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#JuicioProcés: The jurisdiction of the Supreme Court, the strategies of the defendants and the yellow ribbons

Originally published in Spanish: #JuicioProcés: La competencia del TS, las estrategias de defensa y los lazos amarillos . Hay Derecho

18 february, 2019

On February 3 we announced our intention to tell the story of the “Trial of the Procés” (more precisely, the trial of the acts committed by some people in the aforementioned process), and today we publish the first of said posts, with the intention of continuing to do so with some regularity, depending on the events and aiming at rigorously analyzing the legal questions that arise and combating the politicization of a trial that, in our opinion, has, from the outset, all the conditions to be legally just. And if it doesn’t, we’ll say so. The work that will appear in this section is eminently collective, because the variety of issues that may be involved demands it. That’s why it will appear under the “Hay Derecho” signature.

And, diving into the matter, we will now analyse some of the most relevant issues that were discussed last week during the trial sessions of the procés:

The jurisdiction of the Supreme Court.

One of the main points reiterated by the defendants has been the claim that the Spanish Supreme Court lacks jurisdiction in this case, on the grounds that the acts for which they are being tried would have been committed in the territory of Catalonia. This claim has been also used to further discredit the Spanish judicial system to prepare the ground for a potential intervention of international organisations: In the words of the defence, they are facing an incompetent Court to which an ad hoc process has been brought and the exacerbation of the punitive pretensions, we find a scenario that fulfils the typical requirements of emergency courts and the criminal law for the enemy.

Nothing could be further from the truth. Article 57.2 of the Statute of Autonomy of Catalonia establishes that in cases against Members of Parliament “the High Court of Justice of Catalonia is competent. Outside the territory of Catalonia, criminal liability is enforceable in the same terms before the Criminal Chamber of the Supreme Court”. On the basis of this allocation of jurisdiction, in which the competence of the Catalan Supreme Court or the Supreme Court (SC) is determined by the place where the crime was committed, the Supreme Court assumed in October 2017 the competence to hear the investigation and prosecution of the Special Case initiated by a complaint filed by the Attorney General of the State for rebellion and other crimes against Carme Forcadell and other members of the Permanent Deputation of the Parliament, which had already been dissolved in application of article 155 of the Constitution.

The SC, on assuming its jurisdiction at that initial moment, not only verifies the obvious territorial scope of the crime of rebellion directed at the secession of a part of the territory of Spain, which manifestly overflows the territory of Catalonia and attacks the Rule of Law as a whole; what is relevant is that, in accordance with its previous jurisprudence, the SC does not limit its assessment to the territorial effects of the crime, but rather follows the act reus, the place where the facts that would make up the action have been committed. In doing so, the account of the Public Prosecutor’s Office describes a plan and actions aimed at making the independence plan a reality, which would have had as protagonists government authorities, parliamentarians and social movements, each of which would have contributed to this objective from its own functional space.

This complex setup includes actions carried out abroad, particularly the external action performed outside the national territory, which led to the opening of embassies in some countries, and the execution beyond our borders of numerous activities aimed at preparing, financing and legitimising the holding of the referendum, reinforcing the image of Catalonia as a State and ensuring that the process of independence was recognised internationally. The actions carried out abroad make it possible to consider that the requirement of a wider territorial scope than Catalonia has been fulfilled.

Furthermore, in view of the multi-subjective and complex nature of the crime, with a division of tasks in which the coincidence in the purpose behind the action -the declaration of independence of Catalonia- tolerates factual contributions of a very different sign, the SC will be competent to judge those facts initially dealt with in other jurisdictional bodies with respect to those carried out by individuals without a special jurisdictional protection, but whose intervention is inseparable with respect to those that are being investigated and, where appropriate, prosecuted by the SC.

Due to this inseparability of the facts with respect to those under investigation, in November and December 2017 the Special Case was extended to Puigdemont and the rest of the members of his Government, who at that time lacked special jurisdictional protection, as well as against the presidents of the independentist entities ANC and Ómnium Cultural, since, otherwise, there would have been a fragmentation of the object of the process that would be detrimental to their right to a defence.

The Order of the Supreme Court of 27 December 2018, in resolving several pre-trial considerations, definitively clears the issue of competence, without prejudice to what the Constitutional Court may resolve in the numerous appeals filed. Confirms its competence to hear the prosecution of those accused of rebellion or sedition and embezzlement of public funds, reiterating that the actions carried out abroad – not necessarily violent, but linked to the prosecuted action – justify its competence.

In order to handle the allegation that the SC had been created exceptional jurisprudence to justify its jurisdiction, it expressly rejects the fact that it is moving away from precedents, in particular the 9-N referendum trial, which was tried in Catalonia because the complaint that led to the initiation of that case had been filed for the crimes of disobedience, prevarication and usurpation of powers and not for rebellion.

