Are there political prisoners in Spain?

I seem to keep having to blog about populism, in an effort, I guess mostly ill fated, to try to defend truth on the face of unashamed, relentless and unscrupulous attacks. I started this blog because of some of the claims around Brexit. I could have written many blogs, but wrote very few, due to lack of time and, frankly, sometimes energy. Then it was Trump. And now, Catalonia. These are not the only three big examples of populism and demagogy in current politics, but as a Spaniard living in UK, they are certainly the most relevant.

One of the many attacks on truth and democracy currently underway in Catalonia are those based on the message that Jordi Sanchez, head of ANC, and Jordi Cuixart, head of Omnium, both pro-independence organisations, are political prisoners, incarcerated in Spain because of their political opinions.

This, if true, would of course be very serious. Modern democracies don’t imprison citizens because of their political views, right? So how can this be happening in Spain? Is it? In the face of all the confusion and mixed messages, the best approach in my view is to state, and stick to, the facts. Those that put their opinion ahead of facts will still not listen, but those who are trying to understand reality, rather than to fit reality to their World view, can maybe find this approach useful in these kind of situations.

So, in the next few paragraphs, I will tackle the question: Are the 2 Jordis political prisoners?

First we should probably define what a political prisoner is. We can use several different definitions. In the Cambridge Dictionary, a political prisoner is: someone who is put in prison for expressing disapproval of their own government, or for belonging to an organization, race, or social group not approved of by that government.

In 2012 the Parliamentary Assembly of the Council of Europe (PACE) outlined a set of conditions for someone to be considered a political prisoner. These are:

• Their detention violates any of the protections of the European Human Rights Convention
• Their detention is imposed purely for political reasons
• The time or conditions of their detention are not proportional to the crime committed
• Their detention is discriminatory when compared to other people
• Their detention is the result of a judicial process which is clearly unjust and politically motivated

Any of these criteria suffice. Catalan nationalism would have us believe that Sanchez and Cuixart have been jailed by the Spanish government for defending their independentist ideology.

This sounds shocking, and, were it true, it would represent a serious repression of civil liberties. But, is it true?

So, let’s start with the first part of the sentence. They have been jailed by the Spanish government. This is outright incorrect. The Spanish government does not have the power to jail in Spain. It is the judiciary, who judges, sentences and jails. And they have been placed in preventive prison by a judge, not by the government (you can download the whole sentence here, and you should if you are keen to have a well founded opinion, it is well argued, although it is in Spanish).

Why have they been jailed? Is it because of pacifically defending their independentist ideology? In this case, the best thing is to check what Sanchez and Cuixart are actually accused of, and compare that to the law of the land, in this case, the Spanish penal code. The public accusation is claiming that the 2 Jordis headed an organised group which, on 20^th and 21^st of December, surrounded the Economy Catalan Ministry and prevented the Spanish Civil Guard and a judge of the National Court from exiting the premises after arresting some politicians following a court order. The impasse lasted 5 hours, during which the Spanish Civil Guard could not exit the building and were retained against their will. In order to exit, they would have had to resort to violence, which they did not. The judge of the National Court had to eventually leave the building through the roof. In addition, during the incident, 3 cars of the Spanish Civil Guard were burnt, although there is no evidence or claim that the cars were burnt directly by Sanchez and Cuixart.

What does the Spanish Penal Code say? Article 554 translates as: ‘Persons are guilty of sedition when, without being guilty of rebellion (which would be more serious – my comment) rise publicly and tumultuously to prevent, by force and outside the law, the application of the laws or to any authority, official corporation or public servant, the legitimate exercise of their functions or the fulfilment of their obligations or of judicial or administrative resolutions’  

Let’s break this apart and analyse it:

