The Constitutional Court has rejected the appeal of the former president of the Parliament of Catalonia, Carme Forcadell, against her conviction for sedition, considering that her conduct of promoting the you process it is not protected by parliamentary inviolability. This prerogative protects the freedom of expression of parliamentarians, but not their ability to become a “mere power of fact, outside the law,” as argues the sentence, made public this Friday.
Forcadell was sentenced by the Supreme Court in October 2019 to eleven years and six months in prison and disqualification. Both in the oral hearing and in his appeal for protection, he has argued that this sentence invaded and denied the powers of the parliamentary assemblies, which in his opinion should have the possibility of debating any matter of citizen interest. These arguments are now replicated by the Constitutional ruling that Forcadell’s performance as president of the Catalan Parliament was carried out “in disregard of and stubbornly disregarding the pronouncements, warnings and requirements of that court.”
With this, continues the sentence, of which the magistrate Ricardo Enríquez has been a speaker, Forcadell not only “has not prevented or paralyzed” illegal initiatives, but has “promoted” them. In this sense, it is cited “the processing, debate and voting in the Chamber of parliamentary initiatives that were intended to serve as support and give continuity, bypassing the constitutional reform procedures, to the political project of separation of the Autonomous Community of Catalonia from the Spanish state and the creation of an independent Catalan state in the form of a republic, starting the so-called constituent process ”. The thesis of the sentence is that conduct of this type has nothing to do with parliamentary inviolability and the protection of the free expression of citizens’ representatives.
The court emphasizes that Forcadell’s actions favored the Catalan Parliament to be situated in “a position of alienation to the constitutional order, by acting as a mere power of fact, absolutely outside the law and, therefore, expressly waiving the exercise of the constitutional and statutory functions that are its own ”. The ruling, which was approved by seven votes to two, underlines that “the legitimate exercise of these functions is a prerequisite for the protection that parliamentary inviolability exempts from the members of the Chamber.”
In short, the actions of Carme Forcadell, “which have served as support for the decisions adopted by the Chamber, are not protected by parliamentary inviolability as they manifestly deviate from the purpose of the prerogative.” In this sense, the judgment insists that the express repudiation by the Parliament of Catalonia of the binding nature of the Constitution and the Statute of Autonomy that should govern its actions “deprived the provisions and acts thus adopted of any presumption of legitimacy and of those who they promoted, processed and approved the possibility of invoking the powers and prerogatives associated with the exercise of the parliamentary function ”.
The ruling also dismisses that the legal configuration of the crime of sedition suffers from a lack of exhaustiveness, that the interpretation that the Criminal Chamber of the Supreme Court has made of the criminal type is harmful to the fundamental right to legality (art. 25 CE), as the Constitutional Court has affirmed in SSTC 91/2021, 106/2021 and 121/2021, where it does not appreciate that the criminal type of the crime of sedition of art. 544 of the Penal Code suffers from a degree of vagueness that infringes the guarantee of exhaustiveness. Regarding the complaint regarding the lack of proportionality of the sentence imposed on the appellant for a crime of sedition, the Court reasons that the criminal sanction is not disproportionate or dissuasive with the exercise of fundamental rights, in particular, freedom of assembly and manifestation.
Judges Juan Antonio Xiol and María Luisa Balaguer have made a private opinion in which they consider, on the other hand, that the sentence imposed on Forcadell was disproportionate. Both consider that this disproportion entails a violation of the right to punitive legality (art. 25.1 of the Constitution), in relation to the rights to personal freedom (art. 17.1), ideological freedom (art. 16), assembly (art. 21) and political representation (art. 23.2).
Xiol and Balaguer add that in order to have given a criminal response proportionate to the fundamental rights that were affected – and especially the right to political representation (art. 23.2 of the Constitution) -, it should have been duly considered that in the case of the appellant, raises the singularity that his conviction was not based on his direct participation in the facts declared seditious. They emphasize that said activity as president of the Catalan Parliament consisted of promoting the admission, processing, debate and voting of specific parliamentary initiatives. And they admit that such initiatives were in open contradiction with the Constitution and in stubborn opposition to the pronouncements of the Constitutional Court.
Both magistrates consider that these actions, for the purposes of their criminal classification and determination of the sentence, could be considered as a disobedience to the Constitutional Court and even used for their subsumption in the crime of sedition, “as necessary conditions for the achievement of the objective alleged”. However, they add, such actions “were not sufficient to consummate the criminal contribution that is alleged to have been arranged with the rest of the convicted persons to establish a parallel regulation justifying the calling of the referendum, since the concurrence of the majority vote of the members was required. of the Board and the Plenary of the Parliament of Catalonia, outside its control and parliamentary functions ”.
In any case, the private vote agrees that the prerogative of inviolability of article 57.1 of the Statute of Autonomy of Catalonia cannot be appreciated, since the actions reproached by Forcadell “were adopted in open breach of previous resolutions of the Constitutional Court that specifically warned about that particular, and that the excess that this implied in the exercise of the right to political representation could justify an interference in this right in the form of a criminal conviction as a necessary response in a democratic society ”. However, they disagree with whether this excess is sufficient for the severe sentence imposed on the appellant for “the devastating discouraging effect” it has on the exercise of this fundamental right.
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