if need be to read the whole post
Source: http://blog.juspoliticum.com/2019/10/29/catalogne-une-indignation-comprehensible-par-anthony-sfez/
Catalogne : une indignation compréhensible
Par Anthony Sfez
A
l’issue d’un procès marquant, le Tribunal suprême espagnol (TSE) a
écarté le chef d’accusation le plus grave qui pesait sur les leaders
indépendantistes catalans : la rébellion. Maigre soulagement pour les
leaders catalans qui ont été condamnés à des peines allant de 9 à 13
années d’emprisonnement. Ces lourdes peines ont été prononcées sur le
fondement du délit de sédition, lequel a été retenu à la suite d’un
raisonnement qui met à mal la présomption d’innocence.
After a very publicised trial, the Spanish Supreme Court (TSE) dismissed the most serious charge against Catalan independence leaders: rebellion. But it is only a small relief for Catalan leaders, who have all been sentenced to 9 to 13 years of imprisonment for sedition. The reasoning followed to convict them of sedition weakens the presumption of innocence.
Par Anthony Sfez, ATER et doctorant à l’Université Paris-II Panthéon Assas
1. The offence of rebellion was logically dismissed in favour of that of sedition
The proceedings brought by the Spanish justice against the Catalan leaders had already started in a baroque way with the decisions of the investigating judge and the prosecutor to base the prosecutions on the basis of the offense of rebellion, one of the most serious of the Spanish Criminal Code (CC). Many Spanish criminal lawyers have pointed out [1] that this charge was disconcerting, to say the least. Indeed, if the investigating judge and the Prosecutor had taken into account the parliamentary proceedings, they should have conceded that the drafters of the Spanish Criminal Code (CC) had in mind - when they drafted article 472 of the CC governing the offence of rebellion - armed uprisings of the type perpetrated by Lieutenant-Colonel Tejero in February 1981 or by General Franco in 1936 and in no way civil demonstrations, however massive or even violent. If they had taken into account the jurisprudence of the Spanish Constitutional Court, they would have been forced to admit that rebellion means, by definition, “the illegitimate use of weapons of war or explosives with the aim of producing destruction or inversion of the constitutional order”[2]. Finally, if the prosecutor and the investigating judge had taken heed of the decision of the Court of Schleswig-Holstein - mixed up in this case by a European arrest warrant issued against the chief "rebel", Carles Puigdemont - they would have had to recognize that the "violence" exerted by the Catalan demonstrators was in no way likely to subject the constitutional organs of the Spanish state to such pressure that they would have thought of capitulating to the demands of the separatists.
If the prosecutor and the examining magistrate had made use of these elements and these warnings which indicated that they were clearly on the wrong track in focusing the trial on rebellion, they would have saved themselves the scathing disavowal of the Supreme Court which was indeed forced to recognize that "(...) the State maintained control of the military, police, jurisdictional and even social force at all times (...) the conspiracy was definitively aborted by the simple display of the pages of the Official Bulletin of the State in which were published the implementation of article 155 of the Constitution in the Autonomous Community of Catalonia. This fact led some defendants to undertake a sudden escape. The defendants who decided to stay (...) unconditionally withdrew from the adventure they had undertaken" [3]. From this observation, the Supreme Court draws that the independence leaders did not have the direct objective of undermining the legal assets protected by article 472 of the Criminal Code - the territorial integrity and the Spanish constitutional order - but that of forcing the hand of the Spanish government to obtain the organization of a legal, concerted and bilateral referendum.
The rebellion having thus been dismissed, the Supreme court judge nevertheless handed down heavy sentences. These are based on the offences of misuse of public funds [4] but especially of sedition, which, unlike the offence of rebellion, is not an offence against the Constitution but against public order as defined in article 544 of the Criminal Code. More specifically, this offence consists of a "public and tumultuous uprising" aimed not at breaking the constitutional order but at preventing "by force or outside the legal channels" the application of laws or court decisions. However, according to the Supreme Court, this is indeed what happened in Catalonia on October 1, 2017 during the unconstitutional referendum: the Catalan voters convened by the independence leaders deliberately obstructed the work of the police forces who had the formal order, issued by a court judge, to seize the electoral material in order to ensure respect for the Constitutional Court ban. The offence of sedition would thus be well constituted.
