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24 de març 2018

TEXT : Decision judge Llarena 23 March 2018. 20907/2017


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SPECIAL CASE No.: 20907/2017

SPECIAL CASE No.: 20907/2017
Investigator: His Honour Sr. Pablo Llarena Conde
Lawyer of the Administration of Justice: Illustrious Ms. María Antonia Cao Barredo

SUPREME COURT
Criminal Chamberi


Decision No. /


Mr. Investigating Judge
His Honour Sr. Pablo Llarena Conde


In Madrid, on March 23, 2018.
His Honour Sr. Pablo Llarena Conde has been the Investigating Judge


FACTUAL BACKGROUND


FIRST.- On March 21, 2018, an order was issued deciding:
"To declare indicted for alleged crimes of rebellion, under article 472 and related articles of the Criminal Code, Carles Puigdemont i Casamajó, Oriol Junqueras i Vies, Jordi Turull i Negre, Raul Romeva i Rueda, Antonio Comin i Oliveres, Josep Rull i Andreu, Dolors Bassa i Coll, Clara Ponsatí i Obiols, Joaquim Forn i Chiariello, Jordi Sánchez Picanyol, Jordi Cuixart Navarro, Carme Forcadell i Lluís and Marta Rovira i Vergés.
To declare indicted for alleged crimes of disobedience, under article 410 of the Criminal Code, Lluís María Corominas i Díaz, Lluís Guinó i Subirós, Anna Isabel Simó i Castelló, Ramona Barrufet i Santacana, Joan Josep Nuet i Pujals, Meritxell Borràs i Solé, Lluís Puig i Gordi, Carles Mundó i Blanch, Santiago Vila i Vicente, Meritxell Serret i Aleu, Mireia Aran Boya Busquet and Anna Gabriel Sabaté.
To declare indicted for the crime of misuse of public funds, in the terms that have been expressed in the previous legal foundations, Carles Puigdemont i Casamajó, Oriol Junqueras i Vies, Jordi Turull i Negre, Raül Romeva i Rueda, Meritxell Borràs i Solé, Clara Ponsatí i Obiols, Antoni Comín i Oliveres, Joaquim Forn i Chiariello, Josep Rull i Andreu, Lluís Puig i Gordi, Carles Mundó i Blanch, Dolors Bassa i Coll, Santiago Vila i Vicente and Meritxell Serret i Aleu.
The precautionary measure of provisional imprisonment, communicated and without bail, of Oriol Junqueras i Vies, Joaquim Forn i Chiariello, Jordi Sánchez Picanyol and Jordi Cuixart Navarro is maintained, and is resolved in the same form expressed in the petition for freedom filed by this last defendant in his text of March 1, 2018.
The personal precautionary measures decided against Carles Puigdemont i Casamajó, Anna Gabriel Sabaté, Antonio Comín i Oliveres, Clara Ponsatí i Obiols, Lluís Puig i Gordi and Meritxell Serret i Aleu are maintained.
The amount of 2,135,948.6 euros, which shall be jointly and severally provided by the defendants Carles Puigdemont i Casamajó, Oriol Junqueras i Vies, Jordi Turull i Negre, Raül Romeva i Rueda, Meritxell Borràs i Solé, Clara Ponsati i Obiols, Antoni Comín i Oliveres, Joaquim Forn i Chiariello, Josep Rull i Andreu, Lluís Puig i Gordi, Carles Mundó i Blanch, Dolors Bassa i Coll, Santiago Vila i Vicente and Meritxell Serret i Aleu, is set as the new amount of the bond in guarantee of the pecuniary liabilities that may arise from the present proceeding.
The aforementioned defendants are to be summoned to appear for an exploratory statement before this Court on April 16, 17 and 18, 2018, at 10.00 a.m., and they are to appear with counsel defending them. In a separate resolution, the day that each of the defendants has to appear will be indicated.
The historical-criminal records of those defendants are to be requested."
SECOND.- The hearing provided for in article 505 of the Criminal Procedure Law was held today in regard to Carme Forcadell i Lluís, Jordi Turull i Negre, Raül Romeva i Rueda, Josep Rull i Andreu and Dolors Bassa i Coll, during which the Public Prosecutor's Office, the State's legal counsel and the Popular Action call for provisional imprisonment, communicated and without bail, of the aforementioned, in addition to that of Marta Rovira i Vergés, who has neither appeared nor alleged a legitimate cause of her failure to appear. And the lawyers of the defendants present request that the current personal measures of their defendants be maintained.

