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10 de set. 2018

Belgian Lawsuit against judge Llarena (English translation)

Unofficial English Translation: “Puigdemont v. Llarena”. Rephrased and reworded from the French version into precise legal English by M. McNaught.

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Original (PDF): https://m.ara.cat/2018/08/27/Demanda_Civil_Llarena.pdf?hash=6d993f25382d00b458bbc12c9427007a66aeb070



Hugues Hellebaut  
Lic. Jur.
Huissier de Justice
Soc. Civ. S.N.C. HELLEBAUT & PETRE
TVA / BCE : 0839.637.542

1050 IXELLES, Boulevard de la Cambre, 3 boîte 34
huissier.hellebaut@gmail.com                                  BE65-06788-9638-3996 GKCCBEBB
tel - 02/742.26.08 
fax - 02/346.80.83                                                               Office open from 10:30 to 12:30

_________________________________________________________________________________
Ref .: A551-18 / MB 
Master Christophe MARCHAND - Master Michèle HIRSCH - Master Gonzalo BOYE TUSET - Master Paul BEKAERT 
SERRET ALEU Maria Meritxell - COMIN OLIVERES Antoni / LLARENA CONDE Pablo



LAWSUIT

GROUNDS

0. PURPOSE OF THIS LAWSUIT

In Spain over the centuries, minorities engaging in political activity advocating regional independence have suffered systematic violations of their fundamental rights. This has been extensively documented in history books, numerous reports, as well as rulings by international courts. These violations were abundantly manifest during the violent repression unleashed during the Catalan Independence referendum on October 1 2017, and have also been extensively documented by independent sources. The Spanish judiciary has not dealt with the Catalan question in an impartial manner, nor respected fundamental rights in the process; including the presumption of innocence, to act freely while in political office, or for elected officials and civil servants to not be prosecuted for political acts. Numerous Spanish judicial rulings violate these rights, and are therefore incompatible with the founding values of the European Union.

Judge Pablo Llarena is an investigating judge of the Spanish Supreme Court leading the criminal investigation against the plaintiffs. His numerous rulings clearly demonstrate bias, violating the presumption of innocence and other fundamental rights, which will be treated in turn.

Judge Llarena committed infractions outside his functions as a judge, constituting the illegal acts detailed hereafter. One Euro is sought from Judge Llarena as symbolic damages for this infraction.

The plaintiffs lived in Belgium when this infraction was committed, and is where the damage was inflicted. Therefore, Belgian courts have jurisdiction to hear the case under the rules of the European Union. Therefore, the damages and the causal link will be proven according to Belgian law.

Since Judge Llarena’s alleged infraction occurred in Spain, it will be proven according to Spanish law of extracontractual liability.

1. STATEMENT OF THE FACTS

1. In the Catalan Parliamentary elections of October 27, 2015, pro-independence parties won a majority of seats with the highest participation of any prior Catalan election (77%). Pro-independence parties Junts per Catalunya (JxC)(1) and Candidatura d'Unitat Popular (CUP) won 47·7% (39·5% for JxS and 8% for CUP) of the vote, or roughly two million votes, and an absolute Parliamentary majority of 72 out of 135 seats. Since then, the pro-independence parties have sought to enact their electoral program: Catalan Independence.

2. JxS and CUP have never hidden their political goals. They openly campaigned on the issue of independence, and were neither banned, sanctioned, nor dissolved by any Spanish authority, nor were the cultural associations Catalan National Assembly (ANC) and Omnium Cultural (Omnium) for their support for independence. In recent years on the September 11 Catalonia ‘Diada’ (National Holiday), roughly 1.5 million people have assembled to peacefully advocate and demand Catalan independence. This is organized by numerous Catalan groups and associations, including ANC and Omnium. These demonstrations have always been legally sanctioned and peaceful.

3. On January 10, 2016, Carles Puigdemont was elected President of Catalonia by a margin of 70 out of 135 parliamentarians.(2)  In January 2016, plaintiffs and Ministers Toni Comin and Meritxell Serret assumed office. Plaintiffs and Ministers Lluis Puig and Carla Ponsati assumed office in July 2017.

The legally-sanctioned electoral program (which, it is worth remembering, was never questioned by Spain) included the commitment to declare the independence of Catalonia 18 months after the elections, but prior to this it was decided to hold an independence referendum.

4. On November 9, 2015, Parliament approved the "declaration of the commencement of the independence process". Throughout 2016 pursuant to the electoral programme, various stages of the independence process were completed. On June 9, 2017, the date of the referendum was set for October 1, 2017. On July 31, 2017, the "Proposal for a law on the referendum on self-determination" was debated in Parliament by the CUP and JxS parliamentary groups. On September 6, 2017, the law was approved by 72 deputies; upholding the right of self-determination for peoples based on customary law as well as international treaties ratified by and binding on Spain. This law stipulates that it hierarchically prevails over all other contrary national norms, including the Spanish Constitution. The government then signed the decree officially convening the referendum pursuant to the Law of September 6, 2017.

5. On September 8, 2017, the High Court of Justice of Catalonia prosecutor's office opened an inquiry against members of the Catalan government on charges of disobedience, prevarication, and embezzlement of public funds for having signed the referendum decree.

On September 20, 2017, 14 senior Catalan government officials and administrators were suddenly arrested by order of investigating Judge No. 13 at the Barcelona Court of First Instance, who also issued numerous warrants for searches of different Catalan government buildings. For hours, tens of thousands of people gathered to peacefully protest these arrests and searches. Contrary to what is asserted in the subsequently issued European arrest warrants (see para 13 of this lawsuit), the plaintiffs played no role in organizing these spontaneous gatherings.

