The news that the Constitutional Court (CC) was divided when it ruled on Oriol Junqueras' appeal was the first sign that there was a crack in the hitherto impenetrable Spanish judicial front. This Tuesday, details were released of the votes by the three CC magistrates who were in favour of accepting Junqueras' appeals to be allowed out on bail in order to engage in political campaigning and to occupy his seat as a Member of Parliament. The progressives Fernando Valdés, Juan Antonio Xiol and María Luisa Balaguer exceeded everyone’s expectations, however, by asserting that the Supreme Court violated Junqueras' political rights by not releasing him in order that he could participate in either the 21 December general election campaign or, subsequently, take his seat as an MP.
According to the three judges "The court has the obligation to consider the effect that keeping this particular political representative on remand will have on the normal operations of the parliamentary democracy system, and the suitability of measures other than depriving them of their liberty as alternatives which are less disruptive to the functioning of parliament". The ruling which dismissed Junqueras’ appeal was handed down weeks ago, but the legal arguments have only now been made public.
The three judges are in the minority, of course, but their arguments will be used to strengthen Junqueras’ case before the European Court of Human Rights (ECHR), and, more importantly, to dispel the myth that the Supreme Court acted in an exemplary manner throughout, serving as a guarantor of rights. The existence of dissenting voices within the court which is charged with respecting fundamental rights, means that there is a legal debate and that Pablo Llarena's performance was, at the very least, questionable in terms of such a critical issue as the respect for the accused’s fundamental rights.
The fact that candidates had to remain in prison during an election campaign, as did elected MPs during plenary sessions, even when they were candidates for the presidency of the Catalan government, as in the case of Jordi Sànchez and Jordi Turull (with the latter being sent to prison in the middle of an investiture debate), was a shock for many legal experts at the time. Nevertheless, Spain’s powers that be closed ranks over Judge Pablo Llarena’s behaviour. His actions did not even begin to be questioned within the legal profession until he made a fool of himself over the European Arrest Warrants. Two years later, slowly but surely, at least some, such as the errant CC judges, have dared to put down in writing that the whole thing was an outrage.
What people need to understand is that the violation of the rights of Catalan political prisoners is not something which affects only them, or even others who are pro-independence, but rather everyone, regardless of their ideology or position with respect to the Process. The political rights of Junqueras, Romeva, Sánchez, Forcadell, Rull, Turull, Bassa and Forn are the rights of us all, they are the foundation which makes participatory democracy possible, and not something which a judge can suspend unilaterally.