The Constitutional Court's sentence on the Catalan Statute of Autonomy is wrong, international experts say

The sentence on the Catalan Statute of Autonomy can be appealed before Strasbourg, as one of the most prestigious French experts on Constitutional law pointed out. In addition, a political scientist of Queen Mary College in London says that this reduction

CNA / Jordi Font Comas d'Argemir / Laura Pous / Gaspar Pericay Coll

July 3, 2010 12:56 AM

Paris and London (CNA).- The European Court on Human Rights could have its say on the Spanish Constitutional Court’s sentence, which trims the current Catalan Statute, says Bertrand Matthieu, professor of Constitutional Law at Paris Sorbonne University. The 4 years that the Court has taken to decide on the sentence and the supposed lack of impartiality could build a case before the Strasbourg’s Court, insists Matthieu, the most respected academic voice on constitutional affairs in France. Besides, in London, a Catalan expert and professor at the Queen Mary College, Montserrat Gibernau, explains that the sentence’s reduction of Catalan Autonomy is a unique phenomenon in contemporary history.

A case for the European Court on Human Rights

Sorbonne University’s professor and one of the most recognised experts on Constitutional law of France, Bertran Matthieu, considers that the Spanish Constitutional Court has exceeded the “reasonable amount of time” in the process. However, professor Matthieu does not have any opinion on the Court’s supposed impartiality. In addition, he underlines the “dysfunctions” regarding the Court’s renewal and the new magistrates’ nominations. Finally, Matthieu stresses the fact that “politically it is difficult to explain that some judges’ decisions weigh more than the people’s will”, which was expressed via referendum.

Bertrand Matthieu directs the centre of Constitutional Law at the Sorbonne University in Paris. In addition, Matthieu chairs the Association of Constitutional Law Experts of France. Matthieu knows the different constitutional systems in Europe well and he has followed with special interest the process of the Catalan Statute of Autonomy through the Spanish Constitutional Court. He points out that this concrete case has so many particular elements that it is difficult to establish analogies with other countries.

According to Matthieu, the origin of the problem is a “deep contradiction” between a unitary conception of the state, defended mainly from Madrid, and what it is practice, a “federal system of the regions, which have political autonomy”. According to him, this historical contradiction is at “the origin of all these great difficulties” that the State goes through and generates reasonable doubts on the definition of people.

“If a Catalan nation exists, a Catalan people exist, who are sovereign. In this case, judges should never have the last word”. However, the Spanish Constitutional Court considers that for juridical recognition matters, no Catalan nation exists. This conception allows the Court to intervene in a text that has already gone through a referendum process, as the Court acts as the State’s ultimate representative. Although, under political terms, “it is very complicated to justify that judges who have not intervened in this democratic process can modify the result of a people’s vote”.

Although it has never been done before, the European Court of Human Rights has the competence to judge this case if one part appeals. If this hypothetical judiciary process was ever a reality, the Court could judge on the Statute’s content or on the relations between Spain and Catalonia. The European Court could only judge the judiciary process itself; in other words, if the Spanish Constitutional Court offered all the guarantees of impartiality and if the process respected the minimum standards.

According to this expert, the 4-year delay to have the final sentence is an “obvious dysfunction” of the Court and “goes beyond what can be considered as a reasonable delay”. Suspicions on a lack of impartiality of the Court can also be denounced in front of the Court. “I do not have any personal opinion on the Court’s partiality or impartiality, but if someone considers there could be a problem regarding this issue, it can be presented to the Strasbourg Court”. The absence of renovation is another aspect that the European Court could have an opinion on, as it could have intervened in the process. Though Matthieu insists that his comment is only based on hypothesis. However, the election of the magistrates for the Spanish Constitutional Court and the Court’s composition is one of the aspects that worries Matthieu most. “It is obvious that the system does not work regarding the Court’s renewal”, he states. A “more efficient” system should be found, one which would “take away some power from the political parties, as they block the Court’s renewal”.

An umprecedented case

Never has a European State reduced so much an autonomy as the Spanish Constitutional Court did last Monday with the Catalan Statute of Autonomy, affirms professor Montserrat Gibernau.“It is something anachronic that a state, instead of trying to fit into its reality one of its most dynamic and rich parts, cuts this part’s aspirations”, underlines Gibernau. Gibernau, a native Catalan, is a professor at Queen Mary’s College at the University of London and is an expert on nations without a state. Gibernau reminded that in the case of Canada and the Quebec, Canada’s Supreme Court concluded that, even to set a referendum on the independence, “the obligation of Canada as a democratic country is to answer the democratic will expressed by Quebec’s people”.