Double sentence

Apart from the outcome, one of the aspects which most draws attention to the ruling on the 2017 independence bid is its obsession with condemning the very idea of a political project for independence. Spain’s Supreme Court does not question independence as an ideology, instead it trivializes the consistency of the process, not hesitating to call it a "chimera", a smokescreen created by political leaders who knew it was unworkable. The ruling makes a moral and political condemnation of the independence leaders, depicting the Catalans as victims of what it would not be an exaggeration to call, according to the court’s logic, a huge fraud perpetrated on the public. Behind the promise of independence there was nothing more than the desire to put pressure on the Spanish government to negotiate.

I have written on various occasions, for this very newspaper, of the difficulties that independence supporters would face in succeeding by going down the unilateral path. Apart from the problems facing its chances of success, the unilateral option would also generate many risks, as unfortunately has proved to be the case. It is apparent that we need to accept part of the political blame. One day we will have to calmly deal with it, though the judicialization of the situation has prevented us from doing so as of yet.

Nevertheless, this is not what I am interested in highlighting today, with the verdict still fresh in our minds. What I would like to point out is the Supreme Court’s arrogance and lack of logic when, on the one hand, it can’t resist the temptation of labelling the process as the work of a bunch of amateurs and, on the other, applying the law with the utmost rigor to what was apparently only a pantomime. The court does not mince its words when it says that what happened in Catalonia in the autumn of 2017 (including 20 September and 1 October) did not represent a threat to the state. It stresses the fact that the publication of the BOE [Boletín Oficial del Estado, or Official State Gazette] and the measures outlined in Article 155 of the Constitution were sufficient to neutralise any threat and that the government maintained control over all forms of power, whether military, police, judicial, or even social.

The ruling emphasises that the independence bid did not endanger Spain’s territorial integrity nor threaten the State’s ability to function as usual. However, this desire to play down the process causes the Supreme Court to make a huge mistake which weakens the arguments behind the guilty verdicts. If what happened did not pose any real and imminent danger, why is what happened being treated as sedition? Is this not a contradiction which is totally inconsistent? The crime of sedition is not an ordinary crime. It is an extremely serious crime which should only be considered when a tumultuous uprising occurs which is likely to threaten the state, that is, it must be a violent uprising or sufficiently powerful to intimidate or threaten to overcome the force of the state’s institutions.

The Supreme Court claims that this uprising took place in order to prevent the application of laws and to interfere with the carrying out of court orders. However, it does nothing to attempt to assess the intensity and suitability of the events to actually warrant charges as serious as sedition. The ruling trivialises sedition and in so doing it creates a new problem, with serious consequences for those who exercise such fundamental rights as the freedom of association and the right to demonstrate in the future. This would represent a significant loss of our democratic freedoms.

Traditionally, the Spanish judiciary have modelled themselves on the German doctrine. And it is worth reminding ourselves that this doctrine, including the jurisprudence of Germany’s Supreme Court, insists that the most serious charges against public order can only be brought when there is a real risk that they threaten the organs of the state. In other words, the events are sufficiently serious that they generate enough pressure to force a government to bend to the demands of those who are responsible for the uprising. Obviously, such a situation has not occurred when the state is able to resist the coercion to which it is subject and it can deal it without the need for extreme measures. The Supreme Court acknowledges that the state did not need to take extreme measures, yet fails to reach a logical conclusion, such as considering less serious crimes against public order other than sedition. Aside from debasing the independence process, the ruling can’t resist the temptation to send out a warning to its supporters. It seems that it wishes to impose a double sentence. This allows one to speculate as to how and to what degree they base their arguments on the law and the reasons of state, and to what extent it is a thinly disguised desire to intimidate their opponents.