Spain's National Audience court has acquitted the chief of Catalonia's Mossos d'Esquadra police force, Josep Lluís Trapero, and three other senior Catalan police and interior ministry figures, in a judicially split decision, by two votes to one. Only the presiding judge, Concepción Espejel, believed the accused were guilty of sedition in the case, which was centred on the role played by the Catalan police in the 2017 independence referendum.
The acquittal is a severe blow to the Spanish public prosecutors and their arguments, which have failed to stand up, not even for the lesser offence of disobedience. The prosecutors will, in all probability, appeal the sentence, which has clearly set the Mossos d'Esquadra force apart from the Catalan government's strategy of moving towards independence. The ruling also leaves a huge question mark over Joaquim Forn, Catalan interior minister in 2017, jailed for sedition based on argument that he, as minister responsible for the Mossos, manipulated the corps against the powers of the Spanish state.
Judges Ramón Saéz and Francisco Vieira consider that it has not been proven that the defendants "tried to prevent or hinder compliance with the rulings of the Constitutional Court, the High Court of Catalonia and the Catalonia public prosecutors" nor that they made accords with those who were leading the independence process, or supported the actions of independence supporters by encouraging the Mossos to be passive.
The ruling explains that there is no incriminating evidence to reveal an accord among the accused to operate as a tool in the independence process and put the police apparatus, dependent on the Catalan government, at its political service. Nor is there evidence of such agreements between the accused and any of those persons convicted in the Supreme Court referendum trial as co-perpetrators of the crime of sedition, or with other organizers of the referendum and its preparations.
The prosecutors had demanded 10 years' imprisonment for Trapero, police director general Pere Soler, and interior ministry secretary general Cèsar Puig and 4 years for police superintendent Teresa Laplana, all for offences of sedition, offering as an alternative offence the crime of disobedience, for which heavy fines and disqualification from public office were requested.
The ruling notes that there are many facts that discredit the hypothesis of the existence of an accord between the defendants and those who convoked, organized and led the citizen mobilization which on September 20th 2017 protested against the judicial searches and then days later on October 1st held the referendum.
In this regard, it explains that the defendants did not communicate with the political and social leaders who called the referendum and the mobilizations during the period of September and October 2017; and the Mossos d'Esquadra prefecture, with chief Trapero at its apex, publicly disapproved on 23th September of statements by the Catalan interior minister, on whom they were hierarchically dependent, affirming the police force's commitment to the law and the decisions made by the judges.
The judges of the National Audience also point out as counter arguments that on two occasions, on 26th and 28th September, Trapero met with the-then president of Catalonia, Carles Puigdemont, to ask him to call off the referendum, while the chief also stated, this time at the government's security committee on September 28th, to the president and the interior minister, that the Mossos intended to comply with the law and judges' rulings.
In the same vein, the court argues that the main defendant, Trapero, continued to state after October 1st, in a meeting with the corps commanders on October 13th, that the police had to act under criteria of political neutrality, impartiality and professionalism, executing the decisions of judges and prosecutors.
The plan to arrest the government, a key element
The ruling highlights that chief Trapero, along with other Mossos commissioners, prepared an operation for the arrest of Catalan government officials and political figures on the day of Catalonia's unilateral declaration of independence, in anticipation of judicial authorities deciding to order such action.
The judges also add that on several occasions, during the period under review, Mossos police officers intervened effectively and forcefully against mobilizations aimed at holding the referendum. They consider it key, for its importance, the support that a Mossos operation gave to enable a judicial search of the headquarters of the Unipost private mail company on September 19th, which prevented polling stations from being formally constituted.
The 20th September protest
For the court, Trapero's performance as police chief on September 20th, 2017 was not one of collaboration with the pro-independence movement, as alleged by the prosecutors, but rather he managed the situation in a way that avoided serious harm. He attempted to comply with the court ruling, as he had done previously with the orders issued by the public prosecutors.
