On Monday 14th of October, the Spanish Supreme Court announced its verdict on the two-year trial (juicio del procés) against the main Catalan leaders involved in the 2017 non-binding referendum and the unilateral declaration of independence, both of which were doomed unconstitutional. Although most of them were absolved of the charges of violent rebellion, the hardest sentence—13 years of prison—was imposed on Oriol Junqueras, former vice-president of the Catalan government (Generalitat), while other pro-independence leaders were condemned to 9-12 years of prison for sedition and misuse of public funds. Through those sentences, particularly lengthy given the exceptional situation, the Supreme Court tried to find a remedy to the Spanish and Catalan governments’ inability to carry out a fruitful political dialogue. Instead, it sparked fury and widened the separation further.
The Supreme Court’s verdict did not however send the main leader of the Catalan independence movement to prison. Carles Puigdemont, President of the Catalan Generalitat between 2016 and 2017, fled the Spanish jurisdiction when the central government implemented article 155 of the Constitutionallowing the national administration to activate a coercive mechanism to force any autonomous region breaching the Constitution to comply with its obligations before the law. Since 2017, Puigdemont has been accused of the charges of rebellion, sedition and misuse of public funds for the organization of the independence movement, but he immediately escaped to Brussels to avoid getting arrested by the Spanish authorities. That same year, the Spanish Supreme Court issued a European Arrest Warrant(EAW) requiring any other Member State to arrest and transfer a criminal suspect to the issuing state, but the order was soon reversed by the main judge of the case. It was highly unlikely that Belgium would accede to extradite Mr. Puigdemont for the crime of rebellion, in which case it would not be able to judge him for this crime within the Spanish territory. With regard to the charges of sedition, this offence is not included in the list of 32 crimes for which a suspect needs to be automatically extradited to the issuing State. This means that the process will necessarily go through the requirement of double criminality, by which the suspect can only be extradited only if a similar law exists in the extraditing country.
In March 2018, Puigdemont was arrested in the German Land of Schleswig-Holstein and sent to the prison of Neumünster with a €75,000 bail. In Germany, the most comparable crime to the charges for violent rebellion is high treason, which inherently requires the use of violence. Thus, the High Court of Schleswig-Holstein, considering Article 81 of the German Criminal Codeas well as previous jurisprudence, established that extradition was not an option because the charges contemplated under the Spanish Criminal Codewould not have been punishable under the German legislation.
For these reasons, the Supreme Court has still no jurisdiction to impose a prison sentence on Mr. Puigdemont similar to that against his fellow leaders. The only action it has been able to conduct is a new EAW requesting Belgium to extradite Mr. Puigdemont, where he returned after the judicial process in Germany. However, according to the Handbook on How to Issue and Execute a European Arrest Warrantdrafted by the Commission, the EAW needs to be issued in one of the official languages of the host State—in this case, Dutch, French or German—and/or in English. As long as Spain does not issue such warrant following the official guidelines, Belgium will not proceed with the judicial examination of the case. In other words, once the EAW is translated, the Belgian authorities will still have to take a position on the case. This might engender a difficult political situation, since Belgium itself has a strong independent party (the Flemish) with a history in supporting and sheltering not only Catalan independentists, but also former Basque pro-independence terrorists during the 1990s. This time, however, it will be more complicated for Belgian authorities to repel the EAW mainly because the European Court of Human Rights has already warned Belgium for its alleged lack of cooperation.
The harsh sentences against former Catalan leaders, however, have now revitalized the pro-independence protests in Catalonia and made the situation more dramatic than ever. In other words, despite the imprisonment of their leaders, many Catalans still believe in secession. As historical territories with their own cultures and languages, Catalonia and the Basque Country once enjoyed a higher autonomy than other regions. Such historical rights were completely abolished during the fascist dictatorship (1939-1975): in fact, the backbone of Franco’s dictatorship was to create a united and powerful Spain at all cost, which resulted in the repression of any form of opposition, dissention, and diversities that would jeopardize that unity.