• Are the Jordis persons? Yes.
• Did they rise publicly? Yes, this event did not happen in their private property, but outside the Catalan Economy Ministry, and therefore, in a public area.
• Did they rise tumultuously? Tumultuously means in a multitude, therefore, in a large gathering. There is no specific number at which a multitude starts which I have been able to find, but ANC and Omnium claim themselves that there were 40,000 protesters concentrated and, even though there may be exaggerating for political reasons, photos of the event clearly show there were several thousands of people. Therefore, it is a multitude, and they rose tumultuously.
• Was the multitude preventing the application of the laws? The Civil Guard and the judge were there to arrest several individuals accused of breaking the law. Therefore, that is a yes.
• Was the multitude preventing an authority, an official corporation or a public servant? The judge is an authority and a public servant, the Civil Guard is an official corporation and an authority. Therefore, yes.
• Finally, were they preventing by force and outside the law? This may be the most contentious points, since all the others are clearly undeniable, and different people will have different opinions of what ‘by force’ means. Does forming a cordon and telling the Civil Guard that they cannot leave the building unless they leave those arrested, and keeping them there for 5 hours, constitute force? People may have different opinions on this. But, to answer it, I would replace the Civil Guard with a group of women or children. If their liberty was curtailed in the same way by a mass of several thousand people, would that be considered by force? I would think probably yes.

The above list seems to show there is significant evidence that Sanchez and Cuixart may have violated article 544 of the Spanish Penal Code.

And this is another important point. Sanchez and Cuixart have not been condemned. So far, they have been accused. The decision the judge has to take, at this point, is: Is there sufficient evidence of a crime being committed that justifies the court judging it? Now, please look at the list of points above compared to the article 544 text. Different people, depending on their political slant, may have different opinions as to whether a crime was really committed, but based on the information available, can anyone really reasonably claim that this accusation should be thrown out before going in front of the court? There seems to be very little justification for a trial not being conducted, in this case. Given the evidence available, i think it is clear that we can safely say that a trial is at least in order, and therefore, there is no discrimination in this case, and no indication of political motivation and judicial corruption on this accusation going to court.

This brings us to the next and final question. If the Jordis have not been tried yet, why are they in jail? This, again, takes us back to the judicial system, and, in this specific case, to jurisprudence, or judicial precedent. The 2 Jordis are detained awaiting trial, in a situation of Provisional Detention Without Bail. In most crimes, while the accused are awaiting trial, they are freed under certain conditions, sometimes posting bail, and sometimes with some additional restrictions. However, freedom is not granted, and accused are detained in Provisional Detention Without Bail, when one of the following circumstances arise (for the best background I have found on this, read page 17 of this PDF, which is in Spanish), in the opinion of the court:

• The accused may escape and not attend the trial
• The accused may use their freedom to alter, hide or destroy evidence
• The accused may attack the victim
• The accused may continue to commit crimes

Given the fact that the 2 Jordis have declared publicly that they do not recognise the authority of Spain, the Spanish Law or its courts, the first risk is definitely there, as well as the fourth one, since they themselves have indicated that, if freed, they will continue to act in the same way that has taken them to this detention in the first place. In fact, their defence tried to bring politics into the court threatening the judge with further alterations of the peace should the 2 Jordis not be freed. (This is undemocratic mafia-like and a lot more serious than it looks at first sight, but I will leave that for another post). Therefore, again, it is difficult to claim that the actions of the judge are disproportionate or discriminatory.

In this case, it is also helpful to remember that other high profile cases in Spain have, in the last few years, seen people detained provisionally without bail. I have not researched this, other than to find that 100,000 people are detained without bail in Europe annually, but 2 very recent high profile cases are those of Barcenas, the treasurer of the PP, the Spanish government party, who spent 2 years and 3 months in Provisional Detention Without Bail, between 2013-2015, accused of corruption, and justified by risk of escape and of destruction of evidence, and of Jose Maria Villar, president of the football federation, again accused of corruption and in Provisional Detention Without Bail for the same reasons as Barcenas. It is also worth remembering that, in the same hearing, Josep Lluis Trapero, another accused, was freed on bail, which seems sensible as it appears clear that he will not escape and he has no opportunity to commit crimes again, since he is at the moment suspended from his post.

