The Court considers that the appellants, who were part of a large group of people (between 600 and 1,000), gathered in front of a door of the Parliament of Catalonia, set up so that the deputies who They were going to attend the plenary session in which the budgets of the Autonomous Community were going to be debated, in order to prevent parliamentarians from entering. The Court considers that the concentrates were not in the exercise of the rights of assembly and demonstration, despite the fact that the call had been communicated to the Government Authority, because they had attended in response to the motto of that call, which was "Aturem el Parlament, no deixarem que aprovin retallades" (Let's stop the Parliament, we will not allow them to approve cuts). It is proven that some of the deputies were prevented from accessing the Catalan chamber by their own means, others encountered difficulties in said access and Finally, others had to enter Parliament using extraordinary means of transport (helicopter).
The ruling, for which Judge Antonio Narváez has been a rapporteur, indicates that the assessment of the coercive or intimidating nature of the conducts accused of the appellants under amparo cannot be isolated from the context in which they were developed. Indeed, "it is not possible to consider legitimate exercise of the freedom of expression, assembly or demonstration those messages that, due to their content or the way of expressing them, incorporate threats or intimidation of others, that is, those cases in which the rights are exercised in a disproportionate and exorbitant way in attention to the end to which the Constitution grants its preferential protection.
In this sense, the Court understands that it was the exorbitant and intimidating manner of the visible actions of the appellants, which led to their conduct hindering the access of the deputies to the Parliament headquarters so that it could develop normally its convened plenary session and address the scheduled agenda, which included the debate on the general budgets of the autonomous community and, therefore, the annual decisions on public spending.
The Court recalls that the exercise of the freedoms of assembly, demonstration and expression is not unlimited, since its limits are found in other assets and constitutional values, among which are the rights of political participation of art. 23 CE of the deputies and the citizens they represent. In the case analyzed, the sentence explains that the weighting judgment carried out by the Court concludes that the conduct of the appellants is not covered by the exercise of those freedoms.
Regarding the claim of the appellants that the right to criminal legality has been violated, the Court reasons the following: "the criminal type appears written in clear and precise terms, since the use of a series of of coercive, physical and psychological means as instruments destined to a series of typical purposes included in the precept”. With this premise, the original motto of the call, already mentioned, is expressive enough of that objective pursued to naturally accept the thesis of the Criminal Chamber of the Supreme Court that it was not a question of expressing a disagreement with the policies restrictive budgetary measures through a concentration in the vicinity of Parliament, but rather its purpose was to cause the body of political representation of the Catalan people to find itself incapable of debate and political action. In short, "what those concentrated there were pursuing was attacking the very roots of the democratic system."
The sentence also rejects that the principle of proportionality of the sentences imposed has been infringed. In effect, the Constitutional Court, which shares the account of proven facts accepted by the Criminal Court of the Supreme Court, states that "one cannot speak of the legitimate exercise of a right or of the concurrence of a cause of justification that would exonerate the appellants from the unlawful conduct committed or an excess in the exercise of that right, from the moment in which the objective of the concentration called was to paralyze the activity of the Chamber and that the budget project was not approved”.
Regarding the complaint referring to a process with all the guarantees and the right to defense, the Court considers that "we are not facing a new assessment of the evidence but rather an act of subsumption of the subjective element of the criminal offense of the art. 498 CP, carried out by the Superior Court based on its own account of the proven facts of the sentence of the lower judicial body. The former can review the logical coherence between the historical account and the legal qualification of the facts, so that, if from the account itself the concurrence of a subjective element of the type that has not been appreciated by the body a quo is inferred, the sentence of instance can and should be reviewed. The appreciation of the subjective element thus becomes a legal issue.
The sentence has several particular votes from the following magistrates:
The dissenting vote formulated by the magistrate and vice-president of the Court Encarnación Roca considers that the amparo appeal of the plaintiffs should have been upheld for violating the right to a process with all the guarantees because the review of the acquittal by the Supreme Court required have given them a hearing. In his opinion, and following the constitutional and European doctrine, the mood of the appellants in amparo cannot be deduced solely from the grammatical content of the motto of the call (“Let's stop the Parliament, we will not allow them to approve cuts”), which, moreover, was authorized by the corresponding government authority. Therefore, it needed a new jurisdictional debate in which the interested parties could have intervened, as required by our jurisprudence in line with that of the European Court of Human Rights.
The dissenting opinion of magistrate Cándido Conde-Pumpido Tourón considers that the appeal for amparo of the appellants, in accordance with the jurisprudential doctrine of the TC, should have been upheld considering that the sentence of the Supreme Court had violated their fundamental right to a process with all the guarantees in relation to the right of defense and the right to the presumption of innocence. Consequently, the conviction handed down in cassation should have been declared null and void.
Conde-Pumpido disagrees with the majority, not because of the nuances of the sentence, but because of basic and substantive aspects. He considers, in the first place, that the custodial sentence imposed on the appellants (three years) is manifestly disproportionate, given the evident relationship of the conducts prosecuted with the content of the alleged rights of assembly and demonstration (art. 21 CE) . Secondly, from a constitutional point of view, the sentencing court in cassation could not agree to the sentence without harming the rights to a process with all the guarantees and defense because it required having given a hearing to the accused in order to impute to them a criminal intent that it had not been appreciated by the National Court. And thirdly, the defendant's prosecuted conduct, due to its minor injuriousness, cannot be considered typical without exceeding the interpretative limits that correspond to the jurisdictional bodies.
