Belgium Looks at Spanish Justice

Carles Puigdemont and the four ministers: Toni Comin, Meritxell Serret, Clara Ponsati, and Lluis Puig (pictured at right) testified today before a Belgian judge who will decide whether or not to agree to the extradition of the five to the Spanish justice system.

The defense will argue that Spanish justice wants to try the five for their political ideas and decisions.  They say that Spain is not charging them for individual crimes, but for political decisions that were well known to everyone and for which they were democratically elected.

According to the lawyers, the Spanish National Court has delivered five arrest warrants with identical offenses for the five - disobedience, rebellion, sedition and embezzlement of public funds - although it does not provide details of how they were committed or make any distinction between the five accused, although they held different responsibilities as members of the government.  One lawyer says that Spain does not specify what actions their clients carried out specifically for committing these crimes.

The lawyers, moreover, specifically reject that Puigdemont and the four ministers, sacked by an illegal application of article 155 of the Constitution that the Spanish government activated, could be charged with any criminal offense derived from the exercise of their public function related to the voting on 1 October. According to the Belgian press, lawyers will defend before the judge that political action, if it is an offense, is not a criminal offense, which is why extradition should be denied.  The attorneys say that criminal law has nothing to do with it. It has to do with acts related to constitutional or administrative law. The European arrest warrant is political and manifestly abusive, they say.

According to Belgian law, the Belgian judge may reject a European arrest warrant if it is shown that the interested parties will be tried for their political convictions in the country that claims them. But the defense strategy goes even further: lawyers will argue that the crimes of sedition and rebellion do not exist as such in the Criminal Code of Belgium. If the offenses for which they are charged are not classified as criminal offenses in both countries-, the European arrest warrant can be rejected for that reason.

Lawyer and Belgian law expert Denis Bosquet assures that, unlike Spain, the Belgian justice system "is absolutely independent" of the political branch. "The first difference between Spain and Belgium is that Spanish justice has put the ministers who remained there to appear in the Spanish court in jail. And they are not bandits. They are people who, by virtue of a political mandate, have organized a referendum ". The Belgian lawyer claims to be "surprised" because the Spanish government and the king "have expressed themselves so freely and critically" about everything that has to do with the 1 October referendum vote and its judicialization. "I was very shocked to see Philip VI's speech because he talked about irresponsible behavior of politicians. If the Belgian king made such a comment, he would have a very serious problem. In addition, in Belgium such intervention of the justice system would be inconceivable in the face of a political problem."

The ministers who appeared before the Spanish judge were
all sent to prison without bail to await trial

Belgian law could also refuse extradition if it is shown that those affected will be tried for their political beliefs or if it is proven that their fundamental rights can be violated in Spain. The Belgian prosecutor's office may have doubts in this regard.  In the middle of the week he asked the National Court for additional information regarding the extradition demand that affects Puigdemont and four advisers. The Belgian prosecutor was concerned about the conditions of the prison where the five Catalan politicians would be housed if Belgium approved the extradition and he asked Judge Carmen Lamela for information about the Spanish penitentiary system. In particular, he asked what prison the members of the Government would enter, what kind of cell they would be held in - he was even interested in the square meters - and how would their day to day would be in jail.

The Belgian prosecutor's office was also interested in procedural issues, such as what will happen when the president and the ministers arrived in Madrid, if Belgium accepts to approved the extradition, and which court will judge them. Finally, Belgian law asked for clarification about the information provided by Lamela (the Spanish judge in this case) in her account of alleged crimes committed by members of the Government, such as dates and details of the 1 October referendum vote.

Spanish Interior Minister Juan Ignacio Zoido said yesterday evening that the Spanish National Court had already sent all the additional information to Brussels. "Nobody in Europe will give us lessons on the exemplary rule of law," said an offended and arrogant Zoido.

Although it is not in their defense briefs, perhaps Zoido’s words will also be taken into consideration by the Belgian judge, who might think that asking for information in order to fairly view a pending case is simply part of his job and be put off by the exhibition of Spanish arrogance on the part of the Interior Minister, the person responsible for Spanish justice.

The judge heard the allegations of the Spanish prosecutor today.  The proceedings for the defense have been adjourned until 4 December after which the magistrate will have one or two weeks to study all the documentation provided by the defense of the members of the Government and issue a resolution. If he rejects the extradition warrant, the Belgian prosecutor's office – but in no case the Spanish - could appeal the decision if he deems it necessary. In the event that the judge gives a green light to extradition, the five members of the Government will be able to appeal twice.

