The observers believe that the Supreme Court "tends to only listen" to the narrative of violence

This week, the observers of the Catalan independence trial integrated in International Trial Watch (ITW) have highlighted the refusal of the presiding magistrate of the court, Manuel Marchena, to cross-examine eyewitness accounts with videos that exist regarding the facts being described. The six lawyers who wrote the report on the ninth week of the trial highlight that Marchena's decision could result in a "probable violation of article 6.3.d of the European Court of Human Rights" (ECHR) of which they had already warned.

"This limitation has had especially worrying effects this week, in which police officers who repeatedly denied that there was a disproportionate use of force and [described] the attitude of the people gathered have continued to take the stand. Not being able to cross-examine witness statements with recorded images of the facts prevents finding possible contradictions and therefore has direct effects on the assessment of evidence by the court."

The report adds that "even though the presiding magistrate of the court insists time and time again, when faced with objections from the defence counsels, that the videos will be viewed later on", this "will make them lose their probationary capacity with which they had been proposed."

"The limitation from the Presiding Magistrate of the Court on cross-examining witness accounts with video graphics or the displaying of documents admitted as evidence in the trial is maintained, with the consequences we warned about during previous weeks."

Constructing a narrative of violence

The second aspect of the ninth week of the trial highlighted by the observers is the insistence and coincidence by police witnesses on the use of "words such as "hostility", "fear", "mob", "riot", "active resistance", "subversive resistance", or "human barricades".

"Even though these are subjective assessments that in no way relate the accused to the facts attributed to them, they intend, on the one hand, to artificially (through insistence, repetition and coincidence) construct a narrative of violence."

"On the other hand, they display a very restrictive notion of the constitutional exercise of the right to peaceful assembly shared by both the police officers giving statement and the parties to the prosecution."

In this regard, the observers highlight Marchena's refusal "to accept questions on whether the citizens gathered in front of the polling stations legitimately exercised their fundamental rights." To this they add a warning:

"It could be deduced that the Court tends to only listen to the narrative of violence put forward by the prosecutions and based on the statements of law enforcement officers."

In spite of the above, they state that "there is still a lack of proportionality between the evidence and the charges pressed by the prosecution."

Concerned about a fair trial

Beyond the questions regarding the ninth week, the observers conclude their report by repeating their concern about three generic aspects of the trial they deem to be "worrying, with regard to carrying out a trial in the framework of the logic of a fair trial" according to the ECHR.

Firstly, they highlight that "there are no guarantees as to the incommunication (sic) of witnesses" because "they have all been able to listen to and view the statements of the previous ones." This aspect had already been previously denounced.

They also added that "the parties are still not aware of the complete calendar of the trial" and "the order in which witness evidence will be assessed", which they deem to be a factor that "hinders the preparation of questioning and weakens the exercise of the right to defence."

Thirdly and lastly, the authors of the report go even further and speak of a "violation of the right to the default judge according to the law":

"One last point to be highlighted is the fact that the parties are unaware of the criteria with which the members of the Court were chosen, which could be -along with the question of the objective competence of the Supreme Court itself to try the facts- a violation of the right to the default judge according to the law, keeping in mind that this is a  court created 'ad hoc' for this trial and the decisions whereof cannot be subject to ordinary appeals."

Related interactive resource: The keys of the Catalan independence trial

Positive: being able to sit next to the defence counsels

The report begins by highlighting the positive aspects observed by ITW, namely, the fact that "from the beginning of the sittins (...) the accused have been able to sit next to their defence counsels."