Spain’s Public Prosecutor Office to finally file complaint against Catalan President for November 9 vote

The Director of the Spanish Public Prosecution Office, Eduardo Torres-Dulce, will finally file a complaint against the President of the Catalan Government, Artur Mas, for the symbolic vote on independence held on November 9. 

The decision was confirmed on Wednesday and it comes after 10 days of controversy, in which the Spanish Government has been accused of not respecting the separation of powers and of pressuring the Public Prosecution Office to take a political issue to court. Furthermore, Catalonia-based prosecutors and many judicial experts have stated there is no legal basis for such a complaint. November 9’s non-binding participation process had been temporarily suspended by the Constitutional Court on November 4 but the Court refused to explicitly tell Mas he could not organise it, as the Spanish Government had directly requested in its appeal. On top of this, the Constitutional Court did not issue a first warning despite the Catalan Government having stated the vote would take place anyway, neither did it answer Mas’ appeal and request for further explanations before November 9. However, the governing People’s Party (PP) was highly insistent that such a complaint had to be filed. 

Torres-Dulce will finally do it, after meeting with Spain’s main prosecutors, who backed him but not unanimously. Furthermore, the complaint’s scope will be expanded with further felonies and confirms the inclusion of a third Member of the Catalan Government. In the end, the Catalan Vice President, Joana Ortega, and the Education Minister, Irene Rigau, will be also included in the complaint for having authorised the use of public resources and venues (such as high-schools) for the non-binding vote. The 3 Catalan top representatives will be accused of usurpation, disobedience, embezzlement and perversion of a legal process. This complaint will certainly have many political consequences and is likely to strengthen Artur Mas in the eyes of a large part of the Catalan society. It also confirms the increase of tension between Madrid and Barcelona, and the partisan use of the Spanish State’s bodies and institutions by the Spanish Prime Minister, Mariano Rajoy, and the governing People’s Party (PP). 

The judicial complaint that Torres-Dulce will file this week following the insistence of the PP has great political importance, since the Spanish authorities are taking the self-determination conflict one step higher by taking the President of Catalonia and 2 members of the Catalan Government to court. Furthermore, such a step is likely to cause a significant boomerang effect in support of Mas, Ortega and Rigau by a large part of the Catalan society. Many citizens and organisations are likely to stand apart from their main public representatives who co-organised an historical and peaceful citizen participation process, in which 2.3 million people cast an official vote on independence from Spain for the first time in history.

An important symbolic vote

In fact, November 9’s participation process was the first time ever that Catalans were able to directly vote about their belonging to Spain, since the 1978 Constitution had been negotiated with Franco regime’s military and was the only way to embrace democracy and bury the dictatorship. Many citizens, particularly old people who had lived through the Civil War and the four decades of Fascist and military dictatorship in which the Catalan language was persecuted, were thrilled and touched to be able to vote on independence, even if it was in a symbolic and non-binding process run by volunteers.

The Catalan Government launched such a participation process after the Spanish Executive managed to have the original consultation vote suspended by the Constitutional Court in a particularly fast and provocative way that, once again, questions the separation of powers in Spain. Then, in order not to disobey the Court, the Catalan Executive designed this alternative process, which was initially downplayed by the Spanish authorities and many Catalan parties for not being serious enough. The Catalan President acknowledged the limitations of the new way and highlighted that it was far from being the definitive referendum, but he insisted that citizens would be able to vote, “with ballots and ballot boxes”. He also talked about being “astute” and not disclosing all the organisation steps in order to make things harder for the Spanish Government and prevent them from blocking this new vote. In addition, the vote would be run by volunteers, without a pre-made electoral census, although it would be carried out in public venues in an official way.

A vote with wide institutional support in Catalonia and total opposition in Madrid

The main civil society organisations supporting independence backed the new citizen participation process and so finally did the rest of parties supporting the previous consultation vote. Furthermore, 942 of the 947 existing municipalities in Catalonia backed the alternative way and offered their facilities to host polling stations in the event that Catalan Government ones were not enough.

At this point the Spanish Government changed its mind and activated the mechanisms needed to block the new vote from happening. It managed to have the Constitutional Court temporarily suspend November 9’s process, but it was not able to stop the vote from happening in the end, despite it having threatened organisers and participants in the immediate days before the vote and on the very same November 9. The Spanish Public Prosecution Office announced on Saturday, the day before the vote was supposed to take place, that it was opening an investigation and it did not rule out legal consequences. In addition, the Catalan Government’s websites and those of the main pro-independence civil society organisations suffered a massive cyber-attack on the vote’s weekend, which collapsed their systems for several hours. The attack represented 90% of all the attacks in Spain and on November 9 it multiplied by 60,000 the regular information requests to the Catalan Government’s servers.

However, the citizen participation process was a great success, considering all the obstacles and threats, even those sent at the last minute. On top of this, an international and cross-party delegation of observers formed by Members of the European Parliament and other parliamentary chambers certified that the process had been “correct” and “open”, taking place without coercions. They also acknowledged the limitations imposed by the Spanish authorities and the “challenging” circumstances in which it had been carried out, and concluded that it had been “successful”.

Rajoy and the PP are using Spain’s main institutions in a partisan way

Mariano Rajoy and the PP have held an absolute majority at the Spanish Parliament since late 2011 and have been ruling the country imposing their own views without dialogue, including those on Catalonia and Spain’s territorial organisation. In fact, they have been violating the current legal framework by invading the Catalan Government’s jurisdiction on many occasions, by recentralising powers with the excuse of fighting the economic crisis and by refusing to negotiate a new inter-territorial fiscal scheme despite the old one having legally expired and despite all the demands from all business associations from Catalonia and Catalan public representatives. On top of this the PP and Rajoy have begun homogenisation initiatives and have attacked the Catalan language, not respecting the Spanish Constitution that specifically calls for the protection and promotion of minority languages. Moreover, the PP and Rajoy have used their absolute majority to impose a restrictive interpretation of the Constitution and to ignore or downplay the democratic self-determination demands expressed by a large part of Catalans, through many peaceful demonstrations and through the last elections to the Catalan Parliament, held in November 2012. Back then, with a record turnout, citizens freely elected 80% of MPs who ran supporting a legal self-determination referendum.