According to data collected by the European Commission, Belgium arrested 74 people for arrest warrants issued by other member states, 17 of which - one in five - were not extradited by decision of Belgian law.

The fact that the two civil leaders and the eight ministers who presented themselves before the Spanish judge are all in jail awaiting trial while the Catalan President and other four ministers who presented themselves to the Belgian judge are free while awaiting their extradition hearing says a lot about the difference between Spanish justice and Belgian justice.  If Puigdemont and his ministers had not gone to Belgium and involved the Belgian justice system in this case, they would all be in jail in Spain, and the rest of the world would not know much about it.  Now, everyone is watching.

Comparing Apples to Apples

When politicians speak of a silent majority, beware.  Pay attention and see if you can find evidence of that majority.  Where are they hiding?  In the case of the PP in Catalonia, their silent majority never receives as much as 9% of the vote.  And they are not hiding, they simply do not exist.  The silent majority who would vote for PP, who like the fact that their elected government has been taken over and their legitimately elected leaders are in jail does not exist.  If you believe in it, you probably also believe in the great pumpkin.

Spanish President Rajoy is here in Barcelona today stumping for his party (the PP) in pre-campaign mode leading up to the elections he called for 21 December.  According to Spanish law, it was illegal for him to call elections.  That is the prerogative only of the President of the Generalitat (the Catalan government).  But he did it anyway and no one in the EU or anywhere else bats an eye because he says it is legal.  It’s reminiscent of Trump who says his Muslim travel ban is not a Muslim travel.  There are lots of people who believe that too.  But fortunately for Americans, they are not the ones in the judiciary.  Spain does not have that safeguard.

In his speech today Rajoy claimed the elections would be “clean, fully democratic,” as well as “with transparency in their development and scrutiny,” unlike, he said, the illegal referendum that had no legal guarantees.

But his elections do not replace the referendum.  They replace the clean, democratic elections with all legal guarantees that took place in Catalonia on 27 September 2015, when the current (or recently eradicated) Catalan parliament was elected.  That parliament, the elected President, all the ministers, have been thrown out, told not to return to their elected posts or face charges of disobedience.  Most of that government is in prison and the rest are in exile in Belgium.

The referendum, that, according to international law, was not illegal, did not have the legal guarantees because Rajoy destroyed those guarantees.  It could have and would have been perfectly clean and fully democratic if left to be carried out as planned.

So if Rajoy wants to talk about clean, fully democratic elections, let him compare the one he has called with the one he obliterated.  Let him compare apples with apples.

Brussels Examines Spanish Justice

Self-determination is legal under international law and yet Spain keeps talking about the illegal Catalan referendum on independence, and world leaders, the EU, and most of the international press repeats that phrase like a mantra.

If the referendum really was illegal, will the more than 2 million people who managed, in spite of thousands of Spanish police swinging clubs, shooting rubber bullets (that really is illegal in Catalonia) and dragging women by the hair to keep them from voting, all be arrested and tried?  For what?  For sedition?  Rebellion?  For voting?

So far the 2,262,425 people who managed to vote can relax.  The Spanish are not coming after them with warrants.  Not yet.  But 712 Catalan mayors are being charged with disobedience in connection to the referendum, having made their local polling stations available for the vote on 1 October.  The presidents of the two large grassroots organizations that, for the last six years, have organized the massive, peaceful demonstrations, that in the beginning were for the right to vote and that eventually evolved into pro-independence demonstrations (the public becoming more fed up each year with the repressive actions on the part of the Spanish government), they have been imprisoned without bail, pending trial – some day -- for sedition.   The charges against them made by the attorney general were received and accepted by a judge of the Audiencia Nacional, even though the charge of sedition does not fall under the jurisdiction of that court but must be heard by a higher court. 

700 mayors and 2 grassroots leaders are not enough.   The Spanish have also come after the legally elected Catalan government – the government that the citizens of Catalonia voted for two years ago.  Eight members are already in prison, without bail, pending trial for sedition, rebellion, and misuse of public funds (for buying voting boxes and printing ballots).  They were given less than two days’ notice of their hearing and their request for an extension, to provide time to prepare a defense, was denied by the judge of the Audiencia Nacional, the same judge who sent the two grassroots leaders to prison without bail before any trial.  After the hearing the eight were hauled off in multiple police vans with their hands handcuffed behind their backs, without protection of seatbelts, subjected to various big and small bits of humiliation on the part of the Spanish police.

