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The Implications of the Otegi Case for the Legitimacy of the Spanish Judiciary : ECtHR 6 February 2019, Case Nos. 4184/15 and 4 other applications, Otegi Mondragon and Others v Spain

Published online by Cambridge University Press:  02 September 2019

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Case Notes
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© 2019 The Authors 

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Footnotes

*

Lecturer in Constitutional Law at Universitat Pompeu Fabra, Barcelona.

References

1 ECtHR 6 February 2019, Case Nos. 4184/15 and four other applications, Otegi Mondragon and Others v Spain.

2 For an initial overview of the Catalan secession crisis, see V. Ferreres Comella, ‘The Independence Vote in Catalonia – The Constitutional Crisis of October 1’, International Journal of Constitutional Law Blog, 4 October 2017, ⟨www.iconnectblog.com/2017/10/i-connect-symposium-the-independence-vote-in-catalonia-constitutional-crisis/⟩, visited 9 August 2019.

3 Aversion to the reform of the Autonomous Statute of Catalonia in 2006 is commonly considered the starting point of the secession crisis. The crisis intensified after the Spanish Constitutional Court invalidated the 2006 reform in 2010 (see Spanish Constitutional Court judgment No. 31/2010, of 28 June). Since 2006, several pro-independence demonstrations have been held, especially on 11 September (the national day of Catalonia). There have been also several pro-independence participatory processes, e.g. the municipal popular consultations held in 2009-2010, but the two most important ones, because they were directly carried out by the Catalan government, were: (i) the so-called ‘participatory process’ held on 9 November 2014 under Artur Mas Gavarró’s government; and (ii) the so-called ‘referendum’ of 1 October 2017 under Carles Puigdemont Casamajó’s government.

4 Inter alia, because of their importance, the enactment of: (i) Law No. 19/2017, of 6 September, on the referendum of self-determination; (ii) Law No. 20/2017, of 8 September, on the legal transition and the foundation of the Republic; and (iii) the Declaration of Independence of 27 October 2017, a text whose legal standing is uncertain but is definitely below the rank of legislation, are all relevant.

5 González Pascual, M., ‘Austerity Measures and Welfare Rights: the Spanish Constitutional System under Stress’, 1-2 European Journal of Social Law (2014) p. 116 Google Scholar at p. 116-117.

6 The application, for the first time in history, of Art. 155 of the Spanish Constitution represented a breaking point in the crisis. Art. 155 reads as follows (translation of the Spanish Constitution provided by the Official Spanish Gazette):

‘1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute majority of the Senate, take measures necessary in order to compel the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interests.

2. With a view to implementing the measures provided in the foregoing clause, the Government may issue instructions to all the authorities of the Autonomous Communities.’

To activate the measures allowed by recourse to this provision, then-President of Spain, Mariano Rajoy Brey, sent a ‘requirement of compliance’ to the President of Catalonia, Carles Puigdemont Casamajó, on 11 October 2017. The requirement of compliance is a written statement which points out the regional government’s non-compliance with its constitutional obligations and thus the prejudice caused to the general interest of Spain. In this case, the Spanish Government asked for clarification regarding the nature and effects of the Declaration of Independence of 27 October 2017 and, specifically, whether the Declaration was legally binding, which, the requirement pointed out would be a breach of constitutional legality requiring termination of all its effects. Following the ambiguous response of the Catalan regional government, the central government declared that the requirement had not been met because of lack of clarity in the response. Several measures intended to bring Catalan institutions back under control had been authorised on 21 October 2017, and these were subsequently approved by the Senate on 27 October 2017.

7 The central government has systematically filed constitutional challenges before the Constitutional Court against the pro-independence legislative and executive measures approved by the Catalan institutions. Simultaneously, the ordinary judiciary under the lead of the public prosecution office has launched investigations and filed criminal charges against those it believes responsible for the Catalan secession crisis.

