Last week a majority of the judges who serve on Spain’s Constitutional Court (CC) ruled that Jordi Sànchez’s pre-trial detention was lawful. Nevertheless, two of the sitting justices (Fernando Valdés Dal-Ré and Juan Antonio Xiol Ríos) cast a dissenting vote. On Tuesday the court published the judgement that dismisses the appeal filed by the former president of the Catalan National Assembly [ANC in Catalan], together with the opinions of the two dissenting judges. While neither Valdés nor Fiol openly oppose Sànchez’s imprisonment, both of them argue that, once he was elected to the Catalan parliament, Spain’s Supreme Court should have given more pre-eminence to Sànchez’s right to political representation.
The two dissenting CC judges point out that “[the ruling] fails to mention any considerations that might be understood as part of the necessary judgement of proportionality required when the right to political representation is invoked”. Their criticism applies both to the initial decision by the examining judge, Pablo Llarena, and to the decision taken by the Supreme Court’s panel that ultimately dismissed Sànchez’s appeal. Their point point of view is consistent with the opinion that the same two judges —plus their colleague María Luisa Balaguer— issued when they had to review a request by ERC leader Oriol Junqueras to be released so that he may attend the opening session of the Catalan parliament.
Not only did Justice Llarena disregard Sànchez’s office as an elected representative when he denied his release, but in an interlocutory statement the judge emphasised that Sànchez was more likely to re-offend after becoming a member of parliament. On 6 of February 2018 Justice Llarena wrote that “not only has Mr Sànchez not relinquished his public activities which —from various fronts— have been instrumental to the events [being probed], but he has also doubled on his commitment by running on a slate whose candidates have pledged to bring back the political dynamic that led to the actions currently being examined by this court, and that eventually led to the suspension of Catalonia’s home rule [in 2017]”.
An adverse effect on the Catalan parliament
Valdés and Xiol point out that, as a member of a regional parliament, Sànchez “was denied the exercise of his office, for which he needed to be physically present [in the chamber]” and, furthermore, “the Catalan parliament was denied the contributions of a particularly outstanding member in its deliberation and decision-making processes”, bearing in mind that Jordi Sànchez’s name “was even considered as a presidential hopeful”.
For these reasons, the two judges (whose views were in a minority in the CC’s vote) believe that other options rather than detention should have been contemplated or, at the very least, Sànchez’s right to political representation should have been given more pre-eminence. In their statement Valdés and Xiol also mention that the concern about Sànchez hypothetically re-offending [after his release from prison] “is not founded on the certainty that he is guilty of a crime that might be repeated, as that will only be ascertained once the defendant has been positively convicted”.