Steven Forti – Pending the decision of the German courts

BRAVE NEW EUROPE  has been trying to provide comprehensive information concerning the Catalan Independence Movement. In this article Steven Forti brings us up to speed with the newest developments. We would like to thank all the authors who have contributed for making this possible.

Steven Forti is Researcher at the Instituto de História Contemporânea of the Universidade Nova de Lisboa and Professor at the Universitat Autònoma de Barcelona.

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Catalonia is in a gridlock, Spain is experiencing a profound political and institutional crisis, and there is no way out of a situation that is truly surreal. This could be a summary of what is happening in Barcelona and Madrid. Everything is extremely tangled. Not even the Oracle at Delphi would have been able to predict what lies in the future.

The decision of the German judges in Schleswig-Holstein not to extradite former Catalan President Carles Puigdemont, who was arrested in Germany on 25 March, for the offence of “rebellion”, has disrupted the game plan of the Spanish state. Pablo Llarena, investigating judge at the Spanish Supreme Court for the prosecution against the Catalan independence movement, reactivated the European arrest warrant for Puigdemont and other independence leaders who had fled abroad. Llarena called for their extradition for the crime of rebellion and misappropriation of public funds, involving up to 30 years in prison. The German judges however did not recognise any violence in the actions of the independence activists, which is a crucial issue for the imputation of rebellion and its counterpart in the German Legal Code, high treason.

The unexpected decision of the Schleswig-Holstein court – which contradicts the request of the German public prosecutor – was welcomed with joy by independence supporters and was a shock for Mariano Rajoy’s government. Puigdemont in the meantime has settled in Berlin waiting for the final decision of the German judges that could arrive in the coming weeks. Although the court has discarded (but not definitively) the crime of rebellion, the former Catalan president could still be extradited for the embezzlement of public funds and / or, at least potentially, for that of sedition on which the Spanish courts seems to be focusing. If he were to be extradited, Puigdemont announced that he would appeal to the Germany’s highest Constitutional Court, which would mean that the whole affair would drag on for quite a while. In the meantime, similar decisions have also been taken by Scottish and Belgian judges who are assessing the situation of the other former members of the Catalan Government who fled after the Spanish Government imposed  direct rule.

In Madrid, the reaction was one of impotence and anger: the media of the right attacked the German judiciary hard, Llarena criticised the way in which the European arrest warrant was managed – even going so far as to assess the possibility of an appeal to the European Court of Justice – and Rajoy tried to put on a brave face in a deteriorating situation, concerned not to put his good relations with Angela Merkel at risk. What is certain is that the final decision of the Schleswig-Holstein court may call into question the whole strategy of Judge Llarena. If Puigdemont is not extradited, the snub will be enormous. If he is to be extradited only for a minor offence, how will the Spanish judiciary be able to try the defendants for different offences in the same trial, nine of whom are in pre-trial detention in Madrid?

All this explains the impasse that we are experiencing in Catalonia. Since the independence referendum of 21 December, the political parties supporting independence – who maintained an absolute majority, albeit a narrow one, in the Catalan Parliament – have not been able to reach an agreement to elect a new president of the parliament. When it seemed that, after three months of deadlock, it had been decided to abandon the unilateral path and propose a candidate who had not been charged, the decision of the German courts convinced those supporting independence to continue with the logic of confrontation with the Spanish State. Two weeks ago, the former President of the Catalan National Assembly and Junts per Catalunya Member of Parliament, Jordi Sánchez, who has been imprisoned since mid-October, was again nominated as a candidate, but Llarena prevented him from being released to attend the investiture session, which was therefore suspended. Now the independentist formations are thinking of re-submitting Puigdemont’s candidacy, forcing a vote of the candidate in abstentia, which would be immediately annulled by Spain’s constitutional court.

The objective of this short-sighted tug of war would be to show that there is no democracy in Spain, comparing the government in Madrid with those in Turkey and Hungary, thereby seeking international support for the Catalan cause. But, of course, Spain is a democratic and constitutional state, although it can be improved, as can many other EU countries, and although the decision to imprison independence leaders in advance and to accuse them of the crime of rebellion can be criticised, as did recently the former socialist premier Felipe González.

This surreal situation is nothing more than the consequence of the inability of Rajoy’s government to manage an issue that is essentially political – now it is the judges who are providing the politicians with time – and of the lack of realism on the part of Catalan independence movement, which has never had a social majority in favour of breaking with Spain.

For the time being, therefore, everyone is waiting for the decision of the German courts. However, there is a key date: 22 May. If by that day the Catalan parliament has not elected a president, new elections will automatically be held in Catalonia in mid-July. It seems that this is the preferred scenario as Puigdemont senses that his party will increase its portion of the vote, but not by the other independence party, Esquerra Republicana de Catalunya (ERC), which would like to form a government as soon as possible to put an end to the provisional government imposed by Madrid. Rajoy, too, would actually like a government to be formed in Barcelona because he needs the votes of the Basque nationalists for the 2019 budget, which will be voted on in the Cortes of Madrid in the coming months. Up to now the Basques have let it be know that until there is a Catatlan government in office, they will vote against Rajoy’s budget. In the current crisis however, to avoid a collapse of the Spanish political system and a Ciudadanos election victory, the Basques have affirmed that they will support Rajoy’s pension increases foreseen in the new budget in return for a series of investments in the Bilbao region. How far these plans have been agreed to by both sides is not clear.

Another element should not be lost sight of: Rajoy’s Partido Popular is in a moment of extreme weakness. On the one hand, the Catalan crisis has put it on the ropes, with Ciudadanos opposing it from the right and making major gains in polls. On the other hand, in one of its strongholds, the region of Madrid, it risks losing its government following the scandal of the falsified master’s degree and shoplifting scandal of the regional president Cristina Cifuentes, who was forced to resign.

In short, everything is very uncertain. If politics does not once again take the lead, we will never emerge from a crisis that is not only causing a fracture in Catalan society, but also the weakening of Spanish democratic institutions.


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