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It was clearly going to happen, it only needed this last step: judge Pablo Llarena of Spain's Supreme Court has requested he be formally transferred the case of the 'Jordis' and the Catalan ministers from the National Audience court.

Llarena has been planning this for days. Indeed, last week he asked for documentation relating to all the cases, opening the door to his court instructing in all the cases related to the Catalan independence referendum.

The cases open against the head of the Mossos d'Esquadra (Catalan police), Josep Lluís Trapero, and superintendent Teresa Laplana are remaining at the National Audience. Llarena agrees that judge Carmen Lamela has to continue investigating the two police officers from the National Audience, as well as "anyone else about whom the investigation might potentially reveal evidence of the existence of liability".

The other cases, however, against the members of the Catalan government and the presidents of pro-independence organisations ANC (Catalan National Assembly) and Òmnium Cultural, will be moved from central court number 3 at the National Audience to the Supreme Court to join those already open there against the speaker of the Catalan Parliament, Carme Forcadell and 5 other members of the Parliament's Board.

Llarena explains that the Supreme Court's doctrine over extending competence to cover facts related to people not covered by parliamentary privilege is only "pertinent when there is an inseparable material connection to the facts under investigation relating to those with privilege". He notes that unifying the procedures has a "functional aim", specifically in easing the procedure and resolving problems derived from the inseparability of the case.

Disagreement with Lamela

In the current case, Llarena points out that one of the crimes under investigation is rebellion, which has multiple participants, hence the need for a joint trial.

However, Llarena doesn't believe that this case shows evidence of such inseparable material connection in the actions of those investigated in relation to the independence process in Catalonia. The judge draws a distinction between the actions of the Mossos that Lamela details in her report and those of the members of the government and the presidents of ANC and Òmnium. These last two are linked "to the extent that only coordinated investigation of all of them can meet the criteria defined in the crime of rebellion".

For the judge, the participation of individuals like Trapero, Laplana, and any similar cases that might emerge during the investigation can be investigated separately. "They are additional participants, who, independently of whatever their importance in the natural development of events might have been, don't justify altering the norms of legal competence for those who end up affected".

Llarena is more specific when it comes to the police officers: "those subordinate (...) to the Interior minister: Josep Lluís Trapero and Teresa Laplana Cocera. Without prejudice that it might prove necessary to revise this decision in the future, their participation, however relevant it may be, doesn't compromise the evaluation and judgement which could emerge from this special case, not being able to alter the ordinary jurisdiction in the absence of the element of inseparability with respect to them."

What next?

Based on Llarena's order, 22 people are under investigation by the Supreme Court: president Carles Puigdemont and the four ministers Spain has issued European Arrest Warrants for (Toni Comín, Clara Ponsatí, Lluís Puig and Meritxell Serret), the eight ministers in preventive detention in Spain (Oriol Junqueras, Jordi Turull, Josep Rull, Raül Romeva, Meritxell Borràs, Joaquim Forn, Dolors Bassa and Carles Mundó), former minister Santi Vila who is free on bail, the presidents of ANC and Òmnium Cultural, Jordi Sánchez and Jordi Cuixart, also in preventive custody, and the speaker of the Catalan Parliament, Carme Forcadell, and five members of the Parliament's Board.

Of all the reports sent to the Supreme Court, only the one from the public prosecutor was against unifying the cases in one court. If a higher court so requires, however, a judge has to hand over any case. In this instance, the judge in the lower court made it clear they should be investigated together as part of the same "criminal organisation" with a common objective.

Only the case against Forcadell and the Board had previously been held by the Supreme Court, but from today, once the formal transfer is complete, they will all be brought together, and parliamentary privilege will start to mark the process.

The first decision for Llarena is whether or not to leave those in preventive detention in prison. The ministers have been in prison since 2nd November, the 'Jordis' for over a month. Lamela ordered preventive detention without bail having summonsed them to testify with just days to prepare. The public prosecutor was implacable, demanding remand without conditions and the judge agreed.

The Supreme Court, meanwhile, offered under its remit another week to prepare their defence, and then offered them all bail. They even offered all the deputies except Forcadell a week to post it.

The differences in the initial decisions by the Supreme Court and the National Audience are also the keys to see that, once the cases are transferred, Llarena might revise the cautionary measures and offer bail, following the same criteria as on the previous occasion, to have all those suspects under his charge in the same condition.

First, however, the cases need to be moved between the courts, a formality which should take less than a week.

 

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