International observers on trial of Catalan independence leaders: Justice Marchena “lacks impartiality”

International Trial Watch, an independent platform, has warned of several incidents recorded during week 5 of the trial

The international observers have flagged Justice Manuel Marchena, the Supreme Court judge who presides over the trial against the Catalan independence leaders, for a hypothetical “lack of impartiality”. In their roundup of week 5 of the trial, International Trial Watch (ITW) has zeroed in on an incident which occurred last Thursday while former Catalan police boss Josep Lluís Trapero was testifying in court. The Prosecutor’s cross-examination was limited when it came to asking about crucial aspects of the accusation, as the Prosecutor’s office had not summoned Trapero as their witness —unlike Vox—, but the far-right plaintiff forgot to question Trapero about key meetings that would have strengthened the rebellion narrative. As a result, the Prosecutor was only allowed to enquire about the issues originally raised by Vox. It was then that Justice Marchena fell victim to his own decisions, and he had to grant the defence teams their request to limit the scope of the cross-examination. However, later on Marchena used his power to ask Trapero about relevant events that had not been addressed by the prosecution. As far as ITW is concerned, “this sort of conduct might suggest that the court lacks objective impartiality, as per the doctrine of the European Court of Human Rights”.

There are yet more examples of this lack of impartiality alleged by the international observers: their statement mentions the fact that two of the judges serving on the court are also members of Spain’s Central Electoral Board, “a non-jurisdictional function which they could easily give up”, which is “having a negative impact on the trial’s sessions”, as the two judges must attend the Board’s meetings [ahead of the April elections in Spain]. ITW believes that this leads to “uneven breaks” between sessions, lasting anywhere between twenty minutes and ten hours. Furthermore, the observers point out that there is no indication of the two judges abstaining in the Board’s vote to ban the public display of yellow ribbons on government buildings in Catalonia.

And there is yet another indication: ITW has criticised the fact that some witnesses have been asked whether they are a member of certain associations, whereas others haven’t. A case in point is the secretary of Barcelona’s Court 13: defence lawyer Andreu Van den Eynde attempted to ask her if she followed Spanish unionist websites, but Justice Marchena warned him that he was not allowed to question Montserrat del Toro about her political views. In contrast, the prosecutor and other plaintiffs were allowed to put similar questions to other witnesses, which the observers have criticised as “showing a different treatment by the presiding judge between the defence and the prosecution when faced with questions that might reveal the political bias of a witness”.

A “flexible” court of law

The observers’ assessment also highlights a number of positive aspects about the trial. This week they praised the court’s “flexibility” when it comes to the testimony of witnesses who live abroad, as well as the fact that the President has allowed any witness indicted in a different case to claim their right not to appear in court in writing rather than in person.

The observers during week 5 were Ralph J. Bunche, Secretary General of Unrepresented Nations and People Organization (UNPO); Hannibal Unwaifo, Managing Partner at the African Bar Association; and Ricardo Juan Sánchez, Associate Professor in Procedural Law at the University of Valencia.