Enrique Guillén López is a
professor of Constitutional Law at the University of Granada.
It is necessary to try to make impossible
an eventually possible condemnatory sentence against Spain in the appeals on
the grounds of unconstitutionality presented by the Catalan political leaders
in provisional prison for serious crimes
There was a time when constitutionality was a preserve, a preserve forbidden to those who were not part of the institutional and social framework of the nation-state in which the fundamental norms found their origin. In this period, constitutionality and sovereignty were completely confused and fundamental rights, the territorial organization of power and the form of government could be combined by the constitutional courts having as the only parameter the State, that is, the legal system, headed by its formal constitution.
Then this changed and Europe started a new path: visionaries with their feet firmly anchored in the ground did observe that there was not much more to be expected from state sovereignty as to prosperity and justice. Thus the Council of Europe and the European Communities were born, inaugurating a cycle of greatness for pluralism (territorial, of legal systems, institutional, and social) redirected to unity thanks to a category, which is indisputably the hallmark of our civilization: the fundamental rights.
It is not, however, so easy bringing humanity together. Not even the expression "fundamental rights" has this miraculous quality. But this has been the incessant task that starts, in particular, with the European Court of Human Rights. Its vocation, its ambition, is none other than to bring to all the confines of the European regional framework a hope for those who see their basic legal positions injured. It is a leading actor in a stage that protects subjects against power, giving rise to a jurisprudence of almost 60 years that constitutes the minimum framework of dignity for citizens of the member States of the Council of Europe. Freedom of expression, personal liberty or the right to free elections, among other rights and freedoms, are carefully coined, with the purpose of resolving not only the specific case but also of avoiding, with the general delimitation of their practical meaning, subsequent injuries, in the same geographic area or in others.
Thus, the states no longer monopolize the resolution of legal and even political conflicts (because occasionally behind a legal conflict there is a more or less important political fracture). This is the path taken by Europe almost six decades ago and we are not allowed to miss a time that cannot return. In addition to unfair, it would also be futile.
Thus, the states no longer monopolize the resolution of legal and even political conflicts (because occasionally behind a legal conflict there is a more or less important political fracture). This is the path taken by Europe almost six decades ago and we are not allowed to miss a time that cannot return. In addition to unfair, it would also be futile.
The Spanish Constitution noticed this with an amazing spontaneity and normality in the year 1978. It managed to open our legal system to Europe; first, to the Council of Europe, and then to the European Communities, embracing their legal frameworks and their guarantors. As regards the rights, there was no reluctance: the hypothesis of a condemnation of the Kingdom of Spain by the ECHR (which there have been, of course: 112, specifically; this can be considered a relatively small number if we take into account the 1,830 judgments in which it has been found a violation of the Convention by Italy) was always considered as a contingency to avoid; and if, despite everything, it would eventually concur, then it should be an objective element forcing the reconstruction of the law and its internal elements of guarantee.
The Constitutional Court agreed from the very first moment to this dynamic. It assumed that it was the supreme interpreter of the Constitution in a country profoundly and exemplarily engaged in a collective logic of defining the future; fully immersed in political and legal processes in which the common destiny of individuals and collectives is decided; a country which admitted that our Courts are also those of Luxembourg and Strasbourg. The constitutionality has been extended, which means that its failings might be rectified by the Constitutional Court, the European Court of Human Rights or the Court of Justice of the European Union (in this last case only when the ruling is on a materially constitutional issue).
Now, this renewed guarantor of constitutionality includes in its immediate agenda the important task of deciding on the level of conformity with the European system of rights, so laboriously articulated, in a series of precautionary measures of deprivation of liberty against several political leaders who are accused of criminal responsibilities for crimes of a serious nature (rebellion, article 472 and concordant of the Criminal Code) committed within the framework of the secessionist process in which the logic of the democratic principle and the rule of law have been perverted so brutally by them as instigators.
In particular, this guarantor of constitutionality must provide a legal solution to a series of appeals on the grounds of unconstitutionality on this particular issue - the first, filed by Oriol Junqueras -, and since very recently it depends on a new element that is absolutely decisive for the solution to be adopted. This is the sentence of the European Court of Human Rights ‘Selahattin Demirta vs. Turkey’ (number 2), of November 8, 2018, in which the Court of Strasbourg has established an important doctrine on the affectation of the rights to personal freedom (a fundamentally subjective right) and the right to free elections (absolutely nodal in a democracy), as a result of the provisional imprisonment of a Kurdish parliamentarian and political leader who won 55 seats in the legislative elections of June 2017. Selahattin Demirta's parliamentary immunity was withdrawn after a constitutional reform and he has been deprived of freedom since November 2016, pending the trial in which it will be determined his criminal responsibility for acts that ended with the death of 50 people, more than 660 injured and a very significant amount of material damage. In this sentence, finally condemnatory for Turkey, the Court of Strasbourg has made a set of clarifications on the requirements that must be met to admit the limitation of personal liberty through provisional detention, details that abound in its previous jurisprudence and that can also be recognized in several sentences of Spanish courts.
But, in my opinion, the most important aspect of this sentence is to do with the fact that in paragraphs 232-241 and 260-274 the consequences of holding an elected member of any Parliament in custody for more than 23 months are addressed for the first time, as explicitly stated in the text; this member of a Parliament happens to be one of the leaders of the political opposition in the defendant state.
But, in my opinion, the most important aspect of this sentence is to do with the fact that in paragraphs 232-241 and 260-274 the consequences of holding an elected member of any Parliament in custody for more than 23 months are addressed for the first time, as explicitly stated in the text; this member of a Parliament happens to be one of the leaders of the political opposition in the defendant state.
Thus, our Constitutional Court has to continue reasoning as it has been doing since ancient times. Let us remember, for example, the perfect integration of the doctrine of the European Court in the body of arguments with which STC 48/2003 resolved on the constitutionality of the Organic Law of Political Parties. The alleged injuries of the Convention of Human Rights alleged by the political parties that were banned as a result of this regulation were the occasion for a very important pronouncement of crucial practical repercussions. Indeed, any recent history of Spain should make specific mention of the sentence in the Batasuna vs. Spain case, of June 30, 2009, where it is stated: "The Court considers that (...) the domestic courts reached reasonable conclusions after a detailed examination of the elements that were in their possession, and sees no reason to depart from the reasoning of the Supreme Court when it concludes that there was a relationship between the plaintiff parties and ETA. In addition, (...) such a relationship can objectively be considered a threat to democracy "(89).
That direction, which has given us such good results, must continue to be the dominant legal response to the secessionist process, a vital issue. No end should be left loose. We must try to make impossible a possible condemnatory sentence that, in addition to giving a minimum respite that its instigators would publicize immediately as a victory, could shoot towards the extremes and towards simplicity the present complexity in the national political board. That is the way to continue chasing without dismay democracy and rights in Europe, with so many enemies around ready to catch the radish by the leaves (or to bark up the wrong tree).
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