The dissenting opinion formulated by magistrate Juan Antonio Xiol and magistrate María Luisa Balaguer indicates that, in accordance with constitutional jurisprudence and the European Court of Human Rights, in this case there has been a violation of the rights to due process with all the guarantees and the presumption of innocence (art. 24.2 EC), due to the sentence suffered in the appeal with annulment of the contested acquittal without having given the possibility to the applicants for amparo to address the judicial body who has condemned them. On this point they refer to the particular opinion of Judge Cándido Conde-Pumpido.
Xiol and Balaguer consider that the interference in the right of assembly of the appellants in amparo by means of criminal sanctions is disproportionate and with an undesirable effect of discouraging the exercise of a fundamental right, especially when the concentration had been duly communicated to the competent authority; its development was done peacefully, despite some sporadic situation of tension and they did not intend to cause the paralysis of legislative action but rather to show political representatives their disagreement with the ideological lines on which the project was based of budgets to be approved.
In his opinion, the criminal response supposes a serious interference in the right of assembly (see dissenting votes of STC 121/2021 and 122/2021, of June 2) that has a devastating effect on it, impoverishes Our democracy aligns us with societies disciplined by the abuse of the penal system in the repression of behaviors that develop in the material sphere of fundamental rights and distances us from the progressive application of those rights that enable the participation of citizens in full democracies. .
STC 06.24.21
The Plenary of the Constitutional Court, made up of Judge Juan José González Rivas, president; Judge Encarnación Roca Trías; Judges Andrés Ollero Tassara, Santiago Martínez-Vares García, Juan Antonio Xiol Ríos, Antonio Narváez Rodríguez, Alfredo Montoya Melgar, Ricardo Enríquez Sancho, Cándido Conde-Pumpido Tourón and Judge María Luisa Balaguer Callejón, has pronounced
IN THE NAME OF THE KING
the next one
JUDGMENT
In the accumulated amparo appeals nos. 4037-2015 and 4098-2015, promoted, respectively, by Mrs. Ángela Bergillos Sheriff, Mr. Carlos Munter Domec, Mr. Rubén Molina Marín and Mr. Francisco José Cobos García, as well as by Mr. Jordi Raymond Parra, against the order of May 19, 2015 of the Second Chamber of the Supreme Court, which dismissed the motion for annulment of proceedings formulated against the judgment of March 17, 2015 of that same Chamber of the Supreme Court, issued in appeal no. 1828-2014, which revoked the acquittal of the First Section of the Criminal Chamber of the National Court of July 7, 2014, issued in courtroom roll no. 6-2013, and sentenced the appellants as perpetrators of a crime against State institutions (art. 498 of the Penal Code). The Public Prosecutor has intervened. The magistrate Mr. Antonio Narváez Rodríguez has been a speaker.
I. BACKGROUND
1. By means of a document registered in this Court on June 16, 2015, the procedural and legal representation of Mr. Ciro Morales Rodríguez and Mr. José María Vázquez Moreno, filed an application for amparo against the resolutions mentioned in the heading, in which he alleged the alleged violation of his rights to a trial with all the guarantees as a result of his conviction in cassation (art. 24.2 CE), as well as his right to the presumption of innocence, stating that his conduct was criminally atypical (amparo appeal no. 3536-2015). Once examined, the Third Section of the Second Chamber, through an order dated September 8, 2015, agreed to its inadmissibility for processing, appreciating that it incurred the incurable defect consisting of not having duly satisfied the burden consisting of justifying the special constitutional importance of the appeal (art. 49.1 LOTC).
By means of a document registered in this Court on July 7, 2015, the procedural and legal representation of Mrs. Olga Álvarez Juan, filed an amparo claim against the same resolutions, in which she alleged the alleged violation of her rights to a legal process with all the guarantees, of defense and the presumption of innocence, as a consequence of his conviction in cassation (art. 24.2 CE), as well as his rights to freedom of expression and assembly (arts. 20 and 21 CE) and, therefore, last, of their right to criminal legality and proportionality of penalties (art. 25.1 CE). Registered as writ of amparo no. 4036-2015, once examined, the Third Section of the Second Chamber, through an order dated November 24, 2015, agreed to its inadmissibility for processing, appreciating that it incurred in the irremediable defect consisting of not having satisfied in any way the consistent charge in justifying the special constitutional significance of the appeal (art. 49.1 LOTC).
2. By means of a document registered in this Court on July 7, 2015, the court attorney Ms. Isabel Alfonso Rodríguez, on behalf of and representing Ms. Ángela Bergillos Alguacil, Mr. Carlos Munter Domec, Mr. Rubén Molina Marín and Mr. Francisco José Cobos García, with the legal assistance of the lawyer Mr. Eduardo Cáliz Robles, filed an application for amparo against the resolutions mentioned in the heading, giving rise to the application for amparo no. 4037-2015. By other request, it requested the suspension of the execution of the contested resolutions.
By means of a document registered in this Court on July 9, 2015, the attorney for the courts Ms. Isabel Alfonso Rodríguez, on behalf of and on behalf of Mr. Jordi Raymond Parra, with the legal assistance of the lawyer Mrs. Laia Serra Perelló, filed amparo petition against the resolutions mentioned in the heading, giving rise to amparo appeal no. 4098-2015.