6. The week of September 25, 2017, the Spanish government sent between 5,000 and 8,000 national police officers to Catalonia to prevent the referendum from taking place. The Spanish government feared that the Mossos d’Esquada; the regional police corps and judicial police run by the Catalan government, would not implement the Spanish government decision to obstruct it. However the Mossos obeyed the instructions to prevent the referendum, seizing ballot papers and election materials.

The referendum vote began quite peacefully on October 1, 2017.(3) Around 8,000 police officers had been deployed by the Spanish Government. The National Police and the Guardia Civil violently entered polling stations (often schools) to prevent citizens from voting. On many occasions, they damaged voting facilities, and intimidated and violently injured many voters. More than 1,000 people required medical assistance. Many lawsuits were filed by citizens who were victims. Several international and national observers collected evidence of this violence. Countless video archives and victims' testimony irrefutably attest to the police violence on October 1, 2017.

7. The "yes” to independence ultimately won with 90% of the votes cast, with a turnout of 42.4% of the electorate (parts 1 and 2).

8. On October 3, 2017, the King of Spain abandoned any pretense of neutrality and attacked the Catalans in these terms: "the Catalan authorities systematically flouted the legally approved norms and demonstrated an unacceptable disloyalty to the powers of the State”.(4)

9. On October 10, 2017, plaintiff Carles Puigdemont, then President of Catalonia, requested that the Catalan Parliament suspend the effects of the declaration of independence, hoping to reopen dialogue with the Spanish government. On October 17, 2017, the law of September 6, 2017 organizing the referendum was ruled unconstitutional by the Spanish Constitutional Court following an appeal lodged by the Spanish Government. On October 21, 2017, the Spanish government began the procedure of putting Catalonia under direct Spanish state rule under Article 155 of the Spanish Constitution.

10. On October 27, 2017, the Catalan Parliament lifted the suspension and formally declared independence; not through adopting a law but the formal reading of a text recognizing the citizens’ decision in the October 1 referendum. The Catalan Government did not take part. A resolution concretizing the legal effects of the Declaration(5) was then adopted by the Parliament. Again, the Catalan Government did not take part. 

Later that day, the Spanish Senate approved the application of Article 155 of the Spanish Constitution, followed by an contentious speech by then Spanish Prime Minister Mariano Rajoy berating the members of the Catalan Government over their allegedly illegal acts. The Catalan Government was summarily “extinguished”, and all powers were transferred to the Spanish Government. The powers of the Catalan President were transferred to the Spanish Prime Minister, including to call Catalan Parliamentary elections, then dissolving the Catalan Parliament and calling elections for December 21, 2017. No government act was carried out by members of that Catalan Government after the formal declaration of independence.

11. On October 30, 2017, the Public Prosecutor ordered an investigation into members of the Catalan Government under the jurisdiction of National Court No. 3, as well as pro-independence members of the Catalan Parliament under the jurisdiction of the Supreme Court, holding that since they enjoyed parliamentary immunity the case should therefore be heard before the Supreme Court.

The indictments were for rebellion, sedition, and misappropriation of public funds.

In addition to the National Court No. 3 and the Supreme Court, two other courts also asserted jurisdiction in this case, bringing to four the number of Spanish courts investigating the allegations against the plaintiffs:
  • Court No. 3 of the National Audience (Audiencia Nacional de Madrid); 
  • The Spanish Supreme Court (Tribunal Supremo); 
  • High Court of Justice of Catalonia (Tribunal Superior de Justicia de Catalunya); and 
  • Barcelona Court of First Instance No. 13. 
12. On October 31, 2017, National Court No. 3 investigating judge LAMELA DIAZ  formally followed the Public Prosecutor’s request to open an investigation, while her jurisdiction was challenged by the most authoritative doctrine in Spain (Exhibit 3). All the members of the Catalan Government were immediately summoned for a hearing on Thursday, November 2, 2017. November 1 is a public holiday.

 13. On November 2, 2017, the five plaintiffs and members of the Catalan Government had been in Belgium for several days and learned of their summons through the media. They were willing to collaborate with the investigation, and requested through their lawyer that they be questioned by videoconference. The other nine members of the Catalan Government who remained in Spain attended the hearing, and requested the proceedings be postponed to have time to prepare their defence. This request was denied, and eight of the nine Government members who voluntarily attended the hearing were immediately imprisoned without bail.

On November 2, 2017, before Supreme Court Judge LLARENA, members of the Catalan Parliament filed a similar request to the postpone the proceedings. The Supreme Court granted their request and postponed the hearing until November 9, 2017 (Exhibit 4).

On November 3, 2017, Judge LAMELA DIAZ rejected the request of the five plaintiffs to testify by videoconference. She issued a European arrest warrant for each of the five Catalan Government members in Belgium on the Prosecutor General's charges (rebellion, sedition and misappropriation of public funds), and added two others: prevarication and disobedience.

14. On November 5, 2017, the plaintiffs presented themselves voluntarily to the Belgian police. They appeared before Belgian investigating Judge Patrick GAUDIUS, who ordered their release without bail. Following the arrests of members of the Government, more than one hundred Spanish criminal law professors denounced the charges of rebellion and sedition as unjust and clearly not applicable in this case (Exhibit 3).

15. On November 9, 2017, the Supreme Court released parliamentarians on bail after finding that they had "renounced future political activity or, for those who wish to continue to exercise it, that they will do so by not engaging in any activity outside of the constitutional framework" (Exhibit 5).

16. On November 11, 2017, hundreds of thousands demonstrated in Barcelona against the arrest of the elected members of the Catalan Government and Parliament, and the repression against them.

17. On December 4, 2017, the issue of whether or not to implement the five European arrest warrants was argued before the Chamber of Counsel at the Dutch-speaking Court of First Instance in Brussels. That day, the plaintiffs filed a 133-page written complaint (Exhibit 6). On December 5, 2017, Judge Pablo LLARENA issued a ruling withdrawing the European arrest warrants, but left the Spanish national arrest warrants in force (Exhibit 7).

