The Government will bring to Strasbourg criticism of the condemnations of the 'procés'

The European Court of Human Rights (ECtHR) has agreed to study the appeals of the nine sentenced to prison in the procés trial and has referred to the Government several questions about possible violations of rights in the Supreme Court ruling.

The answers will be presented in Strasbourg by the State Attorney's Office, the legal arm of the Executive.. According to the latest information that the partners of the acting Government and its usual parliamentary supporters have left in black and white, the Legal Profession will have to support several theses of the plaintiffs, thus promoting the estimation of the resources and the condemnation of Spain.

The Explanatory Memorandum of the law that last December eliminated the crime of sedition justified the reform of the Penal Code in arguments such as those presented before the ECHR by Oriol Junqueras and the other eight convicted.

In particular, that the crime of sedition that was applied to them had such imprecise profiles that those affected could not foresee how it would be applied.. And that the penalties that it included until its elimination were “disproportionate”. This, in turn, had a “deterrent effect” on the exercise of fundamental rights.. With elements like these, the Strasbourg Court has already handed down sentences in other cases.

Regarding the first point, the legal reform promoted by the Government regrets “the lack of clarity about the content and scope of the criminal type of sedition, a circumstance that operates against the mandate of certainty inherent to the principle of criminal legality.”

He then adds that the commission of the crime “may be linked in its development to the exercise of fundamental rights and freedoms such as the right of assembly or freedom of expression.”. “It is advisable, in this sense,” he adds, going to the heart of one of Strasbourg's obsessions, “to avoid a possible deterrent effect on the exercise of such constitutional rights and freedoms.”

Regarding the harshness of the penalties put forward by the appellants, the Government's position was expressed as follows: “The importance of the principle of proportionality must be strengthened when establishing the penalty hitherto associated with this crime.”. “The high severity of the penalties provided to date stands out.”

When the reform was approved in these terms, Supreme Court sources considered its sentence “dead” in view of the appeals to the ECtHR that were already announced.

The functioning of the Strasbourg Court also allows the two parties – who in this case would be investiture partners – to reach an agreement that settles the conflict.. Deactivating resources in Strasbourg could be one of the elements that accompany an eventual amnesty law.

For now, what has happened at the European Court is that the judge who has reviewed the nine appeals has agreed to inform Spain of its presentation and ask six questions about some of the allegations.

Admission for processing is a very difficult procedure to overcome in Strasbourg, although the relevance of the case made a favorable decision predictable.. The step taken by the ECtHR represents a de facto admission to the procedure, although formally this will occur later.. Whatever the final result of the procedure – estimation, dismissal or even inadmissibility – the decision of the seven judges who will decide will come in a detailed resolution and after studying the merits of the matter.

Questions to governments are part of the standard procedure of the ECHR. The Executive has until next January 12 to respond. The plaintiffs will then have the opportunity to reply to the Government and with all this the court will decide whether there has been a violation of rights by Spain. Until now, the ECtHR has rejected all claims presented against Spain linked to the process.

The European Court does not ask the government about all the alleged violations included in the nine appeals. He estimates that some do not hold up, he only asks about some. Among them, those highlighted by the reform that eliminated sedition: imprecision of the norm, disproportionate punishment and deterrence of the exercise of fundamental rights.