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Where has Spain's Supreme Court come up with the final paragraph of the proven facts from?

Oct 14, 2019, 8:39 pm
Analysis: The judges describe in great detail over 35 pages how the defendants sought an independent Republic of Catalonia before concluding on the 36th page that they really only wanted to put pressure on judges in the region.

Catalan separatists are already protesting on the streets of Catalonia and have managed to get about twenty flights cancelled at El Prat Airport in Barcelona, ​​where riot officers from both the National Police and the Mossos d'Esquadra have already charged several times to disperse them. Tonight it is expected that the demonstrations against the trial judgment will increase in size. Politicians are reacting in their own way and making serious statements on TV. The media have their reporters reporting on the uproar and the reactions of the politicians, along with the odd analyst trying to turn the most important judgement in Spain since 1978 into a listicle article for social media or confirming that the 493 pages say what their paper believed it was going to say all along. Few seem to be reading the judgement itself—the content of which confirms that the leak to some media outlets in Madrid this weekend was real—to understand it better.

The first 60 pages, plus those at end, confirm the proven facts, their ultimate judicial classification—sedition, the misuse of public funds and contempt, not rebellion and criminal organisation—and the sentences: from 9 to 13 years in prison and disqualification for Junqueras, Forn, Turull, Rull, Romeva, Forcadell, Bassa, Sánchez and Cuixart to a 10-month fine for contempt for Vila, Borrás and Mundó. They confirm a lot of what we saw during the 2017 crisis and during the long trial this past spring. If we compare the initial petitions of the parties to the prosecution to where it has all ended up, the Supreme Court has bought outright the watered-down thesis put forward by the Attorney General's Office under Pedro's Sánchez's PSOE government, and not the crime of rebellion that the former chief of criminal law at that institution—Eduardo Bal, now a Ciudadanos MP—defended before he was sacked, along with the Public Prosecutor's Office and Vox. From a careful first reading of the proven facts, a first question arises about this judgement: where did they get the last paragraph, inconsistent on a logical level with the rest of that same section, from?

What did the defendants intend to do with their plan in Catalonia in 2017? The answer must bear a certain relationship to the very public reality Spaniards witnessed that year and the judges start off very well in that sense, with the two laws forced through the regional parliament in September 2017.

The Legal Transition Act "proclaimed that Catalonia is constituted as a Republic", that "sovereignty resides in the people of Catalonia", and "declared that the constitutional monarchy abolished". The regional High Court in Catalonia became the Supreme Court of Catalonia, nationality requirements were modified and territorial limits redefined. The very act of passing the bill into law would be an "act of sovereignty". Together with the Referendum Act "it was about creating apparent legal coverage that would allow citizens to believe that when they cast their vote they would be contributing to the foundational act of the independent Republic of Catalonia". Separatists pushed through these two bills with "unusual speed" to "silence the voice of the parliamentary groups that had shown their disagreement" to them. Sovereignty, republic, independence, Catalonia.

Carme Forcadell and the Catalan Parlament controlled by the separatists did not stop ignoring either the warnings from the Constitutional Court prohibiting them from dealing with unconstitutional business in the chamber or the legal advice from senior parliamentary lawyers. And they behaved in that manner not only during those intense weeks in the autumn of 2017 but had been doing so since 2015, systematically. The Catalan Parliament approved the conclusions of the Committee to Study the Constituent Process, which recommended "that the aim was to disconnect from Spanish laws via the unilateral path". All of it was unconstitutional. On March 30, 2015, the separatists signed their famous route map, which established that the regional elections of September that year "would have a plebiscitary nature". For what purpose? "To immediately initiate a process of national transition that would lead to the proclamation of the Catalan Republic", to create "the necessary structures of the new state" and "to proclaim independence". Constitution, transition, republic, Catalonia.

The role of separatist associations ANC and Omnium—with their ability to manipulate crowds—"was decisive for the intended purposes". On September 20, 2017, "they called on citizens to defend Catalan institutions" because the Civil Guard had "declared war on those who wanted to vote". What did they want to vote for? What was the intended purpose? Turull "reported that 'on Oct 1, the stakes are independence'"; Cuixart "declared that 'if the yes vote won, the republic would have to be proclaimed". Referendum expenses— Unipost, the Civisme ad campaign, Diplocat, etc.—were "the clear expression of their criminal consortium". On October 1, after a shoddy referendum without any guarantees, of course "yes" won, with 90.18% of the vote. On October 10, Puigdemont appeared in parliament. What for? "To state that he would comply with the mandate of the people of Catalonia to turn it into an independent state in the form of a republic". Outside the chamber that same day, they signed "what they described as a declaration of independence". On the 27th, they put through parliament a "so-called" or even a "symbolic and ineffective" declaration of independence that had two resolutions: "the declaration of the independence of Catalonia" and "the beginning of a constituent process for the new republic". Republic, referendum, independence, Catalonia.

Republic, referendum, independence, transition, constitution, Catalonia. Words that describe the known ends, that fit logically with the reality Spaniards witnessed and that the Supreme Court itself uses in the first 35 pages of the proven facts. But then there is a thirty-sixth page, and on that page, after a couple of hours of careful reading, one suffers a logical shudder. After explaining to the nation that all of that happened and happened in that way two years ago and since 2015, that there had been a big plan and that the defendants had indeed repeatedly stated, in a very public way, that their intention was what they said it was, Marchena and the other judges tell us that the real intention of the defendants was not that at all but another, different, lesser thing.

The defendants, we are suddenly told in the final paragraph of that section, "were aware of the manifest legal infeasibility of a self-determination referendum", a concept that was "imaginary", "they knew that the simple approval of legal statements […] could not lead to a sovereign space". The referendum "was nothing but a decoy for a mobilisation" to deceive people and "that would never lead to the creation of a sovereign state". "The excited citizens who believed that a positive result in the so-called self-determination referendum would lead to the long-awaited horizon of a sovereign republic were unaware that the 'right to decide' had mutated and had become an atypical 'right to pressure'". The real end, says this last page, was not what the judges themselves had spent 35 pages explaining in deep illustrative detail, but rather "to pressure the Government of the Nation to negotiate a popular vote" and "to demonstrate that the Judges of Catalonia had lost their jurisdictional capacity".


Having closely followed and reported on the Catalan separatist crisis since 2017, and having followed every single day of the trial, I think today is the first time I have read that the separatists' aim was limited to coercing a few judges in Catalonia. And if that were so, what were they seeking to achieve? What was their grand plan? What was the pot of treasure? The last paragraph of the proven facts does not explain that. It limits itself to the absurd incoherence—after certifying everything else in the previous 35 pages—of arguing that the aim of the defendants was not really to create a Catalan Republic. Such an explanation would of course fit better with a conviction for sedition than with a conviction for rebellion but we will have to see how the proven facts fit in with the legal reasoning and the classification of the crimes later on in the judgement, and where that very odd last paragraph leads us. Did Puigdemont, Junqueras and the others have a plan against the constitutional order—were they seeking an independent republic—or was it a plan against public order—were they just trying to strong-arm a few local judges?

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