An Exotic Right
Protest and sedition in the Spanish Supreme Court’s ruling on Catalan secessionism
The Spanish Supreme Court has finally issued a ruling on the trial to the Catalan secessionist leaders for the facts occurred in September and October of 2017 – namely, the passage of the referendum and the independence acts, several demonstrations, the referendum of October 1st, and the declaration of independence in October 27th. This ruling will definitely not help to solve the conflict. Quite on the contrary, it will make it intractable in the short run, as we are beginning to see in the riots in the streets of Barcelona. In my opinion, this ruling is unjust and legally wrong. Even worse, it is unconstitutional since it compromises the fundamental democratic rights of protest – the freedom of expression, the freedom of assembly, and the right to demonstrate.
Let us remember, first, the basic facts (my previous analyses of those facts are here, here, here and here): Two years ago, 12 people were indicted by the Supreme Court (after controversially taking the case out of the Catalan court that had initial jurisdiction), among them the former Vice-President of the Catalan government, Oriol Junqueras, several former ministers of that government, and the leaders of the two major civil society secessionist organizations, Jordi Cuixart and Jordi Sánchez. Other leaders, such as former President Carles Puigdemont, as well as other former ministers have remained in several countries (Belgium, Switzerland and the UK) avoiding the trial. Most of those who were indicted have been in pre-trial detention, in my opinion and in many others’ unjustifiably, even if several of them were members, first, of the Catalan parliament, and then elected members of the Spanish chambers, and finally some of the European Parliament as well. All this adds more complexity to the political dimension of this trial, which, from the beginning, was perceived by many (you can find my own analysis of this aspect here) as an unwise strategy of judicializing a political conflict. The trial took 17 weeks, 52 sessions, with 422 witnesses, and many procedural issues that made it particularly complicated.
The judgment has found them all guilty of several offences – seven of them of sedition, four of which also of misappropriation of public funds, and the other three of disobedience to an authority. They have been sentenced, respectively, to 13 years in prison and absolute disqualification (in the case of Junqueras), 12 years in prison and absolute disqualification (Romeva, Turull, Bassa), 11 and six months in prison and absolute disqualification (Forcadell), 10 and six months in prison and absolute disqualification (Forn and Rull), 9 years in prison and absolute disqualification (Cuixart and Sánchez), and finally, for three of them (Vila, Mundó and Borràs), to pay a fine of 60.000 euros each and special disqualification of public service for 1 year and 8 months. To be clear on this: the sentence is very harsh. Even if the Spanish criminal code is quite punitivist compared to many other continental European criminal codes, many of them have been sentenced as if they had committed a homicide (which is punished in Spain with 10 to 15 years in jail). It is true that they have been acquitted of the charge of rebellion (which might have led them to much higher sentences). But 9 to 13 years is nonetheless a very harsh punishment.
The Supreme Court has tried them in first and unique instance. This means that there will be no second instance able to revise the qualification of the facts, even if the judgment may – and will – be appealed in front of the Constitutional Court, if the defenses consider that some fundamental rights of their defendants have been violated. Ultimately, the case will undoubtedly arrive, in one way or another, at the European Court of Human Rights. This will be, in any case, in several years. But in both courts, the Constitutional Court and the ECtHR, the appeals can only concern violations of human rights, and in principle cannot revise the legal qualification of the facts.
The ruling is 493 pages long, which makes it actually shorter than expected. The ruling of the case of the terrorist attacks in Madrid in 2014, for instance, which had a similar amount of witnesses and evidence, was 722 pages long. And the recent ruling by the Supreme Court on the Alsasua Case, a much simpler case of an aggression to some police officers, is 449 pages long, almost the same number of pages than this one. This, of course, does not necessarily mean anything. But the number of pages that the ruling spends on each of the parts is particularly telling. It spends less than 40 pages describing the proven facts of the case, and only 10 pages to justify the charge of sedition, while it spends 193 pages, 40% of the whole text, arguing that no fundamental right of the defendants had been violated during the process. It can be basically described as “a defensive ruling”; as if judges were fully aware that its destiny is to be appealed before the CC and the ECtHR.
But leaving these formal observations aside, what can we say about the content of the ruling? As I anticipated at the beginning of this post, in my opinion this ruling is unjust, legally wrong, and actually unconstitutional. A fine-grained, extensive analysis of the content of this sentence will of course take weeks and months. And lawyers will have to discuss it as thoroughly as possible. But let me show, in the context of a short blog post like this, and with the urgency of the moment, why I think the ruling is wrong.
Obviously, not all of it is wrong. The acquittal of the defendants on the charge of rebellion is fully just, since rebellion, according to article 472 of the Spanish Criminal Code, requires violence of a very specific kind: basically, a form of violence that is instrumental and conducive to the subversion, derogation or suspension of the constitutional order, among other possible aims. And everyone knows – in Spain and worldwide – that the Catalan secessionist movement has been, until now, essentially peaceful and civic. On the other hand, it is also publicly notorious that the offense of disobedience to a judicial authority was effectively committed by all of them. The Spanish Constitutional Court banned the referendum of October 1st, and, in the exercise of its jurisdictional powers, sent a specific order to the 12 defendants – among other people – not only to stop organizing the referendum, but to do all what they could to stop it. And far from doing it, they continued encouraging the people to vote. But the crime of disobedience to an authority, as I already pointed out, is only punished with a fine and with special disqualification for public office.