8 The constitutional challenges were filed on 3 December 2017 by 50 members of parliament from the Unidos Podemos party, and on 8 January 2018 by the Catalan regional Parliament. Those proceedings are still pending. In the meantime, the Spanish Supreme Court has ruled that the measures taken by the Spanish government and approved by the Senate were constitutional (see Supreme Court Judgment No. 312/2019, 12 March).

9 Otegi Mondragon and Others v Spain, supra n. 1, paras. 52-57.

10 ECtHR 15 December 2005, Case No. 73797/01, Kyprianou v Cyprus [GC], paras. 119 and 129-133.

11 ECtHR 15 October 2009, Case No. 17056/06, Micallef v Malta [GC], para. 96.

12 Kyprianou v Cyprus, supra n. 10, para. 119.

13 Micallef v Malta, supra n. 11, para. 95.

14 Otegi Mondragon and Others v Spain, supra n. 1, para. 60.

15 Otegi Mondragon and Others v Spain, supra n. 1, para. 63.

16 Otegi Mondragon and Others v Spain, supra n. 1, paras. 66-67.

17 For the disagreement over the award of just compensation for non-pecuniary damages, see the partially dissenting opinion of Judge Keller.

18 Otegi Mondragon and Others v Spain, supra n. 1, para. 74. Under Art. 5 bis of Organic Law No. 6/1985, of 1 July, of the Judicial Power and Art. 954.3 of the Spanish Criminal Procedural Code, a final judicial decision can be reviewed on grounds of a Strasbourg judgment finding the violation of a fundamental right protected by the Convention.

19 All the applicants had served their prison sentences by the time Strasbourg decided the case and, consequently, they did not file a request for revision in that regard. However, in the case of Arnaldo Otegi Mondragón, the ten-year electoral disqualification expires in 2021. Thus, the applicant could request the Spanish Supreme Court to revise that sentence under Art. 954.3 of the Spanish Criminal Procedural Code. So far, I have no knowledge of a request of this kind made by Arnaldo Otegi Mondragón. However, in December 2018, the Constitutional Court did accept an individual constitutional complaint filed by Arnaldo Otegi Mondragón requesting review of the criminal penalty of disqualification. This complaint was filed after the Strasbourg decision in the Otegi case and, therefore, the Constitutional Court will decide it with the Strasbourg decision in mind. See Editorial Department, ‘El Constitucional admite a trámite el recurso contra la inhabilitación de Otegi’ [The Constitutional Court accepts the individual constitutional complaint against the disqualification sentence of Otegi], El Confidencial, 9 December 2018, ⟨www.elconfidencial.com/espana/2018-12-08/otegui-eta-constitucional-admite-tramite-recurso_1693446/⟩, visited 9 August 2019.

20 ECtHR 28 October 1998, Case No. 79/1997/863/1074, Castillo Algar v Spain; ECtHR 25 October 2002, Case No. 45238/99, Perote Pellón v Spain.

21 ECtHR 26 January 2011, Case No. 38715/06, Cardona Serrat v Spain; ECtHR 1 March 2016, Case No. 61131/12, Blesa Rodríguez v Spain.

22 ECtHR 6 December 1988, Case No. 10590/83, Barberà, Messegué and Jabardo v Spain (Plenary); ECtHR 17 January 2012, Case No. 5612/08, Alony Kate v Spain. The Otegi case must also be included here.

23 ECtHR 17 January 2003, Case No. 62435/00, Pescador Valero v Spain.

24 ECtHR 22 October 2008, Case No. 21369/04, Gómez de Liaño y Botella v Spain.

25 See Editorial Department, ‘Otegi se réune con Puigdemont y cree que la sentencia de Estrasburgo puede ayudar al juicio del 1-O’ [Otegi meets Puigdemont and believes that the Strasbourg’s judgment can help the 1-O trial], La Vanguardia, 7 November 2018, ⟨www.lavanguardia.com/politica/20181107/452789659642/puigdemont-otegi-sentencia-estrasburgo-juicio-1o.html⟩, visited 9 August 2019.

