HC: Spanish Constitution

2015/03/23

Political Persecution of a Catalan Judge

a 3/23/2015

Santiago Vidal is a Catalan judge specialising in penal law and a magistrate in the Barcelona Provincial Court. He is also a lecturer in Penal Law and Criminology at the Autonomous University of Barcelona. He has become a widely recognised figure in Catalonia, where, apart from having been the Catalan spokesman for the Association of Judges for Democracy for several years, he is well known for the progressive nature of sentences passed regarding racial and sex discrimination and the protection of minors. He is a keen defender of the use of the Catalan language in the judiciary. What’s more, he is in favour of the right to self-determination and of independence for Catalonia.

But now Judge Vidal is unable to practise law because, on 26 February 2015, the CGPJ (Consejo General del Poder Judicial, the General Council of the Judiciary), the body that governs all justice in Spain, suspended him as a judge for three years without pay.

The reason for this severe punishment is that Judge Vidal was the leader of a team consisting of jurists and other judges, who preferred to remain anonymous in order to avoid reprisals, which drew up a draft constitution for a possible future Republic of Catalonia. It made no difference that this draft constitution was drawn up in a strictly private and personal way by citizen Vidal, unremunerated and in his free time, without it interfering in any way with the exercising of his profession, which is recognised as excellent.

Judge Vidal is accused of a very serious breach of discipline: disloyalty to the Spanish Constitution and to the Kingdom of Spain for expressing his thoughts and convictions in the form of a hypothetical constitution and also for participating publically in acts in favour of an independent Catalonia.

This sanction is clearly repressive and politically motivated. The CGPJ is not a politically impartial organisation, as 20 of its 21 members are chosen by the Spanish legislative body (the Spanish Parliament and Senate). As a result the majority of the CGPJ are conservatives with strong affinities to the current conservative Spanish Government. It is ironic that this political sanction comes from the CGPJ, the very body whose main function is to ensure the independence of judges and magistrates in the face of other State powers. The voting of the CGPJ divided on party lines: 12 in favour (conservatives chosen by the governing Partido Popular), 9 against (liberals chosen by other parties: PSOE, IU, PNV). So, Judge Vidal has been sanctioned for using his freedom of expression to voice his political ideals by other judges who all voted according to their political ideology, based solely on the political parties which selected them for the CGPJ. Today more than ever we can see that separation of powers does not exist in Spain. We are very far from Montesquieu’s idea that the independence of the judiciary must be real and not merely apparent.

This sanction infringes the fundamental rights of citizen and Judge Vidal: his rights to freedom of thought, opinion and expression, as recognised in the Spanish Constitution itself, in the European Convention on Human Rights and the UN Universal Declaration of Human Rights. (For more details see: www.echr.coe.int/documents/convention_eng.pdf)

That this is a political persecution can be seen in the statement published on 12 February 2015, by the Association of Judges for Democracy. This was prior to the CGPJ verdict, when Judge Vidal was facing a possible life ban from the judiciary, The Association strongly criticised: the political nature of the process as incompatible with the necessary impartiality of a disciplinary body; the infringement of citizen Vidal’s freedom of expression, saying that the proposal to debar him for expressing his opinions was without precedent in the country and was clearly out of all proportion; while not defending his views on independence they defended his right to freedom of expression and creativity and opposed these inquisitorial persecutions. This Association is made up of judges from the whole of Spain and is in no way pro Catalonia or pro Catalan independence,

(For a full text of the statement in Spanish see www.juecesdemocracia.es/txtcomunicados/2015/12febr15.htm)

The politicisation of the Spanish judicial system is well proven . On 11 March 2015 the European Commission for the Efficiency of Justice (cepej) published a study on the quality of the European judicial system. According to this study Spain is the third lowest EU country with regard to the perception of judicial independence from other powers. It was rated 3.2 in 2013/14, as compared with 4.0 in 2012/13 and 3.7 in 2011/12. In addition Spain is 97 out of 144 in the international ranking for this.