Regarding the charge of misappropriation of public funds, this is of course a very technical issue that must be carefully proven. Even if at first sight, there seems to be not enough evidence about how they specifically diverted public funds to cover the expenses of the organization of the referendum, I am not a specialist on this area and it well might be the case that such charge is justified and the corresponding sentence correct and just. In any case, and given the Spanish rules of combination of sentences, the actual impact of that charge on the final sentence of the four who have been found guilty of misappropriation is almost negligible.
Sedition
The main problem of the ruling lies in the sentence for sedition. Thus, let me focus on this. First of all, the crime of sedition is very peculiar, since many criminal codes do not include it. Criminal codes of different countries may criminalize different conducts, of course. But as we all know, they tend to agree on the most serious offenses – not so much on the sentences imposed on them –, even if with some exceptions. Sedition is precisely one of those exceptions. And countries such as Belgium or the UK do not have it anymore. Second, in the Spanish Criminal Code, the crime of sedition is established by article 544, in the part of the code devoted to crimes of public disorder (Title XXII), and not, as in the case of rebellion, in the part of crimes against the constitution (Title XXI). This is weird, since all the other crimes against public order are punished with 5 years or less, even those that require some violence, while sedition may be punished, in the case of being committed by public authorities – which is precisely the case of 7 of the 9 defendants sentenced for that crime –, with 10 to 15 years.
More importantly, the crime of sedition of article 544, as Spanish criminal law professors have been denouncing for decades, is quite indeterminate. It is described as “a public and tumultuous uprising with the aim of unlawfully preventing the enforcement of the law, or the functioning of any public authority, or the enforcement of any administrative or judicial decision” (emphases added). There is not much clue to know what tumultuous uprising means or whether the prevention of any enforcement of any kind of law or administrative decision may qualify as sedition. According to many, a tumultuous uprising must include some element of violence and some significant harm, and none of them occurred. To be fair, the only real harm that was produced in those weeks of September and October of 2017, as everyone knows, was the harm of the police officers beating with their sticks hundreds of voters in the referendum trying to scare them and prevent them from voting. But the mere fact that there is such controversy about the correct interpretation of the crime of sedition should have brought the Supreme Court to pick up the most restrictive interpretation of the crime, one that would have left out the conducts the responsibility of which has been attributed to the defendants. The principles of legality, ultima ratio, and in dubio pro reo, should have been enough for the acquittal of the defendants on the charge of sedition. Instead of this, the Supreme Court opted for an extensive and insufficiently argued interpretation of the crime of sedition.
The right to protest
But there is another and more important argument to be made here. The contours of the crime of sedition, as it applies to the circumstances of this case, are opposed to the area of the democratic rights of protest, like the freedom of expression, the freedom of assembly, and the right to participate in demonstrations. They oppose to each other. Thus, the more extensive the interpretation we make of the crime of sedition, the smaller the area of democratic rights of protest, and the other way around. During the trial, many analysts gave the example of the Platform of people Affected by Mortgages, a civil organization in Spain which during the worst years of the recent economic crisis has been very successful in preventing thousands of evictions being enforced by the police, to show that nobody never thought in a case like this constituting a crime of sedition. Another example that was given is the action of the Indignados movement (the Spanish Occupy) when in 2011 they besieged the Catalan Parliament, preventing the MPs to get into the chamber one day. Even if a few of them were indicted back then, the National Audience acquitted them on the charge of preventing the representatives to exercise their functions precisely because it considered that they were exercising their right to protest and demonstrate. It is true that the Supreme Court then repealed that decision and sentenced them to 3 years – even if now the case came to the Constitutional Court, which has not decided yet. But, in any case, nobody ever thought – not even the Supreme Court – of the possibility of accusing them of sedition.
In this ruling on the secessionist case, the Supreme Court seems to have been aware of such counterexamples, and has introduced three additional elements in the definition of sedition. The idea of a public and tumultuous uprising, according to the ruling, requires such uprising to be i) massive or crowded, ii) generalized in the territory, and iii) strategically planned. These three elements seem specifically designed to fit this case in an ad-hoc basis, and leave out the two counterexamples mentioned above. In the case of preventing evictions, they are strategically planned, but not really massive, and definitely not generalized. In the case of the siege to the Catalan Parliament, was clearly massive, perhaps also strategically planned, but definitely not generalized across the territory. Thus, the ruling concludes, in a key passage in page 283, “the right to protest cannot mutate into an exotic right to physically prevent the police officers to enforce the law or a judicial decision”.
But here it is the problem. The ruling assumes that, by definition, any form of physical impediment to the task of police enforcing the law is necessarily coactive and unlawful, and therefore cannot be the conceived as the exercise of a right. But the “physical impediments” for which they make the defendants responsible are not others than sitting peacefully in the doors of the ballot polling centers. If there is a paradigm of non-violent protest, that is a peaceful sitting-in, perhaps occupying some public area. This, by definition, causes some physical impediment to the police, if they receive the order to go through the area or to take the people out of it. But how might such conduct constitute sedition?
