The ruling of the Supreme Court on the process of Catalan independence has been a memorable effort of intellectual honesty for its legal reasoning and moral rectitude for the maintenance of democracy in Spain .
We must thank that effort of the judges of the Supreme Court (TS), when so many from the trenches of independence and others who believed Democrats and constitutionalists are dedicated to crushing the last bastion that remains the rule of law in Spain.
At least, the judges of the Criminal Chamber of the TS are decent jurists. And they have fulfilled the expectations of decent jurists who, without pride, without sectarianism, are in Spain.
Regardless of the fact that this sentence of October 14 does not coincide with my position held here on the brutal institutional violence (Violence from the institutions of Catalonia, 25-10-2018), the Second Chamber of the TS has made a technically neat sentence, it is say, with knowledge of the rules that were required to apply to the facts judged. Reasonable and reasonable . The excesses that may exist are all attributable to the mediocre Criminal Code of 1995.
It is not his fault the late Penal Code of 1995 made by politicized constitutionalists and criminals thinking about the raids of the 19th century and not the threats of the 21st century for the Spaniards. The Criminal Code has a nineteenth-century idea of violence based on the force of arms. It is the Code that does not embrace political violence, institutional rebellion, moral violence suffered by citizens in Catalonia, the path of illegal institutional events. The Criminal Code does not criminalize proclaiming the independence of a territory of Spain by the institutions of an Autonomous Community if they do so between smiles and hugs. A unilateral declaration of independence is symbolic for the Criminal Code; says the TS, "symbolic." Terrifying the future of Spain with that Code.
Democracy and freedoms are defenseless in Spain with that code that only wants to take revenge on the military riots of the 19th century and not do justice now with the coup d'etats of politicians and their anarchist hitmen. And the TS can not invent norms or stretch the Criminal Code, it has not done so, with reasoning that we do lawyers without procedural breakers.
The TS cannot make extensive or restrictive interpretations, as it suits him, as until recently the Constitutional Court used to do in regional matters, inventing an accommodating Constitution in each sentence, adaptable, at least until 2017, to the needs of the pacts With the nationalists. These concessions of statehood have brought us here.
Today, in the international order, an evolved notion of aggression equivalent to the army is admitted if there is virtual or cyber violence against independence and territorial integrity . The attacked space that is the object of an aggression is not only the land, air and sea, being the diffuse cyber space integrated as part of the sovereignty. And cyber attacks between states are without tanks, without bombardment: with a smile and magic touch when introducing a modem or skewer into a USB port of the enemy. There has been a legal mutation of the concept of violence and all its legal conditions ( Tallinn Handbook on Cyberwar between States). The violence has been sophisticated. Also in Catalonia, but the Criminal Code that the TS had to apply could not correct its nineteenth-century rigidities or punish the de facto rebellion and still exists every day by the autonomous institutions and their anarchist assassins.
There are also arguments of exquisite legal logic in the sentence. Nothing is because yes. The sentence is meticulous - up to exasperation - by refuting the objections and allegations of the defenses. The extension of the arguments is neat to show its coherence with the jurisprudence of the European Court of Human Rights, as required by art. 10.2 of the Constitution.
The sections dedicated to disassemble the simple "right to decide" are pedagogical and, at the same time, technical level. The TS does not find, as the Canadian TS did not find, any basis in international or constitutional law or human rights violations. There is no human right to create States by neighborhoods , to everyone's taste, nor are they a people with the right to a State, as the TS justifies. It strives to make understand a reasoning that would not be different in other EU states.
I was pleased that the TS gave an example of two sentences of the constitutional courts of Italy (2015) and Germany (2016) that denied the right to decide regions of those countries and that I commented on this newspaper (06-22-2017, Guardiola around the world) in a wasteful effort with Pep Guardiola , rebellious to rational thinking, whose model of world democracy is that of the dictatorship of Qatar (also for Xavi Hernández , who in 2008 was dispatched with a top Spain! in the Plaza de Colón ). Or that the TS has referred with satisfaction to the Declaration signed by more than 400 professors of International Law of Spain (among them, about forty of the Catalan universities) denying any foundation for independence, which we promoted and wrote with great care to occupy the space of truth and commitment of decent people.
The sections that the TS dedicates to the judgment of the TS of Canada are excellent. Too bad it is not read by independentists refractory to any rational argument. Or the use made of Resolution 2625 of 1970 , a rule of general international law (obligatory and universal according to the International Court of Justice) that established a rational limit to self-determination, since it does not authorize or encourage "any action aimed at breaking or belittle, in whole or in part, the territorial integrity of sovereign and independent states that ... are, therefore, endowed with a government that represents the entire people belonging to the territory, without distinction on the grounds of race, creed or color " . It is true that the TS cites resolutions subsequent to that of 1970 - not mandatory - that repeat that paragraph of Resolution 2625. No one is perfect.
The management by the TS of the doctrine of the Committee for the Elimination of Racial Discrimination , deep and respected in matters of self-determination, is commendable and appreciated. Without fear. As the doctrine of the Venice Commission . Too bad the Catalan Government has not read any fragment of the sentence. I suggest that you concentrate on pages 197 to 254. At least not to keep lying to the Catalan people about the right to decide or say they are condemned to put ballot boxes.
I always believed that the ruling of the TS would lead us to a loop with few exits. Nor does the street light of the Criminal Code help with seemingly serious penalties such as 13 years: that is what remains in the street and in the international press. The Government must explain that none of those convicted will spend more than 3-4 years in jail in total. How to explain the criminal farce to calm the waters and lies?
The TS does not deserve criticism because it has been the last bastion for the defense of the rule of law. Former President Rajoy did not use the means he had (all) to avoid crime. He preached with joy and premeditation that they reached the end and staged the proclamation twice. There should never have been a crime for this process . They should never have tried a crime whose commission could be prevented. The former president, Mariano Rajoy, hid behind the judges and prosecutors (I said it, 11-26-2016); Without showing his face, he preferred to expose and sacrifice the King and then the judiciary. And he has left with impunity leaving a problem reminiscent of 1936.
Araceli Mangas Martín is a member of the Royal Academy of Moral and Political Sciences and a professor of Public International Law and International Relations at UCM.
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