The reasoning of the Supreme court judge might at first sight seem well founded. However, it violates at least one fundamental principle of criminal law: the one according to which no one can be punished except for his (or her) own deeds, a principle which itself relates to a fundamental principle: the presumption of innocence.
2. Sedition retained in defiance of the presumption of innocence
If there is a single fact that is established, it is that the separatist leaders did not personally take part in the blocking of the ballot boxes. In other words, they are not the material authors of the offence which consists, let us not be mistaken, not in the organization of the unconstitutional referendum - the offence of organizing a referendum by an incompetent authority having been removed from the Criminal Code in 2005 [5] - but in the obstruction of the police when confiscating the electoral material. Given they were not the physical perpetrators, the Supreme judge should therefore have proved that the condemned were the instigators or, in other words, the moral perpetrators of the blocking of the ballot boxes, in application of the principle according to which no one is punishable except for his (or her) own deeds. This is what he thought he established by making three arguments.
First, say the Supreme court judges, the independence leaders called on the Catalans to go to the polls in the name of their inalienable right to decide their political future and even gave a semblance of legality to the referendum with the laws of transition adopted by the Catalan Parliament. Then, add the Supreme court judges, the Catalan leaders could not ignore, given the existence of the cout injunction issued to the police forces to ban the vote, that violence would occur on the day of the vote, so that 'they ought, as a precaution, to have canceled the referendum. Finally, the Supreme court judges complete, the Catalan leaders should have put an end to the referendum on the day it took place when they noted the existence of blockages making it sometimes impossible to implement the court mandate issued to the forces of order.
None of these arguments stand up to scrutiny.
Regarding the first argument, it should be emphasized that an call to go peacefully to a polling station in order to slip an envelope into a ballot box, even during a referendum declared unconstitutional, obviously in no way constitutes a call to block access to the ballot boxes in the event of police intervention. There is, in fact, no mechanical, logical and necessary correlation between a call to vote and a call to block the ballot boxes. Calling to perform the first action in no way implies an explicit, or even implicit, call to perform the second. Besides, in several polling stations where people were called to vote, the police intervened without encountering any resistance and were able to confiscate the ballot boxes without incident, which ends up proving, if this was necessary, that the blockages, where they took place, were spontaneous and thus fall, assuming that they can be considered as constituting an offence of sedition, under the sole responsibility of those who committed them.
As regards the judge’s second argument - that the Catalan leaders should have canceled the referendum because of the likelihood of violence - it amounts to confusing the likelihood of a forecast with the certainty of its realization. Clashes between law enforcement and voters were likely, but far from certain. On the one hand, because, as we have said, it was possible that voters would let the police confiscate the ballot boxes without offering any resistance. On the other hand, because one could imagine that the police might give up confiscating the ballot boxes in certain polling stations while respecting the order issued by the judicial judge. Indeed, the order in question certainly prescribed the police "to adopt all measures to prevent the referendum from being held" but it was also added that these operations must be carried out without "undermining social peace (convivencia)” [6]. It was on this textual ambiguity that the Catalan security forces relied to allow the voting to take place peacefully in the polling stations they were responsible for monitoring. We still do not knoew, however, whether this interpretation by the Catalan police force was plausible, as the trial of the Catalan police chief is still ongoing. Let us also underline, in passing, another peculiarity of the trial of the Catalan political leaders: their conviction came at a time when the question of knowing whether the way the Catalan police forces interpreted the judge's injunction was valid has yet to be decided.
After a very publicised trial, the Spanish Supreme Court (TSE) dismissed the most serious charge against Catalan independence leaders: rebellion. But it is only a small relief for Catalan leaders, who have all been sentenced to 9 to 13 years of imprisonment for sedition. The reasoning followed to convict them of sedition weakens the presumption of innocence.
