1. Key facts of the case
On 6 and 7 September 2017, the Parliament of Catalonia approved by majority two autonomous laws that empowered the Government of Catalonia to call a referendum on the independence of the region and, in the case of a Yes victory, to effectuate independence. On 7 September, the Catalan Government of the Generalitat signed the decree calling for the referendum on 1 October. However, a few hours after the decree’s promulgation, the Spanish Constitutional Court suspended it as a precautionary measure. In the days that followed, the Constitutional Court also suspended the law allowing independence to be enacted, and issued a ruling annulling the referendum law. Despite these court rulings, the Catalan Government of the Generalitat decided to go ahead with the referendum.
To prevent the referendum being held, on 20 September the Guardia Civil searched several buildings owned by the Catalan administration and arrested 13 high-ranking civil servants. While one of these searches was taking place, that of the Ministry of Economy, , around 40,000 people, called by Ómnium Cultural and the ANC – the two largest civil organisations in favour of Catalan independence – gathered outside the building. This rally hindered the work of the judicial authorities and forced them to cross to the building next door via the roof in order to leave the building they were working in. As stated in the sentence (STS 459/2019, 14 October, p. 46), the leaders of the civil organisations, Jordi Sanchez and Jordi Cuixart, mediated between the demonstrators and the police and at around 12 midnight, both climbed onto the roof of a vehicle to tell the demonstrators to go home in order to gather again the next day in front of the High Court of Justice of Catalonia to continue demanding the release of the detainees. As a result of these events, the Audiencia Nacional, at the request of the Public Prosecutor’s Office, opened a case for sedition against Jordi Sanchez and Jordi Cuixart. On 16 September, both were arrested for these events and were remanded in custody.
Despite the intervention on 20 September, the Catalan Government of the Generalitat, supported by Catalan civil society organisations, continued with the Referendum. It was held on 1 October despite the deployment by the State of more than 10,000 police officers16, who resorted to the use of force on multiple occasions during the day. According to the data provided by the Generalitat, taken as valid in the ruling, 2,286,217 people took part in the referendum. A total of 2,044,058 votes in favour of independence were counted, thus, on 27 September the Catalan Parliament, in which the pro-independence parties held a majority, declared Catalonia’s independence. However,
the president of the Generalitat, Carles Puigdemont, suspended independence seconds later in order to be able to agree on a dialogue-based break with the Spanish government. The Spanish government’s reaction was to apply Article 155 of the Spanish constitution, under which it suspended the autonomy of the region of Catalonia, dissolved the government of the Generalitat and called elections for 21 December. In these elections, the pro-independence parties once again won a majority.
On 30 September, the Attorney General’s Office filed a complaint with the National High Court against the members of the Catalan government for rebellion, and another with the Supreme Court against the members of the parliamentary bureau -president, vice-presidents and secretaries- for the same acts. Once these complaints were admitted for processing, on 2 November the members of the bureau and the former ministers were arrested and charged with the crime of rebellion.
However, some of the ex-ministers and the former president of the Generalitat, Carles Puigdemont, could not be arrested, as they had moved to other European countries before being formally charged.
The second chamber of the Supreme Court understood that it was not solely competent to judge the members of the parliamentary bureau, so the high court finally tried 12 people – 9 members of what had been the Catalan government, the president of the Parliament and the activists Jordi Sánchez and Jordi Cuixart – accused of the charges of rebellion, disobedience and embezzlement of public funds. This case is known as the “trial of the Process”, which resulted in three of the former Catalan government ministers being sentenced to 1 year and 8 months in prison for disobedience, and sentences of between 9 and 13 years in prison for sedition and embezzlement of public funds for the rest of the defendants.
The Catalan independence process generated significant social and political tension in Spain, and the trial of those accused of organising the referendum took place in this context. The demonstrations in Catalonia in favour of independence and against the police action on 1 October were echoed by demonstrations, both in Catalonia and in other parts of Spain, calling for the imprisonment of pro-independence17 Catalan politicians. It is worth noting, as an illustrative example, that throughout the judicial process, the heads of the main Spanish right-wing parties publicly referred to the accused as “perpetrators of a coup”.
