For many weeks the situation in Catalonia had been extremely delicate. The Catalan government took the nuclear option when it issued a unilateral declaration of independence. For the Spanish government the retaliation was simple: using the constitution to take direct control of some competences of the Catalan government and parliament – usually devolved from Madrid. Cold war logic might have suggested that the potential reciprocal damage that each party could inflict on the other would lead them to avoid using either nuclear option. But this did not happen. Keep weapons out of reach of children.
Now, the Catalan authorities who issued the unilateral declaration of independence face criminal charges in Spain – adding another layer of uncertainty and confusion.
The Spanish public prosecutor has filed a lawsuit before the Supreme Court and the Audiencia Nacional (a Spanish high court) against members of the former Catalan government and parliament. The charges are the crimes of rebellion, sedition and embezzlement.
Several Catalan parliamentarians have attended court in Madrid to hear the charges but ousted president Carles Puigdemont has not so far been among them. He is believed to be in Brussels. The president of the supreme court has warned that an arrest warrant could be issued to bring Puigdemont in.
The first two of the above mentioned charges are particularly important. They are the most politically charged matters. The offence of rebellion refers to the act of violently and publicly uprising with the aim of fully or partially repealing, suspending or amending the constitution, or of declaring independence on behalf of part of the national territory. The maximum punishment for this offence is 25 years in prison.
The unilateral declaration of independence of the Catalan Parliament is the core element of the claimed offence in this case. This was clearly a public uprising to declare independence for part of the territory.
The only question is whether this particular uprising could be described as “violent”. Whether or not this was an offence of rebellion hinges on that point. That’s why the Spanish public prosecutor also accused the former Catalan authorities of the offence of sedition. That refers to those individuals not covered by the felony of rebellion who rise up tumultuously to prevent the application of laws.
In case the courts consider that the unilateral declaration of independence did not exactly fit the requirements for the application of the felony of rebellion, it is very likely that they will consider that at least an offence of sedition took place. Those who commit sedition can be punished with up 15 years of imprisonment. This adds to the potential offence of embezzlement, punished with up to eight years of imprisonment and the temporary deprivation of the exercise of the right of passive suffrage – the right to stand as a candidate in elections.
All this will probably add more trauma to the trauma. The idea of independence has already polarised Catalan society to dramatic levels. The potential imprisonment of the former Catalan authorities might further fuel that division.
The trial might also play a prominent role in the Catalan elections to be held on December 21. The political framing of the judicial proceedings will be among the major topics for political discussion during the campaign, and it’s unclear whether the former Catalan authorities now facing charges will choose to stand as candidates in the elections. If they are found guilty by a court after they have been elected, they will automatically lose their seats in parliament.
All of these are major political issues, but ones that courts are not expected to take into account. The judicial logic, strictly speaking, is one of application of law to the case, ideally without regard to political considerations. And from a legal perspective it’s very difficult to argue that the unilateral declaration of independence did not involve any criminal offence – be it either rebellion or sedition. The shocking result is that we might soon see a former president of the Catalan government facing a jail sentence.