Sànchez and Cuixart, before Strasbourg
As already happened in the case of Jordi Turull and Josep Rull, the content of the two dissenting votes of the majority of the TC that has endorsed the sentence of the Supreme Court for sedition against Jordi Sànchez and Jordi Cuixart becomes the basis on which to build the appeal to the European Court of Human Rights (ECHR). It is fair to say, moreover, that the appeal of Sànchez and Cuixart is the most likely to succeed, since they were social leaders at the time of the events (and Cuixart still is), without any political responsibility. Juan Antonio Xiol and María Luisa Balaguer go beyond pointing out that the sentences are "disproportionate" and warn: "They threaten to impoverish our democracy, to align us with societies disciplined by the abuse of the penal system in the repression of conduct that takes place in the material sphere of fundamental rights and to distance us from the need for a progressive interpretation and application of the rights that make possible the normal participation of citizens in full democracies." In other words, the sentence aligns Spain with authoritarian regimes (you name the countries, but it could be from Hungary to Russia, passing through Turkey), and distances it from the most advanced democracies within the European Union.
The dissenting opinions rightly stress that the sentence moves away from the jurisprudence of the ECHR, which is wary of high sentences in everything that has to do with the right to demonstrate. For them, the sentence has an "undesirable disincentive effect" on the right to demonstrate, since it sets a dangerous precedent for any entity that calls for demonstrations or even for the people who could participate in them. It is quite evident, then, that in the case of the Jordis the Spanish justice system has made a reading of the Penal Code that is incompatible not only with European democratic values, but even with the letter of the Constitution.
That is why it is especially serious that the same TC renounces its role as guardian of the Constitution and aligns itself, consistent with its conservative majority, with Manuel Marchena and the Spanish right. In the sentence, this majority insists on the thesis that the demonstrations were aimed at "overflowing" legality. The question is: How can one go beyond legality by exercising a fundamental right such as the right to demonstrate? And it is also affirmed that those condemned "have been punished for inciting a breach of the Constitution". As far as is known, freedom of expression also includes the right to "incite to violate the Constitution" and, in any case, what would be illegal would be to violate it, which in their case did not happen. In a way, the magistrates are contradicting the Court itself, which has repeatedly remarked that Spanish democracy is not "militant", that is, that dissent is allowed.
And it is even more unusual that it has to be the executive, through pardons, who comes to alleviate this enormous legal arbitrariness that is the sentence of the 1-O Catalan independence bid.
