Dissenting opinion paves the way to Strasbourg

2 min
The former Minister of Presidency Jordi Turull just before entering the prison of Almeces in the last revocation of the third degree.

The Constitutional Court rejected the first appeal for protection from one of the convicted in the sentence on the Independence bid, in this case Jordi Turull. However, it did so with two dissenting opinions that have been made public this Wednesday and which contain an important legal ammunition to support an appeal to the European Court of Human Rights (ECHR). The authors of the dissenting opinion are two magistrates, the Catalan Juan Antonio Xiol and the Andalusian María Luisa Balaguer, of progressive tendency and who defend that their position in favour of some of the defence's arguments is more in tune with the European judicial doctrine than the one defended by the majority, formed by seven magistrates.

And what arguments do these dissenting magistrates put forward to disagree with their colleagues? Their thesis is that the twelve-year prison sentence handed down to Turull is totally disproportionate if an adjusted weighting is made between the facts judged and the exercise of fundamental rights such as ideological freedom or freedom of assembly. Therefore, they do not question the conviction itself, but the length of the sentence. What is interesting, however, are the arguments they use, since they somehow pull apart the Supreme Court's ruling.

Thus, the magistrates consider that it is questionable whether the facts on which the sentence is based correspond to the literal definition of the crime of sedition in the Penal Code. In particular they doubt that both the demonstration on September 20, 2017 in front of the headquarters of the Catalan Department of Economy and the celebration of the referendum on October 1, 2017 can be described as a "public and tumultuous uprising". And they say: "The events on September 20 developed in the course of a demonstration, so, in principle, are covered by the exercise of the right of assembly, without prejudice to the excesses which some demonstrators may have incurred in during the exercise of this right". And on October 1 they say that "the incidents that occurred, although important, were of an isolated nature, so it is not easy to attribute tumultuous elements to the mobilisation of citizens that took place on that day in order to exercise an alleged right to vote".

The conclusion is clear: if there was no uprising there was no sedition (perhaps there was public disorder and disobedience), and therefore the core of the argument of the court chaired by Manuel Marchena falls apart. The reading that these two magistrates make of the events of October 2017, and their insistence on the disproportionality of the penalties, also opens the door to the justification of pardons by the Spanish government. It is very important that, unlike what happened in the Supreme Court, the Constitutional Court did not present a united front when it came to assessing the main sentence of the Independence bid. The defences will be able to go to Strasbourg with the endorsement of part of the highest Spanish court with weighty legal arguments and, surely, more in line with the vision they have in Europe of the weighting that fundamental rights must have in any sentence.