3. Briefly stated, as can be deduced from the content of the proceedings received, the facts and procedural history from which this amparo appeal originates are the following:
a) The First Section of the Criminal Chamber of the National Court handed down judgment no.
31/2014, of July 7, in the abbreviated procedure no. 6/2013, in which it acquitted the nineteen people accused of crimes against State institutions (art. 498 of the Penal Code, hereinafter CP), aggravated assault (arts. 550 and 551.2 CP) and illicit association (art.
515. 1 CP) for which an accusation had been made. The sentence did sentence one of the accused, Mr. José María Vázquez Moreno, as the author of a lack of damages of art 625 CP, to the penalty of four days of permanent location.
(i) The proven facts show that:
“1. The protest movement that emerged in the squares of large cities throughout the spring of 2011, known as 15M, called a rally in front of the Parliament of Catalonia on June 14 and 15 on the occasion of the approval of the budgets of the Community for that year, in protest against the reduction in social spending. The motto of the mobilization was ''Aturem el Parlament, no deixarem que aprovin retallades" (Let's stop the Parliament, we will not allow them to approve cuts). The demonstration was communicated to the authority by the organizations that called for it, the movement L' Camping of Barcelona and the city's neighborhood associations, and publicized by various means, among others a press conference, held on June 10, in which two spokespersons for the social movements declared that they did not intend to prevent the functioning of Parliament but rather stop the attack against social rights and public services that meant the budgetary measures that were going to be approved The government authority did not adopt any measure to regulate the demonstration.
2. On the afternoon of June 14, about a thousand people gathered next to the Parc de la Ciutadella, but the police prevented them from accessing said space, which was closed overnight. The demonstrators camped in a nearby place, at the crossroads of Pasaje Picasso and Avenida del Marqués de Argentera. Early in the morning, the police forcibly dispersed the protesters on several occasions to open door 7, located in front of number 37 Calle Pujades, the only one that had been decided to leave open for parliamentarians to access. At no time was a perimeter delimited or a police cordon erected to guarantee transit on that road.
3. Starting at 8:00 a.m. the deputies were entering, some found problems due to the number of people gathered there, which at certain times amounted to more than six hundred. The start of the session was scheduled for 10:00 a.m.
4. Around 9:25 a.m. the President of the Generalitat Mr. Artur Mas i Gavarro was in the official vehicle, together with the deputies of Convergencia i Unió (CiU) Mr Josep María Llop i Rigol and Mr Antoni Fernández Teixidor, in a procession of four vehicles -in one of them was the President of Parliament - and many other motorcycles driven by police officers.
They were driving along Avenida Meridiana in the direction of Parc de la Ciutadella with the intention of going through gate 7; Before arriving, they met a group of protesters who were occupying the road and obstructing their march. The cars did not bear any markings.
Upon noting the difficulty of going through that door, they rectified their address and returned by the same route, moving away from the place.
At the moment they were changing direction to avoid the demonstration, a group of people -ignorant of which authorities were traveling in the vehicles- approached the procession. The encounter between the demonstrators and the chain of cars lasted a few seconds. One individual raised his hand and right arm when the presidential car was turning, others approached the vehicle, touching the bodywork, someone tried to open the doors -which were locked- and threw several blows. As the procession was leaving the intersection, an individual threw a plastic signaling cone onto the road. () 5. Around 8:30 a.m. the deputy of the parliamentary group of the Partit dels Socialistes de Catalunya (PSC) D.ª. Monserrat Tura i Camafreita was walking through the park towards the Parliament, conversing with a woman who was demonstrating there and who told her about the situation of her children, university students and unemployed, when D. José María Vázquez Moreno approached her from behind and painted her on the back of the jacket two black marks with a spray, which also soiled the bag she was carrying over her shoulder. Ms. Tura noticed the incident once she entered the Parliament building and took off the garment.
6. The deputy Mr. Joan Boada i Masoliver, from Iniciativa per Catalunya Verds-Esquerra Unida (ICV-EU), was forced to change direction when he found, at around 9:00 a.m., door 7 blocked by a group of protesters who blocked his way, rebuked him and continued. In the end, accompanied by several agents of the Urban Guard, he was able to gain the police cordon. It is not known that D.ª. Marta Pi i Morera rebuked the parliamentarian, not even getting in her way. There is also no record that Mr. Rubén Molina Marín had persecuted, blocked, attacked or pushed Mr. Boada i Masoliver.
7. The deputies D. Gerard María Figueres Alba, from Convergencia i Unió, and D. Alfons López i Tena, from Solidaritat Catalana, were also unable to enter through gate 7 of the park. About a hundred people blocked their way, rebuked them and spilled liquids on their clothes. They both decided to explore another path, at which point someone snatched a handbag from Mr. Figueres Alba; the deputies separated, following different paths (they took some papers from Mr. López i Tena that he was carrying in his hands, as well as a packet of tobacco and a lighter, which he kept in his pocket). From that moment they were followed by demonstrators, who shouted slogans against political representatives, until they were attended by police officers who took them by car to the Parliament building.
D. Francisco José López Cobos (sic, he should say Cobos García) stood with his arms crossed before the parliamentarians, at one point. There is no record that he spit on them. He followed the regional deputy Mr. López i Tena with his hands raised, shouting the slogans of the meeting. () Mrs. Angela Bergillos Bailiff followed, at some point, Mr. López i Tena with her arms raised, waving her hands, chanting slogans of the demonstration. There is no record that he would have pushed him.