This decision was based on:
  •  the risk that the Belgian judiciary would not fully comply with the Spanish warrants, which would necessitate the plaintiffs’ prosecution in Spain on lesser criminal charges from those enumerated in the warrant dossier; 
  • the candidates were running for Catalan Parliamentary elections, and expressed their desire to return to Spain. 
Given the events, the clear fear that the Belgian courts would turn down the European Arrest Warrants was the reason for the withdrawal.

Therefore, the withdrawal of the warrants by the Spanish judiciary clearly reflected their concern that the Belgian judiciary would refuse to comply with them, as well as enabling the plaintiffs to freely travel anywhere except Spain, where they would be imprisoned on national arrest warrants.

Pursuant to this withdrawal, in a December 14, 2017 ruling the (Belgian) Council Chamber held that the application for execution of the European arrest warrants was null and void.

Since then, the plaintiffs have lived peacefully in Belgium, where they continue their political activities.

As previously stated, the implementation of Article 155 of the Spanish Constitution and the dismissal of the Government and Parliament of Catalonia resulted in the holding of elections.

18. In the December 21, 2017 elections held in Catalonia, the pro-independence parties Esquerra Republicana Catalana (ERC), Junts per Catalunya (JxC) and the CUP maintained their absolute majority in Parliament. The five plaintiffs were elected Deputies of the Catalan Parliament.

After the elections, a legal battle ensued between Judge LLARENA and the Parliament of Catalonia over the choice of the new President. Four times, Judge LLARENA blocked the investiture of the President elected by the Catalan Parliament: first Carles PUIGDEMONT, then Oriol JUNQUERAS, Jordi SANCHEZ, and finally Jordi TURULL.

The extraordinary political influence exerted by Pablo LLARENA, as a Supreme Court Judge and investigating magistrate, resulted a de facto veto over the Catalan democratic process. Judge Llarena had thus become the veritable "President" of Spain (Exhibit 8).

Judge LLARENA abused if not acted outside of his judicial powers in at least two ways, clearly breaching the separation of powers; the basis of democratic rule of law within the European Union. First, by issuing legal rulings to prevent appearances by teleconference.

Second, by refusing provisional release and unjustifiably maintaining  elected officials in prison to prevent their presence in the Parliamentary Chamber, On March 23, 2018, a provisional resolution was adopted by the United Nations Human Rights Committee in favour of Jordi SANCHEZ. Judge LLARENA and Spanish authorities were reminded that the right to exercise political office is fundamental (Exhibit 9). This did not influence Judge LLARENA, who on April 12, 2018 issued a new ruling refusing temporary release for Jordi SANCHEZ, which would have allowed him to attend a key Catalan Parliamentary session. This puts Spain in the company of Kazakhstan among states that refuse to adhere to universal fundamental rights.

19. The systematic violations of fundamental rights by Spanish courts against the plaintiffs has been and will continue to be challenged in international courts and other forums. This is not the main purpose of this lawsuit. The plaintiffs hold that, through his judicial rulings, Judge LLARENA has committed a civil infraction resulting in damages inflicted in Belgium.

 20. Since the elections, Judge LLARENA has continued his criminal investigation, replete with judicial and pre-trial rulings over the course of the investigation and the detention of persons under investigation.

These decisions reveal his bias and partiality that should never corrupt any criminal investigation.

As the Basques have also experienced, Judge LLARENA’s rulings and behaviour demonstrate that the treatment of pro-independence activists by the Spanish judiciary has consistently violated fundamental rights guaranteed by the Treaty of the European Union, the Charter on the Fundamental Rights of the European Union, and the European Convention on Human Rights (Exhibit 10).

The following judicial decisions uphold these contentions:
  • In a February 2, 2018 ruling refusing Joaquim FORN CHIARIELLO release on bail, Judge LLARENA opined: "the participation in the offence for which [Sr. FORN) is accused (...) stems from from an executive responsibility and government still within his reach, so it is undeniable that the risk of recidivism is fundamentally based on the persistence of the reasons which encouraged the commission of the offence and the circumstances which facilitated it, and the maintenance of his personal position concerning the respect for or the violation of the law" (French translation in part 11, page 11);
  • From the same ruling: "his ideology (that of Mr. FORN) coexists moreover in a political context where there is no certainty that the intention of achieving the independence of Catalonia has disappeared (...)" (ibid., 11);
  • LLARENA further adds: "Overall, if we consider the uncertainty that the majority political will is to respect the legal order to achieve the aspiration of independence that the accused still shares today, and if we evaluate the determination with which the accused realized, even today, with his very serious crime, it must be concluded that the risk of recidivism persists (...)" (ibid., 12);
  • From a February 6, 2018 ruling refusing the release of Jordi SANCHEZ I PICANYOL on bail, Pablo LLARENA held: "the plaintiff maintains his sovereignist ideology, which is valid from a constitutional point of view, but which prevents the conviction of the impossibility of recidivism which would not be the case for any person professing a contrary ideology. But unlike some of the accused, Mr. Sánchez not only did not renounce public activity that - on several fronts - served as an instrument to implement the actions, but reiterated his commitment to integrating into a candidacy that proclaims the objective of re-establishing the political dynamics that led to the acts at the origin of the responsibilities envisaged in the framework of this criminal procedure (...)” (French translation in part 12, page 10);
  • From a March 9, 2018 ruling again refusing Jordi SANCHEZ I PICANYOL's release on bail, he similarly states: "[The conclusion that there is a risk of re-offending] is based on an assessment of indices based on 1) The existence of a political context in which sectors explicitly supporting the immediate achievement of the independence of Catalonia are still present (...)" (French translation in part 13, p.23);
  • A few lines later: "the elements which denote a generic risk of recidivism considered specifically concerning those put in examination 1) confirmed his delictual engagement, integrating into a candidacy (for the regional presidency of Catalonia who announced precisely his willingness to pursue the method of action for which he is accused (...)" (ibid., p.23)
  • From the same ruling: "the exercise of the requested right (prison release to participate in a parliamentary session likely to lead to his appointment as President of the Catalan region) would only favour recidivism which one is trying to avoid, since the criminal activity which is the object of this investigation is deployed - precisely - through clearly illegal legislative and executive action (...)” (ibid, p 24.).
The reasoning employed by Judge LLARENA in these judicial rulings places this lawsuit in a clear context: the Spanish State subjects Catalan leaders to criminal prosecution, which can only be halted if the prisoners renounce their political ideas of independence. The plaintiffs’ political objectives are being prosecuted, not actual criminal offences. Pablo LLARENA continues to treat the independence project and the political convictions of the plaintiffs and other Catalan leaders as a criminal conspiracy, akin to terrorism. As will be further developed, this is extremely damaging to their political reputation and personal honour.