Par Anthony Sfez, ATER et doctorant à l’Université Paris-II Panthéon Assas
...ooo000ooo...
Catalonia: understandable indignation
Since the Spanish Supreme Court (SSC) judgment condemning the Catalan separatist leaders behind the unconstitutional referendum of October 1, 2017, Catalonia has been beset by numerous and sometimes violent demonstrations. And it was not by dismissing - fortunately for the credibility of the Spanish rule of law - the main charge of rebellion which hung over the Catalan leaders (1) and by retaining the crime of sedition that the Supreme Court could appease the reaction of the Catalans. The indignation of supporters of the separatist leaders resides in the fact that the latter were sentenced, after legal reasoning that was questionable to say the least, to terms ranging from 9 to 13 years' imprisonment (2). The controversial Supreme Court decision is likely to be brought before the European Court of Human Rights (ECHR) and could prolong Spain's political instability (3).1. The offence of rebellion was logically dismissed in favour of that of sedition
The proceedings brought by the Spanish justice against the Catalan leaders had already started in a baroque way with the decisions of the investigating judge and the prosecutor to base the prosecutions on the basis of the offense of rebellion, one of the most serious of the Spanish Criminal Code (CC). Many Spanish criminal lawyers have pointed out [1] that this charge was disconcerting, to say the least. Indeed, if the investigating judge and the Prosecutor had taken into account the parliamentary proceedings, they should have conceded that the drafters of the Spanish Criminal Code (CC) had in mind - when they drafted article 472 of the CC governing the offence of rebellion - armed uprisings of the type perpetrated by Lieutenant-Colonel Tejero in February 1981 or by General Franco in 1936 and in no way civil demonstrations, however massive or even violent. If they had taken into account the jurisprudence of the Spanish Constitutional Court, they would have been forced to admit that rebellion means, by definition, “the illegitimate use of weapons of war or explosives with the aim of producing destruction or inversion of the constitutional order”[2]. Finally, if the prosecutor and the investigating judge had taken heed of the decision of the Court of Schleswig-Holstein - mixed up in this case by a European arrest warrant issued against the chief "rebel", Carles Puigdemont - they would have had to recognize that the "violence" exerted by the Catalan demonstrators was in no way likely to subject the constitutional organs of the Spanish state to such pressure that they would have thought of capitulating to the demands of the separatists.
If the prosecutor and the examining magistrate had made use of these elements and these warnings which indicated that they were clearly on the wrong track in focusing the trial on rebellion, they would have saved themselves the scathing disavowal of the Supreme Court which was indeed forced to recognize that "(...) the State maintained control of the military, police, jurisdictional and even social force at all times (...) the conspiracy was definitively aborted by the simple display of the pages of the Official Bulletin of the State in which were published the implementation of article 155 of the Constitution in the Autonomous Community of Catalonia. This fact led some defendants to undertake a sudden escape. The defendants who decided to stay (...) unconditionally withdrew from the adventure they had undertaken" [3]. From this observation, the Supreme Court draws that the independence leaders did not have the direct objective of undermining the legal assets protected by article 472 of the Criminal Code - the territorial integrity and the Spanish constitutional order - but that of forcing the hand of the Spanish government to obtain the organization of a legal, concerted and bilateral referendum.
The rebellion having thus been dismissed, the Supreme court judge nevertheless handed down heavy sentences. These are based on the offences of misuse of public funds [4] but especially of sedition, which, unlike the offence of rebellion, is not an offence against the Constitution but against public order as defined in article 544 of the Criminal Code. More specifically, this offence consists of a "public and tumultuous uprising" aimed not at breaking the constitutional order but at preventing "by force or outside the legal channels" the application of laws or court decisions. However, according to the Supreme Court, this is indeed what happened in Catalonia on October 1, 2017 during the unconstitutional referendum: the Catalan voters convened by the independence leaders deliberately obstructed the work of the police forces who had the formal order, issued by a court judge, to seize the electoral material in order to ensure respect for the Constitutional Court ban. The offence of sedition would thus be well constituted.