2. Applicable law
The investigation of the case was divided into 4 different jurisdictions: the Supreme Court, the National High Court, the High Court of Justice of Catalonia and the 13th Preliminary Investigating Judge of Barcelona19. However, in the end, the investigation concerning the courts of the second chamber of the Supreme Court was concentrated, in accordance with the provisions of Spanish law, in the hands of one of the magistrates of that chamber, who is not allowed to form part of the Court trying the case once the investigation has been completed. The main charge facing the defendants was the crime of rebellion under Article 472 of the Spanish penal code. This article states that those who “rise up violently and publicly” with the aim of “declaring the independence of a part of the national territory” (fifth assumption) shall be charged with the crime of rebellion. In Article 473, the code provides for prison sentences of between 15 and 25 years for those who lead the rebellion.
At the end of the investigation and at the opening of the oral trial, the prosecution accused 9 of the 12 defendants (Oriol Junqueras, Jordi Turul, Joaquim Forn, Raül Romeva, Dolors Bassa, Josep Rull, Jordi Cuixart, Jordi Sánchez and Carmen Forcadell) of the crime of rebellion (see table 1), 5 of whom were also charged with crimes of embezzlement of public funds. The three remaining defendants were charged with embezzlement of public funds and disobedience (Santi Vila, Meritxell Borras and Carles Mundo). Also present as prosecutors were the State Attorney’s Office, which, instead of classifying the facts as constitutive of the crime of rebellion, accused the defendants of the crime of sedition (art. 544 CP), and the far-right party VOX, which in addition to the charges of embezzlement and rebellion, added the charge of being a member of a criminal organisation for all the defendants.
Given that most of the accused were members of the Catalan executive and legislative powers, they were subject to the privileged legal regime which obliges them to be tried by a high court. In this respect, the Statute of Autonomy of Catalonia (Organic Law 6/2006, of 19 July) establishes that the High Court of Catalonia is competent to judge crimes committed by members of parliament and members of the government of Catalonia (art. 56 and 73). However, this legal text establishes that when the crimes are committed “outside Catalan territory”, the Supreme Court is the competent body. Given that the Supreme Court understood that the acts being prosecuted, as they constituted the crime of rebellion, affected the whole of the State, it determined that the acts should be understood to have been committed outside Catalan territory, and therefore the Supreme Court itself was the competent body to prosecute them. Given that, as stated in Article 21 of the Criminal Procedure Act, the Supreme Court may refer the matters it considers to fall within its jurisdiction to other courts – with no appeal being possible against the Supreme Court’s decision in this regard – it was this high court which completed the investigation of the facts and tried them.
3. Criminal proceedings
On 27 September 2017, the Audiencia Nacional admitted a complaint filed by the public prosecutor’s office against Jordi Sanchez and Jordi Cuixart, accusing both of the crime of sedition for the events of 20 September. As stated in the Supreme Court ruling, this complaint was admitted and the examining magistrate of the Audiencia Nacional, Carmen Lamela, opened proceedings which led to the arrest of both defendants on 16 October and their remand in custody without bail. They remained in pre-trial detention until the trial.
On 2 November, the same investigating judge of the Audiencia Nacional called to testify those who had been members of the Catalan government during the events, 9 former members of the Catalan government attended the meeting – those who did not attend, including the former president of the Catalan government, Carles Puigdemont, had taken up residence in other countries of the European Union days before. After taking their statements, the judge, at the request of the Public Prosecutor’s Office, ordered provisional detention without bail for eight of them, considering that there was a risk of flight, while for Santi Vila – who had resigned from his post the day before the declaration of independence – the judge ordered provisional detention with bail set at 50,000 euros20.
At the same time, the Supreme Court had already opened proceedings for the charges against the members of the Catalan parliamentary bureau. On 9 November, the high court issued an order for the provisional imprisonment of the former president of the Parliament21, Carmen Forcadell, which could be avoided by posting a bail of 150,000 euros.