In the broad sustained campaign to delegitimize the plaintiffs’ political cause, the Spanish Ministry of Justice systematically publishes the decisions of Judge LLARENA, as well as the legal machinations in his prosecution of the Catalan independence movement: a search for the word "Llarena" on the website the General Council of the Judiciary turns up at least 307 information items principally detailing Llarena’s persecution (6).

21. A major dispute has arisen among Spanish State authorities over the criminal charge of embezzlement lodged against the plaintiffs.

Charges of embezzlement of public funds have been fatally undermined by the former Spanish Minister of Finance, Cristobal Montoro.

 Judge LLARENA asserted in his rulings that the plaintiffs and other Catalan officials have “through the adoption of an ad hoc budget law within the Catalan entity",(7) used public funds to organize the October 1 referendum. However, no public funds were diverted or used for this purpose, which was fully financed through private funds.

The National Authority for Public Expenditure Control in Catalonia rapidly confirmed that no money had been diverted from the Catalan budget to the referendum (Exhibit 14).

Recently, the former Spanish Finance Minister Montoro publicly stated that no public funds had been used, conceding that: "I do not know with what money these Chinese ballot boxes, or Puigdemont’s upkeep, were paid for, but I know it's not with public money”. (Exhibit 15)

Justice LLARENA continued to stoke the controversy, demanding that the Minister of Finance submit a report on his statements, believing that they were contradicted by the "sources of evidence" available to him in his criminal investigation (Exhibit 16).

 Judge LLARENA is aware that this controversy has sowed doubts within the German courts over compliance with the new European arrest warrant issued for plaintiff Carles PUIGDEMONT, sending them a letter advocating charges of misappropriation of public funds.

22. In his public discourse, Judge LLARENA revealed his political views, bias and partiality through comments directly concerning plaintiff’s acts towards the Catalan question, or more generally political and legal issues:
  • In March 2014, he participated in a seminar organized by the private FAES Foundation, which supports of the policies of former Prime Minister AZNAR of the People's Party, who is also chairman (Exhibit 17);(8
  • He participated in a conference in Salamanca on 10 April 2018 at the invitation of the local BMW dealer, on the subject of the reliability of evidence in international criminal cases (Exhibit 18); 
  • His forthcoming intervention as part of a summer course organized by a Madrid university(9) on the theme of "Justice and Politics". The round-table discussion he will take part in will deal with "cases in which the courts must examine the legality of the actions of the public authorities, including the determination of the criminal liability for acts committed in political decision-making as reflected in the recent unprecedented confrontation between a certain Autonomous Community and the Constitution of the State" (Exhibit 19); 
Justice LLARENA thereby acted beyond his legal functions. He also appeared at public events, as he did on April 9, 2018, attending a ceremony in Barcelona swearing in judges with the King. Judge LLARENA was very conspicuous and spoke publicly and ostensibly with the leader of the Mossos, Ferran López, who had previously given testimony as a witness in the Catalan dossier he is investigating (Exhibit 20).

23. On 22 February 2018, Pablo LLARENA was invited as a speaker at a workshop organized in Oviedo by a commercial company (Autosa BMW) on economic crime and corporate criminal liability.(10) In addition to his speech, he gave interviews to journalists and made the following remarks:
  • Un delito político es aquellos comportamientos que normalmente no estarían sancionados por el ordenamiento jurídico-penal y que, sin embargo, por una consideración política esos comportamientos son perseguidos. No es el caso que estamos llevando ahora en el Tribunal Supremo, se trata de comportamientos que aparecen recogidos en nuestro Código Penal y, con independencia de cuál haya podido ser la motivación que les haya llevado a las personas a cometerlos -si es que eso ha sido así- pues tienen que ser investigados. Restringir la libertad de una persona sin que se haya declarado todavía culpable, en la eventualidad de que esto se produzca, y exclusivamente durante el tiempo en que se lleva una investigación, tiene que restringirse lo máximo posible. Por esto la decisión es tratar de terminar la investigación cuanto antes y regularizar la situación de los investigados en su propio interés y en el interés de toda la opinión pública y de toda la ciudadanía española también cuanto antes”.(11) 
 The excerpt can be translated as follows:
  •  "Political offences is behaviour that normally would not be sanctioned by the criminal legal order and which nevertheless, for political considerations, this behavior is persecuted. This is not the case that we are working on at the Supreme Court, it is about behavior that is included in our Criminal Code and that no matter what may have been the motivation that led people to commit them - if that is what happened(12) - you have to do an investigation. 
  • Restricting the freedom of a person who has not yet been found guilty, in the event that it occurs, and exclusively during the investigation, must be limited to a minimum. That is why the decision is to try to finish the investigation as soon as possible and to regularize the situation of the persons under investigation in their own interest and in the interest of broad public opinion and all Spanish citizens as soon as possible”. 

