Steps for the resources of the sentence of the ‘procés of the Supreme to Strasbourg


Politics

Sentence of the ‘process’

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If the defense reaches Strasbourg and this court agrees, the Supreme Court could be forced to review the sentence.

Despite the firmness of a sentence that has the unanimous support of seven Supreme Court magistrates, the defenses of the trial of the ‘procés’ explore every last loophole to force the revision of the sentence, in a judicial battle that is expected to last years and in which Strasbourg can have the last word.

There is no recourse against the judgment of the Supreme Court, but some of the defenses consider provoking its review through the so-called “nullity incident”, which would allow the sentence to be annulled in the event that the high court appreciates a violation of fundamental rights in the same.

More than a second “round” in the Supreme Court – the annulment incident would be resolved by the same court that judged the case – the lawyers consider it as a procedure to ensure access to the Constitutional Court, whose doctrine requires exhausting the judicial means to request the shelter.

Constitutional

Conceived as an exceptional avenue against violations of freedoms and fundamental rights, the Constitutional Court will have the opportunity to review the judgment of the “procés” through appeals, an essential toll to reach the European Court of Human Rights in Strasbourg.

With no time limit to resolve and without the cases involving a prisoner being considered a priority, the ruling of the TC on the “procés case” could be delayed, entangled in the deliberations between magistrates, not less than one or two years, which in turn it would run aground on the road to Europe.

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While resolving the amparo claim, the Constitutional Court has the power to suspend the jail sentences imposed, if so requested by the defenses, although there is only precedent for this in cases of light sentences, around three years in prison.

Strasbourg

Wary of a TC that the independence movement has always seen politicized, the defenses trust that it is the European justice that disavows the Supreme Court, as the authority in charge of ensuring the guarantee of human rights and freedoms recognized in the European Convention on Human Rights , signed by the 47 member states of the Council of Europe.

The scope of the decisions of the European Court of Human Rights is, however, limited. It is not competent to revoke or amend sentences: if it considers that there has been a violation of human rights, it can fix compensation for the victims or open the door to the review of sentences in the defendant country.

Pussy Riot

There are two main violations that the defenses consider to wield before Strasbourg: the right to a fair trial and the freedoms of expression, assembly and association.

Based on the principle known in international law as “fair trial”, the lawyers want to denounce irregularities in the course of the “procés” case, from abusive preventive prisons or arbitrariness when appointing the judging court to the veto of the Supreme Court to show the 1-O videos during the interrogations of the trial.

And they cling to the talisman of the “Pussy Riot”, the members of the Russian punk group who were convicted of a protest in the Moscow cathedral, in a sentence that Strasbourg later censured, considering that the court had exceeded to laminate their right to the expression freedoom.

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After Strasbourg?

In the event that the violations appreciated by Strasbourg derive from irregularities in the process, the Supreme Court may choose to repeat the trial, correcting those defects, or issue a new sentence, which does not prevent the result from being an identical sentence.

A different case would be if the ECHR admitted that the Spanish justice exceeded its limits when condemning acts committed in the exercise of fundamental freedoms: in this hypothesis, legal sources maintain, the Supreme Court’s ruling could not be other than acquittal.

In both situations, the eventual victory could end up being merely moral because, after years of processing the appeals, the last word from Strasbourg would come when the defendants had already served a good part of their sentence behind bars. Of course, it could possibly have an impact on jurisprudence.

Setbacks of the Constitutional

Although its rate of admissions to process is very limited, the TC has agreed to study the thirty appeals filed by the defendants in the “procés case”, most of them against decisions of Judge Pablo Llarena, instructor of the case.

Last February, in the middle of the Supreme Court’s trial, the TC gave a first setback to the defenses on a substantive issue, by rejecting the appeals against the provisional imprisonment of the “Jordis”, while opening them for the first time the path to take your case before the Court of Strasbourg.

The ECHR also watered the hopes of the independence movement last May, when it dismissed the demand of Carles Puigdemont and 74 deputies against the suspension of the plenary session that the Parliament convened in October 2017 to proclaim independence, considering that it was necessary to “maintain public security, defense of order and protection of the rights and freedoms of others “.

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George Holan

George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.

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