The violent uprising that no one saw

First the investigating judges and then prosecution counsels have had to redefine violence to make their case

Yesterday began the turn of the defence counsels to make their closing statements as Special Case 20907/2017, the trial against the “Catalan process“, nears its end. They would be facing a simple task if this were a regular criminal trial, but it has been anything but regular. It is the main part of the Spanish State‘s operation to destroy the pro-independence movement in Catalonia.

Rebellion charges

In October 2017, Public Prosecutor José Manuel Maza of the Supreme Court decided to charge the entire Catalan Government with rebellion, sedition and/or embezzlement. Rebellion is one of the most serious offences in the Spanish penal code and carries a sentence of up to 25 years’ imprisonment, on a par with killing the King of Spain:

Article 485 of the current Spanish penal code: on felonies against the Crown

It is the criminal definition of a coup d’état and it requires violence. Of course it does: for any group to overthrow the government of any state defended by military and security forces, the use of violence is absolutely necessary and that violence would normally be carried out by military rebels.

Rebellion: public and violent uprising

Definitions of rebellion

The precise definition of the offence of rebellion lies at the heart of the case against the Catalan civil and political leaders that began on 12 February, seventeen long weeks ago. Until the edition of the Spanish penal code in 1995, the word “violently” had never appeared in the prerequisite of the crime of rebellion. It has been the job of the prosecution counsels to, first, prove the existence and nature of the violence necessary for it to be considered that a rebellion took place, and then link that violence in some way to the accused.

A comparison of the similarities and differences between the definition of the offence of rebellion in the 1973 penal code, at the end of the Franco era, and the current 1995 penal code sheds light on the overreach and irrelevancies of the indictments, the rejections of all appeals by the accused, and the excesses of public prosectors’ closing statements.

Article 214 of the 1973 Spanish penal code

Article 472 of the 1995 Spanish penal code

The only difference between the opening lines of the rebellion laws from the previous 1973 penal code and the 1995 edition, which is still in force, is the key to the Catalan trial and the main obstacle to the prosecution’s rebellion charge. Until 1995, the prerequisite of “publicly and in open hostility” of the rebellion law had remained unchanged since 1848 – throughout the 1928, 1932, and 1944 revisions.

1822

1822

1848

1870

1928

1932

1944

1973

1995

Rebellion in Spanish penal codes 1822-1995

Diego López Garrido: author of the rebellion law

The author of the rebellion law currently in force in the Kingdom of Spain, Diego López Garrido, has been a constant critic of the prosecution of Dolors Bassa, Jordi Cuixart, Carme Forcadell, Joaquim Forn, Oriol Junqueras, Raül Romeva, Josep Rull, Jordi Sànchez, and Jordi Turull for rebellion:

The crime of rebellion was included in the 1995 penal code … with a fundamental prerequisite, … which is the prerequisite of violence. It’s about an public and violent uprising and, if that is not the case, then we aren’t dealing with rebellion. I don’t think the events fit the precise and clear definition of Article 472 of the penal code, which states that, for rebellion to exist, there must be violence, and that violence must be physical and tangible, clear violence, a violent uprising. I didn’t observe this in the declaration of independence approved by the Catalan Parliament. Diego López Garrido, author of the 1995 rebellion law

Diego López Garrido, author of the 1995 rebellion law, explains why there was no rebellion in Catalonia in the autumn of 2017

López Garrido is a Spanish jurist and politician. He is a former Secretary of State for the European Union in the Ministry of Foreign Affairs and Cooperation, Parliamentary Spokesperson for PSOE – Partido Socialista Obrero Español, the Spanish Socialist Workers’ Party – and previously an important figure in IU – Izquierdo Unida, United Left. He is also a professor of Constitutional Law and an expert in human rights and European issues. In an interview with David Portabella in El Punt Avui newspaper at the end of that fateful October in 2017, he said:

To avoid misinterpretations, we added the word ‘violently’. We did it intentionally. That is why there’s no doubt that it’s necessary to prove that there’s violence; one can’t speak of imaginary or hypothetical violence. Diego López Garrido, “There is no rebellion; Maza is using his imagination“, El Punt Avui, October 31, 2017

López Garrido replaced “rise up publicly and in open hostility against the Government” with “violently and publicly rise up“. In doing so, he hoped to avoid any misinterpretation of the highly ambiguous phrase, “open hostility“, by insisting that there be demonstrable “physical and tangible” violence for rebellion to exist. It meant consulting the RAE – Real Academia Española, Royal Spanish Academy – for a “precise and clear definition“. It was much discussed, but ultimately approved by all the members of the cross-party committee and the Congress of Deputies, including the PP – Partido Popular, Popular Party.

