Last dissenting opinion on Independence Bid ruling attacks Supreme Court president

Madrid"It includes statements that are loaded with assessments and opinions [...] which, as is already known, cannot function as an empirical element of judgement, because they lack value and truth and cannot be subject to verification." This is one of the attacks that Constitutional Court magistrate Juan Ramón Sáez sent Supreme Court president Manuel Marchena and the court that convicted nine pro-independence leaders of sedition. In his dissenting vote on the ruling against Oriol Junqueras's and Raül Romeva's appeals, which he also applies to Joaquim Forn and Dolors Bassa, the judge who acquitted Catalan police major Josep Lluís Trapero in Spain's National Court accuses the Supreme Court of not having correctly proven that in 2017 sedition occurred on September 20 and October 1 nor that those involved participated in it. Sáez believes that the conviction violated the right to the presumption of innocence and the right to criminal legality, among others.

Throughout 22 pages, the magistrate unpacks shortcomings and contradictions in Marchena's ruling and warns especially about what is taken for granted, not requiring evidence to prove it. "When the initial judicial hypothesis and the final thesis are not configured exclusively by propositions that describe facts, but integrate indeterminate propositions and value judgements, it is difficult to verify the existence of the fact and the truth of the statement that the court assumes," Sáez insists, who sees an excessively "generic" description of what happened to consider that, indeed, it constituted a crime of sedition and questions whether some witness statements was enough.

"The sentence I disagree with considers that proof of what happened during the long day of September 20 is 'what was stated by the head of the [Catalan Police] Mossos d'Esquadra's Anti-Riot Squad'. [...] That day there were more than a dozen searches in closed places, the demonstration in front of the Economy Dpt's headquarters gathered 40,000 people and took place from 9 a.m. until the early hours of the next day. It seems incredible that a single witness, except if he were an omniscient narrator, could be aware of so much. But, in the section on proven facts, the police officer appears at around 9:25 p.m., that is, he had not witnessed what had happened during the rest of the day," he notes.

As fundamental rights are at stake, Sáez considers it especially important to justify the decision taken and not to "accept as an assessment what is a simple impressionistic accumulation of generic quotations in the evidence". The magistrate criticizes the assumption of the "most serious version", that the intention of the 20-S demonstrators was to "prevent" the searches. "As one thing is to prevent and another to hinder, disrupt or delay, and because what is at stake is the fundamental right of political participation, the right to protest, the choice would have to be motivated," he reiterates.

Referendum Day: "non-active resistance"

Linked to the violation of the presumption of innocence, Sáez also argues that the court is imprecise when connecting the facts with the crime. He considers that Marchena does not "get to clarify the meaning of uprising" and that the crowds on Referendum Day were not uprisings, according to his own definition. "There were altercations and even clashes, but without specifying what they consisted of or describing the behaviour of demonstrators against police officers. It is simply stated that they remained in place, creating huge crowds, to prevent police action. In this respect, it is contrary to the interpretation of the criminal type made by the same court (insurrection with open hostility and intimidating, coercive or insulting actions) to qualify in this way [sedition] passive behaviours of disobedience or non-active resistance, such as those described in the sentence", says Sáez.

Beyond citizens' will to prevent the police action, the magistrate emphasises that the calls of the convicted were to go and vote. In the same vein, the proven facts on September 20 do not prove that the purpose of the mobilisation was to prevent, the dissenting judge stresses. According to his interpretation, the approval of "unconstitutional rules, preparing, organising and carrying out an illegal referendum or disobeying the orders of the Constitutional Court", are the proven facts attributable to the convicted, and do not fit with the Supreme Court's story: "That the defendants knowingly promoted a mass mobilisation of citizens in order to trigger a hostile uprising aimed at preventing compliance with the law and court orders".

Sáez admits the possibility of not proving that the appellants incited the confrontation with the police, but "it is necessary to prove the essential character of the conduct with respect to the collective insurrection". But "the trial of authorship does not explain in relation to each of the convicted knowledge and acceptance that their actions could lead to a tumultuous uprising," says Sáez, who criticises the lack of "individualisation" of conducts. He accepts that there could be a co-authorship – if the agreements and contributions of each one are specified – but he asks why Meritxell Borràs, Carles Mundó and Santi Vila were only sentenced for disobedience.

Adherence to Xiol's vote

The magistrate who acceded to the TC in the last renewal expanded on these arguments, but has adhered to the dissenting vote drafted by the vice president of the Court, Juan Antonio Xiol, in which he refers to the disproportionality of the penalties and the fact Oriol Junqueras it should not have been sentenced until the Court of Justice of the European Union (CJEU) resolved preliminary questions raised by Marchena in relation to his immunity as an MEP.