There is no doubt that Judge Vidal, who is noted for his fighting spirit for justice, will explore all avenues in his appeal against the sanction, including, if necessary, going to the European Court of Human Rights (ECtHR) in Strasbourg, where the Spanish State has already been sentenced on too many occasions for not respecting the fundamental rights of citizens.

In the meantime, as he is out of a job, Judge Vidal plans to devote the next six months to using his legal expertise to help prepare structures of State, prior to the crucial Catalan elections on 27 September 2015. Perhaps the General Council of the Judiciary has done the cause for Catalan independence a big favour.

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The democratic transition and the debate about the new constitutional context of multilingualism

a 1/18/2015

In 1975 Franco died and the transition towards a democracy comparable to the rest of Western Europe commenced. With the end of the dictatorship autonomy returned to the regions where Catalan is spoken and a relative official nature was awarded to the linguistic and national diversity. However, the resistance to the autonomic process, its homogenisation Valencian linguistic sectioning and the administrative division of the regions where Catalan was spoken made the advance of Catalan difficult.

With the death of Franco, and in spite of their not being an explicit break with Franco’s regime and that the head of state was the man the dictator had chosen as his successor, King Juan Carlos, the democratic process commenced. In 1977 the Generalitat de Catalunya was restored, with Josep Tarradellas, who had returned from exile, as its president. A year later the Spanish Constitution was approved and the Statutes of autonomy of the region of Catalan language and culture under Spanish sovereignty (in Catalonia, in 1979; in the Valencian region, in 1982, and in the Balearics, in 1983). This new context has allowed for the recuperation of the normalising and rule making task of Catalan by continuing in the footsteps of the Mancomunitat de Catalunya and the republican Generalitat.

As results of this pact amongst the heirs of Franco’s dictatorship and the forces born from clandestineness, the new democratic Constitution of Spain acknowledged, with reserves, the national and cultural plurality after four decades of enforced ‘Castilianization’ of the non-Castilian territories. This was the face of the new legal panorama which was favourable to the recuperation of the Catalan language; its only cross was its limits and ambiguities. Contrary to the right to self-determination, its second article speaks of the ‘undeniable unity of the Spanish Nation’, although it recognises and guarantees the right to the autonomy of the nationalities and regions’, but without specifying them. The new Spanish supreme law also explicitly prohibited the federation of autonomous communities (article 145.1), which impedes the articulation of legal spaces amongst the Spanish Catalan regions.

Although the new Catalan, Balearic and Valencian (in a lesser degree) Statutes defined Catalan as their ‘own’ language and established its official nature, Spanish was kept as a co-official language and continues to be the only official language of the whole of Spain. The co-official nature of ‘the other Spanish languages’, thus, was restricted ‘to their respective Autonomous Communities’ (article 3.2). The three newly born autonomies fixed the duty to know and use Catalan and decided to normalise its use, but they did not force its knowledge over the constitutional duty to know Spanish. According to article 3.1 of the magna charter, attributed to the centre politician Adolfo Suárez, who was then the president, ‘Spanish is the official language of the State. All Spaniards have the duty to know it and the right to use it’. In spite of this inequality, the Statutes established ‘full (linguistic) equality’ in Catalonia and the Balearic Islands and the non linguistic discrimination in the Valencian region – officially known as the Valencian Community –, that is, an ideal bilingualism for which they developed laws of nature and effect throughout the 80’s which were subjected to successive governments – which were firm in the Principality, weak or regressive in the Valencian region and vacillating in the Islands.

With democracy we also gained the first mass media communication means in Catalan. The first newspaper in Catalan after the Civil War, ‘Avui’, was born in April 1976; parallel, the first county newspapers appeared in the Principality, like the Manresa ‘Regió 7’ and the Vic ‘El 9 Nou’, in 1978, and ‘El Punt’, then known as ‘Punt Diari’ and limited to Gerona, in 1979, and also magazines of general information like ‘El Temps’, or literary ones like ‘Els Marges’ or historical ones like ‘L’Avenç’.