Take this final example. In 2011 we did not only have the siege to the Catalan Parliament. The Indignados or 15M movement had occupied thousands of squares all over the territory of Spain. They were protesting under the motto of “you do not represent us”. Everything they did was non-violent. But they definitely violated some administrative norms that prevent people from camping in the squares. On May 27th 2011, the Catalan anti-riot police received the instruction to remove the campers from Plaza de Cataluña. When the patrols came, protesters sat in the floor and bent the head down. They were ordered to move. But they refused. And then the police beat them very harshly with their sticks for more than an hour. Let me be clear on this. Perhaps they did something illegal when disobeyed the authority. Civil disobedience involves some breaking of the law. But nobody thought in indicting them for sedition and sentencing them to 13 years, even if they presented “a physical impediment to prevent the police from enforcing the law”, and even if what they did was “massive, generalized across the territory, and strategically planned”.
But the Supreme Court justices should be aware that the right to protest is not an exotic right at all. It rather is, as the professor of Princeton and famous world advocate of republican political philosophy Philip Pettit advocates, the core of any true democracy. Citizens in a minimally advanced democracy must have the right to contest and protest any decision made by their authorities. This is what Pettit calls a contestatory democracy. And yes, a fully legitimacy democracy is one where you have fair and periodic elections, true representatives of the people legislating in a parliament, separation of powers, and hopefully many other deliberative and participatory processes of public engagement. But everything starts with the most basic right to protest and contest the decisions made by your authorities, which, again, is not an exotic right. More particularly in Spain, the right to demonstrate is a fundamental right acknowledged by the constitution that has priority over any other law from the parliament, including the Criminal Code. Which means that an extensive interpretation of the crime of sedition necessarily amounts to a restrictive, and therefore unconstitutional, interpretation of the right to protest and demonstrate.
For all these reasons, we must conclude that an extensive interpretation of the crime of sedition, as the one made by this Supreme Court’s ruling to fit in the facts of 2017, is unacceptable on legal and constitutional grounds. Therefore, the secessionist leaders should have been acquitted on that charge as well. We will see what happens next when the case arrives before the Constitutional Court. What is obvious to everyone is that the Catalan conflict is not only not fixed by this decision, but even farther away from finding a reasonable solution for it.
This blog post is a shorter version of an article published by the author in CTXT (Revista Contexto) in October 15th 2019.
Apart from the “tumultuous” part, and with shorter punishments, the Belgian Criminal Code has a similar offence:
Titre IV. – Des crimes et délits contre l’ordre public, commis par des personnes qui exercent une fonction publique ou par des ministres des cultes dans l’exercice de leur ministère
Chapitre I. – De la coalition des fonctionnaires.
Art. 233. Lorsque des mesures contraires aux lois ou à des arrêtés royaux auront été concertées, soit dans une réunion d’individus ou de corps dépositaires de quelque partie de l’autorité publique, soit par députation ou correspondance entre eux, les coupables seront punis d’un emprisonnement d’un mois à six mois.
Art. 234. Si, par l’un des moyens exprimés à l’article précédent, il a été concerté des mesures contre l’exécution d’une loi ou d’un arrêté royal, la peine sera un emprisonnement de six mois à cinq ans.
Les coupables pourront, en outre, être condamnés à l’interdiction des droits mentionnés aux trois premiers numéros de l’article 31, alinéa 1er[*].
Chapitre II. – De l’empiètement des autorités administratives et judiciaires.
Art. 239. Les gouverneurs, commissaires d’arrondissement, bourgmestres et membres des corps administratifs qui (…) se seront ingérés de prendre des arrêtés tendant à intimer des ordres ou défenses quelconques à des cours ou tribunaux, seront punis d’un emprisonnement d’un mois à deux ans et d’une amende de cinquante euros]à cinq cents euros.
Ils pourront, de plus, être condamnés à l’interdiction, pendant cinq ans à dix ans, des droits mentionnés aux trois premiers numéros de l’article 31, alinéa 1er[*].
[art. 31 (1) concerne, entre autres, le droit de remplir des fonctions, emplois ou offices publics et d’éligibilité]
I respectfully, but strongly disagree with my dear friend and colleague Josep Lluís Martí. His way of stating what happened in Cataluña during the months of September and October of 2017 is misleading to say the least. “Harm” is a tricky concept, if only for the fact that it is partially a normative concept. Those Catalonians who were fooled to cast a vote in a referendum that was clearly unconstitutional – and unjust- were legitimately “harmed” by law enforcers following judicial orders, but the millions of Spaniards who were deprived of their basic political rights by not having a say in the fate of our country as well as the Catalonians that would have been turned into foreigners had the secession succeeded, were severely wronged. As he rightly claims, the ruling issued by the Supreme Court is complex and the analysis of the contours of the crime of “sedition” deserves careful reading. For the moment I would only add that under a republican conception of “protest” it would be certainly exotic to defend the right of a minority of citizens to impinge on the enforcement of the law when the purpose is to defend and protect basic rights. Regardless of whether the means were violent or “peaceful”, the citizens of Alabama, not to mention their elected representatives or public officials, did not have the right to “protest” against the end of racial segregation in US universities by sitting peacefully in front of the premises of the University of Alabama. I bet that Philip Pettit, for one, would have praised the use of legal force, had it been necessary, in order to make it possible for Vivian Malone and James Hood (two African American students) to get access.
