José Antonio Martín Pallín (La Coruña, 1936) is a judge emeritus of Spain's Supreme Court, for which he was also a prosecutor. He has played all the judicial roles in his career, and is now a lawyer. In the Supreme Court's criminal section, he coincided with judge Manuel Marchena - of whom he has a very good opinion. In the trial of the Catalan pro-independence leaders, he says, Marchena is managing a political conflict that should not have come into his hands. He confesses that the current judicial process in itself seems very "boring" to him.
The prosecution has it very difficult. The real story is what it is. You don't need to find someone's diary to know that people got together to hold a referendum. It was all public.
Why do you see it as "boring"?
In the sense that everything is very clear. On October 1st, there was violence. From the police. And there was, to be accurate, resistance from those who wanted to vote. But much less than there was with the miners, the Puerto de Santa María shipyards and thousands of places across Spain...
Not the "violence" that the offence of 'rebellion' requires...
Exactly.
What is your assessment of these first four weeks?
First of all, it's a trial that should have been avoided. But since it reached this point, it was necessary to hold it. And in terms of the formalities of a courtroom trial, it's being conducted correctly. But, another thing is that - and this shows a lack of a democratic culture and even professional ethics from many people - conclusions could be drawn from witnesses. In the UK this would be unthinkable. We have seen some really grotesque things in this two-bit country of ours.
How do you see the role of the public prosecutors?
The prosecution has it very difficult. The real story is what it is. It is not what the Civil Guard says, but rather what's on television. You don't need to find someone's diary to know that people got together to hold a referendum. It was all public. The Constitutional Court, when it invalidated the referendum law, spoke of a roadmap. There is nothing conspiratorial, or carried out from deep in the shadows. It's all a fable. It leaves me bewildered.
You were a prosecutor...
I was a prosecutor for twenty years... And people are [being questioned] in a very deceptive way. The presiding judge should be paid overtime, because he is having to intervene more...
A member of the Civil Guard who leaves a weapon in a car could face a court-martial
The examinations of witnesses deserves a chapter on its own.
The examinations seem useless and intended to deceive. They make no sense. This was best showed up by Jordi Sànchez's statement, when they were persisting in the question of the Civil Guard vehicles, and [other issues at the September 20th protest outside the Catalan economy ministry]... In the end, Sànchez said to them: "Look, everything was recorded by cameras, internal and external". Why waste four hours when you can just look? I wish I had had those possibilities in my time.
The origin is the prosecutor's narrative...
Their story is that of the Civil Guard. And they have raised something that is a case of disobedience, or refusal to submit to a police operation, to the category of rebellion. But this has happened in the past, it happens now and will continue to happen in Spain. If we had France's 'yellow vests'... it would be a triple rebellion!
The only elements of "violence" used were the Civil Guard cars and the weapons left inside them.
It seems very weak... By the way, what they don't know is that a member of the Civil Guard who leaves a weapon in a car can face a court-martial, if we are to get formal and 'exquisite'. You can't abandon a weapon in those conditions. Abandoning a military weapon means facing a military court.
Apart from the violence, the defendants themselves have recognized that the declaration was symbolic.
They don't have to recognize it! The criminal code, which has been in force since the end of the Franco era, says that laws come into force after their publication in the official state gazette. And [former deputy PM] Soraya Sáenz de Santamaría herself recognized that it had not been published.
If we had France's 'yellow vests' in Spain... it would be a triple rebellion!
So, they haven't been able to prove the rebellion charges?
The criminal code, in the terms it uses, speaks more or less of the Tejero scenario in Congress [referring to the 1981 armed coup attempt in Spain]. Connecting what Colonel Tejero did with "twenty-first century rebellion"... criminal law does not allow such elliptical constructions. Criminal law is the same in both the 20th and 21st centuries.
And the sedition charges?
Sedition could be constructed... But from what I've seen, partially, in the videos of the Catalan economy ministry, it doesn't look like sedition to me. Not even public disorder. And in any case, our sharp-minded national observers have not realized that, if there was any sedition, the only authors of it would be the Jordis, Sànchez and Cuixart. But I reject that there is.
And the misuse of public funds?
After listening to [former Spanish treasury minister] Montoro, it seems to be very forced. Documentary proof would be this: accounting item A was used for purpose Z. And I haven't seen that the prosecutors have produced any documentary proof. In any case, there is misuse of funds in the lengthening of this trial. We are all paying for it in an absurd way... and that costs a lot of money!
Is it a political trial?
Of course. The conflict in Catalonia is a political conflict. And there were two ways to deal with it. One, which I believed was correct, was through the appeals to the Constitutional Court or even the application of article 155 (over which the Court still has an appeal pending). And the other way is this.
How is Spain's democracy looking in Europe with a trial of this type?
