Joaquín Urías: “The law has been used as a way of fighting Catalan independence”

A former lawyer in Spain’s Constitutional Court (CC), Joaquín Urías considers the charges brought by the Supreme Court against the political prisoners and the other pro-independence leaders to be a travesty of justice. He does not believe the court has already made its decision and feels that the defence teams can defeat the prosecution’s case. However, he feels that the defendants may end up being found guilty of sedition since for technical reasons it is more easily proven than rebellion. Urías has also criticized the version of events supported by politicians and the media in Spain, that of the right, which silences voices which are critical of the case against Catalan independence and dissent.

Urías, who visited the political prisoners in Lledoners last month, feels that Jordi Cuixart and Jordi Sànchez are thoroughly convinced of what needs to be done. He also warns the independence movement that, if any of those who are behind bars should falter at some point, we must be prepared for it, understand it and accept it.

– What do you think of the charges?
– They’re hardly surprising. They’re basically what we all expected. That the public prosecutor would try to paint a picture of the events which bears no relation to what happened in Catalonia in October last year. They insist on highlighting small acts of violence and are determined to say that everything was carefully planned and coordinated. They really want to give the impression that there was a coup. That’s what I thought in terms of the facts. As for the way it’s written, what caught my attention is that the actions of the accused are not dealt with on an individual basis. They’re mentioned in a collective manner. For example, it’s not clear why Sànchez and Cuixart are being accused of rebellion, considering that the events in which they are named refer to the 20-S [20 September]. It’s not clear what they have to do with the rebellion. They could be accused of a crime of public disorder or disobedience, perhaps, but in any case it’s not at all clear how 20-S became a rebellion (1). And the alleged leadership of Junqueras and the rest of the prisoners appears in the charges but it’s not clear. In short, the charges lack foundation, they take little account of the actions of individuals in terms of the crimes and contain a narrative that highlights violent events that have little to do with what we all actually saw.

– This fabricated version of events is in keeping with Judge Llarena’s handling of the case.
– It’s the same story. There are phrases and expressions lifted directly from Llarenas’ statement. It aims to give the impression that mobs took to the streets to try to prevent the state from taking action. It’s not usual for the prosecution to express itself in such a way. It doesn’t try to hold specific defendants accountable for each charge.

– Is the prosecutor’s office interested in prolonging the conflict?
– It’s very hard to say. I wouldn’t go as far as saying that is so. My impression is that the prosecutor’s office has an extremely partial view of the events. That they have an a priori version of events that merits a penal sanction. They’ve built their narrative from this starting point. It’s not a distant, objective piecing together of the facts; instead it gives one the impression that the prosecutors already know what they want to find.

– You’ve said that the charge will end up being for sedition and not rebellion.
– A charge in which the nature of the rebellion isn’t discussed is far more convenient for the Supreme Court. Everyone is pointing out that the events don’t constitute rebellion. There was no armed or violent uprising with the intention of seizing power. There was no uprising, and even if there had been, violence wasn’t used as a method, regardless of whether there were violent acts. Since there’s no base for charges of rebellion, they could play a trick: bring charges for rebellion and end up finding them guilty of sedition, with people being relatively happy since the rebellion charges are dropped. But ten or fifteen years in prison is a long time, considering what happened.

– The Spanish right has taken advantage of the fact that the state attorney hasn’t brought charges of rebellion, using it as a means to attack PM Pedro Sánchez. But the fact is that when Rajoy was in power, they were accused of misuse of public funds. Now, however, sedition has been added. What is this change of criteria due to?
– It’s hard to know. I’m not sure if the state attorney has received orders. The government says it hasn’t issued any. It’s possible that there have been instructions from Spain’s Solicitor General, and not from the government. And it’s possible that the state attorney has tried to present a version of events which is favourable to the government’s position. It’s possible, but I’m not saying it’s what’s happened. In any case, it’s true that the state attorney’s version describes the same facts from another perspective, but the decision to bring a charge of sedition is also not legally reasonable. They’ve pitched the idea that sedition is more reasonable, but in fact the description of sedition is inadequate, since it implies a tumultuous uprising. And in Catalonia there was no uprising, though there was an attempt by the institutions to break the legality in force. It’s not an uprising by crowds on the street, with the use of force.

– Vox is calling for charges which amount to seven hundred years in prison. How is it possible that an extreme right party can bring a private prosecution in this day and age?
– In Spain we have a tradition of private prosecutions that historically has caused many problems. The very concept that a specific individual can bring a case against a defendant sets alarm bells ringing. I don’t have a problem with Vox trying to do so, they’re doing what they see fit. But I’m scared that in cases where the prosecutor’s office or state attorney daren’t go so far, the judges are tempted to accept Vox’s case. It seems dangerous to me.

– They don’t provide any evidence, they simply create a political narrative to justify the violence. How can the prisoners and the rest of the accused defend themselves in court?
– During the trial it is important that the defence teams address the facts one by one and tear them down. They should disprove — which shouldn’t be hard— the claim that there was tumultuous violence that hindered the actions of the security forces on 20-S. And above all, that they disprove the claims that what happened on 20-S was organized by the Catalan government and the two Jordis. This can be done. Later on, they must disprove the notion that the government of Catalonia organized the masses to rebel against the state. They must defend themselves against such accusations. What tactics will be effective? It’s hard to say. It should be taken into account that the Spanish prosecutor’s office always decides to prosecute, whenever it can. It’s not just about the independence process. We’ll have to see if the Second Chamber of the Supreme Court is truly neutral or if it’s already made up its mind.

