I write these lines after Puigdemont and part of his Government fled to Brussels to evade the Spanish justice, after the investigating judge decreed provisional prison without bail for 8 former regional ministers of the Catalan government (an order which was executed) and after the appeal from Jordi Sànchez and Jordi Cuixart, presidents of the pro-independence associations ANC and Òmnium, to get conditional parole after 18 days of provisional prison was rejected. The scenario is terrible, also for those of us that believe that the only possible solution to this crisis is political negotiation. Nevertheless, the fact that this scenario is terrible and even avoidable doesn’t mean that Spain is a repressive state, much less a dictatorship.
Our legal system contemplates provisional prison as an exceptional measure that can only be decreed during the investigation if a number of conditions are met. This exceptionality is required because it affects at least two fundamental rights recognised in the Constitution: first, personal freedom, one of the pillars of the rule of law; and second, the presumption of innocence, which means that nobody is guilty until their responsibility in one or more punishable conducts is proven in a trial with all due guaranties. Provisional prison means -and excuse me for stating the obvious- to deprive an innocent person from their liberty.
I concur that the investigating judge was wrong in deciding that there was basis for some criminal offense and that there are conditions required to imprison a number of people under investigation but still innocent. Nevertheless, this judge acts within a judicial framework in which mechanisms exist to annul her decisions. In fact, those provisionally deprived of their liberty can, until the hearing, request as many times as they want to be released. I do not mean to downplay the fact that they are imprisoned. But we must provide some context to the situation.
It is true that the judicial panorama is not the best: one of the participants is an Attorney General officially censored in parliament due to his complacency with People’s Party politicians under investigation, and there are relevant doubts about whether the Audiencia Nacional, the Spanish National Court, is the proper court to decide on the issue, among other things.
Nevertheless, those now investigated have potentially committed a number of criminal offenses, some of them quite severe precisely due to the institutional positions they held: they were the Catalan government. And no, they are not being judged for organizing a referendum, for wanting the people to have the ability to vote; they are being prosecuted because, even though they knew the possible juridical consequences, they decided to ignore the legal order not once, but several times (some would say in a continuous manner). They are not being repressed for defending some ideas –they are not political prisoners-, but because they tried to defend these ideas ignoring the current legal framework. A legal framework that had been approved by both the Spanish and Catalan Parliaments, which had both been been democratically elected. Are these actions criminal offenses? It is not up to me to answer that. But in any case these actions were outside the law, as these government members have themselves admitted. They did so, for instance, by voting to pass the law of the referendum and the law of juridical transition and foundation of the Republic -against the advice of the lawyers of the Catalan Parliament- and bringing them into effect, even in rather ingenious ways. It shouldn’t be forgotten that Puigdemont and his regional ministers departed almost clandestinely to Brussels precisely because they knew that they would have to face legal action.
All this happens in Spain, which is a state under the Rule of Law, totally comparable to other states in the European Union. Despite how insistently it is repeated nowadays, we are not in a dictatorship or anything resembling one. We are in a state with imperfections that defends itself, sometimes clumsily, against what it considers an attack to its normal operation. And it does so by applying the existing rules through a justice system that, with its highs and lows, works.
All this shouldn’t stop us from insisting that this is a conflict with a political base and legal consequences, but will only be resolved if approached through dialogue and an understanding of the legitimate positions of the other. In any case and as a basic condition, all must respect the same rules of the game. And that includes not twisting legislation about political parties (nor the Constitution), or not trying to turn the next elections into something they are not.