(Bloomberg Opinion) -- The prison sentences of nine to 13 years handed down by the Spanish Supreme Court to nine Catalan secessionist leaders raise the question of whether Spain has a law and order problem that should bother the European Union the way Poland’s and Hungary’s infractions do. Few other democracies would have sent people to prison for such a long time for what is essentially no more than extreme speech.
In demanding freedom for Oriol Junqueras and his fellow former officials involved in Catalonia’s illegal secession referendum and failed independence declaration of 2017, Catalans thronging the streets of Barcelona have a more legitimate cause than in insisting on unilateral secession. The harshness of the punishment is distinctly un-European.
The Supreme Court decided not to charge the Catalans with rebellion, which could have landed them in prison for 30 years. It explained that the separatist leaders did not resort to purposeful violence to achieve their goal, namely Catalonia’s independence from Spain. Nor did they attempt to take control of key institutions. “The State at all times retained its control of military, police, judicial and even social force,” the court wrote in an official commentary. “And, by doing so, it made any bid for independence a mere pipe-dream. The defendants were aware of this.”
I was in Barcelona in October 2017, and it was impossible to ignore the non-violent character of the secessionists’ actions. All they did was attempt to demonstrate that the majority of elected Catalan legislators favored independence, and that popular support for an independent Catalonia was high. The Catalan government's survey institute put it at 48.7% that month, while opposition to independence was at 43.6%. (The unweighted raw data showed of 1,338 people asked, 687 were for it.) A coup or a revolution it was not; when then-Spanish Prime Minister Mariano Rajoy declared direct rule from Madrid in Catalonia, the separatist leaders put up no resistance.
Other European courts had shown Spain the way on dropping the rebellion charge. After the independence bid failed, Carles Puigdemont, Catalonia’s former regional president, fled to Belgium. When Spain requested his extradition on charges of rebellion, a Belgian judge deferred his ruling and asked for various clarifications, expressing doubt that Puigdemont would be treated fairly if handed over. Spain withdrew the European arrest warrant it had issued.
In 2018, Puigdemont also got a hearing in Germany, where he was detained at Spain’s request as he was passing through. The top court of the state of Schleswig-Holstein ruled then that Puigdemont couldn’t be extradited for rebellion because he was “no ‘intellectual leader’ of acts of violence.” The German court said Puigdemont could only be handed over for the misuse of public funds that went into holding the secession referendum. Spain, however, didn’t want him on that relatively light charge, and Puigdemont went back to Belgium. In the event, the separatist leaders were convicted of misusing public funds, too — “for the purpose of committing the principal offense of sedition.”
That “principal offense” was, in the Spanish Supreme Court’s words, “to lead the citizenry in a public and tumultuous rising, which, moreover, prevents the application of law and obstructs compliance with court decisions.” To an eyewitness, the rising in the streets wouldn’t have looked much different than any number of protests. However, the 500-page ruling details the events that played into the decision, including holding an illegal referendum on independence, actively fomenting demonstrations to undermine the legal authority in Catalonia and an abortive declaration of independence in the regional parliament — all in defiance of rulings along the way by Spain’s constitutional court.
Many democracies don’t even have sedition laws. Germany only has one on hate speech, carrying a maximum prison sentence of five years. England, Wales and Scotland abolished sedition as an offense in 2009 and 2010. Australia did the same in 2011, choosing instead to punish “urging violence.” The U.S. has a rarely-applied law against “seditious conspiracy,” but it can only be used against people plotting a violent overthrow of the government.
In her 2018 book, “Sedition in Liberal Democracies,” legal scholar Anushka Singh described the offense as “a form of political speech” that is outlawed because it exceeds mere criticism — both a political offense and a speech crime. “By raising the issue of the conditions under which speech may be freely exercised, or alternatively legitimately curbed, sedition reveals a dilemma within liberal democracies,” Singh wrote.
The way Spain resolved this dilemma in the Catalan leaders’ case is consistent with the country’s questionable legal practice on speech offenses. Last year, the European Court of Human Rights ruled against Spain in a case involving two Catalans who burned a photograph of the Spanish royal couple during the king’s visit to Girona in 2007. The two had been convicted to 15 months in prison or, alternatively, a fine of 2,700 euros ($2,972) each for inciting violence against the monarchy. The European court found that the photograph-burning constituted no such incitement and ordered Spain to compensate the separatists for the fine and their legal expenses.
Junqueras and the other former Catalan leaders also are appealing their sentences to the European Court of Human Rights. This will be a tougher case to rule on: Declaring independence is not the same as setting a photo on fire. But the secessionist leaders did not call for violence, but rather for civil disobedience. The Spanish Supreme Court argued that that violates the rights of law-abiding citizens, but even so, does civil disobedience really undermine the constitutional order — or does it merely encourage peaceful change? And does it justify such sentences?
These aren’t merely domestic matters, as the European Commission has maintained, any more than judiciary reforms in Poland and Hungary, which have increased political control over judges. Spanish courts’ harshness on Catalan separatists could well be politically motivated; how to treat Catalonia is a major issue in each Spanish election, and the country is about to have its fourth in as many years.
Spanish judges have been concerned about government attempts to increase control over judicial appointments, even if such attempts have been less blatant than in Hungary and Poland. And, according to a Eurobarometer survey, Spaniards regard their judicial system as less independent than Hungarians and Poles consider theirs. In fact, only Bulgarians, Slovaks and Croats have a lower opinion of their judiciaries’ independence.
The EU can’t be expected to help Catalan separatists win independence from Spain — that truly is a domestic matter. It is Europe’s responsibility to make sure member states follow the rule of law. The Catalans’ draconian sentences for non-violent political offenses are a painful reminder for the European Commission that it shouldn’t only look eastward when it comes to upholding European values.
To contact the editor responsible for this story: Melissa Pozsgay at mpozsgay@bloomberg.net
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Leonid Bershidsky is Bloomberg Opinion's Europe columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.
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