Constitutional Court magistrate says Torra's suspicion Catalan High Court president biased is "legitimate and reasonable"

BarcelonaThe Constitutional Court (CC) rejected on February 23 the appeal by former Catalan president Quim Torra against his sentence for disobedience after having initially kept up a banner in support of political prisoners on the balcony of the Generalitat during the elections in 2019, despite requests by the Central Electoral Board to take them down. Nine days later, the court has released the two dissenting opinions, by Juan Antonio Xiol and Ramón Sáez, who opposed dismissing the appeal after the high court concluded that Torra was not barred from office "due to his ideas" but because he did not comply with requests by the Central Electoral Board.

Magistrate Ramón Sáez's minority report shares two of the grounds for unconstitutionality raised by Torra's defence. The first has to do with the right to have an impartial judge, which referred to the magistrate who presided over the trial court, Jesús María Barrientos, who is also the president of Catalonia's High Court. Sáez understands there is "reasonable and legitimate doubt about his institutional position" after Torra recused him for "flagrant partiality". Sáez recalls that Barrientos had intervened in the decision to admit the complaint and, in his capacity as president of Catalonia's High Court, had given his opinion on the decision by the Central Electoral Board to demand the removal of symbols from Generalitat buildings, which was then ignored by Torra. In addition, Sáez stresses that at an event at the Bar Association he expressed his rejection of the phrase "political prisoners" used by then Speaker Roger Torrent, leaving the room. "This was the message on the banners the case evolves around, alongside the yellow ribbons", he added. The case analysed whether freedom of expression allowed these actions.

The second reason that Sáez wields is the proportionality of the penalty, due to "the unjustified length of the penalty of special disqualification" from the position of president of the Generalitat, and the loss of his seat as an MP, as well as "the inability to obtain another position as a representative at any level, local, regional, state or European". "As the parliamentary position had not been used to commit disobedience, the sentence was unforeseeable," regrets Sáez, who has joined Vice President Xiol's dissenting vote, who questions the constitutionality of Article 42 of the Penal Code. And this magistrate does not hide the doubts generated by the "automatic and unfailing effect of the definitive loss of public office" established in this article in the terms raised by "the plaintiff and also part of Spanish criminal doctrine".

The dissenting opinion says that there are "well-founded doubts" about the criminal proportionality of the automatic effect of barring from public office –whether elective or not– derived from a crime of disobedience. "It supposes an interference in the right of access to public office" and, in addition, "does not allow the applicator of the law to adapt the seriousness of the infractions that it punishes due to the absence of a legal regulation that makes possible reductions of responsibility or substitution of this sanction", the minority report continues.

"The definitive bar from public office" leads to "substantiated doubts of constitutionality due to lack of proportionality in relation to the right to access public office", since it does not allow "weighing the radical effect" that it implies for this right. Also because it is impossible to reinstate the person in the position that has been lost in the case of public offices of political representation. In addition, it points out that in the case of Torra the definitive loss of office was imposed even if though sentence was shorter than the mandate for which he had been elected.