The refusal for Jordi Sànchez was expected, given the petitions from the prosecution parties for him to remain incarcerated. But for Joaquim Forn to not be released on bail after the public prosecutors requested so breaks with all conventions so far established. For the first time, the acusasión popular prevails over the public prosecutors. The acusasión popular ("popular accusation") is a concept in Spanish law allowing for third parties to take part in cases to protect the law, without showing themselves to have suffered direct harm.
In their decision, the chamber of appeals say that public prosecutors didn't argue why they were asking for his release. They did so "by legal imperative", at the insistence of Spain's attorney general, Julián Sánchez Melgar.
Public prosecutors had asked for his release on bail of 100,000€ (£87,500, $122,500); right-wing party VOX, the popular accusation, for him to remain in prison.
Prosecutors had invoked health reasons to defend their request, as Forn had tested positive for tuberculin. They also noted that the minister has renounced his political career. Beyond these two arguments, the prosecutor defending the public ministry's position to the appeals chamber, noted he was responding to an order from Spain's attorney general under article 25 of the ministry's statute.
The Criminal Chamber of the Supreme court has issued two resolutions dismissing the appeals entered by Catalan interior minister Joaquim Forn and former Catalan National Assembly president Jordi Sànchez against their pretrial detention. In both cases, the chamber agrees with the investigating judge Pablo Llarena that there is a risk of them reoffending, motivating their decision.
In their ruling on Forn, the court indicates firstly that the applicant showed special determination carrying out the criminal acts he is implicated in, "the organisation and execution [of which] stretched over a period close to two years", "facts among which are those aimed at inciting the public to vote in an illegal referendum as a prior step to independence despite the clear opposition of the [Spanish] state, and to allow for a physical confrontation of citizens with the police forces who were trying to ensure the law was followed".
Secondly, the chamber recalls that Forn, as interior minister, held a role of special responsibility, from which position he drove and committed the events under investigation, which made him one of the points of reference for independence supporters, "a situation which he would foreseeably recover if obtaining provisional release".
Thirdly, the judges believe it clear that, currently, there are no clear signs that those who committed the actions under investigation have definitively abandoned their wish for direct confrontation with the Spanish state with the aim of achieving independence, something which increases the possibilities of them reoffending.
Finally, the chamber takes into account the gravity of the events and the corresponding intensity of the possible harm to protected legal rights. They believe that it's in the public interest to ensure such protection even if it means sacrificing the applicant's individual liberty.
As for the position taken by public prosecutors, the court says that they, in the hearing on the release application, limited themselves to stating there was no risk of Forn reoffending, without providing any arguments why, having argued the opposite position in a written statement filed before the chamber on 19th February. In that report, with his abandonment of political activity and his resignation as a deputy already known, prosecutors agreed with the investigating judge and called for him to be retained in custody.
Secondly, prosecutors mentioned the applicant's positive test for tuberculin, which the chamber says they have no evidence of, it not having been claimed or documented by defence council. They therefore conclude that they don't see sufficient reasons from their arguments sufficient to change the investigating judge's decision, "without prejudice to he himself, at a later date, evaluating these aspects in relation to all the others which result from the investigation of the case and the potential modification of the relevant circumstances and adopting at any time the judgement which results from his criteria".
In relation to the appeal presented by Jordi Sànchez, the chamber says that "it is clear that the scale of the evidence and the prima facie likelihood of success, together with a precise motivation, allow for the conclusion that the decision adopted was respectful of the rights of the presumption of innocence, effective legal guardianship, the assessment of proportionality inherent to the gravity of the crimes and their sentences and the right to freedom because it adequately considered, in an reasoned judgement, the rights to provisional liberty and the presumption of innocence with the constitutionally legitimate aims with which a state under the rule of law protects public peace, the social order and the democratic security which is the basis of its own survival. The respect for the law that those under investigation disrespected with their criminal acts was precisely what has led to the dictation this ruling, which only on the supposition of justified reasons sacrificed the rights invoked".
Similarly, the chamber denies that the applicant's rights to freedom of ideology and participation in public life have been violated. "There are no political prisoners in this case, but politicians who are prisoners for having evidently committed very serious crimes of rebellion and sedition among others in which, although there do not exist individual victims, protected group legal rights are attacked. They aimed, through violence, absolutely essential to consummate their proposals of substituting the constitutional order for another different, spurious one, to separate part of its territory from Spain. And this is a very serious crime against the Spanish Constitution."
"In accordance with that, it is clear, as such, with respect to the individual under investigation from his position of influence in the large-scale mobilisations and his commitment to joining a candidacy which proclaims its objective as reestablishing the political dynamic which led to the acts from which are born the liabilities contemplated by this criminal process and which resulted in the application of article 155 of the Constitution, the judgement of criminal repetition is clear."
The ruling adds that it is as such "in accordance with the parameters demanded by the European Court of Human Rights of the foreseeable prolonged continuation of punishable actions, gravity of the harm suffered by the victims of the political, economic and constitutional crisis open in Catalonia for the attempt to violently separate this territory from national unity, the persona of the accused as an icon (the judge's description of him being "charismatic" surely referring to the meaning given by the dictionary of the Royal Spanish Academy of "endowed with a gift") of associations expert in popular mobilisations, the disturbance of public order provoked by criminal infraction, the suspect's experience and the degree of ability to enable the repetition of criminal acts, and the demands of public interest with regards to the case's particular circumstances".