So far, I really enjoyed your balanced analyses a lot, since such have been hard to find in the last years elsewhere. However, this time the text does not appear very convincing to me – at least at first sight. After reading it I do not feel more informed, but more skeptical. In particular, I do not really see why the interpretation of the crime of sedition is to be considered that excessive in the given context, particularly because the further criteria “massive, generalized across the territory, and strategically planned” is applied. It seems to me you are picking a single sentence (“the exotic right”) of the judgement and make the case for what is believed by people, who had their opinion on the judgement already before it was delivered. And I do not have any doubt you are aware that when talking about what happened in 2017 it is far too simple to just say “harm” was merely caused by one side (since independence was declared by a minority in Calalunya and Spain, while referring to the “real people” – as it is so common again these days in Europe – without taking account of what this could mean for the regional and national majorities determined within legally established procedures). It is disappointing that by referring only to the sad pictures of the police operation you run the risk of cutting down the level of the discussion to noxious one which we are used from Instagram or twitter. All of this does necessarily not mean (and I am not competent to test it) that the result of your analyses of the judgement is wrong, however, even the sound is noticeably different to your usual blog posts. It gives cause to concern, because the authority of the few less biased voices shall not be damaged by hasty reactions. I am very much looking forward to a much more in-depth analysis by you and others, especially with regard to the possibly (even) more problematic conviction of the “two Jordis”.
Well, I think that José Luís Martí is not quite fair when saying this: “And everyone knows – in Spain and worldwide – that the Catalan secessionist movement has been, until now, essentially peaceful and civic”. This ‘argumentum ad populum’ is a fallacy, based on false facts. Everybody does know in Spain (hopefully elsewhere) that the Catalan seccesionist movement has been violent. A good example of this violent tradition is the terrorist group ‘Terra Lliure’, which is a well-known Catalan terrorist seccesionist movement (see, e.g., https://es.wikipedia.org/wiki/Terra_Lliure) and I dare say that violence is in the very essence of the Catalan seccesonist ideology. Actually, we can verify its increasing disposition to violence in the recent riots in Barcelona. In fact, everybody does know that the actual President of the Region (who has stated that “Spanish-speaking people are wild beasts”) has publicly suggested the use of violent pressure on the Spanish Government and has also encouraged citizens and institutions to civil disobedience with regards to our Supreme Court decision. This is particularly absurd, since he is the representative of the State in Catalonia; but, to tell you the truth, rationality has always been missing in the Catalan secessionist ideology.
Thanks to all four for your comments. Let me clarify a few points. First, regarding the Belgian Criminal Code, we also have a crime of public disorder with similar sentences (up to five years). But we also have sedition as a distinctive crime, with sentences from 10 to 15 years in the case of public authorities (and in that sense, quite close to the crime of rebellion).
On the other hand, it is true that Terra Lliure was a terrorist secessionist movement. I was talking about the recent developments, from 2010 onwards, when everybody knows that secessionists have been organizing one march after another, and have publicly declared to subscribe the principles of non-violent action and democratic protest. I don’t think you can fairly say, Alfonso, that “violence is in the very essence of the Catalan secessionist ideology”. I think this is plainly false. And I think everyone knows it is false.
It is true, my friend Pablo, that all these issues (the notion of harm, the contours of sedition, and the limits to the rights to protest) are complex. I didn’t ever mean that this is black or white, a matter of obvious, self-evident truths. As always in the legal sphere, we are involved in an argumentative process. And some things are more clear or obvious than others. A sentence for rebellion would have been such an international scandal because it is precisely one of those issues in which we might (or should) have a widespread agreement in how it should be decided. In that sense, as I say in my post, it is correct what the Supreme Court says regarding rebellion. Now, when we turn to sedition, I don’t think the reasons why the ruling is not correct or is, as I argue, unconstitutional, are necessarily crystal clear and self-evident. They are complex. But I defend the view I find correct, even understanding that others might differ and have arguments for a different view (this is, as you know, how the law works in the end).You are very right on the illegality and illegitimacy of the so-called referendum in October 1st, and on how one-half of the Catalan population tried to impose unlawfully their views to the other half and to the rest of the Spanish people. I agree on that, and I’ve written about this in the first two posts I cite in this text that I published back in 2017 (the two of them published before October the 1st, by the way). We fully agree on this. However, calling for an illegal (unauthorized) referendum is not a crime in Spain. Preventing or impeding the enforcement of the law IS a crime, a crime of sedition, but we need to interpret that crime in a way that, first, is congenial with the seriousness of the sentence imposed (again, 10 to 15 years, not as in as minor case of resistance to authority), and second, in the way that maximizes the protection of the fundamental rights to protest and demonstration. What secessionists did in October 1st was simply using very traditional techniques of social protest, like sitting-in and chaining them to the door, to make the task of police officers harder, yes, but that task was not (and here I’m afraid we probably disagree) to protect the fundamental rights of other people, as in the case of Alabama that you mention. What would have happened if police officers would have refused to use violence against the citizens -including old ladies- sitting in front of the doors of the polling centers? Nothing. As it actually nothing happened. The secessionist leaders first claimed that the referendum had been valid despite all the riots and acts of violence. But now nobody -or very few people- believes that such referendum were valid and can be used to know what is the will or the opinion of the Catalan people. By organizing an illegal and illegitimate referendum they were imposing it to the other people, but with no legal implication or effect, and therefore without violating any fundamental right of the non-secessionist Catalans or the rest of Spaniards.
