The Prison Oversight Judge has dealt a blow to the Public Prosecutor's Office. The High Court of Justice of Catalonia (TSJC) announced this Tuesday that the Prison Oversight Judge has granted the President of Òmnium, Jordi Cuixart, the 72-hour leave he had requested, in spite of opposition from the Public Prosecutor. The judge argued that the pro-independence leader had already served "a quarter of his sentence before 14 January 2020". In other words, "before the Parole Board proposed the permit", and that he has shown "good conduct". According to the judge, these are the two requirements referred to in prison regulations governing prison leave, and which Lledoners prison officials consider to have been met.
The Prison Oversight Judge was not involved in granting Cuixart’s first leave of absence, which allowed him to leave prison for 48 hours on 16 January, since such permits are issued directly by prison Parole Boards without the involvement of a court. When he requested a 72-hour permit, however, the Public Prosecutor took the opportunity to ask the judge to deny the request. The prosecutor’s main argument was that the Òmnium leader had not acknowledged the "gravity" of the crimes for which he received a nine-year prison sentence and that he has failed to “show regret".
The Public Prosecutor also took into account the fact that Cuixart did not undertake a specific treatment program for the crimes he committed. In her ruling, Judge Maria Jesús Arnau states that prison regulations do not impose on the offender the obligation to “show regret or plead guilty" and adds that Cuixart cannot be expected to undergo a specific program "to change his political views". As a result, the judge took the phrase "We’ll do it again", which Cuixart uttered during the trial, "as an expression of his ideological/political thinking".
The judge stressed the fact that Cuixart’s words, in keeping with the prison psychologist's report, "at no time refer to a tumultuous uprising, as set forth in the facts of the Supreme Court’s judgment. Instead, it refers to the desire to continue to exercise the right to decide on the situation in Catalonia in a peaceful, non-violent manner". For this reason, Judge Arnau goes on to criticize the Public Prosecutor’s Office for solely basing its arguments on the words the defendant used in court, which also appear in the title of the book he has written, while "failing to examine the contents of the book, or other statements he made, which appear in the prison psychologist’s report.
No obligation to show regret
The judge stresses that offenders are not required to show remorse in order to be granted leave. According to the judge, "Cuixart acknowledges the fact that he engaged in the acts of which he was accused, but he disagrees with their legal classification. He does not show regret and continues to proclaim his innocence, which is without a doubt a legitimate point of view and decision, since prison regulations do not impose any obligation on offenders to show regret, plead guilty or cease to proclaim their innocence".
In his closing statement, Judge Maria Jesús Arnau strongly criticised the Prosecutor's Office’s request not to grant Cuixart his three-day leave: "He is under the jurisdiction of the prison authorities, meaning the criminal conviction cannot be expected to extend to the inmate's prison itinerary, hindering and preventing the possible granting of ordinary leave, other penitentiary benefits and progressive changes to their classification, although it appears as if the Prosecutor’s Office has forgotten this fact". In rejecting the Prosecutor’s appeal, the judge goes on to say that, "Such obstacles, without sufficient motivation, would be contrary to our legal system and to prison rules in particular".
Referring to the Supreme Court's ruling against the independence leaders, the judge writes that "it does not imply that the offender has to serve half of their sentence before becoming eligible to being classified as a level-three prisoner" and, accordingly, it does not place "limitations or conditions on the possible granting of ordinary leave permits".
The possibility of an appeal
The judge's decision is not final and may be appealed by the Prosecutor's Office. The argument put forward by the judge’s ruling, however, could be repeated in the coming weeks, as the same judge has another case from the Prison Oversight Prosecutor opposing the 72-hour leave requested by Jordi Sànchez, the former president of the ANC. The prosecutor is employing the same arguments it used in its frustrated attempt to oppose Cuixart’s three-day leave: a lack of "regret", while failing to understand the "gravity" of the crimes he has committed or to participate in a specific program of treatment.
In Sànchez’s case, the prosecutor even argues that it was necessary for him to participate in a program "which helps him to understand that in order to legitimately achieve the ends he espouses, within the Spanish Constitution, there is no other way than amending the law through the legal means set forth by the law itself, and that everyone must abide by said laws, the Criminal Code in particular".
The Chief Judge of Prison Oversight Court Number 5 will also be responsible for hearing the Lledoners Prison Parole Board’s proposal with regard to the application of article 100.2 of the prison regulations which allows Sànchez and Cuixart to leave prison to engage in paid and voluntary work three and five days a week, respectively. In this instance, unlike the 72-hour permit, which Sànchez and Cuixart will not be able to enjoy until a firm court decision authorizes it, the leave can be granted even if a judge has not authorised them. In fact, for the time being the Prosecutor's Office has yet to issue a report in which it declares its position on the matter, based on which the judge will have to issue a ruling.