Last Monday Spain’s Supreme Court dismissed an appeal to release the Catalan political prisoners arguing that their situation is not at all like that of Selahattin Demirtas, the Kurdish opposition leader whose pre-trial detention in Turkey was ruled unlawful by the European Court of Human Rights on 20 November last year. Among the reasons given, the Supreme Court argues that, unlike Demirtas, the Catalan leaders “were not the voice of dissent, suppressed by an overpowering policy imposed without any balances” and that, in their case, “they were fully integrated into the region’s power structures”.
That sort of argument holds no water because in both cases the violation of the defendants’ right to proper legal counsel that results from pre-trial detention is identical. In fact, later in the same statement the Supreme Court insists that “political views aren’t being persecuted. No ideology is being criminalised. Actually, the views which the defendants legitimately hold are the same ones endorsed by Catalonia’s regional government”. Here the court is preempting one of the pillars on which the prisoners’ defence will rest during the trial, and one of the issues which the ECHR will eventually need to shed light on. It is a joke in very poor taste to claim that pro-independence views are not being persecuted in Spain when Catalan leaders are in jail or exile due to an ad hoc fabrication for the prosecutor to press rebellion and sedition charges, which carry prison penalties of up to 25 years. Does the court believe that the incumbent Catalan government, even if they support independence, are free to proceed as they wish now that they have seen the price paid by their predecessors? Now that they have seen how the Guardia Civil, the Prosecutor and the examining magistrate have embraced the arguments put forward by Vox’s far-right lawyers? When they are aware that the defendants will face trial from a Madrid prison cell, with cumbersome daily commutes to court and unable to prepare their defence properly?
Quite the opposite: Catalonia’s pro-independence movement feels watched and persecuted by a judiciary apparatus that has spearheaded a massive intimidation effort and now aims to make an example of the Catalan leaders by means of harsh penalties so that independence supporters will reconsider their legitimate goal. One of the lessons we can draw from Catalonia’s independence bid is that democracies can exhibit authoritarian behaviour that clashes with the rule of law, as we are seeing in many other countries.
Spain and the Spanish Supreme Court are at pains to come across as being modern and well-established because they realise that they will be in the spotlight during the trial against the Catalan leaders. But, as far as the foreign public opinion is concerned, they have already lost part of the game: like in the Demirtas case, pre-trial detention is totally unjustified, and is effectively the foreword of a sentence that hasn’t been passed yet.