Almost five years after its peak, the Catalan independence process is fully prepared to travel to Strasbourg. In recent days, the Constitutional Court has rejected the appeals of the most recent convicts who were still awaiting a decision, and this opens the door for them to go to court. European Court of Human Rights (ECHR). The scenario, however, is unusual from several fronts: the Constitutional rulings have been issued with individual votes and the Catalan independence leaders, in addition, appeal convictions for which they have already been pardoned by the Government.
The Supreme Court issued its sentence on October 14, 2019. Unanimously, the criminal chamber imposed sentences of up to 13 years in prison for crimes of disobedience, sedition and embezzlement to the 12 pro-independence leaders tried. From the convictions for disobedience of Santi Vila, Meritxell Borràs and Carles Mundó to the prison sentences of the rest of the defendants for sedition – alone in the case of Jordi Sànchez and Jordi Cuixart – and also embezzlement of public funds.
The Constitutional Court began to resolve cases in February 2021 and started with a confirmation of the convictions for disobedience. Those sentences were the only ones issued unanimously by the court of guarantees: from there came the cases of those convicted of sedition and with them the private votes of several magistrates. Votes that do not question that they committed a crime but do, for example, his jail sentences for sedition were disproportionate.
More than a year has passed between the first and the last Constitutional ruling, so some of the procés prisoners have already had time to take their case to the ECHR. The first was Jordi Cuixartthen leader of Òmnium Cultural, which took just 24 hours to register his appeal in France after the Constitutional Court confirmed his nine-year prison sentence in mid-2021. Shortly after, the former Minister Jordi Turull, sentenced to 12 years for sedition and embezzlement. The next one was Josep Rull and then Jordi Sànchez.
In recent days, the Constitutional Court has confirmed the rest of the sentences: Oriol Junqueras, Raül Romeva, Dolors Bassa and Joaquim Forn can now carry their sentences to Strasbourg. Neither they nor their lawyers hid at any time their intention to submit the entire judicial process to the criteria of the European courts with the hope that Strasbourg would amend in some way, no matter how small, Judge Manuel Marchena and instructor Pablo Llarena.
Getting Strasbourg to study a case is not easy. According to official court data, in 2021 received more than 44,000 appeals and more than 30,000 were declared inadmissible. The same thing happens in the Constitutional Court in Madrid, where more than 95% of the requests for amparo are directly inadmissible each year without the magistrates even entering to study the merits of the matter.
Those convicted of the procés arrive in Strasbourg in an unusual situation. In the first place, because all the sentences on the nine pro-independence leaders convicted of sedition have been handed down unanimously and, therefore, have individual votes that question important aspects of the sentences imposed on them by the Supreme Court. First, it was the magistrates Juan Antonio Xiol and María Luisa Balaguer who expressed their doubts and, after the last renewal, the recently incorporated Juan Ramón Sáez has also presented private votes in the cases of Oriol Junqueras, Raül Romeva and Dolors Bassa.
The individual votes do not totally agree with the prisoners of the procés. In their opposition to Jordi Turull's sentence, for example, Xiol and Balaguer were clear in expressing that they act "without contesting the criminal relevance of the appellant's conduct." But they were also so when explaining why they consider that their 12-year prison sentence is disproportionate: neither the crime of sedition is clear nor is it clear that it was the most respectful option with the fundamental rights of the independence leaders.
These dissenting votes speak of "features of relative uncertainty for the citizen" in the crime of sedition, an "indeterminacy" in its limits and scope of application and the facts could even "have had a natural fit in other criminal types such as public disorder or disobedience". For this reason, the dissenters understand, they do not question that they committed a crime but they do question that they had such a severe punishment: "The rigor of the criminal response, which could have been quantitatively adjusted, was contrary to the requirements of the principle of criminal proportionality," settled the private vote.
The case of Sànchez and Cuixart was different and they also found different arguments in their dissenting opinions. A sentence of nine years in prison for sedition, said the two dissenters, "in the face of the mere calling of acts that, even if they were to oppose the execution of judicial decisions, had as their ultimate objective to pressure the Government in favor of a political negotiation that would make it possible to address the question of the independence of Catalonia, supposes an interference in the right of assembly". An interference that has, according to the two magistrates, "a devastating discouraging effect on this right, which threatens to impoverish our democracy, to align us with societies disciplined by the abuse of the penal system in the repression of conduct that unfolds in the material sphere of Fundamental rights".
These are arguments that, once the door of the Spanish courts has been closed, will now be studied in the European Court of Human Rights. It remains to be seen if the ruling of the Supreme Court passes the demanding Strasbourg filter, in whose ranking of setbacks Spain occupies positions in the lower part of the table. According official data of the ECHR, Spain has been sentenced 134 times since it began to be audited in Strasbourg. Much less than, for example, Portugal (278), the United Kingdom (363), Italy (1,890), Greece (948), Austria (284) or Belgium (198).
The vast majority of those reproaches to Spain, almost half, have been for violating the right of the convicted person to have a "fair trial". A good number of these convictions come from situations in which someone was convicted in second instance, after being acquitted, without being heard by the judges. This happened, for example, with Juan Mari Atutxa. Another case of this group was that of Arnaldo Otegi: the leader of EH Bildu, according to Strasbourg, did not have a fair trial because the rapporteur magistrate of the 'bateragune case' had shown clear signs of animosity towards him.
The judicial fight that those convicted of the procés begin in Strasbourg starts in a very different scenario from the one they went through when they were imprisoned, tried and sentenced. In the first place because none of them is already serving a sentence behind bars: in June 2021 the Government of Pedro Sánchez decided to pardon all those sentenced to prison sentences and those who were in prison at the time were released. The Supreme Court has also rejected all submitted resources by the right against these pardons.
What between 2017 and 2019 was the case that monopolized judicial news almost exclusively -along with the Gurtel case, 'the Pack' of Pamplona and the Franco's exhumation– does not debut now in Europe, although it does by putting the substance of the matter on the table of the judges in Strasbourg. Throughout the investigation phase, for example, the Court of Justice of the European Union (CJEU) agreed with Oriol Junqueras in his lawsuit with the Supreme for his status as MEP. Strasbourg denied an appeal of Carme Forcadell against her provisional prison.
In addition, those who escaped in 2017 with Carles Puigdemont are still at odds with Judge Pablo Llarena in a complex fight for his immunity and his extradition processes while one of the former ministers, Meritxell Serret, has opted to return to Spain and face a process for disobedience for which, at most, she will be disqualified.