Former Catalan president, ministers who led 2014 vote on independence stand trial: a backgrounder

Author: Assemblea Nacional Catalana
Tens of thousands poured into the streets of Barcelona today as a trial against former Catalan president Artur Mas and former ministers Joana Ortega and Irene Rigau over the holding of a non-binding vote on independence from Spain opened today at the High Court of Justice of Catalonia (TSJC, a judicial instance which is part of the structure of Spain's judiciary). The pro-independence movement believes the trial goes "against democracy" and tries to block Catalan aspirations to full sovereignty. A backgrounder.

The three politicians have walked for more than one hour through the streets of Barcelona, where tens of thousands —more than 100,000 according to pro-independence groups' accounts, 40,000 according to the local police—, many of them holding pro-independence flags, have acclaimed them. Mas, Ortega and Rigau have been accompanied by Catalan president Carles Puigdemont, vicepresident Oriol Junqueras and leaders of several pro-independence associations.

What is the trial about?

The Catalan government led a non-binding vote on independence on 9 November 2014 that the Spanish Constitutional Court twice ordered to be halted. The first time, the Court ruled the vote could not be held under the name of "non-binding referendum". After the Catalan government changed the wording and stated it would be a "participatory process", the Court again suspended the vote after a legal challenge had been filed by the Spanish government.

Catalan government president Artur Mas and ministers were supposed to halt the preparations for the vote, but they decided to go ahead anyway arguing that suspending the vote would amount to a violation of citizens' "right to participate, freedom of speech and ideological freedom".

The Catalan government was supposed to halt preparations. It decided to go ahead arguing that suspending the vote would amount to a violation of citizens' rights. The Prosecution Office filed a lawsuit over three possible offences

Ten days after the vote was held (37% to 41% turnout —no exact figures were provided—, some 81% of votes for full independence), Spain's Public Prosecutor Office announced it would be filing a lawsuit against Mas, Ortega and Rigau over possible offences of disobedience, embezzlement of public funds and perversion of justice. The Prosecutor argued Mas, Ortega and Rigau were "fully aware" that the preparation of the vote was in breach of the "mandatory rulings of the Spanish Constitutional Court”.

The lawsuit signalled the beginning of a case that has finally brought the three members of the Catalan government before court today.

What sentence could they be facing?

Embezzlement charges having been dropped, the three politicians are being been tried over charges of disobedience and perversion of justice. If declared guilty, Mas, Ortega and Rigau will not be facing prison sentences —they could have in the case of embezzlement— but could be banned from public office for 10 years.

The three politicians' lawyers argue that technically speaking, the Catalan government did not organize the 9 November 2014 vote, but rather it was left "in the hands of volunteers". Appearing before court in 2015, Mas assumed that he was the "political promoter" and the "only person responsible" for the vote, but at the same time insisted that the referendum's second version —the so-called "participatory process"— was not legally in the hands of the government. Today, Mas insisted the vote was his and his government's "initiative".

Why did the government call the vote?

Leaders of four Catalan parties argued they had been given a democratic mandate to organize the referendum

After three years of massive popular mobilizations by pro-independence groups calling for secession from Spain, several Catalan parties campaigned for the 2012 Catalan election with the promise to organize a referendum on the issue. After the election, centre-right CiU and centre-left ERC agreed to hold such a vote in 2014. Another two parties (left-wing ICV-EUiA and anti-capitalist CUP) also voiced their support to a vote on independence.

As the four parties combined held 86 out of 135 in the Catalan Parliament, their leaders argued they had been given a democratic mandate to hold the vote. Already at that time, the Spanish government warned the referendum would be illegal according to Spanish law.

In December 2013, the four parties announced a deal to hold the referendum on 9 November 2014, under a double question. The first one would be asking, "Do you want Catalonia to become a State?", and the second one, "Do you want this State to be independent?".

In April 2014, the Spanish Parliament's lower house voted down a request by the Catalan Parliament to have the powers devolved to organize a referendum on independence. The Catalan government announced the vote would go ahead anyway, even if it was a non-binding one.

Why are tens of thousands protesting the trial?

The case has an obvious political dimension, as it hits one of the central issues of debate in Catalonia for at least the last eight or ten years, that is the issue of independence from Spain and Catalonia's ability, or not, to hold a referendum.

The pro-independence movement believes the trial seeks to "judicialize" the Catalan political life

The pro-independence movement believes the trial seeks to "judicialize" the Catalan political life, and argues that the court is not trying the three politicians, but the whole idea of having a vote on independence as a means to decide over the full issue of Catalonia's place in Spain —or outside it.

Catalan president Carles Puigdemont said that a country, Catalonia, that was "able to organize the 9-N [vote] has a healthier democracy than that of a country [Spain] that sends to trial the leaders who made it possible".

Main Catalan pro-independence civil society and local government associations Catalan National Assembly (ANC), Òmnium, Association of Municipalities for Independence (AMI) and Catalan Association of Municipalities (ACM) launched a few days ago a "Love Democracy" campaign by which they intend to highlight the democratic dimension of Catalan demands for a referendum.

The trial against Mas, Ortega and Rigau has galvanized the otherwise ideologically diverse spectrum of Catalan pro-sovereignty groups and parties. Pro-independence, anti-capitalist CUP party, which in early 2016 forced the withdrawal of Mas's candidacy to a third term as Catalan president, last week said today's trial is against "everybody" and that the whole case revolves on "democracy". This is the same stance taken by the two major parties in the current Catalan pro-independence government (ERC and PDECat, main CiU heir). Left-wing opposition alliance Catalonia Yes We Can (CSQEP) is also joining protests against the "criminalization of Catalan politics".

What are the Spanish government and parties saying?

The Spanish government says there is absolutely no "anti-independence" intention in the case, but rather it believes that Mas, Ortega and Rigau disobeyed the Constitutional Court and they must thus stand trial. The government has again seized the opportunity to recall that the 9-N vote was "illegal" and that any subsequent vote on independence —such as the one that the Catalan government intends to hold in September 2017 at the latest— will be illegal too. Spanish president of government Mariano Rajoy insisted: "We can talk but everyone must obey the law".

Out of the four main parties in the Spanish Parliament, three of them (conservative PP, social democrat PSOE and liberal C's) are vehemently against the holding of any referendum on Catalan independence, and argue that Mas's conduct over the 9-N vote was unlawful.

But left-wing alliance Unidos Podemos says today's trial should not be happening at all, and argues that an agreed referendum on independence —but not a unilateral one— should be held in Catalonia.

Is it true that a referendum on independence is against Spanish law?

It depends on who considers the issue.

Those who stand against the referendum argue that article 92 of the Spanish Constitution reads that referendums "shall be called by the King on the President of the Government’s proposal after previous authorization by the Congress." They also recall that article 1 states that "national sovereignty" belongs to the "Spanish people" as a whole, and that article 2 mentions the "indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards".

Referendum proponents, however, say that article 149 allows the central state to authorize "popular consultations through the holding of referendums", and recall that nowhere in the Spanish Constitution it is said that a referendum on independence cannot be held. Thus, they argue, the only real burden for a vote on secession to be organized lies not on Spanish law, but on the political will of parties, the government and the Parliament.