26 See A. Martín Plaza, ‘Las defensas sostienen que el juicio “atenta contra la disidencia política” y cuestionan la imparcialidad del tribunal’ [The defences argue that the trial “goes against political dissent” and casts doubt about the impartiality of the court], RTVE, 12 February 2019, ⟨www.rtve.es/noticias/20190212/juicio-proces-defensas-sostienen-causa-politica-ponen-duda-imparcialidad-del-tribunal/1882760.shtml⟩, visited 9 August 2019.

27 J. Nieva-Fenoll, ‘Spanish Jurisdiction at Stake: Puigdemont’s Judge to be Judged by a Belgian Court’, Verfassungsblog, 3 September 2018, ⟨www.verfassungsblog.de/spanish-jurisdiction-at-stake-puigdemonts-judge-to-be-judged-by-a-belgian-court/⟩, visited 9 August 2019.

28 Judge Manuel Marchena Gómez is accused of affinity with the political party Partido Popular. See C. Enrique Bayo, ‘Marchena, un juez denunciado durante años por su afinidad y parcialidad en favor del PP’ [Marchena, a judge denounced because of his affinity and partiality over years in favour of the PP], Diario Público, ⟨www.publico.es/politica/judicial-tela-juicio-marchena-juez-denunciado-anos-afinidad-parcialidad-favor-pp.html⟩, visited 9 August 2019.

29 The ‘WhatsApp’s messages in the Cosidó scandal possibly provide the best ammunition to the attack the independence of the criminal court trying the secessionist leaders. Judge Manuel Marchena Gómez was nominated for the presidency of the Consejo General del Poder Judicial and, in this context, Ignacio Cosidó Gutiérrez, former general director of the Policía Nacional, sent a verified message via WhatsApp saying: ‘[…] we will control the second chamber of the Supreme Court behind the scenes […]’. The second chamber is the criminal chamber in charge of the ongoing trial against a few of the Catalan secessionist leaders. After this scandal became known, Judge Marchena renounced his candidacy for the Consejo General del Poder Judicial and remained in his position as President of the judicial panel in the ongoing criminal trial against certain secessionist leaders. See G. Russell, ‘Leaked Catalan WhatsApp row sees judge pull out of bid for top Spanish job’, The National, 21 November 2018, ⟨www.thenational.scot/news/17236299.leaked-catalan-whatsapp-row-sees-judge-pull-out-of-bid-for-top-spanish-job/⟩, visited 9 August 2019. See also Editorial Department, ‘Cosidó, en el foco de la polémica tras su whatsapp a los senadores del PP diciendo que “controlarán” la Sala Segunda del Supremo’ [Cosidó, in the spotlight of the scandal because of his whatsapp to the Popular Party senators saying that they “will control” the Second Chamber of the Spanish Supreme Court], el Economista, 19 November 2018, ⟨www.eleconomista.es/politica/noticias/9528666/11/18/Cosido-en-el-foco-de-la-polemica-tras-su-whatsapp-a-los-senadores-del-PP-diciendo-que-controlaran-la-Sala-Segunda-del-Supremo.html⟩, visited 9 August 2019.

30 See supra n. 29 and infra n. 31.

31 See GRECO, ‘Fourth Evaluation Round. Corruption prevention in respect of members of parliament, judges and prosecutors. Evaluation Report. Spain’, 62 Plenary Meeting, 2-6 December 2013, para. 80. Afterwards, GRECO stated that this recommendation has been partially implemented by Spain (see GRECO, ‘Fourth Evaluation Round. Corruption in respect of members of parliament, judges and prosecutors. Interim Compliance Report. Spain’, 78 Plenary Meeting, 4-8 December 2017, para. 38). Also, pointing out the negative effects of the politicisation of the General Council on the perception of judicial independence, see Torres Pérez, A., ‘Judicial Self-Government and Judicial Independence: the Political Capture of the General Council of the Judiciary in Spain’, 19-7 German Law Journal (2018) p. 1769 at p 1795-1799CrossRefGoogle Scholar.