In 1975, the year of the death of Franco, the Catalan circuit of Spanish Television (TVE), which had its headquarters in the Miramar studies, emitted 17 monthly hours in Catalan and, by the end of the seventies, its quota had increased considerably. It would still be more than ten years before TV3 and Catalunya Ràdio [Catalonia Radio] were born. Joaquim Maria Puyal, in January 1976, made the first football re-transmission in Catalan of the post-war period on Ràdio Barcelona (SER), which already broadcast the odd slot in Catalan since the 1950’s. The first radio in Catalan, since the end of the Civil War, was Ràdio 3, which was created in 1976 by Radio Nacional de España [National Radio of Spain] (RNE).

The Congress of Catalan Culture, from 1975 to 1977, allowed the elaboration of a route sheet with the obstacles which must be overcome to correct the language’s situation. Even before the approval of the Spanish Constitution and of the enforcing of the laws of Catalan, Valencian and Balearic linguistic normalization, Catalan was reinstated as a subject in teaching through the decrees of bilingualism in Catalonia and the Balearic Islands in 1978 and, the following year, the Valencian region.

Although ‘Valencian’ is the common name of Catalan in the Valencian region, the fact that its Statute text of 1982 referred to it with this name, without mentioning the unity of the language, was not casual. During the transition, Valencian linguistic secessionism, also known as ‘blaverisme’ took hold which, from the point of view of a conservative and apparently regional ideology, affirms, against scientific evidence, that there is a Valencian language which is different to Catalan. This late response to the new Pan-Catalan Valencianism of Joan Fuster, which was articulated in the 60’s, and which found it maximum representation in the ultra-right and terrorist Grup d’Acció Valenciana [Group of Valencian Action] (GAV), was affirmed, during the transition, by politicians of the post-Franco party Unió de Centre Democràtic [Union of the Democratic Centre] (UCD). Their aim was to stop the advance of the left wing and of Valencian Catalanism. During the so-called battle of Valencia, the ‘blaverisme’ managed to place the crowned ‘senyera’ [Catalan flag] in front of the bare flag, which belongs to historic Valencianism, and the name ‘Valencian Community’ instead of ‘Valencian Region’.

The ‘blavers’ [supporters of ‘blaverisme’] accused Pan-Catalanism of being imperialist; the Valencians who supported Fuster’s point of view, that is, were defenders of the Catalan nature of the Valencian region understood as a part of the Catalan region, accused the ‘blavers’ of being supporters of the Spanish State. The ‘blavers’ write the language in accordance with unofficial rules like those of Puig, which were created in 1979 by the Real Acadèmia de Cultura Valenciana [Royal Academy of Valencian Culture] that was founded by the Diputació de Valencia, and which is the linguistic referent. In contrast, the second group used the Fabra rules of Castellon, from 1932, which were assumed by the Acadèmia Valenciana de la Llengua [Valencian Academy of Language] that was created in 1998 by the Valencian Generalitat as a meeting point between the two movements. This institution self-proclaimed a normative entity on the same level as the IEC, although, indirectly, it passed the normative. In spite of this, some sectors of Valencian supporting culture and teaching have accused it of giving to much favour to the ‘blavers’ with regards to morphology and lexis. There is also linguistic secessionism in the Balearic Islands and in the Aragon Strait, but in these cases this attitude is clearly marginal.

In 1876 the term ‘Catalan region’ was born as the denomination of the areas of Catalan language, and in the 60’s this name was promoted by Fuster. However, since the transition, its linguistic, cultural – and, depending on how you look at it, national – articulation has suffered with the political stigma attributed by ‘blaverisme’ and, by extension, the supporters of the Spanish State. The two movements refer to it as a supposed principality imperialism. The political cooperation between the Catalanophile Spanish regions, which constitute a good part of the Catalan region, does not only clash with the constitutional prohibition, but also with a weak or nonexistent communitarian sentiment. This weakness is, in part, a consequence of three centuries of isolation inside the Spanish State structure, which has strengthened the national and regional Spanish identities.

