The Spanish Supreme Court’s decision on the self-determination referendum in Catalonia held on 1 October 2017 Report by: Ferran Requejo (dir.) Gerard Martín Helena Mora Albert Morales Linguistic adaptation from Catalan to English: Ander Errasti and Mireia Grau. Barcelona, December 2020 © Generalitat de Catalunya. Government of Catalonia Institut d’Estudis de l’Autogovern. Institute of Self-Government Studies (http://presidencia.gencat.cat/iea) Design: Autonomous Entity of the Official Gazette and the Publications Dept. Contents 1. Introduction. Purpose of this briefing ............................................................................ 07 2. Summary of the report .................................................................................................. 10 2.1 The use of language in the Supreme Court’s decision ............................................. 10 2.2 Pleas of facts ............................................................................................................ 12 2.3 Individual and collective rights at stake ................................................................... 13 2.4 The typology of the crimes ...................................................................................... 16 2.5 The allocation of responsibilities and the prison sentences for the prosecuted individuals ................................................................................................................ 18 3. Four final remarks looking at the future ......................................................................... 19 3.1 Violation of rights and freedoms ............................................................................. 19 3.2 Criminal proceedings and political representation rights ....................................... 19 3.3 Infringement of the parliamentary inviolability and the undermining of the separation of powers ............................................................................................... 20 3.4 Political conflicts require political solutions ............................................................ 20 Annex I ................................................................................................................................ 21 Annex II ............................................................................................................................... 23 5 6 The Spanish Supreme Court’s decision on the self-determination referendum in Catalonia held on 1 October 2017 1. Introduction. Purpose of this briefing This document summarises the report produced by the Institute of Self- Government Studies (Institut d’Estudis de l’Autogovern, IEA, Barcelona), about the Spanish Supreme Court’s decision on the Catalan self- determination referendum held on 1 October 2017 (special case 20907/2017; Sentence, 14 October 2019).1 Over the last two decades, the political recognition and accommodation of Catalonia within Spain have been increasingly controversial issues. The calls for Catalonia’s recognition as a distinct nation, and the achievement of genuine self-government are part of a historical struggle that has persisted over the establishment of the Spanish democracy with the 1978 Constitution. Still, it was with the reform of the Catalan “Statute of Autonomy” (2006), the subsequent appeal of unconstitutionality against the later promoted by the Spanish conservative party, Partido Popular, and its undermining outcome in 2010 (i.e. the ruling of the Spanish Constitutional Court), that the conflict became more explicit and the political tensions began to scale. In spite the several attempts to reach a political agreement on the celebration of an agreed referendum, the lack of proposals expressed by Spanish institutions and political parties led to a dramatic increase in the Catalan citizens’ supports for secession. In June 2017, the Catalan Government called on the Catalan citizens to participate in an independence referendum to be held on 1 October 2017. The Spanish Government tried to avoid the organisation of the referendum resorting to police action both before and during the day of the referendum. This option led to several cases of police use of force against non-violent citizens that were willing to vote on the referendum. Nevertheless, over two million citizens rallied together to participate in the voting. After the referendum, the Spanish Government maintained a restrictive approach to 1 La Sentència del Tribunal Suprem sobre el referèndum d’autodeterminació de Catalunya de l’1 d’octubre de 2017, Informe 1/2020. It is available at https://presidencia.gencat.cat/web/.content/ambits_actuacio/desenvolupament_autogovern/iea/publicac ions/14_IEA-Informes/informes_arxius-i-vincles/2020-informe-1.pdf. 7 International BRIEFING the case. This involved, at least, two actions: firstly, taking the matter further on the courts (resulting in the first preventive imprisonments of Catalan social leaders on 16th of October 2017). Secondly, right after the Catalan Parliament made a non-binding declaration of independence on 27 October, the Spanish government triggered article 155 of the Constitution and, as a consequence, it removed the Catalan government, dissolved the Catalan Parliament and called for elections. In practical terms, it meant suspending the Catalan self-government for more than six months. Following these events, one of the most significant expressions of the conflict has been the prosecution of members of the Catalan government and parliament, civil servants, individuals from civil society organizations and individual citizens who had participated in the October 2017 events. In addition, apart from the trial at the Supreme Court, some other judicial cases on events surrounding the organisation and holding of the 1 October referendum, led to trials that were assumed by other courts. The High Court of Justice of Catalonia assumed the jurisdiction of the trial for disobedience of some members of the board of the Catalan Parliament (the Speaker, also prosecuted, was judged by the Supreme Court). The Audiencia Nacional (a special court for specific crimes, such as terrorism, drug trafficking, etc.) assumed the trial for rebellion, sedition and disobedience of the chief officer of the Catalan police force, and other political and police officers. Ordinary courts assumed the trials of politicians, high-ranking civil servants and individual citizens (see Annex I). As we will note further on, the dispersion of trials and jurisdictions had consequences on the right to due process. At any rate, the most relevant case was the lawsuit at the Supreme Court against the former members of the Catalan Government, the former Speaker of the Catalan Parliament, the President of the cultural association Òmnium Cultural and the former President of the civic association Catalan National Assembly (Assemblea Nacional Catalana, ANC) for their acts allegedly linked to Catalonia’s self-determination referendum. The relevance of the Supreme Court’s decision is not only restricted to criminal law and the impact on the rights of the defendants; it also has a bearing on the development of Catalan self-government. Additionally, the 8 The Spanish Supreme Court’s decision on the self-determination referendum in Catalonia held on 1 October 2017 decision will most probably have an impact on legal interpretations and practical developments of Spanish democracy in the near future. The decision of Supreme Court is the last internal judicial pronouncement on the case, as the Supreme Court is the court of last instance within the Spanish judiciary. However, it might not be the last ruling, as there is a margin for potential appeals before the Spanish Constitutional Court and the European and international courts for the protection of human rights. In addition, as mentioned above, other trials related to the 1 October events are pending. These circumstances made even more necessary to elaborate the report on which we base this briefing, as it refers to an open process that is still unresolved and that presumably will have a long judicial itinerary, a case that is fundamentally linked to Catalonia’s self-government, concerning both its present status and its future. Briefing outline The aim of this briefing is to sharing the main elements of the report made by the IEA to an international audience.2 It provides three elements of key importance for understanding the case: 1) several basic features that help to contextualise the case; 2) a summary of the critical components of a very long sentence; and 3) a comprehensive synthesis of the main conclusions of the full report. Underlying the Supreme Court’s ruling there is the mentioned call for the recognition of Catalonia and its determination to freely decide its own future. This demand is quite common to territories in other multinational democracies (Belgium, Canada, the United Kingdom). In the case at hand, 2 The full report includes one chapter analysing the decision from a linguistic perspective, five chapters on legal analysis, and a brief final comment. The linguistic chapter focuses on the main concepts and argumentative strategies used by the Court to try to legitimise its decision. The five legal chapters address two main thematic blocks: 1) they analyse the extent to which the individual and collective rights were violated during the judicial proceedings, and 2) they focus on the types of crime, the allocation of responsibilities and the subsequent sentences. Finally, the report introduces a comment