8. CiU deputies Mr. Josep María Llop i Rigol and Mr. Jordi Turull i Negre were walking towards Parliament when several protesters confronted them. D. Jordi Raymond Parra asked that they not let them pass, so that they did not vote, while he displayed a banner to display a legend; other protesters replied that they only had to talk to parliamentarians. Messrs. Llop and Turull avoided the group and withdrew with their companions, a driver and a secretary. Subsequently, they got into an altercation with other protesters, who surrounded them at a garage door, and decided to seek the protection of police officers.
They arrived at Parliament in a helicopter, around 10:20.
9. The deputy of the PSC Mr. Ernest Maragall i Mira was forced to cross between a large group of protesters, who with open hands and arms raised tried to prevent him from reaching Parliament. He was helped by two mossos d'esquadra who escorted him to the police cordon. Among the people who surrounded him and chanted the slogans of the demonstration was D. Ciro Morales Rodríguez, always at his back. () 10. The CiU deputy Mrs. Ana Isabel Marcos i Vilar met a group of protesters when she tried to enter the park with two other parliamentarians, who ran away. Some people shouted at her and sprayed liquid on her, while an unknown person held her arm. () When the deputy reacted, she returned down the same street and was taken to Parliament in a police car. Mrs. Marcos i Vilar suffered an anxiety attack and required anxiolytics.
11. D. Salvador Mila i Solsona, ICV-EU deputy, exchanged views with several protesters while walking through the park towards the legislative building. Some reproached him for entering Parliament to vote. ().
12. The deputy D Santi Vila i Vicente, from CiU, met a group of protesters when he was going to the Parliament, who reproached him for the policies of cuts in public spending and told him that he did not represent them. Among those who protested were D.ª Olga Álvarez Juan, D.
Rubén Molina Marín and Mr. Carlos Munter Domec. Police officers accompanied the deputy to overcome the protesters. There is no record that he was attacked or pushed.”
(ii) In relation to the proof of the facts and the call for the demonstration, the judgment of the National Court states -point 1.2.1 of the motivation section- that it was made public in a press conference offered by the spokespersons for two of the social movements that called for them and that their motto was "Aturem el Parlament, no deixarem que aprovin retallades" (Let's stop Parliament, we won't let them approve cuts). He then points out that one of those spokespersons, a witness to the defense, explained that his intention was to convey to the deputies their lack of legitimacy to agree on budget cuts through a peaceful and symbolic demonstration and that they did not intend to paralyze parliamentary activity, but rather to try to prevent the approval of the budget project. the investigating agent of the first report confirmed that the call had been made in those terms, "according to the organizers it would be a peaceful demonstration, before which the deputies would have to decide whether or not to enter the session."
Furthermore, the Trial Chamber highlights that “[t]he security device left door 7 open for the parliamentarians to enter. Therefore, it was not the demonstrators who obstructed the various access roads (). According to the report, entrance 7 forced you to walk three hundred meters until you reached the building. It concludes that "without the governmental authority adopting the measure of raising a police cordon until well into the morning to allow the movement of people to parliament, the protesters gathered at gate 7, the only open road, and the confrontation between the deputies with them it became inevitable”.
(iii) In section 2 of the reasoning for the sentence -with the heading "Applicable Law"-, the court of first instance reasons the decision to acquit State institutions of the crime (art. 498 CP), according to an argumentative scheme that is based on the definition of the content of the rights of assembly and demonstration, in general and in its projection to the context, to highlight the limits of criminal intervention when it refers to behaviors related to the exercise of such rights fundamental. In his opinion, this intervention is not excluded only against behaviors that involve the exercise of the right, but also against behaviors that, although they involve an excess or abuse, are closely linked to the right, which would be damaged by the deterrent effect of criminal response. Thus, it maintains that "freedom of expression and the right of assembly and demonstration, closely linked as channels of participatory democracy, enjoy a preferential position in the constitutional order, for which reason they must be the object of special protection and need a wide space free of coercion, generous enough so that it can develop without narrowing; that is, without timidity or fear' (STC 110/2000, FJ 5). When the channels of expression and access to public space are controlled by private media, when sectors of society have great difficulty making themselves heard or participating in the political and social debate, it is necessary to admit a certain excess in the exercise freedom of expression or demonstration if protest and criticism are to be given a minimum of effectiveness, as mechanisms of essential counterweight in a democracy that is based on pluralism, an essential value, and that promotes the free equality of people and groups so that the rights are real and effective, as stated in the Constitution in its preliminary title”.
From this starting premise, the criminal relevance of most of the conducts that are declared proven is excluded because it is understood that "we can only affirm their presence in the place where the deputies were forced to travel to access the Parliament and in some case the confrontation with them”, so that they are clearly framed in the exercise of the fundamental right of demonstration. Among them would be that of the now appellants in amparo, Mr.
Molina Marín and Mr. Munter Domec. Other behaviors, which he acknowledges could have an added meaning, such as those carried out by Mr. Cobos García, Ms. Bergillos or Mr.
