The judges have their eyes set on the Strasbourg Court, hence the need for
a guarantee procedure, which the experts do not dispute, and a convincing
judgment
The president of the Criminal Chamber of the Supreme Court, Manuel Marchena, is in no hurry. Neither to resume the trial of the
procés, finally signalled for
the 12th, nor to analyze the great volume of evidence presented by the accusations
and the defenses of those processed by the 1-O referendum. The reason is to
offer a guarantee procedure, which jurists consulted by Crónica Global do not question, as well as to issue a convincing
sentence that involves assessing the controversial crime of rebellion imputed
to Oriol Junqueras, leader of ERC,
as well as the rest of the leaders processed.
The Spanish judges, under the media and political
magnifying glass, know that the case will end up in the European Court of Human Rights, which will not investigate on the merits of the case, but indeed about
procedural matters. They risk their own personal prestige and that of the
Spanish Justice. It will not be an easy task. The oral hearing will be held in full pre-campaign for municipal,
autonomous and European elections.
Does the television broadcast mean more transparency?
For Albert González Jiménez, professor of Criminal
and Procedural Law of the Open University of Catalonia (UOC), "it is
undeniable that the Spanish Justice has been questioned" during the
investigation, but "we must distinguish between the eventuality of the
criminal type and the procedure that has been followed. The Law of Criminal Procedure (LEC) is nineteenth-century, but
guarantee-based. Therefore, the trial as such is fair. Quite a different thing
is just debating about the criminal charges that are imputed and about their
tenability".
Regarding the television broadcast of the trial,
the academic considers it "abnormal" and does not believe that it
"results in greater transparency“. "It must be guaranteed that the statements of the witnesses are not contaminated,
because the LEC states that they cannot communicate with each other; conspiracy
must be avoided", posits González. In this sense, he warns about the risk of "parallel trials", because
"public opinion can reach different conclusions to those of the criminal
debate."
Observers in the trial
Regarding the great media and political attention generated by the 1-O trial, the UOC professor affirms that "a court should not be influenced by popular clamor and an example of this is the La Manada ruling. Do we have to put the magnifying glass on Justice? We should not". However, he admits that the Supreme Court's appointment system "casts a shadow and sows doubts". And he understands that the presence of observers in the oral hearing - object of debate - "does not have to instill fear".
On the European Arrest Warrant against Carles Puigdemont, "it never
should have been withdrawn. If you think someone has committed a crime, you can
not back down. Because then the withdrawal does not obey to legal criteria, but
to strategic criteria".
The professor of Public International Law of the
Complutense University of Madrid, José Antonio Perea Unceta, states that any
doubt or suspicion raised about the work of the Supreme Court "is
absolutely unfounded, because the performance until now of the investigating magistrate and the Court, when it has been appealed in some
procedures, has been impeccable, and because the previous experience in other
matters does not allow to advance any prejudice of partiality". All of
this, of course, "regardless of whether one would agree, as jurists, on
the decisions adopted, because, obviously, we each have our legal position, the
same or not, with nuances."
Intoxicating analysts
This professor regrets that political parties
"in their own interests, sectarian, even if legitimate", and some
analysts "who live on it" have "intoxicated public opinion with
personal assessments on procedural or material issues of this trial which they
should have reserved for the real specialists".
From the point of view of Perea Unceta, "there
is a great recklessness when it comes to opinions on such technical matters as,
for example, the elements of the criminal type of the rebellion or the
requirements for the denial of provisional liberty. I do not think about these
issues because I am an expert neither in criminal law nor in procedural law. I
can comment on cases brought before international courts as well as about international
crimes, because it is my specialty, but not when they are domestic. And yet in this trial everyone offers their
views without shame or rigor”.
The ECHR, a right of all citizens
As for the possibility of review of the process by the European Court of Human Rightss (ECHR), “I keep believing that it is not a threat but a right of all citizens and
that it is a guarantee in any procedure. When things are done badly they
correct us and when they have been done well - most of the time - they close
the file on. It is a control that the 47 member states of the Council of Europe
have, and it is necessary and useful. It is our last instance in human rights,
including procedural ones. And these
procedural issues are those that, in this case, would have to review the ECHR,
since it will hardly focus on the exclusively material issues, such as the
criminal type, which is competence of each state.
The professor of Constitutional Law of the
University of Barcelona (UB) Xavier Arbós explains that "indeed, the trial
of 1-O is a test for the Spanish Justice, which has to face some suspicions. It
is a trial that has a great political and media importance. The Government of
Mariano Rajoy refused to make a policy aimed at correcting the pro-independence
drift of a part of Catalan society. Although I do not like the word, it could
be said that it 'externalized' the response to the Constitutional Court through
the 2015 LOTC reform). In other words, Arbós affirms that Rajoy "appealed
to the courts as the only answer."
Rajoy 'versus'
Sánchez
Thus, the Supreme Court "has been, until the
arrival of the Government of Pedro
Sánchez, the only face of the state in this matter. And, by its very
nature, it is a face that does not dialogue politically, but acts and decides
by and within the framework of Law. And a trial of this transcendence takes
place in the context of social networks, broadcasting and streaming".
Unlike Albert
González, he considers that this media exposure "is a guarantee of
transparency, but let's not forget that fake news or simple distortions of the
truth circulate in social networks. A phrase can be taken out of context, and then
we will have to ride a mess".
But he agrees with the aforementioned UOC professor
that suspicions about Spanish justice "are based on the fact that the
influence of the parties in the appointment of magistrates labels them and
contaminates their image of impartiality. It does not matter if each one of them has been able to engage in actions
contrary to the interests of those who are supposed to have endorsed them. The label is there, and it weighs".
Controversial charges
Then there are, says Arbós, the suspicions
"that feed on an investigation, provisional detention and charges that are
controversial from the legal point of view. What for some are legal errors, for
others are the proof that in this case the administration of Justice acts as a
body more concerned in defending the unity of Spain than in the correct application of the Law".
Finally, says the professor, the TS "will have
to deal with those who will use the trial as a platform for the dissemination
of political messages, in pre-election campaign periods. Can the Supreme Court
come out well of this trial? I do not know. To begin with, the sentence will
have to be convincing, a little bit more than what for some has been the case
for the investigation. And the Court will have to take care of gestures and ways,
because Murphy's law will be applied, as
we professors know for sure: some do not listen until you're wrong".
The prestige of Marchena
The president of Llibertats, and former president
of the Council of Lawyers, Pere Lluís
Huguet, believes that the final destination of the trial is the Court of
Strasbourg "and if this court confirms the sentence, the Spanish Justice
will have given a lesson in defense of human rights in the face of all Europe,
in a trial so much complicated for the media campaign to try to discredit the
court". In this sense, Huguet believes that "the Supreme Court is
spinning very thinly, especially in the exercise of the right to defense, and
it is going to accept almost all the evidences; it knows for sure that the ECHR
will review in the end".
The president of the Criminal Chamber of the
Supreme Court, Manuel Marchena, "is a great professional of recognized
prestige." Therefore, the lawyer affirms that if a ruling of the ECHR is
obtained where the sentence of the Supreme Court is confirmed, "the procés will be dead and Spain will come
out reinforced from the most important institutional crisis of the democratic
period. This the reason why the trial of the ‘procés' is such an opportunity for Spain".
0 comentarios:
Post a Comment