Jaime Campaner: Was the Spanish Supreme Court crushing legitimate dissent or properly upholding the law?



Dr Jaime Campaner

The decision to jail the Catalan leaders has caused widespread outrage. Is the outrage justified? When regional nationalist leaders openly defy the law, what is the proper response of central government? These are questions with which the Spanish Supreme Court has had to grapple. They may yet come to be asked in the United Kingdom. Dr Jaime Campaner, practising lawyer and associate professor in procedural and criminal law at the University of the Balearic Islands, defends the Spanish Supreme Court from what he believes to be misplaced criticism.

Last week, after months of open-court trial which everyone could follow on internet and TV, the Spanish Supreme Court delivered their judgment on the so-called “Catalonia case”, convicting the main defendants of sedition, misuse of public funds and/or contempt of court.

The first issue to highlight is that the ruling has been written to make it understandable for every citizen who might be interested in it, bringing the judiciary closer to the people.

The second point which should be explained, mostly in the light of the massive protests against the ruling, is that the defendants were not convicted for their ideas nor for exercising the alleged right to secede from Spain. They were convicted for avoiding compliance with legality in Catalonia and impeding the enforcement of court orders. To cite just one case (the ruling runs to almost 500 pages), there were mobilisations that exceeded the constitutional limits of the exercise of the rights of assembly and demonstration and which created a coercive and intimidating environment which prevented the judicial police from transferring the detainees, in accordance with their rights, to the building where the search and seizure was to be carried out as per a court ruling. Moreover, this search and seizure was hindered for over twelve hours.

Thirdly, it is important to point out the independence of the judiciary in Spain. The Public Prosecutor sought a conviction for rebellion, which would involve considering that the violence was directly aimed at reaching the separatist goal and, therefore carried a higher sentence. Notwithstanding the above, the Court considered the facts merely as sedition, which carries a lower sentence. Why? Because the violence was not planned as a structural part of the process and was, actually, a chimera (regardless of how much they would like secession, it was not legally possible through a referendum, as the Constitutional Court had previously ruled). The Supreme Court decided, in line with some witnesses and defendants, that, in fact, what the defendants wanted was to corner the Spanish government so as to have an advantage in the negotiations, which is, in the end, not the goal of the offence of rebellion.

So, the defendants, as representatives of the citizens in Catalonia, mobilized a mass of citizens to avoid compliance with legality and impede the enforcement of court orders, leading them (wrongly) to believe that independence was a real possibility when it actually was not at all. They were fooled and acted as puppets.

This is precisely why the defendants were convicted of misuse of public funds; any investment in the illegal referendum was a waste of money and they, as managers of the public funds, had a duty to use the funds wisely and they could not ignore the Constitutional Court ban.

Finally, more evidence of the independence of the judiciary was their rejection of the Public Prosecutor’s motion for a sentence without parole until half of the sentence had been served.

The Court considered that the aim of punishment is to rehabilitate prisoners, and they cannot predict when this will happen. In Spain, the assessment of inmates is strictly on an individual basis (so it is not valid for groups) and any decision on parole is a competence of the penitentiary authorities. Then, if the Prosecutor disagrees they may request a judicial review.

In conclusion, it was not an easy judgment because of many reasons: the length of the trial, the media campaign launched by the defendants and their sympathizers and the false picture of a political trial rather a trial of politicians, but in the end the law prevailed and the farce was unmasked.

This article first appeared on BarristerBlogger