Raymond Parra, must be contextualized in the very dynamics of the demonstration. The ruling argues that "[t]here are singularly linked to the exercise of the right to demonstrate in the terms in which it had been called: the conducts took place at the time and space of the protest, were intended to vindicate social rights and public services in the face of budget cuts and to express the divorce between representatives and represented; they were acts of confrontation with the parliamentarians, inevitable in the way that the governmental authority had raised the exercise of the right”.
Nevertheless, the Court of Instance admits that the conduct of Mr. Cobos García could be understood as an act of restraint of the will of the deputies, as a coercion.
However, as the culmination of his approach, he rules out the application of art. 498 CP to those actions, which decontextualized could have a certain meaning of excess or abuse of the right to demonstrate. In its resolution, the court relies on an interpretation of the criminal type in accordance with the rights concerned, since "they are conducts intimately and unequivocally connected to the right to protest that was exercised there" and it is necessary to avoid the discouragement, disincentive effect of the direct democratic participation of citizens in common affairs and the exercise of political criticism. In his opinion, even the actions that have been attributed to the accused Mr. Cobos García must be understood as irrelevant from the perspective of the criminal offense and, in any case, justified by the fundamental exercise of the right to demonstrate (art. 20. 7 CP). He reasons “that formally these behaviors could appear coercive; but materially they lacked the necessary suitability and sufficient entity to be considered typical. Conclusion to which we arrive attending: 1) To the context of production -a demonstration previously called and publicized with a motto like the one indicated, Aturem el Parlament-, 2) To the terms of the approach of the governmental authority for the staging of the protest - closure of accesses, non-delimitation of space and intermittent police charges- and, above all, 3) To the capacity that the passive subject is supposed to determine his will -parliamentarians who attended an important plenary session, convinced of their position, on the who had previously reflected individually and deliberated collectively, who are subject to the discipline of the group to which they belong, which is part of their professional habit”.
For all these reasons, “[t]he prohibition of excess recommends a strict interpretation of the criminal type in the face of an action that is closely related, due to its content and purposes, to the constitutionally protected scope of fundamental rights, leaving out of what is prohibited conducts of little harmfulness, that they lack the sufficient capacity to compromise the legal good [normal exercise of the functions of parliamentarians], since they did not have the ability to prevent the deputies from attending the Parliament meeting or to restrict, even influence, their freedom of opinion or vote.
(iv) The acquittal judicial decision is accompanied by a dissenting opinion drafted by the president of the First Section of the Criminal Chamber of the National Court.
From the assessment of all the evidence provided at the oral trial, part of which was excluded by the majority, the magistrate makes a different account of the facts from that reflected in the sentence and considers the agreement in minority groups of people accredited to physically and verbally attack different parliamentary deputies in order to prevent them from attending the plenary session or from doing so with a feeling of unease that could disturb the proper performance of their responsibilities. Within these groups, he concludes, were several of the defendants, who, in his opinion, should have been sentenced as perpetrators of a crime against the institutions of the State of art. 498 CP, as was the case of the now appellant Mr. Rubén Molina Marín, Mr. Francisco José Cobos García and Mr. Carlos Munter Domec, although the conduct attributed to them by the dissident magistrate is different (physically more aggressive) than that described on the proven facts of the judgment of the National Court.
On the contrary, in his opinion, the acquittal for that crime of the rest of the defendants was appropriate, among which were the now plaintiffs Ms. Ángela Bergillos Alguacil and D.
Jordi Raymond Parra, whose conduct was described by the dissenting magistrate in the same terms as in the account of the proven facts of the sentence.
b) The Public Prosecutor's Office and the private accusations (Generalitat and Parliament of Catalonia) filed an appeal against the acquittal of the instance, which were processed under no. 1828/2014 before the Criminal Chamber of the Supreme Court, a hearing being held on February 18, 2015, in which the Public Prosecutor's Office, the procedural representations of the recurring accusations and the defendants' defense lawyers appeared.
c) The Criminal Chamber of the Supreme Court handed down ruling no. 161/2015, of March 17, which partially upheld the fourth reason for the prosecutor's appeal, for violation of the law of art 849.1 LECrim, error of law due to the undue non-application of arts. 498, 550, 551.2 and 77 CP, and married and annulled the sentence of the National Court. He handed down a second sentence, for which he convicted the defendants José María Vázquez Moreno, Francisco José López Cobos [sic, it should say Cobos García], Angela Bergillos Sheriff, Jordi Raymond Parra, Ciro Morales Rodríguez, Olga Álvarez Juan, Rubén Molina Marín and Carlos Munter Domec, as perpetrators of a crime against the institutions of the State of art. 498 CP, to the penalty of three years in prison, with the accessory of special disqualification for the right to passive suffrage during the time of the sentence, maintaining the rest of the pronouncements of the sentence handed down in the instance in what was not opposed to remarriage.
(i) In its reasoning, the Chamber expressly separates itself from the acquittal reasoning of the instance, affirming that it makes a patent error in the identification and solution of the constitutional values at stake, which are affected by the claim of criminal conviction of the conduct charged against the defendants. It understands that said erroneous identification refers to the judgment of weighting required between claims that are said to be protected by the exercise of fundamental rights, since it undervalues the constitutional weight of the right to political participation of citizens through their parliamentary representatives, freely chosen as recognized by the art. 23 CE, which is considered a burden on the jurisdictional task of weighting carried out. In his opinion, the conflict raised -different from the one that arises when honor is raised as the basis of an alleged limitation of freedom of expression- implies in this case the rights of those who wanted to meet and freely express their disagreement with the policies approved by the Parliament, as well as the right of parliamentarians to exercise their representative function without hindrance, stressing that this free exercise is a prerequisite for the right of all its citizens to participate in public affairs (art. 23 CE). It is highlighted that this dimension of the right of participation enriches its instrumental meaning as a means to enforce other constitutional goods of the highest axiological rank, which connect with principles such as freedom and political pluralism, that art. 1 of the CE proclaims as superior values of the legal system.