Looking very bad. And the proof is what happened with Belgian and German justice. They can't even conceive that a parliamentary and governmental activity, which is annulled constitutionally, should be criminalized. The Catalan Parliament's lawyer was very clear in his warning that it couldn't be carried out. Yet despite this, he said afterwards that there was no rebellion or sedition.
Has the trial worsened the retreat of rights and freedoms? I'm thinking of freedom of expression when prosecutions are based on tweets and protests...
Yes. But in this regard the Catalans don't have exclusive rights! [laughs] In Spain's 'Gag Law' there is a tendency to criminalize dissidence and protest, which in any democracy manifests itself as the right to protest, to assembly, to expression...
Spain's democracy is looking very bad with a trial of this type. The proof is what happened with Belgian and German justice
How do you rate the performance of judge Marchena?
He's faced a situation in which he has to deal with a very complex trial. Not only because of the material, which is of great political importance, but because of the scale. There are 500 witnesses, three prosecutions... But from the point of view of directing the courtroom debate, he's doing well. Sometimes, out of necessity, you have to intervene too much. It's inevitable.
Do you understand why the Supreme Court vetoed the presence of international observers?
In a trial of these characteristics, if I had been the presiding judge, I would not have had any objection to them taking a place in the court... I would even give them a preferential place.
In other cases, has access been allowed?
I was at the Segundo Marey trial [1990s case related to the Spanish state's dirty war against the ETA terrorist group] and I don't remember that there were any international observers...
Why do you think obstacles were put in the way?
Maybe the point is to show that in Spain, formal procedures are respected... It's an opinion. But I would not have minded at all [giving the observers a space].
And more so when half of Europe has an eye on what is happening...
Yes. Obviously, they won't follow the whole trial, but the case will again have a significant dimension when the phase of the documentary evidence arrives. And when the final reports of the prosecutions and defences appear, and when the defendants have the opportunity to give the last word, at the end of the hearing.
Have you seen any violations of the right to defence?
From what I have seen, no...
And the preventative prison isn't a violation either?
That's another thing altogether! It was agreed to by the judge in the investigating phase and I find it completely outside the law.
Does it affect the right to defence?
In a way. It's not the same to prepare a defence when you are at liberty as to do so in jail. That's true.
You've criticized the position of defendants not responding to Vox [who are conducting a private prosecution]...
From the first day I've said that this was an error... It would have been a mine, in terms of demonstrating the politicization of the case.
But isn't it anomalous, the presence of Vox?
Well, the Spanish institution of the private prosecution is unique in judicial systems close to ours. But I think it should be maintained, except that political parties shouldn't be allowed to exercise it. For certain groups it makes sense, but not political parties.
It's not the same to prepare a defence when you are at liberty as to do so in jail
You say that there's no point in lengthening this trial. Do you think the verdict could already be drafted?
With what we already have, I think it could be drafted.
Not guilty?
I have already formulated my own conviction. At most there is one formal offence, that of disobedience, which has the precedent of the 9-N [Catalonia's 9th November 2014 independence consultation]. I didn't agree with that judgement, and three other Constitutional Court judges didn't either and they voted against it.
With the narrative that the Public Prosecutors have built up, and with the position that they have maintained during these weeks, do you see that there is margin for the prosecutors to reduce the charges and sentences they are calling for?
I think so. Observers, with whom I disagree on many aspects, also support the thesis that the rebellion thesis is dissolving.
How do you see it that the Supreme Court is having to do this dirty job?
Well, they are doing a job which is contrary to criminal legality. That's why I raise the great incognito that, if the Spanish government chose to take the route of article 155, who gave the order to the Chief Public Prosecutor to file these complaint. It's an unknown question, whose answer we may be given one day soon.
Do you have any suspicions?
No. I can imagine where it could have come from, but it is so serious and of such importance... By the way, let's not forget that the public prosecutors consider the [lower-ranked] National Audience court to be competent [to judge this case]. The Supreme Court has been ruled as competent in this case on a somewhat grotesque basis, by saying that the ballot boxes were obtained from abroad.
If you were in the courtroom today, what would you say?
My position is very clear, and it's built on a certain legal solvency. I would raise the question of disobedience as the only point of definition.
After the trial everything will be more complicated...
Of course. It's doing irreparable harm to what has always existed since the times of [Spain's Second] Republic and even before: the Catalan conflict. Azaña, Ortega, Unamuno they all spoke about it... It isn't something that Mr. Puigdemont invented. Our press, which is so peculiar, even considers him to be Marxist-Leninist. And it turns out that he's quite right-wing [laughs].
What role has the press had in this whole story?
Well, it hasn't helped to disactivate it. I would have liked the media to have followed a very critical line, highlighting the incongruities and inconsistencies... In the end there are two million Catalans who are very clear about it, and others who are not pro-independence but feel offended about what is being done to their political representatives.