The European Court of Human Rights (ECtHR) agrees to review the ‘procés’ ruling, a decision that arises in the midst of controversy over the possible amnesty law as a counterpart to the investiture by the independence movement of Pedro Sánchez. What’s more, the Strasbourg court gives Spain until January 12 to respond to the allegations raised by the secessionist leaders. Or what is the same: the Government has to admit or deny that the rule of law exceeded the sentences. And in the event that he recognizes some type of irregularity, he has until the beginning of the year to try to reach a friendly solution with those convicted of the secessionist attempt in the fall of 2017; or, even, and always in the event that Spain recognizes that it did not act properly, rulings, to compensate them for the alleged damage caused by the Supreme Court ruling.
The possibility of the Spanish Government (or that of any other European State) singing a ‘mea culpa’ for such a far-reaching judicial ruling and with a sentence issued by the highest judicial instance in the country would have been unthinkable a few months ago. But now, after the pardons, the reform that suppressed sedition and with the amnesty on the negotiating table for Sánchez’s investiture, nothing is certain. And it cannot be ruled out that with Carles Puigdemont keeping the threat of repetition alive, the defendants end up demanding that the State apologize to them in Strasbourg.
The State Attorney’s Office, which depends on the Ministry of Justice, is the one that must answer the six questions that the ECHR has sent and which are summarized in whether or not Spain recognizes that it violated the law in the trial of the separatist leaders. The European Court notified this Friday of its decision to admit appeals to the pro-independence leaders who appealed against their conviction: the former vice president of the Generalitat of Catalonia, Oriol Junqueras; former councilors Raül Romeva, Jordi Turull, Dolors Bassa, Joaquim Forn and Josep Rull; the former president of the Parliament Carme Forcadell; and the former heads of the ANC and Ómnium Cultural, Jordi Sànchez and Jordi Cuixart. In October 2019, the Supreme Court imposed sentences of up to 13 years in prison on all of them for organizing the illegal 1-O referendum.
Rights in dispute
The condemned arrived in Strasbourg after the Constitutional Court flatly rejected their appeals for protection. They alleged the violation of various precepts of the European Convention on Human Rights, starting with article 7, which establishes that “no one may be condemned for an action or omission that, at the time it was committed, did not constitute an infraction under the Law.” national or international. And all this, based on the fact that 1-O did not constitute a criminal offense.
The pro-independence leaders also denounced before the ECHR that they had seen Articles 10 and 11 of the Convention (rights to freedom of expression and assembly) violated by having been convicted of sedition when they “had simply encouraged people to participate in demonstrations in defense of the independence process and to participate in a referendum on the independence of Catalonia. They added that the sentences imposed were “disproportionate”, as the Government itself would have recognized – the appellants understand – when it subsequently repealed the sedition. And some of those convicted also denounced the violation of Article 5 of the Convention (relating to freedom and security) by considering that the time they spent in prison was also disproportionate.
The court now addresses Spain a total of six questions that in most procedures would merit a negative answer from any European Government. However, the political situation, with a possible amnesty for the authors of the separatist attempt and after the relaxation of the previous legal framework, compromises Sánchez’s Executive, which must respond through the State Attorney’s Office. Spain is going to have a harder time defending the sentences when the State itself has eliminated the main crime of that process – sedition – and after the Supreme Court has had to review them, with those sentenced released by virtue of the pardons.
«Unforeseeable interpretation»
The first of these questions is directed against the central axis of the sentence by questioning whether the Supreme Court made, in its sentencing verdict, “an unpredictable or expansive interpretation of the crime of sedition and/or embezzlement of funds” that would contravene article 7. of the aforementioned Convention. The other questions aim, among other matters, to determine whether the amparo applicants were convicted when they legitimately exercised their rights to freedom of expression and association or whether Article 5 of the Convention has been violated by their imprisonment.
Last February, the Supreme Court reviewed the sentences of the nine leaders of the ‘procés’ following the penal reform that repealed the crime of sedition and modified that of embezzlement. This review was limited to the disqualification sentences because the prison sentences had already been pardoned by the Government in 2021. In the case of Junqueras, the high court agreed to maintain the sentence of 13 years of disqualification, which means that he will not be able to aspire to no public office until 2031 by changing the crime of sedition to that of disobedience and maintaining the crime of embezzlement.
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