Spain did not violate the political rights of pro-independence politicians by issuing preventive detention after the events that occurred as a result in 2017 processes. This Thursday, the European Court of Human Rights (ECHR) rejected the arguments of Oriol Junqueras, Jordi Turull and Jordi Sànchez, who sued the Spanish State before the Court of Strasbourg for violating their political rights and freedom of expression by keeping them in preventive detention, which prevented them from participating in political trials in Catalonia after the independence referendum that year despite having been elected to institutional positions.
Unanimously, the Strasbourg judges rejected the arguments presented and believe that the decisions of the Spanish judicial system were not arbitrary, did not violate the right to free expression nor did they try to “silence” a political alternative.
“The national authorities have weighed the different interests at stake in a way that cannot be defined as arbitrary and without undermining the free expression of popular opinions”, underline the magistrates in one of the reasons for the sentence, the conclusions of which are unanimous.
The ECtHR had decided to bring together three requests submitted in the context of the independence process by two personalities of the processes throughout 2020: those of the former vice-president of the Generalitat, Oriol Junqueras; that of former councilor Jordi Turull and that of Jordi Sànchez, president of the Catalan National Assembly (ANC), one of the main mobilizing entities of the independence movement in 2017. The three were held in preventive detention by order of the Spanish courts after the demonstrations in Barcelona on 20 and 21 September and the subsequent illegal self-determination referendum on 1 October of that year.
According to what they argued before the ECtHR, this preventive detention prevented them from exercising their right to participate in an electoral process or to hold office. In the case of Junqueras, for having prevented the State from holding the position of regional deputy because he was in preventive detention after the 2017 elections. Turull, for his part, questioned the “proportionality” of the measures adopted before the Strasbourg judges, given that when his preventive detention was ordered he had been a member of parliament for months and was also a candidate for the presidency of Catalonia. With a similar argument, Sánchez turned to the ECtHR arguing that the precautionary detention order prevented him from participating in the electoral campaign and, also, in parliamentary activity after the elections.
The preventive detention of the applicants, the rejection of their requests for provisional release and, in Sánchez’s case, the suspension from his position as a deputy once the accusation had become final, “are not incompatible with the very essence of his right to be elected and to sit in Parliament”, replies the ECtHR.
The Strasbourg Court recalls that the applicants were “criminally prosecuted for serious crimes”, which is why it believes that “they could not reasonably expect to participate in the elections without any restrictions”. The judges also underline that the objective of preventing acts contrary to the constitutional and democratic order cannot be considered “political” in the sense in which the appellants claim. And they believe they were unable to demonstrate “convincingly”, citing only the “political context”, that their preventive detention had the “hidden” purpose of preventing their participation in political life rather than ensuring that they were brought to trial.
For the ECHR, the most reliable evidence that the applicants’ arguments do not hold up is that their political parties were not only able to present candidates in the elections of 21 December 2017, but that, after the elections, the pro-independence coalition even proposed Sànchez and Turull as candidates for the presidency of the Generalitat despite them being in preventive detention.
In their respective requests, the pro-independence politicians also agreed that the legal actions taken against them were aimed at “silencing” a “political alternative” and “intimidating” them into abandoning politics.
For all these reasons, the applicants concluded, the judicial actions against them in the trial violated, among others, their right to freedom of expression (Article 10 of the European Convention on Human Rights) and also their political rights (both Article 3 of the Additional Protocol on the right to free elections, and Article 18 on the limitation of the application of restrictions on rights and their right to freedom and security enshrined in Article 5). Strasbourg does not agree with them on any point.
Turull also suffered a further setback: the current general secretary of Junts had reported to the TEHD the delay in processing his appeal for protection on the legality of his provisional detention. This, he said, violates Article 5.4 of the Convention, which guarantees that “any person deprived of liberty by arrest or detention has the right to appeal to a judicial body, so that it can rule promptly on the lawfulness of his detention and order his release if such detention is unlawful.”
The ECtHR also rejects this point and finds that the time required is justified in light of the “complexity and crucial importance of the legal issues raised by the matters brought before the Spanish High Court in relation to the Catalan independence process”.
