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The Criminal Chamber of the Supreme Court has unanimously agreed to declare its competence and open a case to investigate and, if necessary, prosecute the former president of the Generalitat Carles Puigdemont -currently an MEP- and the member of the Catalan Parliament Rubén Wagensberg for crimes of terrorism in relation to the facts investigated in the Tsunami Democràtic case.

Josep M. Calvet, 29 February 2024

Carles Puigdemont at the European Parliament in Strasbourg // Ronald Wittek / EPA / Efe

THE ‘PROCÉS’ CASES

Magistrates conclude that it is “necessary and pertinent that they be called to the proceedings, in order to be heard as investigated”.

Puigdemont criticises the Supreme Court: “The only thing missing is a secret account in Panama”.

The Criminal Chamber of the Supreme Court has unanimously agreed to declare its competence and open a case to investigate and, if necessary, prosecute the former president of the Generalitat Carles Puigdemont -currently an MEP- and the member of the Catalan Parliament Rubén Wagensberg for crimes of terrorism in relation to the facts investigated in the Tsunami Democràtic case.

The High Court adopted this decision after analysing the reasoned statement presented by the magistrate of the National Court, Manuel García Castellón, in which he set out the evidence which, in his opinion, accredits the participation of the two members of the Catalan Parliament in the events under investigation.

Against the criteria of the lieutenant prosecutor

The magistrates thus disregard the report sent last week to the High Court by the deputy prosecutor of the SC and number two of the Prosecutor’s Office, María Ángeles Sánchez Conde, in which she asked for the case against Puigdemont to be closed, considering that the judge is based on “mere conjecture” to make him responsible for the coordination or leadership of the platform that led the riots in the protests against the sentence of the trial in October 2019. In turn, Sánchez Conde thus avoided following the majority criterion of the Board of Prosecutors, who considered that there were indications to investigate the leader of Junts for terrorism.

The court, made up of the president of the Chamber, Manuel Marchena, and the magistrates Julián Sánchez Melgar, Juan Ramón Berdugo (rapporteur), Carmen Lamela and Eduardo Porres, concludes that with regard to these two members of the Parliament, both beyond the reach of Spanish justice, it is “necessary and appropriate that they be called to the proceedings, in order to be heard as investigated, with all the rights and guarantees provided for in our legal system. This investigative procedure cannot be carried out by the investigating judge, but only by this Second Chamber, as the accused are granted the privilege of “aforados” (immunity).

In an order, notified today, the Court also declares the lack of jurisdiction of the Chamber to investigate and, where appropriate, try the other 10 persons under investigation who are not “aforados”, as it does not recognise the inseparable unity of behaviour required by the Chamber itself to accept jurisdiction over non-“aforados”.

Crime of terrorism

The court harbours no doubt that the facts imputed to Tsunami Democràtic are included in the crime of terrorism and includes at least a dozen sentences on street terrorism that consolidate its doctrine on this crime. In this sense, the order states that “the morphology of the actions prosecuted, in their external appearance, there is no doubt, coincides, with particular accuracy, with that of those frequently carried out for years in the Basque Country, by violent groups articulated in a more or less stable manner”.

The order focuses on the events of 14 October 2019 at El Prat Airport and indicates that Tsunami Democràtic responds to “the fight to combat” the sentence of the ‘procés’ “transferring to international public opinion the blatant injustice of the resolution and organising violent acts to prevent its compliance”. “Puigdemont was the president of that government and was, and continues to be, a fugitive from justice, avoiding prosecution by this Second Chamber,” it says.

The text explains that the facts that are likely to be subsumed in crimes of illegal detention in the blocking of the entry and exit to Barcelona’s Prat Airport by a crowd of people gathered with false plane tickets and boarding passes. It adds that “international aviation service and airport services and air traffic were disrupted. The access of users and crew was prevented and the airport control tower was isolated, where the air traffic controllers were forced to remain, with the idea of causing the paralysis of the airport and the massive suspension of flights, in a situation of absolute chaos and violence in which T.D., acting in perfect coordination and bringing its members to the airport, was forced to stay acting with perfect coordination and wearing balaclavas covering their faces, used dangerous instruments and devices of similar destructive power to explosives, such as fire extinguishers, glass, aluminium sheets, fences, metal trolleys or luggage racks, which they threw at the police officers”.

