Before midday on Friday, All Souls' Day, the second act (the first was the investigation) of this trial of the political and social leaders of the Catalan independence process got under way. If not for the personal, family and country-level dramas, it would be a light comedy.
We learned at the same time of the prosecutors' accusations, one set before the Supreme Court (TS) against vice-president Junqueras, the other ministers, the Parliament's bureau and the 'Jordis', and the other before the National Audience (AN) against major Trapero and political and police Catalan interior ministry officials, it's senior leadership. A little later, the state's legal advisory service appeared with its complaint against "the pro-independence politicians", in the words of its political superior Delgado, surprisingly still a minister. The light hint of lowbrow comedy was seen coming: the prosecutors are playing bad cop and the legal service, good cop. We all know how these dead-end masquerades tend to end up.
Prosecutors have brought accusations of rebellion at both the TS and the AN. What's more, at the TS they've added in misuse of public funds and disobedience. The sentences requested, the immense majority for prison, run from an 8-month fine of 100 euros a day, for Nuet, to 25 years in prison for Junqueras. The vice-president faces the same penalty he would if he had murdered someone, and it was at least premeditated. One wonders why they want to apply the aggravating factor of diversion of public funds, defined in article 471.3 of the Penal Code (all Penal Code links in Spanish), something we'll talk about in the next article. This is the level we're talking about. You don't reach this level without effort.
Indeed, the crime of rebellion (art. 472.5 of the Penal Code interests us here) requires as its characteristic feature, as described by the language of the definition, the accused to "rise up violently and publicly" to obtain secession. Without an uprising, there's no rebellion. As we've already dealt with that topic to excess, there's no need to dedicate any more time to it.
It's conspicuous that the TS prosecutor should only once use the word "alzarse" (to rise up) in reference to the speeches by the Jordis outside the economy ministry on 20th September. They use a synonym, "levantamiento" (uprising), just once too, as they refer in passing to the events of 8th October. Of course, none of the three establishments alongside the ministry, establishments very sensitive to disruptions to public order (a pharmacy, a jeweller's and a bank office), closed before set by their opening hours. It's a rare constitutional disruption that doesn't disrupt urban life.
The crime of rebellion, as described by the language of the definition, requires the accused to "rise up violently and publicly" to obtain secession. Without an uprising, there's no rebellion
The prosecutors don't mention a levantamiento to the AN at any point and the scanty references to the synonymous alzamiento aren't made in relation to the accused. The state's lawyers don't mention levantamiento, and the alzamiento, like the rest, isn't subject to criminal evaluation, rather it's a word put in mouths of the Jordis.
Given a rebellion without uprising (as if it were difficult to find an uprising in Spain!), they are only left with attempting to fill the void by dramatising the violence. But in the penal law, "violently" and "publicly" are the adverbs which give the verb colour; they don't substitute it, nor are they an alternative to an uprising. In short, without a verb there's nothing doing.
Forcibly aware of that, all the public accusations are gesticulating wildly to hide their lack of crime. But the facts are the facts. As the high court of Schleswig-Holstein pointed out (put down in Madrid as a regional court), the process didn't see either blocked roads, nor the use of firearms, nor even tear gas, nor any other incident which would merit the description of violence, which is that force which makes the established powers capitulate (in the words of the German judges).
What, in fact, the public accusations are doing is to apply repealed law, something which openly violates the principle of legality, which, as we saw yesterday (in Catalan), is a basic right. What the prosecutors and state's lawyers are doing is to apply the repealed law on "improper rebellion" (rebellion without uprising, repealed in 1995). However much they twist or turn the violence which they can't prove, even to prove a bit of simple public disorder, rebellion remains elusive.
If the Catalan rebels had been preparing their rebellion since 2012 publicly and openly, why weren't they arrested then instead of leaving events to progress so far? Because there was never any rebellion
But it doesn't end there. Do you remember the 23rd February 1981 when the Civil Guard officers left the Spanish Congress through a side window (without handing over their weapons!) and then got back onto the buses which had taken them to where they attempted their coup d'état? Remember that? Well, what you won't remember is the punishment they were given. You won't remember it, because they weren't given one.
Without going into details about the then current military justice code, still Francoist, when the rebels changed their attitude, they were rewarded with minor sentences and the mere executors, that is, the Civil Guard officers, went home unpunished. A good incentive. If you don't open fire against loyal troops (they opened fire to intimidate the Congress, where you can still see the bullet holes in the debating chamber ceiling) and withdraw, you're given the same treatment as a fleeing enemy, they clear the path for you.
In other words, despite the institutional crisis, applying principles of opportunism and prudence, the lesser evil is opted for and rendition is enough. But not only is the law happy with the majority of the insurrectionists having their tails between their legs. They're also fine with it from the leaders of the insurgency. For that reason, they demand they change their attitude. If they listen to reason (we have many historical examples), the leaders of the revolt see their punishments reduced. That's what's described in articles 479 and 480 of the Penal Code, which apply to both rebellion and sedition (article 549).
Now let's compare. On 23rd February, a true rebellion, and a military one at that, the majority found themselves enjoying impunity or very diminished punishment due to their behaviour: change their attitude after being required to. In Catalonia last year, nobody required those fancifully seen as rebels to desist from their actions. Result: a consummated military rebellion becomes, for the majority of its participants, a bad night, because they were demanded to abandon the crime once it was already in progress and they were given the chance to think again. In Catalonia, in 2017, there was no kind of requirement, despite there being no weapons nor any occupation of the institutional headquarters of any body. The legitimate question arises immediately: why? The answer is quite simple: there was no demand, because it wasn't a rebellion. That's the way justice works, and it's not precisely poetic: a military rebellion which was actually perpetrated ends up with ridiculous sentences and the more than possible punishment of a civil non-rebellion, without arms or significant disturbances, will be unjustified sentences, inappropriate for what happened.
Now, postmodern rebellion, they say, turns out to take place without an uprising and without conspiracies in dark, hidden rooms
Finally. If, as the prosecutions say, the Catalan rebels had been preparing their rebellion since 2012-2015 generally publicly and openly (as the accusers recognise), why weren't they arrested then instead of leaving events to progress until, in the imagination of the accusation, it was consummated? A legitimate question with a similarly direct answer: because there was never any rebellion.
How can there be a rebellion where the plans (demonstrations in the streets, parliamentary bills, government agreements, laws, etc) are known and for the simple reason that they're made in the light of day and not clandestinely? Now, postmodern rebellion, they say, turns out to take place without an uprising and without conspiracies in dark, hidden rooms. Perhaps. But the Penal Code, the Penal Code of the system itself (not that of those who some call rebels) doesn't talk about such innovative manoeuvres. As such, they should be unpunished.
And they should be unpunished because, as is made patently clear by the authors of the penal articles in question and in the record of parliamentary debates, peaceful secession, that is, without a public, violent uprising, stopped being a crime in Spain with the 1995 Penal Code.
Furthermore: illegal referendums aren't a crime either. When Aznar tortuously pushed through the punishing of illegal referendums (Organic law 23/2003), it was because his palace lawyers couldn't find a penal response in the legislation of the time (identical in this aspect to current law). When Organic law 2/2005 repealed the punishment for illegal referendums, such actions not involving, according to the law's own reasoning, enough weight to receive criminal sanction, the situation reverted to what it was previously.
Or in other words: passing laws to vote on eventual secession in a referendum was only a crime between December 2003 and June 2005, a year and a half, but not before nor since. What wasn't a crime before December 2003, now the change to legislation has been repealed, cannot be a crime since June 2005. The legal situation before and after this penal tunnel was identical. But the accusations aren't talking about that.
(To be continued)