Finally, thanks Gentman for the comments. I regret that you didn’t like my opinions as much as in other occasions. I did my best, I can tell you, to be as balanced as I could. I don’t deny that I might be biased (even if I’m not secessionist myself, and have no sympathy for what they did in October the 1st, and in any case, who is not biased to some degree?).But I disagree with you in one thing. I’m not making my case by cherrypicking an unfortunate sentence, out of thousands. The paragraph I cite in page 283 is the absolute key for the judgment on the sentence for sedition. And it is totally fair that I focus on it. The Spanish Supreme Court interprets that the right to protest does not include the right to peacefully sit-in in a public space and make the task of police officers a bit harder, and that such interpretation would be exotic. And what I am saying is that they are very wrong on that. The rights to protest, which are central in our democracies, must contemplate that scenario as a paradigmatic and fully acceptable case of democratic protest, and therefore not be criminalized, and even less with such long sentences).
Thank you all for your contributions!
Jose L. Marti
I completely agree with De Lora and García Figueroa comments. And I’d like to make two additional points:
1. Nobody has been sentenced for sitting in a public space to make it harder for the police to accomplish with a judicial mandate. The sentence punishes some members of the Regional Government (i.e, public authorities, especially bound by the law) for organizing public, massive and widespread resistance against the fulfillment of the law and the judicial orders.And the global decision includes the punishment for using public funds for illegal objectives.
2. Articles 412-1 and 412-2 of the French Penal Code affirm that:
412-1:”Constitue un attentat le fait de commettre un ou plusieurs actes de violence de nature à mettre en péril les institutions de la République ou à porter atteinte à l’intégrité du territoire national.
L’attentat est puni de trente ans de détention criminelle et de 450 000 euros d’amende.
Les peines sont portées à la détention criminelle à perpétuité et à 750 000 euros d’amende lorsque l’attentat est commis par une personne dépositaire de l’autorité publique”.(…)
412-2:”Constitue un complot la résolution arrêtée entre plusieurs personnes de commettre un attentat lorsque cette résolution est concrétisée par un ou plusieurs actes matériels.
Le complot est puni de dix ans d’emprisonnement et de 150 000 euros d’amende.
Les peines sont portées à vingt ans de détention criminelle et à 300 000 euros d’amende lorsque l’infraction est commise par une personne dépositaire de l’autorité publique”.
When dealing with this criminal figure, one expert wonders if “moral violence” would be included. And makes the point: what would happen if, for instance, the President of the Republic would refuse to call for elections, or if he assumed extraordinary powers, as foreseen in art. 16 of the French Constitution, when the constitutional requirement are not met? May be the UK or Belgium do not have such experience… but Spain and France do know what happens when authorities assume powers which go well beyond the laws.
The right of protest has never covered the breaching the rule of law, invading with violence airports, cutting main roads, opressing and discriminating catalans who are not nationalists. This is the case in Cataluña. The most conservative part of the society, after governing their country the last forty years pretend to be oppressed and colonized by the emigrants coming from of other parts of Spain or by non nationalists catalans. Never forget that Cataluña is the richest region in Spain,
Well argued position, as one expects from a University vicerector. However, it is not fully clear whether the author thinks the “right to demonstrate” is absolute, ie, under no circumstances it can derive in a crime, or whether such limits might conceivablyexist. I suppose that he would argue, from a philosophical point of view, that some limits surely must exist. Therefore one misses a discussion of whether the actions from the Catalan government and Parliament in 2017 lie or not beyond these limits. They’ve been found guilty not of demonstrating or merely talking, but of orchestrating a massive movement of hundreds of thousands of people to disloyally attack the Spanish rule of law within Catalonia. Surely, a proper discussion of whether this organisation, from within the state itself, of an attack against the state itself, is beyond the “right to demonstrate” would have been welcome.
Thanks again for these further comments. Here a brief reply to some:
1. Yes, the global sentence include, in the case of four of them, punishment for misappropriation of public funds. It is also true that Carme Forcadell, who was not charged of misappropriation but only sedition, has been sentenced to 11 years and six months, while Bassa, Romeva and Turull, who had both charges, have been sentenced to 12 years. So the sentence for misappropriation does not seem to have had a very large impact.
2. The article 412 of the French Criminal Code is the equivalent of the Spanish crime of rebellion, and it requires, as in the Spanish case, the element of violence. The crime of sedition, in the Spanish Code, is not a crime against the constitution or against the integrity of the territory. It is totally disconnected from that. It is a crime against public order. Very hard to justify so long sentences just for create some disorder.
