Originally published in Spanish: #JuicioProcés: las declaraciones de acusados, testigos, y la estrategia de la inviolabilidad . Hay Derecho
25 Feb 2019
Last Monday we launched the series of pieces on the trial to the Catalan “procés” to clarify why the Supreme Court is the competent authority to know about the case, by examining the defense strategy and commenting on the subject of yellow ribbons (here).
Now that the second week of sessions was over last Thursday, when we could hear the statements by most of the secessionist leaders, we will focus in analyzing the replies of these defendants, as well as trying to cast some light over those legal questions exposed.
Regarding the statements by the defendants, it is striking in general terms the persistent efforts to keep talking about politics, instead of law, and the lacking of joint preparation by the defense positions.
Jordi Turull was the first to testify. He roundly denied the charges and he was surprised at the discussion on the commercial invoices they issued and the announcements distributed to media calling on the citizens to vote in the illegal referendum. According to his account of the events, it was the private companies who lead the —unplanned, patriotic— effort to issue announcements, massive electoral mailing, buying ballot boxes, making ballots, posters and so on. He said that they made it at their own risk, without any orders at all from the Catalan government —who called the consultation— and then they thought that they had to send their invoices to the government.
The truthfulness of these claims will be checked by the Court and both parties, with the statement of the leaders of such companies who will testify as witnesses, who eventually will be obliged in due course to say the truth, as we will explain later.
Keeping with a political defense rather than legal, Mr Turull emphasized something quite astonishing recently stated by the president of the Catalan government in a radio interview—that democracy is above the law, in an effort to justify that the actions by the members of Catalan parliament would be mandated by the people as a “majority”, without regard to what law says.
Raul Romeva, on his part, kept developing the “political theory” of the defense, claiming the will of the majority of the Catalan people to be above anything else, and repeating the mantra that “voting is not a crime”, so the trial to the Catalan “procés” where he was testifying would made no sense.
Either way, when it comes to the facts, which are the real subject under prosecution, Mr Romeva did not deny the incurring on expenses charged to public funds —as Oriol Junqueras and Jordi Turull actually stated—, and he just claimed from his point of view it was not a crime.
Another defendant who could testify last week was Josep Rull, who did not miss the opportunity to challenge the moral authority of the Supreme Court, and he just said that no public funds were spent.
Santi Vila, who resigned hours before the pronouncement by the Catalan parliament, expressed himself with honesty and regret, and he took the opportunity to go further on political explanations. He, as Jordi Sanchez, affirmed that the events of October 1st were a civic, pacific, normal demonstration.
Dolors Bassa, Meritxell Borras and Carmen Mundo also testified and, even though they keep in line with the previous statements, expressed themselves more vaguely to defend themselves against the charge of disobedience.
Precisely, in regard with this crime of disobedience, the legal strategy of defenses seems an unanimous effort to claim an alleged inviolability and immunity of the defendants because their status as members of the Catalan parliament.
Keeping with the analytic-didactic dynamics that we wish to give this series of articles, we must to stop here to analyze the legal viability of such allegation.
Unlike the “aforamiento” (granted innmunity) (Art. 57.2 of Catalan Statute of Autonomy), that we commented in the previous post by examining its impact on the Supreme Court jurisdictions, it is the individual parliamentary prerogatives, regulated by section 1 of Article 57, what we are discussing now: “Members of Parliament are inviolable with regard to the votes and opinions they may express in exercise of their position. During their term in office, they enjoy legal immunity and may not therefore be arrested unless in flagrant offence.”
First, on the inviolability. Article 57.1 of the Catalan Statue of Autonomy guarantees the freedom of speech of the members of the regional parliament when they contribute to set the will of the Chamber executed by vote, expressions or opinions, and it is not a personal privilege granting them with immunity for flagrant illegal actions. In the case of the members of the Catalan government and Mrs Forcadell, charged with a crime of rebellion, the charges do not concern only those actions carried out in the parliament building, but in the “consistent and relevant engagement, as members of the government and the Catalan parliament within Spain, in a plan … developed over approximately two years … over the course of which resolutions of the Constitutional Court were disobeyed and actions effectively derogating of the Spanish constitution and any element of the legal order contrary to the plans of the defendants”.
