Published on 22 May 2023

FIFTH SECTION

Application no. 25608/20 Jordi SÀNCHEZ I PICANYOL against Spain lodged on 25 June 2020 communicated on 4 May 2023

SUBJECT MATTER OF THE CASE

At the time of the events the applicant was the President of the Assemblea Nacional Catalana , a civil association for the promotion of Catalan independence.

In September 2017 the Catalan Autonomous Government ( Generalitat ) and the Catalan Parliament (with the assistance of several civil associations) unilaterally decided to secede from Spain. On 6 and 7 September 2017 the Catalan Parliament passed two laws governing a referendum on the independence of Catalonia and a “transition” law for the republic of Catalonia. Those laws were suspended, and later declared unconstitutional by the Spanish Constitutional Court, both for serious procedural breaches and direct contradiction to the Spanish Constitution and the Statute of Catalonia ( Estatuto de Autonomía ). Notwithstanding the suspension of the laws, on 1 October 2017 the referendum took place. The Catalan Government proclaimed that the secessionist proposal had prevailed. On 27 October 2017 the Catalan regional president formally declared the independence of Catalonia but suspended its effects with a view to “negotiating with the Spanish Government”.

That declaration was suspended and later annulled by the Constitutional Court. Article 155 of the Spanish Constitution was applied by the national Government jointly with the national Parliament, and the Catalan regional Government was dismissed, the regional Parliament was dissolved, and new elections were called for December 2017. The Catalan president and several politicians left Spain with a view to escaping prosecution.

On 30 October 2017 the Spanish Attorney General filed a complaint for acts constituting crime of rebellion or, subsidiarily, crime of sedition, and crime of misappropriation of public funds against all those who were members of the Governing Council of the Generalitat of Catalonia as well as several social leaders. All the defendants, including the applicant, were remanded in custody.

While in pre-trial detention, the applicant ran for the regional elections in Catalonia scheduled in December 2017. He initiated five different proceedings, which were examined separately by the Supreme Court and the Constitutional Court. They can be summarized as follows:

(a) Proceedings related to the applicant’s participation in the electoral campaign in December 2017.

The applicant, when in pre-trial detention, asked to be granted prison leave to attend the campaign events for his candidacy, to be allowed to address the media from the prison and to access to the internet during extended hours. The request was rejected by the Supreme Court on 15 February 2018. The Constitutional Court confirmed the constitutionality of the measure adopted on 25 February 2020 (Judgement No. 36/2020).

(b) Proceedings for provisional release to allow the applicant to participate in parliamentary sessions as a member of the Parliament.

After the elections, the applicant became an elected member of the Catalan Parliament. His request for provisional release from pre-trial detention of 11 January 2018 was denied by the Supreme Court on 20 March 2018 and by the Constitutional Court on 15 January 2020 (Judgment No. 3/2020) and he was prohibited from participating in ordinary parliamentary activity.

(c) Two proceedings related to the applicant’s impossibility to attend his own investiture.

While in pre-trial detention, the applicant was proposed twice by the President of the Parliament as a candidate for the Presidency of the Generalitat and he again requested the judge to release him on bail. His requests were denied by the Supreme Court on 17 April and 18 June 2018. On 15 January 2020 (Judgment No. 4/2020) and 13 February 2020 (Judgment No. 23/2020) the Constitutional Court considered that the restrictions to the applicant’s right to political participation and representation were proportionate.

(d) Proceedings related to the suspension of the applicant’s parliamentary status following his prosecution.

On 30 July 2018 the Supreme Court communicated to the bureau of the Catalan Parliament the suspension of the applicant’s condition of deputy, in conformity with Section 384 bis of the Law on Criminal Proceedings, which provides for the automatic suspension from holding public office of anyone prosecuted for the possible commission of the offence of rebellion. The applicant’s amparo appeal was rejected on 25 February 2020 by the Constitutional Court (Judgment No.38/2020).

On 14 October 2019 the applicant was convicted for the offence of sedition and sentenced to nine years’ imprisonment and nine years of disqualification for public office. He is at liberty since 23 June 2021, after receiving the pardon of the Spanish Government. The applicant’s conviction is the subject matter of a separate application to the Court, submitted by the applicant in 2021.

In the present case, the applicant alleges a violation of Article 3 of Protocol No. 1 in that he has been prevented from participating in the electoral campaign due to his pre-trial detention. He also complains that he was prohibited from participating in ordinary parliamentary activity after the elections. He furthermore complains that he was prevented from attending the parliamentary plenary session for his own investiture as President of the Generalitat and that his parliamentary status was suspended.

Referring to Article 18 in conjunction with Article 3 of Protocol No. 1, the applicant claims that the aim of the decisions taken during the period of his pre-trial detention was to silence him as a representative of a political alternative and to intimidate him into abandoning his political activities.

On 9 March and 27 April 2021, the applicant submitted an additional complaint in the context of the present case, referring to Article 6 of the Convention, regarding the alleged lack of impartiality of two Constitutional Court judges who had handed down the judgments of 15 January 2020 (Nos. 3/2020 and 4/2020), 13 February 2020 (No. 23/2020) and 25 February 2020 (Nos. 36/2020 and 38/2020) relating to the applicant’s amparo appeals. The complaint is based on the fact that the two judges in question withdrew, in February and April 2021, from participation in the examination of all appeals brought before the Constitutional Court concerning the independence process in Catalonia. The withdrawal was in reaction to recusal proceedings brought against those judges by another claimant.

QUESTIONS TO THE PARTIES

1. Taking into account the applicant’s situation of pre-trial detention when being elected as member of the Catalan Parliament (see Ždanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006 ‑ IV and Selahatti Demirtas v. Turkey (no. 2) [GC], no. 14305/17, § § 382 et seq., 22 December 2020), were the following measures in accordance with Article 3 of Protocol No. 1?

(a) the alleged limitation on the applicant’s participation in the campaign for the elections of December 2017?

(b) the alleged restraint on the applicant’s right to attend the Catalan Parliament regularly as a deputy?

(c) the alleged restriction on the applicant’s attendance at his investiture as President of the Generalitat ?

(d) the suspension of the applicant’s status of a member of the Catalan Parliament?

2. Were the applicant’s rights under Article 3 of Protocol No.1 restricted for a purpose other than those provided for in the Convention and thus in contravention of Article 18 (see Merabishvili v. Georgia , [GC], no. 72508/13, §§ 264 et seq.)?

3. Regarding the complaint about lack of impartiality of two magistrates of the Constitutional Court:

(a) Has it been lodged in time as required by Article 35 § 1 of the Convention having regard to the fact that the complaint is partly based on events of February and April 2021, posterior to the examination of the applicant’s case by the two magistrates concerned?

(b) If so, has the withdrawal of two magistrates of the Constitutional Court from participation in other appeals related to the independence process of Catalonia affected their impartiality in the proceedings before the Constitutional Court that ended by judgments of 15 January and 13 February 2020 in a manner violating the applicant’s rights under Article 5 § 4 of the Convention?