Put the separation of powers into effect. That is the demand made by the lawyers defending the four former members of the Catalan Parliament's Bureau, chaired by ex-speaker of the house, Roger Torrent, who began their trial in the High Court of Catalonia (TSJC) this Wednesday, accused of disobeying the Spanish Constitutional Court by permitting the Catalan chamber to debate two resolutions, one on Catalan self-determination and the other a rebuke of the Spanish monarchy, in 2019. Andreu Van den Eynde, Torrent's lawyer, appealed to the court, presided over by judge Carles Mir, to declare the procedure null and void due to the parliamentary inviolability of the defendants and, thus, to make the separation of powers, a key element of democratic government, into something that really applies. "What penal system are we defending if the legislative branch of government can be overruled by the judicial branch?" he asked. The same call was echoed by Olga Arderiu, defending the former second secretary of the Bureau and mayor of Sant Vicenç de Castellet, Adriana Delgado, who also indicated that her client had not been questioned about a part of the accusation. Jordi Pina, lawyer for the former first secretary and current secretary for the Administration of Justice, Eusebi Campdepadrós, invoked a violation of the right to the judge predetermined by law, since Campdepadrós ceased to hold MP status in the summer of 2021 and therefore should be tried in a criminal court and not in the TSJC. Finally, the former deputy speaker of Parliament - Josep Costa - who sat at the lawyer's bench and wore a gown, because as well being accused, he is defending himself - claimed the "radical nullity" of the procedure, since he considers that the TSJC "has no jurisdiction, no competence and is not impartial".
Before considering the preliminary questions, the public prosecutor requested the suspension of the hearing until chamber 77 of the TSJC resolves the appeal it presented last week against the acceptance of the recusal of judge Carlos Ramos, requested by Costa. All the defence lawyers asked for this last Friday, while the prosecution did so at the beginning of the trial, which is the correct moment procedurally. However, Costa accused the prosecution of "procedural bad faith" because Ramos's recusal was accepted at the beginning of August and not until the end of September did it present an appeal. The second surprise from that part of the court was when the prosecutor José Joaquin Pérez de Gregorio expressed that it was a "hoax" to say that the trials of Catalan independence activists and politicians, like the trial of the four Bureau members, will be removed from the courts, and he complained of the delays to this trial, despite the fact that his colleague asked for its suspension. In addition, all the defence lawyers requested the withdrawal of the private prosecution being conducted, as in some other trials of pro-independence figures, by the far-right political party Vox. Tomorrow, Thursday, the court will respond to the demands made by the parties, although it stated that it will give its reasons in its final judgment.
"Strasbourg will not tolerate it"
In the preliminary questions, lawyer Andreu Van den Eynde invoked the fundamental rights of the freedom of expression and political participation that protect the actions of MPs and members of the Catalan chamber. And he expressed his regret that since 2017 and following the start of the Catalan independence cases, "the rules of the game changed" and the Constitutional Court changed its previous doctrine on parliamentary inviolability. The lawyer added that even the judge Ramon Sáez Valcárcel in his minority opinion on the Forcadell case and the independence process warned that "we have made parliamentary inviolability disappear". Van den Eyde said: "Debates on independence and the monarchy are matters of public interest. The Strasbourg Court will not tolerate this crime of disobedience", referring to the European Court of Human Rights (ECHR). On the contrary, the prosecutor José Joaquín Pérez de Gregorio gave the view that the MPs are not being tried for their political positions, but for having disobeyed the Constitutional Court in the Bureau's "organizational processing", and "allowing prohibited actions", following the same reasoning as for the conviction of the defendants' predecessors, the Catalan MPs who sat on Parliament's Bureau in 2017, tried by the TSJC, with its judgment endorsed by the Supreme Court and Constitutional Court.
For his part, Jordi Pina denounced the "legal uncertainty" generated among the accused due to the changing criteria of the courts on the partial protection status afforded to them as MPs, which determines the court that have to be tried in. He recalled that the Supreme Court agreed to try Joan Josep Nuet separately in the first Bureau case, as he had obtained the status of MP in the Spanish Congress, as was also the case with Francesc Homs, over his trial for Catalonia's unofficial 2014 referendum, but there was no clarity when defendants lose their status as MPs, as is the case of Eusebi Campdepadrós in this current trial.
Costa's challenge to the TSJC
For his part, Josep Costa, in a firm tone, issued a "challenge" to the TSJC to demonstrate that it is "independent and not bound to the resolutions of the Constitutional Court", noting of this latter court that "it is both judge and party in the procedure", since it initiated the complaint against them. Costa defended the parliamentary inviolability of the four defendants: "It is not we four who are on trial, but the parliamentary actions that we took." He also asked the court to show him a case, from a democratic state, "and Turkey doesn't count" - he said - in which the representatives of a parliament are tried for exercise their normal functions. He recalled the jurisprudence of the Atutxa case, of the ECHR and even a recent case in the US.
Finally, Costa denounced the violation of his fundamental rights, as he read a motion passed by a majority in the Catalan Parliament in 2017, which more explicitly condemned Spain's Bourbon monarchy and Franco's legacy, which was not denounced by any government or court, and of which he has confessed that he was the ideologist and writer. "The resolution for which we are being tried now is more symbolic. And the reason is that Pedro Sánchez didn't want us to spoil his campaign", replied Costa. The presiding judge of the TSJC then asked him to end his intervention after allowing him time to set it out well.
The charges in the case: the Spanish public prosecutor accuses all four MPs of a crime of disobedience of the Constitutional Court for maintaining on the parliamentary agenda on October 29th and November 5th, 2019, resolutions of the three pro-independence parties in the Catalan Parliament that reaffirmed the right to self-determination of the people of Catalonia and the right to make "rebukes of the monarchy as many times as the MPs want". For Torrent, Costa and Campdepadrós, he asks that they be punished with a 20-month ban on holding public office, and a fine, while for Delgado, a 16-month ban. The defence is asking for their acquittal.
Thursday, day of witnesses
The second day of the trial on Thursday will focus on the testimony of witnesses, who are politicians and officials in the Catalan chamber. They are: Joan Garcia González, deputy of Ciudadanos and third secretary of the Parliament Bureau in 2019; David Pérez Ibáñez, deputy of the PSC and second secretary of the Bureau in 2019; Laura Vilchez, former deputy of Ciudadanos, who took the place of her colleague Garcia; Xavier Muro, former secretary general of Parliament; Joan Ridau, former member of parliament; Antoni Bayona, former senior lawyer of the Parliament, and Elisabet Riambau.