LEGAL BASES

FIRST.- As has already been expressed in previous resolutions, it is constitutional doctrine reflected in Article 503 of the Criminal Procedure Act, that the constitutional legitimacy of provisional detention, as a precautionary measure restricting the right to liberty in criminal proceedings, requires not only that there is a supposition of the existence of rational indications of the commission of a crime, but also that there is a risk that some of the essential purposes of the criminal process might be
foiled as a consequence of judicial inactivity in this case.
The following are thus recognized as ends that can constitutionally legitimize provisional imprisonment: to avert the risk that the defendant might escape the action of justice were he/she to continue in freedom; that in the same situation he/she might proceed to conceal, alter or destroy evidence sources that could be relevant for the prosecution; as well as the cases in which it can be reasonably foreseen that if the defendant remained free, he/she could act against the legal rights of the victim or, finally, that he/she might repeat his/her criminal behaviour.
SECOND.- Inasmuch as this ruling complements the indictment of March 21, 2018, there is no need to incorporate into this document the deeds attributed to the defendants and the signs that the investigation records on their participation in them.
After practising the appearance provided for in Article 505 of the Criminal Procedure Act, the Public Prosecutor's Office, the State's legal counsel and the private prosecutors have called for the stiffening of the precautionary measures previously decreed against Carme Forcadell i Lluís, Jordi Turull i Negre, Raül Romeva i Rueda, Josep Rull i Andreu and Dolors Bassa i Coll, and specifically demand the replacement of the measure granting freedom on bail, by provisional detention, communicated and without bail. They state, to support their claim that, alongside a risk of risk of criminal repetition, there is a marked risk of flight in all of them.
Their claim is shared by this investigating judge.
THIRD.- As already stated in the indictment regarding the other defendants who were being held in provisional detention and who have been prosecuted as alleged perpetrators of a crime of rebellion, the attribution of responsibilities is made when the bulk of the investigation has been completed. The suspicions that emerged as a basis for the initiation of the procedure, as well as for the adoption of precautionary measures at that time, are today rational and firm signs of the possible perpetration of deeds that present a certain criminal consideration and of the participation that the defendants may have had in them.
At such a juncture, there is a serious risk of the defendants' flight due to the severe punishment they face for their possible criminal responsibility for rebellion.
As has already been stated in other decisions, the constitutional doctrine (Constitutional Court Judgments No. 128/1995, of June 26; No. 47/2000, of February 17; or No. 23/2002, of January 28) provides that the outstanding seriousness of the crime and of the punishment in evaluating risks of flight - and with it, of the Administration of Justice's action being foiled - is undeniable, both by the fact that the greater the severity of the crime, the more intense the temptation to the flight, and by the fact that the greater the importance of the deed the lack of prosecution of which is feared, the greater will be the harm that, should the flight take place, the ends pursued by justice would suffer. This reality has today been materialized as regards one of the defendants, who has not attended the summons of this Court.
The defendants present state that their very appearance before the Court only goes to refute the contrary position that is being tried to conjure up, and that a resolution cannot be adopted on the basis of the procedural behaviour that may have been adopted by other defendants. The argument is reasonable. The consideration of the risk of escape of the defendants must be made by analysing the personal circumstances that affect them, and these are headed by the fact they have appeared before this instructor every time they have been summoned.
Regrettably, it is impossible to perceive what the internal will of the defendants may be, for which reason a series of external elements must be drawn upon to construct a reasonable judgment of prognosis, and not only as regards their present will, but also as regards the possibility that this might change as the case itself develops. And given this consideration, the truth is that the indictment that hangs over the defendants has not been made hastily; it is a response to the sources of evidence that have been gathered during the procedure, that point to an exceptionally striking crime that is linked to a penalty of unquestionable rigour. This provides a first objective assessment parameter, which is that the temptation to flee when faced with an onerous punishment increases as does the legal and temporal proximity of being liable to suffer its consequences.
Be that is it may, and as also stated in the indictment, the risk is enhanced by the concurrence of two other factors:
In the first place, though it is true that the defendants whose situation is being analysed have appeared before the Court when they have been summoned, the investigation has also reflected their clear insurrection against the decisions of court authority, which they have neglected in a consistent and systematic manner in recent years. This finding coexisted with the conviction that there were reasons that gave them legitimacy to resist compliance with court decisions. And since those arguments are the very ones that lead them to believe that they have not committed any crime, as they said this morning, it can be concluded that there is no discernable element in their internal psychological sphere that allows one to discern that respect for the decisions of this investigator will be permanent, neither for their general consideration of the role of the courts, nor because they accept the alleged illegality of the conduct that determines the restriction of their rights. In fact, compliance with this court's decision will occur as long as their will does not change, as has already happened today with another of the defendants. Even more so when the loss of the personal guarantee provided would not entail a burden for their own assets, as it arose from collective solidarity.
Finally, the motivations that impelled the defendants to commit the alleged crimes attributed to them are shared by a large group that sympathizes with their cause. And this group - as has already been said in the indictment - has organized associative structures, specialized legal advice, significant economic resources derived from its members' contributions, as well as an international structure developed in recent years to defend its position and, therefore, ready to provide effective support.
