Mas, Ortega, Rigau banned by Catalan High Court for “deliberate, unequivocal” disobedience over 2014 vote

BarcelonaA two-year ban from holding elected public office and carrying out governmental functions and a 36,000 euro fine for having disobeyed the Constitutional Court and having remained behind the organisation of the unofficial independence referendum until the day of voting, 9 November 2014 (“9-N”). This is the sentence, published this Monday, levelled against former Catalan president Artur Mas by unanimous decision of the High Court of Justice of Catalonia. The court finds all three defendants guilty of disobedience but clears them of dereliction of duty, the other crime they were charged with, which would have carried a longer ban.

The court has also sentenced former vice-president Joana Ortega to a 21-month ban and a 30,000 euro fine for disobedience, and given an 18-month ban to former education minister and member of parliament Irene Rigau, along with a 24,000 euro fine. The defendants now have five working days to appeal the ruling before Madrid’s Supreme Court, whose sentence of the other person indicted over 9-N –spokesman of the PDECat party in the Spanish parliament Francesc Homs– is still pending.

The public prosecution will now decide whether to ask for the bans against Mas, Ortega and Rigau to be brought into immediate effect. They will also consider whether to appeal the sentence or not, as they had requested a ban of up to 10 years against Mas and 9 and a half against Ortega and Rigau.

Their defence has announced that they will file an appeal with the Supreme Court to have the sentences annulled and that they will, if necessary, take it all the way to the European courts. If the prosecutor doesn’t request the immediate implementation of the sentences, the bans will not be effective until all levels of appeal have been exhausted. Meanwhile, the three will be able to continue exercising their public roles as previously.

Unequivocal and deliberate disobedience

The sentence states that the ruling given by the Constitutional Court five days before the 9-N vote left no room for doubt: it constituted a “clear, unequivocal order” to “halt or suspend” all the activities organised by the Catalan government. "The order’s meaning was clear as the midday sun for anyone of average intelligence and more so for the President of Catalonia and the members of his cabinet, advised as they were by a team of lawyers who should be presumed to have a detailed knowledge of constitutional law".

As such, the court believes that Mas, Ortega and Rigau “consciously, deliberately and unequivocally” disobeyed the Constitutional Court and were involved in the 9N process up to the day of voting. It lists eight illegal actions: keeping the official 9N web page online, the official advertising campaign promoting the vote and the large-scale sending of official correspondence, permitting the distribution of ballot boxes, ballot papers, envelopes and pens for the vote, as well as the distribution of computers and the installation of vote-counting and voter-registration software, issuing the insurance policy for the volunteers and preparing the setting up of the centre to follow the vote and the international press centre in the Barcelona’s Fira building.

According to the verdict, the attempt by Mas, Ortega and Rigau’s defence to “neutralise” the disobedience charge by arguing that the Constitutional Court’s ruling wasn’t particularly clear and that, because of this, they had asked for clarification of the ruling, is “discredited” by the “clarity” of the ruling which required them to halt or suspend all administrative actions.

Supervision of the volunteers

After the first suspension of the vote by the Constitutional Court, the Catalan government stated that it had changed the format of the original referendum, turning it into a “participatory process” which it had left totally in the hands of volunteers. But the court didn’t believe this argument: “The volunteers were always under the organisational supervision of the Government”, the verdict states.

In fact, the judges also stress that 9N wouldn’t have been possible without the Catalan government’s organisation efforts: “all the volunteers’ generosity would have been useless if they hadn’t had open polling stations, material for the votes and the technological equipment”.

The possibility of an erroneous interpretation

The Court is in no doubt that Mas, Ortega and Rigau consciously disobeyed the Constitutional Court maintaining their involvement in 9-N, but, on the other hand, the verdict leaves open the possibility that they “erroneously interpreted” that the vote that day was legal, taking into account the situation at that time.

The judges note that, to be able to find them guilty of dereliction of duty, the accused need to have “flagrantly violated the law”. According to the court, the Constitutional Court’s 2015 ruling makes it “obvious” that the 9N vote “was illegal”, but this pronouncement came after the fact. As such, the Catalan court believes that “it can’t rule out” that the defendants “certainly following an erroneous, interpretative reasoning” believed in the possibility that 9N was “legal”.

"Perverting" the principles of democracy

In his defence, Mas stated that he had faced the dilemma of obeying the democratic mandate of the Catalan parliament or the Constitutional Court. The court argues that, with this argument, the ex-president “perverted the democratic principles of the division and balance of powers”. The Catalan High Court’s believes that “submission by everyone to the rule of law” is a basic norm to guarantee “peaceful coexistence”, and has to be prioritised above everything else.

Emilio Sánchez Ulled and Francisco Bañeres, for the public prosecution, had repeated their request to ban the ex-Catalan president Artur Mas from public office for 10 years and ex-ministers Joana Ortega and Irene Rigau for 9 in the closing remarks because they believe that, as well as having disobeyed the Constitutional Court, the Catalan leaders had neglected their duty. The court’s verdict arrives before that of the Supreme Court, which held the trial of Francesc Homs, under the privilege offered by his role as a member of the Spanish parliament.

Appealing all the way to Strasbourg, if necessary

After the appearance by Mas, Rigau and Ortega at the headquarters of the PDECat party in Barcelona, their lawyers made statements to the press giving their opinions on the sentences and announcing that they would appeal, if necessary, all the way to Europe. Rigau’s lawyer, Jordi Pina, stated that the verdict of the High Court of Justice of Catalonia is “clearly appealable from the technical and legal point of view”. “There are discrepancies”, he stated, adding that the court didn’t respond to a good number of their arguments that the defendant’s actions didn’t match Supreme Court precedent for the crime of disobedience.

Pina explained that the three attorneys would appeal the sentence to the Spanish Supreme Court and that if this break with precedent is maintained, they will have serious arguments to win the case at the Court of Human Rights in Strasbourg, although first they will have to go to the Constitutional Court. Pina brought up the Parot doctrine[1] as an example of a case where the Supreme Court changed their standards and the European court found against them. "We’re looking forward to seeing if the Supreme Court will do the same again", he said ironically, stating that if there is a change with respect to precedent, it would be a “made-to-measure” verdict for Mas, Rigau and Ortega.

For his part, when asked by journalists, Ortega’s lawyer Rafael Entrena clarified that although Rigau won’t have to leave her seat in parliament until there is a final sentence (that is, a Supreme Court decision), none of the convicted three can now stand for election. They are prohibited from doing so by electoral law, even though there is not yet a definitive ruling.

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Translator’s note:

[1] The Parot doctrine is named after an ETA member given an over 4,000-year sentence for a number of serious crimes, including murder. Spanish penal law at the time set a maximum term for physical imprisonment of 30 years but any benefits, for instance for good conduct, were applied to the original penalty, not to the 30 year maximum. A different ETA member successfully appealed against this practice at the European Court of Human Rights in 2012.