Referendum trial observers: Prosecutor’s questions that “criminalise” demonstrations are “worrying”

BarcelonaOn Monday International Trial Watch (ITW) complained about the “especially worrying” questions put by the Prosecutor and the State’s Attorney to Jordi Sànchez, the former leader of the Catalan National Assembly, when he was questioned about freedom of assembly. The platform of international observers believes that “the right to stage and take part in large demonstrations is being criminalised”. In a press release containing their assessment of last week’s sessions, ITW claims that the Prosecution was guilty of some “inaccuracies” and asked “questions that could be regarded as leading or loaded”. Furthermore, the observers complain about the inordinate length of last Wednesday’s session and the fact that all parties are being kept in the dark about the full calendar of the trial, as “this can impact on their right of defence”.

In the statement, ITW explains that four of their observers were present in court last week. They were John Philpot, who acted at the International Criminal court in The Hague (ICC) in the Kenya file and at the International Criminal Court for Rwanda; Paul Newman, a regular speaker at the UN’s Human Rights Committee; Bill Bowring, a member of the European Association of Lawyers for Democracy & World Human Rights, and Joaquín Urías, a former attorney with Spain’s Constitutional Court and a Constitutional Law professor.

The observers noted that during his cross-examination, “several statements lifted from a document were mistakenly attributed to former Catalan minister Josep Rull”. Likewise, former minister Dolors Bassa was questioned about “an alleged email message which was not part of the brief, leading to confusion”. They also referred to “a Twitter post from Bassa that the Prosecution had misinterpreted”.

ITW regards the questions put by the Prosecutor and the State’s Attorney to Jordi Sànchez on the subject of freedom of assembly as “especially worrying”. “There is a confusion between giving advance warning about a protest or a demonstration and the alleged need to obtain permission for it, which is unconstitutional. Meanwhile, staging and taking part in mass demonstrations is being criminalised”, they noted. The observers believe that the plaintiffs are “unaware” of the concept of “spontaneous demonstrations, which is recognised and protected by international laws that Spain adheres to”. They believe that “the prosecutors are switching the interpretation order mandated by the Constitution whenever basic rights are at stake”.

In the dark about the calendar

The platform also points out that the parties involved “are being kept in the dark about the full calendar of the trial” and the order in which witnesses will appear in court. “This makes cross-examination preparations extremely difficult”, they warned. On this point they mention that the only names that have been disclosed are those of the witnesses who are expected to testify this week, which “might impact on the defendants’ right to proper legal counsel and the prohibition of defencelessness”.

ITW also denounces “an alteration of the order of expert evidence” as mandated by law because “the order did not follow the prosecution’s suggestion, but the choice of names was made on the basis of having held public office, regardless of who suggested them”. Up to twenty witnesses are expected to appear in court this week and all of them are or have been elected officials.

The observers note that some of the lawyers asked for six of the witnesses proposed only by the defence should appear in court after the witnesses for the prosecution “to safeguard the defendants’ right of defence”. While the presiding judge, Manuel Marchena, “stated that their request would be granted”, last Friday —when the court decided the order for this week— their request was dismissed.

ITW also insists that last Wednesday’s session was so long that the defendants who are held on remand spent in court “from about 8 am to 10.30 pm”. “They got back to their cell at about midnight, too late for a hot meal and a shower”, they complained, and the next morning “they had to get up at 6 to be driven back to court”. The observers mention the complaints by some of the defence teams “because the defendants were cross-examined in such dire conditions”, as they were not “in the right state to be questioned for hours”.

Relinquishing the right to speak their mother tongue

The observers also note that the court’s failure to set up a simultaneous translation system from Catalan into Spanish (only consecutive translation was made available) meant that “in practice” the defendants “had to relinquish their right to speak their mother tongue” because consecutive translation “appears to detract from the spontaneity of their answers and does not allow their statements to flow”. The platform remarked that most of the defendants complained about this in court and they believe this “might infringe upon their right to equal treatment and impact on their right of defence, as well as violate their language rights”. Furthermore, these issues are “a consequence of the violation of their right to be tried by the default court of justice, as enshrined in the law”.

On a more positive note, the ITW observers appreciate the fact that the court allowed the defendants to sit with their lawyer after the cross-examination. They also praised the court for not setting a time limit for any of the cross-examinations and allowing the defendants to express themselves with “full answers”.

“Queuing up since the wee hours”

For the second time, this week the platform decried the fact that Madrid’s Supreme Court did not reserve any places for their observers, who had no choice but to queue for a seat in the public gallery. International Trial Watch believes this system is “very complicated” and makes it difficult for them to be present in court because they need to “queue up since the wee hours of the morning in order to get a seat” given that “at a random time, between 7 and 8 am, the general public are allowed to enter the premises —after turning off and handing over all their electronic devices— and spend two to three hours in a corridor until the session begins, with limited personal mobility for security reasons.

Furthermore, ITW stated that “the limitations on the use of mobile phones does not apply to everyone in court, but only to the general public”. That is why they view this measure as “arbitrary and unnecessary”.