I've started with a very direct title, to the point. Why? It's very simple. None of those in prison over the independence process nor any of those in exile, as the jurists know, has committed any of the crimes they're accused of. They can twist and turn it as much as they want, but there's neither rebellion nor sedition (which require a public uprising, which has never existed), nor misuse of public funds, which the treasury (remember Montoro's words), despite exhaustive checks, has never seen.
Therefore, keeping the prisoners in prison for a single minute longer goes against all legal logic and against the most basic fundaments of the rule of law. This release has to be agreed as soon as possible, without delay.
Once they're out, the case for the mentioned crimes has to be archived. It's not asking for forgiveness or clemency. It is, with no kind of mental block, an imperative of justice. If there's no crime, neither imprisonment nor a trial makes sense.
That, for the central authorities (all kinds of authorities) will be hard to swallow. More difficult to swallow is the current situation for those directly affected, their families and their followers. Practically half of Catalonia. Because no democrat, however much they disagree with independence, would plan to punish with the trial of the independence leaders half a people, really, in fact, a whole people, right?
In any case, it was the central authorities with machinations, with no factual nor legal basis, who delved into a labyrinth created by their own bad faith. It's up to those authorities to make a move in the right direction.
Who can make this move and so start to end this nightmare and give way to politics? The Spanish government. Sánchez has two options: to go down in history as Rajoy's successor, as mediocre, authoritarian and unimaginative as him, or take a politician's leap, seize the bull by the horns and make headway to resolving Spain's most serious institutional problem since 1936. How does Sánchez want to go down in history: as a bad copy of Rajoy or as a politician in the style of, for example, Pierre Mendès France? It depends on him. It needs bravery, but it depends on him.
How? By activating the public prosecution service which depends on the government. I won't enter into the fruitless and calculating controversy about the (non-existent) independence of public prosecutors. A public prosecutor is not a judge and, as such, doesn't have to be independent. They're the executor of the criminal policy of the government before the courts in each situation. In places as unsuspected of democratic weaknesses as the United States or United Kingdom, the attorney general sits on the cabinet. In Spain it doesn't go that far, but, as a good demonstration that they're not independent of the government, the attorney general leaves office when... the government leaves office. Nothing more needs to be said.
All negotiations mean giving some things up, for the short-term or for good, they mean many twists and turns
Leaving aside the recantation of the independence of the public accusation, it's the government itself that has to take first the political decision to release the prisoners and then archive the case, giving public prosecutors the appropriate instructions. If they do it directly, by giving support to petitions from interested parties or at the request of foreign authorities, doesn't matter. True there are two acusaciones populares1, VOX2 and a kind of crowd of police unions. There are plenty of legal ways and means for them to collaborate legally and loyally in the fair administration of justice. With the accusations withdrawn, in virtue of the constitutionally-defined accusatory principle, no court, but no court can proceed against anyone.
It's a question of, first, the public prosecution service and the other accusations not opposing the prisoners' release. Secondly, that the accusations are withdrawn, whether with a one-line ruling or by not opposing the defendants' petition to archive the case. Repeat with the exiles.
That it's difficult for the Spanish state to swallow this pill is clear. But here lies the nobility of politics. They're playing with some cards in their favour: the international sympathy Sánchez's government has created and that which this measure would create. And not only politically: it would demonstrate the strength of the system -burying family demons- and would create trust everywhere.
Moreover, it's not this government, however much some of those today sat in the cabinet take pleasure in the current situation and share their predecessors' designs, I repeat, it's not this government which set underway the current cruel and unjust procedure, which, what's more, nobody abroad buys. All of this should motivate an intelligent and daring politician.
If Sánchez's government doesn't take decidedly unequivocal steps in favour of the release of the defendants and the filing of the case, it could find its work of governing grind to a halt, due to the impossibility of passing any bill: it'll always lack the votes of the pro-independence deputies and senators; and, almost certainly, still others.
Is that blackmail? Absolutely not: it's pure political negotiation. Democratic politics is based on agreements. With no agreement, as we know perfectly well from the experiences we're living through, there's no politics.
When you use sincere dialogue to reach lasting agreements and the negotiators start from very distant positions, however, the dialogue is longer and agreement more difficult. If Kissinger and Lê Đức Thọ reached the Paris Peace Accords, after four years of interminable conversations, their troops fighting in the field, what cannot happen here with the radical absence of violence?
All negotiations mean giving some things up, for the short-term or for good, they mean many twists and turns. Once reached, however, an agreement means more democracy and prosperity. Who doesn't want that? Does the guy that wants to reform the Penal Code (without having many other ideas) to introduce "improper sedition" (surely meaning improper rebellion) and the criminalisation of referenda want that?
It's necessary to know when there's another party to speak to and when to give them the necessary push (and be prepared to receive pushes) to reach an agreement. In any case, the prisoners and the filing of the case for non-existent crimes are not part of the negotiation. It can, however, be incentivised by the Congress and Senate with the decisive votes of the pro-independence deputies and senators. That's politics, the good type.
Translator's notes:
1. An acusación popular, in Spanish justice, allows for the public to participate in legal proceedings to defend the law, without demonstrating direct personal harm from the actions under investigation.
2. VOX is a far-right populist party formed in 2013.