FOURTH.- There is also a marked risk of criminal recidivism.
Notwithstanding the fact that some of the defendants have resigned their parliamentary seats (Dolors Bassa i Coll, as well as Carmen Forcadell i Lluís), they have all shared the determination to achieve the independence of a part of the national territory. And one cannot fail to note that the aspiration, in itself legitimate, has been sought to be achieved through instruments of action that violate the prohibitive criminal norms and with the support of a large-scale social, administrative and political movement.
At such a juncture, resigning a parliamentary seat does not remove the possibility of persisting in the determination to promote the objectives without respecting criminal norms, nor does it exclude the defendants from making contributions to that intention through very diverse collaborations and all of them different from parliamentary activity.
Above and beyond the people who have been prosecuted before this Court, the investigation shows that many subjects reached agreement to break the constitutional and criminal order as a result of the criminal accord being investigated. All of them have intervened from multiple facets of collaboration, even though their participation is subject to investigation by other judicial bodies.
If we add to this plurality of levels of action, as also indicated in the indictment, the fact that the intent to which they were incorporated from the beginning planned (White Paper) to continue with the illicit action as soon as the regional institutions that might have been intervened were recovered, it can be concluded that the risk of recidivism exists despite the resignation of the parliamentary seat.
The White Paper said "Even in the extreme case of self-government being suspended, this suspension could not be indefinite and far less definitive, and the popular will and the institutional will could therefore continue to be displayed once the self-government and ordinary functioning of the institutions were restored". The performance of recent months does not allow us to obtain the conviction that some participants have abandoned the intention of returning to the abnormal functioning of the institutions and, given this risk has not been averted, nor has the possibility of providing collaboration from areas different from that of Parliament, as already happened with regard to one of the defendants, Carme Forcadell, bearing in mind she began to carry out these deeds as president of the pro-sovereignty organisation ANC, and continued as Speaker of the Parliament of Catalonia afterwards. The precautionary measure thus guarantees the correct return of self-government.
SIXTH.- As regards the material impossibility of Jordi Turull i Negre, as well as the rest of the members of parliament, of going to perform their parliamentary functions and participating in the investiture session scheduled for tomorrow, in response to the precautionary measure now being adopted, considering that his legal counsel refers to the reasons developed on the occasion of a similar motion arising from other defendants in this case, suffice it to recall what was decided in those cases.
Article 23.1 of the Spanish Constitution lays down that "Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage." Para 2 adds that "They also have the right to accede under conditions of equality to public functions and positions, in accordance with the requirements laid down by the law".
As stated in the aforementioned resolutions, the assessment of the material content of the right to access public functions and positions, specifies that the right does not end with access, but extends and broadens to include the exercise of the representative function (Constitutional Court Judgments 32/1985, of March 6, 220/1991, of November 25 (Legal Basis 5); 71/1994, of March 3 (Legal Basis 6); 109/2016, of June 7 (Legal Basis 3 a); 11/2017, of January 10 (Legal Basis 3 a) and 139/2017, of November 29.
This does not mean that its limitation is inadmissible when it is founded on other constitutionally legitimate purposes that present a reasonable correspondence in their intensity, since, as already stated by the Constitutional Court in assessing the scope of Article 23.2 of the EC in Judgment No. 71/1994, of March 3 (with quote from Constitutional Court Judgment No. 25/1981): "This limitation or suspension of fundamental rights in a democracy, is justified only for the defence of one's fundamental rights when certain actions, on the one hand, limit or actually impede their exercise as subjective rights for the majority of citizens, and, on the other hand, they jeopardize the objective order of the national community, that is, the democratic State". A requirement of adequate correspondence between the limitation imposed on the right and the legal rights that are sought to be protected, which has been recognized by the ECHR, in its judgment of the Grand Chamber of October 6, 2015 in the case of Thierry Delvigne v. France, also contemplating the gravity of the crimes to which the restriction is associated.
In other words, though any citizen has the right to opt for a democratic and representative investiture, this faculty does not deactivate the courts' duty to ensure that the exercise of the right by those to whom a serious criminal act is attributed does not put at risk powers of greater importance and in greater need of protection.
The gravity of the deeds that the indictment describes, the use of the institutions for its execution, the anticipation of resuming the action contained in the White Paper and that the defendants maintain according to their general statements in the long period that has preceded the investiture, determine that their political rights do not have pre-eminence and a greater need for protection than the rights that this ruling preserves. 
Having seen the aforementioned legal arguments.

RULING
THE INVESTIGATING JUDGE DECIDES:
UNCONDITIONAL IMPRISONMENT for defendants Carme Forcadell i Lluís, Jordi Turull i Negre, Raül Romeva i Rueda, Josep Rull i Andreu and Dolors Bassa i Coll.
Once this ruling is final, proceed to the reimbursement to the guarantors of the bonds provided to guarantee the freedom of the aforesaid defendants.
Thus by this ruling I decide, order and sign it.

 

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Read the Catalan Speaker's moving speech in English (24/3): http://estudiscatalans.blogspot.com/2018/03/speaker.html

Read other texts in English on the Catalan conflict here: http://estudiscatalans.blogspot.com/p/index.html

 

 

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