Spain’s Supreme Court aims to render Catalan political prisoners defenceless in court

In case anyone was still in any doubt, the Supreme Court’s case against the political prisoners, which starts on 12 February, will not allow judge Pablo Llarena’s handling of the case to be called into question and it will proceed as if no human rights violations ever took place. This became apparent from the documents released on Friday including the definitive list of witnesses and evidence which are to be allowed during the trial. The panel of seven judges, headed by Manuel Marchena, have agreed to virtually all the witnesses and evidence put forward by the Public Prosecutor, Spain’s Solicitor General and the far-right political party Vox. Meanwhile, the defence teams have seen fifty of their witnesses rejected, some of them key to their case, together with a whole host of expert witnesses and vital pieces of evidence that would help them counter the version of events of October 2017 put forward by the late Attorney General José Manuel Maza and perpetuated by Llarena and the prosecutor’s office (even though the Spanish government has changed hands), conveniently echoed by Spanish media, which has survived intact until the first day of the trial.

The first signs of bias can be seen in the refusal to allow the defence to call certain witnesses. Mariano Rajoy, the head of the Spanish government responsible for the crackdown on the independence movement, has been accepted as a witness. And there are good reasons for calling him to testify. However, while Rajoy and Sáenz de Santamaría [Rajoy’s former deputy PM] will be called to give evidence, Catalan president Carles Puigdemont, currently in exile, won’t be allowed to. The defence teams wished to call him as a witness, but the judges turned them down, finding him to be ‘in rebellion’ and ‘manifestly incompatible with the duty to give evidence and the obligation to tell the truth accepted by all witnesses’. They have chosen to completely overlook the fact that Puigdemont appeared before Belgian and German courts that dismissed Spain’s extradition request for rebellion. Not only that: Justice Llarena subsequently refused to have Puigdemont extradited and brought to trial for misuse of public funds, when he had the chance.

Likewise, the Supreme Court has refused to allow [deputy ERC leader] Marta Rovira’s testimony. They have also rejected other potential witnesses of the stature and authority of the Catalan Ombudsman, Rafael Ribó, whose reports have repeatedly been critical of Spain for the violation of rights in Catalonia during the 1 October vote. The court has justified its decision by arguing that said reports are already in the public domain and that they do not require further explanation or interpretation by their author.

‘The Nobel laureates’ opinions are superfluous’

Any evidence related to documenting human rights violations has been rejected. These include the UN Special Rapporteur on Freedom of Expression, David Kaye, who has spoken out against the political persecution of Catalan independence leaders on more than one occasion; the independent expert on the promotion of a just democratic international order, the UN High Commissioner for Human Rights, Alfred de Zayas, who has also repeatedly criticized police violence against voters on 1 October and backs international mediation efforts so that Catalonia may exercise its right to self-determination. None of them have been admitted as witnesses. Other names that have been refused include Michel Forst, the UN Special Rapporteur on the situation of human rights defenders; Nils Muizenieks, the Commissioner for Human Rights of the Council of Europe; and even Kartik Raj, the author of the Human Rights Watch report on violence perpetrated by the Spanish police on 1 October. The court also rejected the Nobel laureates who endorsed the Let Catalans Vote campaign, Jody Williams and Ahmed Galai; they also said no to the linguist Noam Chomsky, the sociologist Richard Sennett and the historian Paul Preston. They are all signatories to a manifesto mentioned by the prosecutor in the indictment, but the court refuses to allow them to speak. According to the prosecution, ‘their opinions are superfluous’.

A piece of evidence requested by Jordi Cuixart’s defence team sought to prove that neither he nor Jordi Sànchez nor any of the demonstrators acted violently on the 20 September, and that this was also the case for the members of the public and their political leaders during the 1 October referendum. On the contrary: they aimed to show that the acts of violence were perpetrated by Spanish police officers and Guardia Civil. To this end they wished to enter into evidence a report by a Scotland Yard expert, Hugh Orde, with four decades of experience with the Metropolitan Police and the Police Service of Northern Ireland. They were also denied the right to include a report written by Duncan McCausland, a life member of the Association of Chief Police Officers, based on his years of experience and his independence in relation to policing and matters of public order.

Any evidence and expert witnesses which could serve to independently verify the violation of rights, the freedom of expression, the right to protest, the right to political participation and so on, have been rejected. Likewise, any evidence aimed at proving the political contamination of the Supreme Court, failings in the separation of powers or any lack of impartiality on behalf of the public authorities has also been blocked. This explains why the court has rejected the defence’s request to depose Ignacio Cosidó, the PP MP, on his WhatsApp message which caused an outcry since it proved that the PP and the PSOE were pullings strings in the Spanish judiciary, specifically inside the very Supreme Court chamber which is to try the political prisoners and, even more specifically, with its president, Manuel Marchena. Another witness who was rejected.

Likewise, the request made by Jordi Pina, the lawyer representing Sànchez, Rull and Turull, to access the list of members of the Constitutional Court and the Supreme Court who visited Mariano Rajoy, Soraya Sáenz de Santamaría and the Ministries of Justice and the Interior between 20 September 2017 and 31 May 2018 met with the same fate. The request relates to the information published in newspapers such as El País, which suggests the Spanish government directly applied pressure on Constitutional Court judges to prevent Puigdemont’s investiture in January 2018. And speaking of the separation of powers, the request to enter into evidence the interview with the Minister of Justice Rafael Catalá on Onda Cero radio anticipating Judge Llarena’s actions has also been declined.

The judges have no intention of allowing the defendants’ legal teams the possibility of bringing to light rights violations, the lack of impartiality and police brutality perpetrated by the Spanish security forces against helpless members of the public who were trying to vote. And if the defence makes such claims during the trial, they intend for them to be seen as baseless, lacking the support of an eyewitness or the backing of an expert testimony. And no international observers shall be present either; with the claim that ‘since the trial will be televised, it’ll receive enough publicity’, which in turn means that everyone can be a ‘national or international observer’.

Authoritarian approach

The Supreme Court is, once again, displaying the same attitude which prevailed when it unleashed a tirade of fury against the German justice system following the Supreme Court of Schleswig-Holstein’s ruling that it saw no evidence of violence or rebellion in support of Spain’s extradition request regarding Carles Puigdemont. A short-sighted, uncritical approach, incompatible with the concept of a common European legal space. And yet another example of its refusal to grant the defence one of its wishes. Jordi Cuixart’s lawyers asked the judges to table a question before the Luxembourg-based Court of Justice of the European Union, asking whether the case against the Òmnium president infringes on the EU’s Charter of Fundamental Rights. The request was turned down.

As a consequence of such decisions, the defence teams must restrict themselves to what the court calls ‘facts’ and not ‘opinions’. Certain ‘facts’ assembled in a special case, 20907/2017, largely based on police reports compiled by an individual who chose to anonymously insult those who favour independence on social media. Daniel Baena, officer number T43166Q and head of the Guardia Civil’s judicial police in Catalonia, who, under the pseudonym of Tacitus and username @maquiavelo1984, was exposed on Twitter attacking and insulting pro-independence politicians whom he was investigating at the time. And in the trial about to kick off, the prosecution will be entering Baena’s reports into evidence. The court refuses to accept that their impartiality may be called into question, while declining to conduct the necessary tests that would prove it to be so. The defence teams will face the trial with a truncated list of evidence and witnesses. And with one hand tied behind their back.