The Chamber concludes that “the exercise of freedom of expression and the right of assembly cannot operate as neutralizing elements of other rights and principles essential for the validity of the constitutional system. Paralyzing the ordinary work of the legislative body means affecting, not only the fundamental right of political participation of political representatives and, in general, of Catalan citizens, but attacking the higher values of the democratic order”. And, finally, it rejects that the proven facts can be covered by the cause of justification provided for in art. 20.7 PC, that is, the legitimate exercise of a right.
(ii) Having ruled out this possibility, the Court of Appeals confronts the prosecutor's complaint and the remaining accusations that denounced a legal error of subsumption of the facts, for not having been classified as constituting a crime of art. 498 PC. In doing so, it recalls the constitutional doctrine and the European Court of Human Rights according to which the annulment of an acquittal and its replacement by another conviction is subject to strict limits that derive from the need not to transgress the meaning of the principle of immediacy. in the assessment of the evidence and the validity of the right of defense [FJ 4, B)]. This need, as expressed, means that only in the event that the court ad quem addresses strictly legal issues can the defendant be dispensed with in order to convict him ex novo, which means that only the appeal process of art. 849.1 LECrim -which presupposes the maintenance of the facts declared proven in the instance-, allows to justify in cassation a condemnatory decision as a consequence of the adoption of a different legal criterion.
The Chamber maintains that, after correcting the erroneous consideration carried out by the National Court, the examination of the proven facts, whose narration is not modified, shows that some of the participants in the incidents narrated therein committed the crime provided for in art.
498 PC. And, from his understanding of the underlying conflict of rights, he defines the typical elements of the crime in a different way than the National Court did. It is, in his opinion, a crime of tendency, which is committed when a deputy is the recipient of a violent or intimidating act or the use of force or a serious threat in order to prevent him from attending sessions or to restrict their freedom of expression or vote. It is also a multi-offensive crime, in which the attack on the freedom of the deputies is added to the one that affects the right of participation recognized in art. 23 CE, of the parliamentarian and of the citizens, as long as the conduct is aimed at disturbing the normal functioning of the parliamentary body. This understanding of the crime leads the Chamber to rule out the authorship of all those for whom the trial court had only deemed their presence at the scene proven, without direct relation to the incidents described in the historical trial. However, it considers the perpetrators of the offense provided for in art. 498 CP to the defendants who carried out a more active conduct. Specifically, José María Vázquez Moreno, Francisco José López Cobos [sic, should say Cobos García], Ángela Bergillos Sheriff, Jordi Raymond Parra, Ciro Morales Rodríguez, Olga Álvarez Juan, Rubén Molina Marín and Carlos Munter Domec.
(iii) To this end, in FJ 5.G) the Supreme Court affirms that the context in which these altercations occurred reveals that the purpose of the demonstration was to prevent normal parliamentary development and not to express disagreement with the restrictive budgetary policies and, he continues, that this context and purpose determines the criminal significance of the actions of those finally convicted, which would be, in the expression used in the sentence, the realization of the collective purpose pursued by the protesters, individual contributions to the motto of the call .
And so, he points out:
“The concentration had a very clear objective. This was proclaimed by the motto of its call: 'aturem the Parliament, do not let them approve cuts (let's stop the Parliament, we will not allow them to approve cuts)'.
As its grammatical meaning expresses, "stop" is "stop", "prevent" the normal development of the parliamentary function. And to do so on the occasion of the debate planned for budgetary reforms that, in the opinion of the defendants, were going to imply a cut in social rights and public services. It was not, therefore, a question of expressing disagreement with the restrictive budgetary policies through a concentration in the vicinity of Parliament. Nor was that demonstration intended to serve as a vehicle to proclaim collective indignation at those policies. () Its purpose was none other - as described by the proven fact - than to cause the body of political representation of the Catalan people to find itself incapacitated for debate and political action through the conformation of the majorities that follow the exercise of the right to vote . () What those concentrated there were pursuing was attacking the very roots of the democratic system. (). Stripping the body that expresses the will of the people of any possibility of normative creation ('... no deixarem que aprovin / we will not allow them to approve').
And this purpose is not obscured, of course, by the fact that in a press conference held a few days before '... two spokespersons for the social movements (declared) that they did not intend to prevent the functioning of the Parliament but to stop the attack against social rights and public services that meant the budgetary measures that were going to be approved'. No interference causes that factual proclamation for the subsumption trial. On the one hand, because this statement about the purpose behind the summons is put into the mouths of two unidentified spokesmen, of whose participation in the events the historical judgment says nothing. On the other hand, because it contains an insurmountable contradiction to affirm that it is not intended to prevent the functioning of the Parliament and to add immediately after that what is really pursued is '... to stop the attack against social rights and public services (...) that were going to be approved. And it is that it is difficult to avoid the approval of some legislative measures without impeding or hindering the functioning of the parliamentary body in which those are going to be approved.