The allegation of inviolability made by Forcadell and the members of the Catalan parliament accused of disobedience was studied by the Supreme Court in several court orders, such as those issued on May 9th and June 26th 2018, stating repeatedly that it only applies to votes, declarations and opinions. The repeated and systematic disobedience of the Constitutional Court orders cannot be protected by this inviolability, even less when paired with the degradation of parliamentary processes for the benefit of the secessionist plan. As the examining judge argued about the allegation of having followed the parliament rules, “Before the determination with which the long and concerted plan for the independence has been carried out, with some of its episodes being even broadcasted on live TV so that they could be followed closely by all those who wanted to do so moved by either hope or anguish, the allegation that the Board was forced to tolerate the secessionist initiatives on the grounds of regulation should produce some qualms… even more when the Court itself had forewarned the involved officials, and the members of the Board of the Parliament in particular, under their responsibility, that their duty was to prevent or freeze any initiative that could disregard or elude the orders enacted by the Court”.
Actually, regarding the argument of the actuation according to the normative of the parliament, we must remember, among other episodes, that when the legislation supporting the referendum on October 1st was put to the vote of the members of the parliament, it was not only against the prohibition of the Constitutional Court, but there were also infringements of the rights of the minorities. The ruling of the Constitutional Court 114/2017 considers the appeal of unconstitutionality lodged by the Prime Minister against the Referendum Law, whose debate and voting where imposed to take place in the same morning of its official publication, excluding the possibility of presenting petitions to reject the bill and providing only two hours to present amendments, and suppression of the right to request an assessment from the Statutory Guarantees Council. In the words of the Constitutional Court, the majority “introduced new provisions in the Regulations of the Catalonian Parliament itself and ruled for the case… a brand new «procedure» that was conceived and promoted for its own benefit. Considering this, and from the point of view of constitutionality, the restriction, be it big or small –but maximum in this case- of specific rights of the representatives is not the most severe problem, but the subordination and consequent degradation of all rights to the rule of majority beyond any other regulation”.
On the other hand, regarding immunity, the Statute only establishes it against arrest by police except in cases of being caught in the act. It is a limited or partial form of immunity, as the similar precept in the Basque Statute was defined in the Ruling of the Constitutional Court 36/1981, in which there is no requirement of the previous consent by the Parliament that is applicable to members of the Congress and Senate according to article 71 of the Spanish Constitution. Therefore, the Spanish Attorney General stated that “the guarantee of immunity does not mean that a court cannot order the imprisonment, but is exclusively related to arrest by police. The protection of the members of the parliament does not involve jurisdictional immunity whatsoever beyond the determination of the High Court of Justice of Catalonia as competent tribunal”, since “an interpretation of the privilege of parliamentary immunity that results in impunity is unacceptable”.
In addition to the previous remarks regarding the declarations of the defendants, we must remember that this week the witnesses will start testifying before the Court. These declarations, as mentioned, are turning out to be essential to confirm or contradict the statements that the defendants would have done up to then.
One of the reasons for that is that these interrogations have substantial differences with respect to the phase that will start this week.
The defendants have the right to do not state the truth, and for that reason they do not have to swear or take an oath before the questioning begins. Likewise, they have the right to refuse answering to those parties of the trial –be it prosecution or defense- that they do not wish to. Because of this some of the examinations (e.g. Junqueras, Romeva) have been more like political statements, after refusing to answer the questions of the prosecutors and answering only those made by their own attorneys, which were thus acting almost as a prompter for their clients to make their speeches.
What is common between both types of examinations is that they all should be focused on events and actions of the questioned person. For this reason the President of the Court has been seen reprimanding the parties, mainly the prosecutions, after they asked the defendant to provide opinions or subjective assessments.
All changes this week. The witnesses are required to state the truth under penalty of perjury, and they also must answer to all parties of the trial: prosecutions, defenses, or the Court itself, which will also be able to question the witnesses. It will therefore be the moment in which the private prosecution (VOX) will be seen in action, since the witnesses will not be able to refuse answering.
In this sense it takes particular relevance the position of the President of the Court since, as the witnesses must answer all the questions, it will be him who would have to constrain the scope and extension of the examination, as well as the pertinence or lack thereof of the questions formulated by the different parties.
Considering this, we will follow expectantly the proceedings of the following sessions in order to elucidate new developments in the trial.