The restored Generalitat

a 1/17/2015

With the death of the dictator, the mobilisations and political and social pressures increased. In June 1977 the first general elections were held and in March 1980 the elections to the Parliament of Catalonia were convoked and, against all prognosis, ‘Convergència i Unió’ [Convergence and Union] won.

At the end of 1974, the regime, in spite of the murder by vile garrotte of the anarchist Salvador Puig Antich, started to weaken. The execution of Puig Antich made the Catalan political formations increase their presence, as can be witnessed by the cycle organised in 1975 by the ‘Institut Catòlic d’Estudis Socials de Barcelona’ [Catholic Institute of Social Studies of Barcelona] which was known as ‘Les Terceres Vies a Europa’ [The Other Ways in Europe], which were a set of conferences that served for the Catalan political leaders to expose their political approaches in front of a future democracy.

Soon after the death of the dictator, the ‘Consell de Forces Polítiques de Catalunya’ [Board of Political Powers of Catalonia] was created. It was headed by ‘Convergència Democràtica de Catalunya’ [Democratic Convergence of Catalonia], which was directed by the banker and political activist Jordi Pujol, and was made up of eleven Catalan political formations. The principal aim of the Board was to construct a provisional government of the Generalitat de Catalunya.

During the government of Carlos Arias the political mobilizations multiplied against it, as for example the days convoked by the ‘Assemblea de Catalunya’ [Assembly of Catalonia] in favour of amnesty and the Statute from February 1st-8th 1976. The governmental weakness was becoming more evident, which was an event that implied, in July 1976, that Adolfo Suárez was chosen as the president of the Spanish government. In spite of the approval of general political amnesty at the end of July, the political and social pressure continued with the manifestation of September 11th 1976 in Sant Boi de Llobregat.

On December 15th 1976 the referendum was held about the ‘Llei de Reforma Política’ [Law of Political Reform]. Although Catalonia and the Basque Country had higher indexes of abstention, Suárez’ government won the consultation and forced the opposition to negotiate to realise the political transition.

The Board of Political Powers participated in the negotiations with the Spanish government, which did not please the Assembly of Catalonia or the president of the Generalitat de Catalunya in exile, that is, Josep Tarradellas because they did not want to be excluded from the future agreements. The Assembly was not in favour of negotiating with central government; however, Suárez had initiated talks with the principal leaders of the opposition.

On June 15th 1977 the first general elections were held and the ‘Unión de Centro Democrático’ [Union of Democratic Centre] party of Adolfo Suárez imposed itself. In Catalonia, the winning strength was the ‘Partit Socialista de Catalunya-Partido Socialista Obrero Español’ [Socialist Party of Catalonia- Spanish Socialist Working Class Party], which was followed by the ‘Partit Socialista Unificat de Catalunya’ [Unified Socialist Party of Catalonia]. The results of these elections propelled what is known as ‘Operació Tarradellas’ [Operation Tarradellas]. The president of the Spanish government negotiated directly with Tarradellas for the reestablishment of the Generalitat. During the first conversations, Adolfo Suárez only recognised the figure of Tarradellas and offered the possibility that a type of Mancomunitat of deputations could be built instead of the restoration of the Generalitat. This was an offering that the Catalan political formations and the president of the Generalitat de Catalunya flatly rejected.

In the course of the summer of 1977, various negotiations were undertaken between Josep Tarradellas and his collaborators with the representatives of the government. Between the negotiators of the government, we must point out the old civil governor of Barcelona, Salvador Sánchez Terán. In spite of the good development of these conversations, they remained stalled until the month of September. They were only taken up again after ‘a million people’ participated in the September 11th demonstration of 1977.

On September 28th 1977, Tarradellas and Sánchez Terán reached an agreement to re-establish the Generalitat de Catalunya and the creation of a provisional government of unity. The nomination of John Charles I as the monarch and Josep Tarradellas as the president of the Generalitat allowed Tarradellas to definitively return to the Catalan capital on October 23rd, where he was received by some three-hundred thousand people. Nevertheless, the reestablishment of the Generalitat only equalled the recognition of the Catalan government of the Second Republic, because the Catalan institution had not any of its own competencies and was basically sustained by the Diputació de Barcelona, which was also presided over by Tarradellas.