Regarding the purpose pursued by the defendants, the account of the proven facts is also clear when it explains that '... early in the morning, the police forcibly disbanded the demonstrators on several occasions to open the door 7, located in front of number 37 Pujades street, the only one that had been decided to leave open for parliamentarians to access.' Consequently, it was necessary for the agents to use personal compulsion to move the demonstrators away and clear a transit path that would allow parliamentarians access to the building that is the seat of the legislative body. () The attack on the legal right protected by art. CP 498 cannot be minimized by the understanding that some of the Deputies came to show, during their testimony as witnesses, to the action taken by the accused. We are in the presence of a legal asset that, at least in its dimension of citizens' right to political participation, which, as such, is unavailable to those who are not the holder of it.
Nor does it affect the consummation of the criminal act, as we have defined the typical scope of art. 498, the fact that practically all the Deputies did not suffer in their physical integrity or because the property damage caused was of little relevance. And, of course, the judgment of criminality is not altered by the greater or lesser success of the agents of the authority at the moment of setting the security perimeters that the agglomeration of citizens in the vicinity of the Parliament could have advised.
There are many fragments of the historical trial in which the injury to the legal good -the normal functioning of the parliamentary body- is drawn with absolute clarity. Thus, section 3 points to the early start of the blocking action by the protesters, which generated problems for some of the representatives ().
Especially descriptive is the passage in which the frustrated attempt of the President of the Generalitat and other Deputies to access through the door that had been enabled by the agents is narrated. () [T]he episode described is a good example of the coercive climate created to successfully carry out the motto of the call which, as we have been insisting, included a call to shut down Parliament and prevent the approval of restrictive budgetary measures. () It is, therefore, in this coercive climate, in this intimidating atmosphere described in the proven fact, in which various frustrated attempts to access parliamentary headquarters under normal conditions take place, including that of the President of the Generalitat and several deputies. And it is in this context that the actions carried out by some of the defendants acquire criminal significance.
(iv) Singularly, with respect to the participation of each of the amparo applicants, the appeal judgment reasons as follows:
a') The Supreme Court affirms that the intimidating and coercive scenario in which the defendant Francisco José Cobos García deployed the typical action is clearly described in section 7 of the factual judgment. Faced with the consideration of the National Court that the conduct is atypical, the Chamber considers that, in this tumultuous environment, "to get in the way of two deputies who only wanted to access the body in which they had to deploy their representative function, and do so with arms outstretched, means executing an act of intimidation, which is nothing more than the materialization of the slogans spread by the organizers of the demonstration. Francisco José makes his goal of paralyzing Parliament and preventing the approval of the cut measures come true. And it does it however it can, taking advantage of the scenario offered by the concerted action of a hundred people who have proposed to hinder legislative tasks. Only in this way can the stubborn follow-up that, with respect to one of the deputies, the defendant carried out while shouting the slogans of the demonstration make sense.
b') Based on what is stated in the same section 7, the Chamber indicates that, “in this situation of cornering that the two deputies are suffering, at the moment in which they are suffering the harassment of about a hundred people, some of which -unidentified- spit at them, rebuke them and spill liquids on their clothes", cannot see a simple display of gestures in the conduct of the defendant Ángela Bergillos Sheriff - who followed them with her arms raised, while they shouted at each other the slogans of the demonstration. And he affirms that “[t]he accused knows, because she is part of the group of one hundred protesters to whom the proven fact refers, that she is harassing a democratically elected citizen representative to carry out her tasks in the legislative body. She knows that while the deputy is trying to gain access through the only way that has been enabled, she is chasing him and chanting the slogan that gives meaning to the action carried out () she executes her particular contribution to the collective act of hindering parliamentary tasks”.
c') Section 8 of the account of proven facts also speaks for itself, in the opinion of the Court of Appeal, about the effectiveness of the intimidating action deployed by the defendant Jordi Raymond Parra and the purpose of hindering the tasks legislative. The defendant “knows that he is harassing two deputies, together with other people who have not been identified, and expressly requests that they be prevented from passing. He did not do it for any purpose unrelated to the motto of the call, but '... so that they would not vote'. To sign the motivation for his actions, he displays a banner. () The judgment of subsumption is manifested with absolute clarity. The defendant uses the atmosphere of coercion exercised by another hundred people, whose identity has not been proven, and asks other protesters to block the passage of the deputies () so that, due to their forced absence, they cannot vote.
d') The Supreme Court recalls that, according to the last of the sections of the factum, at the moment in which a deputy heads towards Parliament by the only practicable route, he runs into a group of demonstrators, among whom there are the two appellants -Rubén Molina Marín and Carlos Munter Domec- together with another defendant also sentenced, who express their disagreement with the austerity policies and announce that "he did not represent them". Overcoming the obstacle represented by the protesters is only possible as a consequence of the police action that escorts the deputy, it is not a consequence of the protesters' decision, once their delegitimization speech has been exhausted, even though there is no record that he was attacked or pushed . It concludes that the defendants are "agreed demonstrators with a slogan that filtered all their actions and that called for paralyzing parliamentary activities aimed at approving certain budgetary measures and coercively prevented the deputy from free movement to the depository body for the representation of the Catalan people”.
