"Can the Catalan ministers be tried without the President going on trial?" by Javer Pérez Royo

This is a translation into English by MS of "Consulta obligada", an article published by prof. Javier Pérez Royo on 27 Oct 2018. I hope he and the newspaper have no objection.
Click here if need be

Original article: https://m.eldiario.es/zonacritica/Consulta-obligada_6_829477052.html

Compulsory referral

• Can the Catalan ministers be tried without the President going on trial?
• This is the big query of a constitutional/statutory nature that has to be cleared up in order to be able to hold the trial

Javier Pérez Royo

27 Oct 2018 21: 09

The case for rebellion against Oriol Junqueras and other nationalist politicians is linked to the calling and holding of the October 1 referendum in 2017 despite the express prohibition by the Constitutional Court. Had the call and referendum not occurred, no case would have been put in motion. The calling and holding of the referendum is, therefore, the factual condition on which the case is based.

I am going to leave to one side whether the incidents of violence that occurred during the calling and holding of this un-typical referendum can be considered to amount to the violence contemplated in the criminal type of rebellion. I know it is a lot to put aside, but I am going to do so because I want to focus on an issue that, in no case can be overlooked, which is the constitutional-statutory body that decided to call the referendum.

For this is a point where there is no doubt about what happened. The October 1 referendum was called by the Government, through decree 139/2017, in execution of Law 19/2017. It is a strange decree, since it is expressly stated that it is approved "at the proposal of all the members of the Government" and is signed by all of them. The signature of Carles Puigdemont appears as the first, but equated to that of the other members of the [Catalan] Government. It seems clear that, with this liturgy, they wanted to transmit an image of unity without fissures in the decision-making process.
Politically it seems clear that it has intended to convey the image that all members of the Government were equally responsible for the decree calling the referendum. But is such equality between all of them legally possible? Can the signing of a decree alter the hierarchical relationship established in the Constitution and the Statute of Autonomy between the president and the ministers?

Obviously not. Both the Constitution and the Statute of Autonomy project the principle of democratic legitimation upon the formation of the Government so as to make an essential distinction between the president and the other members of the Government. And this essential difference conditions the requirement of criminal responsibility of the president and the other members of the Government for an act that can only be qualified as an act of the Government, as the decree convening the October 1 referendum was.

It is necessary to consider the projection of the principle of democratic legitimacy upon the formation of the Government and to have an answer to the following question: Can a trial be held against ministers without the president being tried? This is the big unknown of a constitutional/statutory nature that needs to be cleared up before the trial can be held.

In my opinion, without the president being taken to court, nor can the ministers be accused of anything related to the convening and holding of the October 1 referendum. Not only the crime of rebellion, but anything else. The opening of a criminal trial as a result of the convening and holding of a referendum such as that of October 1 it is essential that Carles Puigdemont be among those on trial. Given the accusation against him, others can be accused. But unless he goes on trial, the others can not. The Criminal Code and the Law of Criminal Procedure need to be interpreted in accordance with the Constitution and the Statute: the latter cannot be disregarded. The accusation against Carles Puigdemont is the constitutional/statutory condition for the exercise of a criminal action against the ministers for October 1.

This absence of the constitutional and statutory condition for the opening of the Supreme Court trial needs to be referred to the Constitutional Court, through the filing of an appeal for protection against the Supreme Court decision, so that the Constitutional Court can resolve it. This is the appropriate procedural moment in which it should be filed, since it is the very possibility that the trial can be held that needs to be clarified.

The special constitutional transcendence of the appeal is obvious, as is the need for the Constitutional Court to address the issue before the trial. In my opinion, in addition to the ministers' counsel, the Prosecutor's Office itself should go to the Constitutional Court so that there is not a shred of doubt about the constitutionality of opening a trial of this relevance.