 24. Having withdrawn the initial European arrest warrants against the plaintiffs, on March 23, 2018 Judge LLARENA issued new European arrest warrants against them. On May 16, 2018, the Chamber of Counsel at the Brussels-based Court of First Instance refused to comply with these warrants, after finding that their content did not correspond to the Belgian law of national detention. (Exhibit 21)

25. This lawsuit has sought to prove that wrongful and harmful acts have been committed by Pablo LLARENA within his judicial functions, and more importantly to prove that he committed infractions outside of his judicial functions.


2. PRELIMINARY REMARKS ON TERRITORIAL JURISDICTION, APPLICABLE LAW AND IMMUNITY

2.1 Jurisdiction of Belgian courts 

26. Pursuant to Article 7 (2) of Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 (the Brussels Ibis Regulation) on jurisdiction and the recognition and enforcement of judgments in civil and commercial affairs
  • "A person domiciled in the territory of a Member State may be sued in another Member State (...) in tort or quasi-delict, before the court of the place where the harmful event occurred or is likely to occur". 
The plaintiff may choose the jurisdiction in which to seek redress for the infraction: either that of the territory where the infraction occurred, or the territory where the damage occurred or threatens to occur (ECJ, November 30, 1976, Mines de Potasse d’Alsace).

Redress is sought for damage suffered directly and immediately in Belgium, therefore Belgian courts have appropriate jurisdiction in this case.  (ECJ, 7 March 1995, Shevill and ECJ, 19 September 1995, Marinari).

2.2 Applicable Spanish Law

27. Under Article 1.2.g of Regulation 864/2007 of the European Parliament and of the Council of 11 July 2007 (so-called Rome II Regulation) on the law applicable to non-contractual obligations, those arising from breaches of privacy and personal rights, including defamation, are not subject to this Regulation.

Therefore, the issue of which laws apply is regulated in the Belgian Code of Private International Law ("CODIP").

Under Article 99, §2 of CODIP: "the obligation deriving from an act of defamation or breach of privacy or personality rights is governed by the law of the State in the territory in which the event or damage occurred or threatens to occur, at the option of the plaintiff, unless the person responsible establishes that it could not have been foreseen that the damage would occur in that State".

In this case, the plaintiffs choose Spanish law, the law of the State in whose territory the event occurred.

2.3 The defendant Pablo Llarena does not enjoy judicial immunity

28. Under Spanish law, Tribunal Supremo judges do not enjoy judicial immunity if accused of civil infractions committed outside the performance of their duties. Spanish law provides for special administrative litigation procedure for civil liability for wrongful acts committed as judges in the course of their duties (a procedure that can only be initiated by the Spanish State). There is no rule that allows immunity from quasi-delictual liability for infractions committed by judges outside the exercise of their functions. In such cases, judges can not claim immunity as they are treated as ordinary citizens.


3. GRIEVANCES


3.1 Legal basis for the action under Spanish law

29. Under Spanish law, the fundamental principles of extracontractual liability are consistent with those in Belgian law.

Article 1902 of the Spanish Civil Code states that "any person who, by action or omission, causes injury to another, for fault or negligence, is obliged repair the damage caused".(13)

30. Under Spanish Article 1902 and Belgian law, for someone to be sued for quasi-tortious liability, the victim must prove that an infraction was committed, that there was damage and the causal link between them.

Spanish case law stipulates the following conditions:
  • 1) a subjective condition: the existence of an action or omission generating imprudent or negligent behaviour attributable to the person or entity against whom the action is directed; 
  • 2) an objective condition: the reality of damage; and 
  • 3) the causal relationship between the damage and the breach”.(14) 

3.2 Infractions committed by Judge Llarena 

31. Judge Llarena’ rulings towards the plaintiffs and the statements to the press in Oviedo by Judge LLARENA demonstrate his partiality and merciless character. When these rulings were issued during the criminal investigation (withdrawal of the European arrest warrant, refusal to issue a European arrest warrant during a trip to Denmark by President PUIGDEMONT in January 2018, rulings refusing the release from prison of persons remaining in Spain, public dispute with the Spanish Minister of Finance, the indictment of 23 March 2018, issuing of a new European arrest warrant, dialogue with the Belgian and German judicial authorities to convince them of the merits of the extradition), Judge LLARENA flagrantly violated the presumption of innocence and of the freedom of political action, demonstrating his partiality and participation in a media campaign to discredit the plaintiffs and cause them serious harm.

The plaintiffs and members of the Catalan Government in exile are characterized as "violent rebels" and "public fraudsters" who have "committed very serious crimes".(15)

32. The controversial charge of "rebellion" has criminalized the organization of a referendum, and the "criminal facts" exclusively describe acts performed either as a deputy (voting on Catalan Parliamentary laws to organize the referendum), or acts performed as ministers of the Catalan Government (taking decisions and measures to organize this referendum).

These political acts are not crimes, but rather acts performed within parliamentary or ministerial functions.

When two Catalan deputies also under investigation sought exile in Switzerland, even before any request from Spanish authorities, the Swiss Government rightly stated that it was pointless to seek their extradition based on the evidence, because political acts were obviously being treated as crimes(quod non) (Exhibit 22).


33. The question of whether the offenses are political in nature is central to the criminal investigation of the plaintiffs in Spain, as is immunity for elected officials exercising their functions. The Spanish criminal court would determine actual guilt during trial.

Any decision taken over these questions by any organ of the Spanish State would not only be premature, but would also constitute an infraction.


34. Under Spanish criminal law, charges of "rebellion" must involve the use of serious "violence" which must be directly attributable to the accused.

Importantly, 120 Spanish criminal law professors argued in an open letter that the charge of rebellion was clearly not applicable in the case of the Catalan referendum (Exhibit 3).