The reasoning of the Supreme court judge might at first sight seem well founded. However, it violates at least one fundamental principle of criminal law: the one according to which no one can be punished except for his (or her) own deeds, a principle which itself relates to a fundamental principle: the presumption of innocence.
2. Sedition retained in defiance of the presumption of innocence
If there is a single fact that is established, it is that the separatist leaders did not personally take part in the blocking of the ballot boxes. In other words, they are not the material authors of the offence which consists, let us not be mistaken, not in the organization of the unconstitutional referendum - the offence of organizing a referendum by an incompetent authority having been removed from the Criminal Code in 2005 [5] - but in the obstruction of the police when confiscating the electoral material. Given they were not the physical perpetrators, the Supreme judge should therefore have proved that the condemned were the instigators or, in other words, the moral perpetrators of the blocking of the ballot boxes, in application of the principle according to which no one is punishable except for his (or her) own deeds. This is what he thought he established by making three arguments.
First, say the Supreme court judges, the independence leaders called on the Catalans to go to the polls in the name of their inalienable right to decide their political future and even gave a semblance of legality to the referendum with the laws of transition adopted by the Catalan Parliament. Then, add the Supreme court judges, the Catalan leaders could not ignore, given the existence of the cout injunction issued to the police forces to ban the vote, that violence would occur on the day of the vote, so that 'they ought, as a precaution, to have canceled the referendum. Finally, the Supreme court judges complete, the Catalan leaders should have put an end to the referendum on the day it took place when they noted the existence of blockages making it sometimes impossible to implement the court mandate issued to the forces of order.
None of these arguments stand up to scrutiny.
Regarding the first argument, it should be emphasized that an call to go peacefully to a polling station in order to slip an envelope into a ballot box, even during a referendum declared unconstitutional, obviously in no way constitutes a call to block access to the ballot boxes in the event of police intervention. There is, in fact, no mechanical, logical and necessary correlation between a call to vote and a call to block the ballot boxes. Calling to perform the first action in no way implies an explicit, or even implicit, call to perform the second. Besides, in several polling stations where people were called to vote, the police intervened without encountering any resistance and were able to confiscate the ballot boxes without incident, which ends up proving, if this was necessary, that the blockages, where they took place, were spontaneous and thus fall, assuming that they can be considered as constituting an offence of sedition, under the sole responsibility of those who committed them.
As regards the judge’s second argument - that the Catalan leaders should have canceled the referendum because of the likelihood of violence - it amounts to confusing the likelihood of a forecast with the certainty of its realization. Clashes between law enforcement and voters were likely, but far from certain. On the one hand, because, as we have said, it was possible that voters would let the police confiscate the ballot boxes without offering any resistance. On the other hand, because one could imagine that the police might give up confiscating the ballot boxes in certain polling stations while respecting the order issued by the judicial judge. Indeed, the order in question certainly prescribed the police "to adopt all measures to prevent the referendum from being held" but it was also added that these operations must be carried out without "undermining social peace (convivencia)” [6]. It was on this textual ambiguity that the Catalan security forces relied to allow the voting to take place peacefully in the polling stations they were responsible for monitoring. We still do not knoew, however, whether this interpretation by the Catalan police force was plausible, as the trial of the Catalan police chief is still ongoing. Let us also underline, in passing, another peculiarity of the trial of the Catalan political leaders: their conviction came at a time when the question of knowing whether the way the Catalan police forces interpreted the judge's injunction was valid has yet to be decided.
Finally, the third and last argument, according to which the Catalan leaders should have put an end to the referendum when they realised that it was impossible for the police forces to carry out their mandate, amounts, on the one hand, to creating from scratch a nonexistent and utterly paradoxical crime - sedition… by omission! - and, on the other hand, to argue on the premise, without there being any evidence offered either, that the independence leaders had any kind of control over the electoral body on polling day, and that with a simple word would have been able to disperse the crowds.
