• 1-O. The TC breaks its unanimity before the 'procés' in a ruling on the preventive detention of Oriol Junqueras
  • The Plenary Session The Constitutional faces divided the debate on the resources of Oriol Junqueras
  • 'Procés'. A TC magistrate proposes to protect Junqueras from a decision of Judge Llarena

"You cannot be held hostage to unanimity," "we all knew that this moment was going to arrive sooner or later," "unanimity could not be eternal," or "for Strasbourg, there is still a lot left." These are some of the reflections made by sources of the Constitutional Court to EL MUNDO after Thursday, for the first time in recent years, there was a clear fissure in this body in a matter of draft of the so-called Catalan separatist challenge.

After three hours of meeting, the Plenary of the Court of Guarantees agreed, by nine votes to three, to dismiss the appeal filed by former Catalan Vice President Oriol Junqueras against the preventive detention ordered by the National Court and the Supreme Court in the case of the proces.

The sentence, which will be notified in the next few days, will have a particular joint vote of the magistrates of the so-called progressive sector of the court - Juan Antonio Xiol , María Luisa Balaguer and Fernando Valdés -, who defended before their colleagues the special constitutional protection of the enjoyed by legitimately elected parliamentarians at the polls against custodial measures.

These magistrates understand that the Supreme Court, while keeping Junqueras in custody for almost two years, violated his right to political participation, enshrined in article 23 of the Constitution. In practice, the value of these three particular votes for the defense of Junqueras is that they will serve as a trick when it comes to knocking on the door of the European Court of Human Rights ( ECHR ).

His lawyer, Andreu Van der Eyden , will rely on these votes when he has to defend before the Strasbourg Court the alleged violation of fundamental rights to which, according to his thesis, the Supreme Court has submitted to his client.

Nine magistrates in favor of the prison

In contrast, nine Constitutional magistrates endorsed this Thursday the presentation of Juan José González Rivas when they understood that the situation of preventive detention of the independence leader was adjusted to the constitutional requirements of legal provision, legitimate purpose and proportionality.

TC sources explain that the president decided to put the matter to the vote by understanding that it was "impossible" to reach the consensus of all magistrates on this issue. "It was a purely legal and very technical debate, but where the positions were far apart," said the different sources consulted.

It is not in vain that the first friction on the preventive detention of the ERC leader occurred within the said body 11 months ago, when Xiol, Balaguer and Valdés forced the president to redo his draft sentence a few days after it started in the Supreme Court the trial against the leaders of 1-O. Despite the changes made in the presentation, it was unfeasible to maintain the unanimity of the 12 magistrates.

In addition, in the Plenary session the draft sentence was debated that should respond to the amparo presented by Junqueras against the decision of the procés instructor in the Supreme Court, Pablo Llarena, who refused to release him to go to the Parliament in January 2018 after being elected deputy Autonomous

The presentation, written by magistrate Juan Antonio Xiol, was favorable to estimate the appeal. However, it was not put to the vote, although in the deliberations the majority of magistrates were against the former vice president of the Generalitat. Again the situation was repeated that nine magistrates were against the claims of Junqueras, while the rapporteur, Valdés and Balaguer were in favor of estimating the appeal of the convicted person for sedition and embezzlement.

Right to hold a public office

The key to the legal debate was how article 17 of the Constitution affects individual liberty, article 23, political participation. For some, the prison was justified; for the dissenting sector, Junqueras' right to hold a public office was violated. In plenary, Juan Antonio Xiol pledged to redo his presentation - changing the meaning of it - to discuss it again in the near future.

With this division within the TC, the most feared ghost for the Second Chamber of the Supreme Court reappears: the Strasbourg Court. Throughout the entire trial of the process , the court chaired by Manuel Marchena, was a guarantor with the rights of the prisoners and adopted all their decisions always looking sideways at the ECHR. The unanimity in his sentence was another way of shielding himself before that court. Now, those efforts have fallen into a broken sack because the independentists will have the ace under the sleeve of the particular votes of the Constitutional when they have to go to Europe.

Faced with this situation, the reproaches between members of both courts have not taken long to emerge. "They should never have admitted all the protection of prisoners to process," they lament in the Supreme Court. "In the past, everything looks very easy, but the Plenary had to give a joint response to the resources of the process that were of unquestionable constitutional significance," they answer from the court of guarantees.

From 9-N to 155 of Rajoy

The unanimity in the Constitutional Court on the issues related to the independence challenge of Catalonia broke this Thursday after the 12 magistrates, of various sensibilities, were faithful for years to maintain that consensus.

Catalan Law of Consultations

On February 25, 2015 he unanimously declared the unconstitutionality of two articles of the Law of the Parliament of Catalonia on non-referential popular consultations and other forms of citizen participation (which covered 9-N). Specifically, the ruling annulled the precepts that regulated the call by the Generalitat of Catalonia of general consultations because it understood that, under that denomination, what is really regulated are referendums, whose competence corresponds exclusively to the State.

Referendum Law

On October 17, 2017, the Plenary of the Constitutional Court declared, unanimously, the unconstitutionality and nullity of the Referendum Law approved by the Parliament of Catalonia, on September 6 of that year, which had been provisionally suspended. The court considered the appeal presented by the State Advocacy when it understood that the norm invaded state competences regarding referential consultations and violates, among other constitutional principles, the supremacy of the Constitution, national sovereignty and the indissoluble unity of the nation Spanish.

DUI

On November 7, 2017, the Constitutional annulled the Unilateral Declaration of Independence (DUI) voted by the Parliament of Catalonia on October 27 of that year. In that resolution, the House also declared unconstitutional the so - called Law of Impermanence Law of the Republic, which provided the break with the State arguing that the so - called Law of rupture put "at greatest risk, for all citizens of Catalonia, the validity and effectiveness of how many guarantees and rights preserve for them both the Constitution and the Statute itself. "

Article 155

On July 2, the Plenary unanimously endorsed the intervention of the Generalitat by the Central Government, which was presided over by Mariano Rajoy , through the application of article 155 of the Constitution in two sentences. The court agreed that the application of article 155 was a necessary measure to "restore the constitutional order" after the Unilateral Declaration of Indepdence to prevent the "ultimate purpose" of the Generalitat to "break the State."

He concluded that this is an "exceptional" remedy for breaches that seriously affect the general interest of Spain, "subsidiary" of other possible solutions and "temporary", since there is no need to suppress autonomy or indefinite suspension.

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  • Supreme Court
  • constitutional Court
  • European Court of Human Rights
  • Oriol Junqueras
  • Manuel Marchena
  • Europe
  • ERC
  • National audience
  • Proced judgment
  • Catalonia independence

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