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#JuicioProcés: decisions regarding pre-trial detention and the political rights of the defendants

Originally published in Spanish: #JuicioProcés: las resoluciones sobre la prisión provisional y derechos políticos de los acusados, by Hay Derecho

April 22, 2019

After a short court holiday break, we resume the follow-up to the Trial of Procés, which has now reached its thirty-second day.

In these last sessions, the testimonies of the members of the Civil Guard were followed by those of several National Policemen, who directly and repeatedly criticized the actions of the Mossos, whose passivity in some cases came to be called «despicable».

Particularly noteworthy was also the change of attitude of the defence lawyer Jordi Pina, who after adopting a belligerent position bordering on the limits of professional deontology (to such an extent that it was highlighted in our last post), seems to have opted to keep a more discreet strategy. Who knows, maybe the defense also reads Hay Derecho.

In addition to this, the last two weeks of Trial were marked by the following issues:

Upholding pre-trial detention

First of all, we must refer to the important Supreme Court and Constitutional Court decisions concerning the fundamental rights to personal freedom (Article 17.1 Spanish Constitution) and the political participation of defendants (Article 23.2 Spanish Constitution).

The Supreme Court, by Order of 11th April, dismissed the latest requests for conditional release made by the defendants.

According to article 539 of the Criminal Procedural Code, decisions of pre-trial detention, such as those of conditional release, can be modified during the case and at any time, adapting them if necessary, to the concurrent circumstances. In this sense, the doctrine of the European Court of Human Rights has reiterated that the passage of time may modify the presuppositions on which the pre-trial detention was based, so that in the decision to maintain the prison the personal circumstances of the pre-trial detainee must be inexcusably weighed as well as those of the specific case to assess whether the reasons that determined the adoption of the measure continue to be sufficient to uphold it. This doctrine of the ECHR formally protects the repeated requests for freedom that had been put forward throughout the Special Cause.

The requests made by Junqueras, Romeva, Rull and Turull, to which Forn´s was later added, were based, in the first place, on the difficulties that the length of the sessions caused in their right of defence.

Once again, this is a generic petition, which does not prove any specific or material damage, so it can only be part of Pina’s strategy of forming «separate trials» in parallel to the oral trial, in which questions relating to fundamental rights are raised.

In any case, the Supreme Court has ruled that the material content of the right of defence is not affected by the conditions in which the oral trial sessions are taking place, since all defendants, whether or not deprived of liberty, have been offered the possibility of sitting on the stand with their lawyers, thus guaranteeing fluent and permanent communication throughout their proceedings and during the various breaks and during the time used for the meal, the defendants are able to interview freely, without restrictions, as well as receive advice from their lawyers. On the other hand, the penitentiary system fully guarantees the right of defence, since article 51 of the General Penitentiary Act guarantees free communication with the defence counsel.

It was also argued that the defendants had been active and collaborative during the trial, which, in their view, made it possible to rule out the risk of absconding. The Supreme Court reiterates what it resolved on 25 January: that it is a notorious fact that organised power structures exist outside Spanish territory, placed at the service of those defendants who have taken the decision to evade justice, and in fact current members of the Government and Parliament of Catalonia – as the media have widely publicised – have travelled to hold meetings with the members of such structures, some of whom have also been prosecuted in this case and declared in absentia.

This reality clearly intensifies the risk of absconding, as it highlights the existence of some infrastructure abroad that could facilitate the escape of defendants.

On this point, the arguments of the Supreme Court have been reinforced by the first ruling of the Constitutional Court on the pre-trial detention of one of the defendants.

In effect, the Constitutional Court, in a sentence for which Judge Antonio Narváez has been rapporteur, has unanimously dismissed the appeal filed by Dolors Bassa against the investigator’s Order of 23 March 2018, which decreed pre-trial detention, communicated and without bail, for alleged crimes of rebellion and embezzlement of public funds.

The sentence, which was drafted by Magistrate Antonio Narváez, considers that the precautionary decision adopted by the Supreme Court had an adequate basis; the evidence contained in the indictment, has responded to a constitutionally legitimate purpose; to avoid the risks of flight and criminal repetition, and is duly motivated from the external control canon that corresponds to the Constitutional Court.

