Let's continue with yesterday's column. Now we have to look at the actions of the state's lawyers. First of all, we have to ask what they are doing in the trial over the 1st October referendum. They are a peculiar private accusation (acusación particular), since they represent an individual victim, the state as a legal entity. As such, it's very debatable whether they can exercise, beyond the defence of the state's own interests, penal actions as a popular accusation (acusación popular), in other words, of the physical person not directly harmed by the crime (an Hispanic speciality completely exotic in comparative law). That it should do so to a greater or lesser extent doesn't stop it being questioned.
In the referendum trial, the state's legal service appeared in the case of the charge of misuse of public funds. Then, when it came to presenting its provisional conclusions, it also included charges of sedition and disobedience. In other words, it's increased its sphere of activity, precisely the opposite of what the official propaganda says, boasting of a reduction in the sentences being asked for.
Simplifying things and focusing on the misuse of public funds, can the state's lawyers file such a complaint in this case? My understanding is that it can't. The reason: if this crime had taken place, the victim would have been the Catalan government and not the Spanish state. The Catalan government hasn't said a peep on the matter, something which it could have done whilst under direct central control via article 155 of the Constitution. You can't say that the Spanish state and the Catalan government are the same, that the Catalan government is the Spanish state.
Mere observation shows us the opposite: the Spanish state and the Catalan government are different legal entities, with their own legal identities and disparate interests. The state's lawyers, like the Catalan government's lawyers, are, so we're clear, in-house lawyers: one house is called the state (or central government if you want), and the other, Generalitat.
Can the state's lawyers file such a complaint in this case? My understanding is that they can't
It's not worth arguing that, in the case of misuse of public funds in the Catalan budget, the public funds which would have been affected would have been the state's, essentially via the FLA (Autonomous Community Liquidity Fund). What the FLA does is set up lines of credit for the autonomous communities. Like any form of credit, the money, when it's delivered, becomes the property of the borrower, in this case the Catalan government.
Exactly like the money we receive from a bank. Likewise, the money becomes the property of the recipient of the loan and the bank, the lender, loses ownership and only has a right to credit, in other words, to claim against the borrower when they don't pay back the money they owe on schedule as agreed. That the Spanish government should control the Catalan government's finances doesn't make it its owner, like creditors aren't the owners of a company in difficulties that they're funding.
As such, the public funds have an owner, a specific public authority, which has them in its safe, wherever they come from. The transfer of money, given that it's something movable and fungible (mueble and fungible - excuse the technical terms), implies the transfer of its ownership. That's from the first year of a Law degree.
If the Catalan government's coffers are fed by transfers, the result is the same. And if they were state subsidies, the situation would be the same. Subsidies, of whatever kind, swell the recipient's account and create an obligation to carry out determined targets. As happens with scholarships, which are a subsidy, the recipient becomes owner of the capital of the scholarship and is obliged to use it for the ends it was granted for, but the subsidiser has lost their property.
As such, the appearance of the state's lawyers as representatives of the victim (the state) is more than debatable. We still have more suppressive contradictions to see!
it's absolutely unheard of that neither the prosecutors nor the state's lawyers should ask for the return of the corresponding amounts, nor any kind of civil responsibility for the alleged crime
Let's focus on misuse of public funds in the strict sense. Apart from very important technical, legislative problems, as this accusation (and the prosecutors) say, no expense is confirmed, rather the existence of invoices and orders (we'll see what and how legitimate). It's curious that no expense has been confirmed, that is, no actual provision of money. It's curious that the previous treasury minister, as is public and well-known, said that nothing was paid towards the referendum, something which Montoro knew perfectly well, given that the Catalan government's accounts were under audit. And it doesn't end there: they've presented a pile of invoices from after 27th October, when article 155 was already in effect!
Last but not least, there's no report in the court documents from the state's general inspectorate, rather it's the opposite: there exist certificates from state and Catalan bodies denying spending. What there is in the case is a compilation of invoices made by the Civil Guard, a police body without the technical capacity to report on matters of high public finances. This would be the first time! In any case, the requested sentences are not light: seven years for this money which wasn't spent.
The matter, however, doesn't end here. If we have found ourselves with cases of money which wasn't approved and ordered, it's shocking, and absolutely unheard of, that, neither the prosecutors nor the state's lawyers should ask for the return of the corresponding amounts, nor should they ask for any kind of civil responsibility for the accused (to compensate the victim) for the alleged crime. The final and real value of the final distraction they leave to the future, something unheard of. So we have a misuse of public funds in which nothing has been entrusted to the public budget. It's a strange charge and strange principle of legality they're using, the public prosecution service and the state's legal service.
It has to be a colossal alteration to public order, far beyond a little public disorder
On disobedience, a more complex topic technically, despite its relative irrelevance (it presents no threat of prison - link in Spanish) in light of the other charges in play, a bit of fine-tuning has to be exhibited. The supposed orders come from the Constitutional Court (TC). Whatever you say about both the TC itself and the Supreme Court (TS), the TC isn't strictly speaking a court of justice. Like the Court of Accounts isn't. Two signs: the TC isn't within the Judiciary (Poder Judicial), it's a fourth power, and is served by magistrates who don't have the status of judge. For example, its members can be members of political parties, something which is strongly prohibited for judges and prosecutors. Currently, there's no reason to linger on this question of profound legal-constitutional implications which aren't always clear and peaceful.
We're left with sedition. This infraction, since 1995, has been an infraction against the public order. It has to be a colossal alteration to public order, far beyond a little public disorder, given that the punishment for sedition (article 545 of the Penal Code - link in Spanish) is for between 10 and 15 years in prison for those considered leaders. Likewise, the alteration of public order has to mean a radical fracture in public harmony, not just disturbances which are more or less violent, that the actions of the police restore by themselves.
Not only does sedition have to involve an essential fracture in social harmony, but the means used to carry it out have to be radical. Again, we find ourselves needing an uprising as the guiding and indispensable action for this charge, an uprising which has to be public and tumultuous. Without an uprising, there's no sedition. As we saw yesterday, the state's lawyers haven't found an action they can describe as such. They're focusing on aspects they consider to be violence or tumult, however, given the legal construction, it cannot lead anywhere. We thus return to the same problem as with the charge of rebellion: tumultuous is the adjective describing the action; without the action there is nothing of criminal significance. You can mull it over all you like, stretching at will exaggerated, baroque and even false language: the accusation doesn't identify a single seditious action.
However, quite certainly, it won't be that easy.