Josep Casadevall, exvicepresident del TEDH: "The demands of the October 1st prisoners are substantial and deserve Strasbourg's attention."

BarcelonaJosep Casadevall is an Andorran lawyer and served as a judge at the European Court of Human Rights (ECHR) from 1995 to 2015. In the last four years of his career in Strasbourg (2011-2015), he became vice-president of the court. He spoke to ARA about the latest rulings on the Catalan case.

In an interview with this newspaper in 2021, you said that with the pardons, the ECHR would take more time to make a decision. With the new amnesty law, what timeline do you foresee?

— Indeed, it was a possibility, but considering the complexity of the case and the usual ECHR timing, we are still within a certain normal range. The amnesty is an important enough development for the Court to take it into account as a restorative measure, but, for me, it is not decisive in the outcome of the judgment, which must declare whether or not one or more violations of the European Convention on Human Rights occurred.

Do you think the ECHR will rule on the amnesty before or after the Spanish Constitutional Court?

— I don't know, but both possibilities can be considered. It may be the case that Spain has presented allegations in this regard and wants to gain time and try to mitigate a possible sentence due to the approval of the law.

If the pro-independence leaders are ultimately granted amnesty, could they lose their status as victims and their claim be dismissed by the Strasbourg court?

— I don't think so. I don't see any fact or element that would allow the plaintiffs' victim status to be stripped away. Applying the amnesty is a measure that partially redresses—a posteriori—the harm suffered, but it doesn't change the underlying issue, that is, whether there was any violation of the European Convention on Human Rights [by the Supreme Court in its ruling on October 1].

Do you think it's possible for the ECHR to overturn the Supreme Court's ruling? When we interviewed you four years ago, you believed the ruling might have legal and proportional issues.

— It is neither the function nor the competence of the ECHR to overturn domestic legal rulings. If, as I anticipated, the Supreme Court's ruling raises any issues, whether of legality or proportionality, the ECHR will assess them and decide whether such facts are sufficiently serious to constitute and declare a violation.

What effects might declaring these violations have?

— If the ECHR finds that violations have occurred, it will condemn Spain and require it to adopt appropriate measures to cease and remedy the violations through whatever means it deems most effective. It may also consider that, if the Court has already benefited from the amnesty, it is already a partially restorative measure.

Would the Supreme Court be forced to retry the trial?

— A retrial is provided for in Spanish law, but it is neither mandatory nor always necessary, especially if the plaintiffs have already been granted amnesty.

What is your forecast regarding this ruling?

— I don't have a crystal ball... As I said, the lawsuits currently underway by the imprisoned leaders are substantial and deserve the attention of the ECHR.

Beyond the ruling on October 1st, Strasbourg has rejected all of the independence movement's demands so far. Do you think this bodes ill for the movement?

— The independence movement has not filed any lawsuits. This response is not legal but political, and that space is not for me.

Strasbourg has rejected the request of former members of Parliament's board who denounced the Constitutional Court's veto of parliamentary debates.

— The dismissal of this lawsuit is, for me, a disappointing decision, and I suspect it has caused concern in Europe, because it affects freedom of expression and, in the even more serious case, freedom of expression in parliamentary proceedings. I hope the ECHR has the opportunity to rectify its decision.

The ECHR also rejected a lawsuit by Quim Torra and Josep Costa against the State for failing to investigate Pegasus spying, and another by Òmnium and pro-language organizations over the ruling imposing a 25% Spanish language requirement in schools. All were rejected by a single judge, without reaching the courtroom...

— If so, this fact is the most worrying… it means they have not been examined by the court and have been declared inadmissible.

There are voices within the independence movement that believe the State is behind these decisions. Do you believe the ECHR operates within these parameters?

— I don't think so. While, like it or not, there may be a political undertone to all the courts' actions, the legitimate demands of the Catalan independence movements are one thing, and compliance by states with the obligations arising from the European Convention on Human Rights, which is what the ECHR must guarantee, is another.

Is Strasbourg more or less susceptible to pressure than judges in national jurisdictions?

— Independence can be absolute everywhere. It is obvious that if the ECHR exists, it is due to the will of the member states of the Council of Europe, which drafted and approved the Convention on Human Rights. They are the guarantors of the ECHR's independence, although, whether we like it or not, a certain dependence, at least financial, will always exist. The ECHR will continue to exist as long as the member states so desire.

Are there states within the Council of Europe that are easier to rule against than others? Is this because of their prestige or lack of prestige as more or less developed democracies?

— Unfortunately, judges always have preconceived notions in their subconscious. We all carry the baggage of our convictions, feelings, culture, beliefs, and upbringing. Furthermore, there are clearly many differences among the 46 member states of the Council of Europe, and it is sometimes difficult to apply the same standard.

During your tenure, did you ever receive pressure?

— Never, never, in nineteen years. Not even a hint.

Do you think the ECHR lacks enforcement powers? Or that the effectiveness of its rulings is currently sufficiently guaranteed?

— The ECtHR lacks powers or means of enforcement. Once a judgment has been issued, the ECtHR refers it to the Committee of Ministers of the Council of Europe, which has the political power to demand and monitor its proper execution. This is interstate control. Normally, judgments will be executed within a more or less long period of time, depending on the measures the condemned state must adopt.

If national judges accumulate several unfavorable ECHR rulings, should this be detrimental to their judicial careers?

— Well... While everyone can make mistakes, that should be decided by the competent judicial bodies of each Member State. In any case, it will be part of their resume.