In the Basque Country, the prohibition of the culture and the language led to the creation of ETA in the late 1950s, a terrorist organization supporting the establishment of a Basque state (Euskal Herria) encompassing both the Spanish and French Basque-speaking territories, which took the lives of around 900 people until its dissolution and disarmament in 2018. When the transitional period to democracy started in 1975, the Basque Country’s historical rights were given back as a trade-off for its acceptance of a Spanish Constitution, for instance establishing a quota systemby which the Basque Government (Eusko Jaurlaritza) has full competence to regulate and collect most of the taxes paid by Basque citizens in exchange for a fixed yearly quota paid to the central government. When drafting the Constitution, Catalonia could have asked for a similar system recognizing its historical rights, but the Generalitat was so skeptical about the idea of Spain giving up such competences that they did not even try.
For years after the adoption of the Constitution, the focus of oppression was set in the Basque Country for the terrible crimes committed by ETA, and the idea of an independent Catalan republic did not rise until the economic crisis of 2008 hit hard in the Spanish territory. When the population grew sick and tired of painful austerity policies, Catalan President Artur Mas saw the perfect opportunity to support independence. His ideology was supported by a large part of the Catalan citizens, who had already started to show discontent for the Spanish government after the Constitutional Court deemed unconstitutional 14 articles of the newly adopted Statute of Autonomy, i.e. an institutional norm granting some degree of autonomy to each one of the 17 regions of Spain, where some statutes include higher levels of autonomy because of their history. In 2012, Mr. Mas tried to negotiate to Spanish Prime Minister Mariano Rajoy to gain some fiscal autonomy, but this idea was rejected. Mas warned him: either you accept or you face the consequences. Spain chose the second option and decided that the country’s unity, as much as it was fractured—or maybe because it was always fractured—would never be negotiated. So they faced the consequences.
The first attempt at independence was Artur Mas’s decision to hold a symbolic, non-binding referendum in 2014, although the Constitutional Court’s decision to rule it illegal. In spite of a shocking 80% of Catalans opting for independence, only 2.3 million of the 5.4 million eligible voters took part, which made any estimation on the majority’s ideology practically impossible. Mas’s successor, Mr. Puigdemont, tried again 3 years later despite warnings coming from the Spanish government and the Constitutional Court. The 2017 poll, although it was never meant to be binding, was marred by violence and thwarted by the police through the brutal and unnecessary use of force. These events led to the adoption of a unilateral declaration of independence nine days later and to the Senate’s decision to approve the use of Article 155 of the Constitution to allow national forces to take over Catalonia and permit the Spanish government to assume direct rule of the region. The central government then sacked Puigdemont and convoked a new election in Catalonia in which three pro-independence parties won 47.7% of the vote. Key members of the pro-independence movement were arrested and the procés trial began.
Since the hampered referendum of October 2017, the relationship between Catalonia and Spain has only deteriorated. With its leaders either in prison or in exile, Catalan pro-independence politicians and citizens have been wearing yellow laces asking for the release of their political prisoners in a pacific ongoing protest, while the so-called Committees for the Defence of the Republic (CDR, Comitès de Defensa de la República) have taken direct action for civil disobedience.
Following the verdict of October 14th, people took the streets of different Catalan cities to show their discontent with the sentences against political leaders. While the sky of Barcelona burned, protesters and police officers fought in the battlefield. Although the unconstitutionality of the 2017 events cannot be denied, the harsh sentences against the Catalan leaders are an attempt at remedying the politicians’ inability to carry out a dialogue to find an effective solution to the independence movement. The former elected leaders of Catalonia convoked the referendum through claims of democracy and the right to self-determination, yet it is important to remember that under international law such right is often recognized and protected only in cases of (foreign) oppression. This is not the case in Catalonia, which only renders the legality of its independence much more unlikely.
However, and despite the controversy of this matter, the challenge of independence has not been dealt with in a sensitive manner, and instead it has mostly led to a stronger division between those who believe in a trade-off agreement between Madrid and Barcelona and those who defend the unity of the country by all means. In the context of the strong political instability within the Spanish territory and with a view towards the next national election to be held in November 2019, each political party seems to be using Catalonia to serve its own political agenda. The future of Catalonia is unclear, but it does not seem that the conflict will see an end any time soon. While former Catalan leaders fulfil their sentences in prison and Spanish politicians make up different approaches to gain electoral votes, the conflict in the streets is now as vivid as ever before. Instead of focusing on an active negotiation and improving its poor management throughout the entire independence movement, Madrid still prefers to hinder freedom of speech and resort to police brutality. And, at the end of the day, as it usually is the case, it is the people who suffer the consequences.
