THE TRUTH ABOUT CATALONIA’S BID FOR INDEPENDENCE

Last update: 28 November 2019

This document is subject to the evolution of the events it contains and will be periodically updated. Please note the date of the last update and, if necessary, request the latest version from: [email protected]

This edition has only been updated to include the sentences of the trial that were published on 14 October. The verb tenses of the previous version have been maintained, without prejudice to the fact that a last update can be made by adjusting the concordances.

Contents

CATALONIA’S BID FOR INDEPENDENCE

1. Timeline of the Independence bid

THE CATALAN INDEPENDENCE BID ON TRIAL 2. The acts of 2017 and their prosecution 3. The five Articles of Spain’s Criminal Code that landed the procès defendants in the dock 4. Safeguards for the accused during the trial 5. Independence and safeguards of the Spanish legal system 6. Private prosecution: What is it? 7. The trial and sentences

THE TRUTH ABOUT SPAIN AND ITS CATALAN REGION

8. The secessionists’ falsehoods 9. Spain is a state made up of Autonomous Communities 10. The price Catalonia is paying for the independence bid 11. Spain in international rankings

QUESTIONS AND ANSWERS

APPENDIX

CATALONIA’S BID FOR INDEPENDENCE 1. Timeline of the Independence bid

11 SEPT Massive demonstration day (or Diada) for independence 2012

“Consultative process” • Promoted by the Catalan Regional 9 NOV Government [known as the Govern], presided by Artur Mas. 2014 Suspended by Spain’s Constitutional Court. • According to the Catalan regional administration [known as the Generalitat] 2,305,290 citizens voted and 80.76% of them voted in favour of independence.

Elections to the Catalan Regional Parliament • Organised in accordance with Spanish law.

27 SEPT • 4,130,196 citizens voted. The independent parties with 2015 parliamentary representation obtained 1,966,508 votes, 47.8% of the valid votes and 72 of the 135 seats.

“Resolution 1/XI of the Catalan Parliament, on initiating the political process in Catalonia as a consequence of the 9 NOV 2015 election results of 27 September 2015”

• The separatist parties approved said Resolution which, inter alia, • says: • “The Catalan Parliament solemnly declares the initiation of the process to create an independent Catalan State in the form of a republic.” • “The Parliament of Catalonia, as a depositary of sovereignty and as an expression of the constituent power, reiterates that this chamber and the democratic uncoupling process from the Spanish State will not be subject to the decisions of the institutions of the Spanish State, in particular of the Constitutional Court, which it considers lacks legitimacy and competence as a result of the judgment handed down in June 2010 on Catalonia’s Statute of Autonomy, previously voted by the people in referendum, among other judgments.”

6 Investiture of Carles Puigdemont as president of the 11 JAN 2016 Generalitat • In response to a demand by the CUP coalition, Artur Mas renounced his investiture as President of the Generalitat and chose Carles Puigdemont as his successor.

Carles Puigdemont announces a referendum • In the Catalan Regional Parliament, Carles Puigdemont announced: 28 SEPT 2016 “Catalan demands will, therefore, be resolved as follows: either we hold a referendum, or we hold a referendum. I say this again: ‘Either we hold a referendum, or we hold a referendum’ (Loud and prolonged applause.) Let it be clear, I repeat, that we will seek agreement to the very end. We will work with determination to hold a referendum in agreement with the [Spanish] State at all times, but if we reach the end of this term of parliament and there has been no positive reply in this respect, we will be prepared and ready to climb up the last step before effectively proclaiming Catalonia’s independence and, at the latest, call a referendum for the second half of September next year. With this we will fulfil the mandate we were given on 27 September.”

Carles Puigdemont tweets a photo of himself with the 5 11 APR notifications sent to him by the Constitutional Court. 2017 Tweet of Carles Puigdemont, 11 April 2017, 11:57: • “Today I've received the fifth notification from the Constitutional Court. We will not stop moving forward.”

Carles Puigdemont reshuffles the Govern • Front page of the newspaper Ara of 15 July: 14 JUL 2017 • “Tailor-made Govern for 1 October. Puigdemont is only replacing regional department heads of the PDECat party to face the final stretch of the referendum, in a decision which the opposition denounces as a purge.” • Front page of the newspaper El Punt Avui of 15 July: • “Strengthened for 1 October. Firmness: Puigdemont renews part of • the Govern to face the referendum cohesively.” • Front page of the newspaper El País of 15 July: • “Junqueras takes control of a desperate government. Puigdemont replaces hesitant department heads in order to invest fully in the referendum. Rajoy considers dialogue impossible after ‘the purge and triumph of the radicals’. Juncker restates that an independent Catalonia would be left outside the European Union.”

7 Carles Puigdemont explains the difference between the 29 AUG referendum organised for 1 October 2017 and the 2017 consultation of 9 November 2014 • Reply by Carles Puigdemont in a citizen's interview via FacebookLive: “The difference between the one on 9 November [2014] and this referendum is that we will abide to the result, whichever way it falls. Because we consider it to be politically binding. And that’s why I said that now the ability to change things is in the hands of each one of you. You have the ability to change things. The Govern will not decide this for you, neither will parliament or the political parties, or powers in general. The 1 October vote will have consequences and, therefore, all those who may have doubts should not have any about our commitment: the Govern will implement whatever result emerges from the polls.” • Reply by Carles Puigdemont in a citizen's interview via FacebookLive: “Àngels is asking me whether I am convinced that ’yes’ will win. Well, I’m not convinced that either ’yes’ or ’no’ will win. What I am convinced of is that there should be a large turnout. And that the result - whether a ’yes’ or a ’no’- will be, for me, the sovereign result, the democratic result. If the winning vote is ’yes’, we will implement the Transition Act and begin the transition process. If ’no’ wins, then there will be regional parliament elections.”

The separatist parties approve, in the Catalan Regional 6 SEPT Parliament, “Act 19/2017, on the referendum on self- 2017 determination” • Article 2: The people of Catalonia are sovereign political subjects and, as such, they exercise the right to freely and democratically decide their political status. • Article 3.3: All authorities, individuals and legal entities that directly or indirectly take part in preparing, holding and/or implementing the result of the referendum are protected by this Act, which implements the exercise of the right to self-determination that forms part of the current legal system. • Article 4.3: The result of the referendum is binding. • Article 4.4: If, after counting the votes validly cast, there are more affirmative than negative votes, such a result means the independence of Catalonia. For that purpose, the Parliament of Catalonia, within two days after the official results have been proclaimed by the Electoral Board, will hold an ordinary session to make the formal declaration of Catalonia’s independence, define its effects, and initiate the constitutent process. 8 The separatist parties approve, in the Catalan Regional 7 SEPT Parliament, the “Act on the Legal Transition and the 2017 Founding of the Republic” • Prior to the processing of the uncoupling Acts, several Resolutions had been handed down by the Constitutional Court which prevented the processing of any initiative to hold a referendum. The separatist parties, however, decided to pass these Acts. • Article 1. Catalan State. Catalonia is constituted as a rule-of-law, democratic and social Republic. • Article 3. Supreme law. Until the Constitution of the Republic is approved, this Act is the supreme law of the Catalan legal system. • Article 88.2. […] None of the decisions of the constituent Assembly, in exercise of the constituent power, may be controlled, suspended or challenged by any other power, court or tribunal. • Third Final Provision. This Act shall come into effect following its approval by the Parliament of Catalonia, its official publication, and compliance with the provisions set out in Article 4.4 of the Act on the referendum on self-determination of Catalonia.

Interview with Carles Puigdemont at El Món on RAC1, the 12 SEPT 2017 most listened to radio show in Catalonia. • Question by Jordi Basté: Will this be a repetition of 9 November 2014? • Carles Puigdemont: 9 November, which, for me, was a great milestone for this country and forms part of Catalonia’s democratic heritage, had characteristics which the referendum [of 1 October] does not have. The referendum [of 1 October] has a simple binary yes or no reply, it is organised by the Govern, its result will be binding, and there is a clear determination for the result to be applied by everyone. • Jordi Basté: So, if the ‘yes’ wins on 1 October, and there are polls, and people go and vote… • Carles Puigdemont: …the Legal Transition Act will enter into force and we will start to function as an independent state. • Question by Rocío Martínez-Sampere: […] A week ago I saw you in the Catalan Parliament giving a standing ovation after the approval of a foundational Act of the republic which puts an end to the Catalan institutions that are legally regulated in Catalonia’s Statute of Autonomy. In addition, it was approved with 47.8% of the votes and a simple majority of seats, without the participation of at least half of the citizens. Do you believe this is democratic? And if you do—and I understand you do because you were applauding—can you give me an example of any democracy in the world where the basic laws that regulate coexistence can be eliminated by a simple majority and new ones can be enacted by such a narrow majority? • Carles Puigdemont: Just one clarification. The foundational Act was approved, but it will not come into force if it is not backed by 7 SEPT 2017 citizens at the polls. I think this is a relevant point which should be taken into account in determining whether such a significant measure taken by a parliament has democratic guarantees or not. Secondly, what I would like is to find precedents in the Spanish State like the precedent we have found in other EU countries such as the United Kingdom. • Question by Antón Losada: There is a very important percentage of Catalans who do not accept this legal order voted in the Catalan Parliament, who do not want the referendum to be held, who are not going to take part in the referendum, and who are not going to collaborate in the holding of the referendum. First, I would like to know whether you have anything to say to them, and second, what do you intend to do when these Catalans who do not accept this new legal order start to give you a taste of your own disobedience medicine? • Carles Puigdemont: First, let’s read this the other way round. If we take into account that there is a majority that considers that this should not be done, what should we say to those who consider that it should indeed be done? Do we tell them to stay at home and shut up? Do they have fewer rights than the rest? Because we don’t know which of the two is the largest group—the only way of knowing who can rally the most followers is by holding a referendum.

Order of the High Court of Justice 27 SEPT The High Court of Justice of Catalonia ordered the Mossos d’Esquadra 2017 (Catalan regional police), the Civil Guard, and the National Police to prevent the use or opening of premises or buildings designated for holding the referendum, or, if applicable, their closure if they had been opened. It also ordered the seizure of all the material relating to the referendum found at those premises. And lastly, it ordered the prevention of the activity of public buildings used as logistic infrastructure for and/or counting the votes of the referendum.

Referendum on self-determination

1 OCT • Promoted by the Govern of Carles Puigdemont. Suspended by the 2017 Constitutional Court. • According to the Generalitat 2,286,217 citizens voted and 90.718% of them voted in favour of independence.

10 Speech by King Felipe VI on TV. 3 OCT “For a long time now, certain Catalan officials have been violating— 2017 repeatedly, consciously and deliberately—Spain’s Constitution and Catalonia’s Statute of Autonomy, which is the law that recognizes, protects and safeguards their historical institutions and their self- government. With their decisions, they have systematically contravened provisions that have been legally and legitimately approved, thus showing unacceptable disloyalty towards the powers of the Spanish State. A state which, precisely, those officials represent in Catalonia. […] To the citizens of Catalonia—to all of you—I want to repeat once again that for decades we have been living in a democratic state that offers constitutional channels for any individual to defend their ideas, as long as they respect the law. Because, as we all know, without this respect there can be no democratic social harmony, in peace and freedom—not in Catalonia, not in the rest of Spain, nor anywhere else in the world. In our constitutional and democratic Spain, you well know that there is a space for concord and for coming together with all your fellow citizens.”

Carles Puigdemont declares and suspends independence.

10 OCT Carles Puigdemont in the Catalan Regional Parliament: “There is a 2017 before and an after 1 October. And we have achieved what we undertook to do at the start of the term of parliament. Now, at this historic juncture, and as President of the Generalitat, I hereby, present before you and our fellow citizens the results of the referendum, and propose that the people’s mandate for Catalonia become a republic and an independent State. (Loud and prolonged applause) This is what we are doing today with all solemnity, responsibility and out of respect. And, with that same solemnity, the Government and I propose that Parliament suspend the effects of the declaration of independence so that in the next few weeks we can engage in a dialogue without which it is not possible to reach an agreed solution.”

The JxSí party members of the Catalan Regional Parliament

24-25 OCT hold more than 100 events all around Catalonia to explain 2017 what would happen in the following days • Germà Bel in L’Hospitalet on 25 October 2017: “There will be a Govern and a strategy will be implemented. […] Look, there are three possible results. Three. And I will name them without any order of probability: surrender, defeat or victory. Rule out surrender.

11 […] For a long time—not for months but for years—at events like this I have been saying that it is very important to mobilise society, but in major mobilisations children will not be allowed to attend. Well, 1 October was a test run, right? […] The Spanish Government will remove the Catalan Govern. And the Catalan Govern will or will not obey. And it will not obey. The Spanish Government will have to decide whether it intends to imprison the Catalan Govern. And then, the Spanish Government may be able to arrest them or not. But if the Spanish Government tries to arrest the Catalan Govern—which does not consider itself removed even when it does not have the governing tools of state that normal states have—and orders their arrest and they cannot be arrested, it is ceasing to be the State in Catalonia. […] If this happens—and I am not saying I want it to happen—I can say that, if this happens, if Article 155 fails because they fail to implement it and, believe me, this can easily be the case, they will have to decide whether to apply Article 116 and the state of emergency, which means bringing the armed forces to Catalonia. But that’s up to them to decide. It’s true that if they decide to do this, international anger will be huge. Huge. But can you imagine that not 800,000 people, or 700,000, or 600,000, or 500,000, or 400,000, or 300,000, or even 200,000 people, but 100,000 or 150,000 people pour out onto Gran Vía [one of Barcelona’s main thoroughfares] in the midst of a state of emergency without having received any instructions to do so? That’s a failed state.

Carles Puigdemont calls a press conference to announce the

26 OCT calling of regional elections which he later suspends 2017 Carles Puigdemont called a press conference to announce the calling of elections to the Autonomous Community of Catalonia. • Jordi Cuminal, member of the Catalan Regional Parliament for the JxSí party, tweeted: “I don’t agree with the decision to call elections. I hereby give up my seat in the Catalan Parliament and cancel my membership in @Pdemocratacat.” • Albert Batalla, member of the Catalan Regional Parliament for the JxSí party, tweeted: “I respect the decision, but I do not agree with it at all. Right now, I resign as MP and cancel my membership in @Pdemocratacat.” • Gabriel Rufián, MP for the ERC party in Spain’s Congress of Deputies tweeted: “155 pieces of silver” • Carles Puigdemont announced he would not call elections. • Raphael Minder, New York Times correspondent, tweeted: “Even by the high standards of confusion in Catalan conflict, latest twists and turns set a new benchmark: elections were off, on and now off.”

12 Declaration of independence in the Catalan Regional

27 OCT Parliament 2017 Carme Forcadell, speaker of the Catalan Regional Parliament: “By virtue of all the foregoing, as democratic representatives of the people of Catalonia, in the free exercise of the right to self-determination, and pursuant to the mandate received from the citizens of Catalonia; • We constitute the Catalan Republic, as an independent and sovereign, democratic and social state under the rule of law. • We provide for the entry into force of the Act on the Legal Transition and the Founding of the Republic. • We initiate the democratic, citizen-based, cross-cutting, participative and binding constituent process. • We assert our will to initiate negotiations with the Spanish State, without prior conditions, aimed at establishing a collaboration system to the benefit of both parties. The negotiations shall necessarily be on equal terms. • We inform the international community and the European Union authorities of the establishment of the Catalan Republic and the proposal to negotiate with the Spanish State. • We urge the international community and the European Union authorities to intervene to stop the ongoing violation of civil and political rights, and to monitor and witness the negotiation process with the Spanish State. • We express our will to construct a European project which strengthens citizens’ social and democratic rights, as well as our commitment to continuing the uninterrupted and unilateral application of the provisions of European Union law, and the provisions of Spanish law and Catalan regional law that transpose EU law. • We affirm that Catalonia has the unequivocal will to join the international community as soon as possible. The new state undertakes to respect the international obligations that are currently applied in its territory and to continue being part of the international treaties to which the Kingdom of Spain is party. • We appeal to states and international organisations to recognise the Catalan Republic as an independent and sovereign state. • We urge the Government of the Generalitat to adopt the necessary measures to enable the full effectiveness of this declaration of independence and of the provisions of the Act on the Legal Transition and the Founding of the Republic. • We call upon each and every citizen of the Catalan Republic to make us worthy of the freedom that we have been given and to construct a state that translates the collective inspirations into action and conduct. • We assume the mandate of the people of Catalonia expressed in the referendum of self-determination of 1 October and declare that Catalonia has become an independent state in the form of a republic.”

