Wearing their ministerial pin, sober suits and a yellow ribbon in the case of Jordi Sànchez, the nine political prisoners reappeared on Tuesday in Madrid’s Supreme Court. Screens have been erected in the corridors to ensure that journalists are unable to see the defendants enter the courtroom. Oriol Junqueras, Raül Romeva and Joaquim Forn are seated in the first row of the accused. Jordi Sànchez, Jordi Turull and Josep Rull are in the second. Jordi Cuixart, Carme Forcadell and Dolors Bassa occupy the third row. And the fourth is occupied by the three former ministers who are not on remand: Carles Mundó, Santi Vila and Meritxell Borràs. In the end, none of them chose to sit behind their lawyer, as the court had granted them leave to do.
It was the defence’s turn to speak. During the procedure known as the preliminary questions phase, they called for the charges against the defendants to be dropped —or at least suspended— as the result of the violation of fundamental rights. Van den Eynde, the lawyer representing Junqueras and Romeva, together with Forn’s lawyer, Xavier Melero, called for their release in order to "have a different trial". The lawyer representing Sànchez, Rull and Turull, Jordi Pina, appealed directly to the court’s role: "Act like judges, not saviours of the nation". The lawyers all expressed their objection to the judges who preside over the trial, in that they also took part in the proceedings relating to the prosecutor's charges in October 2017, which leaves them open to criticism for being biased in this case. Just this Tuesday, the High Court of Justice of Catalonia released the names of the three judges who are to try the case of disobedience brought against the former Parliamentary Bureau and former CUP MP Mireia Boya. They include Mercedes Armas, who gave the order to the Spanish security forces to seize the ballot boxes on 1 October.
The defence teams have chosen different strategies. In their opening statements Van den Eynde, Pina and Benet Salellas —Jordi Cuixart’s lawyer— were more political and made references to the violation of fundamental rights, while Melero’s was of a more technical nature, even to the extent that Joaquim Forn’s lawyer contradicted one of his colleagues. While Van den Eynde —sarcastically— challenged the prosecution to prove that it could be a "show trial", Melero began his speech by making his thesis clear: "This is a criminal trial, like drink driving or fraud".
The trial has begun by looking towards Europe, which is quite possibly where the conflict between Spain and the independence movement will end up. Not surprisingly, the president of the court, Manuel Marchena, began by quoting both the European Court of Human Rights (ECHR) in Strasbourg and the Court of Justice of the European Union (CJEU) when appealing to the defence counsel for brevity. "The court will be generous with the administration of time and there will be no violation of the defence’s right to equality", Marchena declared, with the intention of projecting an image of a court with full legal guarantees, as he has been doing for weeks with Europe and the international media very much in mind.
An hour earlier, the president of the Supreme Court, Carlos Lesmes, in an act of "deference", allowed Catalan president Quim Torra and his entourage to take the presidential seats. Eventually a few international observers did manage to enter the room in spite of the court’s reluctance to reserve them a place since the proceedings are being live-streamed on the Supreme’s website. The observers had queued up from before seven o'clock in the morning in order to secure a seat. In the end it wasn't possible to follow the proceedings on the Supreme’s website, as it had crashed, allegedly due to a "malicious attack".
Van den Eynde: "Self-determination is synonymous with peace, not war"
Junqueras and Romeva’s lawyer focused his opening arguments on criticizing the systematic violation of fundamental rights throughout the entire investigation. He listed them one by one with reference to relevant cases in Europe, including the Kurdish leader imprisoned in Turkey, Selahattin Demirtas. He stated that "this trial is against political dissidence", noting that his defence must not be seen as political, but rather as a defence of values and human rights. According to den Eynde, the first right which is being violated is that of ideological freedom. "There is no international or EU law which prevents the secession of a sub-state entity. Self-determination is synonymous with peace, not war", he declared.
Van den Eynde continued to argue that the rights of expression, assembly and protest, the political rights of his clients, the presumption of innocence, the right to evidence and even the right to worship have all been violated, "for refusing to allow Junqueras to attend Mass". "All of the rights covered by the Constitution have been curtailed during the investigation. It’s actually not easy to find one that hasn’t been violated", den Eynde declared. He also considers that the trial violates the "right to protest" since "20 September was a protest which was depicted as sedition".
"What is the fundamental right which justifies the violation of fundamental rights, territorial unity?", Salellas asked the court, before making it clear that while "there is no fundamental right concerning territorial unity”, there is one concerning "peaceful protest". Cuixart’s lawyer, in line with the arguments he propounded in the defence documents, went on the attack by accusing the Prosecutor's Office of "covering up torture" by dismissing the police violence which took place on 1 October and, instead, listing all of the supposed injuries suffered by Civil Guard and National Police officers.
In the same vein, Cuixart’s lawyer, who took the floor in the afternoon after Francesc Homs —representing Josep Rull— limited himself to the words of Pina and Ana Bernaola, criticised the court for having refused evidence from various experts on police procedures who had analysed the events of 20 September, which ultimately led to Cuixart being charged with sedition. Taking into account the fact that the president of Òmnium has not been charged with any crime against the treasury, his lawyer asked for the charges brought by the Solicitor General’s office to be dropped, since it joined the prosecution following the possible misappropriation of public funds.
Pina: "You’re judges, not national heroes"
Jordi Pina, Sànchez, Turull and Rull’s lawyer, spoke out strongly against the court, which he considers to be "contaminated" by the investigation, along with the Supreme Court as a whole. Specifically, he focused on the letter Lesmes sent to the judge investigating the case, Juan Antonio Ramírez Sunyer, in which he thanked him for "changing the path that our country will take". According to Pina, this violates the defendants’ right to an impartial judge. "You’re judges, not national heroes ", he remonstrated, before adding "Act like judges, not saviours of the nation".
Pina appealed to the court for King Felipe to be called to testify, even if he eventually asked to be excused, as is allowed under criminal law. "Prohibiting something is one thing, being exempt is quite another. The court won’t inconvenience anyone simply by asking, and if the king believes he ought not to come, then so be it", declared Pina, who argued that his clients have the "legitimate right" to cross-examine the Spanish monarch about the speech he made on 3 October. "About what he said and what he did not say", he added.
Aside from calling for his client’s release, Forn’s lawyers requested that the trials in the Supreme and the National Court should run concurrently. He declared that, "This has only advantages and no disadvantages, since they refer to the same facts".