Tuesday, September 28

Did the Supreme violate the rights of the independentistas? Examination of the procés case with a view to Strasbourg

Spurred on by the critical votes of two magistrates of the Constitutional Court, the pardoned prisoners of the procés have begun to present their demands before the European Court of Human Rights (ECHR). For now, the president of Òmnium Cultural, Jordi Cuixart, and former minister Jordi Turull and Josep Rull have appealed to the court based in Strasbourg, but as the internal instances are exhausted, they will be followed by the other six convicted of sedition.

The prisoners are optimistic and hope to obtain in Strasbourg the “justice” that they say they have not obtained in the Supreme Court. But it will not be a quick process at all – the ECHR sentence could be extended at least one year, and longer once they have already been released from jail – nor will it be a new trial of the procés. Strasbourg cannot change the facts sentenced by the Supreme Court, but it can say whether the High Court respected the rights of the prisoners in the investigation, trial and sentencing of the case. The demands of the prisoners are maximum and concern the violation of half a dozen fundamental rights, both the most technical, such as the judge predetermined by law, and the most political, such as freedom of expression and assembly.

Among all the academic literature that has generated the cause of the procés, one book stands out that can serve as a guide for the recently launched European path. More than a dozen professors and professors of Law analyze the Procés case in ‘The procés sentence, an academic approach’ (Atelier, 2020). The publication is, in the words of its director, the professor of Criminal Law at the University of Barcelona (UB), Joan Queralt, a way to “dialogue without shame or reservations” about the legal implications of the process.

The judge predetermined by law

Although it is a less politically charged right than that of assembly and demonstration, it is one of the assets with which the prisoners hope to condemn Spain in Strasbourg. It was one of his battles from the beginning of the case: the procés had to be judged by the Superior Court of Justice of Catalonia (TSJC) and not the Supreme Court because the events essentially took place in the community. Now they demand that Strasbourg condemn Spain for violating article 6 of the European Convention on Human Rights (ECHR) because, in their opinion, the Supreme Court was neither the court predetermined by law nor impartial.

Among the scholars of the book there are two visions. Professor José Martín believes that the case in the Supreme Court was developed with “absolute respect for the constitutional mandate” of the right to a judge predetermined by law and endorses the motives of the High Court to stay with the case: not to break the case among those investigated in the National Court and the Supreme Court, the “effects” in all Spain that the procés had and for some investigated activities abroad (transfers to international observers of the referendum that were carried out from Catalan delegations abroad).

On the other hand, the professor of procedural law at the UB Jordi Nieva is critical and considers “weak” the arguments of the Supreme Court to retain the cause of the process. “The attribution of jurisdiction was based on unsustainable, very apparent and debatable criteria,” reasons the academic, who believes that the case would have had to be judged at the TSJC.

The right of assembly and the ‘Jordis’

The demands of those convicted before Strasbourg address more basic rights that they see violated, such as their freedom of expression and assembly (articles 10 and 11 of the ECHR) and the principle of legality (article 7). They are related not only to the high penalties that were imposed but also to the vagueness of the crime of sedition in the Penal Code, something that, in his opinion, made it unpredictable to know that they would be convicted of this type when the events occurred.

In this regard, Nicolás García Rivas, professor of criminal law at the University of Castilla-La Mancha and an expert in the crimes of rebellion and sedition, states in the book that the facts of the process “do not fit” into sedition, a crime that, it recalls, as it is written “it lacks the strictness necessary to comply with the mandate of certainty of the principle of criminal legality.” “Beyond the political opinions on the constitutional disloyalty of the separatist leaders, the strict application of criminal law is one of the fundamental axes of the rule of law recognized by the Constitution, the UN Charter of Fundamental Rights and the ECHR” , apostille.

Special incidence has the right of assembly in the sentences to two social leaders as Jordi Sànchez and Jordi Cuixart were in 2017. This is argued by the professor of constitutional law at the UAB Mercè Barceló, who points out that the condemnation of both leaders “lacks such reasonableness because it has been unpredictable for its recipients to foresee that acting under the right to assembly would result in a conviction of nine years in jail. ”

On the other hand, for the professor of criminal law at the UB Mirentxu Corcoy, the “ideal qualification” of the process was not sedition but rebellion, since although independence was not consummated, this expert does see a “public and violent uprising” in the sovereignist autumn of 2017, as defended by the Prosecutor’s Office in the trial.

In the opinion of the professor of philosophy of law at the Pompeu Fabra University, when there are two possible interpretations of a crime that affect political rights, such as freedom of expression or assembly, the court should choose the one that limits them to a lesser extent, in This is in line with the jurisprudence established by the ECHR: “What the Supreme Court should do based on the ECHR is to recognize that in some of the situations there may be doubts as a result of the vagueness of concepts such as ‘tumultuous uprising by force’ of the crime of sedition and opt for those most demandable from the postulates of the democratic theory of the XXI century “.

Diversion of power?

With their maximum demands, the pro-independence leaders also want the ECHR to condemn Spain for Article 18 of the ECHR, which punishes the misuse of power by states to punish their political opponents. No state in Western Europe has ever been condemned by this article, so far reserved for cases of persecution of dissent in post-Soviet republics. The convicted persons understand that the fact that a partial court for them such as the Supreme Court punished a legitimate exercise of rights is not only a misapplication of the law but a deliberate action to repress the independentistas.

In the opinion of the professor of public international law of the UB David Bondia, the ECHR will not condemn Spain for the articles related to the misuse of power, but it does see more signs that Strasbourg “ends up opting” for a conviction for violation of rights of meeting and demonstration of the independentistas “when not being able to perceive the necessity of these limitations of rights in a democratic society”, in line with the manifestations of the progressive magistrates of the Constitutional who criticized the sentence of the Supreme.

The Forcadell case and rights as deputies

The incidence of the criminal case of the procés on the political rights of the convicts who held seats in Parliament and Congress during the investigation is also part of the analysis of the experts. The professor of criminal law at the University of Valencia, Javier MIra, highlights that the “insistence” on the crime of rebellion during the investigation of the case allowed the adoption of the provisional imprisonment of the leaders as well as the suspension of their public positions when they were prosecuted. The latter could not have happened if the prosecution had been for sedition, the crime for which they were finally convicted.

The suspension of the seats of Junqueras, Romeva, Rull and Turull before being sentenced, argues the professor, entails “an alteration of the composition of the chambers and of the majorities by making the precautionary suspension worse than the penalty of disqualification, altering the democratic principle “.

The unique circumstances of the former president of the Parliament Carme Forcadell (the rest of those convicted were either members of the Government or of civil society) are also part of the book. For the professor of administrative law at the University of the Basque Country Iñaki Lasagabaster, the Constitutional warnings to Forcadell not to debate sovereign laws “seek to prevent the functioning of parliamentary activity, something totally alien to the comparative experience” in neighboring countries.

On the other hand, the Supreme Court considered that the parliamentary act of not paralyzing the debates, as ordered by the TC, was not only disobedience to the Constitutional Court but also constitutive of sedition by not being able to protect itself in parliamentary inviolability (the right not to be punished by the opinions and votes in the Chamber).

The parliamentary act that departs from its genuine functionality and becomes the vehicle to disobey the decision of the Constitutional Court is not an act protected by law or that can be sheltered under the constitutional prerogative of parliamentary inviolability. “In this sense, the Professor of Constitutional Law at the UB Enoch Albertí considers that the dynamics of notices from the Constitutional Court about the dangers of ending up indicted if certain debates take place in the Parliament “drag” the court of guarantees and Justice “into the field of political action in a clear interference in the parliamentary sphere “.


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