The so-called "Catalonia trial" as a mirror

After a week of the controversial so-called “Catalonia trial” before the Spanish Supreme Court there has been a wealth of propaganda with regard to what it is actually happening there. As the trial is public, and is being broadcast live by decision of the Supreme Court, I am ready to analyze briefly whether the defendants are having a fair trial or not, and whether the criticisms of the continuation of the trial (after the failure of the defence lawyers’ objections) are well founded or not.

As I do not have a crystal ball (as many others seem to have), I cannot comment on the guilt of the accused: evidence is starting to be disclosed at the hearing with the defendants’ statements and this will be followed by many witnesses, experts and documents.

Notwithstanding the above, in the last years I have submitted publicly funded expert opinions on Spanish criminal procedure before Westminster Court in London regarding extradition orders issued by Spanish Courts, analyzing objectively the fairness of trial and the often alleged abuse of trial, so I think I am in a position to offer a dispassionate opinion.

I firmly believe that there is not a single reason to claim that the seven judges of the Supreme Court that are judging the twelve defendants are not impartial, independent and, overall, technically prepared to deal with such a controversial case. Actually, the attacks that have recently been made, mainly against the President of the Court, are not based on the law or legal technique, but on personal considerations (actually, guesses) that, in fact, demonstrate a fallacy ad hominem, which is defined in treatises on logic as that which tries to discredit the person defending a postion by pointing out an unpopular belief about that person.

Instead of counteracting the decision of the Court to continue the trial with legal arguments, it is constantly alleged, in the Court room and on social media, that the trial is a farce and that the defendants are facing trial for their ideas. The umpteenth attack on the principle of the separation of powers took place when, once the trial had begun, the current President of the Catalan government demanded the dismissal of the trial and the immediate release of the defendants.

We must not allow this, because many Spaniards do not speak English well, and the defendants’s supporters have managed to create a current of international opinion favorable to their position that the Kingdom of Spain has been unable to counter, Goebbels´ maxim (if you tell a big lie, keep it simple, keep telling it and eventually they will believe it) triumphs.

On the first days of the trial, we could see how the defence lawyers, legitimately we must admit, tried to abort the trial with objections that were really substantive but which unreasonably dragged out the pre-trial debate (as these were points that should be decided during the trial itself). We could also see how the President of the Court clearly established the rules of the game, warning the prosecutors that he would not tolerate loaded questions, ie those which contain the answer they want, thereby protecting the defendants' right to remain silent and even -and this issue has very little procedural content- allowing the accused to wear symbols (the yellow ribbon). What else?

On the one hand, the Court showed a deep knowledge of procedural law and even improved, for the benefit of the defendants, some controversial issues in contemporary procedural law (e.g., they rejected the admission of so-called “expert intelligence evidence” proposed by the prosecutors and even prevented them from stating what questions they would have asked the defendants who decided to remain silent according to their constitutional rights). Only a witch hunt would affirm that there is an appearance of bias in the Court.

On the other hand, society must understand that the trial cannot be dismissed in advance as is capriciously demanded. Precisely, the purpose of the trial is that, after hearing the evidence, and with all legal guarantees, the Court should make its decision in a motivated way, concluding whether the facts described in the indictments (not the defendants´ ideas) are worthy of criminal reproach. The responsibility to judge belongs exclusively to the judges (Section 117.3 of the Spanish Constitution), not to society in general, or to politicians in particular, and we should recall that judges are subject only to the rule of law (Section 117.1 of the Spanish Constitution).

I honestly believe that Judges from the lower Courts should look at President Manuel Marchena’s behavior and his direction of the debate as a mirror to improve the quality of our justice system, which I think is already in good health. For the moment, I am going to start the semester by showing my students his “lessons” in procedural law when it comes to solving the defence’s objections at the beginning of the trial.

Jaime Campaner

Associate professor in procedural and criminal law

University of Balearic Islands (Spain)

Lawyer