In Spain holding an unauthorised referendum ceased to be an offence in 2005

Faced with the challenge posed by the Basque president’s referendum plans, in 2003 PM José María Aznar’s government added a new offence to Spain’s criminal code: anyone calling an unauthorised referendum would risk a prison sentence of 3 to 5 years. At the time the PP enjoyed an outright majority in the Spanish parliament and the opposition’s protestations were to no avail, even though they all refused to lend the government their support. Only two years later, once José Luis Rodríguez Zapatero had come to power, a fresh majority of lawmakers revoked the three articles from the criminal code. Back then the Partido Popular found itself all alone decrying the move and arguing that it only left the State a single defence strategy against a unilateral referendum: invoking Article 155 of the Constitution to impose direct rule.

So from a legal standpoint, holding a referendum outside the existing laws —as happened in Catalonia on November 9 2014 and again on October 1 2017— does not constitute a crime. At the very least, no charges can be pressed because —as we have seen— the State has other means to prevent the secession of a region. Therefore, if holding a referendum isn’t an offence, how come nine Catalan pro-independence leaders are being held in pre-trial detention? There is an easy explanation: since the Prosecutor and the examining magistrate could not invoke a specific article of the criminal code, they had to fabricate a narrative of violence to bring charges of rebellion and sedition against the Catalan leaders.

Had those articles not been repealed, today there would be no doubt that at least the Catalan ministers could be charged with holding an illegal referendum. But Spain’s lawmakers specifically decided not to characterise that as a crime in order not to criminalise an action that could be understood as a political statement that required precisely a political response. That is why they have had to build a farcical case, one where a peaceful demonstration is presented as a violent uprising, the Catalan police’s impeccable performance is a conspiracy and a political statement by the Catalan parliament —an inviolable institution— is construed as a criminal offence.

This will be one of the cornerstones of the defendants’ legal counsel in the trial against the October 1 vote which, undoubtedly, the European Court of Human Rights will very much bear in mind when the time comes to see the case. In the courtroom, political discourse —this will be essentially a political trial— will have to alternate with a solid legal defence that exposes the falsehoods on which the case has been built. It is at this crossroads where we expect to see the statements by the defence that will be made public next week.

The legal teams have been working for months to strike a balance between tearing the case apart and exposing Spain’s judicial shambles for all the world to see, as well as presenting Catalonia’s arguments. Specifically, they aim to expose the lack of judicial guarantees and the conditions which the defendants will endure throughout the trial: driven daily to court from their prison cell and with no time to confer with their lawyers. That is why the Supreme Court is now resorting to gestures, such as allowing the defendants to speak Catalan in court: what is at stake in this case is not just the prestige of Spain’s justice system, but of the State as a whole.