To make further sure that the State did not overreach itself, the part of Article 217 that also considers to be “rebels” those who commit any of the offences included in the rebellion law by “cunning or by any other means“, “without rising up against the Government” or “in a manner different from that provided for” was edited out. The 1973 article basically ruled out non-violence as a defence.

Article 217 of the 1973 Spanish penal code

While non-violent action is considered in the 1995 penal code, it does not appear in the description of rebellion. The phrase “without public uprising” is used in the subchapter on felonies against the institutions of the state. They are considered serious public order offences:

The 1995 revision specifies exactly the kind of violence we should be talking about from the “rebels” in their attempt to take control of the territory:

Article 473 of the 1995 Spanish penal code

The “rebels” must not “lead troops or any other kind of armed force” and are warned that if they don’t “immediately desist in their attitude” the “the authority shall apply the force available to it to disperse them“. If any of “rebels” were to “open fire” no warnings would be given. On 1 October, few warnings were given before the “force available” to the Spanish police was used to disperse voters.

Bloodspilling

The rebellion law has always been designed to punish armed uprisings, however much the investigating judges and prosecution counsels might want people to believe that Fairy liquid and candle wax, red noses and carnations, paper ballots and planes, plastic boxes and whistles are deadly weapons. Even at the beginning of the twentieth century, soon after Article 248 of the 1870 penal code was amended to include the concept of the “indivisible Nation” to punish “separatism“, the necessity for violence was clear enough. A 1908 ruling by the Supreme Court explained that the following scenario would be considered punishable under the rebellion law:

… delivering a speech from the balcony of a political organisation, attacking the integrity of the Fatherland, exciting the mobs to become independent from the rest of the Nation, it being necessary to achieve this to revolt and spill blood to finish with those who opposed the triumph of such ideas … given that the integrity of the Fatherland is under attack and there is agitation to break up the Nation, outside the law and by violent means.

Redefining “violence”

Conscious that almost all the clearly violent acts observed during the autumn of 2017 were committed by the Spanish National Police Corps (Cuerpo Nacional De Policia) and the Civil Guard (Guardia Civil) and that there was absolutely no evidence of violence that could be linked to the organisers of demonstrations and the unauthorised referendum held in Catalonia on 1 October, 2017, the investigating judges – first José Manuel Maza and later Pablo Llarena – had to find alternative definitions of “violence” and “force” for Special Case 20907/2017 and the charge of rebellion to prosper, and also to justify the pre-trial imprisonment of seven members of the Government of Catalonia at the time and two civil leaders.

Throughout the indictments and rejections of appeals the investigating judges accepted that the events did not fit the official definition of the word “violence“, and attempted its redefinition. In Maza’s original complaint against the Catalan government on 27 October, 2017, the day of the declaration of independence and application of Article 155 of the Spanish Constitution, he argued that, although independentist leaders did not mention violence, they were aware of “the numerical superiority of those gathered with respect to the police” and intended this to produce an “intimidatory effect” to “prevent or seriously hinder police action“. These mobilisations, to Maza’s mind, were supposed to use “the force of the crowd” to achieve independence. In his words, they were the “civilian arm of the uprising“:

National High Court complaint against Catalan Government for rebellion, sedition and embezzlement, 27/10/2017

He referred to the 19 September demonstration outside the headquarters of political party, the CUP – Candidatura d’Unitat Popular, Popular Unity Candidacy – as the beginning of “violent actions carried out by independentists against Civil Guard officers“. Passive resistance to police operations and legitimate peaceful protests were suddenly being regarded as violent acts in order for it to be possible to prove rebellion. He argued that the “persistent attitude of the defendants” to hold the referendum and the occupation of schools in the days leading up to it would inevitably “generate situations of violence and tension“. Maza gives every act of police violence on 1 October as an example of independentist violence. In Maza’s eyes, the defendants had “achieved their secessionist goal” by the “violent imposition of its objective“. Except they had not achieved their secessionist goal precisely because they were not prepared to violently impose their objective or “accept a scenario of extreme violence with dead people on the street” in the words of then President of Catalonia, Carles Puigdemont.

