Jailed leaders still searching for a way to shorten sentence one year after verdict
Ups and downs for pro-independence activists and politicians, who could benefit from pardons or criminal code reform in near future
October 29, 2030: on this day, the last of the nine Catalan jailed leaders is set to end his conviction for having organized an independence referendum in 2017.
Oriol Junqueras was sentenced to 13 years behind bars on sedition charges exactly one year ago, on October 14, 2019 – he had already served two years in provisional detention.
Eight other former ministers and leading activists in 2017 were also convicted to around a decade in prison on sedition charges, but all nine are searching for a way to shorten their punishments.
They are simultaneously waiting and working for that aim.
How? Judicially and politically.
Road to Strasbourg court
Given that this path is expected to be extremely long –up to five years until a potential favorable ruling, say commentators – they are trying to take a shortcut through politics.
Amnesty v pardoning
The pro-independence camp has found consensus in demanding an amnesty for all those involved in the referendum case, both those imprisoned and those in exile.
They put forward this petition in the talks between the Catalan and Spanish governments in February, with no affirmative response.
The Spanish congress would have to pass an amnesty law, something unlikely – this only happened after the Franco dictatorship in 1977, when Spain was transitioning to a democracy.
A more realistic option might be a pardoning – this is decided exclusively by the Spanish government, which is officially "considering" pardon requests for all nine, made by members of the civil society.
Most officials behind bars have rejected this option, on the grounds that this would mean acknowledging they committed a crime – yet, they would not be able to stay in jail if they were pardoned.
"For the convicted person, an amnesty and a pardon are almost the same because they both lead to freedom"
Jordi Nieva · Procedural Law professor
"For the convicted person, an amnesty and a pardon are almost the same because they both lead to freedom", said Procedural Law professor Jordi Nieva in an interview with Catalan News. "But in their juridical nature they are completely different: an amnesty is forgetting about every crime or every deed in relation to all the facts that were judged. Instead, a pardon doesn't imply forgetting, but rather recognize the deeds [...] and yet forgive the penalties".
Nieva believes that one of the reasons for which the jailed leaders prefer an amnesty over a pardon is that only the former will suspend their ban from public office, while the latter would mean that even if they were released, they would not be allowed to run in an election.
However, Nieva believes that the surest path to their freedom is a pardon because amnesties are not explicitly recognized by the constitution and they could be overthrown by Spain's Constitutional Court. "We would be at a dead-end like we were at the beginning. We would have to start everything again," he says.
Criminal code reform
The third way that could see their sentences reduced is the reform of the criminal code that the Socialist-led Spanish cabinet is working on.
They plan to modify the crime of sedition, among others, which would force the Supreme Court to redo the sentence – given that some incarcerated leaders are also facing a conviction for misuse of funds and without more details on the extent of the reform, it remains to be seen whether the three years they have already served would be enough.
Such reform has raised skepticism among the jailed leaders and the Catalan government, who see it as a “patch.”
One way or another, the Spanish executive might be politically forced to make a move towards shortening the sentences, because they are very likely to need at least one Catalan pro-independence party in congress to keep their majority in the chamber and pass the 2021 budget. Yet, this measure would be unpopular in Spain, not only among the right-wing opposition parties, but also within the Socialists.
As they are waiting for developments, the defense teams of the politicians and activists have been struggling to get as many temporary permits to leave penitentiaries as possible.
In January 2020, activists Jordi Sànchez and Jordi Cuixart were the first ones to get permits, because they had already served a third of the sentence.
Six of the leaders were allowed to attend a Catalan parliamentary committee after being summoned in late January.
Between February and early March, they were all granted regular leaves on weekdays to work, care for relatives and volunteer, but always sleeping in prison.
This was interrupted by the peak of the pandemic in the spring, when they were not allowed to use such permits for weeks.
On July 14, 2020, the Catalan government, managing penitentiaries, granted ‘low category’ prisoner status to all of them, meaning that not only were they able to work on weekdays, but also spend all their weekends at home.
Yet, Spain’s prosecutor appealed and ultimately the Supreme Court provisionally revoked ‘low category’ status and regular permits for seven of the jailed leaders in late July while taking a final decision on the matter - only Carme Forcadell and Dolors Bassa are still able to spend time out on weekdays. The court is still considering their status at the moment.
On September 23, the government in Madrid announced they would consider the pardon requests and that they would reform the criminal code.
Yet, so far, one year has passed by since the sentencing - and the riots that followed - and their situation continues unmoved.
With a Catalan election round the corner and Spain’s cabinet needing a budget passed for 2021, things could suddenly change, but so far the light at the end of the tunnel for Oriol Junqueras and the rest is between 2026 and 2030, for release… and potentially to run in an election.