From freedom (2)

It is significant that the judge imposed the most extreme measure in consideration of factors which were not even raised by the public prosecutor and against which I was unable to defend myself

It's 10 in the morning on a normal day, the same as any other day in Soto del Real. I have just finished the 40th lap of an inner courtyard —as are all courtyards in prisons—. My daily routine helps me keep my legs strong and, more importantly, my head clear. A six-kilometre walk after breakfast at a brisk pace, even though I’ve no train to catch. Here a judge decides on the arrivals and departures and it makes no difference if one runs faster or slower.

The decision to order our detention has sparked numerous debates as to the relationship between the justice system and political power in Spain. At this stage, the debate surrounding the politicisation of the justice system is of little interest to me. Not because I don’t have an opinion on the matter, but because I believe that most people have already made up their mind and the same old arguments are unlikely to make then change their opinion.

I won’t speak about the justice system in general, therefore. At this momentous political and historical period, it is crucial that people forget about generalisations and, instead, deal in concrete examples, events, situations and solutions. Facts —defended by some and abandoned by many of us who participate in public debate (whether activists, politicians or journalists)— may be able to help us, to debate and strengthen bridges of agreement and, in in a worst-case scenario, mend fences.

It is not a matter of abandoning the debate about ideas; It is about giving prominence to concrete facts which support ideas and arguments and thus present clearly defined proposals. Perhaps this will require a new space within which dialogue will be possible.

An unquestionable fact is that few people have used their power to influence and condition political life in Catalonia and Spain to such an extent as Judge Lamela. A person in her condition and position ought to consider all the options open to them while also evaluating the possible consequences, whether personal or collective, that might result from their decision. The most worrying aspect in our case is that the judge opted to take the most drastic measure: prison without bail. What is more, it took place in a trial in which the procedural guarantees required in accordance with Spanish legislation were not evident, but instead glaringly absent.

A second rather obvious fact is the speed of Judge Lamela’s decision. In the case of Jordi Cuixart and myself, it took little more than an hour for her to decide to keep us in remand without bail. In the case of Vice President Junqueras and ministers Bassa, Borràs, Turull, Mundó, Forn, Romeva and Rull, just over two hours, perhaps with a quick break for a bite to eat.

It seems apparent that any deliberation and weighing of the possible measures to take, if they ever took place, occurred prior to the day we were sentenced to prison without bail

Obviously, how long she took isn’t everything, but it is a factor that can offer us clues as to whether Judge Lamela approached the case with doubts and a series of questions regarding her eventual decision, or whether she had already made up her mind, with little or no inclination to change her opinion as to which decision to take, based on the arguments presented to her by the defendants and their counsel.

We have no idea whether the decision was entirely or partially premeditated, but in any case it seems apparent that any deliberation and weighing of the possible measures to take, if they ever took place, occurred prior to the day we were sentenced to prison without bail.

A third indisputable fact is that in my and Jordi Cuixart’s case, the Public Prosecutor did not request prison without bail until after our hearing. Therefore, since one cannot believe that the judge knew before the defence and the defendant themselves the intentions of the Public Prosecutor's Office —which if it were true it would be an outrageous breach of procedure— it seems likely that the decision to sentence us to prison without bail was taken without dedicating the bare minimum length of time to weighing up the alternatives.

Which brings us to a fourth and equally indisputable fact. Judge Lamela saw our case as so cut and dried that she sentenced us to prison without bail based on three factors: the risk of skipping bail, the possible destruction of evidence and the possibility that we would commit the same alleged crime again. The judge was so sure of the situation that she decided it warranted the most extreme measure, prison without bail, for two factors which the National Court prosecutor had not even put before the court.

It is unbelievable that the judge imposed the most extreme measure in consideration of factors which were not even raised by the public prosecutor and against which I was unable to defend myself. I thought the days were over when judges made decisions based on criteria which weren’t raised by the Public Prosecutor, the prosecution or the defence council.

As I said at the start, I’m not interested in hypothetical questions as to whether the justice system has become politicised or whether justice is indeed fair. All I want to know, is, to what extent can Judge Lamela’s extreme measures be considered lawful?