published at May 15, 2024
García-Castellón’s decision to send them to Barcelona to testify next week may trigger arrest warrants just before the bill on the amnesty will become into effect
Translation of
Preparen una trampa als investigats del Tsunami la vigília de l’amnistia?
by Josep Casulleras Nualart
Judge Manuel García-Castellón of the Spanish Audiencia Nacional court has thought very well about the day he calls the dozen investigated for terrorism in the case against Democratic Tsunami to testify: May 22 at ten o’clock in the morning connected by video conference with the Audiencia Nacional in a yet unspecified court in Barcelona. He knows very well that it is just one week before the final approval in the Spanish Congress and the date the bill on amnesty will become into effect. It has been half a year since he pointed out the names of the people investigated for terrorism in this case, including the president Carles Puigdemont and the general secretary of ERC, Marta Rovira. And it has not been until now, with the amnesty about to become a reality, that he calls them to declare. Because in this way he can pre-empt the law, as well as the Supreme Court, and at the same time set a trap for those who are under investigation and will have to testify. The witnesses are at risk of being arrested and it opens the possibility for arrest warrants for those who do not show up.
Oriol Soler, Xavier Vendrell, Marta Molina, Jesús Rodríguez, Jaume Cabaní, Marta Rovira, Oleguer Serra and Josep Lluís Alay will have to decide what to do: if they go to Barcelona to testify, bearing in mind that most of them are in exile, or not. But whatever they do, there is a risc of severe consequences.
García-Castellón could have waited for the statements of President Carles Puigdemont and ERC deputy Ruben Wagensberg, who are summoned by the Supreme Court to testify by videoconference voluntarily between June 17 and 21. The case against Puigdemont and Wagensberg is at the Supreme Court as they are a member of the European Parliament and the Catalan parliament respectively. But the judge of the Spanish Audiencia Nacional does not want the investigating judge at the Supreme Court, Susana Polo, to lead. Judge Polo already moved forward with a criterion that absolutely went against the six year instruction of the Catalan independence case at the Audiencia Nacional and allowed the statements to be performed by video conference. Now García-Castellón is forced to follow the same procedure. Disassociating himself from it and call the investigated to testify in person in Madrid, at the seat of the Audiencia Nacional, would have been too strident.
But he has done it in his own way. Although he allows statements remotely, he tells the investigated that they should go to a court in Barcelona. If the Tsunami exiles want to testify, they are forced to return to Spain. There is no arrest warrant against them, yet, but the fact of going to testify in a court in the Spanish state can have consequences as they could end up in prison. This is by far not an improbable situation, on the contrary. Because this citation – at least that of García-Castellón – is not voluntary. At the statement the witnesses will be submitted to questions of various parties. Right after, any of the accusations can ask for precautionary measures against a person who testifies at the brief hearing, including preventive detention as article 505 of the criminal procedure law provides. In that case the judge will have to solve it.
And if they don’t appear? According to the same law, the summons that is sent to all the investigated persons called to testify may include a warning of the obligation to appear with the threat of a fine or of being prosecuted for obstruction of justice. In fact, the same law says that if a person summoned to testify “to be heard”, in accordance with article 486, does not appear before the judge, the appearance order “may be converted into an arrest order” , according to article 487. The only people investigated on the García-Castellón list who are in Spain, or who usually reside there, are Josep Lluís Alay, Oriol Soler and Marta Molina. Xavier Vendrell moves between Catalonia and Colombia. The judge could immediately issue an arrest warrant against them if they do not testify on May 22. If necessary, all of them.
But having learned that the majority are in exile or outside the Spanish state, he can immediately issue international arrest warrants and European arrest warrants. Since the amnesty law will not be definitively approved by the Spanish Congress until May 30, García-Castellón will have time to issue arrest warrants against all of them if they will refuse to appear in court. It is foreseeable that the international arrest warrants that arrive in Switzerland will end up stored in a drawer, taking into account the repeated refusal of the authorities of this country to collaborate with the Spanish Court in the investigation against the Tsunami.
Another thing would be the European extradition orders against those who were in states of the European Union. In this case the judicial authorities would process them and it would be necessary to see to what extent there could be an extradition. All of this would happen when the amnesty bill will become into effect. This could be the first argument put forward by those who are affected. Not only this, but also the violation of fundamental rights of which they could be victims in case of handover to the Spanish judicial authorities. Even the argument could be used of persecution for belonging to an objectively identifiable group (O.I.G.) of people for political reasons, in accordance with the judgment of the CJEU of January 31, 2023 in response to Pablo Llarena’s pre-trial motions.
Whatever decision they make, the declaration next Wednesday, the 22nd, will mark a turning point in the cause of the Tsunami. And the big decision will have to be taken both by the Supreme Court and by the Spanish Audiencia Nacional a few days later: will they apply amnesty to all those under investigation?