I therefore cannot find any arguments against the line of legal reasoning that has taken Sanchez and Cuixart to this situation. Those claiming injustice and calling them political prisoners should remember that political prisoners are not those people detained that you politically agree with. There is a legal process and a set of circumstances that defines a political prisoner, which we have analysed above. I would encourage anyone who wants to continue to make these claims and to attack the democratic reputation of Spain to comment with a line of argument that highlights any weaknesses in this reasoning, as, if found, I am completely open to changing this analysis. This is something I missed in the case of Brexit, with Trump, and now with Catalonia., so it would be great to get some debate.

Thanks for reading!

Is Spain a democracy?

I never thought I would have to write anything to answer this question. However, after a long time quiet on this blog, once again because of regrettable absolute lack of time to write, I have found myself today having to drop everything I was doing to write this article, with the aim to set the record straight on a few things which I think most people are missing when evaluating or commenting on the situation in Catalonia today, 1^st of October.

Firstly, let me start by declaring that I deem the situation as extremely sad and regrettable. Let me also say that, as a Spanish citizen, I fully support a democratic process which allows Catalonia to vote on its independence. This article is not about the Catalonian independence process, but ONLY about 1st October. Let me also say that I know full well that, by writing on this issue, I will make many enemies and no friends.

However, I feel compelled to do it, after reading my twitter feed and seeing the reaction of people I normally regard as clear progressive thinkers when confronted with images from Catalonia. Vince Cable, the LibDem leader, calling police behaviour unacceptable and asking for the Spanish ambassador to be summoned by the Foreign Secretary to explain. J.K. Rowling calling police actions repugnant and unjustifiable, and people like Peter Frankopan, a historian I admire, and writers like Simon Worrall, enthusiastically retweeting some of these ill advised declarations. I have also had conversations with Catalan people and been surprised by their lack of understanding of what living in a democracy actually means.

The sentiment behind the manifestations of these commentators seems to be that the actions of the police are repressive and unwarrantedly violent, and that the Spanish government must be brought to task and asked to respond for this undemocratic behaviour. In the next few paragraphs I will try to deal with these three accusations, repressive, unwarrantedly violent and undemocratic.

Firstly, these commentators, in their (I still want to think) well intentioned progressiveness, are immediately antipathetic to images of police confronting citizens in any way. I am too. However, before an accusation of repressiveness can be levelled, one must at least do some basic analysis. Spain is a democratic country, which enshrines in its Constitution and derivative legislation the right of its citizens to pacifically demonstrate, protest and voice their opinion. The Spanish police would not seek to repress any of these rights (I would not have so confidently said this 25 years ago, but we have come a long way) and, should it, then its actions could be rightfully called repressive. The citizens in the images we receive from Catalonia have full rights to protest and demonstrate, and an overwhelming majority of Spanish citizens would recognise them those, as they would to any other Spanish citizen. In fact, until today, they have freely demonstrated and protested as many times as they have seen fit. But these citizens in the images, confronting the police in a way that makes most of us lefties remember the good old days of student and popular uprisings, are not demonstrating. They are breaking the law. And this point seems to have been missed. They are breaking the law, and obstructing and resisting policing. Any modern democracy sets its foundations on the rule of law, and the security forces are there to protect it. And, when the law is broken, we expect the police to act. We may, at a personal level, be more sympathetic to some law breaking than to other, but, you see, the problem with democracy is that us individual citizens cannot decide what laws can be broken and which cannot. And how do we know that these citizens are breaking the law? Again, democracy has a guide to this. We know, because it is not the executive power (the government) that says so, but the judiciary. In democracy, separation of powers ensures that the executive cannot abuse its remit, and this is a well established principle in Spain. The Spanish and Catalan judiciary have both, on the basis of the legal framework with jurisdiction over this dispute, ruled that the proposed referendum is illegal. Therefore, when the police act to prevent the voting, they are not doing so as the strong arm of a repressive state, but rather acting on behalf of democracy, as it is their duty. Were these citizens legally protesting or demonstrating, as it is their right to do, any actions by the police to prevent them from doing so would be repressive and in contravention of the law of the land. But, when these citizens vote in an illegal election, and try to prevent the police from policing, they are committing a crime, or accomplices of a crime. This may sound hard, but the rulings of the Spanish and Catalan judiciary have left us in no doubt that these activities are illegal, and therefore, the police have no choice but to enforce the law. If they don’t, then that would be undemocratic, as the police would be abrogating unto itself the power to choose which laws should and should not be enforced (which, in fact, is what the Mossos d'Esquadra seem to have done, choosing not to enforce the law or the orders of the judiciary, and as a result placing themselves outside legality and as a downright undemocratic agent in these unfortunate events).

