Interview with Andreu Van den Eynde, leading lawyer at the Catalan Referendum trial, now heading action in the Spanish scandal involving Spanish secret service spying on Catalan politicians, Operation Pegasus.
Toni Strubell is a former MP in the Catalan Parliament, journalist, and author of What Catalans Want
Núria Bassa Camps is a Catalan Photo Journalist
“The accused suffered infringements of their presumption of innocence and were treated like terrorists”. Thus spoke Andreu Van den Eynde in his opening statement at the famous Catalan Referendum trial (February-October 2019) in defence of former Catalan vice-president Oriol Junqueras and former foreign minister Raül Romeva. Both of them were sentenced to long years of jail (13 and 12 years respectively) for the offences of sedition and misuse of funds in organizing the Catalan Independence Referendum on October 1st 2017. But was their trial fair? What does today’s new Pegasus scandal add to the evidence that no holds are barred by the Spanish judiciary to stop the Catalan independence movement?
To answer these questions, we interviewed chief defence lawyer Andreu Van den Eynde. He was born in Paris where his father, Trotskyist politician Artur van den Eynde, took refuge from Francoist persecution. He defines himself as a Marxist and takes pride in his work as a legal-aid lawyer in the defence of destitute immigrants. He also lectures on cyber-crime prevention. His favourite strategy book is “The art of war”, the age-old Sun Tzu code. Andreu Van Den Eynde will head the team that is to file a complaint against the chief of Spain’s National Intelligence Centre (CNI) in 2019, Félix Sanz Roldán, for the political espionage practised against the President of the Catalan Parliament, Roger Torrent, and MP and former education minister, Ernest Maragall, by way of the introduction of Pegasus software in their mobile phones. (see here).
You were the main defence lawyer for vice-president Junqueras and minister Raul Romeva in the Catalan Referendum trial. Did they and the other Catalan political prisoners get a fair trial?
Not at all. The sentence is currently being appealed against at Spain’s Constitutional Court and if it is confirmed, we will go to the European Court of Human Rights. In our appeals we identify numerous infringements of fundamental rights that make the trial a clear example of the way the Spanish judiciary is warped to neutralize the Catalan independence movement: there are clear symptoms of prospective investigation, alteration of the rules of court competition, abuse of pre-trial detention, violation of parliamentary immunity, denial of means of proof, lack of impartiality of the court, etc.
What is the strategy for winning this case before the European courts?
We cannot skip the exhaustion of domestic remedies, so we will have to wait for Spain’s Constitutional Court to resolve our appeal before going on to the European jurisdiction. This may take a good year or two, especially since there have been reports that there is an intentional manoeuvre to slow down the process in which the Catalan political prisoners’ appeals are dealt with.
Was the international response to the Catalan Referendum trial sentences and the repression suffered by the Catalan independence movement as you expected it to be?
No unbiased person acquainted with the facts and the sentence itself can fail to see it as absurd and disproportionate. All international agents following the case that I spoke to, saw it that way. But the reactions are very cautious because they there is a state involved here. So far the United Nations, Amnesty International, and even the Court of Justice of the European Union have come out in favour of many of our complaints. But even then, it is difficult to be satisfied with this international reaction because it should have been more insistent on calling for political solutions to the political conflict there is between Catalonia and Spain. If this is not the case, the Spanish judiciary will continue to apply judicial principles to political affairs in a way completely different to that practiced by the Supreme Court of Canada in the Quebec issue. That is, forcing politicians to decide in accordance with the democratic principle that any legitimate political controversy sustained over the years by a large part of the population must be resolved outside the courts.
In a speech this week, the president of Spain’s High Council of the Judiciary (CGPJ), Carlos Lesmes, praised the role of the Spanish judiciary in the repression of the Catalan independence movement, which he accused of being “blind”. How do you judge this statement?
The Spanish judiciary has lost all shame and has confronted a political conflict by placing itself in a leading role in its repression. They have taken it upon themselves to prosecute political ideas and initiatives. I would never have dreamed of hearing judges, magistrates and prosecutors – all of whom are public servants who must maintain full neutrality – expressing deep animosity towards the Catalan cause in resolutions and in press and social media comments. What all this shows, once again, is that the problem we are faced with is a political one.
Toronto University’s Citizen Lab has stated that some 1,400 people were spied on last year by way of the Pegasus programme. Among them was the President of the Catalan Parliament, Roger Torrent, along with Ernest Maragall, former minister and current Barcelona city councillor. According to Citizen Lab, these are the first known cases of European political representatives to have been targeted by this espionage programme. How serious is this?
It is extremely serious. We have evidence that spyware has been used to attack the mobile terminals of Catalan politicians, some of whom may have had their conversations monitored even in meetings with other European political representatives. This type of spyware is only used by state police and intelligence services, so we are working with Citizen Lab to get to the bottom of this heinous criminal behaviour to identify those responsible and hold them accountable.
You have announced that you are to file an official lawsuit over this issue. Everything seeems to point in the direction of Spain’s National Intelligence Centre’s (CNI) involvement, although the Ministry of Defence denies any knowledge of the fact. As Torrent and Maragall’s lawyer, whom do you think should the lawsuit be directed against?
The crimes involved are clear: unauthorized intrusion of a mobile terminal, illegal interception of communications, computer espionage and the acquisition of espionage software. These offences are judged all the more serious if committed by officials or agents of the authority. We will file the complaint in the coming days and obviously it can only be addressed, initially, to the person who was in charge of the CNI at the time of the events. The evidence points to the use of Pegasus software by the CNI so we have no choice but to interrogate its head as chief suspect.
NSO is the Israeli company that created the Pegasus programme in 2015. Who could decide, in Spain, to hire NSO services and buy Pegasus? And for what purposes? Are they legal?
All states use spyware and Spain is no exception. It is bought from international companies – often Israeli ones – for use in intelligence and crime investigation tasks. It is the Spanish government that decides to acquire and use these tools for police, military and intelligence purposes. The problem arising from the use of Pegasus software is twofold: first, we need to find out and determine whether this software allows citizens to be monitored as invasively as it does, making it illegal material in itself; and secondly, we must prove that, as we believe has occurred, it is being used without the necessary judicial control that must always be authorized in advance for the use of communication interception tools.
The CNI must follow a protocol to tap a telephone and ask for Supreme Court magistrate permission to do so. The Court has 72 hours to accept or turn down the request, which must be specific and rational. It must define the objectives of the telephone research. Do you think it is possible that a judge could have authorized the intrusion on Torrent and Maragall’s mobile phones?
It would seem unlikely to me and therefore we do not work with this hypothesis. If the Spanish judicial system is based on logic and is subject to democratic principles, it seems impossible that it may have authorized the monitoring of the top political authorities in Catalonia, because in no case can there be seen to have been any legitimate reason for this investigation or intervention to take place.