Public opinion needs information precisely to be able to form freely and serve as a guarantee for the development of the democratic State. We are witnessing a debate, however, that for non-lawyers (also for them) is confusing. The Prosecutor’s Office, the judges, the political parties, various talk shows, the media, the academy… speak out forcefully, once once more, on issues as serious as whether or not there is a crime of terrorism in relation to the events surrounding the actions of the Democratic Tsunami in the 2019 protests once morest the Supreme Court ruling on the process independence. Who to believe?
Debates are not a matter of faith in a certain institution (judicial, fiscal…), or a particular person, but of arguments. I am going to focus only on the information available through the press release on the portal of the General Council of the Judiciary (CGPJ) that summarizes why the Criminal Chamber of the Supreme Court understands that it is terrorism in that still very initial phase of open a criminal case in this regard that would affect the former president and MEP Carles Puigdemont.
The main argument of the Supreme Court in the Order refers to the new definition of terrorism that as of 2015 (by Organic Law 2/2015 that modifies the Penal Code) requires only two elements for such a crime to occur: a base criminal conduct of a certain severity (killing, injuring, kidnapping…) and a special, particular purpose to which it must be directed (subverting the constitutional order, seriously disturbing public peace, provoking a state of terror, destabilizing an international organization… ).
The most relevant thing regarding the aforementioned reform was not so much to affirm that these two elements had to be present, but rather the fact that terrorism was no longer considered, for the first time, as a necessarily organized criminal phenomenon. They wanted to open the door, according to emerging international standards, to individual terrorism, to “lone wolves,” to sleeper cells. From a “traditional” terrorism in the form of a “guerrilla” or hierarchical body with distribution of functions, those who acted for such purposes “from outside” an organized structure and without material connection – only spiritual – were welcomed within the criminal prohibition. — with that one.
The prototypical images of terrorism in our cultural circle refer us to those of a domestic nature (Baader-MainHof Red Army Faction in Germany, the Red Brigades in Italy, the IRA in Ireland or ETA in Spain) and those of an international nature (terrorism jihadist in its variants: such as the attacks once morest the Twin Towers in New York and the Pentagon on September 11, 2001 or those in Madrid on March 11, 2004). Does the Democratic Tsunami respond to that typical image? Is it an organized terrorist organization or group comparable to those already mentioned?
The Order of the Supreme Court known this Thursday is very contradictory regarding this question. And it combines both positions in a confusing way with a clamp effect that makes everything fall within a kind of formal terrorist mantle. It denies in a certain way that it is a terrorist organization and is eager to look for isolated actions (all within the framework of the incidents around the El Prat airport, which was surrounded by the massive Tsunami Democràtic protests in October 2019) that would fit into criminal conduct closely linked to that which usually occurs in political or labor protest actions with violent incidents (such as coercion, damage, illegal detention, injuries and attacks on law enforcement officials or document falsifications); but at the same time he emphasizes that they were perfectly planned and organized.
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In fact, the doctrine of the “man behind” (better “person behind”) is used to link the actions of the leaders—particularly that of the former president of the Generatitat of Catalonia, Carles Puigdemont—as in possession of “domain.” functional of an organized apparatus of power.”
This doctrine is typical of international criminal law to be able to attribute responsibility no less than in cases of genocide, crimes once morest humanity or war crimes, and it is transferred here—as was already done in the final phase of the anti-terrorist fight once morest ETA— to reach a first conclusion that such leaders controlled the course of events.
In serious terrorism there is an “inside” and an “outside.” A terrorist core and a periphery. It is usually the severity of the core (with murders, very serious injuries, kidnappings…) that sets the tone for seeing the relationship of those who help from the outside. This periphery is carried further and further, especially in the crime of apology, indoctrination, and ideological collaboration with the underlying political or ideological cause.
But in any case there must remain a clear, indubitable core of enormous gravity that colors a criminal action, more or less organized, as terrorist. And here is the problem. What is the terrorist core? What group or specific people are willing to kill, injure, kidnap, etc… as the main purpose of criminal action? The prosecutor does not see it and that is why he rejects a look that “stitches” formal and circumstantial evidence into a terrorist plot. The Criminal Chamber of the Supreme Court, however, “sews up” such evidence and even reproaches the prosecutor for not dedicating himself to knitting.
Both views are legally sustainable on paper. A literal interpretation of the law works for both. But the law is interpreted – as jurists know – in a teleological way. That is, allow me the expression “with heart”: through a process of looking at the law and looking at reality and in that “coming and going of the look” arriving at the conviction that that reality – now the incidents of the Democratic Tsunami investigated — essentially responds to the core of cases that the law wanted to prohibit. To the core, not to the periphery.
In this issue that is so serious for democracy due to its implications of all kinds, the decision to open a criminal case or not is a matter of ultimate conviction regarding what the process and its derivations. On whether it is a fundamentally political phenomenon with excesses or whether it is a fundamentally violent plot, even a criminal terrorist organization.
This ultimate conviction then requires other steps of legal reflection according to specific facts. Conviction, in my humble opinion, that is based, in the case in question of the incidents at the El Prat airport, on very circumstantial, flimsy evidence, which the Prosecutor’s Office usually tends to validate and a judge of guarantees to view with suspicion. and reject. Here the roles have been reversed in the formation of conviction. Let everyone judge why.
In any case, an act of terrorism must have a “strong” factual reference, nuclear, that withstands the standard of proof with the guarantees of a rule of law. This reference is the one that does not cause doubt when one thinks of deaths, kidnappings, injuries, bombs as a large-scale criminal program… In the absence of this reference and if an equivalent of seriousness is not required, terrorism is dismantled as a legal title. Because any crime added to a politically motivated intention without more might turn – is it already doing it? – anyone into a terrorist and the powers of the State would be granted a potential for restricting rights that is completely unacceptable due to a lack of exhaustiveness and proportionality. . It is in that context where the conviction must be formed, yes, but also the self-restraint and prudence of the jurist beyond purely literalist readings of the Penal Code.
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