to the
average among European countries. The report covers 140 countries
and assesses the government policies and institutions affecting
competitiveness.http://www3.weforum.org/docs/GCR2018/05FullReport/TheGlobalCompetitivenessReport2018.pdf
FINANCIAL AND ECONOMIC SECURITY INDICES
60
2019 A.T. Kearney Foreign Direct Investment
(FDI) Confidence IndexSpain ranks 11th in this index, coming in above countries such as the
Netherlands, Switzerland and Denmark. The report stresses that
“Spain’s national competitiveness has improved in recent years, and
the financial system is showing growing signs of recovery. More
broadly, an improving economic climate is likely contributing to
greater investor confidence”. The report also affirms that “investor
confidence is particularly visible in renewable energy deals”.
https://www.atkearney.com/foreign-direct-investment-confidence-
index
Forbes Best Countries for Business 2018Spain ranks 18th above countries such as Japan, Belgium and
France out of a total of 161 countries assessed based on the strength
of their economies and the effectiveness of their government policies.
https://www.forbes.com/best-countries-for-business/list/
Global Entrepreneurship MonitorSpain heads entrepreneurial parity in Europe with nine female
entrepreneurs for every 10 male entrepreneurs. It is one of the most
favourable countries for the entrepreneur, ahead of states such as
Germany and the United Kingdom. Moreover, entrepreneurial activity
is on the increase, rising from 5.2% of activity in 2016 to the current
6.4%.
http://www.gem-spain.com/wp-content/uploads/2018/04/Informe-
GEM-2017-18.pdf
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QUESTIONS &
ANSWERS
11. Q&A
1. If the Catalans want to vote for their independence, why not let them?
The Spanish Constitution guarantees the unity of Spain and asserts that all the powers
of the State emanate from the Spanish people, with whom national sovereignty
resides. Were only a part of the Spanish population to decide on something
corresponding to the people as a whole, this would be equivalent to depriving all the
other Spaniards of their rights. Public opinion has changed over time, but today the
majority of Catalans (53.7%) consider that the best option is to reform the current
organisation of the Spanish State—which is based on its division into Autonomous
Communities and Autonomous Cities—or not to hold a referendum, compared with
42.4% who are in favour of the referendum, according to a survey carried out in
November 2018 by the company Gesop. Less than half the population (47.5%) voted
for independentist options at the latest elections. A referendum would deepen the
divisions within society. Today, the majority, both in Spain (52.3%) and specifically in
Catalonia (78.5%), want a dialogue-based solution, according to a survey by La
Vanguardia in February 2019.
The Spanish Constitution, like all other constitutions of Western democracies, does
not provide for the right to self-determination. Moreover, the majority of Catalans are
not asking for self-determination, and while the 47.5% who do want it represent a
majority in the Catalan Regional Parliament, they do not represent a social majority. Be
this as it may, the legitimate expectations of a hypothetical social majority of Catalans,
whether with regard to this matter or any other, can only be met, in constitutional
terms, from the most scrupulous respect for the law, in which all the rights and
obligations held by the Spanish people are enshrined.
The Spanish Constitution provides for the possibility of reforming basic principles of
the State, but only through the reform procedures stipulated therein. Thus, Spanish
democracy is not a “militant democracy” which prohibits certain demonstrations,
distinguishing it, for example, from democracy under the German Constitution.
2. Why doesn't the Spanish Government recognise the right to self-
determination, as the Catalan independentists are demanding?
The independentist political parties argue that Catalonia possesses the right to self-
determination recognised by the UN and that this entitles them to hold a referendum.
This is why the Referendum Act approved in the Catalan Regional Parliament on 6
September 2017 begins as follows:
“The Covenants on Civil and Political Rights and on Economic, Social and Cultural
Rights, adopted by the United Nations General Assembly on 19 December 1966,
ratified and in force in the Kingdom of Spain since 1977, recognise the right of
peoples to self-determination as the first of human rights”.
ABOUT THE CATALAN INDEPENDENTIST PROCESS
However, the Consell Assessor per a la Transició Nacional (Advisory Council for the
National Transition), created in 2013 by the same independentist Government, in a
report entitled "Internationalisation of the consultations and process regarding
Catalan self-determination", states that said covenants are only applicable to colonies:
“Article 1 of the two International Covenants of 1966—that on Economic, Social and
Cultural Rights and that on Civil and Political Rights—affirmed that “all peoples have
the right of self-determination” and that "by virtue of that right they freely determine
their political status”. A subsequent UN Declaration on Principles of International Law
concerning Friendly Relations and Co-operation Among States adopted in 1970
(Resolution 2625) specified that the right to self-determination recognised by the
United Nations referred to colonial situations, namely, to those States not “possessed
of a government representing the whole people belonging to the territory without
distinction as to race, creed or colour”. Consequently, the United Nations does not
recognise the right to self-determination in democratic States such as Spain.