There are six more, including the president of the Catalan parliament, who also were given less than two days’ notice but who, upon petition, were given additional time to prepare their defense.  Because of their political standing, they are being investigated by a different judge in a different court – the Audiencia Suprem.  Everyone is waiting to see if they too will be sent off to prison without bail while awaiting trial.

The list of Catalan criminals who tried to follow through on their election platform of holding a referendum, a referendum that is legal under international law is still longer.  Catalan President Puigdemont is in Brussels with four of his ministers.  There they are waiting to see if the order for arrest and return to Spain will be honored by the Belgian justice system.

When Puigdemont first appeared in Belgium on Monday, 30 October, after the Catalan parliament had declared independence on Friday, people were surprised.  You could say they were very surprised.  People here didn’t understand at first why he had gone, and neither did the press.  But he came on television to explain and then things started to unfold.

For the most part, the international press ridiculed him.  One paper said he had brought his circus to Brussels.  Others were only just slightly less rude.  Puigdemont speaks five languages: Catalan, Spanish, French, English, and Romanian; he tends to make his public addresses meant for the international press and audience in one or more of the first four, but for the most part, it seems that international journalists don’t understand any of them.  Definitely the Spain correspondent for the New York Times always manages to misrepresent what Puigdemont says no matter what language he says it in.

Puigdemont left Catalonia because there was a real probability of violence against the public if he had stayed.  If he and his government had insisted on entering their offices and carrying out their business, the police would have come to remove them, other officials and civil servants and members of the public would probably have tried to protect them from being removed (like thousands of anonymous people tried to protect voting boxes from Spanish police on 1 October), and Spain would have had the perfect excuse to use far more violence than they had on October 1.

President Puigdemont’s exile in Brussels (together with four of his ministers) has been ridiculed, and those frustrated Spanish authorities and members of political parties who would like to see him in jail have said he is frightened, self-serving, evading justice, and betraying his comrades who remained in Spain to face the music.

However, Puigdemont and all his ministers had discussed the situation and each decided for himself what he would do.  Some decided to remain in Spain, the rest decided to go to Belgium.  This was an agreed upon strategy and it was a good one.

Those in Belgium would remain free, at least initially, to tell the world what is happening.  And they are doing that.  Puigdemont’s first press conference attracted more media representatives than any press conference he has had while in Catalonia.  People are interested.  The world wants to know.  And at least for now, he is free to explain. 

And explain he does.  No longer feeling constricted by diplomatic niceties, he now explains how it is that the Spanish state’s actions are fascist.  Dissolving a legitimately government because you don’t like their political opinion and putting them in prison is fascism.  Taking over all aspects of an elected government is fascism.  The political party that governs Spain is a political party that wins less than 9% of the vote in Catalonia.  Catalonia now has lost the government it voted for and has one imposed on it that represents a tiny minority of Catalan voters.

But maybe most important of all is not what Puigdemont is telling the world, since much of the international press, although they talk about it a lot, they don’t actually tell their audience much.  What is important is what Puigdemont’s presence in Brussels demonstrates.

In Spain, elected government officials were given less than 24-hour notice to appear in court, hardly time enough to make personal preparations or prepare a defense for the preliminary hearing.  They were sent from the preliminary hearing to prison, handcuffed and humiliated along the way.

On the other hand, Puigdemont and the four other cabinet members, who knew, as we all did, that the arrest and return order had been sent to the Belgian police, made contact with the Belgian attorney general through their lawyer and made an agreement that the five would present themselves to the police without having to suffer the indignity of the police having to come and arrest them.  By the end of the day, a judge was appointed to hear their statements and that judge, a Belgian judge, decided that they were free to leave the courtroom but had to remain in Belgium, inform the court of their address in Belgium, and make themselves available to the court when called.  Not only was there no preventive prison, there wasn’t even any bail set.

Without having to say anything, this shows the difference between the way the Spanish and the Belgian judicial systems function in regard to the same charges.  It raises the question of an element of bias and revenge in one case, contrasted with purely legal considerations in the other.

