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29 de gen. 2019

Supreme Court says ECHR judgment on S. Demirtas has no bearing on the Catalans' pre-trial detention

The Spanish Supreme Court claims the ECHR judgment on Selahattin Demirtas MP has no bearing on the pre-trial detention of the Catalan political prisoners.
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Monday, January 28, 2019

The Supreme Court refuses to release the 'Procés' defendants and refutes the comparability of their case and that of the Turkish dissident Selahattin Demirtas

In a new resolution, it reinforces the reasons that justify emprisonment and points out the differences between the situation that affects the leaders of the 'Procés' and that of the Turkish dissident protected by the ECHR, Selahattin Demirtas

Author: Communication Judiciary

The Court of the so-called 'Procés case' has rejected requests for freedom or alternative measures requested in their defence briefs by the nine defendants who are still in prison. The latter equated their situation with that of the Turkish political leader Demirtas, who the Court of Strasbourg has endorsed in a recent judgment delivered in November 2018. In line with this judgment, the defendants' counsels understood that the Second Chamber had not given sufficient easons for not to adopting alternative measures to pre-trial detention.

The resolution that has been notified today discards this deficit of motivation: "To argue that the Chamber has not ruled on the sufficiency of possible alternative measures to prison, say the magistrates, can only be the result of a hasty reading of resolutions issued before. Indeed, in our order dated July 26, 2018, in response to the request for the substitution of preventive detention for less burdensome formulas, such as arraignment, telematic control, or police surveillance, we said verbatim: 'Daily signatures may cease to be daily the moment the signer decides to flee. Police control can become relaxed or have involuntary failures that allow flight. Telematic tracking devices mitigate their effectiveness in a territorial area where the freedom of borders and the free movement of persons is the rule, although its use would allow the itinerary used by the defendant to escape the call for the oral trial to be known'".

Infrastructure abroad that heightens the risk of flight

For the Supreme Court, the risk of flight continues to be intense: "It is well-known thatoutside the Spanish territory there are organized power structures, put at the service of those who have taken the decision to evade the summons of this Chamber. In fact, some authorities and current members of the Government and the Parliament of Catalonia - as has been widely publicized by the media - have moved to hold meetings with the members of these structures, some of whom are also on trial in this case and declared in absentia. This reality clearly intensifies the risk of flight, as it shows the existence of certain infrastructure abroad - with the presence, we insist, of defendants in this case who have already fled from justice - that could facilitate the escape of the defendants."

The ruling issued today reminds us that the Strasbourg doctrine to assess the risk of flight demands that the existence of "contacts abroad" that may facilitate flight be consideed.

The Demirtas case is not comparable to the prisoners of the 'Procés'

The Chamber rejects the comparison between the situation of the imprisoned Catalan politicians and that of the Turkish opposition leader referred to by the European Court: "It is worth highlighting, on the other hand, a fact that makes singular and distinguishes the two situations that the defences, in their legitimate impugnative discouse, try to equalize. Mr. Demirtas was an opposition leader whose imprisonment - without entering into another order of considerations about the defining features of the Turkish legal system and the survival of criminal precepts that are hard to reconcile with the Convention of Rome- could lead to a break in democratic legitimacy".

The Supreme Court continues its reasoning: "The deeds that define the purpose of this special case are not attributed by the Prosecutor, the State legal representative and the popular accusation to opposition leaders. Quite the contrary, most of the defendants were political leaders integrated into the Government of an autonomous community in which they assumed the maximum representation of the State in that territorial area. So they did not express the silenced dissenting voice in the face of a hegemonic policy that was being imposed without counterweights. Politicians deprived of liberty, whose situation the defences identify with Mr. Demirtas' captivity, were fully integrated into the structures of the exercise of regional power. The alleged equalization between the precautionary measures that affect the defendants and the imprisonment of the Turkish opposition leader that is at the origin of the European Court's judgment is considered by the Chamber as a respectable defensive strategy, but lacking in viability due to the lack of similarity with the deeds that are going to be the subject of the prosecution. There is no persecution of ideas. An ideology is not criminalized. In fact, the ideology now prrofessed with such democratic legitimacy by the appellants now supports the same autonomic government and is present in the institutions of which most of the defendants were a part. A way of thinking, a rupturist conception of the relations between the powers of the State, is not being questioned. The day-to-day political activity teaches the freedom with which these ideas are defended in institutions and in national and international fora of political debate".

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