The Criminal Chamber of the National Court (AN) has rejected the appeal of the Prosecutor’s Office, to which the defenses of some of those investigated adhered, in which they opposed investigating the events attributable to the Tsunami platform as terrorism crimes. Democratic as the investigating judge of the case Manuel García Castellón described them, and advocated investigating them as public disorders, so the case, in the opinion of the public ministry, should be sent to the courts of Catalonia.
In its order, the Chamber confirms the jurisdiction of the AN to hear the procedure and bases its refusal to the Prosecutor’s Office on the arguments put forward in the Supreme Court’s order of February 29 in which it took over the Tsunami case for various crimes, among them that of terrorism, against those certified in this procedure, the MEP and former president of the Generalitat Carles Puigdemont and the Catalan regional deputy Ruben Wagensberg, while the Court maintained the jurisdiction to investigate the other ten investigated who were not certified.
In that order, the Supreme Court justices used the term “low-intensity terrorism” to encompass a string of crimes that were allegedly committed during the riots against the procés ruling in October 2019: illegal detention or coercion during the blockade of the entry and exit from El Prat airport, massive and continuous falsifications of plane tickets to access the facilities, injuries and attacks against authority caused with dangerous instruments such as paving stones or iron bars and, finally, serious crimes of continuous property damage in the streets of Barcelona. Conduct that, according to the High Court, can be included in the current article 573.1 of the Penal Code, which regulates terrorism crimes, in its teleological modality, that is, depending on its purposes.
At this point, the Chamber, citing the order of the Supreme Court, recalls that for conduct to be classified as terrorism it must be carried out with one of these purposes: Subvert the constitutional order, or seriously suppress or destabilize the functioning of political institutions or of the economic or social structures of the State, or forcing public powers to carry out an act or to refrain from doing so; or seriously disturb the public peace; or seriously destabilize the functioning of an international organization, or provoke a state of terror in the population or part of it.
In summary, states the Chamber citing the Supreme Court, it can be stated that article 573 considers the commission of a crime against physical or moral integrity, or against freedom, among other legal rights, carried out to seriously disturb public peace, or to force public authorities to carry out a certain action, as a crime of terrorism.
The Court also rejects the appeal of the investigated Marta Molina in which she described the investigation procedures agreed upon by the investigator in the order now appealed as prospective. The Chamber understands that this resolution reveals the existence of injured parties and the possible use of instruments capable of causing serious material and personal damage, with numerous injuries and a National Police agent who was left unconscious after a stone hit his head, which which forced his transfer to a hospital.
The Chamber also rejects the appeal of the investigated Josep Lluís Alay, director of the Puigdemont office, in which he indicated that there was no element to prove, not even in an indicative manner, that he had had a criminally relevant participation in the events investigated. The magistrates respond that the evidence against Alay is contained in the order of the investigating judge in which he agreed to summon him as an investigator, in a letter from the Civil Guard and in the aforementioned order of the Supreme Court by which it was declared competent to investigate Puigdemont. .
The actions attributed to Alay, says the Court, “are not those of a simple messenger to an assistant oblivious to the facts he deals with and the information he transmits. The magnitude of the actions carried out by Tsunami Democràtic reported in the appealed order and the described participation of Alay show how essential his participation was for the development of those. The magistrates base this on an official letter from the Civil Guard that attributes Alay to transmitting to Puigdemont “doubts from the so-called Democratic Tsunami coordination group about certain actions they plan to carry out” and communications between Alay with Puigdemont himself and other investigated .
