The Constitutional Court also looks to Strasbourg

3 min
Jordi Cuixart and Jordi Sànchez in an archive picture

MadridThe European Court of Human Rights (ECHR) is, now that the judicial route in the State is running out, the destination of the appeals against the sentence of the Catalan independence bid issued a year and eight months ago, on October 14, 2019. But not only the condemned pro-independence leaders and their legal defenses have their eyes set on Strasbourg. Also the magistrates of the Constitutional Court.

In the appeal for protection of Jordi Sànchez and Jordi Cuixart, the sentence of the Constitutional Court known last Tuesday dismisses the resources, but in doing so tries to give coverage to the sentence of the independence bid, whose rapporteur has been the president of the second chamber of the Supreme Court, Manuel Marchena, with arguments that would fill the vacuum of the sentence.

With this ruling, the president of the second chamber has no need - needless to say - to be the subject of a "save Private Marchena" operation, but the magistrates have seen fit to offer more arguments before Strasbourg.

And it was the occasion to do so, because, unlike the rest of the condemned leaders, the case of Sànchez and Cuixart, being presidents of civil society organisations, gave rise to a participation in the facts that "unfolded within the material scope of the fundamental right of assembly more clearly than the other condemned", according to the dissenting opinion of the magistrates Juan Antonio Xiol and María Luisa Balaguer.

The dissenting opinion admits - despite disagreeing - that the sentence of the majority of the Constitutional Court makes an effort to address the issue of the right of assembly and demonstration to a greater extent than the sentence of the Catalan independence bid, which deserved, it writes, "special scrutiny of the singular effect that its criminal repression could have on the fundamental right of assembly".

The debate that the magistrates have held on the pointed resources has resurrected the one they had held in June 2019, before the trial ended in the Supreme Court.

On those dates, the magistrate of the Constitutional Court Cándido Conde-Pumpido, who had been assigned to present the report on the appeal for protection of the siege of Parliament, presented a draft in his chamber, the first chamber. Seeing that it proposed annulling Marchena's ruling - which condemned those acquitted in the National High Court for the siege - the conservative magistrates requested that, given its importance, it be taken to the full Constitutional Court. And in the plenary session they managed to get the matter adjourned sine die. They joined forces to "save" the forthcoming ruling by Private Marchena.

Why? Conde-Pumpido proposed overturning the Supreme Court's ruling, giving precedence to the right to demonstrate. Although the National High Court had applied, he argued, a too lax qualification despite the overreaching of the right to demonstrate, exonerating circumstances could be applied and those convicted by the Supreme Court could be acquitted. Furthermore, his report proposed annulling the sentence because the subjective element of the National Court's sentence was changed - the demonstrators' objective was not to paralyse the work of the Parliament but to protest - without having heard the defendants.

The first of the reasons, the right of assembly and demonstration, in the opinion of the conservative majority, meant conditioning the sentence on the Catalan independence bid, which would begin to be drawn up in the days following the end of the trial. The report, then, was put away in a drawer.

Last week, two years after the procedure described above, the plenary session of the Constitutional Court dealt with Conde-Pumpido's report, albeit already modified, which withdrew the first ground for annulment and left the one referring to the procedural problem (elimination of the second instance by changing the subjective element without hearing the accused). The plenary once again overturned the report. And the rapporteur was changed.

Five years to respond

The debate on the appeals of Sànchez and Cuixart has resurrected this episode within the Constitutional Court. Strasbourg takes about five years to resolve. And there are more than a few jurists who predict success for the appeals of Sànchez and Cuixart. And although it is irrelevant from a legal point of view, if, as it will happen, the appellants leave prison pardoned, the ECHR will feel less pressure when it comes to resolving the appeals.