Alfons López Tena.
Madrid | June 1, 2019
The rarity of this trial is previous, is having reached a trial, is the trial itself?
I do not see any weirdness. Although the facts of this case are simply a bluff, fictions to get advantages in another field, etc., when someone raises, or gives the appearance that is pursuing the independence of a country –i.e. the loss of a territory, of population, economy, etc., by a State-, it is normal, foreseeable and mandatory that the State reacts to prevent it and to punish those who have tried, especially, as in this case, when the attempt has been symbolic.
But this is not so normal. There have been governments that have lied, endangering with it the European security -Aznar, when the 11M-, and nobody has gone to trial for a lie.
For a reason. Here the key to everything, and that is often forgotten, is not what they have done, it is not what they gave the appearance of what they did without doing, but the fact that the TC had ordered them, previously, not to perform certain actions: approval in the Parliament of certain laws, or certain governmental actions. From there comes the clear crime of disobedience to the judicial authority.
Are you saying that they disobeyed in a limited and calculated manner and that, in the trance, they were exposed to other crimes?
Yes. What I am saying is that this was a game of bluffing and a game of chicken -which you have explained so well in your articles-, in which both parties or, better, three parts –these being, on the one hand, CIU or whatever it is called now; on the other hand Junqueras and his ecclesial group; and, on the other hand, what is left of the civic independence movement, which would be now the ANC of Elisenda Paluzie-, have always looked sideways so that they could not be attacked by anyone of the other two as traitors, cowards, botiflers, hispanophiles, etc. And so, in that game of chicken, they have always been advancing until it is the other who pays that price. The price of being the traitor, the botifler, etc.; and all that, just to end up doing what the three want to do. Which is to do nothing. The outcome is the three falling down the cliff, which is the trial, which are the arrests and preventive imprisonment.
There were no other options on the part of the State in the face of a lie?
No. It is not the logic of the State. For me these issues -and I have put this in writing with great joy of all these sectors- are reduced to what General Prim said: “O caixa or faixa” [“Or coffin, or sash for the general”, sentence attributed to Prim, and issued during moments of doubt in one of his pronouncements]. Or to say it in a more classic way: “Aut Caesar aut nihil” – “Either Caesar or nothing” -. There are options, such as breaking a state and creating an independent new one, in which there is no middle ground: either you win or you have to pay the price of having lost.
How did you find out about this? How did you find out that this lie would be confirmed as true on this occasion?
Remember that during that time – and you know it because they told you in private – they said: “They will not dare”, “the State will not dare”. For one reason, because in 2014 -the 9N consultation- they did the same, through influence and mediation, above all, by Durán i Lleida and Joan Rigol. They explained in La Moncloa and in Ferraz that they let them do it, that it was just a demonstration for them to let off steam, that with that move they were happy and that no more importance was to be given to it. And they achieved that, in the end: nothing happened, in short and after a long time, except for a trial ending in a temporary disqualification of two years or something like that. Because we must not forget one thing: the claim for them to pay the public money expenses generated was not an initiative of the State, it was an initiative of a private entity -Societat Civil Catalana-. The State was striving for disqualification, nothing more. A very small disqualification. With which, of course, a second time could no longer be acceptable, counting that the ‘very small disqualification’ box had been already got over.
The independence to create an authoritarian state was in that law approved in the Parliament, where a regime was established which Orbán or Erdogan would certainly wish for their own countries.
Why cannot it be a second time? Or hundreds?
Because all the States and their high civil service have their hearts. And that implies, among other things, maintaining the reputation and the prestige because, if not, you become absolutely useless – and yes, we could say the Bernarda’s pussy, but since we are in a children’s schedule … -. From that moment on, everyone does what they want and that’s it? Counting, in addition, with another important element, that in 2014 there was no mobilized reaction organized against the consultation from that part of Catalan society against independence. On the other hand, in 2017 there is already a splinter society the State could not leave behind. There was also the electoral effect that this could produce in Spain. Therefore I see it normal. The State does what it has to do. Those who have not done what they should have done if, indeed, there had been a desire for independence and not a game of poker, bluffing, are the leaders of the procés. The independence. They promised it. These are the laws that they passed in the Parliament. The independence to create an authoritarian state, which, as you know, is the law that was passed in the Parliament, in which they established a regime that Orbán or Erdogan would absolutely wish for themselves.
How is Marchena doing it? Is he not exposed to anything in the ECHR?
