The last order of the judge of the National Court Manuel García-Castellón on the Democratic Tsunami case has widened the gap between the conclusions reached by this magistrate regarding the protests once morest the sentence of the processs issued in October 2019 by the Supreme Court and the interpretation given by the Prosecutor’s Office to the same facts. Where García-Castellón sees a crime of terrorism perpetrated by those who sought to “subvert the constitutional order”, the public ministry only sees a case of serious public disorder limited to two episodes of those mobilizations: the occupation of the El Prat airport (Barcelona) and the cutting of the La Junquera border post (Girona).
The decision to focus the investigation on terrorism or public disorder is key because, beyond the criminal consequences of each crime, the case will only continue in the National Court (or in the Supreme Court if it accepts its jurisdiction due to having capacity). if it is instructed as terrorism. Furthermore, the pro-independence parties fear that the amnesty might end up being complicated for those prosecuted for this crime, which García-Castellón attributes, among others, to the former Catalan president and leader of Junts Carles Puigdemont and the general secretary of ERC, Marta Rovira.
These are some of the clashes of criteria between the judge and the Prosecutor’s Office:
“Consolidate the hypothesis” of terrorism. García-Castellón maintains in his latest order that there is different documentation that confirms the existence of signs of terrorism in the mobilizations supposedly instigated by the Tsunami Democràtic platform. The magistrate cites the appearance as an accusation of several national police officers injured in street confrontations; the Mossos d’Esquadra’s account of the incidents at the El Prat airport on October 14, 2019, the day the sentence of the process; and the response to the request for collaboration sent to the court that investigated the death – due to a heart attack – of a French citizen in the midst of the El Prat incidents, although the Superior Court of Catalonia and the Mossos ruled out that this death was related to the protests. Despite this, according to the judge, this documentation “made it possible to consolidate the initial classification hypothesis, appreciating the existence of criminal acts that, from the initial classification, have the character of a terrorist crime.”
García-Castellón also cites as an indication of this crime the call by Tsunami for an uncommunicated camp and demonstration during the day of reflection prior to the general elections of November 10, 2019. The magistrate believes that both mobilizations sought to “subvert the constitutional order, or suppress or seriously destabilize the functioning of the political institutions or the economic or social structures of the State, or force public powers to carry out an act or to refrain from doing so”, in addition to “seriously disturbing public peace.” . For this reason, he believes that both actions conform to “the definition of the crime of terrorism contained in the international treaties and agreements that Spain has signed.”
“The objective competence” of the Supreme Court. The magistrate rejects the arguments of the Prosecutor’s Office aimed at ruling out the existence of a crime of terrorism or indications of a criminal organization and insists that the case must be heard in the National Court or in the Supreme Court, to whom the judge has sent the case to the understand that it is necessary to carry out a series of “procedures” that affect two authorized persons, Puigdemont (who is a MEP) and the ERC deputy Ruben Wagensberg. “The seriousness of the crimes that, at this moment, are glimpsed, the clear impact that these had on the general interests, and essential economic structures of the State, the specific damages that were caused to those harmed and the serious injuries suffered by the victims of the crime, not only demand its clarification by promoting the action of justice, but also demands, in defense of legality, that the investigation and prosecution be carried out by the judicial body that has the objective and functional competence for it,” reproaches the magistrate to the public ministry.
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The proceedings carried out in recent weeks, the magistrate insists, “far from ruling out, have allowed us to consolidate, being able to now verify with greater clarity […] that the initial qualification thesis [por terrorismo] it appears, at this initial moment, as plausible.” The judge cites the reports from Enaire and Aena on what happened in El Prat and concludes from them that air navigation was put at risk.
“Serious public disorder.” The conclusions reached by the magistrate are opposite to those presented by the Prosecutor’s Office in the document with which he appealed García Castellón’s decision to name Puigdemont and Rovira, among others, as defendants for alleged terrorism crimes. The public ministry considers that the evidence once morest both is “insufficient”, but also rules out that the events carried out by Tsunami constitute a crime of terrorism. The four years of investigation “have not produced elements that support the existence of a criminal organization or group, nor its terrorist nature, which is what would justify the jurisdiction of the National Court,” says the public ministry.
For the Prosecutor’s Office, not all the acts attributed to this platform “are strictly criminal in nature.” And those who are, do not fit into terrorism. “The only criminal acts recorded in the proceedings would be those carried out at the El Prat airport (Barcelona) and at the La Junquera border post, constituting serious public disorder, once the sedition was repealed,” the signed document states. by prosecutor Miguel Ángel Carballo, who does accuse the 12 members of the Committees for the Defense of the Republic (CDR) of terrorism who supposedly created a “radical cell” to “achieve independence, using violence to do so.”
Carballo considers it “implausible” to attribute to the accused the death of a traveler due to a heart attack during the blockade of the El Prat airport, and although some act echoed by Tsunami ended in riots and serious altercations, “it is not recorded in the procedure not a single piece of information that allows the investigators to attribute their favorable judgment to the execution of violent acts once morest police forces or other actions, such as destruction of street furniture. And even less so is their induction, cooperation or participation,” adds the prosecutor.
Neither “hierarchies” nor distribution of functions”. The public ministry also rejects that the necessary requirements established by the Supreme Court’s jurisprudence to consider the existence of a criminal organization are met. “No hierarchies, no distribution of functions among those investigated, nor the existence of a governing body, nor the concerted perpetration of different criminal acts have been proven,” states the public ministry, which adds: “The mere concurrence of several people in some actions do not allow [misma] nor talk regarding a criminal group.”
The prosecutor assures that, as defined by a Civil Guard report, Tsunami was an “initiative of social mobilization and disobedience, which managed to bring together under its ideological umbrella all the actions promoted by as many Catalan independence groups as shared its sovereign theses.” . “That is, a choral performance lacking any element of connivance or organization, and in any case a spontaneous addition to such mobilization.”
The CDR, at the doors of judgment
The Democratic Tsunami is not the only cause of terrorism that the National Court is investigating related to it process. Last November, the Criminal Chamber of the National Court sent to the dock the 12 members of the Committees for the Defense of the Republic (CDR) prosecuted for terrorism crimes (eight of whom are accused of possession and manufacture of explosives). The court concluded the summary of these pickets that emerged in Catalonia following the illegal referendum of October 1, 2017 and agreed to the opening of an oral trial once morest the components of the Tactical Response Team (ERT), an alleged “radical cell” of the CDR whose objective was “to achieve the independence of Catalonia, using violence in its maximum expression.”
According to the investigations, this Tactical Response Team wanted to go beyond the actions committed until then by the CDR—such as roadblocks or the spilling of oil on a road in front of a police delegation—and, without caring regarding the use of “ “violence at its maximum expression”, gathered “precise information regarding its possible objectives”, which included the elaboration of an alleged plan to occupy the Parliament and “later defend it”.
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