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Unity between those under investigation from ERC and Junts. Seven of the twelve people investigated for terrorism in relation to the pro-independence Democratic Tsunami protest platform have submitted a joint brief to the Spanish Supreme Court in which they ask for the closure of the investigation, due to two irregularities committed by judge Manuel García-Castellón, as set out in a brief presented this Wednesday to which has had access. The first is that the period of investigation ended on July 29th, 2021 because the judge only agreed to extend it the next day and without justifying this exceptionality, which is required by law reform 2/2020. And the second is that the National Audience judge, before the end of the investigation, had not taken statements from any of those investigated, which is also an essential requirement for the investigation to be extended. For this reason, they ask the Spanish high court to confirm that the investigation did indeed end in 2021, to decree the closing of the case and then return it to the National Audience judge so that he can definitively close the investigation.

Last November 6th, judge García-Castellón stated the twelve names of those investigated for terrorism in the Tsunami case, and for the first time, included the Catalan president in exile and Together for Catalonia (Junts) founder, Carles Puigdemont in the list, in addition to the general secretary of Catalan Republican Left (ERC), Marta Rovira, and the Catalan parliamentary deputy Ruben Wagensberg (also ERC), and nine others. Puigdemont, being a member of the European Parliament, and Wagensberg, the Catalan one, have partial immunity from prosecution due to their office, and that is why the judge referred their case to the Supreme Court, sending them an exposition of the evidence on November 21st last year.

The Spanish prosecution service, after a serious internal division among its members serving the Supreme Court, has presented a report in which it asks the high court to declare itself competent to judge the two parliamentarians, but also maintains that there is not enough criminal evidence against them, and that the court should thus return the case to the National Audience in order for the investigation to continue there. The prosecutor at this latter court, Miguel Ángel Carballó, left it very clear that he did not see any evidence for a crime of terrorism and, at the most, there would be a crime of public disorder for a  few of those investigated, and he ruled out the two MPs.

Fundamental rights

The persons investigated who have signed the petition to the Supreme Court are ERC's Marta Rovira, defended by Iñigo Iruín; the office director for president Puigdemont, Josep Lluís Alay, defended by Gonzalo Boye, who also defends Puigdemont and who had already in January alerted the judge that the investigation had expired; the businessman Oriol Soler; a director of Òmnium Cultural, Oleguer Serra; businessman Josep Cammajó, defended by Benet Salellas and Mònica Tarradellas; Girona resident Marta Molina, defended by Marina Roig, and former Catalan government minister Xavier Vendrell, defended by Jos Prado.

The criminal division of the Supreme Court determined that the judge José Ramon Bergudo is responsible for analyzing the exposition of the case presented by the National Audience judge and the parties. Now, those under investigation are telling the court that, before assessing whether it is competent to investigate the pro-independence figures or not, it should analyze the serious errors in the investigation. In the brief, they claim that the exposition of judge García-Castellón "directly affects their fundamental rights" regarding the judge predetermined by law and the guarantees of a defence, and that these issues are also "absent" in the prosecutor's report to the Supreme Court regarding the expiry of the investigation.

No statements taken

The defence lawyers remind the Spanish high court of its own jurisprudence, which establishes that an investigation cannot continue without the statement of the person being investigated: this is a breach that applies to the Democratic Tsunami case. They tell the Supreme Court that judge García-Castellón opened the Tsunami investigation in October 2019 and that the proceedings were secret from October 17th, 2019 until the resolution of May 8th, 2023. They add that "at the time that the legal period for the investigation expired, the procedure was under secrecy, and - they specify - that no defence lawyer of those under investigation was even able to access the proceedings or exercise their rights of defence" .

Out of time

Regarding the investigation, the defence lawyers claim that the Tsunami investigation is affected by legislative reform 2/2020 on investigation deadlines, which entered into force on July 29th, 2020, establishing that investigations can last twelve months, after which justified extensions of six months must be made. This point was not complied with by the judge, according to the pro-independence defence teams, and they maintain that the extension issued by judge García-Castellón is "out of time".

In particular, they state that the deadline for the investigation ended on July 29th, 2021, but that the judge ordered the extension on July 30th, 2021. And thus, all subsequent actions are "out of time". In addition to the date, they insist that, for the extension to be valid, "the court had to hear all the parties before reaching that date, and it only heard the prosecution itself on July 30th".

The lawyers for those investigated thus conclude that, according to the law (Article 324 of the criminal justice law) "investigations agreed upon after the expiry of the investigation period are not valid", and in the case of Tsunami this date was July 29th, 2021. And they remind the Supreme Court that it has established jurisprudence in this regard, including resolutions. At the same time, they insist that on that date, the judge had not agreed on the summonsing as people investigated, either of the two partially immune or of the other 10 that he has named.

For all these reasons, they ask the Supreme Court to determine that the Tsunami case investigation ended on July 29th, 2021. And to return the case to the National Audience to agree on its definitive closure.