3. My position as vicerrector is irrelevant. It is my condition of law professor specialized in democratic fundamental rights what helps me to have some adequate background. I agree of course that the right to demonstrate, as any other right included in the constitution and the international charters and conventions of human rights, has limits and is not absolute. From a legal philosophical point of view, I can tell you that one obvious limit is the use of serious physical violence against others. We are seeing it, unfortunately, these days in the streets of Barcelona. People have the right to demonstrate civically and peacefully. They don’t have any right to throw stones and Molotov Cocktails to police officers or any other person. Apart from this, which I take to be the simple case, there are technical, complex and very interesting discussions about two further potential limits. One refers to which is the degree of violence that is acceptable, if any (I think verbal violence or psychological violence against police officers, for instance, should be tolerated, but there is discussion about this). And the second refers violence over things. Should we tolerate people breaking objects or invading private property? Some people are inclined to say that violence over people is never justified, and therefore is always a limit to the right to demonstrate, while violence over things should be always justified. But I take this view to be too simplistic. Some degrees of violence over persons (such as verbal violence, if that may be considered violence at all) are to be tolerated, while certain kinds of violence over things may be so serious and terrible that would be unjustifiable (for instance, burning a whole building, even if you know that there is no human being inside). So yes, there are limits. My view is that we didn’t witness any action back in 2017 that could fall into any of these categories of limits.
I’ll remind that diversity issues, and questions regarding minorities are managed in many countries in a very simple way: Let the composition of the jury reflect the diverse composition of the people over which the rule of law is applied. Nobody would understand that a criminal case in the USA, for instance, in which a racial minority suspect is to be tried, could be delivered by an all-white, or all-black homogeneous jury.
Or that in a violation trial, an all-men, or all-women jury could deliver a fair trial.
The verdict reflects views the views of people at the court, it depends heavily on who is chosen for the jury, quite in a predictable and straightforward way.
And the commentors, the attorneys, the scholars, all have very conveniently forgotten about it. They chose to pretend that law is the same for everybody, we are all equal before law, and I must agree. But why then -if it is irrelevant to the result – why, I ask, dont we let the defendants in this case choose the composition of the jury, the prosecutor, the judge, or the whole group of deliverative lawyers ? If the result is to be independent and only reflect the uninversally valid and objective law, it should make no difference, should it ?
But everyone knows that it makes a difference. There are things in the heart that the law cannot consider nor even imagine, but people certainly do.
We have here a bunch of people that are tried for high crimes and belong to a minority, a national cultural, linguistic and historical minority, and the whole group of people that are to weigh in the legal arguments, the evidence and deliver justice, just happen to belong to a different culture, language, historical community. And we expect a fair verdict ?
And when we discuss the ruling, we dare ignore these facts ?
No wonder the end result was and is futile. The ruling is not fair nor unfair, it is just senseless, and as such will be shortly overthrown by the people and the overthrowing will be accepted and executed the legitimate government either from Madrid or from Barcelona, in due time and form as they will dim appropriate. The ruling will and must be nulified, and it will be done through another unfair procedure, any trick they will find out that does the work. Unfortunately, the damage will be then irreversible, as these people have been jailed for two years in prevention, disrespected in the eyes of their fellow men and women that voted for them, treated in a most abusive way (remember just their transfers to jail and to court, handcuffed, in a non-protected seat at he back of a speeding van), as only criminals are.
I’m not overstating and disrespecting the task and work of lawmen, police, and all law-enforcement people and agencies. I’m just saying that they -and you- have all forgotten about essential issues that pertain the case and that -as I argued- a jury composed of lay people would have certainly not.
Dear Mr. Batalla,
After reading your comment, I wonder what criteria are needed to form the courts at any given case. Or, better to say, I wonder who is going to decide those criteria case by case: only men for judging men, only policemen to judge polices, only basques for judging basques? In my view, the only answer is to use the criteria previously and generally formalised by the laws. Laws that, by the way, have usually been passed in the Spanish Parliament by a huge majority of the representatives of all the Spanish citizens (including of course, those elected by a huge majority of the Catalans in any of the 14 free elections held for the Spanish Parliament since 1977). Certainly, that is difficult to understand for those who do not accept the rule of law… even when they have accepted and voted in favor of the law (as it is the case of the Spanish Constitution, the Spanish laws on Judiciary, on Criminal Procedure, the Criminal Code, and so on… which never found any particular opposition by catalan MPs), or the procedures legally foreseen to solve any constitutional or legal conflict. Of course, anyone can freely and at any time change his/her mind. But one has to follow certain procedures to change the laws. In any case, all Spanish authorities -including judges and authorities of any Autonomous Community- are bound by the Constitution, the laws and the international instruments agreed upon by Spain. Therefore, any legal dispute will find a legal solution… according to the objective criteria of (and adopted by the courts defined by) the existing laws.
Dear Mr Sánchez,
If you read my comment you’ll notice that I made clear that an all-basque jury could not fairly deal a case regarding basques,.. IF AND WHEN the ofense which is tried relates to the fact that they are basques. Likewise a no-basque jury could not be fair in that case.
You can figure out the posssible extensions and derivations of the argument.
And no, a policeman need not be judged by policemen. This is not a minority. To people belonging to a secular traditional majority, this can be problematic to understand, but has nothing to do with privilege. Minorities are defined by the fact that they belong to a group that is easily identifiable but impossible to change by the member. Classically, religious, ethnic and linguistic groups. This people are historically and demostrably prone to being abused by the majority, and much more so under democratic regimes. Their plight becomes paradoxically worse in democracies than it was in monarchies or (arguably) in dictatorships (provided they were not so unlucky to be hated by the dictator).