On December 5th 1977, the president of the Generalitat created a government of unity with the group of political powers who had given their support to the creation of the Statute. In spite of the lack of powers and budget, Tarradellas was able to issue some decrees, for example like that of obligatory teaching of the Catalan language in the education system. On January 28th 1978 the ‘Comissió Mixta’ [Mixed Commission] of transferrals of the government of the Generalitat was created to negotiate with the Spanish government, by which the only accomplishments were certain powers in the ambits of agriculture and town planning. In spite of the political unity shown until then, the political formation started to undertake the project of Statute without president Tarradellas, who was looking to extend the provisional period as far as he could.

In the interim, on July 21st the Constitution was approved in the Spanish Congress, which was later ratified, without obstacle, with the Constitutional Referendum of December 6th 1978. The whole of the Catalan formation with parliamentary representation gave support and carried-out canvassing for the yes vote. The said Constitution, with an appropriate direct participation from the Catalan politicians, was characterised by the search for consensus, which was an event which obliged them to renounce the sovereignty or the federal reform of the State, because they had to elaborate a text that endeavoured to satisfy all of the political powers.

The aforementioned text tried to please the Catalan and Basque posture and the emerging regionalist re-vindication which had begun to appear all over the State. This new general political panorama drove Suárez to offer all the regions of the country the possibility of becoming an autonomous community, with government, parliament and its own powers. This was a proposal which copied that which had been gained for Catalonia and which had later been known as the ‘café para todos’ [coffee for everyone]. This was an act which evidently did not please the Catalans or the Basques, because it gave rise to the attempt to dissolve their specificity.

While the debates of the Constitution went on, the process of redaction of the preliminary Statute of Autonomy of Catalonia commenced. The Assembly of Parliamentarians designated, without telling president Tarradellas, the elaboration of the text of the Statute to the group which is known as the ‘Comissió dels Vint’ [Commission of the Twenty]. As had happened with the Magna-Carta, the consensus was also quite wide, with the exception of the subject of electoral rules. The text was approved by the plenary of the Assembly, in the presence of Josep Tarradellas, on December 29th 1978, but it was not ratified by the Spanish Courts until November 29th and by the Senate on December 12th 1979. Finally, the Statute came into force on April 1st 1980. However, before the voting of the referendum for the passing of the Statute took place on October 25th 1979. The yes vote obtained an important 88,1%, all though we must say that the level of abstention was high at 40,6%.

The definitive text contained a lot of subjects which required further attention, so that, later on, the Parliament could take the decisions which were necessary. The aim of the twenty speakers was to gain a greater number of powers. The Statute defined Catalonia as a ‘nationality’ which is constituted as an autonomous community and recognised the Generalitat as the institution of Catalan self-government. It also considered Catalan as the language of Catalonia and co-official with Spanish. In spite of the numerous improvements, in comparison with the Statute of 1932, such as in fields like teaching, linguistic and cultural politics, Ministry of Finance, public works, healthcare, town planning, land planning, tourism and media, it also went backwards in such fundamental fields as justice, public order and administrative structure and left those fields that needed the cooperation between central administration and the Generalitat in a confused state.

To all of this, we must add that on March 1st 1979 general elections took place, which were won again by the UCD, although with only a slight margin. In Catalonia, the left wing formations gained the electoral victory again. Two months later, on April 3rd, the first democratic municipal elections took place with a clear predominance of the left wing parties.

On March 20th 1980, elections were held for the Parliament of Catalonia, which were won, against all prognosis, by the nationalist formation ‘Convergència i Unió’ [Convergence and Union]. The nomination of Jordi Pujol as the new president of the Generalitat de Catalunya marked the end of the provisional nature of this institution and of the government of unity presided over by Josep Tarradellas.