– I get the impression the verdict has already been decided.
– I’m sure that’s not the case. It’s possible that the judges of the Second Chamber of the Supreme have a pre-conceived idea. They’ve appeared in the media a lot and they’ve had a lot to say. Therefore, the judges may be under the impression that the Catalan government organized an uprising. The defence teams will have to fight against the judges’ prejudices. I think the verdict hasn’t been decided yet, but fighting against the judges’ prejudices isn’t going to be easy, either.

– There is much talk of rebellion and sedition, but charges of embezzlement can also lead to lengthy jail sentences. In principle, they would seem to be the easiest charges to prove or disprove, but for now they’re based on reports by the Guardia Civil.
– Misuse of public funds is the crime that I think —if it can be proven during the trial— would be the most logical. If public money was really used to organize the referendum or other illegal activities, then a crime has been committed. Juridically, let’s say, it would be the most cut and dry. But obviously they need to find proof. The declaration made by the public prosecutor’s office, as I said before, doesn’t associate specific individuals with the actions which are being prosecuted. It’s the same with the misuse of public funds. The document says that if there was a referendum, someone must’ve paid for it. But it’s not enough to argue that someone paid for something. There’s a lack of evidence. We’ll see if the prosecutor is able to provide documentation in court and reports that prove that there really was misappropriation.

– You’ve been critical of the fact that by bringing their case, the prosecutor’s office is attempting to crush the pro-independence parties and thereby liquidate the state.
– At this moment in time, a bit of common sense is called for. During the whole case against the process, the law has been used as a way of fighting Catalan independence. It’s obvious that during the process illegal acts have been committed and it is evident that the attempt to create a new Catalan legality is in violation of Spanish legality. Great. However, it doesn’t mean that everything which is illegal is automatically a crime. I have the impression that when the public prosecutor saw that there would be no response to what happened in Catalonia, since no crime had been committed, they tried to change the facts to make them appear to be a crime. I believe that the prosecutor’s office had the chance to take a step back and declare that the events which took place in Catalonia were illegal and a challenge to the state, but that they didn’t constitute a criminal offence as defined by the Spanish criminal code, aside from disobedience and misuse of funds.

– What do you mean when you say that there have been illegalities which don’t constitute a crime?
– Not everything that is illegal is a crime. If you park your car badly, it’s not a crime and you can’t be sent to jail for it. Or if you fail to pay your taxes to the treasury or you make a mistake when you pay. There are many things that aren’t crimes. When the Constitutional Court prohibited the passing of Catalonia’s so-called disconnection laws, and the Catalan parliament went ahead and passed them anyway, this was disobedience and could be seen to constitute a crime. When later the independence of Catalonia was declared, it was clearly unconstitutional. But that doesn’t mean that it’s punishable according to the criminal code. As a result of a political challenge, the prosecutor’s office and the judges, Llarena in particular, have responded with a fabricated criminal solution.

– Are they seeking retribution?
– I don’t know. But it is a case of inventing a legal response which the law doesn’t provide for, dressing up certain actions so that they appear as if they’re a crime and they don’t go unpunished. This helps to scare the Catalans. Now Catalonia has to find ways to achieve dialogue and stop the repression of rights. If Spain doesn’t violate the rights of the prisoners and the leaders who are to stand trial and strictly complies with the law, the independence movement would be left without ammunition. As a result, the situation would calm down a lot.

– You’ve also criticized editorials in the media and opinion pieces which are critical of those who argue that there was no rebellion or sedition, as this also puts pressure on the judges. A media narrative is built against dissent.
– Absolutely. In Spain, when someone publicly declares that there’s been a rebellion, that these people are rebels and that there’s been a coup, they’re automatically said to be showing respect for the judicial authorities. And when someone comes out saying the opposite, which is logical, that according to the law there is no evidence of rebellion or sedition, they’re automatically called a traitor to Spain and accused of putting pressure on the judges. I think that the public narrative in Spain, outside of Catalonia, has been won by the right. From now on, pressure is only being put on the judges when someone says the opposite of what they want the judges to do. That is, they put pressure on the judges and attack those who think otherwise. In Spain it’s difficult to hear voices that contradict this narrative. Many judges and magistrates have declared that there is no evidence of rebellion or sedition, such as the former president of the Supreme Court and the lawmaker who drafted the article on rebellion in the criminal code… There are many authoritative voices, but they’ve been silenced and presented in such a way that saying certain things in public is seen as putting pressure on the judges and betraying Spain.

– You paid a visit to the political prisoners in Lledoners On October 5.
– I received an invitation to visit them from a group of lawyers. I agreed to go and listen to them and to offer them my opinion. We talked about the political and judicial situation. I saw them relatively strong, given the harshness of the situation. It may not seem like it, but being deprived of one’s freedom for a year is really tough. The two Jordis are clearer about what is happening and the need to vindicate themselves. The rest are a little more afraid, naturally enough, that they may end up relenting. When someone is in prison, they don’t enjoy all their rights and this gets to them. So far it hasn’t happened, but if at any time one of the prisoners should falter, the pro-independence movement must be prepared. This is what jail is all about, bending people’s will, however much support and strength they receive. If one of the prisoners doesn’t feel strong enough to continue with the same degree of involvement and they seek a way out of prison, people will need to accept it. It’s perfectly understandable.

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Translator’s note:

(1) On 20 September 2017 Spanish Guardia Civil raided the HQ of Catalonia’s Finance Ministry in Barcelona and arrested several officials in a bid to thwart the independence vote slated for October 1. Several thousand peaceful demonstrators gathered outside to protest the police operation. Grassroots activists Jordi Sànchez and Jordi Cuixart have been charged with rebellion over the events that occurred that day.