This opinion was also expressed by the High Court of Schleswig-Holstein on April 6, 2018, issued after an extradition request for President PUIGDEMONT "in transit" through Germany. The court held that clearly no "violence" had occurred, this being “essential” to justify extradition on charges of rebellion (exhibit 23).


35. Charging the plaintiffs for rebellion under the Spanish criminal code clearly hurts their honour, their political and moral integrity, and the very basis of their political action. The Catalan independence process exemplifies non-violent political change, characterized in Catalan independence literature as "the smiling revolution" (Exhibit 24).

36. The purpose of this lawsuit is not for the Belgian civil court to evaluate a priori the merits of criminal proceedings in Spain. However, the political context and judicial repression must be taken into account when evaluating the civil infraction committed by Judge Pablo LLARENA, outside the exercise of his judicial functions.

37. Because no public funds were used to organize the referendum (supra, para 21 of this lawsuit), charges of "embezzlement" and "misappropriation of public assets” are wholly without merit.

38. Therefore, the comments publicly made by the defendant to journalists before television cameras (see paragraph 23 of this lawsuit) are extremely complex and sensitive, and further demonstrate that the defendant has sought to undermine the honour of the plaintiffs and violate the presumption of innocence.

39. In an interview, Judge LLARENA stated:
  • "Political offences is behaviour that normally would not be sanctioned by the criminal legal order and which nevertheless, for political considerations, this behavior is persecuted. This is not the case that we are working on at the Supreme Court, it is about behavior that is included in our Criminal Code and that no matter what may have been the motivation that led people to commit them - if that is what happened(16) - you have to do an investigation.” 
The defendant thereby admits clearly, precisely, and publicly that the charges he has lodged against the plaintiffs in his criminal investigation are political in nature, yet continues to maintain that they are not political but criminal offences. However, these questions would have to be determined by the Spanish judiciary at the end of the case, when there is judgement on the merits of the case establishing the facts and criminal charges. The plaintiffs assert that the acts committed (voting on laws as deputies and implementing them as ministers) are "behaviour that normally would not be sanctioned by the criminal legal order and which nevertheless, for political considerations, this behavior is persecuted". Therefore, ‘political consideration(s)’ justify the criminalization of dissenting political acts by pro-independence Catalan elected officials with a democratic mandate to do so, preventing them from engaging in political action through imprisonment and/or criminal conviction.

In making such comments, the defendant knowingly broke the law.


3.3 Damage and causation 

40. The remarks made by the defendant caused certain harm to the plaintiffs, all of whom suffered damage to their reputation and their honour. He has also participated in a campaign both in Spain or in Belgium to discredit their political acts, when they had difficulty implementing the initial European arrest warrant in November 2017, and also while preparing the second European arrest warrant issued on 23 March 2018.

41. In any event, the theory of equivalence of conditions holds that if damage results from multiple causes including an infraction, the defendant will be held liable for full compensation for damage inflicted.(17)

Therefore, although the damage resulted from several rulings pursuant to criminal proceedings in Spain, the infraction of Judge LLARENA is that he helped create a deleterious climate in flagrant violation of the presumption of innocence, and thereby obliged to make full reparation for the damage inflicted in Belgium.

Supreme Court case law holds that a judge cannot use the victim's previous degree of pathology as a basis for evaluating the level of compensation for damage subsequently suffered from an infraction, without which the damage would not have been inflicted in the same way.(18)

Through his legal action, Judge LLARENA has both exhibited his partiality and bias, and also participated in a systematic and violent media campaign by all organs of the State (government, head of state, associations of judges and prosecutors) to denigrate the plaintiffs. This campaign was reinforced by infractions committed by Judge Llarena, whose statements irrefutably violate the presumption of innocence.

Therefore, the infractions committed by Pablo LLARENA at least partially inflicted this damage.


INVENTORY


1) "El Gobierno impide por la fuerza el referendum ilegal” El País, 2/10/2017.

2) "La Catalogne après le referendum: on est au bord de la guerre civile”, L'Obs, 2/10/2017.

3) Manifesto by over a hundred Spanish professors of criminal law, « Legalidad penal y proceso independentista », 9/11/2017 and “Over 100 Spanish penal law professors against judge's “lack of restraint against Catalans”, 10/11/2017.

4) Supreme Court rules to adjourn hearing, 2/11/2017.

5) Supreme Court rules to release on bail (9 November 2017).

6) Conclusions de synthèse déposées devant la chambre du conseil du Tribunal de première instance néerlandophone de Bruxelles le 4 décembre 2017 (133 pages).

7) Supreme Court, Decision to withdraw the European Arrest Warrants, 5/12/2017.

8) “Pablo Llarena, Président de l'Espagne”, éditorial, El Periodico, 14/4/2018.

9) Committee of Human Rights, United Nations, Cautionary Measure, JORDI SANCHEZ c. Espagne, 23/3/2018.

 10) Cabinet Jus Cogens, Inventaire des violations des droits fondamentaux imputables aux autorités espagnoles, Mai 2018, 37 pages.

11) Supreme Court, Ruling rejecting the request for provisional release by Joaquim FORN CHIARIELLO, 2/2/2018.

12) Supreme Court, Ruling rejecting the request for provisional release by Jordi SANCHEZ I PICANYOL, 6/2/2018.

13) Supreme Court, Ruling rejecting the request for provisional release by Jordi SANCHEZ I PICANYOL, 9/3/2018.

14) Certificate issued by the National Authority for Public Expenditure Control, 15/11/2017.

15) “I don't know how they paid for the ballot boxes, but not with public funds”, Catalan News, 16/4/2018, http://www.catalannews.com/politics/item/i-don-t-know-how-they-paid-for-the-ballot-boxes-but-not-with-public-funds

16) Supreme Court, «Providencia» inviting the Ministry of Finance to send him a report on its declarations, considering they are contradicted by «the sources of evidence» it has in the framework on its investigation, 18/4/2018.

