Carlota Guindal – Madrid – 23/5/2021
Prisoners of the procès-guerrilla movement leave Lledoners prison in mid-February Xavi Jurio
The judicial battle over the procés is still in play. The pro-independence prisoners have not thrown in the towel and have two weapons that they did not have some time ago. The private vote formulated by two magistrates of the progressive minority of the Constitutional Court, doubting the proportionality of the sentences that the Supreme Court set for the crimes of sedition, has caused a 180-degree turn in the strategy of the defences. They are no longer alone. A small part of the court that defends the Magna Carta supports them and this, in their opinion, is of incalculable value for their European aspirations.
The magistrates José Antonio Xiol and María Luisa Balaguer were fully aware that their arguments were not going to change the opinion of the other seven magistrates who made up the plenary to study the sentence on sedition and who unequivocally endorsed the Supreme Court’s sentence. The attempt to modify the report was impossible given the unwavering stance of the majority of the plenary to endorse that what happened in the autumn of 2017 in Catalonia was an act of sedition, but their criteria would be reflected in a joint dissenting opinion that would facilitate the way for the defences before the European Court of Human Rights.
The dissenting opinion has been a breath of fresh air for the defences, considering that the sentence set for the procés was “disproportionate”, as well as raising concerns about the wording and application of the crime of sedition. “An alternative analysis, which we consider to be more constitutionally correct and more respectful of the current standard in national and European human rights law, should have led to a favourable sentence”, they argued.
In the executive and the judicial world, there is a certain amount of alarm about what might happen. Although there is a clear awareness that all the guarantees have been complied with and that the law and the Penal Code have been scrupulously applied, it is feared that the European court could use any loophole to give Spain a hard time, especially as this is an issue with so many political edges, as already happened with the Parot doctrine, which forced a new count in the serving of sentences for ETA members, leading to the release from prison of around fifty members of ETA.
In the Constitutional Court they are aware that these votes facilitate the work of the defence, but the two magistrates in question are in favour of a review of sedition. Moreover, throughout the month of June, and while some of the appeals are being finalised, the defence lawyers of the condemned men hope to hear news of the pardons. The Supreme Court is expected to finalise its unfavourable ruling by the end of this month.
The Government is wary of Junts’ control of prisons in Catalonia
From the pro-independence camp, it is expected that the government will make a decision before July. However, government sources do not venture to give a concrete timetable with the new Andalusian front open. Even so, this move will depend on the cards Pedro Sánchez wants to play.
If these pardons arrive in time, it would be the second trump card that the prisoners could use before the European bodies to argue the disproportionality of the sentence. From the prisoners’ side, there is no question of the Executive refusing the pardons, given the president’s insistence on launching messages of “deflating” the situation in Catalonia. The main argument in their favour is that when the time comes to decide on the pardon, several of the prisoners will have served almost half of their sentences, and others, such as former vice-president Oriol Junqueras, will have served almost four years in prison.
Even so, the cards are on the table. The government is wary of the fact that the new composition of the government has handed over the Ministry of Justice, and above all control of prisons, to Junts per Catalunya. Relations with the hitherto ERC minister were favourable to a scenario of understanding. However, it is feared that the situation with the prisoners will now become more tense.
The latest focus of their European battle is the reform of the crime of sedition, announced by the Minister of Justice, Juan Carlos Campo, more than a year ago. In a way, they understand that if the legislature recognises that the penalties are not adequate to the current social context to such an extent that the penal type included in the Penal Code is lowered, this is another argument for achieving a European victory.
However, for practical purposes this is the slowest route. Justice’s intention is to introduce the reform of the crime of sedition to bring it into line with European standards, with a reduction in the range of years, as part of a broader modification of the Penal Code, which would include changes to crimes affecting freedom of expression.
The modification of the crime of sedition could take up to a year to be processed.
Ministerial sources rule out that a priori the draft bill will be presented before autumn. However, if it is submitted through ordinary channels, and not as a matter of urgency because there is little justification for it, the process could take approximately a year before it is finally approved.
The Supreme Court will recalculate sentences after reform
The reform of the crime of sedition with a reduction in sentences will come sooner or later if the Executive maintains its announced commitment. The Minister of Justice himself, Juan Carlos Campo, has already stated on several occasions that the intention with the reform is to bring the criminal offence into line with European standards, with sentences ranging from five to ten years in neighbouring countries, while in Spain it is up to fifteen years. The modification could take a long time to arrive because it will probably not be possible to present the draft bill until autumn.
In addition, it would be very difficult to process it through the urgency procedure, thus skipping the mandatory reports, after the Constitutional Court’s upheaval last week for bringing by decree law the incorporation of the former vice-president of the government, Pablo Iglesias, to the commission that controls the National Intelligence Centre. The ordinary procedure could take a year and by then the pro-independence leaders convicted of sedition could already be free. On the one hand, such a situation would take pressure off the government because then the reform would no longer have a name and surname.
However, when that happens, the next mandatory step is that the Supreme Court will have to recalculate the sentences. Some of them have been convicted of sedition in concurrence with embezzlement of public funds for using funds from the ministries to organise the 1-O referendum.
This offence carries a minimum sentence of four years in prison. The Criminal Chamber of the High Court would have to review the sentences again and with the new range of the crime of sedition set how much corresponds to each of the convicted.