Professor of Constitutional Law, Autonomous University of Barcelona (UAB)
Jean Monnet Chair ad personam
Director of the UAB Centre on Human Rights Studies
Member of the Royal European Academy of Doctors
The legitimacy of constitutionalism will be discussed to defend what is the essence of democratic regimes: the rule of law, democracy and human rights.
In the near future, one of the most media judgments of the century will begin. It is about the process against the leaders of the process to the independence of Catalonia. We are going to attend a harsh media war, to "parallel trials" organized from the defenders of that coup to the democracy that has been perpetrated to build a "republic" outside any legal, internal or international order. The legitimacy of constitutionalism will be discussed to defend what is the essence of democratic regimes: the rule of law, democracy and human rights. It is going to be said that "patriots" are being judged who have done nothing more than claim "freedom for their people". It is going to try to delegitimize the Spanish judicial system, affirming that in the trials procedural guarantees are not respected. The assistance of "international observers" will be encouraged to attend the trial and analyze it as if our system were that of a banana republic.
It is necessary to be very clear why the leaders of secessionism are judged. It is not to claim freedom, but to deny it to those who do not agree with their creed.
The Minister of Justice, Ms. Delgado, has acknowledged this directly in an interview. Spain is one of the countries recognized as having high democratic quality. "The Economist", which is generally accepted as one of the publications whose "intelligence unit", that is, its analysts, are included among the most rigorous and reputed worldwide, so it affirms.
Let's take it into account because there are always those who "invent" an alleged "expertise" to bring water to their mill and, incidentally, confuse even more a citizenship that, with which it is falling and the constant manipulation to which it has to face, has difficulty in gutting the wrongs and demarcate between the beam and straw.
On the other hand, this positive opinion is consistent with that also displayed by bodies such as the European Court of Human Rights regarding the guarantees facing the judicial processes in Spain (I say this because the crackdown on secessionism will start on the politicians who they will be judged will not have the proper guarantees), a body before which we are from the countries that have fewer convictions, including the aforementioned issue, that is, the procedural guarantees.
The guarantees that are required to consider, in democratic countries, that we are facing a fair trial are the indicators that we have, as rights that are established in art. 24 of the Spanish Constitution (which is consistent with Article 6 of the European Convention on Human Rights) to ensure that our legitimate interests are duly respected: right to the ordinary judge predetermined by law, right to independent and impartial judge, right to defense, the right to present evidence, the right to obtain a sentence within a reasonable time, the right to an interpreter if we need it, the right not to testify against oneself and not to plead guilty, the right to the presumption of innocence ...
And the right to have the sentences executed. We will see how each and every one of these guarantees is conscientiously shredded in the courtroom. Only if one of them is violated, the trial is no longer fair and, then, we have the right to have it reviewed by a judge or higher court that issues a new sentence.
In this case, since the trial is before the Supreme Court, this appeal to a higher body does not exist, but it can be appealed before the Constitutional Court, before filing a complaint with the European Court of Human Rights, which constitutes a last resort, as a subsidiary jurisdiction, if it is considered that in the internal proceedings there is a violation of procedural guarantees. It is necessary to exhaust internal resources to be able to present it.
By the way, the fact that in the case of titled persons, the Supreme Court constitutes a single instance and there is no appeal to a higher court, is not contrary to international canons even if it intends to consider secessionism. Article 2 of Protocol No. 7 of the European Convention on Human Rights on the "Right to a double degree of jurisdiction in criminal matters", provides, in paragraph 2, that this right may be subject to exceptions when the interested party has been tried in the first place, instance by the highest court of a country.
Spain is one of the most guarantee countries in criminal proceedings. Numerous studies corroborate this, even this is affirmed by prestigious judicial associations such as the association of European magistrates Medel. I
n addition, Spain is one of the countries that, in percentage terms and taking into account that we have adhered to the European Convention on Human Rights since 1979, has received fewer sentences from the European Court of Human Rights.
And this considering that we have had to adapt the procedural system to the requirements of international bodies, leaving behind the lack of guarantees existing during the Franco regime. A recent study in which I participated, concerning the "European National Reports on the European Court of Human Rights", coordinated from the University of Valladolid and published by Tirant lo Blanc, addressing a comparison on the sentences issued by the aforementioned Court against Germany, Spain, France, Italy and Poland, evidence that, even in matters of procedural guarantees, Spain is one of the least condemned States.
So that we are attentive to the next trial. And we also pay attention to the fact that "parallel judgments" do not give us cat for a hare.
https://www.larazon.es/espana/con-las-maximas-garantias-procesales-JM21874591
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