Friday, December 3

The Constitutional endorses the sentence of the ‘process’ with two particular votes Spain

From left to right, Rull, Forn, Cuixart, Sanchez, Turull, Romeva and Junqueras leaving Lledoners prison on January 29.
From left to right, Rull, Forn, Cuixart, Sanchez, Turull, Romeva and Junqueras leaving Lledoners prison on January 29.Albert garcia

The Constitutional Court rejected this Thursday the appeal presented by the former counselor of the Generalitat Jordi Turull against the sentence to 12 years in prison imposed by the Supreme Court for crimes of sedition and embezzlement in the trial of the process. The sentence was approved with two votes against, based on the alleged disproportion of the sentence by virtue of the application of the crime of sedition. The ruling supports the assessment of said crime by denying the alleged vagueness of the criminal type of sedition.

The Constitutional ruling on Turull has special relevance because it is the first to analyze a series of alleged violations of fundamental rights that the rest of those convicted by the Supreme Court have also alleged. The doctrine of this ruling, therefore, will be applied to the rest in the same terms until it is the turn of the last challenge, corresponding to Oriol Junqueras. This raises specific aspects of equal relevance; in particular on the fact that the trial in the Supreme Court was not stopped when he was elected MEP, due to his parliamentary immunity.

The ruling of the court of guarantees – of which the magistrate Pedro González Trevijano has been the speaker – makes it clear that it cannot be considered that the criminal offense of sedition was improperly applied, to the detriment of the pro-independence leaders and in violation of their fundamental rights. It also stresses that this criminal figure does not entail a vague description of the conduct pursued. Therefore, the principle of strictness has not been violated, consisting of the requirement that the criminal law accurately describe the conduct that it sanctions.

The appeal for amparo supported the opposite thesis to understand that the Supreme Court’s conviction had violated Turull’s fundamental rights by applying an imprecise criminal type not adjusted to his actual conduct during the independence process. The court of guarantees has also ruled out that the Supreme Court ruling resorted to the analogy “in malam partem” – to the detriment of the defendant – to make up for the deficiencies of the criminal offense of sedition.

The Constitutional resolution has around 300 pages on which a commission of court lawyers has been working over the last few months, under the direction of justices Cándido Conde-Pumpido and Antonio Narváez. Both, however, were absent from the deliberation this Thursday, after having abstained from taking part in the resources of the process, by reason of the challenges to which they were subjected, when the defenses allege that the two had lost all appearance of impartiality, due to statements in which they expressed themselves on facts related to the process.

These absences – plus that of magistrate Fernando Valdés, who resigned last October – have meant that the court that issued this ruling was made up of only nine of the twelve members of the Constitutional Court.

Another consequence has been that the appeal has been dismissed by seven of the twelve possible votes in a plenary session composed under normal circumstances. Of course, this data does not detract from the validity of the sentence, but it has been received by the defenses as a usable argument before European justice.

Endorsement of the 2019 ruling

Meanwhile, the decision of the Constitutional Court has been seen in the Supreme Court as a complete endorsement of its ruling of October 2019. This is because it confirms what the Criminal Chamber said when resolving the incidents of nullity raised after the trial. Like the Supreme Court, the court of guarantees has considered that the fundamental rights of the pro-independence leaders were not violated in the criminal process. The difference in the outcome of the debates in both instances is that the Constitutional Court has not achieved unanimity. And not because it hasn’t been tried. Faced with the thesis of the lack of proportionality of the penalties imposed, the majority magistrates tried to convince Xiol and Balaguer during the deliberations that the independence leaders had benefited from the sentence reductions derived from the fact that their conviction was for the crimes of sedition and embezzlement in media contest, and that such figures had not been sanctioned separately, with which the penalties would have been higher.

In means of the Constitutional itself, it is estimated that the endorsement given to the Supreme Court’s ruling clears, on the other hand, the way for the processing of the corresponding reports on the request for pardon from the pro-independence leaders. The defenses, in turn, will use individual votes to abound in their arguments on the origin of the right of grace being exercised. The Turull lawyer, Jordi Pina, will insist on this in a public appearance that has already begun to be prepared and that will take place once the resolution and the corresponding individual votes have been notified.

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