In the following weeks, specifically on 24 November, the Second Chamber of the Supreme Court claimed competence for the prosecution and investigation of the facts attributed tothe defendants, and the magistrate Pablo Llanera took charge of the investigation. This magistrate issued a new order22 concerning the precautionary measures to be applied to the accused on 4 December 2019.
This order established provisional detention with a bail of 100,000 euros for 6 of the former ministers (Jordi Turul, Raül Romeva, Dolors Bassa, Josep Rull, Meritxell Borras and Carles Mundo), accompanied by a ban on leaving the country, the withdrawal of their passports and the obligation to appear weekly before a court near their home. For the defendants Oriol Junqueras, Joaquin Forn, Jordi Sanchez and Jordi Cuixart, the order ratified pre-trial detention without bail, on the consideration that, although there was no risk of flight, there was a risk of criminal repetition (art. 503.2 LECrim), on the understanding that the accused could once again set in motion their plan to achieve independence for Catalonia, given that, the magistrate reasons: “all those investigated in the proceedings share – and recognise that they still maintain – the same aspiration that drove the behaviour under investigation, that is, the desire for the territory of the Autonomous Community in which they reside to constitute the territorial basis of a new Republic”. Jordi Turull, Josep Rull, Raül Romeva, Carme Forcadell and Dolors Bassa were later added to these 4 defendants in pre-trial detention following a new order issued by the investigating magistrate on 23 March 2018.
On 9 July 2018, the investigating magistrate issued an order closing the investigation. The trial began on 12 March 2019 and lasted until 12 June 2019. The sentence was not handed down until 14 October 2019, in which the Court dismissed the rebellion thesis, based on their understanding that the crime of rebellion requires a violent uprising, which did not take place. However, it convicted most of the defendants of sedition. Sedition is a crime against public order, as set out in art. 544 et seq. of the Penal Code, according to which: “Those who, without [their actions] being covered in the crime of rebellion, rise up publicly and tumultuously to prevent, by force or outside the legal means , the application of the Law or any authority, official corporation or public official, from legitimately exercising their functions or from fulfilling their agreements, or applying administrative or judicial resolutions, are guilty of sedition” (art. 544 CP). In addition, the former members of the Catalan government convicted of sedition were also convicted of embezzlement (art. 432 PC), as the court found that public funds had been diverted to finance the referendum.
Only three of the former members of the Catalan government were acquitted of the sedition charges and instead convicted of disobedience (art. 410 CP). On the basis of this categorisation of the facts, Oriol Junqueras, Joaquin Forn, Jordi Turul, Raül Romeva, Dolors Bassa (all former members of the Catalan government) were sentenced to
between 10 and a half and 13 years in prison for the crimes of embezzlement and sedition. Jordi Sanchez, Jordi Cuixart (former presidents of two civil society organisations) and Carma Forcadell (former president of the Catalan Parliament) were sentenced to between 9 and 10 and a half years for sedition; and Santi Vila, Meritxell Borras and Carles Mundo were sentenced to disqualification from public office for one year and 8 months for the crime of disobedience.
Finally, it should be noted that as the events were tried at the Supreme Court, there is no ordinary appeal process against the judgement as there is no higher court or body than the Supreme Court, and therefore the judgement immediately became final without possibility of appeal. However, it is possible to file an appeal for protection before the Constitutional Court so that this Court can examine the possible violation of fundamental rights.
Throughout the judicial process, the convicted persons lodged numerous appeals before the Constitutional Court for violation of their fundamental rights, all of which have been rejected. However, on 6 May 2020, one of the appeals for protection was admitted for processing.
4. Disclosure of information
All the defendants were public figures, either because they were involved in institutional politics in positions of public relevance or because they were presidents of prominent Catalan civil society associations . In addition, the entire judicial process, from the beginning of the investigation to the appeals, can be followed both through the press and the press releases of the General Council of the Judiciary (CGPJ). Each resolution and order issued during the proceedings is accessible on the CGPJ website accompanied by a press release reflecting the position of the magistrate or court.
