The criminal chamber of the Spanish Supreme Court has issued a 32-page document in which it explains the evolution of the crime of terrorism in the Spanish state with the sole purpose of defending the indictment of the Catalan president in exile, Carles Puigdemont, in the investigation of the Tsunami Democratic protest platform. In the resolution that it released this Thursday, the judicial position is, to say the least, remarkable: the Spanish high court admits that Puigdemont did not take any specific action or give any order that provoked rioting, and for this reason he is included in the case not for his action but due to his "omission": for failing to use his "charismatic support" to order the halting of the protests against the sentencing of the Catalan independence leaders' trial, also announced by the Supreme Court criminal chamber, in autumn of 2019.
Furthermore, the court equates Tsunami Democràtic (TD) - to which it ascribes the category of a movement, when it was an anonymous technological platform that appeared just weeks before these protests - with the Basque Country's kale barroka - the destruction of property, through arson or petrol-bombing, which began and continued during the ETA terrorism years. And the document states without any evidence: "The TD movement responds to the fight to combat Sentence 459/2019 of the [Catalan independence] process, in which several members of the Catalan government had been convicted of sedition and aggravated misuse of funds, conveying the manifest injustice of the court decision to international public opinion and organizing violent acts to prevent the fulfillment. Puigdemont was the president of that Catalan government and was, and continues to be, on the run from justice, avoiding prosecution by this second chamber."
Protest is penalized
In this lesson on the crime of terrorism in Spanish law, the Supreme Court cites its ruling on the Herriko tabernas (STS 338/2015) - again, from the Basque experience: referring to bars which the court ruled were used to raise funds for the ETA terrorist struggle. In this ruling, the court states that "terrorism is not, nor can it be, a static phenomenon, but rather it expands and diversifies gradually and constantly, into a wide range of activities, as a result of which the democratic criminal legislator in making the obligatory response to this complex phenomenon has to also expand the criminal space of behaviours that objectively have to be considered terrorist.
It is in this context of street-level struggle, of burning garbage containers, that in 2015, with ETA itself by then well-advanced in its process of disbanding, the People's Party (PP) government with the support of the Socialists (PSOE), modified the definition of the crime of terrorism to one that is now considered too broad. With the argument that the Supreme Court made, as set out above, the law penalizes the right to protest, according to some jurists. The court document released today also comments on the subsequent 2019 Spanish law reform, which, in this case, it places in a European framework, stating that it is not necessary for the [terrorist] group to be organized hierarchically nor for the participants to follow its postulates.
The court recalls that for the crime in question to be classified as terrorist, it is essential that it be carried out with one of four purposes: one, subverting the constitutional order, or suppressing or seriously destabilizing the functioning of the political institutions or economic or social structures of the state, or forcing public powers to carry out an act or to refrain from doing so (this being the part of the definition which it argues can be applied to Tsunami); two, seriously disturbing the public peace; three, seriously destabilizing the functioning of an international organization; or four, causing a state of terror in the population or part of it.
Paralyzing Barcelona airport
For the Supreme Court, the massive protest at the Barcelona-El Prat airport, on October 14th, 2019, immediately after the public had learned of the long prison sentences against the Catalan independence leaders, is a terrorist action because it claims that with the massive use of false plane tickets, an attempt was made to paralyze and destabilize the facility. An affirmation that was denied by the Spanish and European air authorities to judge Manuel García-Castellón, investigator of the Tsunami case.
No-one was killed
However, the Supreme Court declares that the actions reported in García-Castellón's exposition of the case against Tsunami could fall within "the definition of current article 573.1 of the Penal Code, teleological modality" - that is, that "the action must be carried out with a specific purpose", and for the Supreme Court, as mentioned, that purpose was to subvert the institutional order.
The court then subscribes to all the evidence described by the National Audience judge, except for relating the death by heart attack of a French citizen to the Tsunami. In fact, a judge in nearby L'Hospitalet already ruled this out, despite García-Castellón's stubbornness in ordering new reports from the Civil Guard to attempt to use it as part of the case.
Criticism of public prosecutors
The Supreme Court judges also criticize the public prosecutors for "giving separate evaluations" to the protests encouraged by Tsunami and making "a different interpretation" in order to conclude that there is no evidence against Puigdemont.
In their rebuttal of this, the high court judges even note that the office of the Chief State Prosecutor in its 2020 report stated that there was "a violent Catalan independence movement" and pointed to the Committees for the Defence of the Republic (CDRs) and the so-called Tactical Response Team, and that it accused 12 Catalan residents under Operation Judas, of crimes of terrorist organization and the possession of explosives. And that the report also "pointed out that within certain sectors of the independence movement, mobilizations progressively increased, outlining the different dynamics, especially through Tsunami Democràtic" and the attempts to bring to a halt Barcelona airport and "the attacks on public and police buildings."
The "mediate perpetrator"
With respect to Puigdemont, finding that he did not give any direct orders, the Supreme Court awards him a role known as "mediate perpetrator", that is, he used other people to commit the crime. The court defines this role as "the perpetrator who dominates the execution of the act, using an entire apparatus of organizational power that functions from the top, where criminal orders are designed, planned and given, to the material executors of these, not without first passing such orders through the intermediaries who organize and control their compliance". There is no evidence that Puigdemont was behind Tsunami; only one meeting in Geneva, in August 2019, at which the Civil Guard deduces that the mobile application was presented to him.
Thus, it is a far-fetched concept, in the same way as the invention of violencia ambiental - "environmental violence"- described in another case by judge Manuel Marchena to modify the acquittal of protesters for having blockaded the Catalan Parliament and thus convict them. The same concept was later used by investigator Pablo Llarena to accuse the Catalan pro-independence leaders of rebellion, then sentence them to lengthy penalties for sedition, for which they were later partially pardoned.
The German justice system, and more recently, Swiss justice, however, have responded to the Spanish state that a series of protests cannot be classified as terrorist. The Constitutional Court judge Ramón Sáez Valcarcel expressed the same view and has been very critical of Manuel Marchena for imposing this overblown narrative.
No response to defence lawyers
Finally, the criminal chamber did not respond to the joint request of the majority of those investigated in the Tsunami case that the investigation be closed due to judge García-Castellón's error in extending the summary one day later than was legally required. This fact is interpreted as meaning that the Supreme Court judges drafted their position days ago, and unfortunately, it did not surprise anyone.