Spain’s Supreme Court strikes down Forcadell’s 100.2, threatens to withdraw political prisoners’ open prison perks

An appeal by the Prosecutor would suffice to revoke all prison leave

Thanks to Article 100.2 of the Prison Service’s Rules and Regulations, the Catalan political prisoners are allowed to have a job, look after a family member or do voluntary work outside their penitentiary facility. Until now, the way to confirm or revoke that benefit was as follows: the Prosecutor would lodge an appeal with the court of penitentiary surveillance —which had initially endorsed granting the 100.2 benefit— and then with the provincial court of law, where most appeals still await judgement. Meanwhile, the prisoners were allowed to enjoy their new status. Well, no more. On Thursday Court 2 of Madrid’s Supreme Court —led by Justice Marchena— issued a ruling in the case of Carme Forcadell which invokes specifically the fifth additional provision of the Law of the Judiciary. Specifically, it rules that the Prosecutor may obtain the suspension of any prison leave merely by filing an appeal against it. This also applies to the Catalan prisoners’ level 3 status, which they were granted one week ago and the Prosecutor has not appealed yet.

“This judgement triggers the suspension which section 5 of the Fifth Additional Provision of the Law of the Judiciary reserves for cases where an appeal specifically refers to the granting of leave or parole to a convict”. This is an about-face from the current provision, whereby political prisoners can invoke and benefit from Article 100.2 until the Prosecutor’s appeal is dismissed or upheld by a judge. It effectively brings it in line with the granting of level 3 status, which the Prosecutor is able to suspend.

While an appeal against their level 3 has not been filed yet, the Public Prosecutor has announced that he intends to do so. Once that happens, we will see if the matter is handled by the court of penitentiary surveillance or the appeal is lodged directly with the Supreme Court. It also remains to be seen whether the Prosecutor will insist that their level 3 status is cancelled effective immediate. That didn’t happen with Article 100.2, but Thursday’s new ruling allows the Prosecutor to do so from now on.

The Supreme Court’s judgement announced on Thursday does not bode well for the level 3 status granted by the Catalan authorities to Carme Forcadell, Dolors Bassa, Oriol Junqueras, Jordi Turull, Jordi Cuixart, Joaquim Forn, Josep Rull, Raül Romeva and Jordi Sànchez. What’s more, now the Catalan prisoners know that if the Supreme Court issues a ruling against Article 100.2, they could all revert to their January status, before they were allowed daytime leave. Only Sànchez, Cuixart and Forn have served a fourth of their sentence, which would make them eligible for leave. Josep Rull will be joining them soon.

Additionally, the Supreme Court has ruled that it is competent to hear the appeals against Article 100.2 even though it does not involve a change to the political prisoners’ penitentiary status. Judicial sources have told this newspaper that there is a discussion about who is to decide on Article 100.2 and it is not unusual for the court that originally convicted a defendant to also rule on the matter of 100.2

Barcelona’s Audiencia Court has already made a move following the Supreme Court’s judgement: on Wednesday it green lighted the review of Article 100.2 in the cases of Jordi Sànchez, Jordi Cuixart and Joaquim Forn, who were given permission to work or do voluntary work months ago by the Prison Board. In their case, the court of penitentiary surveillance had already endorsed the decision, but the Prosecutor appealed against it before Barcelona’s Audiencia Court. Now Madrid will have the last word, though.

So far the Supreme Court has overturned the benefits granted to former Speaker Carme Forcadell by the Mas Enric Prison Board because, according to the court, “she has effectively been placed under an open prison regime”. The court understands that there has been “a fraudulent attempt” to bypass the Court’s control over prison leave. The court that convicted the Catalan political prisoners for their involvement in the independence referendum of October 1, 2017 is the same court that now will rule in the matter of the outstanding appeals.

In Forcadell’s case, the court’s ruling has come after Lleida’s court of penitentiary surveillance opted to take her case up with the Supreme Court, which has overturned her 100.2 benefits after finding them unjustified. Besides, the court warns that Article 100.2 may not “be used to conceal the sort of open prison regime that is exclusive to level 3 inmates”. On the subject of Forcadell, the court hints that she asked to be transferred to Wad-Ras in order to dodge the appeal that was following its course: “moving a convict from one facility to another is not allowed when it seeks to avoid the competence of the court of penitentiary surveillance of the area where the prison is located”.

Carme Forcadell has stated that the Supreme Court’s ruling revoking her 100.2 benefit comes as no surprise. “It is up to the provincial court to see the case, but the Supreme Court has taken the matter in its own hands in order to take away the benefit I was granted. I am not surprised. I don’t expect the Supreme Court to seek justice, but retribution”, she said in a Twitter post.