13 • TV3 broadcast the image of the half-empty parliament with the text “THE CATALAN PARLIAMENT DECLARES THE INDEPENDENCE OF CATALONIA” showing the separatist MPs standing up chanting the anthem of Catalonia and the empty seats of the pro-unity constitutionalist MPs who had left the chamber before the voting.

The Spanish Senate approves Article 155 and the Spanish

27 OCT Government removes the Govern and calls elections to the 2017 Catalan Regional Parliament for 21 December 2017 • eldiario.es: “On Friday the plenary of the Senate ratified the application of the measures of Article 155 of the Spanish Constitution, which had been approved by the Spanish Government to intervene the Autonomous Community of Catalonia. A long plenary session, lasting for more than six hours, resulted in no surprises—the absolute majority of the People’s Party (PP), together with the votes of the Socialist Party (PSOE) and the Ciudadanos party, was overwhelming against the rest of the political groups: 214 votes in favour, 47 votes against and one abstention. The approval of the measures which will now have to be decreed by the Spanish Cabinet did not give rise to applause or joy on the faces of the senators; quite the opposite, even for the PP MPs.” • El País: “This was the surprise in Rajoy’s appearance. The President of the Spanish Government announced a call for regional elections in Catalonia next 21 December. Following the proclamation of the Catalan Regional Parliament, Mariano Rajoy gave a press conference in Moncloa shortly after 8 pm to announce the first measures of his Government in response to the separatists’ defiance. First, he informed the country of the removal of Carles Puigdemont and the entire Catalan Regional Government, as well as of the termination of certain institutions of the Generalitat. Just a few minutes later, he announced a call for snap elections.”

Assessment of the events by Andreu Mas-Colell, head of the

28 OCT Catalan Economy Department in the Govern of Artur Mas 2017 from 2010 to 2016 • Diari Ara, Andreu Mas-Colell: “One day, we will ask ourselves how we managed to transform a victory, that of 1 October, into a defeat. Most particularly, those who on that fateful Thursday 26 October had the audacity to accuse President Puigdemont, who was negotiating an outcome which most likely would have been better than the one ahead of us, should ask themselves that question and reflect on the answer. We should banish the term ‘traitor’ from our political jargon. It has caused great harm. It is extraordinary how the fear of such a term has influenced our political leaders.” 14 “In this scenario, the call, within Article 155, for regional elections on 21 December has been a surprise, at least for me. Indeed, last week he predicted that they would never be called, because the central government would never end up finding a sufficiently favourable moment. This call is a tactically ingenious move. Spain’s central government has so far played a smart endgame (post 1 October).”

Carles Puigdemont appears in Brussels. 2 October 2017 / Oriol Junqueras is sent to prison by National High Court 30 OCT 2017 judge Carmen Lamela • In his book La crisis catalana: Una oportunidad para Europa [The Catalan Crisis: An Opportunity for Europe] Carles Puigdemont wrote that there was an agreement for him to leave the country: “After 27 October, the majority of the Catalan Government left Catalonia to move abroad. I stayed, as did the Vice President. On the 27th I slept at home, and also on the 28th. But in the evening of that very 28 October, at an undisclosed location in the province of Girona, I met with Marta Rovira i Vergés, secretary-general of the Esquerra Republicana de Catalunya (ERC) party, who had just spoken to members of the Government in exile and to other people. We met to decide what steps it was advisable to take next. After analysing the situation, we concluded that the best option was for us to also go into exile. That’s what we decided.” • Oriol Junqueras said during an interview with Crític that there was an agreement to go on with business as usual. Question: Gabriel Rufián said during an interview with Crític that there was an agreement that on the Monday after the unilateral declaration of independence, all the Department heads would go to their respective Departments. Was this really the case? And if so, why didn’t it happen? Oriol Junqueras: Yes. I went there. So did Josep Rull, who was the first, early in the morning. Other department heads were also at their posts first thing in the morning. Question: Did Puigdemont’s decision to go into exile surprise you? Didn’t you know anything about that? Oriol Junqueras: I respect everyone’s decisions. It was a very difficult moment. And everything is understandable.

Elections to the Catalan Regional Parliament • Organised pursuant to Spanish law. 21 DEC • 4,392,891 citizens voted. The separatist parties with parliamentary 2017 representation obtained 2,079,340 votes, 47.5% of the valid votes, and 70 of the 135 seats.

15

THE CATALAN INDEPENDENCE BID ON TRIAL 2. The acts of 2017 and their prosecution

INTRODUCTION

February 12 was the first day of the oral hearing of special case 20907/2017, at which the seven-judge Court of the Criminal Chamber of the Supreme Court tried twelve leaders of the Catalan independence bid (popularly known as the procès). For the Spanish justice system and for Spain’s highest jurisdictional court, this is one of the most important trials since the beginning of constitutional democracy in 1978, given the nature of the acts on which judgment is being passed, and their national and international repercussion.

The preliminary proceedings of the case started with the filing in October 2017, by the then Chief Public Prosecutor (José Manuel Maza), of a criminal complaint against 18 leaders of the secessionist process, which was admitted for examination. Judge Pablo Llarena Conde was appointed as the investigating judge of the case, and conducted the corresponding proceedings between November 2017 and July 2018, charging the defendants with the crimes of rebellion, misappropriation, and disobedience. The Appeals Chamber of the Criminal Chamber confirmed all the terms of these charges.

Only 12 of the separatist leaders were tried after 12 February, because Spanish criminal procedural law does not provide for prosecution in absentia. Six of them absconded from Spanish justice and are now in Belgium, Switzerland, and the United Kingdom.

The defendants whose prosecution started on 12 February are Oriol Junqueras (in preventive detention), Jordi Turull (in preventive detention), Raül Romeva (in preventive detention), Josep Rull (in preventive detention), Dolors Bassa (in preventive detention), Joaquim Forn (in preventive detention), Jordi Sánchez (in preventive detention), Jordi Cuixart (in preventive detention), Carme Forcadell (in preventive detention), Carles Mundó (released on bail), Santi Vila (released on bail) and Meritxell Borrás (released on bail). The first nine were charged by the Public Prosecution Service with the crime of rebellion aggravated by that of misappropriation, and the State Legal Service charged them with a crime of sedition linked to that of misappropriation. For its part, the private prosecution brought by the Vox political party added a further crime: that of having formed a criminal organisation. The last three, in turn, were tried for the crimes of disobedience and misappropriation.

Carles Puigdemont, Antoni Comín, Clara Ponsatí, Marta Rovira, Lluìs Puig, and Meritxell Serret were not tried because they absconded from Spanish justice, although they were charged with the offences of rebellion and misappropriation.

18 Not permitting defendants to be judged in absentia is one of the safeguards enshrined in Spain’s criminal procedural law. The fugitives will be arrested and handed over to the judicial authorities if they return to any part of Spanish territory.

ACTS CONSTITUTING CRIMES

The acts considered by the investigating judge in the indictment charging the defendants, and by the Public Prosecution Service, the State Legal Service, and the private prosecution, in their writs of provisional conclusions, as constituting crimes are the following:

• The approval on 6 and 7 September 2017, at the Catalan Regional Parliament, of the following Acts: i) The Referendum Act, which set forth the voting rules for a binding consultation on the self-determination of Catalonia, creating a central electoral board, territorial electoral boards, an electoral roll, and other details; and ii) The Legal Transition Act of the Republic, which de facto repealed Spain’s Constitution and Catalonia’s Statute of Autonomy in Catalonia, without the majority required to amend the Statute (a 2/3 majority), and set forth transitional provisions for the institutionalisation of the new republic as the form of the independent Catalan State. Both Acts were presented in defiance of the decision that had previously been handed down by Spain’s Constitutional Court. They were processed via an urgent mechanism in less than 20 hours each, infringing the rights of the other parliamentary groups, as was declared by the Constitutional Court. They were approved by the pro- independence majority—which had a wafer-thin majority at the Catalan Regional Parliament, not even enough to amend the Catalan Statute (this requires two thirds of the Chamber, i.e. 90 members)—with the abstention of certain members of the En Comú Podem group, as well as in the absence of the opposition. The two Acts were suspended by the Constitutional Court. The Referendum Act on the very 7 September (finally declared unconstitutional on 17 September 2017), and the Legal Transition Act on 12 September (finally declared unconstitutional on 8 November 2017). In all of the Constitutional Court’s decisions, the defendants were ordered to prevent or stop any initiative that involved ignoring or eluding the decision to suspend holding the referendum.

• The mob siege of the Economy Department of Catalonia’s Generalitat in Barcelona on 20 September 2017, when a crowd prevented the mobility of the judicial committee and of the members of the national law enforcement bodies who were accompanying them, causing damage to police vehicles and casting insults and aspersions.

• In view of the repeated non-compliance by the Generalitat authorities, criminal proceedings were initiated at the High Court of Justice of Catalonia.

19 These proceedings led to a court ruling on 27 September 2017, which ordered the closure of the premises where the referendum was going to be held or which were necessary for its infrastructure (centres for processing, managing or counting votes), and the seizure of all the material relating thereto. The national law enforcement bodies acted on 1 October in compliance with that court ruling.

• The holding on 1 October 2017 of an illegal referendum on self-determination in the entire territory of Catalonia, which was partially carried out with a universal electoral roll, without an electoral administration, pursuant to a Catalan Regional Parliament Act of 6 September that was declared unconstitutional by the Constitutional Court on 17 September, which had also ordered—and this did take place—the dissolution of the central and territorial electoral boards.

• When the national law enforcement bodies sought to enforce the court order to close the polling stations and hand over the electoral material, in certain places there were strong altercations with individuals who had gathered there to prevent the action of the national police.

• The unilateral declaration of independence by the Catalan Regional Parliament on 27 October 2017 (only 70 out of 135 voted in favour).

WHAT HAPPENED IN SEPTEMBER AND OCTOBER 2017?

• During the sessions held in the Catalan Regional Parliament on 6 and 7 September 2017, the Referendum Act and the Legal Transition Act were passed, contrary to the orders of three Constitutional Court decisions. The secessionist parliamentary majority imposed the approval of these uncoupling Acts in less than 24 hours, thereby violating the democratic rights of the non-secessionist opposition. The approval of these Acts also flouted Catalonia’s own Statute of Autonomy as well as Spain’s Constitution, which were de facto repealed by this vote. The opposition parties left the parliament in protest.

• Pursuant to the aforementioned Acts, the so-called “referendum” of 1 October would be binding, irrespective of voter turnout and the number of votes in favour, and would lead to secession within 48 hours. Even though the opposition parties had repeatedly expressed their rejection of this process, the secessionists went ahead with their plans.

• On 7 and 12 September, the Constitutional Court suspended both Acts and reiterated the duty to prevent or to stop any initiative that involved ignoring or eluding their suspension. Despite this, the Generalitat authorities continued to prepare the referendum.

20 • Subsequently, the Constitutional Court confirmed the infringement of democratic rights in the enactment of the uncoupling Acts. Moreover, it declared these Acts unconstitutional, and warned of the consequences for the Catalan authorities if the Court’s mandate were not respected. The Catalan authorities were warned repeatedly that they would be in breach of the Constitution if they went ahead with their plans.

• On 20 September 2017, a judicial committee and a number of law enforcement officers were carrying out a court-ordered search of the Catalan Economy Department building in Barcelona. These court officials and the Civil Guard officers were unable to leave the building for several hours. Outside, altercations were taking place and law enforcement vehicles were being destroyed.

• In view of the actions of the Generalitat authorities, criminal proceedings were initiated at the High Court of Justice of Catalonia. These proceedings led to a court ruling on 27 September 2017, which ordered the closure of the premises where the referendum was going to be held or which were necessary for its infrastructure (centres for processing, managing or counting votes), and the seizure of all the material relating thereto. The national law enforcement bodies acted on 1 October in compliance with that court ruling.

• The “referendum” of 1 October 2017 did not have the minimal democratic safeguards, as defined by institutions such as the Venice Commission, neither in the manner in which it was called, the voting process itself, or its outcome. There was no electoral roll, nor any “no” campaign. There were, however, multiple irregularities, and the process was not observed by any recognised international institution (OSCE, Council of Europe, EU). The votes, therefore, were cast under absolutely irregular circumstances and considerable tension.

• According to the then President of the Generalitat, Carles Puigdemont, approximately 42% of the electorate participated, with 90% of this 42% voting in favour (around two million people). There is, however, no objective element that confirms that data.

• The Government of the former Catalan President, Puigdemont, ignored the Spanish Government’s requests that he call elections and for the restoration of constitutional and statutory legal order. These requests were made pursuant to Article 155 of the Spanish Constitution (principle of federal coercion, based on a similar Article included in the Basic Law for the Federal Republic of Germany).

• On 27 October, despite the requests made by the Spanish Government and by other political and social stakeholders, and despite all the rulings of the Constitutional Court, the secessionists declared a “Catalan Republic”, with votes in favour from 70 out of 135 members of the Catalan Regional Parliament, representing little over 45% of the electorate. Here it should be underscored that amending Catalonia’s Statute of Autonomy requires a majority of 2/3 of parliament.

21 • Consequently, the Executive led by the then President of the Spanish Government Mariano Rajoy requested the Senate to approve the application of Article 155 of the Spanish Constitution.

• Following negotiations with the PSOE [the Socialist party], then the opposition, and with the Ciudadanos party, this application was approved for a limited period of time and focused on removing the authorities of Carles Puigdemont’s Government and calling regional elections in Catalonia on 21 December.

• Application of Article 155 served to restore order and safeguard Catalonia’s institutions, whose activity was not suspended, and also to prevent them from making any further illegal use of the autonomous community’s resources and institutions.

The Spanish Government, with the authorisation of an absolute majority of the Senate, removed the Government of the Autonomous Community of Catalonia on that same day, 27 October; it maintained the Generalitat institutions and called for regional elections on 21 December 2017. These measures were taken pursuant to the provisions of Article 155 of the Spanish Constitution, which stipulates:

If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a formal request with the President of the Autonomous Community and, in the event of not receiving satisfaction therefor, may, following approval granted by an absolute majority of the Senate, take the measures necessary in order to enforce compliance with said obligations, or in order to protect the above-mentioned general interests. With a view to implementing the measures provided in the foregoing clause, the Government may issue instructions to all the authorities of the Autonomous Communities.

This Article draws its inspiration from Article 37 of the Basic Law for the Federal Republic of Germany, which refers to the necessary steps that the Federal Government may take if a Land acts against the general interest; Article 155 constitutes the “federal coercion” clause for cases in which the authorities of an autonomous community—previously forewarned by the central government—jeopardise the general interests of Spain and do not comply with the law. To counter these measures, the Catalan Regional Parliament filed a constitutional challenge before the Constitutional Court, as did Unidos Podemos, the confederal parliamentary group in Spain’s Congress of Deputies. The Constitutional Court dismissed these two challenges on 2 July 2019.

• The Catalan elections of 21 December were the third to be held in five years; that is to say, from the earliest stages of the secessionist process. They produced similar results in terms of the balance of secessionist forces—around 47% of the electorate— and opposing forces.

22 • The caretaker Government of Pedro Sánchez (PSOE) is committed to dialogue in Catalonia and to restoring harmony to a divided society, as well as to dialogue between the Spanish Government and the Catalan Regional Government, channelled through constitutional and statutory mechanisms.

HOW ARE THE CRIMINAL PROCEEDINGS BEING CONDUCTED?

• As a result of these events at the end of 2017, various judicial proceedings have been opened in Spain. The proceedings brought against 25 individuals before Spain’s Supreme Court involve the principal figures responsible for these events. In these proceedings, seven of the accused have fled the country, and nine are in preventive detention. The accusations include crimes of rebellion, sedition, misappropriation of public funds, and disobedience. These crimes, whether or not they are defined in exactly the same terms, are included in the criminal codes of most Western democracies.

• Some people have categorised those individuals currently in preventive detention as political prisoners. In fact, they stand accused of committing crimes defined in the Spanish Criminal Code and have been tried with all the safeguards inherent to a democratic state under the rule of law. No intergovernmental organization operating in the sphere of human rights, nor any NGO active in this same field (for example, Amnesty International or Human Rights Watch) has recognised these individuals as political prisoners or prisoners of conscience. They have, however, criticized their lengthy preventive detention while awaiting trial.

