Originally published in Spanish: #JuicioProcés: Las declaraciones de los mandos policiales (Parte II) Hay Derecho
18. 03. 2019
This fifth week of trial has been truly intense. Castellví, the former head of information at the Mossos, was the next to declare, and he was more much nuanced than the previous Friday, suspected of being under pressures by secessionists. He was followed by his colleague Quevedo, which in line with all previous statements, he alluded to the content of the “two meetings” held by Puigdemont, Oriol and Forn, where they were already warned about the serious riots that it would ensue —they not only did not called off the referendum, but also hid this information to the public and called to the occupation of the polling centers and resist the compliance with the court order, causing the violence. They knew these violent acts would occur, and they hid it to the public anyway. These statements are getting it closer to the crime of rebellion.
Regarding the misappropriation offenses, the contracting officers at the Generalitat testified, as well as their suppliers —some of them alleged that they had canceled the invoices with no intention to get them paid. At this point, the State Attorney emphasized the questions about budgetary law and contracting, noting that the Generalitat’s public treasure was already undermined anyway, that it was unsolvable, even if the invoices are cancelled. Albert Royo, General Secretary at DIPLOCAT, tried to play down this agency and unlink it from the power of Generalitat, but in the end he had to confess that some payments were made, while arguing about their purposes.
But the undeniable star of this week of trial has been the police chief Trapero. What a splendid defense strategy for its own trial, just answering. He was quite blunt, very serious, without hesitating. He sought to protect his Mossos. But above all, he described Forn as reckless and confirmed the insanity in warning political leaders about what was coming for them and these fanatics deciding to go ahead anyway. Did they really have a plan to stop the government? Some top officer else among the Mossos should to confirm this point, because it seems unbelievable. Certainly, these statements seem to have changed the defendants’ and their lawyers’ faces from what we saw in earlier trial sessions.
During the session of 14th March, what particularly resonated was the question by the presiding judge to Trapero concerning the meetings between the Mossos and Puigdemont, Forn and Junqueras, where the police commanders urged them to respect the law and expressed their concerns about the security and safety of citizens if the referendum was held. This chapter was headlined by the media as the presiding judge rescuing a failed examination by the private and public prosecution. Similarly, despite none of the defenses had protested immediately, the next day Junqueras’ and Romeva’s defenses filed a complaint accusing the court of being partial and taking the prosecution role.
However, this approach does not fit to the facts of the session, where the article 708 of the Criminal Procedure Law was strictly applied. The court has sought to find the material facts, which is its role, without any loss in impartiality and the accusatory principle.
In its first section, the article 708 of the Criminal Procedure Law states the procedure to follow for the examination of witnesses in the plenary, and it stipulates that the presiding judge shall ask the witnesses about the relevant particulars, after which the part who has brought the witness formulate the questions considered appropriate and relevant in the light of the answers.
In strict application of this judicial mechanism to the defendant’s statements this week, the court has not allowed the parts to interrogate the witnesses on questions unrelated to the facts addressed by the part that proposed the witness in the first place, for not being “relevant in the light of the answers” as provided by article 708.
In this case, Trapero’s testimonial statement had been proposed by private prosecution, who in its own interrogation did not ask questions about the meetings between Trapero and the prosecuted politicians. At the question time for the public prosecution, it asked a question about those meetings, unaddressed by private prosecution and unanswered by the defendant. When it was challenged by the lawyer Melero, the court, after deliberating during the lunch break, dismissed unanimously the question, which prompted the prosecutor Zaragoza to protest.
However, Melero did addressed these questions in its interrogation to Trapero, emphasizing that he could actually ask them because he was “his witness”, since he had been proposed by himself. At the end of the statement, the presiding judge asked Trapero to clarify why he requested the meetings with the political leaders. The presiding judge made explicit that Trapero had answered those questions already when asked by Forn’s defense, and that the question was covered by the article 708.2 of the Criminal Procedure Law, which stipulates that the presiding judge, by his or her own initiative or urged by any court member, can ask the witnesses the questions he or she considers as leading to the ascertainment of facts that are the subject of the statement.
At this point, there has not been any question on the presiding judge taking the role of the prosecution, let alone any undue introduction of the meetings issue in the interrogation, since it was precisely Forn’s defense who had interrogated on this matter. The question by the presiding judge was restricted to a concrete aspect —the concern that leaded the Mossos to request the narrated meetings, which perfectly fits to a determination or clarification of facts and allowed in the room by the article 708.2 of the Criminal Procedure Law.
The best evidence of judicial correction in the Court actions is the fact that in a plenary where protests abound, none of the defenses protested at that moment. And the protest filed the next day is innocuous in terms of denouncing any violation of rights that might be used as ground to appeal the sentence, since the fail to invoke the right on time —the question was unchallenged when it was asked— does not meet the requirement for admission according to the Organic Law on the Constitutional Court, that is, filing the complaint for the violation of constitutional rights the moment it was taking place, if applicable. That moment was when the presiding judge was asking the question, before it was answered.
