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In the world of law, it's not just the substance of what is done that matters, but also how it is formally done and how it appears to be done; especially so when it's a question of the right to an impartial judge, as the European Court of Human Rights (ECHR) has declared in innumerable sentences. In the trial which is taking place against the Catalan politicians, they're taking care with the formal aspects but have neglected the appearances, and that is reflected in various situations which are far from acceptable under ECHR doctrine, the knowledge of which judge Manuel Marchena boasts of so much, even if the assimilation of that doctrine may be another matter.

In terms of appearances, especially on respect for impartiality, the trial is heading on a path which won't make it past the ECHR's filter, and the Supreme Court should know this already. As Elisa Beni indicated (link in Catalan), there are two great new problems the court will have to resolve in the coming days: on the one hand, the role of far-right party Vox as private prosecution and, on the other, the lack of impartiality of two of the chamber's judges who, besides being trial judges on the Catalan politicians case, are part of the Central Electoral Board.

I've always supported the existence of the idea of the private prosecution, but never that it should be carried out by political parties, because they have other ways, means and opportunities to take part in public life. In the case of Vox and in this trial specifically, there is a series of circumstances which will force the chamber to make a statement, and also the Central Electoral Board.

The calling of a general election means the trial of the independence process has transformed into an unprecedented media platform for a party which, if it weren't for this trial, would have no major television spaces nor media coverage on which to sustain its candidacy.

Vox, a party which aspires to put the right back where Franco left it, has in the prosecution dais an unbeatable pulpit to promote both its rhetoric and Ortega Smith, its secretary general, whilst accusing politicians from other parties of crimes they haven't committed. This accusation, which has nothing to do with the law and a lot to do with politics, finds itself rewarded by keeping them at the podium during the election campaign.

With respect to this situation and Vox's role, the questions are: is the judicial principle of equality of arms violated or not with respect to the general election? Can a political party use a legal podium to promote its political work during an election campaign? And to what extent does this situation affect the right to a trial with the proper guarantees and, even, the court's impartiality?

On the first two questions, will the Central Electoral Board have to rule or do they think that no political party will consider such a democratic anomaly? On the third, if any of the defences raises it, this chamber of the Supreme Court will have to rule itself.

The other problem which arises from calling an election and which certainly neither Pedro Sánchez nor Manuel Marchena foresaw (or, if they did, they didn't care) is the one created by the presence of judges Varela and Ferrer in the Central Electoral Board. This body has to, among other functions, safeguard the correct running of the election, resolve complaints (among which is the one affecting Vox's role in the trial), correct sanctions imposed by the local Election Boards and issue credentials to the candidates elected.

But the problem isn't only the future activity to be conducted by the Central Electoral Board in the 28th April election, but that already carried out because both Luciano Varela and Ana Ferre have been part of this body since 30th October 2017 and, as such, they took part in the electoral process of 21st December that year in Catalonia where, standing as candidates, among others, were several of those who today are defendants. In other words, the event which caused the loss of impartiality has already happened and now their exposure can only increase.

As in cheap circuses, where a single person sells the tickets and then also acts as master of ceremonies, magician and animal tamer, in the trial of the independence process, the same people are entrusted with safeguarding the transparency and correct running of an election and, when it comes to it, issuing credentials to those elected, whilst trying them based on the accusation of a political party which, with its secretary general at the head, is also competing in that election.

Appearances have gone up in smoke and the vain attempt by Marchena to bring forwards the testimony from the people who hold or held political office isn't more than a clumsy fix for something that won't survive crossing the Pyrenees. This moving forwards of the witnesses shows that we're facing a political trial but, what's more, will amount to a denial of legal rights because the defences are entitled to question their witnesses after those called by the prosecution have appeared. Here, however, they'll appear not based on who proposed them, but on their political activity. And, in law, the order of the factors does alter the product.

Marchena, as presiding judge (and well-connected to Pedro Sánchez) must have expected that a general election could have been called during the trial, but didn't do so because to err is human and his experience in trials is little or null. That which can be fully attributed to his management is the forming of a panel of judges including two people who, since the 21st December 2017, are contaminated when it comes to trying any politician who took part in that year's Catalan election, by which point Varela and Ferrer were already on the Central Electoral Board.

It's foreseeable what the Supreme Court's response will be: that it will create a new and unsustainable narrative, stressing that the functions of the Central Electoral Board don't affect the impartiality of the magistrates who make up the chamber, that it's a pointless attempt to discredit the Spanish justice system, that the honour of excellent professionals is being questioned, etc, etc, etc.

But the reality is very different: nobody is questioning the professionality and honourability of Luciano Varela and Ana Ferrer. In that they are supported by their careers. The Central Electoral Board doesn't only take decisions, but also standardises interpretation criteria which can affect, or already affected in 2017, the defendants in their respective facets as candidates and, finally, nobody is trying to discredit the Spanish justice system where there are more than 5000 judges who do their work well every day. The thing that's discrediting the Spanish justice system is the action of the Supreme Court in matters like this.

Marchena would do well to understand the jurisprudential criteria of the ECHR which, in summary, says that what has to be determined is whether, independently of the magistrate's behaviour, there are objective facts which could raise doubts about their impartiality with respect to the specific case, and that in this sense "even appearances can be important" because, according to the ECHR, the trust the courts should inspire in the public in a democratic society is at stake.

In conclusion, and apart from the narratives that will be constructed, this anomalous situation reveals, once again, the existence of systemic errors which prevent us from talking about a process with the correct guarantees and which forces us to ask again whether this trial, in the current circumstances, should continue on this path when we can already assume it won't withstand the least inspection by the European Court of Human Rights.

A trial of this importance requires better circumstances and, above all, a chamber which isn't eclipsed from the start by the shadow of partiality – something that has been dogging it ever since the decision on its composition, with five members who also formed part of the admitting chamber. And now we discover the other two are part of the Central Electoral Board.

They can continue with the trial, they can sentence the defendants and they can set up, locally at least, the narrative that we're seeing a trial with full guarantees, but reality is stubborn and beyond the Supreme Court are the Pyrenees, and beyond those mountains, these things don't go down well at all. Suddenly, and with the calling of an election, we've moved from the supposed "fair trial" to a mistrial... the question is how much longer they want to prolong the agony of a process which will withstand neither the passage of time nor the weight of appeals.

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