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So What’s the Endgame Now in Catalonia?

“So what’s the endgame now?” asks a friend from the U.S., well-versed in all things Catalan. Here’s an answer. Right now Catalonia has seven political and two social leaders in prison, having been sentenced from nine to thirteen years after being found guilty in October of various crimes, chiefly “sedition,” by a deeply politicized Supreme Court that chose to ignore Jordi Cuixart’s remark in his closing statement: the verdict could be part of the solution to what is plainly a political conflict or part of the problem.

The verdict leaned on the Catalans’ response to a host of Constitutional court injunctions (as if it were an ordinary court, not one for resolving constitutional issues!) and decisions, shocking for any dispassionate legal specialist. The most scandalous decision was in response to a surprising request from Mariano Rajoy’s government to prevent the Catalan Parliament from re-investing President Puigdemont as President of Catalonia. The December 2017 election result shook Rajoy, as he had marked all the cards for the pro-independence parties to be swept from power, following two months of direct rule. It was called illegally the law. Catalonia’s regional constitution, the Statute of Autonomy is clear: only the Catalan president can dissolve the parliament and call an election.

Despite the opinion of even the most conservative body in the realm, the “Council of State,” who stated that an investiture session is none of the Constitutional court’s business, the latter court, after a phone call from the deputy prime minister (a fact she candidly admitted) issued unprecedented precautionary conditions to block Puigdemont’s investiture without actually admitting the case. Thereafter, the courts dutifully prevented alternative candidates Jordi Sanchez (twice, once despite a Working Group on Arbitrary Detention Opinion), and Jordi Turull from being invested. The Spanish government, immediately before withdrawing direct rule, refused – without any legal basis – to accept the composition of the cabinet announced by the new President, Quim Torra.

So, after a trial and sentence that Amnesty International, International Trial Watch and hundreds of jurists, including the eminent criminal law specialist, Luigi Ferrajoli, regarded as a travesty of justice, acting-PM Pedro Sanchez called an election. It was not his party that lit the fuse in 2006 by challenging a Statute of Autonomy – despite complying with all the legal steps, including ratification by the Catalan electorate in a referendum – before the Constitutional Court. That was Sr. Rajoy’s doing, and included a campaign to whip up anti-Catalan sentiment; sadly, this seems only too easy in parts of Spain.

Sr. Sanchez had hoped to increase his Socialist party’s weight in the Spanish parliament, but he failed to do so. Instead, the neo-Fascist Vox party launched to notoriety for its role as third-party prosecutors in the trial, and the nationalist conservatives increased their influence. Yet the balance of power continues in the hands of the Catalan pro-independence parties, chiefly the Republican Left, despite its leader, Oriol Junqueras, having been being debarred. He and his colleagues had been “suspended” from active political service (though not from standing) on trumped-up charges of “rebellion,” a ludicrous claim rejected by courts in Germany and Belgium on the grounds of extradition of exiled President Puigdemont and fellow Government members. The charge of rebellion was cherry-picked because it meant automatic gaol without bail, and suspension of their public functions. The sentence debars them from public office for years.

The authorities’ painstaking search for evidence of “misuse of public funds” pales when compared to the €87 million it cost the Spanish government to send riot police to disrupt the October 1, 2017 self-determination referendum, instead of sitting down and talking politics with the Catalan leadership. Dozens are now being tried for excessive violence, and some have testified that they followed instructions from Madrid, so many believe perjury was committed by their bosses before the Supreme Court.

Oriol Junqueras, however, awaits an imminent European Court of Justice (CJEU) judgment regarding the Supreme Court’s refusal to let him take office after winning a seat in the 2019 European parliamentary election. Spain’s judiciary had grudgingly allowed him (and two other MEP-elects, exiled President Puigdemont and Catalan Minister of Health Comín) to stand. Their election (well before the sentence) was certified in Spain’s Official Journal, but they were not on the list sent to the European Parliament, not having sworn allegiance to the Constitution in Madrid. Junqueras was prevented from leaving prison to do so, and as “fugitives,” Comín and Puigdemont (whose legally certified proxy oaths were not admitted!) would be arrested on setting foot in Spain.

December may be a watershed in the Spain-Catalonia conflict. Courts in Scotland and Belgium are processing EAW extradition requests and may postpone their procedures until the EU court issues its binding Opinion on the validity of Sr. Junqueras’ status and immunity as an MEP, which would immediately extend to Sr. Comín and Sr. Puigdemont. If the Luxembourg court heeds the Advocate General’s recommendation, it might lead not only to his immediate release but also, according to prestigious lawyers like Prof. Javier Pérez Royo, to the Supreme Court judgment being quashed. This would reverberate throughout the whole system: 11 other convicted Catalans are involved.

This would upset on-going talks between Sr. Sanchez’s PSOE party with the Republican Left and perhaps Junts per Catalunya. A favourable Luxembourg judgment the Catalans would tighten their conditions for parliamentary support. Fortunately for them, the European Court of Human Rights is not involved, so this case will not drag out for years but perhaps until the appellants have served their whole sentence. The Constitutional court uses another delaying tactic by admitting all their appeals for protection of human rights (amparo). In the past, it has admitted few such appeals. Its willingness to admit the Catalans’ appeals seems contradictory, but the court has often slipped them under its large pile of business, thus postponing the appellants’ right to turn to the European Court of Human Rights.

So the Catalan parties will not close a deal with Sr. Sanchez, despite the latter’s haste before the judgment. The main issues are a binding referendum on independence, an immediate end to the legal persecution of Catalans, and the unconditional release of the nine political prisoners. Within Sanchez’s party hyenas circle around him, as his election strategy backfired. Nor will the opposition help: PP will not salvage a political opponent who ousted them in a motion of no confidence, and Ciudadanos (founded largely on an anti-Catalan ticket) has lost most of its support to the neo-Fascists, Vox.

December also features a summons issued by the enigmatic “non-violent and disobedient” social media tool, Tsunami Democràtic. It makes the Madrid media and power-holders quake and was described as a “terrorist organisation” by the Spanish police, who failed to have its app removed from the web. It has called for a massive protest outside the Barça stadium, and further action inside, when they meet Real Madrid in an October football league match postponed by the Federation…on security grounds. Its message to the world will be “Spain Sit and Talk,” but all Spanish governments in this century have demonized their prospective Catalan interlocutors, which makes a negotiated solution implausible…without international pressure.

No sooner had this article been published than the European Court of Justice issued its judgment in the Junqueras Case (ref. C-502/19), upholding that a person elected to the European Parliament acquires the status of Member of that institution at the time of the official declaration of the results and enjoys, from that time, the immunities attached to that status. The effect on the two exiled MEP-elects will be immediate, and the court’s decision, which chastises the Supreme Court failure to automatically release Sr. Junqueras on his election, places an extremely hot potato on the Supreme Court’s bench.