Prosecutor Fidel Cadena compares October 1 with February 23 excluding the tanks and shots

The last prosecutor to expound on the definitive conclusions on Tuesday in the Catalan independence trial was Fidel Cadena, who gave an overview of Spanish and international case law on the crime of rebellion.

He was preceded by his colleagues Javier Zaragoza, who said there was a "coup d'état" in 2017, and Jaime Moreno, who defended that there was violence.

The other prosecutor, Consuelo Madrigal, defended the crime of misuse of public funds to the extent that she stated that the accused formed a "criminal organisation".

"There are different kinds of rebellions"

According to Cadena, a military uprising is not required for there to be a rebellion. In what concerns Catalonia, he added, it was carried out "from the exercise of power":

"There are different kinds of rebellions, like the one that concerns us which, once the uprising has been reflected and a public and exteriorised display of its aims has been made, expects to carry out the act of violence when the State reacts as they expected from the start, in the 'Enfocats' document. The response would increase as the State would adopt a position to defend its territory and legitimate interests."

October 1 and February 23

To this end, Cadena stated that, if the military coup of February 23 1981 was approached in the same terms claimed by the parties to the defence, the fact that it was a rebellion could be called into question.

To argue his point, he stated that the only violence that took place was the "trips or shakes" received by lieutenant-General Gutiérrez Mellado on that day, ignoring the fact that the Guardia Civil entered Parliament firing in the air as well as the tanks that occupied the streets of some cities:

"If the violence of rebellion was limited to the exercise of physical violent, there were many bloodless rebellions in our military history. Moreover, any attempts that failed for a number of reasons would remain unpunished."

"It would happen that, in the case of February 23, its classification as rebellion would be called into question as, the objective of any violence, as doctrine puts it generally, affects intimidation, as the existence of physical violence is limited to the trips or shakes to lieutenant-general Gutiérrez Mellado, may he rest in peace. Therefore, it could be possible to challenge this military uprising of February 23."

This statement gave rise to comments out loud in the court, and the presiding magistrate of the court, Manuel Marchena, called for order. 

 

"It cannot be qualified as sedition"

According to Cadena, this excludes the crime of sedition - which the State Attorney's Office is focused on - because, according to him, it is no longer related to that of rebellion, as in previous time periods:

"In our opinion, we cannot describe this as sedition. In an earlier and, thankfully, forgotten era, the crimes of sedition and rebellion were together and travelled together. They were together in the field crimes against the internal security of the State, but they have been completely separated, sedition being an attempt against public order, within the crimes against the internal security of the State, and rebellion as a crime against the Constitution."

Cadena argued that the facts being judged were not an attempt against security, but against the "very essence" of democracy:

"What is at risk here is not security, but rather the very essence of the democratic system and the rule of law. Democracy itself and the Constitution itself were in peril, because the constitutional order had been broken. I believe this vision must be very important when classifying the criminal offence."

 

 

The "previously created crowd" on October 1

He also stated that the resistance of citizens in the polling stations on October 1 implied "force" and "violence", and he quoted a ruling of the Supreme Court from 1993 as jurisprudence supporting his point:

"There is a previously created crowd that blocks and acts as an obstacle to the passage of law enforcement forces that are acting on orders from a judge. The exercise of a greater force is required to achieve this aim. Is this included in the field of the concept of force? Yes, obviously, force and violence, according to the second courtroom of the Supreme Court in this ruling of 2 July 1993 which I have quoted."

 

"There remained no defence of Spain in that territory"

Cadena has fully justified that over 6000 police and Guardia Civil officers were sent for October 1 because, he stated, there was "no one who would accept to comply with the orders from the judge": 

"Public safety has been transferred in full to the self-governing region, and therefore there remained no defence of Spain in that territory: it was necessary to send more people because there was nobody who would accept to comply with the orders from the judge. Public safety, the control the State usually has in Catalonia, includes 17000 armed men; we will see where those men put themselves, as it will be important when it comes to analysing the existence of the offence."

 

An entire armed force aligned itself with the rebellion"

To this end, Cadena said that the majority of Mossos "would have liked to comply with court orders", but that "political power" "organised" their "passiveness":

"The power of the Mossos, not because of the Mossos, as they are a commendable corps the majority of which would have wanted to comply with court orders, but rather due to the use that has been made of them, implied the inversion of this power. When the inherent power of force, which goes from those who are the constitutional state to those who, from the self-governing region, are carrying out the separation from constitutional legality."

"Therefore, the passiveness of the Mossos is relevant, as it has been organised from political power; and the relationship of the Mossos with their constitutional duty required actions to improve the legal good they were protecting. If there was passiveness from the Mossos, this implies there was planning."

"In other words, having an armed force at the service of the rebellion, which is what was achieved by manipulating them. The pyramid has been inverted, and thus it is the self-governing power of the region that is using an entire armed corps, which sides with the rebellion, against court orders. The importance of this notion is crucial."