Thus, the experts of the Consell Assessor themselves refute the alleged right to self-
determination for the case of Catalonia contained in the Referendum Act.
3. Didn't the United Kingdom recognise the right to self-determination by
holding the Scottish referendum?
In contrast to the Referendum Act approved by the Catalan Regional Parliament,
neither the agreement signed by David Cameron and Alex Salmond, nor the Scottish
Independence Referendum Bill passed by the Scottish parliament contains any
reference to the right to self-determination
4. And Canada? Has it recognised the self-determination of Quebec?
During two respective periods in which the Parti Québécois held an absolute majority
in the National Assembly of Quebec, it organised two referendums to change its
relationship with Canada. Since these referendums were unilateral, neither was
considered to be binding by the Quebec Government. Six days before the first
referendum was held in 1980, Pierre Trudeau, who was Prime Minister of Canada at
the time, publicly declared that not even if 100% of the votes were in favour would
Quebec have the right to start negotiations on independence.
Regarding the second referendum, in 1995, Jean Chrétien, who was Prime Minister of
Canada at the time, relates in his memoires that "I never explained—and I never will
explain—what I would have done if the ‛yes’ votes had won.”
Eddie Goldenberg, who was his adviser and chief of staff, has written in a book that
"long before the referendum", Chrétien “had decided he would never recognise the
legitimacy of a ‛yes’ victory”.
65
5. But weren't the referendums in Quebec held pursuant to the Clarity
Act?
Jean Chrétien decided to draw up Bill C-20—subsequently known as the Clarity Act—
following the second referendum on independence in order to put an end to the
inherent ambiguity of unilateral referendums. However, the Bill was rejected by the
Parti Québécois. On TV3, Jean-François Lisée, the historic leader of said
independentist party, asserted that “Canada has failed to find a solution to the
Quebec question” because it considers that the Clarity Act makes independence
"impossible" and that his model is the solution adopted by Cameron. On the occasion
of the Scottish referendum, Lisée wrote an article in The Guardian entitled, in
summary, “Well done, Britain, for a fair referendum. It's a shame Canada didn't
manage it" (The Guardian, 9 September 2014). In addition, the Clarity Act, as
concluded by the Supreme Court of Canada, affirms that nothing in Canadian or
international law legitimises a unilateral secession of Quebec.
6. Why do the Catalan and Quebec independentist movements cite David
Cameron as a model?
Oriol Junqueras very often cites Cameron as an example: “Ours is a very moderate and
conservative position, so much so that it coincides with that of the most conservative
European leader, David Cameron, who determined that the people could vote. Do you
consider David Cameron conservative? Well, then our position is conservative”. (At the
Sitges meeting of the Cercle d’Economia—a non-partisan, non-profit institution
founded in 1958 to foster debate on economic policy and social progress—covered by
El País, 30 May 2015).
Andrew Rawnsley, chief political commentator at The Observer, has explained the
United Kingdom's exceptional nature, which gave it the flexibility to be able to agree
on the Scottish referendum:
“You can argue that an ad-hoc constitution has not served Britain entirely badly. (…)
This seemed serviceable enough—until this spatchcocked structure collided with
something as colossal as Brexit. We are partly paying the price for making such a
massive decision by simple plebiscite, without having properly settled rules about
referendums and how they can be reconciled with representative democracy. It is very
hard work to amend the constitution of the United States and a change can only be
made if there is a wide and deep consensus. Britain is heading out of the EU, the most
consequential act in decades, on the basis of one ballot held nearly three years ago in
which just one vote could have decided the outcome. (…)
People I respect think that when the dust has finally settled, Britain will need to rethink
its casual attitude to the rules of its democracy and embrace a properly codified and
protected constitution.” (“Out of the Brexit nightmare must emerge a more robust
democracy”, The Guardian-The Observer, 13 January 2019).
66
Cameron was able to make use of the flexibility of a non-written constitution. In
almost all other countries there is a written constitution which stipulates the
indivisibility of its territory.
7. Are there other precedents beyond the always cited Scotland and
Quebec?
The Constitutional Courts of Italy, Germany and the United States have in recent years
prohibited referendums on the independence of a part of their territories. In Veneto,
having obtained 60% of votes in the elections, the Northern League passed a law in
the Regional Parliament in 2014 to organise a referendum on independence.