In short, at the strictly criminal level - at the political level it is rather different - the blockages materializing the crime of sedition are not, in terms of imputation, attributable to the independence leaders. Consequently, the latter were convicted of actions attributable to others, which, as has been said, makes the decision of the Suprmee Court* highly questionable from the point of view of the presumption of innocence, especially when one knows that criminal law is based on the "in dubio pro reo" rule which says that the doubt plays in favour of the defendant.
In addition, and notwithstanding the question of accountability, it remains highly questionable in this case to consider that the blockages constitute a crime of sedition. Indeed, even supposing that we can impute the blockages to the condemned Catalan leaders, the fact remains that a "public and tumultuous uprising" - that is the definition of sedition - implies a "massive movement" of revolt combined with “disorderly agitation”. However, it was not a "tumultuous uprising" that obstructed the work of the police, but, as everyone saw, blocks formed by hosts of people, generally peaceful, opposing the assaults of the Spanish police with the force of inertia.
The decision to condemn the separatist leaders on the basis of sedition appears all the more questionable since there existed, in the Criminal Code, an offence corresponding perfectly to the offences committed by the separatist leaders: disobedience/contempt of court. Pursuant to Articles 410 and 411 of the Criminal Code, this consists of an explicit refusal on the part of an official to carry out either an order emanating from his/her hierarchical superior or a court ruling. However, by adopting the Laws of Transition in defiance of the decisions of the Constitutional Court which had ordered the suspension of the procedure of adoption, the Catalan political leaders not only violated the Constitution but they also became manifestly guilty of an offence of contempt of court. So why did the judges not rather opt for contempt of court instead of retaining sedition? Probably because a conviction for contempt of court, which does not imply a prison sentence but only fines and debarment from public office, would have been considered scandalously insufficient, in view not so much of the seriousness of the criminal behavior of the independence leaders, but rather of their openly hostile attitude towards the 1978 Constitution, which is supposed to be the symbol of reconciliation between the Spaniards.
3. The politico-judicial consequences of the Catalan affair
The independence leaders will now be able to put forward these first arguments before the European Court of Human Rights (ECHR). They will have others to assert and in particular the patent violation of the principle of the right to the natural judge, what the Spaniards call the right to the judge pre-ordained by law. Article 57.2 of the Catalan Statute of Autonomy, which has the value of an organic law in the Spanish legal order, provides that the judge competent to find out the criminal responsibility of members of the Catalan Parliament and / or government is, except if the offences are committed outside Catalan territory, not the Supreme Court of Madrid but the High Court of Justice of Catalonia. To circumvent this principle and thus justify its competence to try the independence leaders in Madrid and not in Barcelona, the Supreme Court leaned on the affirmation that the crimes the Catalan leaders were charged with exceeded the Catalan scenario, because of their impact. An infringement of the right to appeal follows from this decision of the Supreme Court to assume jurisdiction to hear the case as a one and only resort. So though the Supreme court judges devoted nearly 200 pages to demonstrate that the fundamental rights of the defendants were respected - while the passage on sedition is just ten pages long - the fact is that many doubts remain as to the respect of certain fundamental rights of the independence leaders. Before entering Europe, however, the convicts will have to exhaust the domestic remedies. They will therefore have to present an amparo appeal before the Constitutional Cöurt, and this risks holding back access to the ECHR for a good year. In the meantime, Catalan leaders should be able to quickly benefit from the implementation of day parole regimes. The Supreme Court did not a priori oppose this in its decision.
As for the political consequences, the decision of the Supeme Court should not lead the Catalan institutions, still and always led by independentists, to institutional disobedience even if they currently support the Catalan demonstrations. Such an attitude is indeed unlikely, as the separatists are aware that it did not help them politically, in addition to being criminally dangerous. For the time being, they are content to ask for an amnesty for the "political prisoners" or at least their pardon (indulto). Pedro Sánchez, the current president of the Spanish government, however, is refusing, on the basis of the separation of powers. Nevertheless, the Socialist may need the support of the Catalan MPs after the November 10 [general] election, to form a government. Would that lead to giving in to this claim? What is obvious is that the anti-Catalanist pressure exerted by the right is very strong. What is also certain is that this will be one of the conditions set by the Catalan MPs in exchange for their support. This support could prove to be decisive in preventing Spain from continuing to get bogged down in a crisis of governability which has dragged out since 2015 and which is intimately linked to the insoluble - and interminable - Catalan problem.