I think he is doing perfectly. I voted for Marchena at the time to be magistrate of the Supreme Court when I was in the Council of the Judiciary. If I voted for a candidate to be a magistrate of the TS that was of the progressive sector, everyone saw it as normal. On the other hand, if I voted for someone from the conservative sector, everyone saw it as a guarantee of quality. In the sense that he was voted by someone who was not part of that sector and valued his CV, who valued his knowledge, his ability and his merit despite the possible ideological discrepancy that could exist in the broad sense of the divide between conservatives and progressives. So the fact that I voted for him had a certain weight. And I am delighted to have voted for him because he is a great magistrate. He is a great jurist, as a criminal lawyer he is one of the best in Spain, and as a magistrate he has demonstrated it as well. And he is proving it in such a complex trial, with so many parties, with lawyers who are constantly playing to provoke the Court to react and, thus, be able to denounce it to the ECHR. They are continuous provocations, with countless witnesses and useless evidence, both by the defense lawyers and by the Prosecutor’s Office, or the private prosecution. And, despite this, he is leading the trial in an absolutely impeccable manner.
Do you think that something will come to the ECHR, such as the loss of the unity of the case, or the procedure, which has been, albeit legal, unique?
The ECHR can deal only with the rights included in the European Declaration of Human Rights; weather they have been respected or not. Human rights are not what you or me or that man who happens to pass by think they are. They are those in the Declaration or in the Charter of the United Nations.
Are you saying that the right to decide is not a right?
No, it is not. It is not included anywhere.
I cannot believe it. They have told us. On TV, even. Are you telling me that politicians and the media can lie? What will be next?
Yes, yes, I understand you. With a continuous propaganda by public and concerted media, the right to decide ends up being the right to decide whether to have a coffee with milk or not … But no, it is not. First, let’s speak with precision, the right to decide does not exist. It would be the right to self-determination and, as for the right to self-determination, it is not a human right. It is a right of the people in certain circumstances, under certain conditions -with which we will agree or not- as included in the Declaration of Civil, Human and Political Rights of the United Nations, which is where it appears; but it does not appear in the UN Charter or in the European Declaration. So the role of the ECHR is to say whether or not the rights of this person have been respected in a judicial case.
And in your opinion?
Until now, I have not seen any violation by the Court or by Marchena, as its president, of the rights to be heard, to provide all the means of evidence deemed appropriate. You have already seen it, you are suffering it and, therefore, you are seeing the amount of proof that is provided that does not have the slightest relevance…
Of proof, but also, and even more, of accusation, I would say.
Yes, yes, on both sides. But on the part of the defense, which is the one that could go to the ECHR because, evidently, the accusation will not go, they have been able to present infinity of evidence both from witnesses and documentary, many useless for this cause. They could be for another case. But here they are for propaganda because this trial is being used for propaganda, as propaganda of cohesion among followers of the procés.
However, is not there a certain over-activity of the Office of the Prosecutor: rebellion, sedition…?
The judges have to be impartial. Prosecutors no. The prosecutors are accusation.
Yes, but they must be decorous.
Yes, they must be decorous and whatever you want. But they are accusation. They are a part.
Yes, but the defendants have not invaded Mars. There is no place to talk about an invasion of Mars, or a rebellion.
Look, in another sense, if indeed – and with this I do not change the subject, I am not responding directly, but indirectly – these people would have had a plan, a project, an action and a preparation to, effectively, turn Catalonia into an independent state after what they called a “referendum” – which now they say no, that was a “demonstration” -, you and I would be in a concentration camp, or we would have had to cross the border. Because, remember, in the founding law of the Republic approved by the Parliament what was established was an authoritarian regime, a dictatorship of the president.
Speak for yourself. I look more like an ambassador.
Well, I speak for myself. I would be in a concentration camp or crossing the border if I had given myself time. Because what was established was an authoritarian regime, a dictatorship of the president.
That is not so exotic in Europe.
No, it is not, but normally people, when they are in an authoritarian regime and presidential dictatorship, flee. The disaffected to the regime, of course. I already lived what it is to be disaffected to the regime during the Franco regime, therefore I do not want to relive it.
What itinerary is coming now? The sentence will come, there is no second instance, what happens?
