In a 48-page long damning report, International Trial Watch (ITW) —an independent ad hoc group set up to monitor the trial of Catalonia’s referendum leaders— concludes that the court case is “a political trial” that “criminalises” the right to peaceful assembly, political participation and freedom of expression.
Out of the report’s twenty-odd conclusions, the seven authors highlight the fact that Spain’s Supreme Court “violated” the defence’s right to submit evidence, when Justice Marchena denied the defendants’ counsel the chance to show video footage during the oral proceedings. According to the report, this “was a hindrance” to understanding the “dubious” testimonies of Spanish police officers. The ITW experts claim they have “spotted over 400 occurrences of key words such as ‘violence’ and ‘human wall’ [in statements provided by police officers while on the witness stand], which indicates that their testimonies had been coordinated beforehand.
Besides dealing with the events that concern the Supreme Court trial, the ITW report refers back to earlier episodes, such as the instructions issued on 5 November 2015 by Public Prosecutor Javier Zaragoza to probe the Catalan independence movement at large. ITW states that “this effectively launched an all-out fishing investigation, which is illegal under Spanish law”.
Freedom of speech protected Forcadell, Jordi Cuixart and Jordi Sànchez
The prosecutor’s bill of indictment claims that former ANC president Jordi Sànchez and Jordi Cuixart, the president of Òmnium Cultural, were instrumental to the “breach of Spain’s constitutional order” with a view to achieving Catalan independence “thanks to the key role they played in rallying the people”. In contrast, the ITW report argues that both grassroots leaders were protected by the exercise of basic rights when “they made a responsible call to free assembly”. According to ITW’s legal experts, the protests on September 20 2017 following the arrest of several Catalan government officials and the calls to vote in the referendum held on October 1st “are unrelated to a hypothetical uprising”.
Unlike the prosecution, ITW denies that there was a violent uprising [in Catalonia] as the “only incidents recorded” during the protests outside the Finance Ministry and during the referendum “were isolated and minor”. Given that they believe “there is no evidence” to support the charges of rebellion and sedition, ITW insists that this is a case of persecution based on political opinion.
The case of Carme Forcadell, the Parliament’s former Speaker, is given special attention in the ITW report. In Forcadell’s case, there were doubts as to whether the Speaker was expected to reject any proposals that contravened the mandate of Spain’s Constitutional Court. That is precisely what the prosecutors argued in court. However, ITW claims that Forcadell “carried out her duties” as Speaker of the house “faultlessly”. On the subject of the legislation passed on September 6 and 7, the report notes that “lawmakers approved the bill under the protection afforded to elected officials by their fundamental rights”.
Furthermore, ITW warns that the Constitutional Court’s own jurisprudence “endorses the notion that the Court cannot determine what proposals a parliamentary bureau may or may not select. The seven jurists argue that, otherwise, “you would effectively have a government system run by judges”.
Apart from the report unveiled on Tuesday, on July 18 ITW intends to submit a shadow report to the Office of the United Nations High Commissioner for Human Rights. They aim to “furnish” this body “with the necessary information for it to produce a report” so that the United Nations Human Rights Council may “ask the pertinent questions”.
The court’s role
One of the seven legal experts, Criminal Law professor Iñaki Rivera, decried the “National Court’s blatant lack of impartiality, which rendered the proceedings null from the start, to such an extent that the Supreme Court was unable to amend the initial decisions”. The ITW report slams the system by which the default court was selected, as they believe that neither the National Court nor the Supreme Court were eligible, as the matter could only be seen by Catalonia’s High Court of Justice (TSJC).
The choice of the judges keeps coming up in the report. ITW’s experts question the “impartiality” of the Supreme Court judges and they remark that “the fact that two of the judges also serve on the Central Electoral Committee does nothing to provide a veneer of impartiality”. Focusing on Justice Marchena, the jurists criticise his “constant interruptions” of the defence counsel’s cross-examination, particularly of Jordi Cuixart’s lawyer, Benet Salellas. The report cites, as an example, the one time when Salellas stated that he had no further questions, to which Marchena replied “all the better”.