• Under Spanish procedural law, the decision to adopt the measure of preventive detention lies entirely with the judge. This measure, provided for in Spanish law (as it is in that of all comparable countries, some with even longer terms), is in compliance with the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights (Council of Europe). In the present case, the Court has considered this measure to be justified by one or more circumstances: flight risk, the risk of recidivism, and/or the risk of destruction of evidence. The Constitutional Court has recently confirmed the proportionality of this measure.

• The trial, which began on 12 February 2019, was public and carried out with the utmost transparency. Moreover, the Supreme Court guaranteed, both through television broadcasting and online streaming, that it could be followed by the widest possible audience. As is customary in a democratic state, there was no recognition or accreditation of “international observers”. Any individual wishing to “observe” the court proceedings in person was free to do so, with the only limitation being the space available. However, the courtroom used was larger than usual. Sufficient space was reserved to ensure that two or three family members of each defendant could be present. Catalan-Spanish/Spanish-Catalan interpretation was also available so that any of the accused could choose to express themselves in their first language. 23 • The Spanish judiciary is independent from the executive and legislative powers. This independence is expressly enshrined in the Spanish Constitution.

• The proceedings regarding the acts related to the independentist process in Catalonia were held in the Criminal Chamber of the Supreme Court, which is a body with national jurisdiction. Normally, it is an appeals court, but it also has powers to hear criminal proceedings brought against individuals in public office. In this case it holds jurisdiction pursuant to the Statute of Autonomy of Catalonia (Article 57.2).

• The Criminal Chamber of the Supreme Court is a completely independent court. Its judges are selected by the General Council of the Judiciary with an enhanced majority and they are appointed for indefinite terms, ending upon their retirement. This provides a maximum guarantee of their independence: It is common for judges to be labelled as “conservative” or “progressive”, but the reality is that their decisions are based not on political but on strictly legal criteria.

• Individuals’ rights are rigorously safeguarded in Spanish criminal proceedings, more so than in most of Europe. These proceedings fully respect the fundamental rights of the accused: presumption of innocence; the right to a defence; the right not to incriminate oneself; and the right to a fair trial.

To provide evidence of the circumstances in which the acts were committed, in addition to testimony from experts (on financial matters; physicians; and sociologists), more than 500 witnesses appeared: 256 at the request of the Public Prosecution Service and the State Legal Service, 56 at the request of the private prosecution, and the rest at the proposal of the defence (all parties coincided in requesting the deposition of certain people). Witnesses included 51 officials of the Generalitat, 69 witnesses of the siege of the Economy Department in Barcelona on 20 September 2017, seven former members of the Spanish Government, 13 officials of the Catalan Regional Parliament, 115 officers of the National Police (including five commanders), 22 politicians, 37 members of the Catalan regional police force (including 21 commanders), 84 Civil Guard officers (including two commanders), and two members of the Barcelona municipal police force.

The politicians called to testify include former President of the Spanish Government Mariano Rajoy, former Vice-President of the Spanish Government Soraya Sáenz de Santamaría, and former Minister of the Treasury Cristóbal Montoro. The mayor of Barcelona, Ada Colau, and the city’s former mayor, Xavier Trías, were also called, as were the Basque Regional President, Iñigo Urkullu, and several nationalist members of the Congress of Deputies, among others.

In preliminary questioning—at the start of the oral hearing—the Court finally allowed the use of the Catalan language, and for that reason admitted the presence of two interpreters in the courtroom. Places were also foreseen for members of the families of the defendants and the presence of journalists taking turns in the courtroom, although, also at the decision of the Court, all the sessions of the oral hearing—held in the mornings and afternoons on Mondays, Tuesdays, Wednesdays, and Thursdays—were broadcast live for the duration of the trial. 24 The court allowed parliamentary observers but not international observers, considering them completely unnecessary and inappropriate, and because it believed that the live broadcast of the sessions offered total transparency. Spaces were likewise created for the many journalists of more than a hundred accredited news media.

The defendants in preventive detention (nine of the 12 who were going to be tried) remained in that situation because first the investigating judge, and later the Appeals Court, considered that they met the requirements for detention: risk of flight and risk of reoffending. Risk of flight has been justified by the fact that six of the accused had already fled, and set up an infrastructure in Belgium and Switzerland that could be used by the others. The risk of reoffending was observed in the declarations made by the defendants, saying that they would behave in the same way as they did during the periods when they allegedly committed the offences with which they were charged.

Once the oral hearing concluded, with the defendants’ turn to exercise their right to a final word, the court adjourned to deliberate. The reporting judge, who is the presiding judge Manuel Marchena, drew up a draft judgment which was submitted for discussion among all members of the Court. The drafting of this report and subsequent debate has taken months. Judgments are reached by majority, and judges who disagree with the decision or with any of the arguments outlined in it may cast a private dissenting vote (disagreement with the operative part of the judgment) or a concurring vote (agreement with the decision, but disagreement with some or all of the arguments).

The judgment handed down is final, but an appeal may be lodged against this decision before the Constitutional Court, which will review whether the safeguards and rights of the defendants have been respected.

If the Constitutional Court does not allow the appeal or delivers an unfavourable verdict for the defendants, they may appeal to the European Court of Human Rights of Strasbourg, which will only consider possible human rights infringements pursuant to the Convention. According to 2017 data regarding the European Court of Human Rights, 635 claims were declared inadmissible and only seven judgments were delivered with regard to Spain (a very low admission rate).

25 Note: In the framework of the Catalan independence process, apart from the case at the Supreme Court, there are three other criminal proceedings involving other judicial bodies. The National High Court is investigating four people (Josep Lluís Trapero, Cesar Puig, Pere Soler, and Teresa Laplana) for crimes of rebellion, for the first three, and the crime of sedition for the latter. On the other hand, the High Court of Justice of Catalonia is also investigating Lluís Corominas, Lluís Guinó, Anna Simó, Ramona Barrufet, Joan Josep Nuet i Pujals, and Mireia Boya for alleged crimes of disobedience. Lastly, Investigating Court no. 13 of Barcelona has a case open for the crimes of sedition, misappropriation, malfeasance, and disobedience in a pre-trial investigation that has not yet concluded.

Moreover, the Constitutional Court has yet to rule on the decisions made by investigating judge Llarena—which were upheld by the Supreme Court following an appeal, and subsequently challenged before the Constitutional Court—regarding which the defence of some of the individuals in preventive detention and some of the fugitives allege “restriction of the right to representative political activity”, provided for in Article 23 of the Constitution. Judge Llarena’s contested decisions were: i) denial of the request made by some of the detainees and fugitives to physically attend the investiture vote, with the corresponding appointment of a representative to take their place; ii) prohibition of the investiture of Puigdemont and Turull because they were, respectively, a fugitive and a detainee in preventive detention; and iii) suspension of the exercise of public office for the majority of the defendants formally accused of rebellion by virtue of Article 384 bis of the Criminal Procedure Act.

26 3. The five Articles of Spain's Criminal Code that landed the procés defendants in the dock

The trial at the Supreme Court of Spain—in which 12 people were tried for the criminal offences of rebellion, sedition, misappropriation, and disobedience—was a criminal proceeding like many others that the Spanish criminal justice system addresses every year. In these proceedings, as in every other trial held in Spain, the only issues at stake are punishable acts, i.e. human actions which have violated the law. And not just any law: only those provisions included in the Criminal Code.

The Criminal Code defines the acts that undermine the most important values for any community, and sets forth the corresponding punishments. It does so proportionally to the severity of the conduct involved, and also in proportion to the specific circumstances under which each criminal offence was committed, and of each person accused.

The Criminal Chamber of the Supreme Court, where the alleged criminal offences were tried, did not decide what was on trial, nor could it have done so: rather, the charges were based on punishable acts determined by an investigating judge, and on the categorization of the criminal offences proposed by the accusing parties: the Public Prosecution Service, the State Legal Service, and the private prosecution (acusación popular) brought by the far-right party Vox.

It is incumbent upon the prosecution to convince the court that criminal offences have been committed by presenting sufficient evidence to overcome the presumption of innocence of the accused. The defence, in turn, seeks to prove the contrary, or to contradict the prosecution's evidence.

What was at stake, therefore, in the so-called procès (Catalan independence process) trial was to establish whether the 12 defendants had broken the law. Not all of them were being accused of the same criminal offences. However, there were five specific provisions on which this trial was based:

27 Rebellion “A conviction for the offence of rebellion shall be handed down to those who violently and publicly rise up for any of the following purposes: [...] 5. To declare the independence of any part of the national territory.”

Art. 472 This is the most serious accusation (punishable with a prison sentence of 15 to 25 years), as this is an offence against the Constitution, and due to its impact on society as a whole.

Violation of this provision, allegedly through a joint strategy, was attributed to members of the former Govern, the former Speaker of the Catalan Regional Parliament, and the principal leaders of two civil society organizations, which, allegedly, collaborated in this rebellion by inciting and directing the mobilization of their supporters and of protesters on the streets to support the illegal measures adopted.

Sedition "A conviction for the offence of sedition shall be handed down to those who, without committing the criminal offence of rebellion, publicly and in an unruly manner rise up to prevent—by force or by unlawful means—application of the law; any authority, official corporation, or Art. 544 public officer from lawfully exercising their duties; enforcement of the decisions of the latter; or enforcement of administrative or court decisions."

The corresponding prison sentence for this crime is also very high (10 to 15 years, if the accused are the main perpetrators and are also persons "in positions of authority"). The provision for this type of criminal offence is essentially intended to defend public order, and ensure application of the law and compliance with court decisions.

Misappropriation Misappropriation of public funds occurs when an official or civil servant having the authority—whether under law, granted by an authority, or undertaken through a legal transaction—to administer public assets violates that authority in the exercise of their duties, to the detriment of Art. 432 the public assets being administered.

This criminal offence (which can have a prison sentence of 4 to 8 years when the most aggravating circumstances concur) has been attributed to members of the Govern who allegedly devoted public resources to the procès by, for example, ordering the use of public buildings to hold the referendum, or allegedly paying "international observers".

28 Disobedience An offence incurred by "Authorities or civil servants who blatantly refuse to duly fulfil court rulings, decisions, or orders from a higher authority, handed down within the scope of their respective powers and in compliance with legal formalities." This offence is punishable by Art. 410 3 months to 1 year of prison.

Those accused of this criminal offence allegedly received direct orders from the Constitutional Court, demanding that they abstain from continuing with those of their actions that violated the Constitutional Court's decision to suspend the referendum.

Criminal organization In the case of the private prosecution by the political party Vox, some of the defendants were also accused of the offence of participating in a criminal organisation. Article 570 bis considers a criminal organisation a group, formed in a concerted and coordinated manner Art. 570 for a stable or indefinite period, by more than two people, to share various tasks or functions in order to commit criminal offences. This offence is punishable by 3 to 8 years of prison.

29 4. Safeguards for the accused during the trial

Right to the presumption of innocence

This is, without doubt, the most significant right, and is fully protected. It is not just the fact that during any trial the defendant must be treated as innocent, but that to be able to issue a guilty verdict certain minimum conditions must be met: A conviction can only be handed down based on evidence that has been legally obtained, that has been submitted to the court, that there is evidence for the prosecution, and that this is assessed rationally. Ultimately, the burden of proof lies with the prosecution. Without sufficient and convincing evidence, it cannot be said that a crime has been committed, and there can be no conviction. That is why, in the event of doubt, the court must not take into account anything that may be harmful to the defendant’s case (in dubio pro reo). To guarantee the above, the court will be obliged to provide reasoning in its judgment as to why it considers certain evidence credible and other evidence not credible; therefore, the account of proven acts can never be arbitrary, but must be specifically linked by the court to the evidence submitted. If it is considered that the judgment infringes the presumption of innocence, it could be overruled for that reason, which would lead to its reversal and replacement with an acquittal, in this case ruled by the Constitutional Court.

Right to defence

This is the basic safeguard that encompasses a large part of the powers and rights recognised during the trial. The right to defence is exercised primordially through legal assistance, namely through lawyers.

• Principle of audi alteram partem. The clearest manifestation of the right to defence is the principle of audi alteram partem (right for both parties to be heard), which refers to the fact that all the lawyers may participate in the taking of all evidence: each time a witness makes a statement, all the lawyers—not just the one that called the witness— may ask whatever questions they consider pertinent, even those serving to question the credibility of said witness or their evidence.

30 The same is true for expert testimony or recordings presented as evidence. If the court (through its presiding judge) rejects a question, it must offer a justification (in other words, if it considers the question to be leading, suggestive, or not relevant to the case), and lawyers may put their objections on the record. The lawyer of a party may also request that any question put by another lawyer or by the prosecutor not be admitted.

• Protected witnesses. Another example of the above occurs with regard to protected witnesses: There are several in the case at hand, whose identity has to date remained hidden. If requested by the defence lawyers, their identity may be given (although this will not be made public), so that the accused have a fully effective right to defend themselves (which requires knowing who is the person declaring against them, in order to, if applicable, be able to discredit the credibility of their testimony).

• Right to evidence. Another manifestation of the right to defence is the right to evidence: the accused were able to ask the Court to take all the evidence they considered pertinent. The Court responded to these petitions in its writ of 1 February 2019: Refusal to submit the requested evidence must be justified and an objection may, again, be lodged (for the purpose of later being able to challenge the judgment for this reason).

Right to an impartial court

It is the right of the accused that no members of the court may have any relationship with them, their lawyers, or the case itself that could bring into question their impartiality. The formula for denouncing infringement of this right is the recusal of any judge whose impartiality is in doubt on any legal grounds. Recusal must be immediate upon learning of the situation (otherwise, it is understood that the impartiality of the judge concerned has been accepted).

Principle of equality of arms

Closely connected to the above, all parties to the proceedings must receive the same treatment by the court. Both parties must be given the same opportunities to make petitions to the court and to examine evidence. In the event of an infringement, an objection must be put on the record, so as to later be able to challenge the judgment for this reason. 31 Right to remain silent and avoid self-incrimination

This safeguard is exercised during the examination of the defendant, which will be taken as first evidence. The defendants may refuse to testify, and their silence can in no way prejudice them. They may also decide to only answer their lawyer's questions and not those of the prosecution and/or those of the private prosecution; again, this option cannot be used against them.

They may also decide to answer certain questions and to refuse to answer others, without this having prejudicial consequences.

Right to public proceedings

Safeguarded by the live broadcast (streaming) of the sessions and online publication of the decisions handed down during the trial.

Right to the last Word

At the end of the sessions, the defendants have the right to take the stand to make a general assessment of the proceedings and of their position, so that these are the final words heard by the court.

Non-existence of trial in absentia

Spanish law does not permit trials in absentia, which is one of the measures that provide safeguards in Spanish criminal procedural law. The accused cannot be tried if they have absconded from Spanish justice.

32 5. Independence and safeguards of the Spanish legal system

1. The Spanish Judiciary is completely independent from the executive and legislative powers. This independence is specifically enshrined in the Spanish Constitution.

From an institutional standpoint, the guarantee of independence lies in the fact that the Ministry of Justice does not direct the Judiciary, does not determine who is a judge or who is promoted or transferred within the judicial organisation, or which judges should be penalised for incorrectly conducting their duties. These duties correspond to an internal governance body of the Judiciary, the General Council of the Judiciary (CGPJ), which has counterparts in France and Italy.

The CGPJ is a constitutionally established body (Article 122 of the Constitution) in charge of ensuring judicial independence. It comprises 20 members and a president (who at the same time is President of the Supreme Court). These 20 members are appointed by Parliament: 10 by Congress, 10 by the Senate, in both cases by reinforced majority (3/5), so there must be a consensus between the predominant political forces. Of these 20 members, 12 must be judges, and eight jurists of recognised competence. Their mandate is for five years, and cannot be renewed.

From a functional outlook, the guarantee of independence consists in recognising that when the judges take their decisions, they are only bound by law: There is no hierarchy in the Judiciary; the higher courts, in the event of an appeal, may overturn the decision of the lower courts, but cannot oblige them to take a specific decision.

2. The proceedings for the majority of the acts relating to the independentist process in Catalonia were conducted in the Criminal Chamber of the Supreme Court, which is a body with national jurisdiction.

Normally, it is a court that is concerned with resolving appeals, but it is also competent to hear criminal cases against certain persons, by reason of the public office they hold.

Pursuant to Catalonia’s Statute of Autonomy, the case was conducted at the Supreme Court by reason of the office held by several of the defendants at the time when the alleged crimes were committed. This is not an imposition, but the result of applying a rule of jurisdiction decided by the Catalan Regional Parliament, and later endorsed by the Spanish Parliament.

33 3. The Criminal Chamber of the Supreme Court is a completely independent court.