The Government of Matteo Renzi declared that "the unity of the nation is non-
negotiable” and appealed against the law. In 2015, the Italian Constitutional Court
prohibited the referendum on the grounds that it was unconstitutional: “The unity of
the Republic is such an essential aspect of the constitutional order that even the
power of constitutional review should be precluded” (La Vanguardia, 6 January 2017).
Thus, in Italy, a referendum on independence is not possible, not even through
constitutional reform.
In 2016, the German Constitutional Court declared the petition for a referendum
made by a small separatist political party of Bavaria to be unconstitutional, arguing:
“There is no place in the Fundamental Law (the Constitution) for the Länders'
aspirations of independence.”
In 2006, a citizen submitted an initiative requiring the State of Alaska to vote on
obtaining Alaskan independence. Finally, the Supreme Court of Alaska concluded:
“Secession is clearly unconstitutional and therefore an improper subject for the
initiative”.
In 2012, 100,000 people signed an on-line petition to President Obama requesting the
independence of Texas. On 11 January 2013, the White House stated in its reply: “Our
Founding Fathers enshrined in the Constitution the right to change our national
government through the power of the ballot – a right that generations of Americans
have fought to secure for all. But they did not provide a right to walk away from
it…The founders established a perpetual union.”
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8. Even if it does so without recognising the right to self- determination,
why doesn't the Spanish Government hold a referendum on the
independence of Catalonia like the one David Cameron agreed to in
Scotland?
For the following five reasons:
• The Government considers that the independence of Catalonia would have negative
consequences for all of Spain’s citizens, whose interests it works to defend, and that it
would severely limit opportunities for them all.
• The Government wants to prevent the economic damage that the inevitable exit of
Catalonia from the European Union would entail. The Catalan independentists argue,
just as the proponents of Brexit did, that the European Union would be pragmatic due
to the size of the Catalan economy, and that, in particular, the economic interests of
German business leaders would ensure the maintenance of the status quo. But just as
the European Union has demonstrated its determination to maintain the indivisibility
of the four freedoms (persons, goods, services and capital) its interest lies in not
permitting the secession of affluent regions, whose supporters, like those of Brexit,
have stressed the fiscal benefits of secession in their line of reasoning.
• The Government believes that a referendum on independence would leave Catalonia
split in two for many years. The independentist parties obtained 47.8% of votes in the
Catalan regional parliamentary elections of 2015, and 47.5% in those of 2017. The bid
for independence has already caused a major social division as shown by the schisms
in CiU and PSC, the two political parties that have been running the Catalan
Government since 1980.
• The Government considers that the secession of Catalonia would be a step in the
opposite direction to that of the spirit of European integration and the plan for
greater integration of the European Union that it advocates.
• And just as in the vast majority of countries in the world, the Government does not
have the power to organise a referendum on independence without a constitutional
reform.
9. Could the same situation as that of Catalonia arise in other countries?
It would be possible for the same situation as that of Catalonia to arise in other
countries. In fact, the Northern League in Italy raised this issue, and even held a non-
binding, advisory referendum on the autonomy of the region of Veneto on 22 October
2017, without this having any effect on the region's political status.
A similar situation arose in Germany when a small separatist party from Bavaria
requested independence, but this was rejected by the German Constitutional Court.
The initiative requiring the independence of Alaska was also similar, and was rejected
by the Supreme Court of that state because it was "clearly unconstitutional.”
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10. Is it an offence to raise the question of independence of a community
or region or stateless nation?
It is not a criminal offence to raise the question of the independence of a community
or region without State status in Spain, where independentism, within the democratic
legal framework, is a legitimate political option.
But it is an offence to disobey the Constitutional Court, to pass laws to repeal the
Constitution and the Statute of Autonomy, to hold an illegal referendum and
afterwards to unilaterally proclaim independence.
So aware of this were certain secessionist leaders that they absconded from Spain
after the events of 27 October 2017.
11. Isn't it true that acts of police violence were reported on 1 October
2017, when the referendum was held?
The referendum held on 1 October 2017 in Catalonia was illegal and was annulled by
the Constitutional Court. The police acted under judges’ orders to close the premises
and confiscate the electoral materials. Whilst carrying out said judicial orders, the
police found themselves, at certain centres, confronted with groups of individuals
seeking to prevent them from performing their duties. Only in these cases did the
police have to intervene and, in some instances, there were even assaults on the
police. The above notwithstanding, of the three individuals hospitalised, only one was
reported as having serious injuries, and there is no record of any hospital admissions
for injuries requiring special medical attention. Although police action was
proportionate, certain episodes are being investigated by the courts, as precisely due
to the safeguards upholding the rule of law in Spain, it is possible to report police,
administrative and judicial excesses, as well as any other kinds of excesses, should
they occur.
