Catalonia’s Supreme Court (TSJC) accepted on Monday all the criminal complaints filed against the President of the Catalan Government, Artur Mas, Vice President, Joana Ortega, and Catalan Minister for Education, Irene Rigau for having authorised and co-organised the non-binding and symbolic vote on independence that took place on 9 November in public venues throughout Catalonia. The TSJC is finally launching a judicial investigation for “alleged disobedience” after charges were pressed by several individuals and organisations, including extreme-right associations and the Spanish Public Prosecution Office, whose Director is appointed by the Spanish Government. Such a prosecution by the Spanish authorities has been extremely controversial, from both the legal and the political points of view. However, on the same day, the TSJC rejected all the complaints filed against other politicians and also against civil servants, such as mayors and school directors, since the vote took place in municipal venues and public education centres.
On Monday, on hearing that the TSJC is accepting the prosecution of members of the Catalan Government, pro-independence civil society organisations launched a solidarity campaign, through which individual citizens will be able to plead guilty for participating in November’s vote. Meanwhile, the Catalan Government stated that it is convinced they acted in the correct manner in relation to November’s symbolic vote. Joana Ortega said she is hoping that “common sense will prevail” in the end since she has “an absolute trust” in the judicial system. “A peaceful and democratic action can never be a felony”, she emphasised. In the morning, before hearing of the TSJC’s decision, Artur Mas stated that such a prosecution “cannot be understood”, but he added he would respect any decision taken by the courts.
The official prosecution of the Catalan President, Artur Mas, and 2 other members of the Executive by the Spanish authorities for November’s symbolic vote on independence takes the current political conflict a level higher. Such a prosecution has been extremely controversial and has caused general outrage in Catalonia since it is perceived as a politicised use of the judicial mechanisms and an abuse of power by the Spanish Government, which has been unilaterally refusing to enter into any political negotiation on self-determination with Catalan representatives during the last two years. Instead of sitting around a table and talking about a claim shared by millions of Catalans and repeatedly expressed in manifold and peaceful ways during the last 2 plus years, the Spanish Government has only offered a no-to-everything attitude and has blocked any possible negotiation, imposed a recentralisation of powers, and attacked both the Catalan culture and language.
An extremely controversial prosecution
In November, after being incapable of stopping Catalans from expressing their opinion on independence from Spain through a symbolic vote without any legal ramifications, the Spanish Government was particularly vocal after it took place and asked the Director of the Public Prosecution Office “to act” and press charges against the Catalan Government for having authorised and co-organised it. In the two weeks after November’s vote, separation of powers was seriously damaged in Spain, after a charade between the governing People’s Party and Spain’s Public Prosecution Office. Furthermore, Catalan prosecutors initially refused to press charges against the Catalan President as they thought there was no legal ground for such an action. However, they were later obliged to do so, following the hierarchy’s orders. In the end, the Director of Spain’s Public Prosecution Office, Eduardo Torres Dulce, resigned a few weeks later, tired of arguing with the Spanish Government.
In addition, many legal experts have emphasised that authorising or co-organising such a vote is not illegal, since the Constitutional Court had not officially declared it “illegal” (as it only issued a temporary suspension 5 days before it was to take place). On top of this, despite it putting a temporary ban on the vote’s organisation, the Court did not issue the prescriptive reminder or clarification of its decision, which is a necessary step any judicial body has to make before someone can be accused of disobeying judicial decisions, particularly taking into account that the Catalan Government asked for such clarification and the Court rejected to issue them before 9 November.
The Court rejects complaints filed against school directors and mayors
A few weeks ago, the Catalan Supreme Court decided to group all the criminal complaints filed regarding November’s vote in order to analyse them altogether, since they all refer to the same series of actions. On the 9 November, tens of complaints were filed by citizens and organisations in many courts throughout Catalonia. Furthermore, Spanish nationalist parties and organisations also filed complaints on 8 November, the day before the symbolic vote, and also on the days after it took place.
On Monday, the 6 judges of the TSJC’s penal section accepted all the criminal complaints that have been filed over the last few weeks against Artur Mas, Joana Ortega and Irene Rigau for authorising and co-organising November’s vote on independence, in which 2.35 million Catalans participated despite the obstacles and veiled threats from Spanish authorities. After a four-hour meeting, they accepted the calls to investigate “the facts relating to the “alleged disobedience” to a Constitutional Court’s decision “as well as any other facts that, in a direct or indirect way, may be related to it”.
At the same time, the TSJC also rejected those charges pressed against mayors who authorised the use of municipal venues to set up polling stations and school directors who facilitated the use of education centres for the same purpose, following instructions from the Catalan Government. Furthermore, the complaints against leading members of the Catalan Parliament, such as the Chamber’s President, Núria de Gispert, and other members of the Catalan Government, such as the Minister for Home Affairs, Ramon Espadaler, have also been rejected. A few weeks ago, after knowing about the charges pressed by the Public Prosecution Office, the Catalan Parliament’s plenary session pled guilty for having authorised and co-organised the non-binding vote, emphasising that they were also responsible for allowing Catalans to cast their vote on independence.
The acceptance of the complaints by the Court does not mean that Mas, Ortega and Rigau are already formally accused and that a trial will be organised against them. It only means that the TSJC considers there are enough legal grounds to launch a judicial investigation about the facts reported in the complaints. The Court has grouped all the complaints into a single one, which will be the oldest one, filed by the extreme-right trade union Manos Limpias (Clean Hands, which has nothing to do with its Italian homonym). A judge will now start a judicial investigation, which could conclude that there is not enough legal ground for carrying on or which could indict Mas, Ortega and Rigau. If they were indicted, depending on their judicial statement and further investigations, they could be either formally sent to trial or released without charge.
The charges against Mas, Ortega and Rigau
The complaint filed by the Public Prosecution Office firstly targets the President of the Catalan Government, Artur Mas, as the main person responsible for the vote. However, it is also against the Vice President, Joana Ortega, who coordinated the vote’s logistics and announced turnout figures and early results, and the Education Minister, Irene Rigau, who authorised using public high-schools to host polling stations. They are accused of “usurpation” for having authorised a “hidden referendum” despite not having the powers to do so; “disobedience” for not having respected the temporary suspension of the Constitutional Court; “embezzlement” for using public money and resources for the vote; and “perversion of a legal process” for carrying out a public administration process in the knowledge it had been temporarily suspended by the Constitutional Court.
However, many legal experts consider that there is not enough of a legal basis for such accusations. Firstly, the vote was not “a hidden referendum” but “a citizen participation process”, which the Catalan Government has the powers to organise. In fact, the Spanish Prime Minister, Mariano Rajoy, acknowledged the day before the vote that it was not “a referendum nor anything similar to one”. Secondly, it is hard to argue that Mas, Ortega and Rigau committed “embezzlement” by using public resources in a process in which 2.35 million citizens participated, clearly showing the public interest of such a vote. Thirdly, according to Spanish legislation, in order to disobey a court, the court has to have sent a reminder or a warning, in addition to the original verdict, which was not the case. Finally, “perversion of a legal process” requires public officers to have consciously made an unfair decision, which does not really fit a citizen participation process run by volunteers.