The interlocutory decree from Judge Carmen Lamela, which sent Jordi Sànchez and Jordi Cuixart, presidents of the ANC and Òmnium, to prison without bail, ignores part of the events on September 20th at the rally outside Catalonia’s Ministry of the Economy. It takes the thesis of the Guardia Civil's report on the demonstrations at face value.
The judge states that to decree unconditional jail time, a series of circumstances are necessary that, she believes, are met in the case of Cuixart and Sànchez. She claims that there is "the existence of an event that presents all the characteristics of a crime" and that there are reasons "to view someone as criminally responsible, and order that they be remanded in custody". Now, there are facts that the judge says are "proven", but which are doubtful in light of statements from Cuixart and Sànchez that night, and videos shot outside the Ministry of the Economy.
Differences between the interlocutory decree and the words of Sànchez and Cuixart
How was the gathering convened?
The interlocutory decree says that various demonstrations were convened using the social networks of the ANC and Òmnium. "Via the cited summons a call was made, not to a peaceful gathering or demonstration, but to protect government officials and institutions, by means of massive citizen mobilizations", says the interlocutory decree. It takes into account a WhatsApp message from Òmnium at 9 a.m. calling on people to "stop the Guardia Civil". Now, in the appearances by Cuixart and Sànchez that day, they continually made references to demonstrating in a "peaceful" and "civic" way. At midday on the 20th the presidents of the ANC and Òmnium were at Plaça de Sant Jaume. Cuixart asked people to stay "calm" at all times, while Sànchez said "the best response to tension is a rose, a carnation, and a ballot".
How was the demonstration ended?
The judge maintains that Sànchez and Cuixart "became" the "liaisons" between the demonstrators and officers and "negotiated" with the security forces, proposing options "that were useful only for their own political ends". According to Lamela, "they never used" their "control" over the demonstration to call off the rally. To argue this, the judge refers to some statements by Sànchez -- he said "nobody should go home, it will be a long and intense night" -- and Cuixart, who called for "permanent mobilization" until October 1st.
However, Lamela ignores all of the statements that they made calling on demonstrators to go home, while being challenged by protestors. Cuixart addressed the demonstrators: "We are asking you, to the extent possible and in a peaceful way, to dissolve today's gathering". The president of Òmnium called on the demonstrators to meet the following morning at the Arc de Triomf, and asked they to bring "tents", as can be seen on a video.
"Above all... We ask that you dissolve this demonstration, as best as you can, very calmly, today, in a few minutes”— @JCuixart @Omnium on Sept 20. (The Spanish govt has JAILED him on sedition charges for his actions that day.) https://t.co/kL4F2KvHEl— Liz Castro (@lizcastro) 17 d’octubre de 2017
Sánchez also grabbed a bullhorn to call on everyone to abandon the gathering at midnight, and asked them not to consider it as "a step backwards" for the independence movement, in the face of criticism that he began to receive from some demonstrators. The majority of the people had already left by 12:00, but some 500 people ended up being dispersed by crowd-control units of the Mossos.
How did the judicial retinue leave?
The judge argues that the "immediate goal" of those gathered was to "block" the access and the work of the judicial team that was to search the building. "Due to the crowds that were still in the streets, the officers and lawyers from the justice department ended up besieged and held against their will within the building". According to Lamela, the demonstrators "blocked" their departure.
However, the interlocutory decree never says that the president of Òmnium asked insistently that the Mossos be allowed to create a cordon so that the judicial retinue could leave. "I'm asking you, please, to listen to them and let them make a pathway", he said. Faced with criticisms from those gathered, Cuixart insisted: "Let the police do their job. We cannot stop the judicial team. Really, mate, I'm as committed as you are", as can be seen on a video.
A controversial interlocutory decree
Objective facts or political interpretation?
The judge argues that the "immediate objective" of the people who played a leading role in the events of September 20th and 21st (before the Superior Court of Justice of Catalonia) "was to impede civil servants and security forces from carrying out their roles according to the law". But she adds: "The ultimate aim of these mobilizations was to achieve the holding of the referendum and, with this, the proclamation of a Catalan republic, independent from Spain, at all times aware that they were carrying out actions outside of legal channels and impeding the enforcement of the law as a whole and, in particular, of the foundational rule of all Spaniards, the Constitution". This paragraph is the focus of the majority of criticisms on the judge's decree. Several lawyers consulted by ARA criticized that in the paragraph, the judge makes reference to the political motivations of the accused and not to the objective events of which they are accused.
The right to demonstrate or sedition?
As the Guardia Civil report argues, the judge assumed that everything was part of a conspiracy with the aim of achieving Catalan independence. The judge says: [The events of September 20th and 21st] "were not an isolated, impromptu, citizens’ protest, called peacefully in disagreement with police actions carried out under a judge's orders. On the contrary, the activities described fit within a complex strategy, in which defendants Jordi Cuixart and Jordi Sànchez have collaborated for some time, in execution of a roadmap designed to obtain the independence of Catalonia". That is, the judge believes that they were not exercising their right to demonstrate, but instead participating in a plot to achieve independence that, according to the judge, constitutes a crime of sedition. In fact, various lawyers in Barcelona have stated that Lamela has made up the crime of “peaceful tumultuous uprisings".
Paving the way for outlawing the grassroots organizations?
The judge presents ANC and Òmnium Cultural as two of the organizations making up "an organized group of people" charged with pushing, "outside of legal channels, the independence of Catalonia". In fact, the interlocutory decree mentions demonstrations and events promoting the referendum before and after September 20th featuring both Sànchez and Cuixart. There are those who interpret this paragraph as paving the way for outlawing the pro-independence organizations, a fact that, on Tuesday, the organizations themselves chose not to comment on, while indicating that if this were to happen, it would mean that Spain is a "dictatorship". One of the precedents cited by the judge took place on September 25th in Badalona. There, several Guardia Civil officers seized material related to the referendum, and a group of some twenty people with an "increasingly hostile attitude", among them Cuixart, asked the officers to return the material. The judge, based on the Guardia Civil's version of events, explains that Cuixart and José Téllez, deputy mayor of Badalona, grabbed the confiscated material from within an official vehicle and that Téllez distributed it among people gathered around.
The possibility of flight, hiding evidence, and reoffending
To justify the need for holding the defendants in prison without bail, Lamela's decree notes that three guiding principles should be followed: preventing the reasonable risk of flight, taking into account that Sànchez and Cuixart are accused of the crime of sedition, with possible penalties of up to fifteen years in prison; preventing the alteration, hiding, or destruction of evidence; and preventing further offences-- that is, the possibility that they would continue to mobilize people to achieve "independence via illegal means". Despite all the insistence that the judge uses to conclude that the presidents of ANC and Òmnium must continue to be prosecuted and, in addition, must remain in jail, at one point she also notes that, at least until there is a sentence handed down, both Sànchez and Cuixart are presumed innocent.