Spain: Former Catalan leaders on trial for ‘draconian’ charges of rebellion and sedition

Polly Botsford

The trial has become the focal point of the separatist debate. On one side, some defendants argue that the trial is a political ‘show’ with the aim of ending the independence movement. The position from Madrid is that the trial represents due process for individuals accused of breaking the law.

The trial follows the independence referendum held on 1 October 2017 by the then Catalan government, in spite of the Constitutional Court of Spain declaring it unlawful in September 2017. Of the 43 per cent of Catalans who voted, 92 per cent chose independence, and following the referendum the regional parliament made a declaration of independence.

Poster of Carles Puigdemont, former Catalan president

The starting point for the prosecution of the twelve leaders will be that the independence referendum was a unilateral attempt to separate Catalonia from Spain, one that disregarded the procedures set out in the Spanish Constitution for legitimate separation. According to the prosecution, in order to lawfully break up the state of Spain, the Spanish Constitution of 1978 would need to be changed. Doing so requires following specific mechanisms: first, a majority vote in the Spanish parliament.

Catalan leaders argue that they were forced into calling a referendum because that is what the Catalans themselves wanted. Further, they say, the Spanish Government, then under Mariano Rajoy, gave them no choice by refusing to compromise. The former Catalan president, Carles Puigdemont, who fled to Brussels, told UK media that his government had a ‘democratically inviolable’ agreement to go to a referendum, explaining that he ‘could not disobey the will of the Catalan parliament’.

Adriana de Buerba is a partner and head of the corporate crime practice area at Spanish law firm Pérez-Llorca, and Conference Coordinator of the IBA Criminal Law Committee. She is not sure that Puigdemont’s argument stands up: ‘It cannot be the case that democracy trumps the law. Democracy is only democratic if you exercise power in accordance with the Constitution, otherwise it is unlawful. The Constitutional Court said that the referendum was unlawful: that ruling has to be complied with or you can’t call it “democracy”’.

The most egregious of the charges facing the defendants are rebellion and sedition, which can carry heavy sentences: for sedition, the maximum sentence is 15 years, while for rebellion, which must involve violence, the maximum sentence is 25 years. These two charges may, however, be hard to prove. Professor Sebastian Balfour, Emeritus Professor of Contemporary Spanish Studies at the London School of Economics, argues that the charge of rebellion is ‘draconian’, pointing out that neither rebellion nor sedition are particularly common in the laws of European states. Sedition, for example, was virtually abolished in the UK in 2009. Further, from a purely practical point of view, there is little case law in this area to assist the judges.

Supporters of the Catalan politicians allege that this is a political trial. Oriol Junqueras, one of the defendants, told the BBC that the 'trial is an action against ideology and against political dissent'.

De Buerba is convinced otherwise. ‘I do not think it is a political trial – it is about facts,’ she says. ‘We have had parties in the regions arguing for independence ever since 1978 when the former dictatorship came to an end and these parties were legalised. They have always claimed that their goal was the independence of Catalonia and this is a legitimate goal; no one ever brought criminal charges against them for that goal.’

‘The leaders now facing criminal charges are not being tried for their political ideals,’ continues de Buerba. ‘This is a trial for what they did, not what they believed in. That is not to deny that the trial does have huge political importance.’

De Buerba also notes that the Spanish authorities did not have much room for manoeuvre. Unlike the UK or the US, the Spanish general public prosecutor is subject to the principle of legality – as opposed to the principle of opportunity – and cannot choose not to prosecute if there are indications of wrongdoing: ‘There is no discretion here in Spain,’ de Buerba explains. ‘There is no choice.’

A further complication in the trial is the involvement of Vox, a right-wing, nationalist party in Spain. Vox has brought what is known as a ‘popular prosecution’ against the Catalan leaders, a procedure resembling a private prosecution in the UK. This procedure is possible under Spanish rules, though it is uncommon among other Member States of the European Union. The idea, as de Buerba puts it, ‘is to ensure that any citizen can participate in the judicial process’.

Vox’s ‘popular prosecution’ is being heard alongside the prosecutions brought by the Spanish authorities and the Spanish Government, as part of the same trial. Given that Vox are outspoken in their rejection of Catalonian separatism, some observers conclude that the party’s motivation for being involved in proceedings is politically driven.  

The Supreme Court justices, including the President, Carlos Lesmes, must therefore set a neutral tone. Balfour is optimistic on this point: ‘So far, Lesmes has kept very neutral control of proceedings, showing respect to both sides and handling it impartially,’ he says. De Buerba agrees, saying that ‘the Supreme Court is trying to limit the scope of the involvement of this popular prosecution to stop it being too political while respecting the essence of a “popular prosecution”’.

The trial is set to last three months; during this time, it may be difficult to limit the involvement that Vox has in what is, in the words of Lemes himself, 'the most important trial that we’ve held since the [return of] democracy'.

Polly Botsford is a legal and current affairs journalist and can be contacted at polly@pollybotsford.com