The Catalan Government: an Historical and Democratic Legitimacy

a Thursday, November 06, 2014

In the ongoing so-called Catalan process for democracy and in the face of the Spanish government's denial of it —along with that of the vast majority of the Spanish political class— there are some who have tried to focus the debate solely on legality versus legitimacy, ignoring all too often that this is also a debate on popular will versus...

The Generalitat of Catalonia

a Tuesday, October 21, 2014

The Generalitat of Catalonia stems from the medieval institution which ruled, in the name of the King of the Crown of Aragon, some aspects of the administration of the Principality of Catalonia. The first Catalan constitution is that of the Corts of Barcelona from 1283. The Generalitat of Catalonia, outside Another medieval precedent-...

Supreme Court accepts prosecution of Catalan President for symbolic vote on independence

a 12/24/2014

Catalonia’s Supreme Court (TSJC) accepted on Monday all the criminal complaints filed against the President of the Catalan Government, Artur Mas, Vice President, Joana Ortega, and Catalan Minister for Education, Irene Rigau for having authorised and co-organised the non-binding and symbolic vote on independence that took place on 9 November in public venues throughout Catalonia. The TSJC is finally launching a judicial investigation for “alleged disobedience” after charges were pressed by several individuals and organisations, including extreme-right associations and the Spanish Public Prosecution Office, whose Director is appointed by the Spanish Government. Such a prosecution by the Spanish authorities has been extremely controversial, from both the legal and the political points of view. However, on the same day, the TSJC rejected all the complaints filed against other politicians and also against civil servants, such as mayors and school directors, since the vote took place in municipal venues and public education centres.

On Monday, on hearing that the TSJC is accepting the prosecution of members of the Catalan Government, pro-independence civil society organisations launched a solidarity campaign, through which individual citizens will be able to plead guilty for participating in November’s vote. Meanwhile, the Catalan Government stated that it is convinced they acted in the correct manner in relation to November’s symbolic vote. Joana Ortega said she is hoping that “common sense will prevail” in the end since she has “an absolute trust” in the judicial system. “A peaceful and democratic action can never be a felony”, she emphasised. In the morning, before hearing of the TSJC’s decision, Artur Mas stated that such a prosecution “cannot be understood”, but he added he would respect any decision taken by the courts.

The official prosecution of the Catalan President, Artur Mas, and 2 other members of the Executive by the Spanish authorities for November’s symbolic vote on independence takes the current political conflict a level higher. Such a prosecution has been extremely controversial and has caused general outrage in Catalonia since it is perceived as a politicised use of the judicial mechanisms and an abuse of power by the Spanish Government, which has been unilaterally refusing to enter into any political negotiation on self-determination with Catalan representatives during the last two years. Instead of sitting around a table and talking about a claim shared by millions of Catalans and repeatedly expressed in manifold and peaceful ways during the last 2 plus years, the Spanish Government has only offered a no-to-everything attitude and has blocked any possible negotiation, imposed a recentralisation of powers, and attacked both the Catalan culture and language.

An extremely controversial prosecution

In November, after being incapable of stopping Catalans from expressing their opinion on independence from Spain through a symbolic vote without any legal ramifications, the Spanish Government was particularly vocal after it took place and asked the Director of the Public Prosecution Office “to act” and press charges against the Catalan Government for having authorised and co-organised it. In the two weeks after November’s vote, separation of powers was seriously damaged in Spain, after a charade between the governing People’s Party and Spain’s Public Prosecution Office. Furthermore, Catalan prosecutors initially refused to press charges against the Catalan President as they thought there was no legal ground for such an action. However, they were later obliged to do so, following the hierarchy’s orders. In the end, the Director of Spain’s Public Prosecution Office, Eduardo Torres Dulce, resigned a few weeks later, tired of arguing with the Spanish Government.

