By the time Jordi Cuixart and Jordi Sànchez go on trial on February 12 they will have been in jail nearly 500 days.
The grassroots organizers for Catalonian independence will be tried by Spain’s Supreme Court on charges of rebellion and sedition, alongside 10 other defendants, including former Catalan vice-president Oriol Junqueras, several of his cabinet colleagues, and former Catalan parliamentary speaker Carme Forcadell. All are accused of defying the Spanish state in the fall of 2017 by mobilizing two million Catalans to vote in an unlawful referendum on secession from Spain which led to a unilateral declaration of independence by the region’s parliament.
Nine of those on trial face the sedition and rebellion charges, among the most serious crimes in the penal code. If found guilty, Junqueras could face a jail term of 25 years while Cuixart and Sànchez could receive sentences of up to 17 years.
For Spain’s judiciary and for many unionist Spaniards, this trial is the logical response to a rogue region’s outlaw actions—the restoration of law and order following a chaotic bid for independence. On Sunday, tens of thousands of people demonstrated in Madrid against Catalan independence, waving Spanish flags as they demanded a tougher stance on the issue from the Socialist government. For secessionist Catalans, however, the trial is a deeply unjust bit of political theater.
The only thing both sides can agree on is that this will be the most highly awaited and politically fraught legal process modern Spain has witnessed.
In mid-January, the pro-independence grassroots organization, Òmnium Cultural, announced an international campaign to discredit the upcoming trial. The media offensive, titled “Democracy in the dock,” (Juicio a la Democracia) advances the idea that the Spanish judiciary is deeply flawed, part of a state with flimsy democratic credentials.
“We should be bringing charges against the Spanish state because of this trial,” Catalan president Quim Torra said in January, calling the process “a farce that has been organized against the independence movement.”
For several years, Catalan nationalists have argued that Spanish democracy is skin-deep and that the legacy of the 1939-75 Francisco Franco dictatorship is alive and well in the country’s institutions.
Only a few years ago, such claims were rare: Spain’s economy thrived and its territorial structure—which gave 17 regions varying degrees of self-government—appeared to function effectively. But that started to change a decade ago, as the 2008-12 economic crisis eroded many of the country’s institutions, from its corruption-plagued political parties and royal family, to its mismanaged banks and under-resourced judiciary. Support for Catalan separatism, which until then had been relatively marginal, started to swell as the Spanish state’s weaknesses were exposed. The rigid response to this phenomenon by the then conservative government of Mariano Rajoy, which refused to negotiate Catalan nationalist demands, only fueled the discontent, culminating in 2017’s chaotic referendum. Spain catapulted to international headlines, shocking a world accustomed—understandably, although somewhat myopically, given twentieth-century history—to thinking of the country as stable.
Rajoy was ousted by a no-confidence vote last summer. But his decision to treat the Catalan crisis as a legal rather than political problem had far-reaching consequences. The onus has been on Spain’s courts ever since.
A particularly contentious aspect of the legal process has been the preventive custody of Cuixart, Sánchez, Junqueras, and six others, who have all waited in jail for a trial whose date was only announced days before it was due to begin. The Spanish authorities have argued that their incarceration was due to flight risk—seven Catalan leaders fled abroad after the referendum to Belgium, Scotland and Switzerland—and to prevent continued illegal activities. But the trial delays since then have made the measure look increasingly excessive.
Another controversial feature is the rebellion charge against nine defendants. Rebellion is legally defined as “rising up, violently and publicly” against the Spanish state— the last conviction followed an attempted coup d’état in 1981. The Catalan independence movement, despite its many faults, has been characterized by peaceful protest. There have been some violent incidents, such as police cars being vandalized or a well-known unionist journalist being punched while he was live on air, but these have been rare, and never linked to the movement’s leaders themselves.
Ironically, the most violent scenes of the independence push were caused by Spanish riot police on the day of the 2017 referendum. Targeting several of the improvised voting stations, they smashed windows and doors, dragging some voters away and beating others. The Spanish interior ministry has refused to probe the actions of its police officers on that day. Barcelona’s leftist city hall has brought a lawsuit against 33 of them.
The Spanish judiciary does have a history of overreaction. The Audiencia Nacional, a court dedicated to countering terrorism and organized crime, has in the last two years issued jail sentences against several hip-hop artists due to the content of their songs and social media accounts. Among them is Josep Miquel Arenas, a young rapper known as Valtònyc, who was given a three-and-a-half-year sentence for glorifying terrorism and insulting the monarchy in his angry, anti-establishment songs. Shortly before beginning his sentence last year Arenas fled to Belgium. The Spanish authorities are now trying to extradite him. Rapper Pablo Hasél was given a two-year jail sentence on similar charges last year, for the content of several tweets and the lyrics to one of his songs. The sentence was subsequently reduced to nine months on appeal.
Joaquim Bosch, a magistrate and outspoken critic of the Spanish justice system, has warned of “an obvious erosion of freedom of speech” in Spain. Jueces para la Democracia (Judges for Democracy), the progressive magistrates’ association he represents, argues that Spanish laws are too vague on issues of terrorism or hate speech, giving free rein to over-zealous investigators.
The recent spate of freedom of speech cases is grist to the mill of the Catalan independence movement, which runs a slick PR machine. Arenas, for example, has been photographed several times posing with former Catalan president Carles Puigdemont—who oversaw the 2017 independence referendum and fled to Belgium shortly afterward—since they both left Spain. In addition, there have been a handful of other cases which have cast in doubt the judiciary’s independence from political interference.
In November, the Supreme Court performed an unprecedented U-turn. Having recently ruled that banks, not customers, should pay a mortgage tax, the court changed its mind, drawing accusations that it had caved in to pressures from the country’s financial powers.
Weeks later, in a separate case, Supreme Court magistrate Manuel Marchena withdrew his candidacy to head up Spain’s judicial governing body. A leaked text message from a conservative senator had emerged, apparently gloating at the fact that Marchena’s appointment would allow the right-wing Popular Party to control the court “from behind the scenes.” Marchena will nonetheless preside the panel of judges handling the Catalan independence leaders’ trial.
As a result, it has been easy for secessionists to present their conflict with Spain as one upholding democracy against repression. Yet in pursuing their dream of an independent republic, Catalan nationalists have occasionally neglected their much-vaunted democratic values.
In 2015, the pro-independence Catalan government treated a regional election as a plebiscite on the secession issue. In it, pro-independence parties won a narrow majority of seats in the regional parliament but fell short of a majority of the popular vote. Nonetheless, secessionists pushed ahead with their divisive roadmap as if they had secured an overwhelming mandate. Then, in September 2017, the pro-independence majority rode roughshod over parliamentary protocol to ram through laws laying the groundwork for the October referendum.
For Joan Coscubiela, a member of the Catalan parliament for the leftist Catalunya Sí que es Pot (Catalonia Yes We Can) coalition at the time, those parliamentary sessions “ended up installing in people’s minds the idea that democracy means the majority can do whatever they like, even if it means breaking the rules [and] trampling over the rights of the minority.”
Many Catalans have been dismayed at how the issue of separation from Spain has dominated their region’s political debate, distracting attention from more urgent matters, such as public healthcare and education.
The upcoming trial could see the figureheads of Catalonia’s failed independence bid pay a high price for such single-mindedness. But Spain’s judiciary will be up for evaluation as well. Spanish authorities have rejected calls for international observers, insisting that the justice system offers the guarantees and transparency necessary for such a high-pressure legal process. This trial’s ability to deliver on that promise could tell us a good deal about the health of Spanish democracy—and whether or not worries about it are justified.