Pablo Llarena stands by the charge of misuse of public funds. In a ruling rejecting all the appeals from the accused against their indictments, he says that the information from the Spanish Treasury agrees with the suggestions of misuse of public funds found during his investigation.
For the first time, however, the judge has raised the possibility of reducing the charge of rebellion. In the ruling, he says that if violence can't be proven (necessary for rebellion), the case wouldn't be closed, instead the suspects could be tried for sedition or conspiracy for rebellion. He notes the prosecution is still provisional.
With the ruling, the judge rejects the appeals from Carles Puigdemont and 22 of the others under investigation. The only two to not have appealed their prosecution are ministers Toni Comín and Meritxell Serret, in exile in Belgium, who have no legal representation in the case in Spain.
He rejects the claim that the members of the Catalan Parliament's governing Bureau charged with disobedience enjoyed parliamentary privilege, since they turned the institution into a "mere instrument of a criminal act".
Llarena today has only responded to the appeals, rejecting them. He still has to issue the definitive prosecution order in which he will finally define the charges they will be tried for. Defence attorneys still have one option though: appealing to the chamber of appeals. Until that happens, none of the political prisoners can be suspended from their offices, nor can the definitive charges and possible sentences by discussed. All options are still open.
On misuse of public funds
Llarena is sticking by the charge.
Besides stating again that the facts support the requirement of violence for the charge of rebellion, the investigating judge says that the information he has been sent by the Treasury doesn't only not contradict, but supports his investigation, including certain signs of fraud.
Defence counsel had argued that the public statements by Cristóbal Montoro, the Spanish finance minister, apparently denying the use of public money for the referendum make the charge untenable. Llarena concludes that, after examining the minister's statements, they were more nuanced than that and suggested at "the real possibility that there could exist a hidden, non-confirmed fraud mechanism", despite proclaiming the principle that officials should be trusted unless there is evidence to the contrary.
The judge says that the information provided by Montoro's ministry shows the error of the suspects' claim, that it "not only doesn't prove that the investigation... [is] erroneous, but that the audit of the government's accounts itself carried out by the Treasury detected (and long before the unleashing of the controversy the defence is wielding) certain indicators which suggest what the indictment maintains".
He also notes that the Government's Delegated Commission for Economic Matters (CDGAE) has issued four agreements over monitoring the Catalan budget, based on the provision of strictly budgetary and accounting information, though a system of certificates and declarations. As such, the judge says the documentation might not necessarily coincide with reality.
Llarena writes that "the defences' allegation that prosecution for this crime [misuse of public funds] is unjustified, using for which an incomplete reference to the statements made by the treasury minister in an interview, doesn't ruin the evidence which the investigation has brought together. On the contrary, it can be seen that some of the evidence of fraud that arose on the occasion of the budgetary monitoring and denounced at the time to the attorney general, coincide with the investigation of the factual reality upheld by this investigation".
The ruling details all the evidence the judge has collected so far to support the charge of misuse of public funds. This includes details relating to the costs of advertising in the media (one campaign in April 2017 with the slogan sí o no, "yes or no" over a map of Catalonia and a second from 4th September of that year to promote turnout for the vote), the distribution of election documentation, envelopes for mailing certified letters, advertising leaflets and posters as well as the expenses deriving from the participation of various international observers (payments to the Hague Centre for Strategic Studies and expenses of the Catalan Public Diplomacy Council).
The judge is also careful to state that whilst the indictment defines the actions and people being charged, the exact crimes they are charged with can change as long they are based on the facts in the ruling and the suspect is aware of the change when testifying. Llarena is playing it safe for a possible swap of the charges for less serious crimes.
As such, he says that if violence isn't proven to have been used to try and achieve independence, the case won't be dropped, but the charges could be changed to sedition. Similarly, even if the process hadn't been aimed at a unilateral declaration of independence, rather at forcing the state to modify the constitutional reality, that wouldn't exclude a charge of conspiracy for rebellion.
Llarena rejects suggestions there was no violence in Catalonia. He says that the events of 20th September "initially satisfy the consideration of violent force". On that day, protesters gathered in front of the Catalan economy ministry whilst Civil Guard gendarmes inside carried out a search relating to the referendum.
He also sees violence on the day of the referendum, 1st October, itself: "this was expressed through the resulting injuries to numerous agents, which demonstrates the occurrence [of violence] in the events being examined in behaviour which goes beyond the legitimate defence of a political-ideological position".
Similarly, he believes that the violent acts weren't the unexpected result of demonstrations promoted by those under investigation, but were "consciously accepted and sought out the execution of these events".
Llarena denies that "the violence carried out lacked suitability, relevance and sufficiency to achieve the attainment of the secessionist aim which makes up the crimes of rebellion. It's certain that the usefulness of violence, even though it doesn't have to be irresistible or unbeatable for whoever supports it, does have to present a sufficiency and effectiveness which objectively prepares it to achieve its result".
The judge highlights that the insurrection was of such scale that, two days after the vote, and after new demonstrations including blocking roads, the king, as the head of state, addressed a message to the nation, calling for the government of Catalonia to respect the Constitution and for all public officials to fulfil their constitutional obligations.
On parliamentary privilege
Llarena doesn't go easy on anyone. The Parliament's Bureau included.
With respect to the "parliamentary privilege" claimed by the members of the Bueau against the charges of disobedience they face, the judge replies that doesn't protect those who turn the Parliament into a "mere instrument to enable to commission of a criminal act".
On the exiles
Carles Puigdemont, Clara Ponsatí and Lluís Puig said the process against them should be nullified, arguing that not having been allowed to take part in proceedings until the issuing of the European arrest warrants in March had left them defenceless. The judge responds that the measure was proportionate when it was adopted, arguing that it was clear that with their flight abroad and the withdrawal of the initial arrest and extradition warrants against them, "the only factor available to incentivise the appearance of those under investigation in proceedings was the restriction of their defence".