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José Antonio Martín Pallín, Emeritus Magistrate of the Supreme Court, publishes 'El gobierno de las togas', on the role of justice after the events of October 2017


16 DES 2020 – 23:51 CET

José Antonio Martín Pallí in his Madrid office. SAMUEL SÁNCHEZ

José Antonio Martín Pallín (A Coruña, 1936) is a magistrate emeritus of the Supreme Court and has just published “El gobierno de las togas” (Catarata), a very critical view of the action of justice against the leaders of the process that resulted in a sentence that disqualifies from head to toe and that he calls “disproportionate”.

Question: Why do you argue that the independence leaders did not commit any crime?

Answer. The pro-independence parties took their place in the 2015 elections with a programme and a roadmap towards the declaration of the independent republic of Catalonia. This was reflected in the referendum and legal transition laws, both of which were declared null and void, but not criminal, by the Constitutional Court. Finally, there was a lightning declaration of independence which was not published in the Diari Oficial de la Generalitat nor was it effective. In autumn 2017 there were acts contrary to the Constitution, no doubt, but not criminal ones.

Q. Did they also not disobey the Constitutional Court, which had warned them on numerous occasions?

A. I am concerned that it is said that they can commit a crime of disobedience of democratically elected persons, because the crime is not intended for such cases. The Constitutional Court is not a judicial body. The PP government itself recognised that this was not criminal, so it applied Article 155 of the Constitution, providing for situations of disobedience and ignorance of regional competences. This led to the dissolution of Parliament, the dismissal of the president and the government, elections were called, and the dismissals continued again. It acted within the constitutional framework and independence was stopped, as clearly recognised by the Supreme Court ruling.

No one believes that a complaint of more than one hundred pages is prepared within 72 hours. It was already done before the Unilateral Declaration of Independence (DUI)

Q. So you think there shouldn’t even have been a trial?

A. No. Let’s remember that this starts with heavy artillery, with a charge of rebellion that was kept up with cheating throughout the investigation to justify pretrial detention. And it was included in the European arrest warrants, but the Belgian and German courts said that the rebellion was nowhere to be seen.

Q. The imprisoned politicians have always said that the European justice system will prove them right. Do you subscribe?

A. The European Court will not analyse whether there was sedition, embezzlement or disobedience, because it does not fall within its competence. It will evaluate whether a fair and equitable trial was carried out, and here there are two big holes: the attitude of the president of the court, Manuel Marchena, who was invading and leading, against what should be his function and as the Law of Criminal Procedure says, and then the issue of preventive detention, which has also been challenged by a United Nations body.

Q. There was no embezzlement in the organization of the referendum either?

A. The classic crime of embezzlement is that of the official who puts his hand in the box. Then there is another, which is assigning a budget position for purposes other than those planned. This is reprehensible, but it is not a crime. In the case of the process, embezzlement is said to be a crime against property because there was unfair administration. I wonder where the unfair administration is, because from the beginning they said they would put up ballot boxes and make ballots.

Q. The book is also very critical of the actions of the State Prosecutor General, José Manuel Maza. Do you think you acted on your own when you filed the complaint?

A. No. Soraya Sáenz de Santamaría failed in her attempt to stop the referendum and surely she spoke to Marchena and Maza to tell them that this was resolved with a complaint, because the survival of the nation was at stake. The complaint was filed in the National Court and after 48 hours Marchena said that it was within the competence of the Supreme Court. I think everything was ready from October 3, when the King left, until the 27th, when the vote for independence took place in Parliament. I have been a prosecutor for 20 years and nobody believes that a complaint of more than 100 pages is ready in 72 hours, because it was presented on 30 October. It makes sense to think that the complaint was already prepared before the Unilateral Declaration of Independence (DUI).

For Martin Pallin, a long-term amnesty law on 1 October would help to stop the current situation

Q. The amnesty law appears to be the most viable way out of the political impasse, but the government opposes it.

A. Not only the government, some constitutionalists believe amnesty is forbidden. I don’t see it that way. The only thing the Constitution prohibits is general pardons. After the 1977 amnesty law, unions lobbied because some labour rights protections had been omitted, the government made a law and the Constitutional Court said it was perfectly constitutional. Amnesty is a law that is processed and passed by parliament, like any other law.

Q. What should this law look like?

A. Long distance and range not just designed for prisoners. At the bottom there should be 1,800 criminal cases all over Catalonia, especially related to October 1st, some due to resistance to the authority of the voters and others against police officers for abusive use of force. This could justify the amnesty, because there are a number of crimes that go back to 2014, when the November 9 vote that resulted in the conviction of Artur Mas was held. Amnesty has been used in Spain 18 times since 1812 and always to achieve public peace. I think that now it can contribute to the lack of attention to the situation, but I am aware that it can also be used by sectors of the left.



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