The sentence will come. I do not want to enter, now, into legal qualifications. Whatever the sentence, it is possible to deduce that the defenses will go to the TC and, later, they will go to the ECHR. But always for the same reason in the two instances, for violation of procedural laws, not by application of the law itself, in which neither the TC nor the ECHR can enter. That is to say, at the moment the Court has declared that this fact has occurred, and that the consequence of this proven fact is that this constitutes such a crime and that this crime carries a certain penalty, in that neither the TC nor the ECHR have nothing to say. What they can consider is weather to reach that sentence the Court has respected or not their rights.
How long are we talking about from here to the ECHR?
Well, it can be 5 or 7 years, assuming that it is accepted as a relevant case. That, on the one hand, with respect to those who are being processed. Then there is the issue of those who have fled. These, at the moment they are accused of crimes of this nature, they face a period of 20 years until these alleged crimes expire. Which means that they will stay abroad if the courts do not ask, again, for an extradition or a euro-order and they are accepted.
Will they issue a new one?
Reasonably yes. But we’ll see. Politically the same game comes. The situation is the same. In short, the situation, in general terms, is: democratic Spain, modern and integrated in Europe, in the European Union and in globalization, has already crystalised. What is the role that the Catalans have within this democratic and integrated Spain in Europe? There is a large part of the Catalan population who considers that this role is insufficient and that the only way to advance is with a state of its own, which protects, promotes, defends its own interests. It remains to be seen if this would be done well, badly or not so good. Faced with this, the peix al cove – the pujolista tactic of regularly obtaining small concessions from the state – was exhausted by the Majestic pact – the PP-CiU legislature pact in 1996.
The peix al cove ends. In view of this, the situation is being redirected with a new Statute, which fails. And, before that, there are two options: just to admit that this is what there is – which is what the PNV did when the Ibarretxe Plan failed – and, therefore, we are going to dedicate ourselves to the government, to manage well, to do things well and have a certain capacity for influence. Or to say: we are going to create an independent State. What happened? Well, both Convergència and Esquerra, seeing a certain popular mobilization, the consultations, demonstrations of 2009, 2010, etc., did observe that, perhaps, their bases, their voters, could abandon them in the absence of results. So what they did was to take the lead in the demonstration. And that, in short, is the story. What to do? And in that what to do question, we have seen where this playing with a bluff independence leads. Only to that `We are going to manage and govern well`, since taking into account how imbeciles, useless and incompetent they are, without the slightest sense of public service and general interest, and being a sect that only cares about granting jobs and perks among their own members, it is impossible for them to win an election by appealing to the work of government already developed.
In Spain it works.
No, in Spain there is government work. You may like it or not, but there is government work: the work of Rajoy, the work of Zapatero, the work of Aznar. Sanchez has not been for long.enough But there is work of government. Can you tell me which is the one of Puigdemont or Torra?
Man, he legalized the consumption of raw milk. A claim that comes from afar. From the Neolithic, I think.
And the ratafia made at home. Will you win an election by appealing that it is very good to drink directly from the udders of the goats? In short, here there is nothing in reality and that nothing in reality they have to compensate with raucous words, as Rajoy would put it, or with smoke and mirrors, which I would say myself, just to be more snobbish. The less reality, the more fuss, the more agitation and propaganda, the more gesticulation. For example, now with the Iceta veto and things like that.
The issue of remand, do you think it stinks? Is it a blurring theme?
No. Initially, the remand ordered by the investigating judge in the preventive piece was due to the disappearance of evidence, reiteration,…
And risk of escape, which now is not so likely.
At that time, not so much because of the risk of escape. That was later, when some of them, male and female, escaped indeed. Remember that the last shift of entering on remand was, precisely, because someone ran away. Marta Rovira, who was summoned in the TS together with all the others. And just as everyone else showed up, she did not. That was where the risk of escape was born. I do not speculate if they are an organized criminal gang – as was pointed out in the National High Court and in the 13th Court of Barcelona – but they are people working together, acting together, forming a government together, having means of communication … Among people not connected to each other, if one flees, from a legal point of view, it does not affect all the others. However, if the one who flees is one of those who are connected to each other – and, in addition, when it rains it pours because others of them have fled: Puigdemont, Comín, Puig, Ponsatí … – then the remand is in order to avoid the escape, to avoid that they could be removed from the action of justice.
But is it reasonable if we see there are other media as telematic control, surveillance, house arrest?
It`s normal. Neither reasonable nor unreasonable. It`s normal. In the Spanish judicial system this works like this. For one reason, because there are no means for the devices you mention.
So far there are people on probation with a bracelet.
There are hundreds.
