Neither the coronavirus nor the Constitutional Court taking the matter into its hands have changed the position of the Public Prosecutor regarding Jordi Cuixart’s case. On Monday the Public Prosecutor’s Office opposed the Catalan leader’s demand to be released from prison as part of an appeal urging Spain’s Constitutional Court to review the Supreme Court’s ruling in the case of the 2017 independence bid. Òmnium Cultural, the grassroots group led by Jordi Cuixart, reacted by stating that “PM Pedro Sánchez has missed his last chance to thwart the violation of Cuixart’s rights before we take the case up with European justice” and they remarked that the Prosecutor continues to oppose the release of the Catalan political prisoners despite the PSOE-Podemos coalition government in Madrid.
Cuixart’s freedom was one of the requests that the leader’s legal team had included in the appeal lodged with the Constitutional Court with a view to securing at least a temporary release while the court is considering his case in detail. Just before the deadline set by the court had expired, the Public Prosecutor rejected Cuixart’s request because she believes his prison sentence is too long to justify a suspension.
In an eight-page statement the Prosecutor begins by arguing that, “as a general rule”, appeals do not lead to the suspension of a convict’s sentence and that the only exception in the law is when not doing so would place the appellant at a disadvantage. In other words, only when the damage would be so significant that by the time the Constitutional Court ruled in his favour, it would be too late to prevent it. The Public Prosecutor does not believe the case of the president of Òmnium Cultural falls into that category.
In her statement the Prosecutor stresses the need to consider the gravity of Cuixart’s actions and their “social impact”, the length of the prison sentence imposed on him and the time remaining before its completion, as well as the “flight risk” and “the possibility that the victims may be rendered defenceless”. The Prosecutor emphasises that “we find the gravity of the sentence to be the most relevant” of all these circumstances. On this point, the document refers to a five-year prison sentence as drawing a line between major and less serious crimes in the Spanish criminal code. “As a general rule, the Constitutional Court does not suspend a court ruling whenever a defendant has been sentenced to five or more years in prison, unless it is an exceptional case”, she claims.
The Prosecutor believes that Cuixart’s case is not exceptional and that the nine-year prison sentence he received rules out a hypothetical suspension. In order to argue for a suspension of his prison sentence, the president of Òmnium Cultural noted that he has spent nearly three years in prison now, that there are no victims as a result of the actions for which he was prosecuted and, furthermore, that the PSOE-Podemos coalition government have announced that the crime of sedition [which Cuixart was found guilty of] will be reviewed in the future.
However, the Prosecutor dismisses this last argument, even though she is an appointee of the coalition government currently in office in Spain. She claims that it is “a hypothetical circumstance” and that any “benefits for the defendant” would come into effect once a ruling is handed down. The Prosecutor also mentions that the Constitutional Court is expected to expedite the handling of an appeal whenever a prison sentence is involved and, therefore, a final judgement should be passed before long.
Cuixart and the other Catalan political prisoners —with the exception of Oriol Junqueras and Raül Romeva, who will follow suit soon— have lodged an appeal against the Supreme Court’s ruling that found them guilty of sedition.
Among the rights that have been violated, Cuixart claims that he was refused the right to be tried by the court which the law stipulates (his defence team have argued that he should have stood trial in Catalonia, not Madrid); that he was denied “a fair and impartial” trial and that the conviction for a crime of sedition is a violation of his right to demonstration and freedom of expression. As a result, they claim that his right to be free has also been trampled on, as he has been imprisoned for a long time.
The Spanish Constitutional Court is the highest-ranking court of law that one must appeal to before being able to take matters with the European Court of Human Rights.