[1] 300 Spanish lawyers had signed a petition against the trivialization of the crimes of rebellion and sedition: https://elpais.com/politica/2018/11/22/actualidad/1542906522_501939.html
[2] «...se realiza por un grupo que tiene el propósito de uso ilegítimo de armas de guerra o explosivos, con una finalidad de producir la destrucción o eversión del orden constitucional». Constitutional Court sentence No. 199/1987, of 16 December. Legal Basis No. 4.
[3] « la conjura fue definitivamente abortada con la mera exhibición de unas páginas del Boletín Oficial del Estado que publicaban la aplicación del artículo 155 de la Constitución a la Comunidad Autónoma de Cataluña. Este hecho determinó a algunos de los procesados a emprender repentina huida. Los acusados que decidieron permanecer (…) desistieron incondicionalmente de la aventura que habían emprendido », Supreme Court, Sala de lo penal, Sentencia núm. 459/2019, p. 269.
[4] The separatist leaders apparently used public funds to organize the unconstitutional referendum.
[5] It was Organic Law 2/2005 of June 22, 2005 adopted by the Spanish Socialists which suppressed this offence by emphasizing in its explanatory memorandum that such behaviour was "controllable" by means separate other than the criminal route. One thinks in particular of article 155 of the Spanish Constitution which allows the suspension of the autonomy of an Autonomous Community and which has proven to be formidably effective in guaranteeing the protection of the Spanish constitutional order against Catalan separatists.
[6] https://elpais.com/ccaa/2017/10/01/catalunya/1506881493_228687.html
* Translator's note: the author says "Constitutional court" but it is likely, in the context, to be "Supreme Court".
In short, at the strictly criminal level - at the political level it is rather different - the blockages materializing the crime of sedition are not, in terms of imputation, attributable to the independence leaders. Consequently, the latter were convicted of actions attributable to others, which, as has been said, makes the decision of the Suprmee Court* highly questionable from the point of view of the presumption of innocence, especially when one knows that criminal law is based on the "in dubio pro reo" rule which says that the doubt plays in favour of the defendant.
In addition, and notwithstanding the question of accountability, it remains highly questionable in this case to consider that the blockages constitute a crime of sedition. Indeed, even supposing that we can impute the blockages to the condemned Catalan leaders, the fact remains that a "public and tumultuous uprising" - that is the definition of sedition - implies a "massive movement" of revolt combined with “disorderly agitation”. However, it was not a "tumultuous uprising" that obstructed the work of the police, but, as everyone saw, blocks formed by hosts of people, generally peaceful, opposing the assaults of the Spanish police with the force of inertia.
The decision to condemn the separatist leaders on the basis of sedition appears all the more questionable since there existed, in the Criminal Code, an offence corresponding perfectly to the offences committed by the separatist leaders: disobedience/contempt of court. Pursuant to Articles 410 and 411 of the Criminal Code, this consists of an explicit refusal on the part of an official to carry out either an order emanating from his/her hierarchical superior or a court ruling. However, by adopting the Laws of Transition in defiance of the decisions of the Constitutional Court which had ordered the suspension of the procedure of adoption, the Catalan political leaders not only violated the Constitution but they also became manifestly guilty of an offence of contempt of court. So why did the judges not rather opt for contempt of court instead of retaining sedition? Probably because a conviction for contempt of court, which does not imply a prison sentence but only fines and debarment from public office, would have been considered scandalously insufficient, in view not so much of the seriousness of the criminal behavior of the independence leaders, but rather of their openly hostile attitude towards the 1978 Constitution, which is supposed to be the symbol of reconciliation between the Spaniards.
