The trial has now started and, over the coming weeks, we'll see how the construction of the evidential basis for the narrative shapes up, or doesn't. A narrative of events which, we know, are not criminal. We know that because it was determined, at judge Llarena's request, by a court in Schleswig-Holstein. We're faced with a trial in which the facts are perfectly well-known. They're more in the public domain or public, well-known facts than needing to be proved by the defence or the prosecutions. From the defence's perspective, what has to be questioned and proven is whether they are criminal or not and, moreover, that we've reached this point through the violation of fundamental rights.
It's not necessary or beneficial to enter into discussions as to whether there was a referendum or not, if there were demonstrations or not in which there were isolated acts of violence or not, if there existed a wish to demand the right to self-determination or not; to focus on that is to waste time and take focus away from the subject of the debate which, as I've said, has to be both the defence of the legality of what happened and the defence of the civil, political and fundamental rights violated to reach this trial.
We're all aware of what the more than probable result of this trial is and, to use football similes, what's important is to not let past too many goals and end up unable to overturn the result in the second leg, the one that will be played on a neutral playing field, with neutral referees and in which the only thing relevant is going to be whether the sentence has been reached with or without violations of the rights recognised in the European Convention on Human Rights; the facts nor the evidence for them will matter in Strasbourg, nor the degree of participation or not of those who will by that point be convicts, rather how the result has been reached... the European Court of Human Rights (ECHR) isn't a body that reviews evidence nor the events, instead it monitors rights and that means going there with one's rights asserted, organised and well-proven, tasks which have to be carried out during this trial.
We're all aware of what the more than probable result of this trial is and what's important is to not let past too many goals and end up unable to overturn the result in the second leg
What rights should they appeal on to the ECHR? Initially, we all think of those recognised in article 6 of the Convention, the right to a trial with all the correct guarantees. But in that case, a one-off, there is the risk that the court could consider the actions taken to conform to internal Spanish law. As such, it would be advisable to claim on other rights like the right to freedom of thought (article 9.1), the right to express a thought individually or collectively (article 9.2), the right to freedom of expression (article 10.1), the right to freedom of assembly and association (article 11), the right to not face discrimination (article 14) or the guarantee the state won't abuse the law (article 17).
The problem isn't what can be set out to the ECHR, but in how, on the one hand, to accredit that those rights have been violated and, on the other hand, that the internal legal system was given the opportunity to restore those rights to those affected. Accrediting the violation means proving it and that has to be done during the trial through the questions to witnesses and experts and the exhibition of the corresponding documentary evidence and, in this way, giving the opportunity for it to be the internal legal system that restores those rights.
Basically, it's a job that has to be done in the various hearings of the trial because you can arrive at the court lacking proof of such violations and expect, from nothing, that the court will recognise them. The Supreme Court knows all this perfectly and it will try to prevent them from moving forward on such lines, which will make the later work to be carried out much more difficult.
But all the rights I've mentioned, the violation of which comes before and after the trial, make sense to the extent that, within the whole process, and also during the trial, the rights included in article 6 of the Convention (due process: right to defence, to an impartial judge, presumption of innocence, right to evidence, etc) have been violated and that's where exquisite caution is needed, especially when we're talking about a process which has had and has one constant: ad hoc law is being created for the purpose.
Yes, during the process, not only has the interpretation of procedural norms mutated, in full view, but, in some cases, they've been rewritten. The problem arises, as regards Strasbourg, when such situations are accepted and, to a certain extent, such violations are participated in because in law there exists the so-called principle of "estoppel" which, explained succinctly, establishes that nobody can go against their own actions.
During the different hearings already held, the court has committed serious procedural irregularities which, without doubt, affect the defendants' rights
During the different hearings already held, the court has committed serious procedural irregularities which, without doubt, affect the rights protected by article 6 of the Convention and, given such irregularities, the only acceptable procedural position is to oppose them, even when these irregularities can benefit the defence teams because they are a poisoned chalice.
In law, but especially in matters of procedural law and fundamental rights, coherence is the rule to follow and it will prove very complex to try and accredit procedural irregularities when they've been able to take part in them even when that might causes situations which appear tense or incomprehensible from a non-legal perspective.
When a certain document doesn't appear in court filings they should protest, they should complain, they should refuse to continue until they receive them but what they cannot do is accept procedural fixes which, in short, are nothing other than violations of fundamental rights however much they might be offered, in exchange, "chalices" which, as I say, are poisoned. In Spanish law, the defendant testifies a single time, at the start of the trial, and the failure to include certain relevant documentations cannot start a new round of questioning of the defendants. Taking the bait is to shoot yourself in the foot.
Strasbourg isn't an easy arena even when it comes to those who may be waiting to decorate us
When a general election is called and, based on that, the order of the witnesses' appearances is altered, questioning those proposed by the defence before those requested by the prosecutions, mere protest isn't enough. Instead, they should even go a step further, refusing to accept the change even when that means being left without the testimony in question. Why? Basically because, as I've said, coherence has to be seen through to the end to accredit, credibly and practically, the violation created by a decision which does not enjoy legal backing and which is based on a markedly political decision.
Strasbourg isn't an easy arena even when it comes to those who may be waiting to decorate us; it's a complex court with very clear case law which we have to adapt to if we want to win the second leg. For that, the time to do our homework is now, and the place is the second chamber of the Supreme Court. What isn't done now cannot be asserted later.