Ramón Sáez considers that the ‘ex-president’ should have been protected before his conviction by the principle of proportionality of sentences
The other dissenting magistrate argues that a consultation should have been raised on the unconstitutionality
The new composition of constitutional Court after its renewal, it has made the magistrates who used to disagree with the majority position join Ramon Saez Valcarcel, who writes a particular vote for practically all the decisions taken. In the relative to the sentence that confirmed the conviction of the former president of the Generalitat Quim Torra for disobedience for not removing the yellow ties from Catalan public buildings, the magistrate, who adheres to the one signed by his partner Juan Antonio Xioldefends that he should have been protected for two violations of fundamental rights: the fundamental right to an impartial judge and the principle of proportionality of penalties, because the imposed disqualification meant the loss of his position.
In his individual vote, Ramón Sáez considers “reasonable and legitimate the doubt about the institutional position” that Torra maintained about the president of the Superior Court of Justice of Catalonia, Jesus Maria Barrientoswhich was part of court that sentenced him to disqualification, despite the fact that the complaint for which he was tried was admitted for processing and he had given his opinion at a press conference on the agreement of the Central Electoral Board to remove the symbols from the buildings of the Generalitat, on which the conviction for disobedience was based.
In addition, in an act at the Bar Association expressed his rejection of the qualification of “political prisoners & rdquor; of one of the speakers leaving the roomwhen this was the message included in the banners with yellow ribbons that were the object of the trial, in which it was debated whether freedom of expression covered the actions of the accused.
Sáez argues that “in order to guarantee the fundamental right to an impartial judge and exclude any shadow of partiality, the theory of appearances has been developed, accepted as a standard of prosecution in international instruments on the statute of the judge, with the aim of reinforcing trust of citizens in their courts and promote the image of the absence of prejudice in the judge of the case.
Impartiality has an objective dimension that is concerned with its institutional position, apart from its personal conduct, and assesses whether it offers sufficient guarantees to exclude any reasonable doubt. This review does not question the professionalism of the judge or his capacity for independence and impartiality, it only addresses his institutional position in the process as an alien and indifferent third party. Those acts compromised his image of impartiality.
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The other reason why he considers that he should have protected Torra is because the proportionality of the sentence, since he lost his position as a result of it, due to the unjustified extension of the penalty of special disqualification from the position of president of the Generalitat, which entailed his loss, to the position of regional deputy and the inability to obtain another position of representation in all local, regional, state and European levels. As the parliamentary position had not been used to commit the disobedience, the sentence was unpredictable, according to Sáez.
For his part, Juan Antonio Xiol defends in his vote the advisability of having opened the procedure for the possible raising of an (internal) question of unconstitutionality in view of the well-founded doubts that it raised from the perspective of the principle of penal proportionality, in relation to the right of access to public office. He considers that the reasons of the majority do not manage to dispel the doubts that, from the perspective of the principle of penal proportionality, the automatic and ineluctable effect of the definitive loss of public office in the terms raised by the petitioner for amparo and part of the Spanish criminal doctrine.