Democracies have an inherent tendency to opress minorities, and force them to comply, adapt or else face the risk of extermination or deportation.
The czechs, the jews, and the poles were much more kindly treated under the Austro-Hungarian monarchical rule than they were under the parlamientary democracy of pre-war germany (yes, it was, at least nominally). The german minority in Tchechia were likewise much worse abused in postwar Tchecoslovakia than under Habsburgs.
Also, I believe that catalans are being treated worse in democratic Spain than they were in fascist Spain under Franco (though the were also opressed and there). I don’t expect any Spaniard to understand right away nor agree, and I would not like to discuss).
The main point is understanding what a minority is (nothing to do with professional, political or otherwise voluntary groups and associations).
I mentioned the case of blacks in the USA because it is a case where the nature of the problem has bern finally acknowledged and (largely) solved.
So, in summary, a ‘balanced’ jury is needed when a minority member is tried in a case related to the fact of belonging to such group. The majority members usually resist to accept that, for good reason. Their argument will be that ‘he is not tried for being such or such’, but for having violated the law. That’s why in the US, all trials of black defendants include some black members, and usually in good proportion, otherwise the verdict is easily nulified by a higher court.
In the case at hand, it is evident that being catalan was relevant to the case, since all defendants were catalans. A balanced jury or group of justices and prosecutots should have been chosen, otherwise the injustice was predictably guaranteed.
Mr Lora’s comment comes handy because it summarizes most (if not all) the arguments that are used to justify the ruling. I’ll take to comment-the-comment in some detail, to ‘stress test’ its consistency. Mr. Loras words are in double quotes..
“I respectfully, but strongly disagree with my dear friend and colleague Josep Lluís Martí. His way of stating what happened in Cataluña during the months of September and October of 2017 is misleading to say the least. “Harm” is a tricky concept, if only for the fact that it is partially a normative concept. Those Catalonians who were fooled to cast a vote in a referendum that was…”
— ‘Catalonians’ is a novelty to me. The proper name is ‘Catalans’. But will not argue on this. Just remind that it is still the usuak custom to mis-spell catalans words that need nor admit no translation, like toponims, the name of our secular autogoverment institution and others (‘Generalidad’ for ‘Generalitat’ being the most prominent). 500 years after being united in a common State, looks weird.
— They were fooled? That depends on whom you ask. It is an opinion, as valid as that of the 2 million people that cast their vote, who obviously did not feel so.
‘Harm’ is tricky? I’d always thought it is one of the most basic and clear concepts to the normal lay person. But any concept can get tricky on close analysis. Let’s see.
“…clearly unconstitutional – and unjust- were legitimately “harmed” by law enforcers following judicial orders, but the millions of Spaniards who were deprived of their basic political rights by not having a say in the fate of our country as well as the Catalonians that would have been turned into foreigners had the secession succeeded, were severely wronged. “
— ‘Clearly unconstitutional and unjust…’
This is a crucial point. As a matter of fact, Mr Loras claim looks not so clear, for neither the Spanish Constitution nor the Spanish Criminal Law say anywhere that a referendum cannot be carried out. Rather one would think that it is encouraged, as it defines the state as a representative democracy. The Constitution does say that the country is united and cannot be separated from any of its parts, as all constitutions in the world solemnly proclaim. It also states, obligingly, that the Constitution itself can be changed. How can it then prevent the people from being questioned about it? It says nowhere.
The Constitutional Court (henceforth the ‘Constitutional’) issued the ban of a referendum after learning that the Catalan Government was planning on it. In more than a sense, this was a new rule made ad-hoc for political goals, a very concerning way to qualify the 2017 referendum in Catalonia as ‘unconstitutional’.
Rather, is seen by many as an excess that the Constitutional Court is used to enforce new laws and rules, acting as a last resort High Court (in Spain this role is entrusted to the Supremo, which should be the highest of all, as the ethimology suggests). But furthermore, this role, especially when used as often as has been lately in Spain, undermines and bypasses the legislative power of the Parliament, were all laws are passed under the people’s scrutiny, in an explicit recognition that the power lies with the people, a detail that has been long and repeatedly ignored.To mind comes the not so distant rewriting of the Autonomy Statute for Catalonia by the Constitutional, after it had been approved by the Catalan Parliament, then by the Spanish Parliament, then repelled in a famous ruling. This was a serious case of abuse of the judiciary, used as a last political instance, behind and out of control of the Parliament. All in all we could say that the Constitutional, a non-elected state agency usually under the control of the party in power is used against the explicit will of the people both to repel and to create new rules, which of course can be legal, but hardly democratic and repectful of the separation of powers.
Indeed, it is not inconceivable the the ruling itself was unconstitutional, as many believe, but of course, the current valid legal interpretation does not uphold this view.
— “…and unjust.”
An ambiguous term, something inbetween illegal and ilegitimate. I feel that none of them applies. The former because of the previous point. The latter, because asking the people for their preferences and wishes is one of the nicest and most legitimate things any government can do. But Mr. Lora uses the intermediate term, which of course has not legal definition, so there’s no way to know.