In addition, many legal experts have emphasised that authorising or co-organising such a vote is not illegal, since the Constitutional Court had not officially declared it “illegal” (as it only issued a temporary suspension 5 days before it was to take place). On top of this, despite it putting a temporary ban on the vote’s organisation, the Court did not issue the prescriptive reminder or clarification of its decision, which is a necessary step any judicial body has to make before someone can be accused of disobeying judicial decisions, particularly taking into account that the Catalan Government asked for such clarification and the Court rejected to issue them before 9 November.

The Court rejects complaints filed against school directors and mayors

A few weeks ago, the Catalan Supreme Court decided to group all the criminal complaints filed regarding November’s vote in order to analyse them altogether, since they all refer to the same series of actions. On the 9 November, tens of complaints were filed by citizens and organisations in many courts throughout Catalonia. Furthermore, Spanish nationalist parties and organisations also filed complaints on 8 November, the day before the symbolic vote, and also on the days after it took place.

On Monday, the 6 judges of the TSJC’s penal section accepted all the criminal complaints that have been filed over the last few weeks against Artur Mas, Joana Ortega and Irene Rigau for authorising and co-organising November’s vote on independence, in which 2.35 million Catalans participated despite the obstacles and veiled threats from Spanish authorities. After a four-hour meeting, they accepted the calls to investigate “the facts relating to the “alleged disobedience” to a Constitutional Court’s decision “as well as any other facts that, in a direct or indirect way, may be related to it”.

At the same time, the TSJC also rejected those charges pressed against mayors who authorised the use of municipal venues to set up polling stations and school directors who facilitated the use of education centres for the same purpose, following instructions from the Catalan Government. Furthermore, the complaints against leading members of the Catalan Parliament, such as the Chamber’s President, Núria de Gispert, and other members of the Catalan Government, such as the Minister for Home Affairs, Ramon Espadaler, have also been rejected. A few weeks ago, after knowing about the charges pressed by the Public Prosecution Office, the Catalan Parliament’s plenary session pled guilty for having authorised and co-organised the non-binding vote, emphasising that they were also responsible for allowing Catalans to cast their vote on independence.

The acceptance of the complaints by the Court does not mean that Mas, Ortega and Rigau are already formally accused and that a trial will be organised against them. It only means that the TSJC considers there are enough legal grounds to launch a judicial investigation about the facts reported in the complaints. The Court has grouped all the complaints into a single one, which will be the oldest one, filed by the extreme-right trade union Manos Limpias (Clean Hands, which has nothing to do with its Italian homonym). A judge will now start a judicial investigation, which could conclude that there is not enough legal ground for carrying on or which could indict Mas, Ortega and Rigau. If they were indicted, depending on their judicial statement and further investigations, they could be either formally sent to trial or released without charge.

The charges against Mas, Ortega and Rigau

The complaint filed by the Public Prosecution Office firstly targets the President of the Catalan Government, Artur Mas, as the main person responsible for the vote. However, it is 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. They are accused of “usurpation” for having authorised a “hidden referendum” despite not having 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 is not enough of a legal basis for such accusations. Firstly, the vote was not “a hidden referendum” but “a citizen participation process”, which the Catalan Government has the powers to organise. In fact, the Spanish Prime Minister, Mariano Rajoy, acknowledged the day before the vote that it was not “a referendum nor anything similar to one”. Secondly, it is hard to argue that Mas, Ortega and Rigau committed “embezzlement” by using public resources in a process in which 2.35 million citizens participated, clearly showing the public interest of such a vote. 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 a citizen participation process run by volunteers.

6 December: Spanish Constitution Day

a 12/06/2014

On December 6th Spaniards celebrate Spanish Constitution Day.

The Spanish Constitution no longer belongs to everyone

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Spain is different, it is very often said. And indeed it is. The Spanish experiment with democracy is one of the most limited in Western Europe. The last dictatorship under the fascist General Franco, which ended after almost 40 years, was not the result of a popular dismantling; it was a monitored dissolution after the dictator’s death...

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The very same day Messrs. Cameron and Salmond sealed the institutional pact for the Scottish referendum, Spain was condemned by the European Court of Human Rights (this time for not looking into evidence of torture of Basque journalist Martxelo Otamendi, arrested and imprisoned under anti-terrorist legislation, and later cleared of all...