It is interesting to point out that in the appeal, the investigator was criticized for having taken into consideration the absconding of Puigdemont and Rovira in order to assess the risk of absconding of the appellant, who had voluntarily and readily appeared when she had been called. To these effects, the Constitutional Court reasoned that if it had been the plaintiff herself who had tried to evade justice by fleeing abroad, it would no longer be necessary to make a prognosis on which to base the risk of absconding, since such an act of evasion would have already occurred. It is not their current behavior, but the risk that this will change in the future what must be evaluated, being of undoubted relevance, that other defendants, who face the same charges and had also readily made themselves available, have abruptly changed their procedural behavior, suddenly fleeing as a result of the prosecution, and have thus jeopardized the correct functioning of the process.

The Court expressly accepts that it is valued that the roots of Bassa, based on the existence of family relationships and economic resources, is not relevant enough to preserve the risk of absconding, given the proven ease with which one can change family address within the European Union thanks to the help of the international support structure that the defendants have.

In short, the escape of Puigdemont and other rebel defendants has increased the perceived risk of escape of those who have complied with the requirements of the process.

Finally, the fact that some of the defendants in pre-trial detention are candidates in the general elections on 28 April 2019 (or 26 May 2019) does not lead to a change in their personal situation either.

The fact that a defendant is a member or candidate for Parliament does not preclude pre-trial detention, which, in itself, does not imply a violation of his political rights.

On the other hand, as Judge Llarena reasoned in relation to a petition for Sanchez’s freedom to participate in the 2017 campaign; since the accused were included in electoral lists once they were already in a situation of pre-trial detention, they can still be elected, their ability to address the electorate is not completely annulled and their eligibility is set in a favorable way with regards to that of other members of the same candidacy.

The rights of political participation in the electoral campaign of the indicted candidates

On the other hand, as we noted a few days ago, the Court was going to issue decisions that would define the scope of the rights of political participation of the defendants-candidates in prison and with the open oral trial in the electoral campaign, after the declaration of its own lack of jurisdiction by the General Electoral Board in relation to the possibility of holding broadcasted electoral debates in prison.

Beyond what has already been said about the petition for the release of the defendants, the week began with a resolution of the Supreme Court in which it scoped its jurisdiction in this matter and thus pointed out that as soon as the defendants are not incommunicado and the electoral acts (debates in prison) did not imply a release of the accused-candidates, it returned the jurisdiction to the Electoral Board as guarantor of the respect of the principles that regulate the electoral activity and, in addition, it pointed out the jurisdiction of penitentiary institutions in relation to the regime in prison.

That is why the Electoral Board came to decide on the requests made by the defendants and at its meeting on 11 April adopted the following: a) deny permission for an electoral debate in Soto del Real prison due to lack of information on its requirements, insofar as reference is made to a hypothetical debate in which its characteristics are not detailed and not even the acceptance of other candidates who could participate in it has been noted; b) deny other permissions for debates on the 15th and 16th because of the time pressure, although the decision regarding future debates was reserved and it requested a report from penitentiary institutions; and c) Deny the request that the Supreme Court be required to suspend the testimonies of witnesses in special cases, coinciding with the electoral campaign period, as well as to urge the Supreme Court so that Vox cannot act as a popular accusation during the entire electoral campaign period, because it is a competence at this end of the Judicial Branch.

At the same time, Penitentiary Institutions denied this week the authorization for debates for three reasons: the maintenance of internal security, the coincidence with the celebration of the trial in the Supreme Court and the obligation to respect political neutrality, since they could encounter a management problem if the rest of the parties request to hold political acts in those same prisons.

As we can see, the day-to-day running of the electoral campaign is giving rise to a large number of resolutions that attempt to scope of the candidate’s rights to participate in the electoral campaign within the situation of pre-trial detention, the penitentiary system, the oral trial and the necessary political neutrality of the institutions.

We will see how all this will evolve in the coming weeks in the face of repeated requests from the defences on acts and actions within the context of an electoral campaign,

There is already a new one in the pipeline: for the defendants to be authorized to attend the media in the daily pauses of the oral trial.

As can be seen, we are entering a stage of great creativity by the defences, with a whole new type of petitions, surely aimed at putting Spain’s public institutions in a difficult position vis a vis international institutions.

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