Puigdemont knew very well what he was doing when he went to Brussels.  He is showing the world what kind of government Spain has, what kind of judicial system Spain has.  The world is beginning to recognize this and more and more voices are speaking up to condemn Spanish actions.  It is only the EU officials, all of whom are members of versions of the same political party as Rajoy, who continue to support him. 

Puigdemont was brilliant to take the issue of Catalan independence and Spanish justice to Brussels.  He said at the beginning that he did not believe he would get justice in Spain.  And now he has put that accusation before the Belgian courts.  Now a Belgian judge will review the Spanish accusation and Puigdemont’s defense, which includes legal points as well as the methods employed in Spanish courts and the treatment that the accused receive.  If the Belgian judge decides, in the end, not to accept the order to return Puigdemont and the others to Spain, what a blow that will be to the claim that Spanish justice is fair and that it is not in the pocket of the government.

If he had remained in Spain he would be in prison by now.  And from prison he wouldn’t be able to speak to the press and keep the issue of Catalonia before the eyes of the world.  It is still possible that Puigdemont and the others will face trial in a Spanish court.  If any or all of them are tried and convicted, those convictions would first have to be appealed until it reached the highest Spanish court.  Only then could it be taken to the World Court, and that could take as much as ten years.  In his move to Brussels, his appeal to an international court, although not the Hague, was achieved immediately.  People who never heard of Catalonia six weeks ago are paying attention, and the world is watching.

Banging Pots Is Not Violence

Spanish leaders never tire of talking about the rule of law and the constitution.  They insist that the Catalan referendum was illegal.  Is that so?  My understanding is that the Spanish constitution talks about the indivisibility of Spain, but there is nothing that says that referendums are not allowed, and in fact, they have been used throughout the country for various issues. 

Democracy is defined as government by the people.  The people exercise their democratic rights by voting to elect representatives or voting on referendums to give their opinions on specific issues.  If it is true, as those in Madrid say, that a referendum on independence is illegal, then Spain needs to consider that international law contradicts and overrules that.  A vote based on the right of self-determination is protected in the United Nations Charter and the International Covenant on Civil and Political Rights, of which Spain is a signatory, and is a right of all peoples.  If the Spanish government doesn’t know this, surely the EU does.

But you don’t need to study the Spanish constitution or international laws and treaties to understand that voting is a basic right in any democracy.  It is the only concrete way that citizens can choose their leaders and tell them what they want them to do.  Any country that doesn't allow it doesn't provide democratic rights to its citizens.

In the recent crisis in Catalonia, two civil society leaders were charged with sedition and sent to prison, without bail, to await a trial that could take years to happen.  These are the two Jordis, Jordi Sanchez, leader of the Assemblea Nacional Catalana and Jordi Cuixart, leader of Omnium Cultural.  These two organizations have been the driving and organizing force behind the massive pro-right-to-decide, pro-independence demonstrations that have been taking place over the last six years.  Both Jordis are known pacifists who have always in every public appearance, called for peaceful, civil demonstrations, and the Catalans have always taken heed and done exactly that.  Catalans (and others) consider them to be political prisoners as they have done nothing illegal, have never engaged in or advocated violence, and are being charged and being held without bail before trial, for their beliefs.

The two Jordis are the only Catalans in jail so far.  But there are hundreds of others who have been charged and called to testify before judges, in advance of possible indictments.  These include dozens of government officials, 700 majors of towns throughout Catalonia who made the usual polling places in their towns available for the referendum vote on 1 October, and several citizens, some of whom have been charged with violence for having defended themselves from police attacking them with clubs.  These people were unarmed.  One threw a chair, causing a Spanish police agent to fall.

There are the higher level government leaders, the former President of the Generalitat and former ministers who have already been indicted for various crimes related to the organization of an earlier referendum – an unofficial “consultation” that had no legal consequences but was a way of allowing citizens to express their opinion on whether or not they wanted independence.  It was basically an opinion poll.  This was held in November 2015 and was also deemed illegal, thus the indictments.

Now charges have been filed against President of the Generalitat Puigdemont, President of the Catalan Parliament Carme Forcadell, all the ministers and others from the government and parliament.  They are being charged with sedition and rebellion, never mind that rebellion is defined as employing violence and the only violence employed so far was that of the Spanish police on 1 October (the Spanish government says there is no reason to investigate that violence that resulted in over 1000 citizens being injured and treated by the public health service because the police were just doing their job).  Given that there has never been any violence within the independence movement or on the part of the government, the attorney general had written in his charges that violence could have resulted or could result in the future.  The charge of rebellion is the most serious of all the charges and can carry a penalty of 30 years in prison.  It is hard to understand how people could be so charged on the possibility of something that didn’t happen but might have. 