What Maza, Llarena, all the prosecution counsels and most Spanish citizens conveniently choose to ignore is the fact that, ultimately, the 40,000-strong crowd outside the Ministry of Finance did not stop the judicial police performing its duties on 20 September and more than two million voters on 1 October did not respond violently despite more than one thousand of their fellow citizens being injured by Spanish police officers. Had the assembled crowds acted like real rebels on either occasion, there would have been carnage: 40,000 demonstrators against a handful of police; 2 million voters against 10,000 police officers.

Demonstrators and voters alike – the supposed “rebels” – heeded the warnings of their political and civil leaders. Coup d’états do not usually enjoy the support of more than two million rebels and fail. Most coup d’états are military rebellions and depend not on popular support, but on the number of military rebels, the firepower at their disposal and the support of foreign governments. In fact, and rather ironically, the Spanish State is currently promoting just such a coup d’état on foreign soil.

The Public Prosecution

Judge Llarena and the Public Prosecutors in the trial have deviated little from Maza’s original hypothesis, however difficult it is prove without there having been tangible violence committed by, or on behalf of the accused. In Llarena’s rejection of Joaquim Forn‘s appeal to be released in February, 2018, he admits that this is the case, but goes on to stretch the definition as far as he can.

It is true that there is no proof that the appellant participated personally in the execution of specific violent acts. Neither is there proof that he gave direct orders in this respect. Supreme Court rejection of appeal for release by Joaquim Forn, 02/02/2018

The prosecution thesis revolves around the idea that, by encouraging people to demonstrate or vote, political and civil leaders were responsible for any violence that occurred when the police attempted to break up those demonstrations or the referendum itself. Public Prosecutor Javier Zaragoza faithfully reproduced Maza and Llarena’s reasoning in his summing up:

Mr Forn, Mr Junqueras and the then president of the Generalitat were informed that they should call off the referendum, not only because it was illegal but also because of the very high likelihood that violent incidents would occur. Public Prosecutor Javier Zaragoza in his closing statements

In that situation, it was predictable and highly probable that confrontations would occur involving violence. Supreme Court rejection of appeal for release by Joaquim Forn, 02/02/2018

Supreme Court rejection of appeal for release by Joaquim Forn, 02/02/2018

The importance of distending the legal definitions to cover the events of 20 September and 1 October are clear in Llarena’s linguistic acrobatics. In his committal for trial of 21 March, 2018, he again attempted to justify the charge of rebellion and explicitly referenced, and criticised, López Garrido’s inclusion of the word “violently” in preference to the phrase, “in open hostility“:

Our legislator, by including in the description of the offence the adverb that conditions the action (violently), avoids incorporating in the offence the noun which is suggested. He is acting violently whomever acts in a violent way, which is not exactly the same as acting with violence. Supreme Court committal for trial 21/03/2018

Potential violence and intimidation

He admits that jurisprudence characterises violence “by its physical nature, its personal manifestation” and this “requires the use of force for real and present damage, in clear contrast to intimidation“. He argues that the 20 September demonstration in front of the Ministry of Finance fulfils “all the requirements that have been identified for a violent act, and even for violence“.

Throughout the trial the prosecution has insisted on the existence of violence on the part of independentists, without being able to point to anything but a handful of low-level isolated incidents, while at the same time arguing that it is not necessary to do so, that the “potential for violence” and an atmosphere of “intimidation” are sufficient. The confusion in the prosecution arguments led Zaragoza to coin a new concept – “passive violence” – which he then himself rejects as “untenable“.

Public Prosecutor Javier Zaragoza discusses his concept of “passive violence”

Again he is borrowing from the wrong section of the current penal code or obsolete editions. “Intimidation” is dealt with in relation to many offences, among which are felonies against the Crown – which include the murder, kidnapping, assault or coercion of members of the royal family – and felonies against the institutions of the State, involving demonstrations or attempts to enter those institutions. The concepts are not to be found in the sections covering rebellion, or sedition for that matter, and the punishments considered are negligible compared to those of rebellion.

At times, Zaragoza seemed more concerned with rebutting the widespread criticism of Special Case 20907/2017 than summing up the prosecution’s case. While explaining why a state of siege was not declared during September/October, 2017, he explained that the violence in Catalonia did not justify it. “For rebellion, neither serious violence nor arms have to be used“, he said, despite its being one of the most serious offences in the criminal code.

Coups d’état and the postmodern putsch

The use of the phrase “coup d’état” to describe the events of autumn 2017 in Catalonia has become a stock-in-trade of the Spanish academics, unionist politicians and mainstream media in the past twenty months and is repeated ad nauseam by regular Spanish nationalists. It was still surprising to hear, however, the empty rhetoric of the “postmodern putsch” from a Public Prosecutor in a closing statement.