Its judges are selected by the General Council of the Judiciary with an enhanced majority and they are appointed for indefinite terms, ending upon their retirement. This provides a maximum guarantee of their independence: It is common for judges to be labelled as “conservative” or “progressive”, but the reality is that their decisions are based not on political but on strictly legal criteria. The clearest proof of the Supreme Court's independence is that it upheld judgments that ordered the imprisonment of numerous political figures imposed by a lower court (among these, former ministers and high-ranking officials, from across the political spectrum).

4. Spanish criminal proceedings, as currently regulated, are among those that offer the most safeguards in Europe.

Spanish criminal proceedings fully respect the fundamental rights of the accused to the presumption of innocence, to defence, to non-self-incrimination, and to judicial impartiality. The law also precludes trials in absentia, unlike in other democracies similar to Spain.

Here, the special case against the leaders of the procès has been handled in all its phases with the maximum respect for safeguards. During the initial phase of the investigation, the lawyers of the investigated persons had full access to the records, and were able to intervene actively throughout the investigatory process (depositions of the investigated persons and witnesses, rebuttal of expert reports). During the trial, the rights of the defendants continued to be safeguarded, as in any other trial in Spain.

In particular, the Court has been very careful as regards a fundamental safeguard: publicity and transparency. To that end, it enabled a channel permitting the live TV broadcasting of all the sessions of the trial. Access by the accredited media did not face restrictions or limitations other than those imposed by proper management of the sessions, and the political groups related to the defendants were allowed to be in the Chamber at all times. In addition, all major events and all decisions handed down are accessible to the public on the website of the General Council of the Judiciary.

34 6. Private prosecution: What is it?

• Private prosecution is a procedural option whereby any citizen, whether or not affected or harmed by a crime, may accuse others in defence of the law. This is included in the Spanish Constitution (Article 125) and in the Criminal Procedure Act.

• This is an institution with few parallels in other procedural systems, whether under continental law or common law.

• The institution of a private prosecution is based on the legislator’s commitment to allow citizens to be involved in criminal prosecutions. Through private prosecution, any citizen who may be interested in the prosecution of a public crime can ensure that the necessary means are provided in order to do so.

• The private prosecutor can only participate in criminal cases. In fact, private prosecution may not be pursued in the entire criminal jurisdiction, but only with respect to crimes that can be prosecuted sua sponte, excluding other types of offences (semi-public and private).

• Although at first the right to private prosecution was not accorded to legal entities, a precedent was created by Constitutional Court Decision 241/1992 of 21 December, which provided for the first time for the legal right of legal entities to intervene in proceedings as private prosecutors.

• In recent years the need for a legal reform to more precisely define the scope of private prosecutions has been raised on different occasions. One possibility would be to grant judges greater powers of discretion when it comes to assessing the suitability and true interest pursued by those individuals or legal entities who intend to participate in proceedings as private prosecutors.

• The private prosecution brought in Special Proceedings 20907/2017 (“the procès trial”) by the political party Vox does not in itself constitute an anomaly, because there are various precedents of political parties that have fulfilled this same role in the recent past. Among these examples we can cite the following: that of Iniciativa per Catalunya-Els Verds in the Botín case (2007); that of the PP in the Gürtel case; or that of the PSOE, in the framework of the legal actions against police superintendent Villarejo (specifically, the "Reserved Funds” collateral proceedings). The most striking case perhaps is that of the CUP, an extreme left-wing independence coalition that has exercised private prosecution in at least two cases: that of the so-called “3%” (which implicated the now extinct CiU party for the payment of illegal commissions), and that which concerned the increase in salaries of the Catalunya Caixa bank.

35 7. The trial and sentences

The verdict of the procés trial puts an end to two years of judicial process, initiated on 16 October 2017 with the imprisonment of Jordi Sánchez and Jordi Cuixart, leaders of the Catalan National Assembly (ACN) and Òmnium Cultural, respectively. Two weeks after the verdict of the trial, the Public Prosecution Office filed a complaint against the entire government of Carles Puigdemont and the members of the Catalan parliament which allowed the vote for the unilateral declaration of independence to take place on 27 October. The ex-president and five former ministers of the Catalan government fled Spain, and the Spanish High Court jailed Oriol Junqueras and six other members of the Catalan government.

The Supreme Court took over the case. In February 2018, it put 12 separatist leaders on the bench, nine of them in pre-trial detention: Junqueras, Sánchez, Cuixart, Bassa, Forn, Romeva, Turull, Rull and Forcadell. The duration of the trial consisted of 52 court sessions in the morning and afternoon, spread over four months, and was broadcast on the website of the General Council of the Judiciary (CGPJ),

Until October 14, 2019, the day on which the seven Supreme Court judges made public the unanimous ruling. Of the 12 defendants, 9 were found guilty of sedition and misuse of public funds; and 3 for the lesser charge of disobedience.

Oriol Junqueras, who was vice-president of the Catalan regional government during the events of 2017 (and therefore assumed a greater degree of responsibility), was handed the longest sentence: 13 years in prison and 13 years of absolute ineligibility to hold public office. He is followed by Raül Romeva, Jordi Turull and Dolors Bassa, with 12 years in prison and 21 years of absolute ineligibility to hold public office. In the four cases, they were found guilty of sedition and the misuse of public funds in which the amount involved was considered an aggravating factor. Carme Forcadell was sentenced to 11 years and 6 months in prison and the same time of absolute ineligibility to hold public office; Joaquim Forn and Josep Rull (were acquitted of the crime of the misuse of public funds), to 10 years and 6 months in prison and ineligibility to hold public office; and Jordi Sánchez and Jordi Cuixart to 9 years in prison and ineligibility to hold public office.

Santiago Vila, Meritxell Borràs and Carles Mundó were only found guilty of disobedience, receiving the lowest sentences: 10 months and a fine, and one year and 8 months of ineligibility to hold public office.

Despite attempts to politicize the trial, it has become clear that the 12 defendants have been prosecuted because they broke the law, not for their ideas. At no time did the Spanish government interfere with the work of the judges, who based their conclusions on the strictest application of the law.

36 THE JUDGES RULING

There was no rebellion

Although the Supreme Court considers the existence of violence to have been proven, the sentence asserts that the verification of violent episodes is not enough to consider it rebellion, since this violence should be instrumental, purposeful and directly intended, without intermediate steps, in order to achieve the ends that the rebels pursue. In other words, it would have been rebellion if the episodes of violence had directly sought to impose de facto territorial independence and the repeal of the Spanish Constitution in Catalan territory.

But, in this case, the High Court considered that, on the contrary, violence was used to create a climate and bring about a scenario in which subsequent negotiation would become more viable since, as the sentence states, all the accused were aware of the fact that the referendum of self-determination was not legally viable as a means to achieve a Catalan Republic. In other words, what was offered to Catalan citizens as a legitimate exercise of the right to decide was no more than a decoy to encourage mass mobilisation that would allow political and activist leaders to put pressure on the national government. For these reasons, the judges acquitted all those accused of rebellion.

But there was sedition

Although the sentence concluded that there was no evidence of rebellion (to modify the structures of the State with planned violence), there was sedition: inciting tumultuous acts to prevent the correct application of the law or, defying any authority, official corporation or public official, and hindering the exercise of their functions or the fulfillment of their duties.

The judges maintain that the illegal referendum of October 1 was not only a demonstration of citizen protest, which would not have been a crime, but was in fact "a tumultuous uprising" encouraged by those convicted to try to obstruct judicial decisions. They consider that the actions of September 20 (in front of the Ministry of Economy) and October 1 "were far from a peaceful and legitimate protest demonstration”.

Misuse of public funds

The sentence considers the misuse of public funds by Junqueras and the former ministers Raúl Romeva, Jordi Turull and Dolors Bassa, to be proven without a shadow of a doubt given that the amount "greatly exceeded 250,000 euros”. The conviction for this crime is based on the instrumentalisation of public funds belonging to the departments directed by the accused to carry out the illegal referendum.

37 According to the sentence, these ministers took specific steps to evade the financial scrutiny that is inherent in democratic societies and carried out specific acts of economic expenditure in a genuine display of disloyalty.

For the misuse of public funds, the former ministers Santi Vila, Meritxell Borràs and Carles Mundó were acquitted. Although it is true that all of them signed a governmental agreement stating that all the expenditure earmarked by the Govern for holding the referendum would be assumed as joint and several responsibilities.

However, an offence committed as a partnership requires, in accordance with the law, something more than a prior agreement to commit the offence. In this case it was very difficult to prove that the acquitted, former councillors had in fact used funds from the departments they were in charge of to finance the illegal referendum. As some witnesses alleged Vila, Mundó and Borrás, even gave specific orders not to apply budgetary appropriations to the plebiscite scheduled for 1 October.

Civil disobedience

The Supreme Court considers that what happened on 1 October was not only a demonstration or a massive act of citizen protest, but a tumultuous uprising encouraged by the defendants, with the intent of using de facto coercion and physical force to turn the decisions of the Constitutional Court and the High Court of Justice of Catalonia into a “dead letter”. No objection could be made if the action had taken the form of mass demonstrations, but according to the ruling, what the Spanish Constitution nor the fundamental laws of any democratic State cannot tolerate is to make one of the most vital requirements of the rule of law - compliance with a court decision - subordinate to the will of one person, ten people or thousands of people, especially when there many other citizens who place their trust in the courts of law and would like to feel protected by the rule of law.

In conclusion, although democracy understands civil disobedience as a sign of healthy dissidence to vindicate change, what the separatist leaders on trial did was to incite civil disobedience by imposing their ideas on law-abiding citizens who chose to respect public authorities and comply with the decision of the court. Nobody can presume to have a monopoly over what is or is not legitimate, casting into the realm of illegitimacy anyone who does not share their ideas about self-determination.

There was no criminal organization

It should be noted that the judges also rejected the accusation made against the 12 defendants, of criminal organisation which was presented by a collective who did not agree with the legal qualification of the facts.

38 DETAILED SENTENCES

Guilty of sedition and the misuse of public funds, the amount was an aggravating factor. ORIOL JUNQUERAS Former vice-president of the Generalitat and former Sentence: 13 years in prison and 13 years’ ineligibility Minister of Economy and from holding public office or enjoying any privileges Finance related thereto and inability to be elected or hold the same or similar positions in public office during the duration of the sentence.

RAÜL ROMEVA Former minister for external relations Guilty of sedition and misuse of public funds, the amount was an aggravating factor.

JORDI TURULL Sentence: 12 years in prison and 12 years ineligibility Former minister of the from holding public office or enjoying any privileges presidency and cabinet related thereto, even if they are elective, and inability spokesperson to be elected or hold the same or similar positions in public office during the duration of the sentence.

DOLORS BASSA Former Catalan labour minister

Guilty of sedition

Sentence: 11 years and 6 months in prison and 11 CARME FORCADELL years and 6 months’ ineligibility from holding public Former speaker of the office or enjoying any privileges related thereto and Catalan parliament inability to be elected or hold the same or similar positions in public office during the duration of the sentence.

39 JOAQUIM FORN Guilty of sedition Former Catalan interior minister Sentence: 10 years and 6 months’ in prison and 10 years and 6 months’ ineligibility from holding public JOSEP RULL office, honours or any position related to public office Former Catalan held by the penalty and the inability to be elected to territorial minister public office during the time of the conviction.

JORDI SÁNCHEZ Guilty of sedition Former president of ANC (Catalan National Sentence: 9 years in prison and 9 years’ absolute Assembly) disqualification, with final deprivation of all honors, jobs and public offices held by the penalty, even if elective, and inability to obtain the same or any other JORDI CUIXART President of Òmnium honors, offices or public offices and the inability to be Cultural elected to public office during the time of the conviction.

SANTIAGO VILA Former minister of Business, Enterprise and Affairs Guilty of disobedience

Sentence: Fine of 10 months, with a daily quota of 200 euros, with subsidiary personal responsibility of one MERITXELL BORRÀS day for every two unpaid quotas, and ineligibility to Former governance hold elective public positions, whether state or minister regional or to participate in government functions at a state or regional level, for a period of 1 year and 8 months. CARLES MUNDÓ Former minister of justice

40 SOCIAL AND POLITICAL REACTIONS TO THE RULING

BEFORE SENTENCING: INSTITUTIONAL AND COLLECTIVE PRESSURE ON THE SUPREME COURT

Weeks before the publication of the sentence, different sectors of the independence movement had already shown their willingness to organize mass demonstrations against the Supreme Court's ruling if - as was to be expected - all the accused were not acquitted. Justice and the rule of law itself came under pressure on both an institutional and social level:

- On 5 September, for example, the president of the Generalitat, Quim Torra, announced at an informative breakfast in Madrid that, if the Supreme Court did not acquit the defendants, he would "take the initiative once again to lay firm foundations for the path towards independence" and that "they will act accordingly (...) beyond fines, ineligibilities or any other threat". "If our comrades are prosecuted (...) we will not accept this sentence and we will act accordingly". It was in this intervention that he coined one of the post-sentencing secessionist slogans: 'ho tornarem a fer' (we would do it again).

- On September 26, JxCat, ERC and the CUP carried out a joint resolution in the regional parliament (with the abstention of the 'communs' and which was rejected by Cs, PSC and PPC) that states that the Catalan Chamber is committed to "lead a government response to the sentence" of the 1-O in the case of a conviction, and to seek "total amnesty" for the defendants convicted in the Supreme Court for the 1-0.

- On the second anniversary of 1-O, JxCat, ERC, CUP, ANC and Òmnium read a manifesto in which they stated that "any sentence that is not acquittal will be considered unjust”. Torra, for his part, encouraged the CDRs to continue their activity: "You, friends of the CDRs, keep putting the pressure on, you’re doing well.”

- Days before the sentence, ANC and Òmnium called for mass demonstrations to take place for three days once the sentence was made public, with the aim of blocking roads and access to the Catalan capital. Once again, the leaders of both associations insisted that "the only thing we will accept is acquittal".

- But if there is a collective that is willing, as they themselves have affirmed, to block Catalonia and the rest of Spain - for an indeterminate time if necessary - it is Tsunami Democràtic. A campaign that was set up anonymously, whose financing and support remains unknown and which burst onto social media networks at the beginning of September, proposing to coordinate all citizen action in response to the sentence. Its objective is clear: "to generate a general crisis across the Spanish State that will last for a long time". Through their networks they asked their followers to keep an eye on their informative platforms and, as soon as the sentence came out, "to leave everything they were doing because the prepared response would require immediate action". 41 - Beyond government, political and social media statements, the Guardia Civil detained nine members of the separatist movement linked to the Committee for the Defense of the Republic (CDR) on 29 September, who were accused of preparing violent acts with explosive devices. The Public Prosecutor's Office of the High Court considered that they had formed "a terrorist group of a Catalan secessionist nature" and they were attributed with the possession of explosives, as well as terrorist and rebellion offenses, projects were at an "advanced stage of preparation", as they had already "selected targets".

AFTER THE RULING: A WEEK OF UNREST IN CATALONIA

Once the Supreme Court's ruling was made public, the response was not long coming. On the same day, the 14th of October, the site chosen for mass protest was El Prat airport and road and railway blocks were set up throughout Catalonia. The response was organised by the Tsunami Democràtic through its networks -especially Telegram-, thousands of people blocked access to the Barcelona airport, causing the cancellation of 108 flights. There were confrontations and the Mossos d'Esquadra (the Catalan Police) and the National Police coordinated their efforts to respond to the conflict.

On Tuesday the 15th, the national government headquarters in Catalonia were the points chosen by the demonstrators as a symbol of the State. The riots and the police response continued in the four provincial capitals of Catalonia. In Barcelona, where radical groups erected barricades and bonfires in the vicinity of the national government headquarters.

On Wednesday the 16th and on Thursday the 17th, the riots, organized and led by revolutionary independence groups and anarchists, which were joined by students, spread uncontrollably throughout the centre of Barcelona. They adopted an anti- police position, revolting against all law enforcement, from both the National Police and the Catalan Mossos d'Esquadra.

On Friday the 18th Barcelona witnessed the two faces of independence: on the one hand, hundreds of thousands of demonstrators from the so-called Marxes per la Libertad (organized by ANC and Òmnium), who had come from different municipalities in Catalonia, converged on the Catalan capital. These groups coincided with a general strike which had been organised by independent unions (Intersindical- CSC and Intersindical Alternativa de Cataluña), and which was not supported by the national workers’ unions (CCOO and UGT) and whose success was difficult to calculate, given that it also provoked road blocks and train cancellations and the cancellation of 58 flights.

