After failing in negotiations for a new fiscal arrangement, Mr. Artur Mas (then-Catalan Premier), called and won the 2012 regional elections with a clear promise: to convene a poll on whether Catalonia should be an independent state. More than 80% of MPS in the Catalan Parliament voted in favour of this poll.
Mr. Mas officially announced the poll date: November 9th 2014. After several legal proceedings, the initial “formal poll, not a referendum” became a “non-binding participative poll” as laid down in existing Catalan legislation. The Spanish government took less than two weeks to challenge the announcement of what was by then considered as a straightforward participatory process without any legal effects. It also asked the Constitutional Court to suspend the event, and five days before the ballot boxes were opened, it was suspended. The Catalan government was informed of the suspension by email with a generic text.
Nevertheless, the non-binding participative process went ahead as scheduled, thanks to more than 40,000 volunteers that took part, who were in charge of opening polling stations, coordinating the process, starting up the computing system to guarantee the implementation of the process and making públic the results: more than 2,400,000 people, that is, 42% of those eligible, voted in the most massive demonstration (other than elections) in the country’s history, with 81% of participants voting Yes.
The high turnout and a press conference on the same day, November 9th, given by president Mas, rounded off the success of the non-binding participatory process. This moved the State Prosecutor – at the request of the Spanish Government run by the Popular Party, which appoints the Attorney General – to decide to present criminal charges against Mr. Artur Mas (President of the Generalitat), Irene Rigau (Minister of Education) and Joana Ortega (Deputy Prime Minister) on grounds of administrative or judicial disobedience, misconduct (that is, carrying out administrative actions in the knowledge that they are illegal) and embezzlement of public funds (spending public money on inappropriate actions).
The Prosecutors of Catalonia refused, initially, to lay these charges because they considered that no criminal offence had been committed, but finally, under pressure from the Spanish Government, -which even led to the resignation of the then-Attorney General and his replacement- the charges were laid and investigated until the trial opened on Monday, February 6th , 2017.
During the investigation, the prosecution withdrew the charges of embezzlement of public funds. Thus, the court only had to rule on the crime of misconduct, that is, if the defendants did or failed to do things related to holding of the participative process after receiving the 4 November 2014 Constitutional Court notification of the suspension of the participatory process. They are also being tried on charges of disobedience, that is, whether from that day on they disobeyed a court order, as the prosecution will try to show.
The Prosecutor’s requests entail punishments of debarment from public office, and fines. If convicted, the defendants will not be allowed to exercise any public executive or representative position: president Mas for ten years and former Ministers Ortega and Rigau for nine years.
Being a trial that is deeply rooted in conflicting political decisions by the governments of Madrid and Barcelona, there are strong suspicions that if the Catalan High Court (TSJC) has allowed the trial to open, the verdict can hardly be an acquittal.
The most significant technical issues are formal aspects of the defendants’ notification of the suspension of the participatory process; these contravene all existing case-law of the Spanish Supreme Court, and should have been dealt with in the investigation phase.
An acquittal would amount to the complete failure of the functioning of the judiciary, which would be deeply affected in relation to essential elements: its independence from the other branches of the State, and respect for the fundamental rights of the person, among which there is the right not to be unnecessarily subjected to a media-hot trial such as this one.
It should be kept in mind that the evidence of the material elements of the specification of criminal deeds can only be done through merely instrumental evidence – such as the testimony of witnesses, who might have contradictory personal interests or visions on the grounds of political ideology – or through documentary evidence, such as the appearance of invoices date after the communication of the suspension. These do not prove that the orders had been made after that date or even that that had been made at any time, or that those that had been made could have been stopped by the defendants.
At that moment, the whole process was already in the hands of volunteers (who have been acquitted of any offence), as the 9N poll would not have been at all possible without their participation.
This leads to an utterly irrational situation, in which the intellectual authors of the process could be found guilty, while those that actually carried it out have been acquitted! And if that were not enough, the notification to the Government on November 4th 2014 did not make any direct, personal call on the defendants to cease performing any specific activity, or personally warn them of any criminal consequences that disobeying might entail. This simple fact should have been enough for the investigation to be shelved before the trial. If this has not been the case, it can only be understood as being the result of the political obstinacy of a State that is not willing to admit that its territorial integrity has been disputed by some of the inhabitants of its territory for centuries.
Lawyers for Independence – Catalan National Assembly (ANC)
Original (in Catalan): https://assemblea.cat/?q=node/11795