Spain Isn’t Imposing Excessive Punishment on Catalonia’s Leaders. It’s Enforcing the Law.

Mark Nayler’s recent Foreign Policy article “Tough Talk on Catalonia Might Win an Election, but It Won’t Unite Spain” mischaracterizes the recent ruling by the Spanish Supreme Court on the trial of 12 Catalan secessionist leaders for their involvement in the deliberate attempt in 2017 to unilaterally impose the secession of Catalonia.

Nayler deliberately avoids any mention of the Spanish constitutional framework. To understand the events that led to the trial, it is important to understand Spain’s Constitution, approved by referendum in 1978 with 90 percent of Catalan voters supporting it. While the constitution granted a very high level of autonomy to Catalonia, it also clearly protected the country’s territorial integrity, like most democratic constitutions in the world do.

Since 1869, the United States has also held that the “more perfect Union” set out in its constitution prevented any one state from unilaterally seceding. In that year, the U.S. Supreme Court ruled that Texas could not secede from the United States because, following its admission to the United States in 1845, Texas had become part of “an indestructible Union composed of indestructible states.” This principle was reaffirmed as recently as 2006, when the Alaska Supreme Court held that secession was illegal and refused to allow such an initiative to be presented to the people of Alaska for a vote.

Contrary to what Nayler argues, the trial of the former Catalan President Artur Mas in 2017 cannot be compared with the trial of the Catalan secessionist leaders in 2019. Mas was tried for disobedience under Article 410.1 of the Spanish criminal code after he pressed ahead with an informal vote in November 2014, which had been previously banned by the Constitutional Court.

The Catalan secessionist leaders have been tried for different offenses: four of them for sedition and misuse of public funds (embezzlement)—as defined in Article 544 and 432-435 of Spain’s criminal code—five for sedition, and three for disobedience. The Supreme Court, far from being “determined to make examples of the defendants” as Nayler claims, has simply applied the law. It has imposed different punishments for different actions.

As the Spanish Supreme Court has very clearly stated, political advocacy to alter the constitution or to declare the independence of a portion of the national territory is not in itself a criminal offense: What is a crime is to use public funds for an aim other than the one legally foreseen and lead the citizenry in a public and tumultuous uprising to prevent the application of law and obstruct compliance with court decisions. These are the unlawful acts these leaders have been convicted for.

Nayler also appears to cast doubt on the independence and impartiality of the Spanish judiciary, in open contradiction to what has been repeatedly acknowledged by the European Union Justice Scoreboard and the Council of Europe’s GRECO anti-corruption reports .

When he refers to the international community’s reaction to the Catalan issue, he chooses to mention a U.N. working group—the statements of which merely reflect the opinion of its members and not the official position of the United Nations—and forgets that the European Court of Human Rights, which he mentions is unlikely to help the secessionist cause, has already ruled three times against Catalan secessionist appeals.

When discussing former Catalan President Carles Puigdemont’s self-imposed exile in Belgium, Nayler seems to imply that the former Catalan president is able to live there without being extradited to Spain due to “sympathy with his plight.”

Belgian judges may not appreciate the doubts that Nayler appears to be expressing about their professionalism. The Spanish judge withdrew his request for extradition and has now filed a new one, based on the recent Supreme Court ruling.

The article mentions that Catalan secessionists are facing “formidable difficulties” to turn “their dream into reality.” There is a democratic path to amend the Spanish Constitution, including the article stating the “indissoluble unity of the Spanish Nation.” That is the legal path they could follow, not the illegal shortcut they decided to take instead.

It is worth remembering, however, that the majority of Catalans want to remain part of Spain. During the general elections on Nov. 10, 42.5 percent of voters in Catalonia opted for parties that favor independence, but 56.2 percent voted for parties that don’t. These numbers reflect deep divisions and confirm that secessionists represent a considerable segment of Catalan society—but not a majority. All elections held at different levels in Catalonia reflect this fact and in some cases even more clearly, such as the municipal elections held in May 2019, when secessionist parties received only 38.8 percent of the vote.

Nayler is correct, however, when he mentions the acting Spanish prime minister’s desire “for a dialogue-based approach to the Catalan issue.” The government of Spain remains fully committed to building dialogue and reconciliation in order to achieve the normalization of regional political life and peaceful coexistence of citizens with different political opinions.

This is compatible with the condition that the dialogue takes place within the boundaries of the Spanish Constitution. Our essential political covenant has made possible the freedoms and prosperity enjoyed by Spaniards for more than 40 years and recognizes and guarantees the right to self-government of the nationalities and regions that make up Spain, as well as the solidarity among them.