17) “El juez Llarena hablará sobre “Justicia y política””, El Confidential , 4/5/2018, https://www.elconfidencialdigital.com/articulo/el_chau-chau/juez-Llarena-hablara-justicia-politica/20180503175824089351.html

18) “Llarena pide “reformular o matizar” la postura española sobre las pruebas judiciales obtenidas ilícitamente”, El Norte de Castilla, 10/4/2018, http://www.elnortedecastilla.es/salamanca//Jarena-pide-reformular-20180410211843-12t.html.

19) Fundación FAES website, accessed on 1 June, 2018, http://www.fundacionfaes.org/es/prensa/45108/gallardon-anuncia-que-la-audiencia-nacional-se-reforzara-con-nuevas-competencias

 20) “Llarena concentra las miradas en el acto del Rey en Barcelona”, La Vanguardia, 9/4/2018, http://www.lavanguardia.com/politica/20180409/442377148814/pablo-llarena-miradas-acto-rey-barcelona.html

21) Tribunal Première instance Bruxelles, Chambre du Conseil, 16/5/2018.

22) La Suisse n'extradera pas l'autonomiste catalane", 20min.ch, 21/2/2018.

23) High Court of Schleswig-Holstein Judgment, 6/4/2018.

24) "La révolution pacifique de Catalogne: comment comprendre?", Angel Argiles, Mediapart, 5/10/2017

BEING,

June 5, 2018

AT THE REQUEST OF

1/ Mrs Maria Meritxell SERRET ALEU, born in Vallfogona de Balaguer on 19/06/1975, resident in Rue Lesbroussart, 31/33 in 1050-Brussels, whose domicile for the effects of this case will be that of the firm of her counsel, Christophe Marchand,

2/ Mr Antoni COMIN OLIVERES, born in Barcelona on 07/03/1971, resident at Rue des Flamands, 41 in 3000-Louvain,  whose domicile for the effects of this case will be that of the firm of his counsel, Mr Christophe MARCHAND,

Whose counsel are:

 - Maître Christophe MARCHAND, Attorney, whose firm is established at 1000-BRUSSELS (Belgium), Rue Marché au Charbon, 83, (cm@juscogens.be);
 - Maître Michèle HIRSCH, Attorney, whose firm is established at 1050-BRUSSELS (Belgium), Avenue Louise, 290, (sec.mh@hvlaw.eu);
- Maître Gonzalo BOYE TUSET, Attorney at the Madrid Bar, whose office is located at 28028-MADRID (Spain), Calle Pilar de Zaragoza, 9, (g.boye@be-abogados.com);

3/ Mr Carles PUIGDEMONT CASAMAJO, born in Amer on 29/12/1962, resident Avenue de l'Avocat, 34 to 1410-Waterloo, who for purposes of this case shall be domiciled at the office of his counsel,

 4/ Mrs Clara PONSATI OBIOLS, born in Barcelona on 19/03/1957, resident at 3 Woodburn House, Woodburn PI, St Andrews, Fife KY16 8LA, who for purposes of this case shall be domiciled at the office of her counsel.

5/ Mr Lluís PUIG GORDI, born in Terrassa (Barcelona) on 18/10/1959, resident at Rue Charles Quint 74 in 1000-Brussels who for purposes of this case shall be domiciled at the office of his counsel.

Having all three for counsel Maître Paul BEKAERT, Lawyer, whose firm is established at 8700-TIELT (Belgium), Hoogstraat, 34, (paul.bekaert@advocaatbekaert.be);

I the undersigned Hugues HELLEBAUT,
Bailiff resident at 1050-IXELLES (Belgium), Boulevard de la Cambre, 3/34

HEREBY FILE SUIT AGAINST: 

Mr Pablo LLARENA CONDE, judge, born in Burgos on 26/01/1963, residing in 28071-Madrid \ SPAIN, Supreme Court, Plaza Villa París, s/n,

- PROCEDURE FOR THE LAWSUIT AS FOLLOWS - 

HE IS SUMMONED TO APPEAR ON: 

TUESDAY SEPTEMBER 4th, 2018 at 9.00 AM, before the FIRST CHAMBER OF THE FRENCH-SPEAKING FIRST INSTANCE COURT OF BRUSSELS, sitting in ROOM 7, Building QB 13, rue des Quatre-Bras, 13, 1000 BRUSSELS (Belgium)

FOR THE PURPOSES OF :

Declaring this lawsuit admissible and well founded.

Seeking that Mr Pablo LLARENA CONDE be condemned to pay each of the plaintiffs the sum of EUR 1.00 as compensation for non-pecuniary damage;

 Seeking to fine the defendant, including the procedural indemnity referred to in Article 1022 of the Judicial Code.

Seeking that all provisions of the judgment entered into be enforceable, notwithstanding any final appeal or offer of partial resolution;

Subject to any reservations whatsoever, without prejudicial recognition, and specifically subject to increase or decrease in the degree of application in the course of proceedings, if any.

The legal reasoning within this lawsuit shall be based on the evidence given, relevant laws and all other rules of evidence and law to be applied in the course of proceedings, if any.