12. Has the independentist movement succeeded in transforming its
aspiration into an international cause?
The radical independentist movement has sought to internationalise its aspiration
through its representatives. Beyond the lack of truth in its messages and its use of
disinformation, this is clear proof of the freedom of expression, of information, of
ideology, and of movement enjoyed by all citizens in Spain. In their attempts at
internationalising their cause, they have enjoyed full freedom of movement and have
spoken of their grievances with all the freedom inherent to a state under the rule of
law.
However, they have not obtained any support from other states or from international
organisations. On the contrary, the European Union has warned that all their intended
objectives must be provided for in the constitutions of the Member States. And other
international organisations have spoken along these same lines.
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13. Is it true, as the independentists say, that Catalonia's segregation
would not entail leaving the EU?
The interpretation of the current leaders of the EU is that the Lisbon Treaty is very
clear on this point. An independent Catalonia would be a "third country"; it would
automatically be outside the European Union; and, if it wished to form part of the EU,
it would have to apply for accession to the Union, which would have to be accepted
unanimously by all the Member States.
14. Why did the application of Article 155 of the Spanish Constitution to
the Catalan Regional Government for several months not resolve the
situation?
The PP Government that was in power at that time, with the backing of the absolute
majority of the Senate, and with the agreement of the PSOE and Ciudadanos, two of
the three most important opposition parties, triggered Article 155 of the Constitution,
which is the federal coercion clause that can be applied when the authorities of an
autonomous region seriously jeopardise the public interest and do not comply with
their legally mandated obligations.
This Article was literally inspired by Article 37 of the German Federal Constitution. The
appropriateness of its application, and the scope and nature of the measures that
were adopted were, however, reviewed by the Constitutional Court when it ruled on
two constitutional challenges against said measure filed by the Catalan Regional
Parliament and by the confederal group of Unidos Podemos in Spain’s Congress of
Deputes.
Moreover, legal provisions such as those set forth in Article 155 of the Spanish
Constitution are echoed not only in the German Constitution, but also appear in those
of Austria (Article 100), Italy (Article 126), Portugal (Article 234) and Argentina (Article
75).
The effect of applying Article 155 of the Constitution was to restore the constitutional
and statutory legal order that had been disturbed by the actions of the regional
authorities which had ignored them and had been acting openly against court
decisions and the law.
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15. How is it possible that up to nine of the defendants have now spent
more than a year in preventive detention?
The preventive detention of the defendants was first decided by the investigating
judge, and later by the Appeals Chamber of the Supreme Court, considering that their
release on bail would entail two risks: the risk of absconding and the risk of
reoffending.
The judges took into account that certain independentists had absconded to Belgium,
Switzerland and Scotland, and that the defendants insisted that they would do what
they did in September and October 2017 all over again if they had the chance. In
addition, the Constitutional Court confirmed the proportionality of this measure.
Moreover, it should also be emphasised that the Government transferred the
prisoners held in preventive detention to prisons near their homes and families. 16%
of the prison population in Spain is held under preventive detention. The European
average is 25.4%. Indeed, in 2017, the President of the Council of Europe’s Committee
for Prevention of Torture (CPT), Mykola Gnatovskyy, described the low percentage of
persons held in preventive detention in Spanish prisons as "positive”.
16. Why is there a sector of the Catalan population that considers the
preventive detention of the defendants to be abusive?
One of the aspects on which the Catalan people have been misinformed in recent
years is that unilateral independence was possible and could be achieved painlessly.
This was never true and the Constitutional Court warned about the seriousness of the
acts that have been committed by the defendants since 2016.
It should be remembered that, in general, in a state under the rule of law, judges are
entrusted with duties in which nobody may interfere. And these duties include that of
determining the necessity and scope of any measure safeguarding the judicial process
and effective administration of justice for all.
17. How is it possible for the State Legal Service to accuse the defendants
of the crime of sedition and for the Public Prosecution Service to accuse
them of another, more serious crime, namely rebellion?
It is true that the State Legal Service and the Public Prosecution Service have classified
the defendants’ alleged crimes differently. But both of these alleged crimes are very
serious.
