Published on 22 May 2023

FIFTH SECTION

Application no. 46481/20 Oriol JUNQUERAS VIES against Spain lodged on 14 October 2020 communicated on 4 May 2023

SUBJECT MATTER OF THE CASE

At the time of the events the applicant was the Vice President of the Catalan Autonomous Government ( Generalitat ).

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 escape 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. On 21 December 2017 he was elected a member of the Catalan Parliament. He requested a temporal release to attend the inaugural session of the Parliament, and another release to attend the investiture of the President of the Generalitat . The investigating judge of the Supreme Court denied this petition. The applicant appealed with no avail. On 28 January 2020 the Constitutional Court dismissed the applicant’s amparo appeal.

On 14 October 2019 the applicant was convicted to thirteen years’ imprisonment and thirteen years of disqualification for public office for the offences of sedition and embezzlement. 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 2022.

The applicant alleged a breach of Article 3 of Protocol No. 1 in that he was prevented from carrying out his mandate during the period of his pre-trial detention.

Under Article 10 of the Convention the applicant complained that his pre ‑ trial detention hindered his freedom of expression since he was prevented to express his opinions as a democratically elected member of the Catalan Parliament.

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

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 Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § § 382 and seq., 22 December 2020), has there been a violation of Article 10 of the Convention and/or Article 3 of Protocol No. 1 on account of the restrictions on his right to attend the parliamentary sessions as a deputy and to exercise his mandate ?

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.)?