The dissenting opinion submitted by two Spanish Constitutional Court judges - Juan Antonio Xiol and María Luisa Balaguer, both from the self-proclaimed progressive sector of the judiciary - which questions the proportionality of a conviction for sedition, after having studied the sentence of more than twelve years' prison for pro-independence leader Jordi Turull decided by the Supreme Court, is a valuable weapon to take to the European courts. And it is so for at least two reasons: it has been broken the unanimity of the court, which worked hard from the beginning of the trial to offer an image of unity, knowing, as it knows, that the Constitutional Court is just another stop en route to what will end up being the terminal station: the European Court of Human Rights.
The second reason is related to an issue that is, if you will, much more personal and academic: prestige. Although Spain is the country that has most often been convicted by the European courts for breaching rights of all kinds, no one likes to gamble all their prestige on a sentence that has a lot of politics and very little justice in it.
The sentences, adding up to more than a hundred years' jail among all those found guilty, have a precarious legal foundation and do not respect the principle of criminal proportionality. Everyone knows this except those who were wearing the gowns of defenders of the Spanish state before the pro-independence rupturists. Europe does not approach the events that took place in Catalonia in 2017 with a treatment even slightly comparable and the convictions handed down are only understandable as part of an ostentatious and excessive response aimed at intimidating the independence movement and preventing a new situation like the one that occurred four years ago.
The spirit of the text in the dissenting opinion is substantiated in the following exposition of argument: "The intention of showing the possibility, technical as well, of formulating a different judgment on the proportionality of the penalties imposed, more in agreement with an open interpretation of the principle of legality and in line with the interpretation present in the sphere of the common juridical culture of the countries of the European Union. A vision of the principle of legality that finds its optimal expression in the preservation of the rule of law."
The dissenting votes of Xiol and Balaguer have ended up being an important correction to what the Supreme Court decided and they leave in the air a question of significant weight: why, in the face of the doubts that were raised, did the court not choose to reduce the conviction by one or two degrees, maintaining the same crime but moderating, in practice, the years of imprisonment? In short, why was the sentence not, in their view, proportionate? They offer no response and limit themselves to asking the question, although they surely know the answer well.