32 European Commission, ‘The 2019 EU Justice Scoreboard. Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions. Com (2019 198/2’, p. 44.

33 ECtHR 23 October 2018, Case Nos. 65101/16 and two other applications, Arrózpide Sarasola and others v Spain, paras. 98-109.

34 The Spanish Constitutional Court declared all the recursos de amparo inadmissible due to the non-exhaustion of domestic remedies. Some of the applicants had brought a special action to set aside the cassation judgments by the Spanish Supreme Court under s. 241.1 of Organic Law No. 6/1985, of 1 July, of the Judicial Power. The Supreme Court declared those actions inadmissible because of their lack of relevance and declared that the special action was unnecessary because the alleged complaints of violations of fundamental rights had already been examined in the cassation judgments. The European Court of Human Rights recalled that, in 2013, the Spanish Constitutional Court had declared that an action to set a judgment aside was not required if the court that delivered the appealed decision at last instance had already ruled on the alleged violation of the fundamental rights whose protection would then have been sought in the recurso de amparo. The European Court thus declared lack of certainty, to the detriment of the applicants, and a violation of their right to access to a court.

35 ECtHR 13 February 2018, Case No. 1653/13, Portu Juanenea and Sarasola Yarzabal v Spain.

36 Portu Juanenea and Sarasola Yarzabal v Spain, supra n. 35, paras. 69-95.

37 See the preamble of Law No. 19/2017, of 6 September, on the self-determination referendum, which was declared unconstitutional by the Spanish Constitutional Court (STC 224/2017, of 17 October). The preamble contains several references to freedom of expression as grounds for the self-determination and holding a referendum. See also A. Edling and T. Melia, ‘A Troubling Trend: Free Expression Under Fire in Catalonia’, Pen America, 11 January 2019, ⟨www.pen.org/free-expression-catalonia/⟩, visited 9 August 2019.

38 See, inter alia, the Declaration of Independence of 27 October 2017, which reports the alleged existence of a prosecution in breach of the civil and political fundamental rights of Catalan citizens. See also S. Jones, ‘Catalan leaders’ lawyers attacks “vaudeville” case as trial begins’, The Guardian, 12 February 2019, ⟨www.theguardian.com/world/2019/feb/12/trial-of-catalan-separatist-leaders-begins-in-madrid⟩, visited 9 August 2019.

39 ECtHR 15 March 2011, Case No. 2034/07, Otegi Mondragon v Spain.

40 ECtHR 13 March 2018, Case Nos. 51168/15 and 51186/15, Stern Taulats and Roura Capellera v Spain.

41 STC 177/2015, of 22 July, para. 4.

42 See Otegi Mondragon v Spain, supra n. 39, para. 54; Stern Taulats and Roura Capellera v Spain, supra n. 40, para. 40.

43 See Stern Taulats and Roura Capellera v Spain, supra n. 40, para. 41.

44 Case No. 5869/17, Tasio Erkizia v Spain, communicated to the European Court of Human Rights on 28 March 2017.

45 The conviction was ultimately upheld by the Spanish Constitutional Court (see STC 112/2016, of 20 June).

46 STC 112/2016, of 20 June, para. 6.

47 R. Bustos Gisbert, ‘No hay atajos en la defensa del Estado de Derecho’ [There are no shortcuts in the defence of the rule of law], Agenda Pública, 16 February 2018, ⟨agendapublica.elpais.com/no-atajos-la-defensa-del-estado-derecho/ ⟩, visited 9 August 2019.

48 Case No. 33799/16, Olga Alvarez Juan v Spain, communicated to the European Court of Human Rights on 15 September 2016.

49 O. López-Fonseca, ‘Operación Araña: dos absoluciones, 42 condenas y 33 casos pendientes’, El País, 31 March 2017, ⟨www.elpais.com/politica/2017/03/30/actualidad/1490904752_997815.html⟩, visited 9 August 2019.