REGARDING THE CRIMINAL PROCESS AT THE SUPREME
COURT
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The State Legal Service is a legal body that reports to the Government and defends
the interests of the State; and the Public Prosecution Service is an autonomous and
impartial constitutional body that pursues criminal action.
Such discrepancies in criteria oblige the Court to hold a more in-depth discussion
before passing judgment. This is yet another safeguard of independence of criteria
and action of each of the prosecuting parties in the case.
18. Why is a party like Vox participant in the case against the defendants?
In Spain, both the institution of the jury and the possibility of individuals and legal
entities appearing in court as private prosecutors are ways in which citizens contribute
to the administration of justice. Any other political party or group could have been a
party to the suit as Vox was. Spain is currently engaged in an important debate about
whether or not to limit private prosecution.
19. The difference between sedition and rebellion lies in there being a
public and violent uprising. Where did violence occur?
Indeed: the difference between sedition and rebellion lies in there being a public and
violent uprising. This is one of the questions that the oral hearing had to clarify. The
Public Prosecution Service and the investigating judge believe there was violence
because there were acts of intimidation to achieve the independence of Catalonia; the
State Legal Service, however, understands that there were mass uprisings and public
disorder aimed at preventing the law from being applied. Both Services explained
their criteria in a lengthy account of the facts submitted to the Court and it was the
responsibility of this Court to assess it and decide accordingly.
20. Is it possible then that the defendants may be convicted for just one
of these crimes?
There are various possible scenarios: they could be convicted for one crime or another
or they could also be acquitted, as requested by the counsels of the defence, who
were freely chosen by the defendants and who put forward all the evidence they
considered necessary and that was admissible in Court.
The conclusions of the State Legal Service and of the Public Prosecution Service are
provisional. At the end of an oral hearing such conclusions may be maintained or may
be changed. Until the end of the hearing, the final sentences requested cannot be
known.
It should be remembered that, apart from the alleged crime of rebellion, the
defendants were also accused of misappropriation of public funds and of
disobedience.
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21. Can the judgment of the Supreme Court be appealed, given that this
Court is the highest level of jurisdiction?
Although the judgment handed down will be final, it may be appealed before the
Constitutional Court to verify that the rights and safeguards were respected and,
subsequently, before the European Court of Human Rights, which will also examine
whether the procedural safeguards and defendants’ rights were respected.
It should be stressed that the Court accepted the petition for representatives of the
Catalan nationalist groups of the Congress of Deputies and of the Senate to attend
the sessions of the oral hearing, which constituted an additional safeguard and a clear
example of the desire for transparency in this regard.
22. Is it true that neither the Belgian justice system nor the German
justice system accepted the European Arrest Warrants against those who
absconded?
The European Arrest Warrant was accepted in Germany for an alleged offence of
misappropriation by Puigdemont, while the Belgium judiciary revoked the warrant
issued by the Spanish judge after the judge in Brussels observed procedural defects.
Apart from the 30 criminal offences set forth in the Framework Decision on the
European Arrest Warrant in 2002, all other criminal offences are subject to the
principle of double criminality, in other words, said offences must also be classed as
offences in the place to which the person accused of having committed them has
absconded. The German judges, without knowing all the details of the Spanish
proceedings, considered that the facts reported in a summarised version could not
give rise to a conviction for the crimes of rebellion or sedition under the German
criminal code.
Apart from being premature and contrary to the spirit of the European Arrest Warrant,
this interpretation does not mean that the alleged criminal acts were not included in
the Spanish Criminal Code. Nor is this interpretation binding for the Spanish Courts.
23. Did the independentists perhaps abscond because they thought they
were not guaranteed a fair trial in Spain?
Some of the persons involved in the so-called procès absconded and others stayed.
But those who absconded did so because they knew they were going to be accused of
serious crimes in Spain.
However, Spain’s democratic safeguards are such that it is not possible to try fugitives
in absentia, something which is possible in other democracies. The Constitution
guarantees the right to defence and provides for an independent judiciary, as well as
for a Constitutional Court that acts as the ultimate guarantor of fundamental rights in
Spain.
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Moreover, for decades Spain has been subject to the jurisdiction of the European
Court of Human Rights in Strasbourg, to which defendants may appeal if the Supreme
Court delivers a guilty verdict.
With regard to this high-level jurisdictional authority, it should be recalled that Spain
is one of the countries with the best track records—within the EU and within Europe—
in terms of judgments handed down by the European Court of Human Rights. Spain
has been convicted by this Court on very few occasions in relation to our total
population.
This demonstrates that the Spanish justice system and its system of safeguards are in
good working order.
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APPENDIX
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