3. The politico-judicial consequences of the Catalan affair
The independence leaders will now be able to put forward these first arguments before the European Court of Human Rights (ECHR). They will have others to assert and in particular the patent violation of the principle of the right to the natural judge, what the Spaniards call the right to the judge pre-ordained by law. Article 57.2 of the Catalan Statute of Autonomy, which has the value of an organic law in the Spanish legal order, provides that the judge competent to find out the criminal responsibility of members of the Catalan Parliament and / or government is, except if the offences are committed outside Catalan territory, not the Supreme Court of Madrid but the High Court of Justice of Catalonia. To circumvent this principle and thus justify its competence to try the independence leaders in Madrid and not in Barcelona, the Supreme Court leaned on the affirmation that the crimes the Catalan leaders were charged with exceeded the Catalan scenario, because of their impact. An infringement of the right to appeal follows from this decision of the Supreme Court to assume jurisdiction to hear the case as a one and only resort. So though the Supreme court judges devoted nearly 200 pages to demonstrate that the fundamental rights of the defendants were respected - while the passage on sedition is just ten pages long - the fact is that many doubts remain as to the respect of certain fundamental rights of the independence leaders. Before entering Europe, however, the convicts will have to exhaust the domestic remedies. They will therefore have to present an amparo appeal before the Constitutional Cöurt, and this risks holding back access to the ECHR for a good year. In the meantime, Catalan leaders should be able to quickly benefit from the implementation of day parole regimes. The Supreme Court did not a priori oppose this in its decision.
As for the political consequences, the decision of the Supeme Court should not lead the Catalan institutions, still and always led by independentists, to institutional disobedience even if they currently support the Catalan demonstrations. Such an attitude is indeed unlikely, as the separatists are aware that it did not help them politically, in addition to being criminally dangerous. For the time being, they are content to ask for an amnesty for the "political prisoners" or at least their pardon (indulto). Pedro Sánchez, the current president of the Spanish government, however, is refusing, on the basis of the separation of powers. Nevertheless, the Socialist may need the support of the Catalan MPs after the November 10 [general] election, to form a government. Would that lead to giving in to this claim? What is obvious is that the anti-Catalanist pressure exerted by the right is very strong. What is also certain is that this will be one of the conditions set by the Catalan MPs in exchange for their support. This support could prove to be decisive in preventing Spain from continuing to get bogged down in a crisis of governability which has dragged out since 2015 and which is intimately linked to the insoluble - and interminable - Catalan problem.
[1] 300 Spanish lawyers had signed a petition against the trivialization of the crimes of rebellion and sedition: https://elpais.com/politica/2018/11/22/actualidad/1542906522_501939.html
[2] «...se realiza por un grupo que tiene el propósito de uso ilegítimo de armas de guerra o explosivos, con una finalidad de producir la destrucción o eversión del orden constitucional». Constitutional Court sentence No. 199/1987, of 16 December. Legal Basis No. 4.
[3] « la conjura fue definitivamente abortada con la mera exhibición de unas páginas del Boletín Oficial del Estado que publicaban la aplicación del artículo 155 de la Constitución a la Comunidad Autónoma de Cataluña. Este hecho determinó a algunos de los procesados a emprender repentina huida. Los acusados que decidieron permanecer (…) desistieron incondicionalmente de la aventura que habían emprendido », Supreme Court, Sala de lo penal, Sentencia núm. 459/2019, p. 269.
[4] The separatist leaders apparently used public funds to organize the unconstitutional referendum.
[5] It was Organic Law 2/2005 of June 22, 2005 adopted by the Spanish Socialists which suppressed this offence by emphasizing in its explanatory memorandum that such behaviour was "controllable" by means separate other than the criminal route. One thinks in particular of article 155 of the Spanish Constitution which allows the suspension of the autonomy of an Autonomous Community and which has proven to be formidably effective in guaranteeing the protection of the Spanish constitutional order against Catalan separatists.
[6] https://elpais.com/ccaa/2017/10/01/catalunya/1506881493_228687.html
* Translator's note: the author says "Constitutional court" but it is likely, in the context, to be "Supreme Court".
...ooo000ooo...
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