50 First, the criminal proceedings launched against several Catalan high school teachers for hate speech directed at officers of the Guardia Civil and Policía Nacional prompted by their actions during the unconstitutional ‘referendum’ of 1 October 2017; the hate speech is alleged to have been uttered while they were in their classrooms. Nine teachers at a public school in Sant Andreu de la Barca were accused. The Spanish judiciary has thus far closed investigations into five teachers without finding any criminal evidence; four teachers are still under criminal investigation. See Editorial Department, ‘Archivadas cinco de las nueve denuncias por delito de odio contra los profesores del IES Palau’ [The Spanish judiciary closes five of the nine accusations for hate crimes against the teachers of the IES Palau], La Vanguardia, 10 May 2018, ⟨www.lavanguardia.com/politica/20180510/443475909733/juez-archiva-cinco-nueve-denuncias-delito-odio-profesores-ies-palau.html⟩, visited 9 August 2019. Moreover, the Audiencia Provincial de Lleida did not qualify the behaviour of eight teachers at a public school in La Seu d’Urgell as hate speech/hate crime following indictment by the Public Prosecution Office. The Audiencia Provincial also decided to close that investigation. See AAPLL nº 322/2018, of 12 June 2018.

Second, the case of a police officer with the Catalan regional police who had been accused of hate speech directed at the Policía Nacional, of which he was finally acquitted in first instance. His case is pending in second instance (see Editorial Department, ‘La justicia archiva la causa contra el mosso que llamó nazis a la Policía y la Guardia Civil’ [The judiciary closed the case against the Catalan regional officer who called the Policía Nacional and Guardia Civil nazis], El Español, 6 May 2019, ⟨cronicaglobal.elespanol.com/vida/archivan-causa-mosso-nazis-policia_242451_102.html⟩, visited 9 August 2019.

Third, the Audiencia Provincial de Barcelona closed a case involving hate speech/hate crime brought against several citizens for insulting the Guardia Civil. See Editorial Department, ‘Insultar la Guàrdia Civil no és odi, sinó crítica, segons l’Audiència de Barcelona’ [Insulting the Guardia Civil is not hate, but criticism, according to the Audiencia de Barcelona], El Nacional. Cat, 13 January 2019, ⟨www.elnacional.cat/ca/politica/delictes-odi-guardia-civil-policia-audiencia-barcelona_343380_102.html⟩, visited 9 August 2019.

Fourth, the Tribunal Superior de Justicia de Catalunya (Catalan High Court) dismissed charges of hate speech/hate crimes brought against the current President of the regional Catalan government for his negative opinions on Spaniards expressed in newspaper articles and tweets. See ATSJC nº 30/2018, of 4 October.

Fifth and finally, Héctor López Bofill, a professor of constitutional law, was acquitted of hate speech/hate crimes for several tweets that the public prosecution office deemed were a justification of violence and a threat to judges, prosecutors and civil servants. See SAPB, nº 63/18, of 7 December 2018.

51 A. Munárriz, ‘Entrevistas en el 40º Aniversario de la Constitución. Entrevista a Luis López Guerra’ [Interview on the 40th Anniversary of the Constitution. Interview to Luis López Guerra], InfoLibre, 10 December 2018, ⟨www.infolibre.es/noticias/politica/2018/12/29/luis_lopez_guerra_espana_confiado_estado_exclusiva_poder_judicial_89652_1012.html⟩, visited 9 August 2019.

52 See ECtHR 6 January 2010, Case No. 74181/01, Vera Fernández-Huidobro v Spain, paras. 131-136.

53 See Editorial Department, ‘Estrasburgo tiene pendientes 22 casos sobre el proceso soberanista catalán’ [Strasbourg has 22 pending cases regarding the Catalan secessionist process], La Vanguardia, 24 January 2019, ⟨www.lavanguardia.com/politica/20190124/454285143425/estrasburgo-tiene-pendientes-22-casos-sobre-el-proceso-soberanista-catalan.html⟩, visited 9 August 2019.