Zaragoza cites an interpretation of the word “coup d’état” given by Austrian jurist and philosopher, Hans Kelsen, in his Pure Theory of Law, to support his argument. This is neither the standard RAE definition used to redraft the 1995 rebellion law nor what most Spanish citizens understand by the term. Zaragoza does not mention the military coup launched in Spain on 17 and 18 July, 1936, which resulted in a civil war that lasted until 1939. Nor does he make a comparison between Franco and Adolf Hitler. Furthermore, it is a matter of curious coincidence that on the same day as Javier Zaragoza was regaling the Supreme Court with his closing arguments, another chamber was postponing the removal of General Francisco Franco‘s remains from the Valley of the Fallen and referring to the Nationalist rebel leader as the legitimate Head of State of Spain from the 1 October, 1936, simultaneously delegitimising the democratically elected Republican government. Catalan independentists have had to tolerate constant comparisons with Nazis over the past two years. It is part of the so-called “Constitutionalist” narrative being peddled around the world by Josep Borrell‘s Ministry of Foreign Affairs and its cohorts.

As if this were not enough to shock observers of proceedings in Spain’s Supreme Court, fellow Public Prosecutor Fidel Cadena went on to develop the argument that physical violence is not necessary for rebellion to exist, simply intimidation, by repeating Lieutenant-Colonel Antonio Tejero‘s defence in his trial for another military coup d’état – the armed uprising of 23 February, 1981, known as “23-F“:

The existence of physical violence is limited to the blocking and shaking of General Gutiérrez Mellado, may he rest in peace, so it would be debatable whether even this military uprising on 23-F constituted rebellion. Public Prosecutor Fidel Cadena on 23-F

Prosecutor Fidel Cadena argues that it is debatable whether the 23-F coup d’état constituted rebellion

The idea that what happened in Catalonia in September and October, 2017, can be equated with what happened on 23 February, 1981, is a piece of political propaganda that we heard repeatedly during the 28 April election campaign this year from the most extreme of the Spanish nationalist candidates. 23-F involved military rebels, armed police and tanks. The prosecutions’ closing statements included some pretty demented stuff by anyone’s standards.

Lieutenant-Colonel Antonio Tejero and 200 armed Civil Guard officers storm the Spanish Congress of Deputies on 23 February, 1981

One thing that the 1-O and 23-F do have in common is the subsequent appearance on Spanish television of the Kings of Spain: Juan Carlos I for 23-F and his son, Felipe VI, for 1-O.

Closing statements

The Public Prosecutors’ closing statements were generally vague, highly political and paid little attention to the letter of the law. Not only have prosecution counsels completely failed to show that Catalan leaders directed a violent uprising, they have actually failed to show that a violent uprising took place at all. It seemed that they wanted to have their cake and eat it too. By the time they finished, it was unclear precisely when and where this supposed coup d’état, this violent uprising, this violent rebellion had actually taken place.

From a Spanish unionist perspective, the rebellion law is not fit for purpose, and the purpose has been to stop independentism. This imperfect fit between the 1995 penal code and the events in Catalonia in September and October, 2017, has not escaped the attention of the Prime Minister of Spain, Pedro Sánchez. In his opinion, the law is designed for military coups and “does not correspond to the type of rebellion suffered in recent months“.

Special Case 20907/2017 has been a clear case of The Emperor’s New Clothes, except in this Spanish version, the Emperor’s clothes are old and threadbare, a hangover from 1973, 1944, 1932, 1928, 1870, 1848, or even 1822. It might be said that Spain is an advanced and mature democracy where the rule of law is sacrosanct, but the question is: which law? It is the “by cunning or by any other means” element of the “Catalan process“, the astuteness, those elements which disappeared from the penal code. Catalan independentist leaders were as conscious of the letter of the law as the Spanish authorities and judiciary are now. It has always a problem for the latter. Civil and political chiefs and officials made the red lines clear, and each and every independentist was aware of them from the beginning.

The blatant truth is that, for better or worse, Catalan independentism chose a peaceful path and when it came to the moment, or moments of truth in September/October 2017, independentist leaders were not prepared to culminate the process: unprepared for violence, without an armed forced and under threat from the Spanish armed forces, they took a step back. Without clear political or civil leadership, the people were also unready to culminate the same.





As counsel for Oriol Junqueras and Raúl Romeva, Andreu Van den Eynde, pointed out in his closing arguments: “You’re confusing disobedience with rebellion“.