Catalan Separatists Convicted for Sedition: Vindication for German Courts and Dual Criminality?

[Nicolás Zambrana-Tévar is Professor of Law at KIMEP University in Almaty, Kazakhstan, where he specializes in International Law.]

The trial of the century

What has been labelled as the most crucial trial of Spanish democracy has ended with convictions for several members of the autonomous Government of Catalonia (Spain) and other separatist leaders for sedition, contempt of court and/or embezzlement. However, after having spent two years in jail during a long trial, they will be granted furloughs and parole almost immediately. Many consider that the Spanish Supreme Court has issued a very lenient sentence, convicting for sedition instead of rebellion, the original indictment requested by the prosecution. 

It is important to remember that the Oberlandesgericht of Schleswig-Holstein refused to extradite former Catalan president Carles Puigdemont for rebellion, in the understanding that the facts described in the European Arrest Warrant (EAW) issued by the Spanish investigative judge in 2017 did not qualify for either the crime of “high treason” (§81 StGB) or “disruption of civil order” (§125 StGB) under German law, so as to satisfy the double criminality principle. Puigdemont is still at large, presently in Belgium.

In almost five hundred pages, the Spanish Supreme Court has analysed in detail the separatist process and the episodes of violence which took place in Catalonia in September and October of 2017. Then, the Catalan Government had called for an independence referendum which the Spanish Constitutional Court had repeatedly declared illegal. However, the Catalan Government decided to go forward, which led to violent clashes with the police prior to and on the day of the referendum, immediately followed by a declaration of independence which was only subscribed by separatist political parties. In this regard, it is relevant to highlight how the European Court of Human Rights recently heard a case involving such decisions of the Spanish Constitutional Court, finding that the refusal of Catalan authorities to comply with them was not justified.

Sedition but not rebellion

Art. 472 of the Spanish Criminal Code establishes that rebels are those who “violently and publicly rise up… 5. To declare the independence of any part of the national territory”. The Court understands that although the abovementioned violence can be attributed to the defendants, it was not of the type required to actually threaten the Spanish constitutional order, nor was it the intention of the defendants to make use of that violence for something other than to force the Spanish central Government to negotiate (page 268 of the sentence). 

The Spanish court understands that the Catalan Government had put in place a parallel legal system meant to progressively disconnect the Catalan region from the rest of Spain and had in this and in other ways convinced a significant part of the Catalan population that the Spanish state and above all, the Spanish judiciary, was no longer operative in Catalonia. Several high officials of the Catalan autonomous police who testified during the trial revealed that they had expressly warned their bosses at the Catalan Government that episodes of extreme violence could be expected on the day of the referendum. Not only were they instructed not to prevent the referendum in application of the previous decisions of the Constitutional court but they were asked to facilitate the voting process and citizens in general were repeatedly encouraged to go to the polling places. Furthermore, evidence was provided that President Puigdemont, on being informed of the probability of violence, openly manifested that if there was such violence he would declare independence (page 306). Therefore, the court sees that the accused not only foresaw the acts of violence but assumed and incited them in different ways, as part of their strategy to pressure the Madrid Government.

However, the court also believes that the Catalan Government knew that such a referendum, completely devoid of the necessary guarantees, would never be taken seriously by the international community, so the declaration of independence would actually be a dead letter. In fact, Puigdemont suspended the effects of the declaration of independence seconds after issuing it, in order to “commence a dialogue” with the Spanish Government (page 313). The Spanish court believes that once the Spanish Government suspended the autonomy of the Catalan Region via art. 155 of the Spanish Constitution and assumed itself the control of this autonomous community for several months and after several separatist leaders were arrested and others had fled, any possible effects of the declaration of independence would simply disappear.

On the other hand, the Spanish court did see that the attribution of violence to the accused qualified for the crime of sedition. Art. 544 of the Spanish Criminal Code punishes those who “public[ly] and tumultuously rise up to prevent, by force or outside the legal channels, application of the laws, or any authority, official corporation or public officer from lawful exercise of the duties thereof”. Several leaders of various separatist organisations who were physically at the head of the masses who forcefully stopped court officers and the police from carrying out investigations and other activities meant to call off the referendum were also accused but so were several members of the Catalan Government because, for the abovementioned reasons, those acts of violence could be attributed to them.

The German court refusal to extradite President Puigdemont

The reasoning of the German Oberlandesgericht seems, in some respects, in line with that of the Spanish Supreme Court. The German court saw that the violence described in the EAW was not of the kind necessary to overthrow the Spanish government. The German court believed that the German Startbahn West case was in certain aspects identical to the Catalan one although, there, the violent demonstrators had simply tried to prevent the enlargement of an airport near Frankfurt in 1981. Still, the accused in the Startbahn case, Alexander Schubart, was indeed convicted for inciting to violence. The German extradition court further believed that the violence in Catalonia had to be directly attributed to the autonomous groups who took part in it and there was no evidence at that point that Puigdemont was seeking Catalonia’s independence other than by democratic and legal means. Not only could Puigdemont not be accused of rebellion (or rather, high treason) but only those who actually participated in the riots could be accused of crimes against public order. 

Art. 2.4 of the EU Framework Decision of 2002 on the EAW establishes that:

For offences other than those covered by paragraph 2 [for which automatic extradition is granted], surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.

A literal reading of this provision may be understood in the sense that the court of the executing state may only verify that the accused has committed any crime whatsoever under the law of the executing state, not necessarily the one understood as equivalent to the offense for which the accused is being tried in the issuing state. 

However, the European Court of Justice in the Grundza case insisted on the application of the double criminality principle. To this end, the two offences – that of the accusation in the issuing state and that chosen by the authorities in the executing state – had to be “similarly classified” but did “not need to be identical in the two Member States concerned”. The principle of double criminality, thus, “must be interpreted strictly in order to limit cases of non-recognition”. 

The German and the Belgian court, which had also refused to extradite other separatist leaders, were heavily criticised by leading Spanish criminal lawyers as well as by the Supreme Court itself. However, a centre-left association of Spanish judges had manifested that the accusation of rebellion was wrong and another association of criminal law professorsbelieved that the acts of the Catalan Government constituted neither rebellion nor sedition. The Spanish Socialist Government itself, which was represented in the proceedings through the Abogacía del Estado, had accused the defendants of sedition but not rebellion, in what some saw as a concession to Catalan separatist parties, which had permitted Pedro Sánchez to become President after a motion of no confidence against former president Mariano Rajoy in June of 2018. 

What the future holds for President Puigdemont

The Spanish investigative judge rejected the extradition granted by the German court for the crime of embezzlement – but not for rebellion – but he has now issued a new EAW in the belief that the sentence against Puigdemont’s comrades for the same deeds he is accused of might strengthen the new request before the authorities of Belgium, where Puigdemont now resides. The Belgian court has not pronounced itself yet. Puigdemont’s extradition may probably depend, among other things, on the allegations made by his lawyers that he enjoys immunity as a member of the European Parliament after having been elected last May, although he never came back to Spain to fulfil the necessary formalities under Spanish electoral laws, because he would have immediately been arrested. Nevertheless, several of the accused, who were in jail at the time, were momentarily released for the purpose of fulfilling those same formalities.

The trial against separatists is therefore far from being over. Not only must Puigdemont be tried sometime in the future but the other accused have repeatedly announced applications before the Spanish Constitutional Court and the European Court of Human Rights for violations of several constitutional and human rights, for which the Spanish Supreme Court decision has apparently prepared itself well.