Briefing

Which case is being judged?

Extraordinary Case No. 20907/2017, brought before the Spanish Supreme Court, is the criminal proceeding against 12 people charged by the Public Prosecutor’s Office with the crimes of rebellion, disobedience and embezzlement of public funds, for which it has requested 177 years’ imprisonment. The criminal proceeding began with the events related to the Referendum of the 1st of October 2017 and the trial will be held in Madrid at the beginning of 2019. The defendants include civil society leaders, the President and vice president of the Parliament of Catalonia and members of its Bureau. Nine of the defendants have been in pre-trial detention since March 2018, and in some cases since October 2017. The months of pre-trial detention in Madrid have led to long periods of time during which the defendants have been far from their families and defence teams. The rest of the defendants are free on bail.

In addition to the 12 defendants, another seven people who are currently in other European countries are being processed in the same lawsuit. The National Court and the Supreme Court have issued several European Arrest Warrants. These European Arrest Warrants have been issued and withdrawn several times because they had not obtained the desired result or it was foreseen that they would not obtain it. In Germany, the Higher Regional Court of Schleswig-Holstein did not recognise that the requirements of the crime of rebellion in the European Arrest Warrant against Catalan President Carles Puigdemont were met. There is currently no European Arrest Warrant pending resolution, which means that these seven people are not being prosecuted even though they are being prosecuted for the same facts on which the trial is based. Although they are free in different European countries, there is an arrest warrant issued against them in Spain.

The crime of rebellion, with which the Public Prosecutor’s Office is charging some of the defendants, is one of the most serious crimes in the Spanish Criminal Code. It involves a ‘violent and public uprising’ and is punishable by imprisonment for up to 25 years. The only precedent for the crime of rebellion since the approval of the Spanish Constitution of 1978 was Fernando Tejero (Lieutenant-Colonel of the Guardia Civil’s) conviction for his attempted coup d’état on the 23rd of February 1981, which involved the occupation of the House of Commons by armed units and the deployment of tanks in the street.

In addition to the charges filed by the Public Prosecutor’s Office, there are two further allegations. Firstly, the State Attorney is charging them with the crime of sedition, which involves a ‘public and tumultuous uprising’ and carries penalties of up to 15 years in prison. Secondly, the far-right political party VOX demands even higher penalties, adding to the crime of rebellion the crime of criminal organisation.

The defence teams have warned from the start that this is a political trial. They have alleged the nullity of the crimes of which their clients are accused and have repeatedly asked for their release. They have also claimed that the Supreme Court and the National High Court have no competence, because they do not have legal jurisdiction over these cases. They have also alleged violations of fundamental rights before the Constitutional Court repeatedly, which have been admitted but not resolved, blocking access to the European Court of Human Rights. Finally, the defence teams have also taken the case before the UN Human Rights Committee and the Working Group on Arbitrary Detentions.