Photo by Federica Campanaro on Unsplash

Originally published in Spanish: “Euroorden y confianza mutua”. Editorial. El País.

7th April 2018

The German court neither acquits nor legitimizes Puigdemont or secessionism

The decision of the Schleswig-Holstein Court to reject a request for the surrender of the former Catalan president to Spain for the crime of rebellion does not amount to a damning verdict on the Spanish democracy, its rule of law or its judicial institutions as some have claimed. Neither can it be read as an acquittal, in whole or in part, of secessionist leaders currently indicted by the Spanish Supreme Court and, of course, even less so as a legitimization of the very serious actions they carried out in the disastrous months of September and October of last year.

That interpretation is not possible because, as the German court itself has explained, there’s no dispute around the fact that there was indeed violence and that the violent actions during October 1st can be attributed to the accused as initiator and supporter of the referendum. The German court, though, doesn’t find the degree of violence attributable to Mr. Puigdemont to be so overwhelming that it could have forced the state to capitulate to his demands, which seems to a necessary severity threshold to make the Spanish crime of rebellion equivalent to the German crime of high treason. Consequently, the court has found that the crimes are not equivalent, as required by the 2002 Framework Decision which regulates the European Arrest Warrant (EAW), but not that the crime didn’t happen as defined under Spanish law.

Neither does the court validate Mr. Puigdemont’s claims regarding “political persecution” in Spain, thus exposing the falsehood of the assertion -which he repeated after leaving a German jail- about the existence of political prisoners in Spain. There is therefore no support for Mr. Puigdemont’s and his followers’ attempt at self-exoneration by means of the of the German court pronouncement, nor is the way clear for Mr. Puigdemont’s return to the regional presidency.

It is true that the case in the Supreme Court is now in a difficult, but not impossible, position, as Judge Llarena has several courses of action at his disposal, including the the referral of the matter to the Court of Justice of the European Union requesting a preliminary ruling on whether the German court has correctly applied the EAW mechanism.

But beyond the judicial course that the process may follow, neither Puigdemont nor the secessionist faction are going to be able to change the nature their most egregious actions, their disloyalty to democracy, the Spanish Constitution, the institutions of Catalan self-government and, ultimately, to the citizens of this country, whose political rights have been deliberately damaged by their efforts to promote an illegal process of secession and breakup of our country.

These facts are clear and are visible to everyone. They included repealing the Constitution and the Catalan Statute of Autonomy; the proclamation of seditious laws by half of the regional Parliament replacing those supreme norms; and doing so in clear defiance of court rulings and without the concurrence of a qualified majority, by methods that deprived the opposition (which represents more than half of the Catalans) of its representative and control functions. All this constituted a coup d’etat that not only deserves political condemnation but judicial reprobation although it is up to the courts to determine the specific statutory definitions.

Regardless of its judicial qualification, the procés had a violent character: there were undue and exorbitant uses of force: there was physical obstruction of Justice; destruction of police vehicles; illegal occupation of roads; blocking of railways, endangering even the perpetrators themselves; intimidation tactics and targeted demonstrations against people, parties and associations considered rivals or enemies; vandalism on street furniture; and actions by the regional government and the regional police seeking to foster some of those abuses. And above all, it was a process pervaded by coercion, because the law was systematically violated in an attempt to impose unilateral, illegal and mandatory secession on citizens both from the streets and from the institutions.

Catalan secessionism sought to make the state face the dilemma of either being overwhelmed and forced to accept an illegally imposed secession; or taking extreme measures that entail significant discredit and a high reputational cost. The secessionist movement, lacking the support of a social majority,  tried to prevail through fait accompli. This is a path that, some self-criticism notwithstanding, they have not yet discarded clearly and completely.

Neither the German court nor secessionist propaganda can change those facts, which are already part of the history of the Spaniards and their struggle to maintain democracy. Spanish democracy has been put through a severe test and has been in serious danger. But its rule of law and its judicial institutions work.