In Spain the rule of law is morphing into rule by the judges

Every source has indicated that the Supreme Court will have reached a verdict in the case of the 2017 Catalan independence bid by early October. But when will it be announced? Should caretaker PM Pedro Sánchez fail to secure a majority in parliament by September 23, there will be snap elections in Spain on November 10. If the court stuck to the calendar, the verdict would be announced in October, just as the political parties are gearing up for a fresh vote in a country where tempers will be frayed by campaign trail scuffles. As reported by this newspaper, sources within the judiciary have suggested that a snap election would postpone the delivery of the verdict.

While putting off the announcement would not have a direct influence on the November 10 elections, it would definitely have an impact on the political scenario emerging from the polls, as the verdict would be handed down shortly afterwards. For example, this would make it impossible for ERC to lend their parliamentary support to Pedro Sánchez, if the socialist PM-hopeful needed the Catalan party to abstain in order to facilitate his re-election. As a judiciary source has pointed out to this newspaper, the crux of the matter is how long the verdict can be put on hold, as it “might cause excessive delay. It would be best for Pedro Sánchez to secure a majority in September, be voted in and form a new government right then”.

The interplay between the verdict and a hypothetical snap election in Spain is a reflection of how the rule of law is morphing into rule by the judges. The judiciary has expanded its powers to fill the void left by weakened politics and political leaders. At any rate, one would struggle to select a time when the announcement of the verdict would not have any political repercussions, as September 11 is Catalonia’s National Day and October 1 will mark the second anniversary of the referendum on independence.

“Harsh” sentences

The court’s considerations have paved the way for a guilty verdict. Besides being generally in agreement about the specific crimes that the Catalan leaders will be found guilty of, the judges have acknowledged the need to carefully outline the evidence presented against every one of the defendants. Sources have hinted that “the sentences will be harsh”. This became readily apparent when the court decided to continue to hold the defendants on remand. The main enigma is what charges they will be found guilty of: rebellion or conspiracy for rebellion?

The key issue is whether the public violence required for the count of rebellion to stand has been proven or not, as per Article 472 of Spain’s criminal code. While the court might rule that there were violent actions on 1 October 2017, the defendants may not be found guilty of staging a full-on rebellion —as the prosecution is hoping for—, resulting in significantly lighter sentences. In the aftermath of the case, it remains to be seen whether the Supreme Court will request an amendment of Article 472, which might allow for greater leniency to be applied retroactively to the Catalan leaders.