English translation (by M.S.) of an interview with defence lawyer Gonzalo Boye, who analyzes the charges laid by the Spanish prosecutor's office and the State's lawyer.
if need beGonzalo Boye: 'The prosecutor's indictment was written in civil war mode'
The lawyer analyzes the accusation indictments of the Spanish prosecutor's office and the State Lawyer in this interview
By: Josep Rexach Fumanya
02.11.2018 21:50
The prosecution indictments of the Spanish public prosecutor's office and the State Legal Office against the political leaders of the independence movement once again stirred up public opinion yesterday, and not only on the pro-independence side. This level of outrage will surely not be felt again until the verdicts, in a few months' time. "I got angrier by the page," says lawyer Gonzalo Boye on the phone, after reading the texts. They are the confirmation of what he had already ventured months ago, but he is angry all the same. The lawyer coordinating the defence of the politicians in exile believes that, in the trial, the lawyers 'will have to pull all the stops out' and focus on showing that Spain has violated the political prisoners' rights. Why? Because he is sure that the sentences will be very tough and so they need to think about Strasbourg from the start.
"Did you honestly expect such harsh charges?"
"Yes. In fact, at the beginning of August, I told the prisoners that there would be 25 years' prison sentences. I think it is more logical to tell the people what they have to be prepared for and what tbey have to face up to."
"How can defence counsels prepare their request for acquittal in a trial where they face charges of 25 years in prison?"
"There can be two strategies: to defend the defendants and to argue that what the defendants have done is not a crime."
"And you would opt for the second one."
"Yes. The fundamental question is not if there was more or less violence, if this guy or that was the boss, but to defend that calling a referendum and going out into the street to demonstrate and to try to attain independence are not crimes. It is a democratic exercise, the right of association, the right of demonstration and the right of freedom of expression. This has to be defended. If not, you slip into their narrative. The strategies are compatible, but they have to be developed. It is not the same to go to Strasbourg proposing deliberations on fundamental rights such as the right of defence or the right of the presumption of innocence, than to go to Strasbourg and say that these guarantees have been violated because prior to that civil rights, that also are fundamental, have been violated, such as the right of demonstration, of association and of not being a victim of the arbitrariness of the State. All these rights are much more attractive in Strasbourg than the violation of procedural rights."
"You are already speaking of appealing the sentences before the European Court of Human Rights. Do you envisage very tough convictions?"
"Well of course! I expect a very harsh verdict. And we have to pull out all the stops at the trial. We mustn't go there with misgivings."
"Legally, what does "pulling out all the stops" mean?"
"That every full stop and every comma, not only of the indictment charges, but of all that is to come, has to be challenged. A tough battle has to be waged, so that fundamental things, such as the fact that these deeds outside of Spain are not crimes, get accreditted."
"Is a joint defence fundamental?"
"I think that a coordinated defence has to be prepared, rather than a joint one. Let each counsel address part of the procedure, part of the legal issues and part of the debate. Other than the case of Santi Vila, all the defences are perfectly compatible. But one thing is for them to be compatible and another is for them to be uniform, because if they are uniform, you get a uniform reply."
"What sort of trial do you expect, bearing in mind who the judges will be?"
"They are judges that have not tried for many years. The Supreme Court is not a court of law, but of appeal. So it will have to speed up the trial a lot, and obviously, they will assail the defence lawyers. No, it will not be an easy trial."
"Do you think these judges might take on board even Vox's requests for the penalties that they may make in the conclusions of the trial? Or is that unthinkable?"
"We would have to ask senyor Joaquim Forn that. I say this ironically. But judge Llarena drew on Vox's request so as not to let him free. Senyor Forn is behind bars solely because Vox asked for it. In this trial, I would expect anything, and nothing good."
"Why you think the State's lawyers have accused them of sedition, if they became a party to the case on the grounds of misuse of public funds?"
"The State's lawyers have had a variable posture. They became a party on grounds of misuse of public funds, on August 8 they asked for the trial to be opened on charges of rebellion, misuse of public funds and contempt of court, and now they have charged them with sedition and misuse of public funds. For me, to go for the sedition issue is a procedural and especially legal stupidity, because the crime of sedition, by definition, is hardly democratic. But the terms in which it is described in the criminal code are very ambiguous, everything fits into it. That is to say, in Spain something called the free assessment of the evidence governs. I exhibit a piece of evidence and say that it is white, and the judge says it is grey. It is his/her free assessment, it isn't invented. He or she says it's grey. And so, as the piece of evidence is grey, they charge you with sedition. In the case of rebellion, the criminal code has some requirements that cannot perhaps be fulfilled with the free assessment of the evidence. So sedition is the trap-crime. And besides, it bears with it very high penalties. Up to fifteen years. Of course, when one is facing 25 years, fifteen seems a gift, but fifteen's fifteen, eh? A decade and a half!"
"Speaking of evidence, in the public prosecutor and the State lawyers' indictments, no misuse of public funds is shown. Is it normal for this to happen? That is to say, to push charges for crimes that cannot be shown?"
"It is not that the misuse of public funds is not backed up with evidence, it is the very State lawyers' indictment that says that the quantity misused is still unclear. But heck: if the quantity misused is not clear, what the hell are they talking about? It's as if they told you that it isn't clear whether a particular person has killed someone, but as that person isn't around, it means they are dead, so I charge you with murder."
"But without a body there is no crime."
"Yes, but as it isn't clear, we will put them on trial in any case. This is what they are doing."
"If there is no evidence, the offence of misuse of public finds will drop during the trial."
"It is an offence that may drop, we shall see. The indictment is already there, so the criterion of the Court will play an important role. In Spain, and in other legal frameworks, there exists the concept of ‘clues'. That is to say, I have no evidence of the deed, but from this clue and from that one, I deduce that the deed has taken place."
"How do you analyse the end of the investigation and the indictment text written by the Spanish government's authorities - the public prosecutor and the State's lawyers - since the PSOE reached the Government?"
"I would detach one thing from the other. At this moment in time, the Supreme Court public prosecution is not controlled by the government; what's more, they are not even controlled by the prosecutor-general. They do their own thing, this text is written in civil war mode."
"Beyond the prisoners' situation, what is at stake in this trial?"
"In this trial the freedom of expression, the freedom of assembly, the freedom of demonstration and the right of self-determination, not only of the Catalans, but of the Spanish, will be at stake. For here1 a precedent will be established that will be thrust in our face when we meet at the next corner. The message in this trial is very clear: the Head of State and the indissoluble unity of the Spanish nation are unbroachable."
"To conclude, are you prepared for new EAWs*?"
"Yes, we have always said so. And we are ready for them. Let them come whenever they like."
* EAW = European Arrest Warrant
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See also: Interview with defence lawyer Jaume Alonso-Cuevillas. 2 Nov 2018.
https://estudiscatalans.blogspot.com/2018/12/alonsocuevillas.html
Also by Gonzalo Boye:
https://estudiscatalans.blogspot.com/2019/03/watch-out-here-comes-europe-by-gonzalo.html
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