The Catalan President and a wide majority of Catalan parties have been working to honour that democratic mandate and to grant citizens the possibility to vote on their collective future. The attitude of Rajoy, the Spanish Government and the PP, but also of the Spanish Socialist Party (PSOE) and most of Madrid’s establishment, has been to block any negotiation about self-determination demands for the last 2 years. On top of this, Rajoy and the PP have undertaken a no-to-everything attitude that is looking to quash Catalonia’s demands by KO, in the hope that Catalans will give up on their demands without they are having made any political concession. In front of this, Catalan representatives have agreed not to wait any longer for Madrid to sit around the table and talk about a mutually-agreed referendum. In December 2013, two-thirds of the Catalan Parliament agreed to hold a legal self-determination vote on November 9 in which citizens would answer a two-part question that referred to independence but also to a federal or confederated Spain. They tried to bring the Spanish authorities on board, insisting that the question wording and date could be renegotiated, but Madrid’s blocking attitude continued. It was when the Spanish Parliament refused to transfer the powers to organise a self-determination referendum to the Catalan Government and when the Spanish authorities banned Catalans from using their own legal framework to hold a non-binding consultation vote. However, in the end, they could not stop citizens from giving their opinion on independence on November 9.

A reaction from Spanish nationalism

The image of Catalans casting their vote on independence in a peaceful and even festive way shocked Madrid and most of the Spanish nationalists. Rajoy had repeated that the vote would not happen and finally it did. The most conservative and Spanish nationalist factions of the PP, but also of other parties, criticised Rajoy for being too soft with Catalonia. The Spanish PM took three days to appear in public for the first time after the vote and to make an assessment of it. In front of the criticism, Rajoy downplayed the vote and its turnout, and he accused the Catalan President of having organised an “illegal” process, even though no Court had declared the vote to be “illegal”, not even the Constitutional Court. He also rejected the offer made by the Catalan President to talk about the self-determination demands and negotiate a mutually-agreed referendum.

Before Rajoy’s statements, other members of the Spanish Government and the PP had said similar things. In addition, on Monday the PP already announced that the Public Prosecution Office would file a judicial complaint against the Catalan President and other member of the Catalan Government. The Public Prosecution Office had not made any statement in this regard.

The show of the Public Prosecution Office

This complaint has been a political soap opera that has lasted the past 10 days, in which the PP and the Spanish Government publicly asked the Director of the Public Prosecution Office to act – sometimes in quite a demanding way – and, at the same time, they were hypocritically denying having put any pressure on Torres-Dulce. On Wednesday last week, Torres-Dulce met with his delegate in Barcelona, José María Romero de Tejada, in order to agree on a line to take and gather the support from prosecutors based in Barcelona. They agreed to put the final decision on whether to file the request or not in the hands of the Catalonia-based prosecutors.

Last Monday, the 9 prosecutors that form that highest public prosecution council in Catalonia unanimously agreed to reject the complaint because they considered it lacked legal basis. However, Torres-Dulce announced he would organise a meeting on Wednesday with Spain’s main prosecutors in order to carry it out anyway. With this move, the Spain’s General Prosecutor proved he was putting the decisions in the hands of Barcelona-based officers to gather their support and to pretend that the complaint had been filed for legal reasons and not because of political instructions sent from Madrid. On Tuesday the Catalan prosecutors said they would file the complaint if they were told to do so, since they belong to a hierarchical body. Therefore, the rebellion of the Catalan prosecutors did not become a schism in this basic pillar of the Spanish legal system. Meanwhile, the PP and the Spanish Government were insisting that Torres-Dulce should react and file the complaint at once. On Wednesday, the council grouping Spain’s main prosecutors, from high courts and heading specialised law divisions (many of them belonging to a conservative association) backed Torres-Dulce after a 4.5 hour meeting, although not unanimously. After the meeting, the Director of the Public Prosecution Office confirmed that the complaint would be filed “within this week”.

A complaint against Mas, Ortega and Rigau for 4 felonies

In the end, after speculation about who exactly will be targeted, the complaint will be not only against the President of the Catalan Government, Artur Mas, as the main person responsible for the vote, but also against the Vice President, Joana Ortega, who coordinated the vote’s logistics and announced turnout figures and early results, and the Education Minister, Irene Rigau, who authorised using public high-schools to host polling stations. The will be accused of “usurpation” for having authorised a “hidden referendum” despite not having had the powers to do so; “disobedience” for not having respected the temporary suspension of the Constitutional Court; “embezzlement” for using public money and resources for the vote; and “perversion of a legal process” for carrying out a public administration process in the knowledge it had been temporarily suspended by the Constitutional Court.

However, many legal experts consider that there are not enough legal bases for such accusations. Firstly, the vote was not “a hidden referendum” but “a citizen participation process”, which the Catalan Government has the powers organise. Secondly, it is hard to argue that they committed “embezzlement” by using public resources in a process in which 2.3 million citizens participated, clearly showing the public interest of such a process. Thirdly, according to Spanish legislation, in order to disobey a court the court has to have sent a reminder or a warning, in addition to the original verdict, which was not the case. Finally, “perversion of a legal process” requires public officers to have consciously made an unfair decision, which does not really fit into a citizen participation process run by volunteers.

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