A major legal reversal. That is the upshot of the latest dissenting opinion from Spanish Constitutional Court judge Ramón Sáez Valcárcel, in which he openly criticizes the Supreme Court sentence in the 2019 trial of the Catalan pro-independence leaders, stating that the statement of proven facts is full of "value judgements and opinions” and does not clarify what the sedition offence actually consisted of. The sentence was drafted by the judge and president of the criminal chamber of the Supreme Court, Manuel Marchena, to whom Sáez gives a chapter-and-verse dressing-down, which recalls developments in previous cases also related to Catalonia. Marchena was the judge who, in 2015, irregularly - according to the jurisprudence - overturned the acquittal of seven young people accused of mobilizing the Stop Parliament protest, a judgment given by judge Sáez, then in the National Audience court, and sentenced them to three years in prison. Sáez is a progressive judge who joined the Constitutional Court last November, and who has broadened the base of judges who put an emphasis on legal guarantees, still a minority in the court. Sáez was also the presiding judge who, two years ago, acquitted Mossos d'Esquadra police chief Josep Lluis Trapero and the Mossos leadership of working to promote the 1st October referendum. On Twitter, the lawyers of the pro-independence leaders convicted in the Supreme Court in October 2019 have openly expressed their regret that their clients' trial did not have a presiding judge with as much legal quality as Sáez. And now it is Sáez who is correcting Marchena.
Judge Sáez made his dissection of the trial verdict in response to the appeal filed by lawyer Andreu van den Eynde on behalf of the then vice president of the Catalan government Oriol Junqueras and foreign minister Raül Romeva, whom he asserts should have had their claims upheld by the Constitutional Court for violations of their rights, but a majority of the court opposed this view, as occurred with all the appeals by the convicted pro-independence leaders. The Constitutional Court did not release the full content of this dissenting opinion until yesterday, although parts of its arguments were contained in a press release on March 24th. Sáez joins the other critical voices of the court: Juan Antonio Xiol, vice-president of the court, and Maria Luisa Balaguer, who already last year said that they considered the sentencing of the Catalan pro-independence leaders to be "disproportionate", and have now repeated the same view in the cases that were still pending, those of Junqueras, Romeva and two other ministers, Quim Forn and Dolors Bassa. Judge Saez also endorses Xiol's dissenting vote, which states that the Supreme Court should have waited for the ruling of the European Court of Justice (ECJ), which ruled in favour of the ERC leader saying that he became an MEP as soon as he was elected, and no swearing on the Constitution was required as demanded by the Spanish government. In fact, the lawyer Van den Eynde yesterday informed the European Court of Justice, in the related hearing on the 'preliminary questions', that the "Supreme Court is in breach of its own decisions", referring to the case of Junqueras. The lawyer warned the Spanish Constitutional Court that he would be taking part in the EU court hearing without having the Spanish court's full decision, despite it having been announced, and he was notified of it on the same day as the hearing in Luxembourg.
In the 22-page dissenting vote, judge Sáez states that Junqueras and Romeva allege that their presumption of innocence was violated, that the crime of sedition for which they were convicted does not impute specific facts to them, and that their rights to political participation were violated, as outlined in the preliminary questions presented to the ECJ. For Sáez, the Constitutional Court should have upheld the appeal, given that the Supreme Court's ruling has three key shortcomings. The first is that it does not differentiate which facts are relevant and in the account of facts "there are no empirical facts." The second is that "there are numerous value judgments and assessments," such as those implied in descriptions like "hostile concentrations" and "marked hostility." And the third is that the offence of sedition is not clarified: when does it occur, asks judge Sáez, throughout their political activity or only between the demonstration of September 20th and the vote of October 1st? It is a point that most of the pro-independence leaders' defence lawyers had also denounced as a major flaw. The Constitutional Court judge admits that the events that took place in Catalonia in the autumn of 2017 were "serious and complex", but that it is necessary to clarify the proven facts imputed to each person in order not to violate their rights.
Right to protest
Judge Sáez even reveals that his colleagues in the Constitutional Court who endorsed the Supreme Court sentence have had to put in order the proven facts of the sentence, which in some cases are even found in the legal arguments section of the sentence. He is also very critical that in the events of the key September 20th protest in front of the Catalan economy ministry, where judicial searches were carried out as ordered by a Barcelona court, “the testimony of only one person is appreciated: a Mossos riot squad policeman", and adds that "the court chooses the gravest version of the facts". He also adds the nuance that the protest concentration "did not prevent" the search of the ministry for evidence relating to the Catalan referendum ballot boxes. There were small incidents, and Civil Guard cars were affected, but there was not general unrest, says Judge Sáez, warning that the statements contained in the Supreme Court ruling may violate the right to protest and demonstrate, where - he details - some dysfunctions have to be admitted and not everything generalized against them. He also denies the powers attributed to Junqueras or the fact that the then-Catalan social affairs minister, Dolors Bassa, was said to have the authority to strip the powers of public servants running those social and educational centres which opened for the 1st October vote. With respect to the actions on the referendum day, he asserts that incidents only took place in specific locations, and that passively preventing police officers from entering the voting stations is not an uprising.
For Sáez, there is a “deficit” of evidence and behaviour attributable to the Catalan social and political leaders. He also asserts that the legislature has not sufficiently clarified the crime of sedition, and that the Supreme Court's ruling is wrong. "There is no connection between the alleged uprising and the facts of blocking access and acting outside the law," he said. Finally, the judge says that it is not necessary for the Catalan leaders to take part in the actions for them to be accused of the uprising, but in this case what they did is call people to the demonstration.
"Stop Parliament" case
The Stop Parliament case is still open in court, with more than ten years having gone by since the mobilization that led to the court case. It has not been decided whether eight people - José, Àngela, Ciro, Olga, Rubén, Carlos, José María and Jordi - who took part in that mass protest against social spending cuts should serve the three-year prison sentences imposed on them by judge Marchena for the “ambience of intimidation” created, a concept that judge Pablo Llarena adopted in 2019 to imprison the Catalan politicians for the 1st October referendum without them having instigated any real violence. In some cases, they are still waiting for the response of the Constitutional Court on their appeals in order to take their cases to the European Court of Human Rights.