End of the second act, beginning of the third

Following Tuesday's testimony from Jordi Cuixart, President of Òmnium Cultural, and Carme Forcadell, former president of the Catalan Parliament, the second act of the trial against the Catalan political leaders that began two weeks ago came to a close. The first act ended when the court responded to the preliminary questions raised during the interventions of the defenses and plaintiffs. The second began with the testimony by Oriol Junqueras, former vice-president of the Catalan government, and ended with Carme Forcadell’s. The third part began with the cross-examination of the witnesses.

Contrary to what thas been reported by several news outlets, the first two acts are the most important from the perspective of the charge of rebellion. According to the definition of the crime of rebellion given in Spanish legislation, it is in these initial phases when it must be proven that the defendants' conduct can be legally classified as constituting this crime.

I do not mean to say that in these phases the commission of the crime must be proven, but instead simply the possibility that the conduct could be so classified legally. If the behavior cannot be characterized in this way, any subsequent evidentiary elements are irrelevant. They will be relevant for other possible criminal actions, but not for rebellion.

And this is so because the violence that constitutes the crime of rebellion must be present in the design of the operation, it must exist prior to the initial moment of the operation. The violence that constitutes rebellion cannot be an outgrowth; that is to say, the result of violent episodes not planned as such and that occur during an operation that did not include them in its design. If there are occasional episodes of violence, whether few or many, these may result in criminal charges of some sort or other, but never the crime of rebellion. This is precisely what will be the subject of the evidentiary activity that will unfold in the coming weeks.

But the adjective “violent”, which qualifies the noun “uprising” in the definition of rebellion, must be a part of the design of the rebel operation by the intellectual authors of said operation. Furthermore, it must be proven that the intellectual authors have carried it out. But if the actions of the defendants does not indicate any intellectual responsibility for the design of a “violent uprising”, it is not possible even to take rebellion into account as a legal classification of their behavior.

It was precisely this that prompted the High Court of Justice of Schleswig-Holstein, in Germany, to dismiss the arrest and delivery warrant issued by the Spanish examining magistrate [against the exiled Catalan leaders]. The facts —I repeat, the facts— that appeared in the narrative constructed by Judge Pablo Llarena did not match the legal definition of rebellion because the nature of the violence described in the judge’s account of events was not “concocted", but "unplanned", which can occur during the exercise of basic rights and public liberties, such as the right of assembly and demonstration or the right to strike. For this reason, the German court said, if the argument of the examining magistrate were taken as a given, the exercise of indispensable basic rights that are essential under any rule of law worthy of the name would be unfeasible.

And that is what the object of the first two acts of the trial was. And what has been clearly accredited is that there was no "violent uprising" masterminded by the defendants. It remains to be seen if there was any type of violence that occurred as part of the exercise of rights during the protests against the ban on the referendum or the search of the Catalan Ministry of Economy HQ. This is what will have to be seen from now on. But everything to come from now on will be completely irrelevant from the perspective of the crime of rebellion.