New delay of the Spanish Constitutional Court in appeal resolution in cases of pre-trial detention


The imminent judgement of the Spanish Supreme Court in Special Case 20907/2017 obliges the Catalan Ombudsman to warn of the possible violation of rights taking into account the intervention of other high courts.

1. The Spanish Constitutional Court has pending for more than a year the resolution of several appeals in which people deprived of liberty in the application of pre-trial detention without bail, which they consider not fitting to the Spanish Constitution and violating of their right to freedom. The precautionary measures were issued at the end of 2017 and the beginning of 2018.

These delays are added to those of other appeals pending for years and that could be relevant to the judgement of the Supreme Court, such as the siege of the Parliament of Catalonia in 2011.

The Catalan Ombudsman notes that the delay in issuing these rulings, which will be difficult before the judgement of the Supreme Court, will lead to the loss of all practical efficacy of future judgments by the Constitutional Court, regarding the rights to freedom of the appellants, causing damages that are impossible to repair and, in fact, in practice it is equivalent to a real denial of justice. Moreover, the delay of the Constitutional Court to pronounce itself can make future rulings on pre-trial detention of international jurisdictions such as the European Court of Human Rights (ECHR) also lose much of its practical effectiveness with regards to the right to freedom of the appellants.

The delay cannot be justified, as the Constitutional Court has sought, in "the complexity and relevance of the appeal", especially if we pay attention to the fact that the it has issued dozens of rulings in which it has accurately defined the content and the scope of the right to freedom regarding the pre-trial detention measure and established a consolidated doctrine in this regard. In addition, it should be taken into account that most of the rulings during the last year were issued before the 12 months since the filing of the appeals, which is why it is necessary to consider that this delay in ruling goes beyond the usual times of the Court.

2. On the other hand, in response to the status of elected MP to the European Parliament of Oriol Junqueras, the Spanish Supreme Court asked for a preliminary ruling to the Court of Justice of the European Union, with regards to the granting of a penitentiary permit to formalize the procedures to acquire the full condition of MP.

Although formally the questions that are the object of the preliminary question are confined to the granting of this penitentiary permit, the bottom line of the matter is that if he obtains it and Junqueras becomes a full member of the European Parliament, he will enjoy parliamentary immunity and can only be tried with the previous concession of a request by the European Parliament.

In this context, and in order to safeguard the procedural rights and the potential parliamentary immunity of Junqueras, the Spanish Supreme Court should refrain from issuing the judgment on cause 20907/2017, at least regarding Junqueras, until the Court of Justice of the European Union has ruled.

This statement has been forwarded to the European Commissioner for Human Rights and other institutions of the Council of Europe to their knowledge and consideration.