— ‘Those Catalonians (…) were legitimately harmed’
Here Mr Lora goes for the ethical sense. Unfortunately, as everyone knows, legitimacy usually acords with but really goes far beyond legality. It appeals to personal ethics and moral values, which, in case of discrepancy are in a higher rank. I’ll assume there’s no question about this. The claim that riot police officers hitting unarmed, unprotectd civilians could be legal, I’ve already accepted as possible, but that this was legitimate, I think is overstreching the term.
— ‘The millions of Spaniards who were deprived of basic political rights’
It is weird that expressing in an orderly, civilized way your will and wishes with regards to the desired political organization of your country can deprive anyone of ‘basic political rights’. I will not argue that these Spaniards could have felt uneasy, threatened in their future prospects or even offended by those casting their vote, but deprived of political rights? Quite the opposite, it seems to me that the right of expressing themselves was much reinforced, as they were now more likely to be allowed to do the same thing. But this is the key:
The victim becomes suddenly the criminal and wrongdoer. And for the same crime!
— ‘…the Catalonians that would have been turned into foreigners had the secession succeeded, were severely wronged’
A seccession is what many catalans wish, but what was done is a referendum, not a secession. Again a certain amount of confussion in terms. Why some people should become ‘foreigners’ after a referendum, we do not reach to understand.
If following a positive result of the consultation a democratic process starts that eventually results in secession, this is not wrongdoing, but true civilized democratic behavior. That’s why the wrongdoing has to be clinged on to a non-existing secession. I’ll repeat: Had the consultation led to secession by democratic, peaceful means there would be no question of wrongdoing, safe for those who then opposed secession violently. But of course, this way, the civilized, democratic way means that the referendum must be held before the secession, not the other way around. The inversion of the terms is directed at 1) Making the whole thing impossible and 2) Justifying the accusation of wrongdoing.
“As he rightly claims, the ruling issued by the Supreme Court is complex and the analysis of the contours of the crime of sedition deserves careful reading. For the moment I would only add that under a republican conception of “protest” it would be certainly exotic to defend the right of a minority of citizens to impinge on the enforcement of the law when the purpose is to defend and protect basic rights.”
– The enforcement of law gets ‘impinged’ when you feel the government abuses you repeatedly. Whether a republican or any other type of conception is involved, makes no difference.
On the ‘contours of the crime of sedition’, the expression seems to be forced by the fact that no sedition occurred. But since the thing is complex and deserves careful reading, who knows.
“Regardless of whether the means were violent or “peaceful”, the citizens of Alabama, not to mention their elected representatives or public officials, did not have the right to “protest” against the end of racial segregation in US universities by sitting peacefully in front of the premises of the University of Alabama. I bet that Philip Pettit, for one, would have praised the use of legal force, had it been necessary, in order to make it possible for Vivian Malone and James Hood (two African American students) to get access.”
– We do not have at our disposal the information on the referred events in Alabama. But I think we agree with Mr. Lora that, whatever hapenned, the people from Alabama owe their past and current status to an heroical and painful secession from the British State that paved the way to a model of democracy, freedom and legitimacy, admired the world over.
“A seccession is what many catalans wish, but what was done is a referendum, not a secession. Again a certain amount of confussion in terms. Why some people should become ‘foreigners’ after a referendum, we do not reach to understand.”
Maybe reading the Acts passed by the Catalonian Parliament on September 6 & 7, 2017, would enlighten the discussion: According to Law 20/2017, on juridical transition and foundation of the Republic, a new catalonian nationality was established with strict criteria. And according to Law 19/2017, on the referendum on self-determination of Catalonia, “If the counting of votes validly made gives a result of more affirmative than negative votes, it shall mean the independence of Catalonia. To this end, the Parliament of Catalonia shall, within two days of the proclamation of the results by the Electoral Commission, hold an ordinary session to issue the formal declaration of independence of Catalonia, specify its effects and commence the constituent process” (art. 4.4).
You can read those texts in Wikipedia (https://en.wikipedia.org/wiki/Law_of_juridical_transition_and_foundation_of_the_Republic, https://en.wikipedia.org/wiki/Law_on_the_Referendum_on_Self-determination_of_Catalonia).
Maybe the difference between a “symbolic referendum” and a full fledged seccession becomes clearer.
“Tyrannical rule is not just, because it is not directed to the common good but to the private good of the ruler, as the Philosopher shows at Politics III and Ethics VIII. Disruption of such a government therefore does not have the character of sedition, unless perhaps the tyrant’s rule is disrupted so inordinately that the community subject to it suffers greater detriment from the ensuing disorder than it did from the tyrannical government itself. Indeed it is the tyrant who is guilty of sedition, since he nourishes discord and sedition among his subjects in order to be able to dominate them more securely. For this is tyranny: a form of government directed to the private good of the ruler and the injury of the community.”
(Thomas Aquinas, Summa theologiae II-II, Q.42. On sedition. Art 2: Whether sedition is always a mortal sin. In Aquinas Political Writings, Ed by R.W. Dyson, 2004, Cambridge University Press, Cambridge, UK)
That the Statute of Autonomy for Catalonia was overturned by a non-elected group of juries after being approved by both the Catalan and Spanish Parliaments may not be what we usually understand by a tyranny, but it does resemble it quite a lot.
The essential characteristic of secession in Aquinas’ eyes is the disruption and discord caused against a society, whoever may cause it.