And, on the other hand, while part of the pro-independence movement defended a peaceful movement other sectors returned to violence giving rise to one of the most violent protest nights of the week. For seven hours, thousands of hooded youth surrounded the National Police Headquarters in Via Laietana, throwing bottles and paint at the police and vans that guarded the building.

42 At night, violent incidents spread throughout the centre of Barcelona, especially in Plaza Urquinaona, where barricades were erected. Even though the National Police and Mossos managed to disperse them around midnight, disturbances continued in the centre. In a press conference related to the situation, the Minister for Home Affairs, Fernando Grande-Marlaska, reported that so far this week there have been 207 injured law enforcement officers, 128 violent detainees, 800 burnt containers and 100 damaged police vehicles.

After the multiple incidents that took place on this day, the violent nature of the protests began to subside on the first weekend after the sentence. On Sunday the 21st, groups of demonstrators threw rubbish bags at the security perimeter of the national government headquarters in Barcelona, and blocked important streets such as the Diagonal, Meridiana and Paseo de Gràcia, culminating with a sit-in, in front of the National Police Headquarters.

Despite the magnitude of the riots and clashes with the police, the condemnation of the violence by the President of the Generalitat, Quim Torra, was long overdue and, in any case, stood out for its ambiguity and laxity. He expressed his appreciation to those who managed to collapse El Prat airport on Twitter on 14 October; the Catalan government's spokesperson, Meritxell Budó, stressed a day later that Torra's government shared "the anger of the people"; even, when asked on three occasions by journalists, Torra avoided condemning the violence. Not even a request from the President of the Government, Pedro Sánchez, in an official statement to condemn the violence that had occurred "without excuses and palliatives" succeeded. And, when Torra decided to start doing so, in his televised statement in the early hours of Thursday the 17th, he did so by attributing the violence to "infiltrators and provokers”. In the morning, in Parliament, the Catalan president stressed his rejection of "all violence, wherever it comes from". On Tuesday 22nd October, in an interview with CNN, Torra insists that "violence does not represent me at all, and I condemn it". A response that did not satisfy the Government, which demanded a more forceful response and support for the State Security Forces.

43 REACTION IN THE INTERNATIONAL PRESS

After the publication of the sentence of the Catalan separatist trial, many prestigious international media organizations highlighted the solidity of Spanish democracy and when faced with a situation where laws were deliberately broken, the Spanish justice system proved itself to be rigorous and fair as Giles Triplett a historian and journalist explained in an article for The Guardian in an opinion piece entitled "Catalonia’s separatists were jailed for sedition but brought down by hubris’: "The court sentences concentrate on the referendum and are harsher than expected, and some will argue about the definition of "sedition", but there is no doubt that the law was deliberately broken”.

The Financial Times, in its 15 October editorial, noted that: "A democracy that respects the rule of law is obliged, in the public interest, to hold accountable anyone who commits an illegal act. Spain is no exception. There is little reason to believe that the trial in the Supreme Court was anything other than a fair process.” In the Belgian newspaper La Liber Belgium, European law professor Melchior Athlete, a former judge at the European Court of Justice, supported the Spanish government’s position on the right to self-determination in an article published on the 17 October. Entitled "Flanders, Catalonia... Is there a right to independence and self-determination?", the article states that: "in national legislations there is a right to self-determination or independence only if that right is expressly provided for or created, within the constraints of the law" and, therefore, the only way for this to legally exist in Belgium or Spain would be to reform the Constitution. The Economist, commenting on the ruling on the same day, argued that : "The separatists used their narrow majority in the Catalan parliament to ram through laws tearing up the constitution and the region's statute of home rule.” While an editorial in Le Monde stressed that "hundreds of young radical demonstrators have chosen to abandon the pacific nature of the main pro-independence demonstrations in favor of violent clashes".

The essayist Juan Claudio de Ramón wrote an article in the Belgian newspaper Le Soir in favour of the Spanish government, stating that it was "one of the most useless crises in the West in which the only people responsible were certain frivolous and vain separatist elitists who wanted to make believe that their will was law". In his article, Ramón tells the Belgian public about the immense Catalan representation in Spanish institutions, its high degree of autonomy and clarifies that both languages, Catalan and Spanish are equally respected as official languages, in order to demystify "the two most commonly mentioned false grievances: the alleged bias towards the Catalan language and economy. Neither of which have been confirmed by facts". And he ends by saying: "No politician has been judged for his or her ideas. The separatist leaders express themselves freely everyday in the media. (...) On the contrary, the judicial sentence is based on the perpetration of crimes that typify Spanish law and that exist, under the same or similar names, in the legislations of the greatest democracies".

44 THE TRUTH ABOUT SPAIN AND ITS CATALAN REGION 7. The secessionists’ falshoods

This is yet another of the battles being waged in the world against disinformation and fake news. Listed below are some of the falsehoods that have been spread about the procès and the situation in Catalonia, contrasted with the objective facts that refute them.

Fake Fact Catalonia is the Autonomous Community with the highest GDP in Spain, amounting to almost 224 billion euros, equivalent to 19.2% of the GDP of the entire country. Madrid’s GDP is lower. (2017 figures, National Statistics “Spain is Institute (INE), 2017). The contribution system of Spain’s Autonomous robbing us” Communities is proportional: each Autonomous Community contributes based on its wealth and receives based on its population. This perception of unfairness is common and occurs in many other regions of Europe with a decentralised territorial organisation. Taxes collected from Catalonia are a consequence of the proportional tax contribution system of Spain’s Autonomous Communities to the Spanish “The State State and the distribution between the richest and poorest individuals. plunders In addition, it is the State that has helped Catalonia when the Generalitat Catalonia fiscally has had problems dealing with outstanding debts and paying suppliers. and Through the Autonomous Liquidity Fund—a credit line through which the economically” central government lends money to Spain’s Autonomous Communities—the Ministry of the Treasury disbursed more than 80 billion euros so that the Catalan Regional Government could cover these debts. Naturally other Autonomous Communities have received similar economic support when they have required it, but it has always been of a lower amount than that provided to Catalonia. It is not true that the Catalans cannot exercise their right to vote under the same conditions as the rest of the Spanish people. Indeed, since 1977 the Catalans have voted at:

 10 municipal elections  12 regional elections “Spain doesn't let  13 national parliamentary elections Catalonia vote”  7 European elections  2 referendums on Catalan autonomy  4 national referendums

The right to vote is subject to universal suffrage and is guaranteed for all of the nation's citizens. In the referendum to approve the Statute of Catalonia (2006), voter participation was 48.85%. In the referendum to ratify the European Constitution in 2005, only 26% of Catalans voted against. There are even legal channels at Congress for reforming theConstitution. Fake Fact Like all the other constitutions of Western countries, the Spanish “Spain does not Constitution does not permit the right to self-determination. International law permit any kind of does not provide for this option either, except in situations involving vote on self- decolonisation, which, as is well established, in no way applies in the case determination” of Catalonia.

The Spanish Constitution defends equality and is fully democratic. It was approved by a referendum in which 68% of Catalans took part and which obtained the backing of almost all of them (90.5%). In addition, two of the “The Spanish seven "fathers of the Constitution" responsible for drafting the document Constitution is were Catalans: Jordi Solé Tura and Miquel Roca Junyent. hostile to Catalonia” A notably higher proportion of Catalans voted in the referendum on the Constitution than in the referendums on the 1979 and 2006 Statutes of Autonomy, in which less than 60% and 48.8% took part, respectively.

In fact, Catalonia is one of the three historical Communities, together with the Basque Country and Galicia, to which the Constitution grants the highest levels of autonomy and the most powers (Article 151). The Lisbon Treaty is as clear as its interpretation by the present leaders of the EU. An independent Catalonia would be a "third country" and would therefore automatically be outside the European Union. If it wished to form “After part of the EU, it would have to apply for accession, and said accession independence we would have to be accepted unanimously by all the Member States. would remain in Moreover, various European leaders have already spoken out on the matter, the EU” such as former President of the European Parliament Antonio Tajani, who made it clear that: “No one will ever recognize Catalonia as an independent country.” The UN and public international law recognise the right to self-determination of peoples who have been oppressed or colonised, which does not apply in this case. Catalonia forms part of Spain, it is recognised as one of its regions, it has its own institutions, it is a bilingual society, and it forms part of “The UN a state governed by the rule of law—Spain—which ranks among the world’s recognises the 20 full democracies. right of peoples to In an interview with the newspaper El Mundo (30/10/2015), the UN self- Secretary-General declared that Catalonia was not included in the category determination” of territories to which the UN could guarantee the right of self- determination. Besides, the UN does not admit the right of self- determination in democratic states such as Spain, without prejudice to what has been termed “internal self-determination” regarding language rights, culture, education, etc.

47 Fake Fact Since 1979 Catalonia has been one of the Spanish regions with the most “We Catalans do powers conferred by the Spanish State, amounting to powers in a total of not have 189 spheres. It is one of the most autonomous regions in Europe (Ministry sufficient of Territorial Policy and of the Civil Service). Its parliament has legislative autonomy” powers on all matters under its purview, which include the public media, health, education, penal institutions, and overseas trade delegations. “If we were Catalonia is the most indebted Autonomous Community in Spain. It owes independent, we more than 78 billion euros, mainly to the State. To finance itself, the would have an Catalan Regional Government has issued bonds which the rating agencies economic have ranked as "junk bonds”. (Fitch, Moody’s, S&P). The Spanish State is surplus” currently helping to address this situation through public funds, but without said aid, the situation could become far worse. The Constitution recognises a Catalan "nationality"—just as it recognizes a Basque and Galician “nationality”—due to the cultural, linguistic, historical “We are a nation” and political peculiarities of these Autonomous Communities. But in its ruling of 16 July 2010, the Constitutional Court determined that references to Catalonia as a "nation" had no legal effect. “Spain has been A significant proportion of historians in Spain and in other countries agree oppressing us that it was an international war or a dynastic war, a war of succession, and since the war of not of secession. “This was a dynastic war, with international intervention” 1714” (José Álvarez Junco, El País, 16 /10/2017) Apart from Catalan, other official languages are spoken in Spain: Galician, Basque, Valencian, and Spanish (the latter being the most widespread and “The Catalan an official language throughout the entire State). The Spanish Constitution language sets us recognises that "the wealth of Spain's different linguistic modalities apart” constitutes cultural heritage which shall be subject to special respect and protection” (Article 3.3).

The quarterly survey of the Generalitat’s Public Opinion Research Centre “We (Centre d'Estudis d'Opinió) has never indicated that the independentist independentists movement represents a majority. In July 2019, for example, independentist represent the supporters barely surpassed 44%, while more than 48% of the citizens majority” consulted were opposed to breaking away from Spain. The statistics clearly show that since 2012, support for the independentists has always been below 50%.

48 Fake Fact Freedom of expression is a fundamental right included in Title I of the Constitution. This essentially means that, just as has occurred, in Spain one can, inter alia: • Defend the independence of an Autonomous Community in any medium, autonomous parliament or political platform. • Organise pro-independence demonstrations. “There is no • Discuss the organisation of the State in parliament. freedom of expression in According to the recent "Democracy Index 2018" published by The Spain” Economist, our country is one of the planet’s 20 "full democracies". A 2019 report by Freedom House ranks Spain in 19th place , giving it a very high score: 94 out of 100, the same as that of the United Kingdom and Germany and higher than that of the United States. Moreover, Spain belongs to international organisations and is subject to international laws on freedom of expression. Our country has a democratic Constitution and a system of fundamental rights and safeguards. The politicians who are currently in preventive detention continue to make use of their freedom of expression from prison, from where they hold interviews with the media. Spain forms part of the same international institutions as any other European nation. The Economist’s "Democracy Index 2018" classes it as one of the planet’s 20 "full democracies", whilst Freedom House’s 2019 report places it on a footing with Germany and the United Kingdom, and “There is no real even above the United States. democracy in Spain” It cannot then be thought that Spain is not a democracy, because it is obvious that the people are sovereign, that there is independence between the powers of the State, that elections are free and fair, and that the Constitution safeguards the fundamental rights and freedoms of our citizens. In its latest report, the NGO Human Rights Watch does not refer to any violation of citizens’ rights during the events of 1 October in Catalonia. “Spain does not respect civil Civil rights are safeguarded by the current Constitution, Article 1 of which rights” states that Spain is “established as a social and democratic State, subject to the rule of law, which advocates as the highest values of its legal order, liberty, justice, equality and political pluralism”.

49 Fake Fact Some of the individuals involved in the so-called procès absconded and others stayed. But those who absconded did so because they knew that they were going to be accused of serious crimes. Spain’s democratic “Many politicians safeguards are such that it is not possible to try fugitives in absentia. The have had to go Constitution safeguards the right to a defence, opens lines of appeal for any into exile” judicial decision, and provides for an independent judiciary. In addition, Spain has for decades been subject to the jurisdiction of the European Court of Human Rights in Strasbourg, to which the defendants may appeal if the Supreme Court delivers a guilty verdict. No international authority questions the separation of powers or the existence of legal safeguards in Spain.

In the trial of the so-called procès there were no violations, nor any lack of “There are no legal safeguards. The defendants were transferred to Catalan prisons so legal safeguards that they could be near their families (they were only transferred to Madrid in Spain” for the trial). They have been able to speak freely with whatever media they wanted, even giving interviews from prison to national and international media. In addition, the procès trial was public and transparent and the public broadcasting service TVE had the television signal, which was also accessible to other news media. More than 600 accredited journalists were present. Spain is one of the top-rated countries in the Human Freedom Index prepared by the Cato Institute, the Fraser Institute and the Friedrich Naumann Foundation for Freedom. It has the maximum score for freedom “Spain is a of movement, freedom of association, and freedom of press. The medieval regime Economist’s "Democracy Index 2018" ranks it as one of the planet’s 20 "full with Inquisition- democracies", whilst the 2019 Freedom House report puts it on a footing like institutions” with Germany and the United Kingdom, and even above the United States. Spain’s Constitution was approved by referendum in 1978 after a constituent process and consequently there is no direct inheritance from the pre-democratic era. “The private In Spain, both the institution of the jury and the possibility of individuals and prosecution in the legal entities appearing in court as private prosecutors are ways in which trial is in the citizens contribute to the administration of justice. Any other political party hands of an or group could have been a party to the suit as Vox was. extreme right- wing party called Vox”

50 Fake Fact As with all movements, the conduct of those involved has been varied. There have been sectors that have become radicalized and have been involved in violent actions. An example of this was the mob siege of the Department of the Economy of the Generalitat in Barcelona on 20 September 2017, when a crowd obstructed the movement of the judicial committee and of the national law enforcement officers, causing damage to police vehicles and resorting to insults and obscene language. These acts "The formed part of the procés trial and it has therefore been the responsibility of independentist the judges to determine whether or not they constituted acts of sedition or movement is a rebellion. peaceful movement” The difference between sedition and rebellion lies in there being a public and violent uprising. The Public Prosecution Service and the investigating judge believe that there was violence because acts of intimidation were committed to obtain Catalonia’s independence. The State Legal Service, however, understands that there was public disorder aimed at preventing the law from being applied, but no violence. Both Services explained their criteria in a lengthy account of the facts submitted to the Court and it was the responsibility of this Court to assess it and decide accordingly. “Catalans had the There is no right to participate in a voting process which has been declared right to vote in the illegal by the Constitutional Court—Spain’s utmost interpreter and referendum on guarantor of fundamental rights. independence called by the Generalitat, and the Spanish State acted in an anti- democratic manner by attempting to prevent it” It is not clear that the resistance of certain people occupying the polling “On 1 October stations was entirely passive. In total, 111 national law enforcement officers 2017, the police were injured (this is reflected in the reports forwarded to the judicial used force in authorities); 10 of these officers were obliged to take medical leave. confronting peaceful citizens On the other hand, the report issued by the Catalan Health Service of the who only wanted Generalitat on the people who received medical attention as a result of the to vote” incidents that occurred on 1 October only referred to 11 national law enforcement officers.

51 Fake Fact No international body questions the separation of powers or the impartiality of judges in Spain. Spain is, moreover, according to the recent “Democracy Index 2018” published by The Economist, one of the world’s 20 “full democracies”. It is true that current laws on the election of the members of the judiciary’s highest internal governance body (the General Council of the Judiciary) accords a key role to political parties, a factor which has received some criticism within the Council of Europe. This point refers, precisely, to one of the GRECO recommendations with which Spain has yet to comply. However, the Spanish Government has expressed its willingness to comply with all the recommendations made, which will require prior legal reform. A considerable number of the recommendations have been included in the Spanish legal framework (through Organic Law 4/2018, of 28 December).

