They’ve told us time and again that they act “in the name of the law” and in the name of the Constitution. But the conclusions of the Spanish judicial institutions on the Catalan referendum are based on facts and offenses that are missing fundamental pieces: sedition without a tumultuous uprising, misappropriation of public funds without any quantities mentioned, rebellion without violence, and the most unexpected but most serious, “conspiracy” involving the organization of the “process”.1 Is this the rule of law or a legal absurdity?
Many people must have noticed that the argument the Supreme Court of Spain (TS) uses to justify that the deeds that make up the “process” are within its jurisdiction refers not only to the already well-known crimes of rebellion, sedition and misappropriation of public funds, but also to the crime of “conspiring to rebel”.
This crime is regulated by article 477 of the penal code, which is quite laconic when it comes to describing the deed, only mentioning “provoking, conspiring and proposing rebellion”. It’s the TC that fleshed out this article, stating that with this crime, “by definition, the planned actions do not take place, because the conspirers do not get past the preparatory stage”.
Even though the press has presented this decision as a “reduction of the seriousness” of the accusation, the truth is that if we stop for a moment to think about the “who and what” of this eventual “preparatory stage” of the rebellion, the range of deeds and individuals that might be accused of having “prepared” to commit rebellion is disturbingly broad. This is especially so if we consider the specific actions –peaceful protests, declarations, rallies– that constitute this so-called “rebellion”. Have the members of parliament conspired? Have the members of the ANC and Òmnium?2 Have the labour unions and neighbourhood assemblies? What about the parent-teacher associations that kept the schools open for the referendum on October 1st? Could the people who helped popular support for the “process” to grow be investigated for conspiring to rebel? The answer is worrying at the least…
When the case passed from the Audiencia Nacional to the TS, some people were optimistic. However, they were forgetting that the TS is a judicial body whose members are appointed by the General Council of the Judiciary, which in turn is chosen by the Congress and the Senate. Now, the TS moves forward boldly, even taking dramatic steps like withdrawing the European arrest warrant for Puigdemont and the Catalan ministers in Brussels. Or leaving Oriol Junqueras, Joaquim Forn and the two Jordis in prison.
What is there beyond the TS? What if the decisions of Magistrate Llarena are ruled on by the TS itself? What if they are ruled on by the Constitutional Court? Can we continue to trust in European and international judicial institutions?
For the time being, with so many absurdities, one would have to be very bold to predict what will happen next.