This court understands that he resides within the territory of the Kingdom of Spain, a Member State of the European Union, and that no residence or address in Belgium has been specified by the defendant for purposes of this case, I, the afore-mentioned and undersigned bailiff, have

  • pursuant to Article 4 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the notification of Member States of judicial and extrajudicial proceedings in civil and commercial matters, and rescinding Council Regulation (EC) No 1348/2000” sent by registered post with acknowledgment of receipt, deposited today at the post office in Ixelles (Belgium), 
  • A. two copies of this lawsuit, pursuant to Article 4 (5) of the above-mentioned Regulations, 
  • B. each copy accompanied by a Spanish translation
  • C. accompanied by the request for service (standard form) in Spanish,
To 

JUZGADO DECANO EXCLUSIVO DE MADRID
Plaza de Castilla, 1
28046 Madrid
SPAIN 

Hereby requesting:

 1. That as soon as possible the respondent be sent an acknowledgment of receipt of the lawsuit, by the fastest method, to the undersigned Huissier de Justice, within seven days of receipt using the appropriate standard form, in accordance with section 6 (1) of the Regulations;

 2. that, should the court not have territorial jurisdiction, the lawsuit and the application be sent to the appropriate territorial jurisdiction in the Member State, who will inform the originator in standard form in accordance with Article 6 (4);

 3. to proceed with or initiate procession of the lawsuit as soon as possible, and if not begun within one month, to inform the originator, pursuant to Article 7 (2), by the certificate provided for in Article 10;

 4. when the formalities of the lawsuit have been completed, to draft a certification to this effect in standard form and send it to the plaintiff’s counsel, together with a copy of the document served, in accordance with the provisions of the Article 10;

 5. to inform the respondent that he may refuse the lawsuit served if it is drafted in a language other than the official language of the requested Member State and to inform the originator immediately that the addressee refuses to receive the suit in accordance with §1 of article 8 and by means of the certificate referred to in article 10, in which case return the application and the documents for which translation is required;

And whereas pursuant to Article 14 of the Rules, each Member State has the right to directly mail the service of judicial documents to persons residing in another Member State, I, the undersigned bailiff, sent a copy of this lawsuit to the address of the respondent, accompanied by a Spanish translation deposited this day by registered mail with acknowledgment of receipt, at the post office in Ixelles (Belgium), the envelope bearing the following inscription:

REGISTERED LETTER WITH ACKNOWLEDGEMENT OF RECEIPT 

Mr Pablo LLARENA CONDE 
Tribunal Supremo 
 Plaza Villa Paris, s/n 
28071 Madrid 
SPAIN

You will find attached the receipts of the registered letters mentioned above in the original of this lawsuit.

And, alternatively, since it has not been possible for me to verify the accuracy of the address of the respondent in this lawsuit and the aforementioned measures might not be taken, for security reasons I have also sent a copy of this lawsuit to the King’s Prosecutor in Brussels, Parquet located at 1900 BRUSSELS (Belgium), rue des Quatre Bras, no. 2/4 (Bâtiment Portalis), care of…

Monsieur Sarrab DAOUD [? handwritten], secretary of the Prosecutor’s office]...

so stated, having signed my original notification for receipt of the copy.

All rights reserved.

Cost of lawsuit: four hundred and seventy-two euros and fifty-five cents,

Bailiff.


Footnotes
 
1 The parliamentary grouping in 2015 was “Junts pel Sí” and not, as stated on the French text, “Junts per Catalonia”.

2 An absolute majority requires at least 68 Deputies. Precise results can be found at: https://eleccions.ara.cat/parlament-27s.

 3 Contrary to what is asserted in the arrest warrants, the gathering of citizens is an expression of the right of assembly and cannot be conflated with acts of violence. Otherwise, the Catalan government was in no way involved in these spontaneous and peaceful gatherings.

4 See webpage: https://fr.express.live/2017/10/03/roi-despagne-autorites-catalanes-ont-preuve-dune-deloyaute-inadmissible/

5 The law was adopted by secret ballot by 70 votes out of a majority of 72.

6 See webpage last viewed 02/09/2018: http://www.poderjudicial.es/cgpj/es/Buscadores?text=Llarena

7 This law was immediately suspended by the Spanish Tribunal Constitutional on June 5, 2017.

 8 “Foundation for Analysis and Social Studies”, http://www.fundacionfaes.org.

 9 Universidad Complutense en San Lorenzo de El Escorial

10 See webpage: https://www.autosa.com/jornadas-responsabilidad-penal/

11 Extracts of television interviews viewable at : https://twitter.com/gerardsese/status/966958310590205952?lang=es

12 There has been some controversy over the precise translation of “si es que eso ha sido así” in the original Spanish. In this translation and later in Art 39, it was translated into French as “if that is what happened”, when "if indeed they did commit that offence" is more accurate. https://www.lavanguardia.com/politica/20180831/451545134338/error-traduccion-demanda-puigdemont-llarena.html

13 Artículo 1902 del Código Civil: “El que por acción u omisión causa daño a otro, interviniendo culpa o negligencia, está obligado a reparar el daño causado”

14 Sentencia Civil Tribunal Supremo, Sala de lo Civil, Sección 1, Rec 942/2003 de 29 de Octubre de 2008, available at: https://www.iberley.es/temas/responsabilidad-civil-extracontractual-codigo-civil-60141

15 Declaration by former Spanish Interior Minister Juan Ignacio ZOIDO, 04/12/2017

16 There has been some controversy over the precise translation of “si es que eso ha sido así” in the original Spanish. In this translation and later in Art 39, it was translated into French as “if that is what happened”, when "if indeed they did commit that offence" is more accurate. https://www.lavanguardia.com/politica/20180831/451545134338/error-traduccion-demanda-puigdemont-llarena.html

17 B. DUBUISSON, Droit des obligations, délits et quasi délits, TII, 2000-2001, p. 144) ; 16 Cass;, 2 février 2011, RG no P10.160.1.F, Pas., 2011, p. 394 ; Cass, 17 mai 1990, Pas., I, 1064 ; 17 ; VAN OMMESLAGHE, Droit des obligations, T III, Bruylant, 2010, p. 1586.

18 16 Cass;, 2 février 2011, RG no P10.160.1.F, Pas., 2011, p. 394 ; Cass, 17 mai 1990, Pas., I, 1064 ; 17 ; VAN OMMESLAGHE, Droit des obligations, T III, Bruylant, 2010, p. 1586.

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