It should be noted, nonetheless, that the ranking awarded by GRECO to our country is similar to that of several of our EU partners. Its latest report on our country (December 2017) expressly states: “GRECO wishes to underline, as it already did in the Fourth Evaluation Round Report, that there is no doubt as to the high quality of the judiciary and the prosecutorial service in Spain, as well as to the strong spirit of public service and “In Spain there is dedication of individual judges and prosecutors.” no separation of powers” Another example of the independence of the Spanish judiciary is the fact that the preceding Spanish Government fell in June 2018 as a result of a vote of no confidence triggered by the media uproar over the severe corruption sentences issued by the courts against former leaders of the then-governing party.

More recently, in May 2019, the Supreme Court and the Constitutional Court upheld Mr Carles Puigdemont’s right to stand as a candidate in the elections to the European Parliament.

The Spanish Courts deemed that—given its fundamental nature—no restrictions should be placed on a citizen’s right to participate as a candidate in elections provided that the individual in question has not been found guilty of any crime by a court of law, even if said individual has been indicted and is evading Spanish justice, as is Mr Puigdemont’s case.

52 Fake Fact “During the day Without going into the matter of how many people suffered contusions of on which the some kind during that day, it must be highlighted that only three people (illegal) were hospitalized with injuries directly resulting from police charges. 48 referendum on hours later, only one of these people was still in hospital. self-determination took place, police action resulted in injuries to more than a thousand people” “The Spanish The police officers were not sent by the central government, but by the police, sent by the courts, in compliance with a court order. central government to There are currently a number of legal cases pending in relation to the use repress the of force on the day of the referendum. Certain officers are being Catalans who investigated; the courts will be in charge of determining the corresponding voted on 1 responsibilities. October, acted with total impunity” “The 1 October Turnout in the “referendum”, which was annulled by Spain’s Constitutional ‘referendum’ Court, was of 38%, according to data provided by its organizers (the resulted in a Generalitat). This was subsequently corrected upwards by five points, democratic placing it at 43% (by the Generalitat, which provided no explanations), and mandate in favour the percentage of “Yes” votes was 90.18%. of Catalonia’s independence” However, these data are totally unverifiable, especially given that the Catalan Regional Government—in the absence of an electoral board— made available, on the very day of the referendum, the possibility of an “open census”, so that there were people who had the opportunity to vote several times and at different locations. (This did in fact occur, and can be verified through different sources, including audio-visual material). The referendum was not democratic, neither in its origin nor in the voting process itself. It lacked the minimum democratic safeguards, as defined by institutions such as the Venice Commission. There was no register of voters, or a campaign for “no”, nor was the Catalan public media in any way impartial. There were a great many irregularities and it was not observed by any recognised international institution (OSCE, Council of Europe, or the EU). It was annulled by Spain’s Constitutional Court.

According to a recent survey by GESOP (Study and Opinion Bureau of Catalonia), only 28.8% of Catalans consider that there is a democratic mandate to proclaim secession, compared with 68.4% who think the opposite. Fake Fact The individuals tried were accused of participating in the implementation of a plan aimed at unlawfully creating a de facto State in the territory of the current Autonomous Community of Catalonia.

This process entailed the public authorities’ disregarding the Spanish Constitutional Court (something which several of the accused called on the public authorities to do), as well as public mobilization that was not limited to the organization of demonstrations, but also included acts of resistance “The individuals to public authority that were considered in the trial. Under the Spanish who are in Criminal Code—as in that of many other countries—it is a crime to prevent law enforcement officers from carrying out their duties. prison because of the They are not, therefore, accused of putting out ballot boxes, but of the ‘referendum’ are alleged commission of crimes defined in the Spanish Criminal Code. only there Thousands of people continue to defend their political ideas, and some of because they put them are even doing so from prison. They are accused of acts that give rise out ballot boxes to criminal responsibility. so that the As far as the day of the 1 October "referendum" is concerned, the people could accusations against the defendants do not refer to the action of "putting out vote” ballot boxes", but to that of organizing the occupation, classified as illegal by the Constitutional Court, of the schools designated as voting centres in order to prevent, once again, the action of the police. And, incidentally, to protect evidence that was necessary to pursue an ongoing criminal investigation. Actually, the facts suggest otherwise, given that the events surrounding the ¨The situation in illegal referendum on independence in the autumn of 2017 paved the way Catalonia has for Vox’s ascent. The “Catalan question”—in connection with the defence of nothing to do with national unity—was the topic Vox exploited the most during the campaign the recent rise of leading up to the elections of 28 April 2019, well ahead of issues such as the far-right (the immigration. In said elections, Vox obtained 10.26% of the popular vote, Vox party) in compared with just 0.20% in the preceding elections (June 2016). Spain¨

54 Fake Fact “It is inadmissible The law is the same for everyone. In a democracy, no one is exempt from in a democracy abiding by the law. Those who have public duties and powers are subject to for a the law and to the Constitution, just like any other citizen. The defendants democratically were not accused—and this can be easily verified—for demonstrating or for elected official to making statements during their mandate, but for their actions while in office. be sent to prison” “The unilateral Even while accepting that the unilateral declaration of independence had declaration of no legal effects—although it was unquestionably political—the truth is that independence of on 6 and 7 September 2017, the independentist majority in the Catalan Catalonia was Regional Parliament approved—in violation of that parliament’s own symbolic and had internal rules—an “Act on the Legal Transition and the Founding of the no legal effects; Republic” repealing Spain’s Constitution and Catalonia’s Statute of therefore, it Autonomy in Catalan territory. This was no “symbolic act”, because it was should not serve published in Catalonia’s Official Journal. as grounds for criminal charges” Moreover, in April, former President of the Govern Carles Puigdemont made several statements to the media, reaffirming that the unilateral declaration of independence was not a symbolic act, and that it was still— according to him—in force, awaiting implementation. “It is Each country has its own criminal law. Therefore, it is natural for there to be unacceptable that differences between national regulations. In Spain’s Criminal Code, the defendants rebellion does not necessarily have to be committed by a member of the are being accused military. of a crime of rebellion, which is The above notwithstanding, it is not true that in all other countries the applicable to the offence of rebellion is defined as being limited to the military or to military, not to paramilitary forces. In fact, the offences that in a country such as Germany civilians” could be equivalent to rebellion as set forth in Spanish law—high treason against the Federation or against a Federated state—may be committed by civilians. “The Supreme No accreditations were granted to international observers, because the trial Court has not was public. Anyone who wished to “observe” the trial, in any capacity, was accepted able to freely access the courtroom, with the only limitation being the international room’s capacity. Moreover, anyone wishing to follow the trial was able to do observers, which so via a streaming service. The proceedings could not have been more is proof that the transparent. trial has no safeguards”

55 Fake Fact The parliamentary debate in question is only part of the story. Ms Forcadell was not solely judged for having allowed “a debate”, but because this decision was inextricably linked to her active participation in “The former enacting laws which, on paper, repealed the Spanish Constitution in speaker of the Catalonia, deprived Catalans of rights, and violated mandates of the Catalan Regional Constitutional Court. Parliament, Carme Forcadell, has been During this entire process, Ms Forcadell—as well as several of the prosecuted solely accused—repeatedly ignored each and every one of the expert opinions for having of the Catalan Regional Parliament’s own legal services, which insistently organized a debate warned of the blatant illegality of the actions that were being planned. in Parliament” The prosecution, moreover, considers Carme Forcadell—as well as several of the people who stood trial with her—to have been party to a plan that aimed to achieve the de facto independence of Catalonia, by declaring its independence in the Catalan Regional Parliament and using the Generalitat, its resources and its civil servants—including the 17,000 armed regional police officers—as guardians of the new State. “The law is being The High Court of Justice of Catalonia would have been competent had violated by the defendants been accused of acts that had only been committed in holding in Madrid Catalonia. This is not the case, because it is obvious that the secession a trial that should process that was taking place in that territory also had implications beyond be conducted in Catalan territory, and even outside Spanish territory. the High Court of Justice of Catalonia, given that the deeds and actions to which the trial refers took place in this latter territory” ¨The fact that a Under Spanish law, private prosecution is a procedural option whereby far-right political any citizen, whether or not they have been harmed or affected by a party (Vox) is specific crime, may accuse others in defence of the law. This possibility is pursuing a private provided for in the Spanish Constitution (Article 125). prosecution in the context of these The private prosecution pursued at the trial by the political party Vox did proceedings not in itself constitute an anomaly, since there were various precedents of proves that political parties fulfilling this same role in the recent past. Among these are Francoism is still Spain’s two main parties: PSOE and PP. But also, for example, the CUP present in (a far-left Catalan independentist coalition). Spanish institutions¨ Fake Fact “The Catalan Catalonia has full powers in the sphere of education. Since 1984, the language, an regional authorities have applied a language immersion policy, making essential aspect Catalan the working language in schools and universities. Catalan is, of Catalonia’s moreover, a co-official language—together with Castilian—in Catalonia, identity, is at and is the language of choice within the regional public administration. serious risk, and only On 25 April 2019, the Constitutional Court handed down a ruling on an independentism appeal against Catalonia’s Education Act, upholding the aforementioned can ensure its language immersion model in its entirety. survival” The so-called “referendum” of 1 October 2017 lacked the minimum democratic safeguards, as defined by institutions such as the Venice Commission. It was not democratic, neither in its origin nor in its voting process. There was no register of voters, or a campaign for “no”, nor was “Catalans had the the Catalan public media in any way impartial. On the contrary, there were right to vote in the a great many irregularities and it was not observed by any recognised referendum on international institution (OSCE, Council of Europe, or the EU). independence called by the Catalans have voted approximately 30 times since the restoration of Generalitat, and democracy, including three referendums that were crucial to Catalonia’s the Spanish State political status in Spain: the referendum on the Spanish Constitution in acted in an anti- 1978; the referendum on Catalonia’s Statute of Autonomy in 1979; and the democratic referendum on a new Catalan Statute of Autonomy in 2006. This Statute is manner by the one that is now in force in Catalonia, after being reviewed by the attempting to Constitutional Court in 2010 which only declared some of its Articles prevent it.” unconstitutional.

Without following the established procedure for its reform, this Statute was also the one which the secessionist majority in the Catalan Regional Parliament ignored and repealed, as it did the Spanish Constitution, by approving the Referendum Act and the Legal Transition Act, on 6 and 7 September 2017.

57 Fake Fact This figure was provided by the Generalitat and by members of the secessionist movement. The truth is that only three people were admitted to hospital with injuries directly resulting from police action. A large number of “On 1 October photographs disseminated that day depicting scenes of alleged violence 2017, police had in fact been taken during other events and on other dates, as reported action resulted in in international media such as The Guardian and Le Monde. injuries to more than a thousand As in every democratic country, police excesses are against the law. The people.” courts will be in charge of determining the corresponding responsibilities. This is false. Obviously, there are no political prisoners in Spain. No Catalan politicians have been prosecuted for their ideas. Every day, independentist leaders—including the President of the Catalan Regional Government—express themselves freely in the media, some even from jail.

The accused are being prosecuted for alleged offences that are defined in Spain’s Criminal Code and they are being tried with all of the safeguards inherent to a democratic State under the rule of law. No human rights organization, and no NGO active in this same sphere (such as Amnesty International or Human Rights Watch) has recognized these individuals as “The political prisoners or prisoners of conscience, despite having criticized their independentist lengthy preventive detention while awaiting trial. prisoners are political Moreover, preventive detention is a concept that exists in practically all prisoners” countries similar to ours and, in some cases, the maximum periods of preventive detention are longer than those allowed under Spanish law. Only the judge can decide to adopt such a measure, in the light of different aspects, including flight risk. Regarding flight risk, it should also be stressed that Spain’s judicial system—in which safeguarding defendants’ rights is highly prioritised—does not provide for the possibility of prosecution in absentia.

58 8. State of Autonomies: core ideas and key messages

Spain is a fully democratic state governed by the rule of law.

• Spain is a social and democratic state governed by the rule of law based on the Spanish Constitution, which was approved by referendum in 1978.

• Since 1977, Spain has belonged to the Council of Europe and has been a party to the 1950 European Convention on Human Rights, and as such it is subject to the European Court of Human Rights in Strasbourg.

• The Spanish Constitution guarantees the separation of powers, a common feature of Europe’s most robust and most consolidated democracies. According to the Spanish Constitution, justice emanates from the people and is administered in the name of the King by a judiciary formed by judges who are independent, irremovable from office, accountable and—above all, subject only to the rule of law.

• The Spanish Constitution, one of the most progressive in the world, provides for mechanisms for its comprehensive reform, unlike the German and French constitutions.

The Autonomous Community of Catalonia played a decisive role in establishing Spain’s democratic Constitution. More than 90% of Catalan voters said "yes" to the 1978 Constitution.

• The territory in which the Constitution obtained most support from the people— more than any other Spanish region—was Catalonia.

• In the referendum, the four Catalan provinces surpassed the national average for “yes” votes (91% compared with 88%).

• Two of the seven "fathers of the Constitution" responsible for drafting the text were Catalans: the socialist Jordi Solé Tura and the nationalist Miquel Roca Junyent.

59 Catalonia is one of the European communities with the highest levels of self-government

• The model of the Spanish State—which encompasses 17 Autonomous Communities and two Autonomous Cities—permits substantial powers to be transferred to the territories for their self-government and management of their interests.

• Spain’s organisation differs from Germany’s federal model, Italy’s regional model, and France’s unitary model.

• Catalonia has a regional government, which manages all the powers and responsibilities of the Autonomous Community. The more than 60 areas in which powers have been devolved to the regional government include education, the police (the Catalan regional police force enjoys full policing powers in the territory), health and social services, and the management of prisons.

• The Catalan Regional Parliament enjoys legislative powers in all matters under its purview, as well as the right to propose legislation at the national level. In other words, it has the capacity to propose laws, including the reform of the Constitution, to Spain’s Congress of Deputies, something which, however, it did not do during the recent independentist process.

60 9. The price Catalonia is paying for the independence bid

The independentist process has had tangible economic costs for Catalonia, according to the data published on 2 November 2018 by the Independent Authority for Fiscal Responsibility (AIReF), which showed that the Catalan economy was growing at a lower rate than the average for Spain. In addition, the independence debate has caused profound social divisions, as highlighted by historian Santos Juliá in his article Un sol poble; una sociedad dividida [A single people; a divided society] published in the journal Revista de Libros in June 2018. The media and social networks report daily attacks on non-independentist politicians. Lastly, freedom of expression and the freedom of the press have also been harmed, according to dossiers compiled by Reporters Without Borders (2017 #RespectPressCAT, 2018 World Press Freedom Index, 2018 Annual Report). The last few years have been especially negative for the press in Catalonia, because “there are continual attacks on freedom of information, especially against reporters working in the street” or against “those who are active on social networks”.

A fearful economy

In 2012, the Fundación Campalans, linked to the Socialist Party of Catalonia (PSC), began a series of analytical studies on Catalonia, cataloguing social differences within the region, and over the years these studies have included more and more information on the procès. The latest such publication, the 2018 Social Report, devotes an entire chapter to this issue, entitled “Balanç econòmic del procés” [The economic balance of the Catalan bid for independence]. The author of this chapter, David Fuentes, an economist and former chief of staff of the Head of the Department of Economy and Finance of the Govern from 2007 to 2010, concludes that the procès has reduced economic growth, increased poverty and provoked the economic emigration of young people from Catalonia, remarking, “Without the political uncertainty brought about by the procès during the autumn of 2017, Catalonia and the rest of Spain would have had stronger growth for the year as a whole”.

The report takes into account the impact of the procès at all levels of the Catalan economy, including the consequences of the departure of companies and banks from the region. “It is quite clear that their links with Catalonia will no longer be the same. The loss of talent and the absence of a robust financial and insurance structure with decision- making capacity in Catalonia will affect the solidity of the Catalan economic base in the coming years”.

