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!