The court calendar is what it is. And accordingly, it is a question of just a few days or even hours until the Supreme Court verdicts become public. Tuesday October 15th is the anniversary of the execution in 1940 of Catalan president Lluís Companys - a date to be avoided - and then on Wednesday 16th, the maximum legal term (although extendable) of two years of preventative prison expires in the case of the Jordis, Sànchez and Cuixart, and thus the criminal law chamber of the Spanish Supreme Court, presided over by Manuel Marchena, set the first fortnight of October as its deadline. The verdicts and sentences - all announced at the same moment under the Spanish legal system - of the most important trial under post-Franco democracy, which could be a very heavy blow for a great part of Catalan society, are about to be delivered.
The political context that surrounds this moment is undoubtedly exceptional, even when seen in isolation from the electoral calendar that is just ahead. The atmospheric tension in the Spanish capital is very high, especially with regard to the response of the independence movement, and the Democratic Tsunami protest platform, to the decisions. And right in the middle of it all, there has been the imprisonment of seven CDR activists accused of terrorism, which has stoked up the narrative of violence, the violence that the offence of rebellion requires by definition. As in the times of the Basque terrorist group ETA, acting prime minister Pedro Sánchez, who speaks more about applying article 155 than about dialogue, raced in to demand that Catalan president Quim Torra declare his condemnation for an alleged incipient terrorism in the Catalan independence movement.
With this scenario before us, ElNacional.cat has spoken to three legal experts to analyze what might come out of the Supreme Court and, also, what comes next, in both legal, and above all, political terms. "We have before us government by judges," was the warning given recently by José Antonio Martín Pallín, the Supreme Court judge emeritus who shared the courtroom corridors with Manuel Marchena.
What can be expected - in terms of verdicts and sentences?
Looking into the crystal ball is, of course, fraught with dangers. Joaquín Urías, professor of constitutional law at the University of Seville, warns that "any prediction will get it wrong". Of course, he has an intuition of how the blows will fall: an "intermediate verdict" that will not seem too harsh nor too lenient. "There will be no conviction for rebellion and the sentences will be around seven years in most cases," predicts the ex-legal counsel to the Constitutional Court. What he is clearest about is that there will be no acquittal: "That's impossible when they have been in custody for almost two years now. It has to be a tough sentence. If not, it is impossible to justify before the world." After attending sessions of the trial at the Supreme Court in Madrid, he says he cannot conceive of how the court could argue that they are guilty of rebellion.
Mercè Barceló, constitutional law professor. Photo: Sergi Alcázar
Along the same lines, Mercè Barceló, professor of constitutional law at the Universitat Autònoma de Barcelona, also points to the deprivation of the defendants' liberty over these last two years as an indicative element. "When we are just days from the expiry of the legal limit for preventive prison, I don't expect any acquittal. I expect a condemnatory sentence of many years jail. If not, these people would be on the street now. Either that, or they are playing a very sadistic game of punishing people," says the lawyer, who also kept a close watch over the trial.
Judge Montserrat Comas, spokesperson for the group Judges for Democracy in Catalonia, sees it as unwise to make any predictions about the decision. "Certainly it will be very powerfully argued, it will be very long and will have to address many aspects," says the judge. "It has to resolve legal issues for which we have no precedents. The only precedent that we have of rebellion in Spain is that of Colonel Tejero," she adds, referring to the 1981 coup attempt. She does consider that the provisional prison which the defendants have served is "indicative that there will probably be guilty verdicts", but "that does not necessarily mean they will be convicted of the most serious offence of which they are accused." She doesn't close "any door".
And if they are guilty of rebellion, what then?
"If there was no uprising nor any violence, I cannot imagine the amount of twisting of reality they would have to do [to convict for rebellion]," admits Mercè Barceló. She sees neither rebellion, nor the alternative charge of sedition, nor the third accusation of misuse of public funds. At the most, there was disobedience [of court orders], and even that, only in some cases. "If they condemn them for these [more severe] crimes there will be a flagrant breach of the principle of reality, because they will have to invent a narrative," she adds. In spite of everything, the university professor denounces that in the trial "they were unable to defend themselves" because "they weren't even able to counterpose evidence with the videos, the strongest evidence."
