Published on 22 May 2023

FIFTH SECTION

Application no. 27250/20 Jordi TURULL I NEGRE against Spain lodged on 30 June 2020 communicated on 4 May 2023

SUBJECT MATTER OF THE CASE

The applicant was the minister of the presidency and the speaker of the Catalan Autonomous Government ( Generalitat ) at the time of the events.

In September 2017 the 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.

The applicant requested his release. On 4 December 2017, the investigating judge partially granted his request and agreed to release the applicant on a bail of €100,000 and the obligation to appear before the court on a weekly basis, with the prohibition of leaving the national territory and the withdrawal of the applicant’s passport.

Following the elections held in December 2017, the applicant became an elected member of the Catalan Parliament. On 21 March 2018, he was proposed as a candidate for the Presidency of the Generalitat and called to attend the investiture plenary session for the following day. On the same date, the investigating judge issued an order ( auto de procesamiento ) declaring the applicant, among others, indicted for the alleged crimes of rebellion and embezzlement of public funds.

The Parliament of Catalonia held an investiture session on 22 March 2018 to which the applicant attended. He did not obtain the absolute majority required to be appointed president, and the second session was called for 24 March 2018.

On 23 March 2018, the investigating judge ordered the applicant’s pre ‑ trial detention on the grounds of the high risk of absconding from justice and the risk of recidivism. Therefore, the applicant could not attend the session on 24 March 2018. The applicant’s appeal against this decision, filed on 28 March 2018, was dismissed by the Supreme Court on 17 May 2018. On 25 May 2018 he filed an amparo appeal before the Constitutional Court. It was dismissed on 25 February 2020.

On 14 October 2019 the applicant was convicted to twelve years’ imprisonment and twelve years of disqualification for public office for the offences of sedition and embezzlement of public funds. He has been 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.

Referring to Article 5 §§ 1 and 3 of the Convention, the applicant alleged that the only reason which motivated his detention was the fact that he was proposed as a candidate for the Presidency of the Generalitat . He also argued that the judge’s order did not consider the existence of alternative measures less burdensome than prison to prevent his escape from justice.

Relying on Article 3 of Protocol No. 1, the applicant recalled that when his pre-trial detention was ordered, he had been a member of Parliament for months and was also a candidate for the presidency of Catalonia. He challenged the proportionality of the measures adopted in respect of his political rights.

The applicant also complained, under Article 5 § 4 of the Convention, of undue delays in the appeal for amparo proceedings in relation to the lawfulness of his pre-trial detention.

Finally, the applicant claimed that improper political purposes were used to justify his pre-trial detention, entailing a violation of Article 18 of the Convention, in relation to Article 5 and Article 3 of Protocol No.1.

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 judgment of 25 February 2020 relating to the applicant’s amparo appeal. 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. Has there been a violation of Article 5 §§ 1 (alleged unlawfulness and arbitrariness of the detention) and/or 3 (justification of the continued detention) of the Convention on account of the decisions to remand the applicant in custody?

2. Has there been a violation of Article 5 §§1 and/or 3 of the Convention on account of the fact that the applicant, having been released on bail on 4 December 2017, was again detained on 23 March 2018 allegedly arbitrarily or without justification?

3. 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 Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 382 et seq., 22 December 2020), was the restriction on the applicant’s attendance at his investiture as President of the Generalitat in accordance with Article 3 of Protocol No. 1?

4. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his pre-trial detention, as required by Article 5 § 4 of the Convention? In particular, did the length of the amparo proceedings in the present case, by which the applicant sought to challenge the lawfulness of his pre-trial detention, and which lasted twenty-one months, comply with the “speed” requirement of Article 5 § 4 of the Convention?

5. 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 in his case in a manner violating the applicant’s rights under Article 5 § 4 of the Convention?

6. Were the applicant’s rights under Article 5 of the Convention and 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.)?