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"Much better". Two short words that could be a bombshell. They were spoken by presiding judge Manuel Marchena in the Supreme Court during Tuesday’s session of the Catalan independence trial. Marchena made the comment in response to Benet Salellas, the defence lawyer for Jordi Cuixart, after a tense exchange between judge and lawyer which Salellas ended by saying "I won’t ask any further questions." Marchena then dropped in his two word epithet: "Much better".

The defence team coordinator for the ERC party, Joan Ignasi Elena, told Barcelona radio station RAC1 that this response is "a very serious procedural error in the trial" and recalled that "for a similar phrase, the case against [Basque pro-independence leader] Arnaldo Otegi was annulled, because it showed that the judge lacked impartiality." In November 2018, the European Court of Human Rights ruled that Spanish justice hadn’t given Otegi a fair trial, after he had already served more than six years in prison, because the trial judge had once responded to a comment from the defendant with the phrase "I knew you were going to say that." 

Lawyer Elena says the way is now open for the Strasbourg court to annul the verdict in the trial of the 12 Catalan independence leaders as a result of the reaction of the presiding judge.

University of Barcelona law professor Joan Queralt also pointed out this same procedural error. In a tweet sent on Tuesday, he said that "for something similar, the European Court of Human Rights rendered void the sentence against Otegi".

Different treatment

In Tuesday's session of the trial, in which interruptions of witness declarations by the judge were frequent, the disagreement between Salellas and Marchena began because of the perception by Cuixart’s legal team of a difference in the court’s treatment of prosecution witnesses, such as police officers and the judicial secretary involved in the 20th September 2017 search, who were allowed to explain at great length how they felt.

By contrast, when the defence asked philosophy professor Marina Garcés about the fear she had felt at the time of the referendum (at 7m30 on the video clip above), judge Marchena prevented the witness from answering, ruling “the perceptions that the witness had about what she felt do not have judicial importance." He told Salelles: "If you have another question, put it. If it continues in the line of asking about whether or not the witness had feelings of fear, etcetera, then it will not be considered pertinent by the court.”

In the radio interview, Elena said he has noted "a change of attitude, not surprising, but very marked, in comparison with the prosecution witnesses." According to the defence team coordinator, "the security forces have been allowed to say things which the defence witnesses have not."

 

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