I insist, there are no means to control so many people like these, who have the means to live outside. Because this remand is related to something else. Whether or not there is the capacity to live and act abroad for economic, personal, etc. reasons. And these have them. The proof is that others are living abroad. That is what increases the risk of escape. Which is why Zaplana or Rosell have been on remand.
Has the lack of freedom affected representativeness?
It depends. A person who is either prosecuted for rebellion under the law, or on remand, cannot hold public office. He is suspended from his public office. If you are convicted of disqualification, then you lose public office. It is not the case at this moment. What happens when they are suspended from public office? That there are several mechanisms to replace them. One of them is the resignation and the list runs, another will come. Another one is the substitution, as has been done in the Parliament of Catalonia, a MP of the same group. The suspension does not suppose in principle an alteration of the composition of the Chambers.
What will happen to the MEP on remand and the two exiled MEPs?
No, they will not be. They will be suspended from public office because they are prosecuted for rebellion.
Those in Brussels, no.
Yes. Puigdemont, Comín, are prosecuted for rebellion and escaped.
Is there no match?
No, there is no match. They are in the same procedural situation as the others. Processed for rebellion. The reason why, now, they are suspended from public office is because of that. And so what will happen? The Legal Services of the European Parliament have already made a report saying that this matter is governed under the legislation of each of the Member States. Therefore, the Spanish legislation is applied; that is, when being prosecuted for rebellion, they are suspended from public office. The same would have happened to Zaplana if he had been in public position, or to Granados. I believe that the major fallacy in which the leaders of the procés are falling in, through their public media, is to present this as an exception when this is what is done with everyone, what has been done with the defendants of the PP, which has been done with the accused of any other party.
Granados has spent more than two years on remand, About Zaplana, I do not know for how long, but it has been for the risk of escape. Now he is not on remand because the judge has considered that there is no such risk.
Weather the decision of a judge, in a specific case, is right or wrong, it might be subject to opinion or discussion if it is disproportionate, excessive, adequate. What I want to say is that this is the same thing that has been applied to others. The same reason why Zaplana or Granados have been in jail on remand is the same reason why Junqueras or Forn are in the same situation.
What is the current status of the charges of rebellion, sedition, disobedience and embezzlement?
Rebellion comes from the Prosecutor’s Office, sedition from the State Advocacy, and disobedience and prevarication from both, but Vox introduces another, which is an organized criminal gang. As a jurist, I have my opinion of how each one of these charges could apply. But as a former member of the Council of Judicial Power, and although I know that my opinion will not influence at all nor will it put any pressure on the judges to do one thing or another, it would not seem right to judge from the outside. For one reason: after 7 years in the Council of Judicial Power defending judicial independence, you have a certain amount of responsibility to defend that independence, leaving them to work calmly to reach their own conclusions, without noise. And I do not want to contribute to the noise.
How will the State and the territory / proces come out of this trial?
Well, everyone will read it in their own way. The State will be strengthened. For the vast majority of the non-Catalan Spanish population this sentence will be extremely valued, as it is already happening. And for the Catalan society, approximately half of it will value it positively, also some independentists will value it since they consider that these people are not more than rippers and, therefore, they deserve the penalty. On the other hand, the proces part of the Catalan society, those of yellow, those of ties, those of the pilgrimages to Waterloo, 40-50% of the population, will take it as a new grievance, a new persecution. What they’re doing now. There is a video shared through Twitter about the Catalan presidents, practically all but two, who have been imprisoned, exiled or shot. This is but a lie. Prat de la Riba was in prison, yes, but not as president but as an activist. Yes, indeed, Pujol was in prison, but as an activist, not as president. That is, those who were effectively exiled from a dictatorial regime were Irla and Tarradellas. And Companys, shot. But none more, because none were president when they were judicially or criminally persecuted. But what is presented is that all the Catalan presidents, including Puig i Cadafalch, because, of course, here “president” is used with much, joy. How will they take it? In this way. As another element of victimhood. We are the good ones, those who have moral supremacy are unjustly persecuted.
Esta semana han ocurrido varios hechos importantes. Se los enumero: sentencia del TEDH sobre un pleno suspendido, en la que se descalifica el procesismo; documento de una agencia de la ONU, en el que se descalifica al Estado. Y las conclusiones de la Fiscalía, descomunales.
