Published on 17 July 2023

FIFTH SECTION

Application no. 42224/22 Josep COSTA I ROSSELLÓ against Spain lodged on 22 August 2022 communicated on 27 June 2023

SUBJECT MATTER OF THE CASE

1. The applicant, Mr Josep Costa i Rossello, at the relevant time Vice ‑ President of the Bureau of the Parliament of Catalonia (“the Bureau”), is a Spanish national who was born in 1976 and lives in Sant Adrià de Besós.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The general background to the case and the relevant decisions of the Constitutional Court are set out in the summary of facts and complaints concerning applications nos. 29780/20, 33702/20 and 48537/20.

The circumstances of the case

Criminal proceedings against the applicant

4 . On 1 March 2021 the High Public Prosecutor of Catalonia filed a complaint against the applicant and others “for the crime of disobeying judicial resolutions or decisions or orders of a higher authority, committed by an authority or public official”.

5. The High Court of Justice of Catalonia admitted the complaint and, by a decision of 16 March 2021, declared itself competent to examine it.

6. The decision essentially stated that the defendants, including the applicant, had contravened decisions of the Constitutional Court, despite express warnings of illegality issued by the senior counsel of the Catalan Parliament, express opposition by the remaining members of the Bureau and knowing what had been ordered and warned by the Constitutional Court.

7. The applicant considered that two judges of the High Court of Justice of Catalonia were not impartial. By a decision of 28 June 2021, the investigating judge decided not to uphold the objection raised by the applicant against those two judges.

8. The applicant lodged an appeal against the order admitting the complaint, which was rejected by a decision of the High Court of Justice of Catalonia of 12 July 2021, subsequently clarified by another decision of 16 July 2021.

9 . On 13 September 2021 the applicant filed an amparo appeal against the decision of 16 July 2021. He complained, in essence, about the fact that he had been prosecuted, despite being a member of the Parliament of Catalonia, and invoked his right of political participation and representation and rights to ideological freedom, freedom of expression and freedom of assembly. He also complained of a lack of impartiality on the part of the judges of the High Court of Justice of Catalonia and considered that the magistrates of the Constitutional Court should withdraw from the examination of his amparo appeal since it had been them who had issued the resolutions that had led to his indictment. The applicant also requested that the criminal proceedings against him be suspended as an interim measure until the Constitutional Court issued a final judgment on his amparo appeal.

10 . The Constitutional Court dismissed the appeal in judgment no. 58/2022 of 7 April 2022. The request for an interim measure was rejected in the same judgment.

11 . The Constitutional Court, as regards the alleged violation of parliamentary non-liability, ruled out the possibility that the mere admission of the High Public Prosecutor’s complaint would entail a violation of the prerogative in question. The admission for processing of parliamentary motions with a view to adopting resolutions that could be understood to be contrary to previous rulings of the Constitutional Court was not protected by parliamentary non-liability and, consequently, the allegation that there had been an infringement of the rights to political participation and representation and rights to ideological freedom, freedom of expression and freedom of assembly on account of the admission of the complaint was rejected. Moreover, the Constitutional Court rejected his allegation of a lack of impartiality on the part of the judges of the High Court of Justice of Catalonia as premature since the criminal proceedings were still ongoing at that time.

12 . Following several articles appearing in the press and not denied by the applicant, on 15 November 2022 the High Court of Justice of Catalonia acquitted him of the offence of which he was accused. According to the court, the members of the Bureau of the Parliament of Catalonia had not committed the crime of disobedience owing to a lack of clarity in the resolutions of the Constitutional Court. The High Court of Justice considered that those resolutions allowed for more than one interpretation, and that it had not been shown that the applicant was aware that he was disobeying the Constitutional Court’s decisions. That judgment could be appealed against before the Supreme Court, either by the applicant or the prosecutor. The applicant has not informed the Court of any developments in that regard.

COMPLAINTS

13. The applicant complained under Article 3 of Protocol No. 1 to the Convention and Articles 10 and 11 of the Convention that the High Court of Justice of Catalonia, by initiating criminal proceedings against him, had violated his parliamentary non-liability. This also amounted to an intolerable interference with the independence of Parliament.

14 . He also considered Article 6 to have been violated because of a lack of impartiality on the part of the judges of the High Court of Catalonia.

15 . The applicant further submitted that, when examining his amparo appeal, the Constitutional Court had changed its previous case-law on parliamentary non-liability as set out in the Constitutional Court’s judgments nos. 30/1997 of 24 February 1997, 40/2003, of 27 February 2003 and 184/2021 of 28 October 2021. He complained that this had constituted a violation of Article 14 and Article 1 of Protocol No. 12, in relation to Article 18.

16. Furthermore, the applicant alleged that the judges of the Constitutional Court, in the proceedings on his amparo appeal, had not been impartial because they themselves had adopted the decisions warning him of the consequences of disobeying the Constitutional Court’s decisions.

17. Lastly, he considered that the Constitutional Court, in those proceedings, had unduly delayed in ruling on his request for an interim measure.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all domestic remedies, in accordance with Article 35 § 1 of the Convention? The parties are invited to inform the Court of any relevant developments posterior to the applicant’s acquittal on 15 November 2022.

2. Did the bringing of criminal proceedings against the applicant constitute, in the particular circumstances of the present case, an interference with his rights under Article 10 or 11 of the Convention or a limitation on his rights under Article 3 or Protocol no. 1 having, regard, in particular, that the criminal proceedings were brought in relation to his acts in his official capacity as Vice President of the Bureau of the regional Parliament and that he has been acquitted? If so, was the interference or limitation lawful and justified?

3. Can the applicant claim to be a victim of the alleged violation of Article 6 on account of the alleged partiality of the judges of the High Court of Justice of Catalonia, having regard to the fact that he has been acquitted? If so, was there a breach in that regard?

4. Did Article 6 apply to the proceedings before the Constitutional Court, having regard to their subject matter? If so, can the applicant claim to be a victim of the alleged violation of Article 6 in those proceedings, having regard to the fact that he has been acquitted? If so, has there been a violation of the right to an impartial tribunal or a breach of the reasonable time requirement, as alleged by the applicant? In view of the applicant’s allegation that the Constitutional Court changed its previous case law when it dealt with his amparo appeal, does any issue of discrimination or ulterior purpose arise, as alleged by him.