About the author of this article for Help Catalonia Miquel Perez Latre Doctor of History, Archivist and Blogger In the next few years, when Catalonia becomes part again of the free nations, we will finally be able to recover a political tradition of our own, built over more than five centuries of sovereignty....

They will be topped by legal prosecution and criminal charges against the President of Catalonia because of the symbolic independence vote This past 9 November, more than 2.3M Catalan citizens went to the polling stations to participate in a symbolic vote on independence. They went to vote despite the obstacles placed in front...

Download and share The President of the Court that refuses to allow the Catalans to vote, Francisco Pérez de los Cobos, was a member of the governing party while he was a judge, even though the article 127 of the Spanish Constitution forbids it. He was not dismissed. In Spain there is no separation of powers. They call it democracy,...

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Better together? Seven big Noes from Spain to Catalonia

a 11/22/2014

They will be topped by legal prosecution and criminal charges against the President of Catalonia because of the symbolic independence vote

This past 9 November, more than 2.3M Catalan citizens went to the polling stations to participate in a symbolic vote on independence. They went to vote despite the obstacles placed in front of them and the threats formulated by the Spanish government and state judicial bodies. This vote was not a referendum like in Scotland, as many would have wished, precisely because the Spanish government decided not to follow the democratic example of David Cameron. However, the international media, perceiving the importance of the vote, reported extensively on the event.

Faced with 2.3M citizens sending a message in a pacific and peaceful way through their vote, as done in the rest of the democratic world, any government would at least take note and pay attention. Politicians are there to see what is going on, comprehend and discuss. However, the Spanish government led by Mr Rajoy, merely qualified the vote as an anti-democratic and useless farce while demeaning it for its participation (one in three Catalans), Mr Rajoy having himself an absolute majority with an even smaller proportion of Spanish voters.

The problem is that for some time now the Spanish government has been refusing to recognise that it has a serious political problem in Catalonia. This problem cannot be dealt with by ignoring it, as done initially, or through sentencing and judicial prosecutions as is being done now. Political problems require political solutions, in Catalonia, Scotland, and everywhere else. There are many who criticise the inflexible position of the Rajoy’s Popular Party, who’s only strategy is to let time pass to see if they are lucky and problems disappear by solving themselves.

From No to No

The negation of the 9 November vote is just one more of a long list of negations. In recent times, the first and most outrageous one, in terms of its consequences, was the sentence of the Spanish Constitutional Court against the Statute of Catalonia in June 2010. Next come the refusal of Rajoy to negotiate a new fiscal agreement (September 2012), the annulment of the Declaration of Sovereignty of the Catalan Parliament (March 2014), the refusal to transfer the competences of holding a referendum to Catalonia (April 2014), the suspension of the non-binding consultation law and the decree calling for the 9 November vote (September 2014) and the extension of this suspension to the symbolic participatory process (November 2014).

It is obvious that the attitude of the Spanish government and the state organisms is not conducive to convincing Catalans of continuing to form part of Spain. To the contrary, the number of pro-independence voters has grown continuously, even among immigrant communities and more politically apathetic groups. As a seduction strategy it is unprecedented and unusual to say the least and contrasts starkly with the UK’s Better Together campaign. This culminates with another bridge-burning decision: the State Prosecutor’s will file a complaint and seek criminal charges against President Mas, the Vice-President and the Minister of Education.

This day, 39 years ago, marks the death of the fascist dictator Francisco Franco, great enemy of liberty, democracy, and also of Catalonia. Faced with the political challenge brought forth by Catalonia, Spain has the opportunity to demonstrate to the world that these four decades have been sufficient to consolidate a mature democracy. Unfortunately, it seems that this is not the path that has been chosen.

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

a 11/20/2014

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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The President of the Court that refuses to allow the Catalans to vote, Francisco Pérez de los Cobos, was a member of the governing party while he was a judge, even though the article 127 of the Spanish Constitution forbids it. He was not dismissed.

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