Joaquín Urías does not want to even consider a scenario of convictions for rebellion. The constitutional lawyer also sees it "very difficult" to justify, because "the whole State would then be putting itself into a conflict". In that regard, he notes that eyes of the international community are watching. "For them to be found guilty of rebellion for going out onto the street, for a protest that was much more peaceful than many others have been, is very difficult to accept," says the lawyer.
Joaquín Urías, former legal counsel to Spain's Constitutional Court. Photo: Sergi Alcàzar
Montserrat Comas also shuns this scenario. "As a lawyer, I have never concealed my view that the events that took place in Catalonia, serious though they were, are exceedingly difficult to categorize as rebellion, which requires an uprising and one that is violent," argues the Barcelona Audience judge. "That didn't happen in Catalonia," she adds. Certainly, the "ambient violence" of which the prosecution cases spoke would create jurisprudence.
Will the impact be greater than that of the Statute?
There is a precedent for a relatively recent court ruling that led to a great political earthquake: the Constitutional Court ruling on Catalonia's Statute of Autonomy, in 2010. Since then, nothing has been the same. Will the fracture this October be worse than that? "I think so, it will be worse," responds Mercè Barceló. First of all, because there are people in prison and therefore emotional consequences. Secondly, because the Constitutional Court's ruling was a more complex legal discussion, and that of the Supreme Court is totally political. "We were all there on 1st October. We can all deny the acts that they have been charged with. Emotionally, when you can see that they are trying to take you for a ride, the feeling of injustice is much greater."
Joaquín Urías begs to differ: he doesn't believe that the impact of these sentences will reach the same level because at no time will the surprise factor enter into play. "Everyone has come to the conclusion that the sentences will be harsh. It will not catch anyone unawares," argues the University of Seville professor. On the other hand, there were people who did not expect the ruling of the Statute to take the form it eventually did. However, Urías does predict that even people who are not pro-independence will mobilize if the sentences are very harsh.
And what happens afterwards?
With the verdicts and sentences, the judicial problem "disappears", but there will continue to be another conflict on the table: the political one. All the legal experts consulted agree on this. "Judges, prosecutors and police are the last resort for resolving conflicts that occur in society," argues Judge Montserrat Comas, regretting that it has got to this point. And she gives a warning about the immediate future: "We must not put the word dialogue to one side. Not only as a word, but as a real space where political forces and governments put it into practice. "
Montserrat Comas, judge of the Barcelona Audience court. Photo: Sergi Alcàzar
Joaquín Urías agrees in this diagnosis. "The only way to repair it is by returning to politics. This cannot be resolved in courtrooms," says the jurist, who gives a suggestion for what the path should be. "Both political and personal solutions must be sought for those found guilty." This will happen, probably, through pardons. Of course, the path will be long and tortuous: "There will be no pardons without a prior political solution, without a political agreement. They will have a political cost for the government that agree to them. They won't be given without something in exchange."
What about the exiles?
With the announcement of the Supreme Court verdicts, twelve defendants will have been tried. But there are still seven left: the exiles Carles Puigdemont, Marta Rovira, Lluís Puig, Toni Comín, Clara Ponsatí, Meritxell Serret and Anna Gabriel. Judge Pablo Llarena has already opened up the drawer of the European Arrest Warrants to reactivate them. Will he be more successful this time? Here there are more discrepancies between the experts.
"Yes, undoubtedly," Urías says. According to the University of Seville professor, when a conviction has been given, "it is more reasonable to ask a foreign court to send Puigdemont to Spain" and "it is much easier for it to succeed", unlike the previous attempts.
"No, it's irrelevant," responds Mercè Barceló. The UAB professor says that "justice outside Spain has proved to be independent" so far. She even believes that the fact of convictions could be detrimental to Spanish justice and could reinforce the arguments of the exiles, given that "all of the [foreign] courts that have already given rulings have said that the offences of which they are accused did not take place."