Sobre lo del TEDH. Ha sido muy negativo para los intereses del procesismo. Se trata de una sentencia por unanimidad, en la que 7 jueces afirman que el Estado debe de mantener el orden constitucional, y avala el posicionamiento del TC En aquel momento. Es un indicio de que las esperanzas del procesismo en el TEDH son humo, como tantas cosas. Lo del documento. Es un gol propagandístico importante. El elemento que se debe subrayar es que el Reino de España alega conflicto de intereses de alguno de los redactores del documento ahora, y no antes. Tanto diplomático, para esto. Lo de la Fiscalía: ha reafirmado su posición inicial, con las mismas penas y, más o menos, las mismas condenas. Es lógico. Es lo normal. La noticia hubiera sido que hombre muerde perro.
Several important events have taken place this week. I list them for you: sentence of the ECHR on a suspended plenary, in which the proces is disqualified; document of a UN agency, in which the State is disqualified. And the conclusions of the Prosecutor’s Office, very huge.
About the ECHR. It has been very negative for the interests of the proces. It is a sentence issued unanimously, in which 7 judges state that the State must maintain the constitutional order, and endorses the positioning of the TC at that very moment. It is an indication that the hopes of the proces in the ECHR are smoke, like so many things. What about the UN document? It’s an important propaganda score. The element that must be underlined is that the Kingdom of Spain alleges conflict of interest of some of the drafters of the document now, and not before. So many diplomats, for this. The Prosecutor’s Office: has reaffirmed its initial position, with the same penalties and, more or less, the same sentences. It is logical. It’s normal. The news would have been that man bites dog.
Will the ruling determine the policy in Spain and in Catalonia? Will it not create parliamentary majorities in Cat and Esp?
No. I insist, in the Catalan side, there are two main players and a third, the CUP, which is completely irrelevant at the moment, looking sideways at each other, therefore they will continue the same. If it were a single player it would be different. It is the game of Junqueras: trying to get to be the only player, cancel the other two, convergent and ANC, so to speak, and, thus, without having competitors, to be able to defend before their electorate that now this is what must be going on. Look at a small detail, when all the government of the Generalitat was dismissed, part of the government was escaped and part was in jail, they had no problem in voting as regional senators the representative of C’s, Lorena Roldán. No problem at all. Did you see their electorate and media raising some campaign against because we are persecuted, repressed, etc.? Their media did not say anything. Now, instead, they launch the campaign against Iceta, and so they do not vote for him. Lorena Roldan yes a year ago and Iceta not now? The Roldan issue was not a matter of confrontation between them, while now with Iceta, yes; in my view, with absolute illegality, he has been left without being a senator. Since they are the people, the bona gent, they can do anything. Which means that it is the majority deciding whether the minority has representation or not.
Will the criminal way, the sentence, be a solution?
The referendum is not relevant, what is relevant is what happens next. The relevant thing is if those who lose the referendum are willing to accept their result or not.
There is no solution to my way of seeing it. That is why I have left Catalan public life. There is no solution. If I thought there was a solution, I would be dedicating myself to it. If there was one, smelled it, perceived it, “some remote possibility that would save our own affair”, as Marisa Paredes said in a movie, would do it. But I think no, that there is no solution whatever the sentence. Because the two fundamental issues are: first, is the status of the Catalans in the statutory constitutional regime of Spanish liberties satisfactory or not? If it is not, can it be modified? The answer to “it is not” is that it cannot be modified, as it has already been proved. And the second, which is the basic issue: the referendum. The referendum is not relevant, what is relevant is what happens next. In the event that both sides agree on a referendum, what is relevant is whether those who lose the referendum are willing to accept its result or not.
And is this not the case?
It is not. In the electoral regime, yes. The one that loses the elections, obeys the electoral result. Even Vox, the fascist extreme right, has accepted the outcome of the elections. But the result of the referendum is, then, to implement independence, to make it effective.
There has been a wound. What solution do you see to this?
I do not see it, as I said. A clear national majority, as exists in Spain, with a pair or three of national minorities-Catalan, Basque and, in part, Galician and, including in Catalan, with greater or lesser intensity, the so called Catalan Countries. Those who consider that their national identity, their references are not Spanish, do not have fitting. They have fitting as Spaniards, they do not have fitting as Catalans, etc. And that is what has crystallised. Therefore there is no solution.
How would you make independence? How independencies are made: Well, through a rigorous, clear way, without lies and with international support. But if I were president of the Generalitat and saw that there is a substantial percentage of the Catalan population radically against independence and, therefore, it would be going to attack the new Catalan State, I am not going to bring my country to a civil War. I resign. If they had been serious, there would have been a civil war.