A German witness in the Madrid trial against separatist politicians
B. v. Grünberg, lawyer and social democrat, takes a position

Bernhard von Grünberg, member of the (German) North Rhine-Westphalian state parliament. observed the events surrounding the attempted referendum on 1 October 2017 in Catalonia. He was recently heard as a witness in the trial in Madrid. A reason to ask him some questions.

The questions:

* Do you speak Spanish or Catalan?

* Article 6 (2) of the Catalonia Autonomy Statute, the Constitution, defines Catalan and Spanish as official languages and states that there can be no discrimination in the use of one language or the other. This provision also corresponds to the Statutes of Autonomy (Constitutions) in other areas such as Valencia, Balearic Islands, etc. Did you notice that, although the Catalan population is mostly Spanish speaking, you can hardly find a company in Catalonia that labels Spanish? Do you know why?

* You know that throughout Spain about 1/3 of the schools (concertada and privado) are privately run and what do you know about the language of instruction in private and public schools in Catalonia?

* What do you know about the indoctrination allegations made to public Catalan educational institutions?

* Do you know the term „paisos catalans“ and what do you know about the strategy of re-Catalanisation?

* The UN rejects a secession of Catalonia. The Federal Constitutional Court lately prohibited a secession of Bavaria in December 2016 by rejecting a constitutional complaint. How do you assess the legality of a secession of Catalonia from Spain? Should Catalonia succeed Spain, what would you think if Tabarnia (i.e. the Barcelona region and Tarragona) wanted to secede from Catalonia?

* How do you assess the situation of Spanish democracy compared to democracy in Germany?

* What do you know about the situation of working EU foreigners in Spain?

* Are you familiar with the health care insurance problems of retired German retired living in Spain?

* Is there anything, you want to say, in answer to any questions I did not ask?

The answer:

I would like to answer your questions more in context, because only in this way my opinion on the conflict becomes clear. I speak only a little Spanish, but have enough friends and acquaintances to help me translate. You will know that I am not in favor of independence, but I am trying to help in the discussion on a number of key issues, such as secure federal competence, fiscal equalization and the history of the civil war and Franco-era and the post-Franco period.

German experts could provide advice on these points in particular. An important question for the Catalans is of course their own language tradition. As you know, the Catalan language was forbidden during the Franco period.[1] It is therefore not surprising that the preservation and transmission of this language is culturally very important for many. I know that both Spanish and Catalan are official languages. I believe that it is also part of a democratic approach that one endures the arguments of the others or tries to understand them. School politics and the content of teaching are eternal issues in our country. We should actually be able to reach agreement on this, even between the Spanish and Catalan governments. A little less emotion on both sides would certainly be reasonable for living together.

I can't imagine the UN saying anything about independence for Catalonia.[2] The UN is a peacekeeping organization. As far as the German legal situation is concerned, it is true that the Federal Constitutional Court rejected a vote on the independence of Bavaria. This motion came from a small, insignificant citizens' initiative. I have said several times that in Germany it would not really come to such a situation that a region with majority in parliament wants independence, because one would have tried long before to reach an amicable solution between state and regional state.

There are two contradictory legal principles, the right of self-determination of a people (here it is stated in the Spanish Constitution that Spain is a union of nations or nationalities) and the loyalty to the federation. These are theoretical positions that Spain and Catalonia hold too strongly.

What matters is reality. The majority of Catalans should understand that they cannot stay in the EU without the consent of Spain and that a hostile neighbourhood with a Schengen border is not desirable either. The Spanish should understand that they cannot permanently prevent a large part of a population from staying with them if they no longer want to live together. The Brexit drama in particular shows that unrealistic targets (or populisms) do not lead to problem-solving. The problem of Spanish democracy is also that there is no guaranteed federalism, that there are insufficiently coordinated rules for the equalisation of national finances and that history has not been worked through sufficiently and that it still fuels emotions.

I was astonished to see the Supreme Court's trial. How can it be that rebellion and upheaval are accused, which presuppose a state threatening violence, which obviously does not exist? The Higher Regional Court of Schleswig-Holstein and other courts in Europe had refused to extradite Mr Puigdemont because this is also a prerequisite for the fulfilment of a criminal offence in Spain. The government and the judiciary did not take a technical position on this before the trial.

The second offence of embezzlement of public funds by the referendum on 1st October 2017 is also problematic because the Spanish Finance Minister and Prime Minister Rajoy declared that the Catalan government could not spend any money because the financial responsibilities had long since been with the central state. I have to assume that the Spanish state will abuse the justice system to solve a political problem that cannot be solved through dialogue.

This, however, leads to an economically catastrophic assessment for Spain that the judiciary in Spain is controlled by the government. For me as a lawyer, it was also completely incomprehensible that a political party, here also a right-wing extremist, could be a joint plaintiff in the trial and that the trial would be broadcast on television. How can a judge adjudicate by law alone and be unimpressed by a political campaign?

I do not want to say anything about the situation of EU foreigners in Spain. I assume that they have the same legal status as the rest of Europe.

I also do not want to comment on the health care situation of retired residents.


1] With the victory of the Allies after the 2nd World War the Franquists had to partly give up their repression of languages, writes e.g. Wikipedia and Catalan was no longer forbidden. The foundation of the Catalan cultural organization „Ómnium Cultural“ in 1961 during the Franco period, which today has been transformed into an important political instrument of the separatists, bears witness to the fact that one cannot speak of a ban for the whole Franco era.

The abolition of the prohibition of the Catalan language cannot, however, be interpreted as meaning that there was no longer a language dictatorship of the Franquists in favour of Spanish. Catalan continued to be oppressed by similar means as the separatists are oppressing Spanish today.

[2] In a subsequent telephone conversation I referred Mr von Grünberg to the quotation of the former Secretary-General of the UN, Ban Ki Moon. During a visit to Barcelona in 2015 he clarified: „Catalonia does not belong to the areas which have a right to self-determination!“

We quickly reached agreement on the idea that not all problems can be solved legally. What is not legal can still be legitimate. A thought, which I already expressed on this Blog on 13 February 2019 in my article about the trial against the 'procés'.