President of the Catalan Regional Division of the Judicial Professional Association
“When democracy and fundamental freedoms are in peril, a judge’s reserve may yield to the duty to speak out.”
Judicial Ethics Report 2009-2010 European Network of Councils for the Judiciary
Barcelona, October 18th 2017
Spain is going through an extremely serious political conflict. A significant proportion of the Catalan people long to gain independence from Spain, which is a legitimate wish and which, according to them, would be the only possible solution to this conflict. This is an opinion protected by the freedom of belief and the freedom of expression, both of which are guaranteed by the Spanish Constitution. However, the analysis of this conflict has two parts: the first one has to do with how this situation has originated and the second one has to do with possible solutions. Undoubtedly there are circumstances that have brought us where we are, but in no way do they justify the actions and conduct of the separatist movement, which would forcibly impose the secession of Catalonia on Catalan and Spanish citizens. Legal action is underway against acts that pursue a totalitarian imposition which disregards and sweeps aside the rights of others. This imposition fails to recognise neither the laws that enshrine those fundamental rights nor respects other people’s ideas and their right to express them.
The Spanish Constitution of 1978 specifically bars the secession of any part of Spain without a previous amendment of the Constitution, which must be decided by all Spanish people. This provision, which has guaranteed a successful and peaceful coexistence for the last forty years, is essential to safeguard the freedom of those who are not in favour of a secession, whereas for others it has become an obstacle in their pursuit of secession.
The Catalan National Assembly (“Asamblea Nacional de Cataluña”) and Omnium Cultural are organisations that have become key figures in the movement for Catalan independence. These organisations have used the terms “dictatorship” to refer to the Spanish democratic system and have used the term “democracy”, however, to refer to their campaign and their position. They have not hesitated to openly attack and violate the constitutional order.
In such a turbulent situation the Catalan Parliament “passed” a “Referendum Act” and the Autonomous Regional Government subsequently called a referendum so that the Catalan people would decide whether Catalonia should become an independent state. However, neither the Catalan population who were not in favour of independence nor the rest of Spain were taken into consideration. The so-called “Referendum Act” was challenged by the Spanish Government before the Constitutional Court, which suspended it, and in its ruling found that the call for a referendum was unlawful and thus void. In order to ensure compliance with its ruling, the Constitutional Court ordered all the authorities involved to immediately cease all activities connected to the organization of the referendum.
Neither the Govern (Autonomous Community Government) nor any of the organisations involved complied with the ruling of the Constitutional Court and ignored it by openly persisting in the organisation of the referendum, which turned
a political disagreement into legal proceedings. It is the abovementioned Govern as well as those involved in the organisation of the referendum who have brought this issue to the legal sphere by disregarding the rules of political debate provided for by the Constitution. The Spanish government may be criticised for political short- sightedness or for its lateness in reacting, but it does not bear responsibility for the ongoing judicial proceedings. Saying that this is a political case is one of the first and most successful deceptions of the independence movement and of its supporters. Various courts started to investigate offences related to repeated failures to comply with the judgment of the Constitutional Court, and it was these courts that ordered the judicial police to investigate, prevent and stop the offending behaviour and conducts.
Within this context, on 20 September a Barcelona Investigative Court1 ordered several investigative measures to be carried out, including -among others- entering and searching the offices of the Autonomous Community Government, which required the presence of a judicial commission comprised of judicial police officers, a lawyer from the administrative office of the courts and a court officer.
While these judicial measures -which had all the legal safeguards for the parties involved and respected the due process of law- were being carried out, the leaders of the two separatist organisations abovementioned decided to call on their supporters and to urge them to assemble around the building where the offices of the Autonomous Community Government are.
As a consequence of the call, a protesting mob encircled the building, not only hindering the progress of the investigation being carried out by the judicial commission to seize material related to the upcoming vote, but also keeping them trapped in the building for many hours while they vandalized and destroyed police vehicles. Special police forces could finally take the team safely out of the building in the early hours of the following day.
The Spanish Central Investigative Court started an investigation into these events and issued a number of provisional measures, among them the detention and remand in custody of the leaders of the abovementioned organisations, Mr. Jordi Sánchez and Mr. Jordi Cuixart.
The grounds for the measures issued by the Investigative Court are, like any other decision, subject to criticism, but what cannot be done is to misrepresent or distort these grounds in order to delegitimize judicial action. The provisional detention was carried out within the legal framework of criminal proceedings and with all legal safeguards. The events that took place during the execution of the judicial
1 Translator’s note: Spanish Investigative Courts are responsible for the investigation of all criminal cases in order for the case to be heard at the High Courts of Justice. For of the offence of sedition, the investigative court refers its findings to the National Court in Madrid, where the case is heard by a panel of three judges.
investigative orders on 20 and 21 September at the aforementioned government building will be examined by a court to determine whether or not they constitute sedition, which is the ground on which the State Prosecution Service has started the prosecution.
Art. 544 of the Spanish Criminal Code (Organic Law 10/1995 of 23 November) establishes that “those who would, while not amounting to acts of rebellion, by means of public and reckless uprising, seek to prevent through the use of force and outside of legal means the application of the Law or impede any legal authority, official body or civil servant from legitimately exercising their duties or carrying out their orders, as well as from executing administrative and judicial decisions, shall be guilty of sedition”.
Mr Jordi Sánchez and Mr Jordi Cuixart are not being investigated or charged for their ideas, even though these are directly opposed to the principles of constitutional order, as are those of the thousands of citizens who support them. The two leaders face charges for the actions attributed to them, amongst them whether they incited or participated in the protests that took place and whether these actions can be considered a public and reckless uprising, as well as whether they intended to obstruct the execution of judicial orders.
A falsehood disseminated by separatists is that Mr Jordi Sánchez and Mr Jordi Cuixart are being investigated for their ideas or because they were exercising their legitimate freedom of speech. Neither their ideas nor their freedom of speech are in question. Mr. Sánchez and Mr. Cuixart are under a judicial investigation -which complies with all appropriate legal safeguards- for their conduct and the actions carried out by them, which may have gone beyond the tolerable limits of anybody’s exercise of freedom.
No idea or belief can justify or protect unlawful behaviour. However, the separatist movement (along with some populist politicians), believes that its agents should be above any law that could limit their power, apparently paying no heed to the rights of others.
Catalonia is fighting for something fundamental, an achievement we thought we had accomplished long ago. Something essential is at stake, since we are fighting for universal freedoms -which are enshrined in the law-, against the tyranny of those who hold themselves to be the sole judges of the people’s will. In this battle, those on the side of tyranny are seeking to destroy everything that stands in the way of what they call their “legitimate” intentions. Those of us who defend democratic laws, who accept and put limits to the powers of our leaders and our judges, who stand up for the peaceful coexistence we have enjoyed up to now, are under an attack never seen before. But we will defend our freedom with just the same determination, since the loss of our fight would only bring about tyranny or exile.
Luis Rodriguez Vega