In the case of Laplana, principally accused over her actions on that same day, the court ruling states that she had no command over the units responsible for public order and her function was to serve as a means of communication and liaison between the Mossos d'Esquadra command with the units that were present, and the Catalan vice-presidency, whose headquarters was being searched, and above all, with the judicial commission conducting the search. The court concludes that the accusations (that she repeatedly and intentionally denied providing the judicial search group with the help it required) are not supported by any evidence. In the same way, the ruling considers that the two interior ministry official, Soler and Puig, were not involved in the police operation on those two days.
In that search on September 20th, says the sentence document, the Mossos' actions reflected a police method of using mediation before using the option of physical force. "From the outset", says the document, "violent action against citizens who did not show any special aggression was avoided; when a level of risk emerged due to the possibility of theft of weapons that were in the Civil Guard vehicles, there was an intensification of discreet actions by officers; all the options for mediation with those who appeared as leaders of the protest were explored, who, despite being the leading representatives of independence, were for that reason especially able to persuade the multitude which had assembled there. [The Mossos leaders] did not give way to the demands of the pro-independence leaders. The carrying out of the judicial search was made possible, even though the members of the search commission were unfairly required to remain inside the building, surrounded by the crowd. Finally, when action by violent groups after night fell changed the peaceful scene, the public order forces of the Mossos d'Esquadra intervened effectively".
The referendum and proportionality
With regard to the October 1st referendum and the police operation, the sentence explains that Trapero's actions "appear to be aimed at minimizing damage, even if it were to mean the end of the illegal referendum. This must not be undervalued. Indeed, the accused was obliged to do everything in his power to comply with mandates from judges and prosecutors. However, in weighing up all the interests that were in play (the needs to protect people, avoid disturbance to public order, and fulfill the judicial mandate), the police chief was not required to act with the sole objective of preventing the referendum at all costs. If [the action of preventing the vote] were to cause irreparable damage, not only could the responsibility for that be attributed to his leadership, but, from a professional point of view, his management would have been a failure. In this context, one can understand his repeated mention of the principles of proportionality, congruence and opportunity".
In this situation, the court adds, it was reasonable to emphasize "the need to adhere to [these principles. In fact, they were also observed by the [Spanish security forces] when they had to retire in many of their own interventions in public order on October 1st in the face of the nature and condition of the people who were at the polling stations, as contemplated in the instructions from the Spanish secretary of state for security."
The ruling considers that "prudence in the face of such an extraordinary situation, even if it made possible the holding of the illegal referendum and favoured the pro-independence strategy, cannot be considered as cooperation in sedition or as disobedience of judicial mandates. The use of force against defenceless citizens, against the elderly, against whole families, was not valid, in this situation, as the way to impose obedience to the legal system, even if it were legitimate."
The possibility of "irreparable harm"
"In an advanced democratic system like ours, the legal system has sufficient resources to deal with all legal and judicial violations, even when they come from the highest authorities of an autonomous community. From the ability to declare a state of alarm or exception, provided for in Article 116 of the Constitution, to the adoption of the necessary measures for an autonomous community to comply with the obligations imposed on it by the Constitution and the law, or when it acts in a manner that seriously violates the general interest of Spain, via the mechanism provided for in Article 155 of the Constitution. The fact that this constitutional remedy had not been implemented before, firstly, the calling, and secondly, the holding of an illegal referendum which sought to be the prologue to the declaration of independence of a part of Spanish territory did not, under any circumstances, justify the inflicting of serious harm on people and a general alteration on public order in Catalonia in order to comply with the law and with court decisions", states the court ruling.
For the judges, "the option implemented by the [Mossos] police to restrict the intervention of riot police due to the possibility of causing irreparable and disproportionate harm must be considered, at least, as reasonable, even if it could have opted for another type of police intervention and it could be discussed which one would have been more appropriate."
On October 1st, 2017, the court believes, the police actions which were implemented complied with differing criteria, and this, it says, could be analyzed and questioned, but the preparation, planning and execution of the action of the Mossos d'Esquadra cannot be described as collaboration, not even by omission, with those who disobeyed court rulings and attempted to avoid compliance with them.
Below, the full court ruling in Spanish which acquitted the four Catalan police leadership figures, and below that, the dissenting opinion by judge Espejel.
The dissenting opinion by presiding judge Espejel was justified on what she called the "rules of logic and experience", and presented in a 461-page submission.