I find it difficult to believe that Mr. Cable, Ms Rowling or Mr Frankopan would be supportive of illicit activities in fellow modern democracies, which seek to subvert the rule of law.  I can therefore only surmise that, should they give proper consideration to the fact that the police are acting on a judiciary ruling, they would agree that the actions of the police are not repressive.

Let’s move on, therefore, to the question of whether the police are acting with excessive and, to quote Ms Rowling, unjustifiable violence. In modern democracies, police are entrusted with policing with minimum necessary force. They must keep force to a minimum, but they must police, first and foremost. A tenet of policing is that if force is necessary, police will not walk away, they will exercise it, in a measured manner. And this throws a different light in what is going on in Catalonia with policing. We must evaluate the use of force by police from the perspective that they are fighting what, in law, is a crime. If a bank robbery was taking place and some citizens were confronting the police and preventing them from entering the bank to stop it, how would we expect the police to act? Is there a difference in this case? If we realise, as we have to, that a crime is being committed (and please remember that I am commenting strictly from a legal viewpoint and not getting into the morals of the matter), then we must expect the police to not stand down.

Of course, in some cases, the force used by the police may be excessive. I am not saying that it is not, I have not seen most of the incidents and, in any case, I am prudent and democratic enough to realise that it is not up to me to unilaterally be judge of that (I wish Mr. Cable or Ms. Rowling were capable of similar restraint before throwing themselves onto Twitter), since our society already has a judiciary body entrusted with this task. The citizens in the images have full access to the judiciary and democratic protection Spain affords all its citizens. I can assure all readers that all police actions will be investigated (in fact, the process is already underway if you, once again, listen to the judiciary) and further, any aggrieved citizens have the right to report any police malpractice. Once again, this is the advantage of democracy. We don’t need Twitter judges, we have real ones.

In conclusion, before judging what is going on in Catalonia, we need to remember that the law is being broken in a democratic country. It may be an unjust law in the eyes of many, but that does not give citizens the right to unilaterally break it. I am sure that most of those citizens are well intentioned, believe in what they are doing and are not well informed about the exact workings of democratic institutions. It is their political leaders that have failed them, by leading them into an illegal course of action.

As for the Twitter commentators that got me back to blogging (and I do at least thank them for that), a word of caution. We live in dangerous times when progressive opinion leaders are happy to support the breaking of the rule of law in modern democracies, on a whim and without due consideration for the consequences of their actions. Being a public figure brings responsibility in a democracy. 

In the particular case of Mr. Cable, this is of course more serious, as his role is in political leadership, in a democratic country which would handle an attack on its law and security exactly in the same way as Spain is doing. I would just remind him that I do not remember Spain summoning any British ambassadors to Madrid when the British police dealt with mining strikes or the London riots. Mr. Cable, you should know better. Let the Spanish democratic process run its course, we don’t need, or want, your undemocratic moralising. We need to find a way to bring about a negotiated solution that resolves this issue pacifically and within the rule of law, and you are not helping. Once you decide to support the subversion of the rule of law, you place yourself in very unsavoury company.