Luigi Ferrajoli is one of Italy’s most prestigious and internationally renowned jurists, particularly in the field of criminal law. Ferrajoli, who has received an honorary PhD from about twenty universities, followed the trial against Catalonia’s independence leaders in Spain’s Supreme Court and has since analysed the verdict. He is very critical of the Spanish court —presided over by Justice Manuel Marchena—, which he accuses of twisting Spain’s criminal law to secure the conviction of the Catalan political prisoners, and of Spanish politics, which he feels has shirked its responsibility in the matter, using the criminal code to orchestrate a crackdown operation instead.
Ferrajoli voiced severe criticism against the verdict and outlined the violations of basic rights during an event held at Roma Tre University on November 28, which this newspaper has had access to. The event was hosted by Antigone, an Italian watchdog that strives to protect basic rights and legal guarantees in Italy. The panel guests included Patrizio Gonnella, the chairman of Antigone, and Iñaki Rivera, the director of the Observatory of the Penal System and Human Rights, who was invited as a member of International Trial Watch (ITW), the platform of international observers who monitored the trial of the Catalan leaders.
Rivera has explained to this newspaper that Ferrajoli will be writing a contribution for a book that will analyse the verdict, together with human rights groups and international observers who worked with ITW during the trial in Madrid. The book is slated for publication in early 2020.
Sedition, a “remnant of the fascist period”
A good deal of Ferrajoli’s turn focused on exposing the trial and the verdict. To begin with, he pointed out that independence supporters have not engaged in any violent actions, even though Madrid’s lawfare could trigger a violent outburst. He cited the cases of Yugoslavia and the conflict in the Levant as examples, stating that repressive lawfare was on a par with religious fanaticism. As for the crime of sedition, he referred to is as “an embarrassment, a remnant of the fascist period”. Later he remarked that “it was a horrible trial” and he spoke of an attack on basic rights: the right to peaceful assembly, demonstration and ideological freedom, which lie “at the heart of political rights”. He stated that the case was about an identity conflict, rather than a punishable criminal act.
Ferrajoli believes that the verdict “is reckless and irresponsible” because “it stokes the fire”, as well as “a major blow for democracy and the rule of law”. “You cannot persecute dissidence by means of the criminal code”, he added, and he went on to criticise “the determination of Spanish nationalism to turn the conflict into a drama”. Ferrajoli declared that sedition and rebellion are both “crimes grounded on suspicion” that conflict with the right to demonstrate. He also criticised the fact that the criminal code had been twisted and that the principle of taxativity —which states that the events being tried must fit a particular offence— have been ignored. The Italian expert also voiced his perplexity at the fact that Vox, Spain’s far-right party, had been allowed to take part in the trial as an independent plaintiff.
Iñaki Rivera believes that “it was important to emphasise the peaceful nature of Catalonia’s secessionist movement” as he recalls Ferrajoli’s scathing criticism of the trial against the twelve Catalan leaders. “He also exposed the crime of sedition: his references to taxativity and the lack of a fitting criminal offence are key”, Rivera says.
“A total abdication of politics”
Ferrajoli was equally critical of Spain’s political elite. He cited the 2010 court ruling that struck down the Catalan Charter as the cause behind the growing support for independence in Catalonia and accused Spain’s Partido Popular of having orchestrated “an operation of propaganda and demagoguery” by filing an appeal against it with the Constitutional Court. According to Ferrajoli, the ruling was “an affront to Catalonia’s identity and dignity, and it triggered the separatist demonstrations”.
Speaking about the independence vote held on 1 October 2017, Ferrajoli claimed that it was a case of “a total abdication of politics”. He pointed out that the vote “was not legitimate” and Madrid could have argued that it was legally inconsequential, merely a way for the people to voice their opinion. Due to the state’s incompetence, instead they launched “a political operation by means of the criminal code”. He also criticised Spanish nationalism for claiming that the independence vote was a coup d’état: “most political parties [in Spain] have given in to the populist temptation”.
Ferrajoli believes that Europe’s public opinion “cannot remain silent” following the verdict in the case of the Catalan leaders. “The very notion of democracy is at stake”, he said. Ferrajoli thinks that a time for dialogue must begin, with political mediation, and an amnesty could be in the cards provided there is enough political consensus to pull it through.
Violations of the prisoners’ basic rights
The trial and the defendants’ strategy in court largely rested on the issue of basic rights, with a view to taking the case all the way to the court in Strasbourg. Before, during and after the trial a good deal of lawyers complained about violations of their clients’ basic rights, more so in the case of the nine who had been held on remand. Ferrajoli mostly agrees with those complaints: the violation of the principle of taxativity, following a highly restrictive interpretation of the law; being denied the right to a court of appeal, which he regards as critically important; the court’s lack of impartiality, given the system by which judges are selected and the political influence of Spain’s General Council of the Judiciary; and the right to a natural judge as established by law —that is, the right to be tried by Catalonia’s High Court of Justice instead of Spain’s Supreme Court.
The right to self-determination and identity
Ferrajoli’s opinions carry a great deal of weight. They provide an international benchmark, even for Supreme Court prosecutor Javier Zaragoza, who quoted Ferrajoli on the second day of the trial and referred the defence teams to his writings, where the Italian author limits self-determination to de-colonisation processes and cases of an oppressed people. Zaragoza called Ferrajoli “the father of guarantism in criminal law and the development of basic rights”, but he failed to mention that the jurist totally opposes pre-trial detention, something which the Catalan prisoners have had to endure for two years.
At the start of his address Ferrajoli stressed that he believes self-determination does not apply in the Catalan case because, in his opinion, Catalans are not an oppressed people and he regards Spain as a full democracy. However, during the presentation Ferrajoli wondered whether the repression unleashed after the verdict means that Catalonia may have the right to self-determination after all. Still, he voiced concern about a possible domino effect within Spain and other EU member states, such as Italy. Iñaki Rivera points out that “this is an important nuance because Ferrajoli had always opposed Catalonia’s self-determination, whereas now he seems to think that the issue is open for debate”. “Democracy is about peaceful coexistence between different identities, differences that exist together”, he noted, as opposed to political nepotism, populism and authoritarianism, which are “intolerant of dissenting views”. Ferrajoli believes that if Catalan separatism became more radical, it would be largely down to Spanish nationalism. “Let us hope there will be no violence”, he warned. Ferrajoli sees the conflict between Catalonia and Spain as a conflict between two identities. “Two nationalism that oppose one another, two identities, with Spain’s being the most serious of the two”, he remarked.