61 According to the Spanish Association of Commercial Registrars, more than 5,350 companies and banks left Catalonia during the 12 months commencing in October 2017, the most heated period of the procès. Small, medium-sized and large companies (including CaixaBank, Pastas Gallo and Bruixa d’Or) made this decision due to the “risk arising from the political tension”, as Fuentes says, but also “due to related reputational issues, such as commercial boycotts, which have affected both sides”.The impact of the procès on Catalonia’s reputation has also affected its credit rating. The leading agencies (Moody’s, Fitch, and S&P) equate Catalan debt with “junk bonds” in their respective 2018 reports, a classification that directly affects the financing of one of the most prosperous regions in Spain. As shown by the data published on 2 November 2018 by the Independent Authority for Fiscal Responsibility (AIReF), the Catalan economy presented slower growth than the average for Spain as a whole, according to the GDP calculated for all the Autonomous Communities for the third quarter of 2018, amounting to a year-on- year national average of 2.5%. In addition, BBVA Research, in a report published in October 2018, predicted that the Catalan economy would grow by 2.5% and 2.3% in 2018 and 2019, respectively, compared with 2.6% and 2.4% for the Spanish economy as a whole. Similarly, the November 2018 report issued by the Funcas think tank predicted that the Catalan economy would grow more slowly than that of Spain as a whole in 2019.

A society in conflict

But the consequences of the independentist process have not only been economic; Catalan society has also been split apart. As observed in Santos Juliá’s article Un sol poble, una sociedad dividida (Revista de Libros, 13 June 2018), “The only thing the procès has achieved has been to split into two factions, not only the Catalan people—a mere concept—but also Catalan society”. Before the illegal referendum of 1 October 2017, singer-songwriter Joan Manuel Serrat described this act as “a situation causing major social division which, in my opinion, will take a very long time to repair”. After 1 October, Íñigo Urkullu, the Basque Regional President, during a visit to Argentina, expressed his concern in the following terms: “What is happening today in Catalonia is not surprising, but deeply regrettable, particularly the incidents that are aggravating the risk of a social divide”. For the most pro- independence media, there is no such social divide, but rather “social tension” (see, for example, the opinion piece “Fractura Social?” [Social Divide] published in the Catalan newspaper Ara on 20 June 2018). Other, more moderate, media outlets have tried to reflect the debate by presenting both positions, as in the article “¿Hay o no fractura social en Catalunya tras el 1-O?” [Is there a social divide in Catalonia or not after 1 October?]”, published by La Vanguardia on 11 December 2017. 62 Many others have attested to the presence of social division in Catalonia. “These days, I’ve been having problems with my sports mates, and with my family...”, someone told the online journal El Confidencial. “At work—I’m in sales—we’ve got clients from outside Catalonia who say they no longer want to do business with us here.”

Television channels and newspapers began to publish these kinds of stories about relationships breaking down due entirely to the procès. For example, the Spanish national TV channel Antena3 broadcast a report in September 2017 about estranged or separated families and friends, while Euronews put out a report entitled “La independencia de Cataluña divide a las familias” [Families divided over Catalan independence]” (6 October 2017). A BBC programme, broadcast in June 2018, also announced that its correspondent, Niall O’Gallagher, was returning to Catalonia to talk about “the Catalan people divided over their future”.

Harassment of politicians

This polarisation has also impacted strongly on the political class, some members of which have suffered harassment, insults, persecution and threats. Prominent leaders such as Albert Rivera (of the Ciudadanos party), Inés Arrimadas (Ciudadanos) and Xavier García Albiol (of the People’s Party or PP) have filed criminal complaints after receiving death threats. An article published in the newspaper El Mundo in April 2018 cited some of these threats: “They should kill him and his family; ETA come back,” was a message posted on Twitter about the leader of the PP in Catalonia.

The same article reported that a few days after the illegal referendum of 1 October 2017, graffiti death threats against Arrimadas and Rivera appeared in the Fontajau neighbourhood of Gerona. The article also mentioned an attack on the headquarters of the constitutionalist—or pro-unity—parties, as well as threats and harassment against dozens of party members. The new headquarters of the Socialist Party of Catalonia were sprayed with messages such as “Get out of Catalonia”, “Fuck Spain” and “Spanish faggots”, while individual representatives were called “fascists”, “torturers” or “the scum of this country.” On several occasions the Catalan Regional Parliament building has been besieged by protesters, who have even come close to kicking in the doors, as reported by El Mundo and other publications. The last such occasion was 1 October 2018, on the first anniversary of the illegal referendum.

63 Bad times for freedom of the press

Journalists, too, have become a target for the independentist radicals, as demonstrated on 22 February 2019 when two female TV reporters were prevented from doing their job (reported by the online journal elindependiente.com, on 22 February 2019, under the headline “La presión independentista se ceba en Cataluña con los periodistas” [Independentists pressurise journalists in Catalonia). Reporters Without Borders (RSF), the non-profit organisation of journalists from all over the world, publishes an annual report on the state of freedom of expression, entitled the World Press Freedom Index. The 2018 report states that Catalonia “continues to be hostile terrain for radio and TV reporters”, especially those working in the street. In its 2017 report, RSF observed that journalists were collateral victims of the conflict between the Spanish Government and the Catalan Regional Government, created by the illegal referendum of 1 October. The report also stated that many journalists who did not sympathise with the independentist movement had been pilloried on social media, sometimes at the instigation of press officers of the Generalitat. The situation has changed little since then. According to the 2018 report “extreme political polarisation has contaminated the media and their audiences to the point that journalists have become public hate figures.” RSF also published a specific report, #RespectPressCAT calling for greater respect for press freedom in Catalonia, and stating that “local journalists and foreign correspondents denounce cyberbullying campaigns in social networks and propaganda pressure from the Catalan Government”.

“Public broadcasters and subsidised private outlets are waging an intense campaign not only in favour of secession but also against those who oppose it and who defend the rule of law” warns the former MP (for the now defunct, Catalan nationalist Convergència party) and jurist Alfons López Tena, in a forthcoming essay entitled “La democracia constitucional en el siglo XXI” [Constitutional Democracy in the 21st Century] (Editorial Almuzara).

“Slanders against public officials, and biased and distorted—when not directly demonising—presentations of constitutionalist arguments are broadcast by publicly funded media with the Generalitat’s approval” says López Tena, famous for coining the slogan “Spain is robbing us”. He adds, “We cannot fathom any greater disloyalty towards the citizens of Catalonia, nor any greater disrespect for the framework of freedoms in a democratic society.”

64 During many years of government, says López Tena, radical nationalism in Catalonia has been allowed to “centralise power, monopolise the media, and create a patronage network...”.

An example of this is that, to date, no one proposed by the most voted for party in Catalonia, Ciudadanos, or by the PSC, or the PP (which together constitute almost half of the Catalan Regional Parliament) has been elected as a member of the Catalan Audiovisual Corporation (CCMA), a public organisation which manages public radio and television in Catalonia. The October 2018 edition of the Political Opinion Barometer published by the Public Opinion Research Centre (Centre d’Estudis d’Opinió), an organisation under the aegis of the Generalitat, highlighted the extent to which independentist TV viewers are shutting themselves off from other perspectives. The vast majority (80% on average) of those who vote for CUP, ERC and JxCat (the independentist parties) only watch TV3 (the public TV channel that broadcasts exclusively in Catalan), while those who vote for the constitutionalist parties obtain information from a variety of TV channels, including those leaning most strongly towards Catalan nationalism. Thus, 10% of PP voters in Catalonia watch TV3, as do 27% of the voters of En Comú Podem (a left-wing coalition), while other Spanish-language channels, such as La Sexta, TVE, T5 and Antena 3, attract audiences ranging from 8% to 30%.

65 10. Spain in international rankings

Set out below are a number of international indices in which Spain obtains high marks, whether for the quality of its democracy, its transparency, or for the legal and institutional safeguards it offers foreign investors. These rankings are of recognised international prestige, such as that of The Economist Intelligence Unit, or the World Bank’s Doing Business 2018, or the AT Kearney Foreign Direct Investment Confidence Index. In some of these indices, Spain ranks higher than countries such as the United States, the United Kingdom, France or Germany.

DEMOCRATIC QUALITY INDEX

The Economist Intelligence Unit's Democracy Index 2018

The report includes Spain among the first 20 countries at world level and among the 14 countries in Western Europe that enjoy a full democracy, in particular obtaining good marks for its civil liberties, electoral process and pluralism. Among the 21 countries of Western Europe, France, Italy and Belgium were considered defective democracies. The index offers an independent vision of the state of the democracies of 165 countries and two territories, based on five categories: electoral process and pluralism; civil liberties; the functioning of government; political participation; and political culture. http://www.eiu.com/Handlers/WhitepaperHandler.ashx?fi=Democracy_ Index_2018.pdf&mode=wp&campaignid=Democracy2018

Freedom House "Freedom in the World" ranking 2019 In this recent index on freedom in the world, Spain obtained a very high score of 94 out of 100, the same as that given to the United Kingdom and Germany, and higher than the 86 accorded to the United States of America. Of the 195 countries assessed by Freedom House on the basis of their levels of political rights and civil liberties, Spain ranked 19th . Founded in 1941, Freedom House is an independent NGO dedicated to the proliferation of freedom and democracy in the world. ttps://freedomhouse.org/report/countries-world-freedom- 2019?order=field_fiw_combined_score&sort=asc

66 Justice Scoreboards of the European Commission

The 2018 report shows that Spain made progress in efficiency, quality and independence in the 2016-2018 period. The breakdown of data shows that, in terms of efficiency, Spain’s score was close to the average as regards the time needed to resolve cases, and the score obtained for the independence of its judges was similarly close to the average, according to the perceptions of the European Network of Councils of the Judiciary. The report is prepared by the European Commission for Justice, Consumers and Gender Equality and is a tool used by the EU and its Member States to improve the effectiveness of their judicial systems. https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2018_en.p df

Rule of Law Index

The World Justice Project Rule of Law Index— the most complete assessment of the rule of law in the world—takes account of the following eight factors: constraints on government powers; absence of corruption; open government; fundamental rights; order and security; regulatory enforcement; civil justice; and criminal justice. Spain ranks 21st out of a total of 126 countries in the Rule of Law Index 2019, published at the beginning of the year. Spain obtained a score of 0.71 out of 1 as regards adherence to the rule of law, having climbed six places with respect to the previous index. Its score for criminal justice is also noteworthy: Spain obtained 0.66 out of 1 in this category, ranking 20th place at the global level and 13th among the most developed countries. https://worldjusticeproject.org/sites/default/files/documents/WJP_Rul eofLawIndex_2019_Website_reduced.pdf TRANSPARENCY INDICES

Transparency International

The leading transparency index has Spain occupying 42nd place in its most recent Corruption Perceptions rankings of 168 countries. This index assesses perceptions of corruption on the basis of valuations by business sector experts and representatives. https://www.transparency.org/news/feature/corruption_perceptions_in dex_2016?gclid=EAIaIQobChMI2OCAn8qO4AIVghbTCh0hwwLLEAAYA SABEgKqZfD_BwE

67 The OECD’s Global Forum on Transparency and Exchange of Information for Tax Purposes The latest study, dated October 2018, placed Spain among the 11 countries—out of more than 100—found to be fully compliant with the exchange of information standard. http://www.oecd.org/tax/transparency/exchange-of-information-on- request/ratings/

Reporters Without Borders (RSF) Spain ranked 31st out of 180 countries in RSF’s 2018 World Press Freedom Index, coming in above France, the United Kingdom and the United States of America. This index assesses the level of pluralism, media independence, the environment for the media and self- censorship, the legal framework, transparency and quality of the infrastructure that supports the production of news and information. RSF is an independent NGO with consultative status with the UN. https://rsf.org/en/ranking

FINANCIAL AND ECONOMIC SECURITY INDICES

The World Bank's Doing Business 2018 Report In this index Spain ranks 28th out of 190 countries, above France (31st), Switzerland (33rd) and Japan (34th). In the breakdown of the report, Spain ranks 1st for trading across borders and 24th for protecting minority investors. This is the 15th report in a series of annual reports that assess the regulatory standards and government policies affecting business activity. http://www.doingbusiness.org/content/dam/doingBusiness/media/Annual- Reports/English/DB2018-Full-Report.pdf

The World Economic Forum’s Global Competitiveness Report 2018 The World Economic Forum’s Global Competitiveness Report 2018 highlights the strength of Spanish institutions, ranking Spain 26th out of 135 countries. The report shows that—according to the business executives surveyed—Spain made steady progress in terms of judicial independence in the 2010-2017 period, and now ranks close to the average among European countries. The report covers 140 countries and assesses the government policies and institutions affecting competitiveness. http://www3.weforum.org/docs/GCR2018/05FullReport/TheGlobalCompeti tivenessReport2018.pdf

68 2019 A.T. Kearney Foreign Direct Investment (FDI) Confidence Index Spain ranks 11th in this index, coming in above countries such as the Netherlands, Switzerland and Denmark. The report stresses that “Spain’s national competitiveness has improved in recent years, and the financial system is showing growing signs of recovery. More broadly, an improving economic climate is likely contributing to greater investor confidence”. The report also affirms that “investor confidence is particularly visible in renewable energy deals”. https://www.atkearney.com/foreign-direct-investment-confidence- index

Forbes Best Countries for Business 2018 Spain ranks 18th above countries such as Japan, Belgium and France out of a total of 161 countries assessed based on the strength of their economies and the effectiveness of their government policies. https://www.forbes.com/best-countries-for-business/list/

Global Entrepreneurship Monitor Spain heads entrepreneurial parity in Europe with nine female entrepreneurs for every 10 male entrepreneurs. It is one of the most favourable countries for the entrepreneur, ahead of states such as Germany and the United Kingdom. Moreover, entrepreneurial activity is on the increase, rising from 5.2% of activity in 2016 to the current 6.4%. http://www.gem-spain.com/wp-content/uploads/2018/04/Informe- GEM-2017-18.pdf

69

QUESTIONS & ANSWERS 11. Q&A ABOUT THE CATALAN INDEPENDENTIST PROCESS 1. If the Catalans want to vote for their independence, why not let them?

The Spanish Constitution guarantees the unity of Spain and asserts that all the powers of the State emanate from the Spanish people, with whom national sovereignty resides. Were only a part of the Spanish population to decide on something corresponding to the people as a whole, this would be equivalent to depriving all the other Spaniards of their rights. Public opinion has changed over time, but today the majority of Catalans (53.7%) consider that the best option is to reform the current organisation of the Spanish State—which is based on its division into Autonomous Communities and Autonomous Cities—or not to hold a referendum, compared with 42.4% who are in favour of the referendum, according to a survey carried out in November 2018 by the company Gesop. Less than half the population (47.5%) voted for independentist options at the latest elections. A referendum would deepen the divisions within society. Today, the majority, both in Spain (52.3%) and specifically in Catalonia (78.5%), want a dialogue-based solution, according to a survey by La Vanguardia in February 2019.

The Spanish Constitution, like all other constitutions of Western democracies, does not provide for the right to self-determination. Moreover, the majority of Catalans are not asking for self-determination, and while the 47.5% who do want it represent a majority in the Catalan Regional Parliament, they do not represent a social majority. Be this as it may, the legitimate expectations of a hypothetical social majority of Catalans, whether with regard to this matter or any other, can only be met, in constitutional terms, from the most scrupulous respect for the law, in which all the rights and obligations held by the Spanish people are enshrined.

The Spanish Constitution provides for the possibility of reforming basic principles of the State, but only through the reform procedures stipulated therein. Thus, Spanish democracy is not a “militant democracy” which prohibits certain demonstrations, distinguishing it, for example, from democracy under the German Constitution.

2. Why doesn't the Spanish Government recognise the right to self- determination, as the Catalan independentists are demanding?

The independentist political parties argue that Catalonia possesses the right to self- determination recognised by the UN and that this entitles them to hold a referendum. This is why the Referendum Act approved in the Catalan Regional Parliament on 6 September 2017 begins as follows:

“The Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, adopted by the United Nations General Assembly on 19 December 1966, ratified and in force in the Kingdom of Spain since 1977, recognise the right of peoples to self-determination as the first of human rights”. However, the Consell Assessor per a la Transició Nacional (Advisory Council for the National Transition), created in 2013 by the same independentist Government, in a report entitled "Internationalisation of the consultations and process regarding Catalan self-determination", states that said covenants are only applicable to colonies:

“Article 1 of the two International Covenants of 1966—that on Economic, Social and Cultural Rights and that on Civil and Political Rights—affirmed that “all peoples have the right of self-determination” and that "by virtue of that right they freely determine their political status”. A subsequent UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States adopted in 1970 (Resolution 2625) specified that the right to self-determination recognised by the United Nations referred to colonial situations, namely, to those States not “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. Consequently, the United Nations does not recognise the right to self-determination in democratic States such as Spain.

Thus, the experts of the Consell Assessor themselves refute the alleged right to self- determination for the case of Catalonia contained in the Referendum Act.