On the other hand, the facts attributed to the members of the Parliament (N.B the original article referred to the specific governance body of the Parliament in charge of formally putting motions to a vote, including selecting the parliamentary procedure to be used to process it), consisting of disobedience to the resolutions of the TC, without any other imputation, are referred to the SC of Catalonia considering that they could be subject to a separate trial, due to the foreseeable length of the special case, the continued presence of the accused during the lengthy sessions of the oral trial and, finally, the forced displacement of those who are only going to respond to the crime of disobedience, who are not in pretrial detention, led the SC to separate their actions for their trial in Barcelona.

The strategy of the defendants

With regard to the strategies of the defendants, we must first explain that the trial begins with the processing of the pre-trial considerations. These are not normally taken into consideration in ordinary proceedings, which is the procedure through which this trial is being processed, and which only foresees the pre-trial considerations in a series of very specific circumstances, but the Court has wanted to put in place all possible guarantees and has provided this possibility, characteristic of the abbreviated procedure, so that the defenses can raise the lesions of the fundamental rights that they consider opportune.

Most of the defenses have listed the damage to all fundamental rights granted by the constitution, thinking only in the Strasbourg Court, in an exposition evidently exaggerated, invoking political arguments rather than legal ones. It was a poor defense. Even Junquera’s defense has spoken about the damage to religious freedom for not been permitted to attend a mass in prison, a completely propagandistic allegation, since the penitentiary system depends on the Prison Supervision Court and it is not to be assessed on this trial, offending  the people in the world who do suffer persecution because of their religious ideas, even with mortal consequences.

But Forn’s defense, the lawyer Melero, said brilliantly something obvious, that we are in a criminal trial, as it would be in a case of fraud. What does this mean? It means that we need to look into the facts raised by the accusation, their evidence and the evidence from the defense, and then subsuming these facts in criminal definitions, period. No big words about the right on self-determination and ideological freedom, the persecution of the oppressed peoples, democracy, the right to vote even when it is not provided by law, Scotland, Quebec, etc. No. Just the facts under prosecution and criminal definitions. In previous matters, Melero has kept with an argumentation consistent with the fundamental right to evidence. For his part, Forn has replied to the charges with his papers tidy and underlined in colors, as someone who has nothing to hide. His argument? He supported the referendum but did nothing to carry it out. We will see which evidences are examined, but nonetheless it is a joy to see someone who apparently has learned about how a criminal trial works.

On the contrary, Junqueras, did not reply to the charges, using his constitutional right. His lawyer kept feeding him with opening lines to deliver his political speech. The message that he loves Spain, that he would do it again, that he is answerable to people’s will, that laws do not matter… Politicians, of course, as we have already seen it in the Gürtel case and others, can be more or less successful communicators in rallies, whipping people up, but in justice courts they do not let themselves to be advised by their lawyers, or believe they can persuade a judge –specially at the Supreme Court– with arguments based on politics. Law, the true expression of the will of the whole people, makes it impossible.

The Use of Secessionist Symbols: Yellow Ribbons

The first issue raised by the private accusation carried out by VOX was the displaying by one of the defendants, Mr Jordi Sánchez, of the yellow ribbon that in the collective imagination of secessionists famously expresses a protest against the prosecution and pretrial detention of secessionist leaders on the dock.

The chief justice took up the opportunity to establish the position of the Court on the exhibition of symbols in the room and made a distinction between lawyers and defendants. Regarding the lawyers, he followed the General Statute of Spanish Lawyers, which prohibits the exhibition of any insignia by the lawyers in the room except the one for their bar association. It should be reminded that during the trial of the terrorist attacks of 11 March, a lawyer wearing a yihab was expelled of the room. The case ended in Strasbourg, where it was rejected on formal grounds.

As for the defendants, the Court endorsed the ECHR jurisprudence on the exhibition of ideological or religious symbols on court. This jurisprudence deemed the ban of religious symbols displayed by the parties on a trial as contrary to the Rome Convention in two cases involving the exhibition of a yihad and a hat.

The ECHR considers that any restriction to religious or ideological freedom must be prescribed by law, which must be subjected to a quality filter, that is, it must be predictable and accessible. At the same time, for the restriction to have a legitimate end, it is required to «constitute the necessary measures in a democratic society for state security, law enforcement, public health and moral, or protection of rights and liberties of the others”.

Among these measures, the ECHR includes the necessary respect and the proper functioning of the process in court that must be assessed case by case. The ECHR interpreted that the exhibition of religious symbols did not affected these aims in the two studied cases, so therefore it considered that domestic authorities exceeded their margins of assessment.

Thus, the Court has determined that the yellow ribbons exhibited by the defendants do not lessen the required respect and proper functioning of the process, albeit they symbolize an ideological position that characterize the legal process as a political one.

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