For the Court, particularly serious injuries were also caused to members of the State Security Forces, caused by means of dangerous substances and pyrotechnic devices. “Injuries subsumed, in principle, some of them in art. 149 CP and that would be in ideal competition with crimes of attacking agents of the authority, caused with dangerous instruments, perpetrated at the Prat airport and in the streets of Barcelona, by throwing stones, cobblestones, sheets of aluminium and iron bars against the agents, in the middle of the formation of barricades, burning flammable drums and containers”.In addition, it considers that massive and continuous forgery of airline tickets and boarding passes was committed by the organisers of TD’s strategic action to ensure that a large number of people gained irregular access to the T1 and T2 facilities at El Prat airport. And, finally, it also considers as serious crimes of continuous property damage to public property or public use of particular gravity and the use of flammable pyrotechnic substances, caused at the airport and in the streets of Barcelona.

The Supreme Court explains that in order to prove the crime of street terrorism, one of the following purposes is required: to subvert the constitutional order, to seriously disturb public peace, to seriously destabilise the functioning of an international organisation or to provoke a state of terror in the population or in a part of it. For the Chamber, the conducts analysed fit into articles 573 and 573 bis that regulate these offences and points out that, in summary, it can be stated that article 573 of the Criminal Code considers the commission of a serious crime against physical or moral integrity, or against freedom, among other legal assets, carried out to seriously disturb the public peace, or to force the public authorities to carry out a certain action, as a crime of terrorism.

“Well, in our case, the members of the TD movement have committed serious crimes against freedom, physical integrity, attacks, documentary falsifications, patrimony and others”, underlines the court, which takes the opportunity to reproach the public statements of some politicians and the media in the sense that “only the actions of ETA or Jihad deserve to be treated as terrorism”, which, in the opinion of the Court, “is incompatible with the definition of terrorism derived from the current art. 573 CP”.

Puigdemont’s participation: The doctrine of the “men in the back”.

The order also points out that there are several indications that would accredit Puigdemont’s participation in the events and refers to the fact that from the beginning he was informed of the constitution of Tsunami. The resolution mentions the meetings in which he was present on the dates prior to the launch of the platform and recalls that Puigdemont appears directly involved in the campaign to promote it.

The Chamber stresses that in this case “that plurality of evidence accredits functional control of the act, absolute leadership, intellectual authorship and assumption of the reins of the typical action, in such a way that he could have avoided the harm to the legal good and the course of the iter criminis, withdrawing his charismatic support, but far from that he encouraged the continuation of the violent actions that were developed with his knowledge and consent”. It adds that “in a criminal organisation, the men at the back, who order crimes with autonomous command – being able to avoid it – may, in this case, be responsible as perpetrators-by-means, even if the immediate executors are, likewise, punished as fully responsible perpetrators”.

It reasons that “the perpetrator-by-means in this case dominates the execution of the act, making use of a whole apparatus of organisational power that operates from the top, where the criminal orders are designed, planned and given, to the material executors of the orders, not without first passing these orders through the intermediaries who organise and control their fulfilment”. For the Court, the report of the lieutenant prosecutor, which rules out that the facts fit in with the crime of terrorism, “attempts to assess the evidence in isolation”, something which it reproaches as an “error”, given that “the probative force of the circumstantial evidence comes precisely from the interrelation and combination of the evidence, which concur and are reinforced respectively, when they all point rationally in the same direction”. With regard to the possible participation in the events of Rubén Wagensberg, it is assumed that it is highly probable that he uses the pseudonym “Konan” as a user of the Wire application and reference is made in the reasoned statement to the drafting of official Tsunami communiqués, it is noted that the messages exchanged between Konan and Albert Soler -another of those under investigation- subsequently reproduce the same messages as the ones sent to him, and that the messages exchanged between Konan and Albert Soler -another of those under investigation- are subsequently reproduced in full on the profiles of the social networks.

The Supreme Court has appointed Judge Susana Polo as the examining magistrate in the case in accordance with the established rotation

https://www.lavanguardia.com/politica/20240229/9531293/supremo-abre-causa-penal-puigdemont-wagensberg-terrorismo-tsunami.html

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