The verdict on one of the Catalan political prisoners for his role in the 2017 independence referendum has been questioned by two of the Spanish Constitutional Court judges. The majority of magistrates greenlighted the 12-year prison time on sedition and misuse of funds charges for former government spokesperson, Jordi Turull, which enables the politician to take his case to the European Court of Human Rights in Strasbourg.

Yet, two of the Constitutional Court members believe the original Supreme Court verdict was “disproportionate,” contradicting their seven colleagues. Two more, Candido Conde-Pumpido and Antonio Narváez, withdrew from the case after the defenses accused them of biased, while another one, Fernando Valdés, stepped down last October. Juan Antonio Xiol and Maria Luisa Balaguer consider that the court’s deliberations should have “taken more into account an open interpretation of the principle of legality and should be more in accordance with the common legal culture of the EU countries.”

They said that the court should have been more “flexible” in making sure the rule of law was guaranteed by “protecting the fundamental rights even for those who do not share this respect to the rule of law.” Xiol and Balaguer’s arguments are based on their “remarkable doubts” on whether a crime of sedition was committed. Indeed, they say that, for instance, the 20 September 2017 demonstration outside the Catalan economy department which was being raided in order to stop the referendum preparations was probably not a “tumultuous and public uprising,” as the sentencing considers.

Right to assemble

“The events on 20 September developed as a demonstration, which is protected by the right to assemble,” they say, reminding that the rally was not called by the government, of which Turull was part. They also said that the incidents on 1 October 2017, the referendum day, were “not widespread” and that they “highly doubt” that the demonstration or the vote would put the democracy at risk.

Their opinions contradict that of the majority of magistrates, who rejected Turull’s appeal on the grounds that his sentence is not disproportionate. The seven remaining judges said that the lack of violence in the independence push does not mean that “a tumultuous uprising” did not occur. “The crime of sedition does not necessarily provide causing injuries or the use of weapons; so the lack of these circumstances does not prevent having committed the crime.” They say that the fact that Turull did not explicitly call for violence is not enough to consider that he did not commit the crime of sedition.

Andreu Van den Eynde, the defense lawyer for two of the jailed leaders, Oriol Junqueras and Raül Romeva, reacted to the lack of consensus in the Constitutional Court saying that this could be the “prelude” to the European Court of Human Rights revoking the verdict – Turull has already announced he will place an appeal before Strasbourg, and the other eight imprisoned politicians are expected to do so once the top court has its say over the cases. According to the lawyer, Xiol and Balaguer say that the events for which the jailed leaders are serving their times behind bars are part of the fundamental rights, “so their verdict inevitably affects [these rights], causing the chilling effect that the European Court of Human Rights prohibits.”

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