When the current, legitimate Catalan government was elected in September 2015, they ran on the platform of holding a referendum, setting up the mechanisms for a new state, and declaring independence if the pro-independence vote won in the referendum.  This platform was filed, as required, with the elections supervisory committee in Madrid when the candidacy was set up.  Puigdemont, in his press conference today, asked how was it that now people could be charged with such serious charges when they were completing what their platform had stated and what the people had voted for?

It is likely, if not certain, that if Puigdemont were to present himself before the judge, as he has been ordered to do at the end of this week, he will end up like the two Jordis – instead of testifying and going home, he’d be sent directly to jail.  His bail has been set at 6 million euros.  Before becoming president two years ago, Puigdemont was a journalist and mayor of Girona.  He’s not Donald Trump and hasn’t made a career of political corruption.  How is he supposed to come up with 6 million euros?

Rajoy has imposed elections to be held on 21 December.  Legally, only the President of the Generalitat can call for elections, but Rajoy is using an interpretation of the constitution in invoking Article 155 that goes far beyond what is actually allowed in many aspects of the Madrid takeover, not just the pending elections.  No attorney general or Spanish judge has called him on it, and none will.

Catalans were worried that the pro-independence parties would be deemed illegal and not allowed to run.  So far that hasn’t happened and I don’t think it will because Madrid has another way of dealing with the problem of the pro-unity parties losing.  Today, the Vice President of the Spanish senate has said that if pro-independence parties win the election, they will impose Article 155, the government takeover, again. 

In a shrewd move, on Monday, Puigdemont went to Brussels, the capital of Europe, with seven of his cabinet members, four women and three men.  On Tuesday he held a press conference that those of the press club where it was held said never had so many cameras in the room.  When the press conference began, it went live around the world.

He spoke in four different languages and told the world that he and his cabinet were not seeking asylum; they were there because they weren’t safe in Spain; that they were peaceful people and didn’t want to achieve independence with violence; that the road ahead was long; that they would participate in the elections called for 21 December; and that they were in the European capital so that Europe would react to the situation.

Puigdemont had time to respond to five questions from the press: Euronews, BBC, Sky News, TV3 (Catalan television), and Belgian television.  The Spanish media were pissed that they didn’t get a chance to put forward a question.  They were also pissed that most of Puigdemont’s talk was not in Castilian (could it be that the Spanish journalists did not understand any of the other three languages?).  Puigdemont had delivered his talk in Catalan, Castilian, English, and French – most of it was in French.  “Vergüenza,” they said afterwards, referring to Puigdemont’s polyglot performance and not their own ignorance.

After Puigdemont finished and they were leaving, a Catalan who works for one of the Catalan MP’s went offside with some of the press and suggested to them that they read the charges of rebellion against the Catalan government.  What they cite as violence is the banging of pots that people do on their balconies when they protest.

Puigdemont and the Catalans may not win their struggle for independence by convincing the public of their cause yet it doesn’t hurt to have the public on your side.  No one who pays attention can be very impressed with the lies told publically on Spanish and international television (including the recent BBC interview with Foreign Affairs Minister Dastis who said the videos of the police violence on 1 October were fake news).  Spaniards can be fooled, but the BBC had its own cameras and crews there and knew better.  

Puigdemont doesn’t tell lies.  And he chooses his audience strategically.  Going to Brussels, the capital of the European Union, was good strategy.  Europe has chosen to ignore the police violence, the abuse of civil and human rights, the cessation of a democratically elected parliament and government, the incarceration of political prisoners, and the unconstitutional direct rule imposed by Madrid. (If anyone in Europe wanted to read the Spanish constitution they would see that what Rajoy is doing goes far beyond what is constitutionally legal.) 

The most important thing that Puigdemont said was a question.  Will Madrid recognize the results of the elections they have called for on 21 December?  If the pro-independence parties win another majority, will that vote be respected?  Yesterday the Vice President of the Spanish senate said that if pro-independence parties win, Spain will again impose direct rule.

Puigdemont, with this trip to Brussels, has brought the problem to Europe, physically, laid it at its feet, and told then to react.