3. Didn't the United Kingdom recognise the right to self-determination by holding the Scottish referendum?

In contrast to the Referendum Act approved by the Catalan Regional Parliament, neither the agreement signed by David Cameron and Alex Salmond, nor the Scottish Independence Referendum Bill passed by the Scottish parliament contains any reference to the right to self-determination

4. And Canada? Has it recognised the self-determination of Quebec?

During two respective periods in which the Parti Québécois held an absolute majority in the National Assembly of Quebec, it organised two referendums to change its relationship with Canada. Since these referendums were unilateral, neither was considered to be binding by the Quebec Government. Six days before the first referendum was held in 1980, Pierre Trudeau, who was Prime Minister of Canada at the time, publicly declared that not even if 100% of the votes were in favour would Quebec have the right to start negotiations on independence.

Regarding the second referendum, in 1995, Jean Chrétien, who was Prime Minister of Canada at the time, relates in his memoires that "I never explained—and I never will explain—what I would have done if the ‛yes’ votes had won.”

Eddie Goldenberg, who was his adviser and chief of staff, has written in a book that "long before the referendum", Chrétien “had decided he would never recognise the legitimacy of a ‛yes’ victory”.

73 5. But weren't the referendums in Quebec held pursuant to the Clarity Act?

Jean Chrétien decided to draw up Bill C-20—subsequently known as the Clarity Act— following the second referendum on independence in order to put an end to the inherent ambiguity of unilateral referendums. However, the Bill was rejected by the Parti Québécois. On TV3, Jean-François Lisée, the historic leader of said independentist party, asserted that “Canada has failed to find a solution to the Quebec question” because it considers that the Clarity Act makes independence "impossible" and that his model is the solution adopted by Cameron. On the occasion of the Scottish referendum, Lisée wrote an article in The Guardian entitled, in summary, “Well done, Britain, for a fair referendum. It's a shame Canada didn't manage it" (The Guardian, 9 September 2014). In addition, the Clarity Act, as concluded by the Supreme Court of Canada, affirms that nothing in Canadian or international law legitimises a unilateral secession of Quebec.

6. Why do the Catalan and Quebec independentist movements cite David Cameron as a model?

Oriol Junqueras very often cites Cameron as an example: “Ours is a very moderate and conservative position, so much so that it coincides with that of the most conservative European leader, David Cameron, who determined that the people could vote. Do you consider David Cameron conservative? Well, then our position is conservative”. (At the Sitges meeting of the Cercle d’Economia—a non-partisan, non-profit institution founded in 1958 to foster debate on economic policy and social progress—covered by El País, 30 May 2015).

Andrew Rawnsley, chief political commentator at The Observer, has explained the United Kingdom's exceptional nature, which gave it the flexibility to be able to agree on the Scottish referendum:

“You can argue that an ad-hoc constitution has not served Britain entirely badly. (…) This seemed serviceable enough—until this spatchcocked structure collided with something as colossal as Brexit. We are partly paying the price for making such a massive decision by simple plebiscite, without having properly settled rules about referendums and how they can be reconciled with representative democracy. It is very hard work to amend the constitution of the United States and a change can only be made if there is a wide and deep consensus. Britain is heading out of the EU, the most consequential act in decades, on the basis of one ballot held nearly three years ago in which just one vote could have decided the outcome. (…)

People I respect think that when the dust has finally settled, Britain will need to rethink its casual attitude to the rules of its democracy and embrace a properly codified and protected constitution.” (“Out of the Brexit nightmare must emerge a more robust democracy”, The Guardian-The Observer, 13 January 2019).

74 Cameron was able to make use of the flexibility of a non-written constitution. In almost all other countries there is a written constitution which stipulates the indivisibility of its territory.

7. Are there other precedents beyond the always cited Scotland and Quebec?

The Constitutional Courts of Italy, Germany and the United States have in recent years prohibited referendums on the independence of a part of their territories. In Veneto, having obtained 60% of votes in the elections, the Northern League passed a law in the Regional Parliament in 2014 to organise a referendum on independence.

The Government of Matteo Renzi declared that "the unity of the nation is non- negotiable” and appealed against the law. In 2015, the Italian Constitutional Court prohibited the referendum on the grounds that it was unconstitutional: “The unity of the Republic is such an essential aspect of the constitutional order that even the power of constitutional review should be precluded” (La Vanguardia, 6 January 2017).

Thus, in Italy, a referendum on independence is not possible, not even through constitutional reform.

In 2016, the German Constitutional Court declared the petition for a referendum made by a small separatist political party of Bavaria to be unconstitutional, arguing: “There is no place in the Fundamental Law (the Constitution) for the Länders' aspirations of independence.”

In 2006, a citizen submitted an initiative requiring the State of Alaska to vote on obtaining Alaskan independence. Finally, the Supreme Court of Alaska concluded: “Secession is clearly unconstitutional and therefore an improper subject for the initiative”.

In 2012, 100,000 people signed an on-line petition to President Obama requesting the independence of Texas. On 11 January 2013, the White House stated in its reply: “Our Founding Fathers enshrined in the Constitution the right to change our national government through the power of the ballot – a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it…The founders established a perpetual union.”

75 8. Even if it does so without recognising the right to self- determination, why doesn't the Spanish Government hold a referendum on the independence of Catalonia like the one David Cameron agreed to in Scotland?

For the following five reasons: • The Government considers that the independence of Catalonia would have negative consequences for all of Spain’s citizens, whose interests it works to defend, and that it would severely limit opportunities for them all.

• The Government wants to prevent the economic damage that the inevitable exit of Catalonia from the European Union would entail. The Catalan independentists argue, just as the proponents of Brexit did, that the European Union would be pragmatic due to the size of the Catalan economy, and that, in particular, the economic interests of German business leaders would ensure the maintenance of the status quo. But just as the European Union has demonstrated its determination to maintain the indivisibility of the four freedoms (persons, goods, services and capital) its interest lies in not permitting the secession of affluent regions, whose supporters, like those of Brexit, have stressed the fiscal benefits of secession in their line of reasoning.

• The Government believes that a referendum on independence would leave Catalonia split in two for many years. The independentist parties obtained 47.8% of votes in the Catalan regional parliamentary elections of 2015, and 47.5% in those of 2017. The bid for independence has already caused a major social division as shown by the schisms in CiU and PSC, the two political parties that have been running the Catalan Government since 1980.

• The Government considers that the secession of Catalonia would be a step in the opposite direction to that of the spirit of European integration and the plan for greater integration of the European Union that it advocates.

• And just as in the vast majority of countries in the world, the Government does not have the power to organise a referendum on independence without a constitutional reform.

9. Could the same situation as that of Catalonia arise in other countries?

It would be possible for the same situation as that of Catalonia to arise in other countries. In fact, the Northern League in Italy raised this issue, and even held a non- binding, advisory referendum on the autonomy of the region of Veneto on 22 October 2017, without this having any effect on the region's political status.

A similar situation arose in Germany when a small separatist party from Bavaria requested independence, but this was rejected by the German Constitutional Court.

The initiative requiring the independence of Alaska was also similar, and was rejected by the Supreme Court of that state because it was "clearly unconstitutional.” 76 10. Is it an offence to raise the question of independence of a community or region or stateless nation?

It is not a criminal offence to raise the question of the independence of a community or region without State status in Spain, where independentism, within the democratic legal framework, is a legitimate political option.

But it is an offence to disobey the Constitutional Court, to pass laws to repeal the Constitution and the Statute of Autonomy, to hold an illegal referendum and afterwards to unilaterally proclaim independence.

So aware of this were certain secessionist leaders that they absconded from Spain after the events of 27 October 2017.

11. Isn't it true that acts of police violence were reported on 1 October 2017, when the referendum was held?

The referendum held on 1 October 2017 in Catalonia was illegal and was annulled by the Constitutional Court. The police acted under judges’ orders to close the premises and confiscate the electoral materials. Whilst carrying out said judicial orders, the police found themselves, at certain centres, confronted with groups of individuals seeking to prevent them from performing their duties. Only in these cases did the police have to intervene and, in some instances, there were even assaults on the police. The above notwithstanding, of the three individuals hospitalised, only one was reported as having serious injuries, and there is no record of any hospital admissions for injuries requiring special medical attention. Although police action was proportionate, certain episodes are being investigated by the courts, as precisely due to the safeguards upholding the rule of law in Spain, it is possible to report police, administrative and judicial excesses, as well as any other kinds of excesses, should they occur.

12. Has the independentist movement succeeded in transforming its aspiration into an international cause?

The radical independentist movement has sought to internationalise its aspiration through its representatives. Beyond the lack of truth in its messages and its use of disinformation, this is clear proof of the freedom of expression, of information, of ideology, and of movement enjoyed by all citizens in Spain. In their attempts at internationalising their cause, they have enjoyed full freedom of movement and have spoken of their grievances with all the freedom inherent to a state under the rule of law.

However, they have not obtained any support from other states or from international organisations. On the contrary, the European Union has warned that all their intended objectives must be provided for in the constitutions of the Member States. And other international organisations have spoken along these same lines. 77 13. Is it true, as the independentists say, that Catalonia's segregation would not entail leaving the EU?

The interpretation of the current leaders of the EU is that the Lisbon Treaty is very clear on this point. An independent Catalonia would be a "third country"; it would automatically be outside the European Union; and, if it wished to form part of the EU, it would have to apply for accession to the Union, which would have to be accepted unanimously by all the Member States.

14. Why did the application of Article 155 of the Spanish Constitution to the Catalan Regional Government for several months not resolve the situation?

The PP Government that was in power at that time, with the backing of the absolute majority of the Senate, and with the agreement of the PSOE and Ciudadanos, two of the three most important opposition parties, triggered Article 155 of the Constitution, which is the federal coercion clause that can be applied when the authorities of an autonomous region seriously jeopardise the public interest and do not comply with their legally mandated obligations.

This Article was literally inspired by Article 37 of the German Federal Constitution. The appropriateness of its application, and the scope and nature of the measures that were adopted were, however, reviewed by the Constitutional Court when it ruled on two constitutional challenges against said measure filed by the Catalan Regional Parliament and by the confederal group of Unidos Podemos in Spain’s Congress of Deputes.

Moreover, legal provisions such as those set forth in Article 155 of the Spanish Constitution are echoed not only in the German Constitution, but also appear in those of Austria (Article 100), Italy (Article 126), Portugal (Article 234) and Argentina (Article 75).

The effect of applying Article 155 of the Constitution was to restore the constitutional and statutory legal order that had been disturbed by the actions of the regional authorities which had ignored them and had been acting openly against court decisions and the law.

78 REGARDING THE CRIMINAL PROCESS AT THE SUPREME COURT

15. How is it possible that up to nine of the defendants have now spent more than a year in preventive detention?

The preventive detention of the defendants was first decided by the investigating judge, and later by the Appeals Chamber of the Supreme Court, considering that their release on bail would entail two risks: the risk of absconding and the risk of reoffending.

The judges took into account that certain independentists had absconded to Belgium, Switzerland and Scotland, and that the defendants insisted that they would do what they did in September and October 2017 all over again if they had the chance. In addition, the Constitutional Court confirmed the proportionality of this measure.

Moreover, it should also be emphasised that the Government transferred the prisoners held in preventive detention to prisons near their homes and families. 16% of the prison population in Spain is held under preventive detention. The European average is 25.4%. Indeed, in 2017, the President of the Council of Europe’s Committee for Prevention of Torture (CPT), Mykola Gnatovskyy, described the low percentage of persons held in preventive detention in Spanish prisons as "positive”.

16. Why is there a sector of the Catalan population that considers the preventive detention of the defendants to be abusive?

One of the aspects on which the Catalan people have been misinformed in recent years is that unilateral independence was possible and could be achieved painlessly. This was never true and the Constitutional Court warned about the seriousness of the acts that have been committed by the defendants since 2016.

It should be remembered that, in general, in a state under the rule of law, judges are entrusted with duties in which nobody may interfere. And these duties include that of determining the necessity and scope of any measure safeguarding the judicial process and effective administration of justice for all.

17. How is it possible for the State Legal Service to accuse the defendants of the crime of sedition and for the Public Prosecution Service to accuse them of another, more serious crime, namely rebellion?

It is true that the State Legal Service and the Public Prosecution Service have classified the defendants’ alleged crimes differently. But both of these alleged crimes are very serious.

79 The State Legal Service is a legal body that reports to the Government and defends the interests of the State; and the Public Prosecution Service is an autonomous and impartial constitutional body that pursues criminal action. Such discrepancies in criteria oblige the Court to hold a more in-depth discussion before passing judgment. This is yet another safeguard of independence of criteria and action of each of the prosecuting parties in the case.

18. Why is a party like Vox participant in the case against the defendants?

In Spain, both the institution of the jury and the possibility of individuals and legal entities appearing in court as private prosecutors are ways in which citizens contribute to the administration of justice. Any other political party or group could have been a party to the suit as Vox was. Spain is currently engaged in an important debate about whether or not to limit private prosecution.

19. The difference between sedition and rebellion lies in there being a public and violent uprising. Where did violence occur?

Indeed: the difference between sedition and rebellion lies in there being a public and violent uprising. This is one of the questions that the oral hearing had to clarify. The Public Prosecution Service and the investigating judge believe there was violence because there were acts of intimidation to achieve the independence of Catalonia; the State Legal Service, however, understands that there were mass uprisings and public disorder aimed at preventing the law from being applied. Both Services explained their criteria in a lengthy account of the facts submitted to the Court and it was the responsibility of this Court to assess it and decide accordingly.

20. Is it possible then that the defendants may be convicted for just one of these crimes?

There are various possible scenarios: they could be convicted for one crime or another or they could also be acquitted, as requested by the counsels of the defence, who were freely chosen by the defendants and who put forward all the evidence they considered necessary and that was admissible in Court.

The conclusions of the State Legal Service and of the Public Prosecution Service are provisional. At the end of an oral hearing such conclusions may be maintained or may be changed. Until the end of the hearing, the final sentences requested cannot be known.

It should be remembered that, apart from the alleged crime of rebellion, the defendants were also accused of misappropriation of public funds and of disobedience.

80 21. Can the judgment of the Supreme Court be appealed, given that this Court is the highest level of jurisdiction?

Although the judgment handed down will be final, it may be appealed before the Constitutional Court to verify that the rights and safeguards were respected and, subsequently, before the European Court of Human Rights, which will also examine whether the procedural safeguards and defendants’ rights were respected.

It should be stressed that the Court accepted the petition for representatives of the Catalan nationalist groups of the Congress of Deputies and of the Senate to attend the sessions of the oral hearing, which constituted an additional safeguard and a clear example of the desire for transparency in this regard.

22. Is it true that neither the Belgian justice system nor the German justice system accepted the European Arrest Warrants against those who absconded?

The European Arrest Warrant was accepted in Germany for an alleged offence of misappropriation by Puigdemont, while the Belgium judiciary revoked the warrant issued by the Spanish judge after the judge in Brussels observed procedural defects.

Apart from the 30 criminal offences set forth in the Framework Decision on the European Arrest Warrant in 2002, all other criminal offences are subject to the principle of double criminality, in other words, said offences must also be classed as offences in the place to which the person accused of having committed them has absconded. The German judges, without knowing all the details of the Spanish proceedings, considered that the facts reported in a summarised version could not give rise to a conviction for the crimes of rebellion or sedition under the German criminal code.

Apart from being premature and contrary to the spirit of the European Arrest Warrant, this interpretation does not mean that the alleged criminal acts were not included in the Spanish Criminal Code. Nor is this interpretation binding for the Spanish Courts.

23. Did the independentists perhaps abscond because they thought they were not guaranteed a fair trial in Spain?

Some of the persons involved in the so-called procès absconded and others stayed. But those who absconded did so because they knew they were going to be accused of serious crimes in Spain.

However, Spain’s democratic safeguards are such that it is not possible to try fugitives in absentia, something which is possible in other democracies. The Constitution guarantees the right to defence and provides for an independent judiciary, as well as for a Constitutional Court that acts as the ultimate guarantor of fundamental rights in Spain. 81 Moreover, for decades Spain has been subject to the jurisdiction of the European Court of Human Rights in Strasbourg, to which defendants may appeal if the Supreme Court delivers a guilty verdict.

With regard to this high-level jurisdictional authority, it should be recalled that Spain is one of the countries with the best track records—within the EU and within Europe— in terms of judgments handed down by the European Court of Human Rights. Spain has been convicted by this Court on very few occasions in relation to our total population.

This demonstrates that the Spanish justice system and its system of safeguards are in good working order.

82 APPENDIX

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