An unfounded prison car


The carfor which Judge Lamela orders the unconditional imprisonment of eight ex-Confederates of the Generalitat, which has little foundation. We will not go into some side issues, however relevant they may be, such as the weakness of the accusation for rebellion or the discussion about the possible incompetence of the National Court to hear this issue, but we will limit this analysis of urgency the car in question and exclusively from a technical point of view, as befits the defense of the separation of powers that makes this blog for many years. From the political point of view the assessment that can be made of the incidence of the car is quite evident: much of what is gained is lost with the quick call for elections, the flight from Puigdemont and compliance with art. 155 by the Catalan Administration. But you have to be consistent: that assessment does not belong to an investigating judge. Not even to the Public Prosecutor’s Office.

Well, the car, of its nineteen pages, devotes just three to what is at the heart of the matter: whether in the case studied or not meet the requirements for provisional detention. The rest is a detailed account of an institutional coup d’état that, at this point, all well-informed Spaniards know perfectly, but that, despite its undoubted seriousness, has little connection-or even more, even enters into a certain contradiction – with the minimum foundation that is dedicated to justify the provisional prison.

Remember that as the self indicates, in accordance with our current legislation and the jurisprudence of the TC, in order to be ordered provisional detention must meet at least one of the following circumstances:

a) Avoid the risk of flight.

b) Avoid the destruction of evidence.

c) Avoid recidivism.

Let’s see what the car tells us about each of them:

a) On the risk of flight, he points out that the crimes of those who accuse them are severely punished and that the greater the punishment, the greater the incentive to flee; that the defendants have the economic means to live abroad or can easily obtain them; and that some of them have already fled (like Mr. Puigdemont).

None of these arguments carries much weight. If it were a mere question of the importance of the penalty, the law would order provisional detention for all serious crimes, which it does not do. The possibility of having economic means does not seem enough either. It would be necessary to order the provisional detention of anyone who belonged to the Spanish middle class or simply count relatives or friends who have prospered or have emigrated abroad. And the fact that others have fled is not a valid argument since precisely having allegedly committed all the same crime some have taken the decision to flee and others to stay and submit voluntarily to the action of justice. Put another way, the argument serves to ask for the prison of Puigdemont, but not that of Junqueras. It can not be said either that we are in the presence of an organization or band in which its members act jointly or in coordination. It seems obvious that considerations of a personal and / or political nature have determined very different behaviors of the accused.

b) Regarding the destruction of evidence, the car says practically nothing, only points out that it is possible that it occurs and that the accused would like to do so, but does not explain the reason. We can think that every alleged criminal wishes to eliminate evidence that inculpates him, obviously, but the question is whether he is in a position to do so. And in this case for the defendants the possibility is minimal, first because they have been dismissed from their positions and they no longer control the Catalan Administration and especially because -as they highlight the first 15 pages of the car- if their criminal acts have been so public and clamorous as it seems, to erase its trace now is not possible. Let’s say that to make disappear the DUI (or the non-DUI according to the interpretations) is not in your hand.

c) The same can be said about avoiding recidivism. It only indicates that the acts have been planned for two years. And what does that have to do with the issue at hand? There are crimes that are planned for much longer and are not susceptible to recidivism. In fact, what the car seems to say, as in the previous case, is that they would like to reoffend (I do not have any doubt about that, especially if they win the elections again). But again the question is whether they can do it. And clearly now at least they can not do it, because they no longer have the institutional power they have needed to get here.

In short, the car does not reach the extremes of the famous car of the puppeteers that we discussed in this blog at the time, but it shows the tendency of the National Audience (it will be professional deformation of so much dealing with drug traffickers and armed bands) to first shoot and Then ask. And the truth is that without missing the puppeteers, this case would have deserved more reflection and justification. We hope that, as happened with the former, it will be quickly corrected once the corresponding resources have been filed. Our Rule of Law before such a serious attack deserves a defense a little more rigorous and a little more worked.