5. Media coverage
When on 6 September 2017 the Catalan Parliament approved the law that would provide the framework for the referendum, the national press opened its front pages the following day with references to a “hijacking of democracy” and even a “coup d’état”. As several studies have shown, the media coverage of the Catalan independence process was highly polarised between a large majority of national (and some Catalan) media that openly rejected and condemned the process, and the pro-independence Catalan media. This polarisation did not abate during the judicial process, as elections to the Catalan parliament (in December 2017), national elections (April 2019) and elections to the European Parliament (in May 2019) were held in parallel to the investigation,
and some of the defendants were candidates in these elections. In fact, some of the then pre-trial defendants were elected, but could not take office because they were in pre-trial detention.
It is worth mentioning, as an example of the close relationship between the media coverage of the trial and Spanish politics, that the Barcelona Provincial Electoral Board, by means of an order issued on 8 October 201929, prohibited the Catalan public media -TV3 and Radio3- from using the expression “political prisoners” in their news broadcasts to refer to the defendants in the “Procés” trial, during the electoral campaign for the general elections to be held on 10 November.
As the judicial process was so closely intertwined with the aforementioned electoral processes, the defendants were referred to on multiple occasions by members of the different parties. Their own parties referred to them as political prisoners, while the different national right-wing parties used the term “coup plotters” – the term coup d’état was used on multiple occasions by the Public Prosecutor’s Office during the trial to designate the events on trial – to publicly refer to the defendants. Even the qualification of the facts as sedition -and not rebellion- by the State Attorney’s Office was the subject of political dispute, as the leader of the main Spanish right-wing party, Pablo Casado, publicly declared: “It is indecent that the Government humiliates Spain by forcing the State Attorney’s Office to dissociate itself from the Prosecutor’s Office and not to charge the coup perpetrators with rebellion”. Of course, the defendants were referred to in this manner on multiple occasions in the media seeing as they reproduced the statements of the political leaders.
As described above, the case was tried in a turbulent political climate. The publication of the sentence provoked numerous demonstrations in Catalonia, some of them leading to riots. The day after the publication of the sentence, the main Spanish newspapers opened with the story on their front pages, while reporting on the previous night’s riots. In their editorials that day, some of them – specifically the conservative newspapers ABC, La Razón and El Mundo – lamented the absence of a conviction for rebellion and feared that given the sentences, the defendants might soon be released from prison.
6. Impact on the suspect or accused person and on the general public
The trial was held in public and broadcast live, and also received significant media coverage, occupying radio and television talk shows for several weeks. In these talk shows and programmes, a wide variety of people were asked about the Catalan political situation and the trial. The morning magazine Espejo Público, for example, interviewed magistrates from different judicial bodies as well as luxury prostitutes who were asked whether the political tension caused by the independence process was causing them to lose income. The magazine also interviewed prison
officials to find out about the state and routines of the accused in pre-trial detention, and even devoted television time to a story regarding one of the defence lawyers being a member of a musical group.
The entire trial was also followed on social networks, where the climate was also notably polarised. On 12 February, when the trial began, four hashtags related to the trial emerged and became trending topics. The most popular was #JoAcuso, part of a campaign launched by proindependence organisations to denounce the injustice of the trial, which reached 120,000 tweets during the day. This hashtag was followed in importance by #Juicioalademocracìa – also in supportof the accused – and #JuicioProcés. In fourth place, with around 10,000 tweets, although it also managed to become a trending topic, was the hashtag #JuicioGolpistas.
In addition, the entire trial was held amidst demonstrations of contrasting nature demanding either the release of the accused or their conviction and imprisonment. Following the conviction, multiple protests extending over several days were held in Catalonia. In the days following the sentence, more than 400 roadblocks were registered, and there were multiple altercations between demonstrators and police. In fact, the human rights defence centre IRIDIA, registered the complaints of 204 people affected by police violence in the demonstrations that followed the sentence, 54 of whom were injured by rubber bullets 38- 4 of whom lost an eye as a result.
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