An unexpected decision by Spain's Supreme Court: the court has decided that it is competent to judge the Catalan referendum case but has divided it in two and sent the part relating to the Catalan Parliament's Board, not including speaker Carme Forcadell, back to Catalonia, where it will be heard by the Catalan High Court (the Tribunal Superior de Justicia de Catalunya).
Thus, those accused of disobedience will be tried in the Catalan High Court. The Supreme Court has unanimously confirmed its competence to judge the alleged offences of rebellion and misuse of public funds in the case, and has sent back to the Catalan High Court the part that affects the six politicians who are accused only of disobedience.
The Supreme Court's criminal law court will try the defendants Oriol Junqueras, Raül Romeva, Jordi Turull, Josep Rull, Joaquim Forn, Jordi Sànchez, Jordi Cuixart, Dolors Bassa, Carme Forcadell, Meritxell Borràs, Carles Mundó and Santi Vila. However, the court has accepted submissions made by the defence lawyers representing Lluís Corominas, Lluís Guinó, Anna Simó, Ramona Barrufet Santacana, Joan Josep Nuet, all members of the Catalan Parliament's presiding Board, as well as former parliamentary deputy Mireia Boya, who is, like the Board members, accused of disobedience.
The legal case against the members of the parliamentary board thus returns to the court where it started, except for the instance of former speaker, Carme Forcadell - even though she is the senior officer of the Board - because she is facing charges of rebellion and misuse of funds. In the case of Forcadell, the investigation began by examining the decisions taken in Parliament to debate and vote on a law of national transition in preparation for Catalonia's independence, as well as steps taken to activate the Catalan Republic after the independence proclamation on 27th October, 2017 - although the Republic's activation never, in the end, took place.
The Supreme Court maintains the charges of misuse of funds, although it has not been able to find evidence of an actual offence, given that the reports it has received from the Spanish treasury on public spending related to the referendum do not endorse the view that such spending took place. With regard to the violence which is by definition required to uphold the charge of rebellion, there is no evidence except for public demonstrations and the announcements made to call them.
The court has made the decision to start "from where" the alleged crimes were committed, without entering into the assessment of whether they were actually committed or not. On the "international dimension of the conflict" and Catalonia's representative offices abroad - which were used by some of the defence lawyers as an argument to remove the case from the Supreme Court - the court says that "the legality of these offices" is not contested, but rather the allegation that they "were made available to serve the pro-independence aims of the accused."
With the trial divided in two, as well as the separate case against Mossos police chief Trapero in the National Audience court, there will now be three trials arising from the Catalan referendum and related events in 2017. Meanwhile, it is yet to be seen how the judicial process investigated by Barcelona Court 13 will evolve. This case is investigating the work to prepare the referendum allegedly carried out by many of the senior civil servants under Catalan vice president and economy minister Oriol Junqueras.
The Board, to the Catalan High Court
Lluís Corominas, Lluís Guinó, Anna Simó, Ramona Barrufet Santacana, and Joan Josep Nuet, all members of the Catalan Parliament's Board, along with Mireia Boya, will sit in the dock at the Catalan High Court, the same court that judged the Catalan politicians on charges arriving from the earlier Catalan consultation on independence in 2014.
Although this split-off group of defendants is accused of disobedience and criminal organization, the Supreme Court has ruled that it is not competent to judge them and has returned the case to the court where it originated. Last year, this case was shifted from Barcelona to Madrid to join the rest of the case against the Catalan government. Now it returns to Barcelona - although only partially, because speaker Carme Forcadell will still be tried in Madrid. Once the case formally arrives in Barcelona, a court will be assigned to investigate it, a procedure that will take a month at least.
The Supreme Court, then, has disconnected the events that are to be tried. And it makes use of a 2015 reform of the law to justify its decision, carefully avoiding any disqualification of the investigation of the case already carried out by judge Pablo Llarena, of the same court.
With regard to this, the court says in its ruling today that "it does not make sense to unnecessarily amplify the subject of the legal process by adding events and processes that can be handled individually. The rigid historic interpretation which led to the connection [of the different parts of the case] has given way, as a result of the 2015 reform, to procedural disengagement which is encouraged by the legislator as long as this contributes to a more agile and speedy trial."
Therefore, the Court divides the process in two, so as not to lengthen or complicate it, now that the processes are clear: "The expected lengthiness of the special case that concerns us, the continued presence of the defendants during the prolonged trial sessions, and in the end, the forced travel of those who only respond to a charge of disobedience, lead the Court to eliminate this situation by holding the [disobedience] trial in Barcelona," it explains.
It also considers the status of some of the defendants who, under the Spanish system, have immunity from being judged in lower courts due to the public office they hold. "The consequences derived from a combined trial of people with and without such immunity provides additional reasons for not expanding, beyond what is strictly necessary, the objective and subjective scope of the process," reads the court ruling.
Corrects judge Llarena without questioning him
Today's ruling also makes it very clear that this decision does not question the investigation of the case carried out by Pablo Llarena: "This decision does not imply, of course, questioning the propriety of unifying the case which has up till now been favoured by the investigating judge, by the appeals court, the public prosecutor and by the rest of the prosecutions. However, the reform of article 17.1 of the Criminal Procedure Act clarifies the criteria for unifying the case, now causing it to be examined in a distinctly functional way that prioritises, above a causal vision of the appreciable link between the events, operational reasons linked to the predictable complexity and duration of the trial. In order to reach this conclusion, the Court takes into consideration elements provided in assessment documents which, before now, could not be evaluated".
The trial dates
Judge Manuel Marchena will preside over the court that will judge the 12 defendants in Madrid in the main part of trial. All the required prior steps for this trial have already been initiated.
Before setting the date, statements must be received from the defence teams, which have ten days to present them, although the lawyers have asked for additional time. The exact time permitted has yet to be decided.
Also pending is the creation of the list of witnesses to be called to appear in the case.
Finally, it will be necessary to timetable the days over which the trial will be held. It could go on for three months from February to April. If the predictions are correct, judge Marchena could begin the trial in the last week of January.