Spain’s Supreme Court and the Catalan political prisoners’ home leave

A recent judgement backing the jailed leaders’ level 3 classification is a major stumbling block for Justice Marchena

Catalonia’s Court 5 of Penitentiary Surveillance has dismissed the Prosecutor’s appeals which sought to revoke the home leave granted to Oriol Junqueras, Jordi Sànchez, Raül Romeva, Jordi Turull, Josep Rull, Joaquim Forn and Jordi Cuixart. However, the Catalan political prisoners will have to stay in jail for now because the judge believes their level 3 classification must remain suspended until Madrid’s Supreme Court —which convicted them in the first place— has had the final say on the matter.

At any rate, this is a very significant development that will likely have a bearing on the final ruling in the case. Justice Manuel Marchena, who sits on the bench of the Supreme Court’s criminal law section, has been handed a devastating judgement by a specialist court, which also torpedoes the Public Prosecutor’s arguments. Indeed, Court 5 has made it very difficult for Marchena to revoke the political prisoners’ home leave, even though it’s not inconceivable for the judge to try to get back in the limelight he lost when the trial ended by handing down a ruling that wins him praise and front page headlines from Madrid’s conservative media.

Still, it will not be an easy decision because ruling for the Prosecution would be akin to discriminating against the Catalan prisoners for being who they are, as Court 5 has pointed out. Furthermore, to do so Marchena would need to invoke the sort of criminal law principles which, according to Court 5, “would feel more at home in 19th century Spain and certainly pre-date our Constitution and the Prison Service Rules and Regulations that are in force today”. This is the crux of the matter, indeed. The Prosecutor’s goal —to take away all leave, benefits and prison privileges from the jailed Catalan leaders (each and every one of them has been appealed against)— is clearly unconstitutional and undemocratic and it is the sort of thing you would expect from an authoritarian regime.

As if that weren’t enough, the Prosecutor also expects the Catalan prisoners to undergo a re-education programme of sorts, to recant their political views and to refrain from engaging in any pro-independence activities. The judge of Court 5 has pointed out that neither Spain’s penitentiary legislation nor the Constitution allow for that sort of treatment, which is strongly reminiscent of Vallejo-Nágera’s methods. The Francoist pseudo-psychologist attempted to excise communist thinking from the minds of the republican prisoners [who were held by General Franco’s brutal regime]. A more recent case in point would be China’s re-education camps where millions of Uyghurs are being held in an attempt to strip them of their language and Muslim faith.

Worst of all, the Public Prosecution is an institution funded by the taxpayer and the General Prosecutor who leads it ultimately reports to the Spanish government. At present the job is held by Dolores Delgado, a former socialist minister. Well, Ms Delgado should be the first person to disavow the arguments put forward by the Public Prosecutor [in the case of the Catalan leaders] as being unlawful and unconstitutional. This is not about influencing the Prosecutor, but taking action according to democratic principles, without seeking retribution or making an example of anyone. It is a very sad, worrying affair when a judge has to put the Prosecution in its place, an institution that is supposed to represent us all.

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