The rule of law in Spain: no such thing as an inquisition (A reply to The Times’ article of February 1st)

Few weeks ago, the UK’s Times stated the necessity of the Spanish Supreme Court to display a fair trial regarding the criminal procedure against the leaders of the former autonomous Government, since the accused face serious charges of rebellion, sedition, misuse of public funds and disobedience. It also expresses doubts for the judicialization of a political-natured conflict, the attack on civil population perpetrated by the security forces and the excessive provisional imprisonment of such politicians.

I shall fully address these unfounded concerns.

First of all, let me be crystal clear. As our Constitution stipulates, Spain is configured as a Democratic, Social State of Law (Article 1). That very last feature of our State guarantees the judiciary rights to all, which are actually safeguarded in the Article 24th: The right to a fair trial is a prerogative conceded to any accused in any criminal procedure.

Thus, our Supreme Court ensures the right to use their official language (which is Catalan, even granting them translators if need be), the right to an attorney (which they have), the right to directly examine and propose evidence in discharge, the presumption of innocence until proven guilty, the right to a last statement before sentencing, the publicity of the trial sessions (over 600 mass media and journalist have credentials), and so on. Our Courts of Justice meet all the same standards. An upheld of standards, by the way, that ranks our Judicial system as one of the most respectful with international conventions and treaties (European Convention of Human Rights or the International Pact of Civil and Political Rights).

All these rights can be verified in our Constitution (Articles 24 and 120), Criminal Procedure Law (articles 118, 651, 656, 688, 739-743) and the Organic Law of the Judiciary Power (233-234 LOPJ).

Secondly, the accused (not co-defendants, this is not as civil trial) did have a choice before violating the collective right of all Spanish to sovereignty (article 2 of our Constitution). It is one of the foundations of democracy: the right to sovereignty does not belong to a certain group of individuals, no matter what their political and social views are. Therefore, it cannot be exercised by even half of the Catalan population, but by the country as a whole. The referendum orchestrated by the accused, with the alleged purpose of providing a legal basis for the Secession Laws, without acknowledging the other half of the population, is anything but democratic. Article 149 expressly dictates that, in accordance with article 2, only the National Government may hold a referendum for such matters. The accused were not constitutionally entitled to do so. As a result, this is not a political conflict: this is the infringement of our Fundamental Law.

Now, onto the most controversial topic of the article: the “police heavy-handed attacks on voters and attempts on sizing ballots”. Implicitly, the Times blames for an excessive use of the force on the National Government. According to our Criminal Procedure Law (article 282), the Security Forces and the Judiciary Police operate exclusively under a judiciary mandate of our Courts of Justice, not under the National Government: Even though they form part of the Ministry of the Interior, when a criminal investigation is being conducted by a judge, they follow exclusively the orders of a member of the Judiciary.

We need to distinguish these two corps very carefully: the Judiciary Police, carrying out the commands of the judiciary authority as it is stated in article 282; and the Anti-Riot Corps of the National Police of the Civil and the Civil Guard, who will cooperate with such mandate, under the supervision and direct orders from the Judge in commission.
This can be inferred from the judicial warrant issued on September 27th 2017, ordering the closure of any establishment or public office in which the referendum may be held or favoured, in accordance with the Organic Law of Security Forces 2/86. In the ruling of such order, it is said the following:

“Mossos D’Esquadra, Civil Guard and National Police must act jointly for the effectiveness of the order, lending in at all times, the necessary help and support that makes the strict compliance with what is here provided, in accordance with article 46.2 of the Organic Law of Security Forces 2/86…”

“Likewise, impede the activity and / or opening of public facilities that are used as infrastructure logistics and / or calculation: processing centers, reception centers, counting or management of votes.

It is essential to bear in mind that a great number of demonstrators, without prior authorisation whatsoever put themselves before polling stations. This led to the inevitable: a charge by the Anti-Riot Corps to ensure the due acting of the Judiciary Police. It is argued by the demonstrators that they were protesting “peacefully”, but what it is unquestionable is they were blocking the roads (a risk to their own safety) and impeding the work of the security forces, throwing objects and fences in occasions to police officers.

Even though the Times’ article points out “heavy-handed attacks” from their said, in fact their actions fell under the provisions stipulated in consolidated Case Law of the European Court of Human Rights. The Court, in many of its rulings, expresses the following:

CASE OF KUDREVICIUS AND OTHERS v. LITHUANIA, GRAND CHAMBER, 15/10/2015:

155. “Any demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic (see Barraco, Disk and Kesk v. Turkey)…

157. “Restrictions on freedom of assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic or so forth…”

CASE OF KILICIE v. TURKEY, 27/11/2018:

33. “Consequently, in accordance with the jurisprudence of the applicable Court (ibid, paragraph 43), for police action to be compatible with the requirements of Article 3 of the Convention (RCL 1999, 1190, 1572), police operations – including the use of rubber bullets – not only must be authorized by domestic law but also sufficiently delimited by this right, within the framework of a system of adequate and effective guarantees against arbitrary, abuse of force and avoidable accidents.

PRIMOV AND OTHERS v. RUSSIA, 12/06/2014:

“However, even if the decision to ban the demonstration was erroneous, and the blockade disproportionate, that did not give the protesters the right to block a road or to attack the police”.

CASE OF REFAH PARTISI (THE WELLFARE PARTY) AND OTHERS v. TURKEY, 13/02/2003:

“The freedoms guaranteed by Article 11 of the Convention cannot deprive the authorities of a State […] of the right to protect its institutions, because of the activities of an association or group of individuals”.

To sum up, the intervention carried out by the Police was:

– Authorized both by a judicial warrant and the Law (OL 2/86, art. 46.2)
– Necessary and proportionate to carry out a judicial order.
– Legal remedies can be sought before both criminal and civil Courts of Justice.

What is more, according to the Catalan Health Department, in a report issued October 20th 2017, the number of seriously injured individuals was below 10. This fact needs to be put into perspective: there were clashes with thousands of people all over Catalonia. Minor injuries were reported in 1,000 individuals, most of those caused as distress situations, not as direct injuries. That report was not available at the time this article was written.

As it can be concluded, this is a matter that goes beyond ballot boxes, freedom or independence. This is about preserving the Constitution, a Supreme Law that guarantees rights and freedoms to all, and the Rule of Law. The actions of the Security Forces were proportional and necessary, in order to achieve this goal, along with the due process before the Supreme Court.

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