Taking the political rights of Catalan prisoners seriously

If done properly, a release on bail would pose no flight risk whatsoever

Josep Lluís Martí Professor of Philosophy of Law at Pompeu Fabra University

The fundamental political rights of Catalan pro-independence leaders Junqueras, Romeva, Sànchez, Turull, and Rull are being severely and persistently violated. In my view, pre-trial detention is not justified for any of the nine defendants who find themselves in this situation, but in the case of the aforementioned five leaders there is an additional violation of their fundamental rights that increases the glaring injustice they are being subjected to. This is also harmful to the public interest of all citizens and jeopardizes Spanish democracy itself. Here is why.

I should point out that the violation of these five defendants' political rights is not something new, but has been in effect since they were elected members of the Parliament of Catalonia in December 2017, as many of us denounced at the time. But recently, two new important resolutions have been published that continue to disregard these fundamental political rights. The first, of April 10, is the decision by the Secretary General of Penitentiary Institutions, Ángel Luis Ortiz, which denies ERC (the party of Junqueras and Romeva) the possibility of holding campaign events in the prisons of Soto del Real and Alcalá Meco. The decision is based on two principal reasons, both of which are wrong. First, it suggests that holding election-related events would affect the "security and orderly coexistence" and "the order of the penitentiary system", altering "functionality", "pre-established schedules", "distribution of meals", etc. But in our prisons, events that alter the pre-established schedules are constantly being held without causing any threat to security. And there are ways of organizing a campaign event in certain controlled spaces within a prison, from a debate between different political parties to a remote television broadcast, while maintaining security conditions.

The second argument is not only wrong, but outrageous. It claims that, should they allow election-related events in prisons, the values of transparency, objectivity, and equality between the candidates would be violated, and that public authorities would lose their neutrality, when it is exactly the opposite. If inmates are not granted permission by the prison authorities to campaign or take part in an election debate, the only way to guarantee a level playing field for candidates is to authorize certain events inside the prisons themselves. In denying this possibility, not only have the fundamental political rights of prisoners been violated, but so has the right of all citizens to a fully democratic electoral process, with scrupulous equality of opportunities for the candidates. The decision by the Central Electoral Board —announced a few days ago— to allow Oriol Junqueras to participate in a press conference while denying him other interviews and debates, is just another step in the same direction.

Why have they been denied a release on bail, as well as permission to leave in order to exercise their fundamental political rights as candidates, as would be done if they were to receive hospital treatment under another fundamental right, the right to their health? The second decision I mentioned, dated April 11, is the interlocutory finding of the Supreme Court judging special case 20907/2017, which again denies this possibility completely in finding that there are no new circumstances that justify reviewing the previous decision. The main reason is that the flight risk persists and that, due to the "proximity to the border and the transit facilities between EU countries", not even a tracking device could provide the necessary security to prevent flight. But that is clearly false. The existing tracking devices in use today allow precise and real-time monitoring of the individual in question. In addition, the defendants could have a continuous police escort during their campaign events and return to prison at night. If well organized, their temporary release (at least partially, for a few hours a day) would pose no flight risk whatsoever.

But the most worrying aspect is that the interlocutory finding denies their importance as candidates in the upcoming elections. Surprisingly, to support this denial, it quotes the recent ruling by the European Court of Human Rights in the Demirtas v. Turkey case, which explicitly states that "the political condition" of a defendant "is not incompatible" with pre-trial detention. Certainly, it is not incompatible, but the ECHR ruling also establishes the obligation of national courts —in this case the Supreme Court— to consider whether pre-trial detention and the good that it seeks to protect is proportional in each case to the importance and nature of the actions that the defendant wishes to be able to perform as a representative or, in this case, as an election candidate. And the answer here seems to be negative. First because, as already mentioned, there are alternatives to custody that are fully feasible. But especially because, while a representative can still perform some of his functions from prison (whilst many others are not possible), it is clear that a candidate in prison cannot campaign on equal terms with the other candidates. The infringement that occurs in this case is, therefore, much more serious. And it affects our democracy as a whole. We need to take the fundamental political rights of our citizens more seriously. Otherwise the European Court of Human Rights will do it for us, as it did precisely in the Demirtas case.