Strasbourg's setback for Junqueras, Turull and Sánchez: it says that Spain did not violate their rights with preventive detention

BarcelonaSo far, the European Court of Human Rights (ECHR) has been overturning all resources of the independence movement that has arrived. This Thursday was no exception: Strasbourg concluded that Spain did not violate the political rights of Oriol Junqueras, Jordi Sánchez, and Jordi Turull when it prevented them from exercising their rights as members of parliament during their pretrial detention, when they were elected to the Catalan Parliament in the 2017 elections. The Court found no violation of their right to free elections or their right to liberty and, therefore, upheld the limitation of their rights that resulted from their deprivation of liberty ordered by the Supreme Court. In its opinion, the Spanish high court sufficiently justified the deprivation of liberty to "preserve the constitutional order," and recalled that all of them were able to participate in the Catalan elections and that, despite not being able to exercise their rights in person, they were able to take office and subsequently elected a president, Quim Torra, on the 20th.

"The Court does not detect any element of illegality or arbitrariness in the factual and legal grounds for pretrial detention," the ruling states, echoing the claim made by former political prisoners against the Supreme Court, which they accused of having the intention of "silenced their political project."

This is one of the cases that remained pending before the ECHR, although it is not yet the main case related to the Supreme Court's ruling on the October 1st events for sedition and misuse of public funds. What was the court supposed to decide then? These were appeals related to the veto on political participation. Specifically, Oriol Junqueras brought before the ECHR the fact that he was not allowed to leave prison for taking his seat in the Catalan Parliament as a member of parliament following the elections of December 21, 2017; Jordi Sànchez was unable to participate in the election campaign, take his seat in the Catalan Parliament, and undergo an investiture debate as a member of parliament due to his pretrial detention; and Jordi Turull brought to the court his imprisonment between the first and second investiture debates in 2018. These limitations on political rights, according to Strasbourg, were carefully considered and justified by the political context. "To guarantee the stability and effectiveness of a democratic regime, the State may be obliged to adopt specific measures to protect itself," the ruling states, and, alluding to the years of the Catalan independence process, says: "These were especially unique and serious circumstances." In fact, Strasbourg is harsh when referring to what happened in 2017, applying the same doctrine on the banning of political parties, which it endorses in certain cases. This is its argument: "A state must be able to reasonably prevent the implementation of a political project incompatible with the norms of the [European] Convention on Human Rights before it is put into practice through concrete acts that could compromise the civil peace and democratic regime of the country." It adds that the applicants "could not reasonably expect to participate in the elections without any restrictions" having been the leaders of the Catalan independence movement, and reaffirms, as the Supreme Court did, that the pretrial detention of political prisoners was necessary to avoid both the "risk of flight"—citing that some members of the 2017 government "escaped" from the "escapes"—and the fact that the Supreme Court's decision to imprison Turull between the first and second investiture debates was also justified. This decision, it says, was reinforced by the risk of flight, given that Marta Rovira left the country that day. At the same time, the ECHR also upholds the suspensions as members of parliament, based on the charges of rebellion. that Pablo Llarena dictated in 2018Although he admits that the preventive suspension of a member of parliament, without a sentence, is a delicate matter, he says it must be taken into account that it is an "exceptional" measure, provided for by law in Spain only for crimes such as rebellion (which the Supreme Court later dismissed in its 2019 ruling). "The domestic courts emphasized that the applicant's conduct was part of a pre-established plan devised by individuals holding the highest public offices in Catalonia, the objective of which was to declare the secession of a part of Spanish territory by means contrary to the law," the Strasbourg ruling states.

The Demirtas Case

One of the precedents that Junqueras, Sánchez, and Turull cited in their appeals against Spain is that of the Kurdish politician Selahattin Demirtas, whom Turkey imprisoned as a member of parliament and prevented from exercising his rights. The European Court of Human Rights (ECHR) ordered his release in 2018, something the Catalan political prisoners used at the time to also request their freedom in both the Supreme Court and the Constitutional Court. All their petitions were denied, and today, after eight years, Strasbourg has also sided with the Spanish courts.

It argues that the European Convention on Human Rights "does not prohibit the application of a measure depriving a member of parliament or a candidate in parliamentary elections of their liberty." "The application of such a measure does not automatically constitute a violation of the provision," it says, adding that the court's role is to determine whether the interests at stake have been sufficiently assessed, taking into account that the right to liberty and security of a member of parliament are key in a democracy. A weighing that the ECtHR now says the Supreme Court made correctly.