States Reactions in Turbulent Times and the Erosion of the Rule of Law: The Trial of the Catalan Pro-Independence Leaders

Mireia Grau Creus

Institut d’Estudis de l’Autogovern, Generalitat de Catalunya

Editors’ note: In 2017 Catalonia experienced a crisis following the independence referendum and unilateral declaration of independence from Spain (previously debated on this blog here and here). Criminal trials of Catalan separatist leaders are currently underway: we gather two diverging perspectives on these trials from Argelia Queralt Jiménez and Mireia Grau Creus.

A few weeks ago, when I was preparing to participate in a round table debate on “Secession as a Breach of the Rule of Law?”, a lawyer I know lent me what I found to be one of the most insightful academic books I have ever read: Tom Bingham’s The Rule of Law. There is not a word about secession in the book. But Bingham, once he has dealt with the basic principles that make up the Rule of Law, argues that the Rule of Law should be the parameter that permits the definition, decision and implementation of policy reactions, not just in stable and peaceful scenarios, but also – and especially – in uncertain and turbulent ones.

It was precisely this point that inspired my contribution to the round table debate: while there is no doubt that secessionist movements question the status quo and may challenge legality, there should also be no doubt that the reaction by a state to a secessionist movement is a test of how strongly it upholds the principles of the Rule of Law.  It is often a long-term test during which the commitment to these principles can be significantly eroded.

In this sense, the current trial of nine former ministers of the Catalan Government, together with the former Speaker of the Catalan Parliament and the leaders of the two main pro-independence NGOs, provides just such a test.  And to say Spain is not scoring very highly in this test would be an understatement.  The trial is in fact a manifestation of the absolute institutional failure that is eroding the basic principles of the Rule of Law in Spain.

It is also the most extreme consequence to date of a state reaction which is based upon a deliberate denial of the political nature of the Catalan secessionist movement. The Spanish Government did not deny that there was problem; but it denied that the problem was a political one. And, given that the only political decision was to decide to avoid a political response, the Spanish state’s reaction to secessionism, and in particular the events of autumn 2017, ended up in hands of the security forces and the state prosecutors.  So much so that when the former President and Vice-President of the Spanish Government were called as witnesses at this trial, both of them denied all knowledge of, and responsibility for, the police operation in 2017.  Taken to this extreme (and assuming they did not lie), the presentation of the state reaction as no more than a security matter has a rather alarming consequence. That is, that there is no political accountability for the decision to send thousands of extra riot police to Catalonia or for the behaviour of those police officers once there (there being serious questions over whether the police deliberately used excessive force on peaceful citizens).

Paradoxically, the justification that the Government and even the King of Spain give for this political disengagement is precisely the Rule of Law (“el Estado de Derecho”); but they do this by re-defining the Rule of Law to mean nothing more than “there are rules and they must be obeyed”.

The deliberate consequence of the Spanish Government’s approach is a considerable number of criminal prosecutions against pro-independence campaigners and politicians.  This includes the present trial, in which the Spanish state has boxed itself into a corner by using 19th century criminal charges – Rebellion and Sedition – that were created to deal with violent and organized uprisings.

In bringing charges that are so very disproportionate, the state has been obliged to act in a disproportionate manner.  The very gravity of the charges means that the accused have been held in prison before trial (some of them for over a year) and now face final sentences that could go up to 30 years. Further, in trying to make the facts fit the charges, the state has seriously damaged the principles of the accessibility of the law, of stated criteria being given for decisions and of the right to a fair trial.

As if all that was not enough, the impartiality of the justice system itself is affected by the fact that, due to a quirk in the Spanish system, the trial consists of two, parallel criminal prosecutions. First, a public one brought by the state prosecutor and, second, a private, criminal prosecution brought by the far-right political party, Vox (the very same party whose recent results in the regional elections in Andalucía caused so much consternation both within Spain and abroad).

The charges being so disproportionate has tarnished the image of the justice system, to the extent that, according to a recent survey, only 23.9% of Catalan citizens expect that there will be a fair trial. This has had the result of eliminating the political accountability of the Catalan pro-independence leaders. There is no doubt that big mistakes were made, and the Constitutional Court’s notices ignored. But it is impossible to call politicians to account for their actions in any normal way once they have been charged with very serious offences that do not fit reality.

The charges of Rebellion and Sedition would hardly seem to be sustained by the documentary evidence produced by the two prosecutions. Extensive police searches in Catalonia produced little more than a diary of a Catalan politician with notes on meetings between politicians and activists and an anonymous Powerpoint presentation. While there is no doubt that these evidentiary items indicate an intention to promote the independence of Catalonia, there seems to be no indication of an intention to do this violently.  For this reason, the prosecutions’ case relies heavily on witnesses – more than 400 of them – to demonstrate that there was a general climate of violence in Catalonia at the time of the events in 2017.  The lengths to which they have gone to demonstrate this reflects the seriousness of the proceedings.  For example, one of the prosecutions’ key witnesses, the former Central Government Representative in Catalonia, expressed his concern for the suffering of police officers on  1 October 2017, stating that one officer had told him that he had fallen victim to “The Fairy Trap”.  This turned out to mean that someone had poured “Fairy Liquid” (a brand of dishwashing liquid) onto the floor of a school so police officers would slip on it.  This raises questions about whether hearsay should be allowed as evidence and how any of the persons on trial could be linked with the alleged use of this “trap”. Quite apart from this – and leaving aside the ridicule this statement provoked in social media – the crimes of Sedition and Rebellion were surely created to deal with the violent leaders of guerrilla armies, not school parents armed with Fairy Liquid?

All of which would be funny, if it were not so serious. The decision to criminalize the events which took place in Catalonia has completely obstructed the channelling of the conflict. It constitutes an enormous institutional mistake that is unlikely to do anything except increase the intensity of that conflict.

Mireia Grau Creus is a researcher at the Institut d’Estudis de l’Autogovern, Government of Catalunya.

Suggested citation: Mireia Grau Creus, ‘States Reactions in Turbulent Times and the Erosion of the Rule of Law: The Trial of the Catalan Pro-Independence Leaders’ IACL-AIDC Blog (22 March 2019) https://blog-iacl-aidc.org/2019-posts/2019/3/22/states-reactions-in-turbulent-times-and-the-erosion-of-the-rule-of-law-the-trial-of-the-catalan-pro-independence-leaders