(v) The sentence has the dissenting particular vote of one of the magistrates that make up the Criminal Chamber of the Supreme Court, who defends the maintenance of the acquittal for not considering typical the actions described in the facts proven to the art light
498 CP, given that they did not reach the standard of seriousness that the crime requires, since they do not have in themselves the stamp of violence or intimidation that the criminal type demands, nor can it be attributed to them due to the fact that there were groups of non-violent protesters identified, when the proven facts denote the lack of an intention to force, violate, intimidate or seriously threaten.
d) Against the judgment of the Supreme Court, an extraordinary motion for annulment of actions was promoted by the procedural representation of, among others, Ms. Angela Bergillos Bailiff, Mr. Carlos Munter Domec, Mr. Rubén Molina Marín and Mr. Francisco José Cobos García. The procedural representation of Mr. Jordi Raymond Parra also raised an incident of nullity of proceedings. Both writings coincide in denouncing (i) the violation of fundamental rights to due process (art 24.2 CE), (ii) freedom of expression, assembly and demonstration [arts. 20.1 a) and 21 CE] and (iii) of the principles of criminal legality and proportionality (arts. 25.1 and 24.1 CE).
The Criminal Chamber of the Supreme Court dismissed the incidents of annulment of proceedings by Order of May 19, 2015. In it, it argues that the right to due process is not infringed as long as the proven facts are respected at all times and a subsumption error is corrected. It emphasizes that the revoked sentence did not declare it proven that the concentration was not intended to prevent the functioning of the Parliament, but that this was stated by two spokespersons for the social movements, and the Chamber limited itself based on the objective data of the end of the demonstration in accordance with its motto and to preach its relevance for the purposes of subsumption in art. 498 PC.
It also rejects the violation of the rights of freedom of expression and assembly, defending the correctness of its weighting, attentive to the value of art. 23 CE, which in no way criminalizes citizen protest on public roads. Nor does it accept the complaint about the interpretation and application of the criminal type, since it carries out a strict application of art. 498 CP, given the factum of the appealed resolution. For the rest, he adds, the terms of the precept are sufficiently clear and defined enough so that any person can know what acts make them criminally responsible according to it.
4. The appellants denounce in their demands that their fundamental rights have been violated, to the due process in the second instance in relation to the right of defense of art. 24.2 CE, to freedom of expression and assembly and manifestation of the arts. 20.1 a) and 21 CE and the criminal legality and proportionality of art. 25.1, in relation to art. 24.1 EC. Consequently, they request this Constitutional Court to annul the conviction agreed upon when resolving the appeal. They do so for the following, essentially coincident, reasons:
a) Violation of the right to a due process and with all the guarantees and to the presumption of innocence (art. 24.2 CE) in relation to the right to "due and equitable procedure" (art. 6 ECHR). In both appeals it is alleged that the Supreme Court unduly extends its scope of knowledge to the review of the facts, and not only of the law applied, with respect to the concurrence of the subjective element of the crime against the Institutions of the accused State;
aspect that is part of the question of fact, even if it is the result of an inference judgment.
The appellants denounce that it is not a matter of iuris error, as the Supreme Court insists, but that the Court of Appeal, concluding that the purpose of all the participants in the demonstration was to hinder and stop parliamentary activity on that date , has undeclaredly modified the account of proven facts, in which a general context contrary to that purpose is described. For this, they add, it deviates from what was reasoned by the Court of instance and makes an alternative assessment of the evidence, with review of personal evidence, what is the content and witness statements of the two spokespersons for the summons. This way of proceeding, they conclude, violates the guarantees established by the European Court of Human Rights and by the Constitutional Court in the framework of the right to due process (jurisprudence of both courts widely reflected in the appeal for amparo no. 4037-2015). , since there has not been due public debate that, with the participation of the accused, would allow them to refute the questions of fact and law that were being discussed in relation to their guilt and innocence, thus respecting the principles of immediacy and contradiction and the right of defense.
b) Violation of the right to freedom of expression and assembly [arts. 20.1 a) and 21 EC and arts. 10 and 11 ECHR]. In both appeals for amparo, disagreement is expressed with the appeal judgment insofar as they consider that it erroneously identifies the content of the rights to political participation (art. 23 CE) and freedom of expression, assembly and demonstration (arts. 20 and 21 CE) and their mutual relationship. They question, specifically, the identification of the right of political participation with the right of parliamentarians to move freely through the streets adjacent to Parliament, where a public gathering and demonstration was taking place, thus ignoring that said forms of free expression are also forms of political participation.
To this extent, assuming the arguments of the first instance acquittal, they defend that the conduct that has been imputed to them was a legitimate exercise of the fundamental rights outlined and that such consideration should have given rise to appreciating the concurrence of a defense that justified his acquittal. The plaintiffs also point out that the action of blocking someone's path is not, in the context of a political protest, a violent act, but part of the normal content of the right to demonstrate and, therefore, they relate the inconvenience that said exercise can cause with the jurisprudential recognition of hurtful or unpleasant opinions that express protest and dissidence (STC 235/2007, of November 7).
When justifying their claim for amparo, they adduced jurisprudence of the ECtHR that recognizes the nuclear nature that freedom of expression plays in democratic societies. And they expressly mention the methodology used when analyzing claims or complaints about alleged undue limitations of fundamental rights, or conflicts between them, which consists of making an external judgment on the proportionality of the interference; trial in which the need for limitation in a democratic society has to be assessed, which leads us to analyze whether the restrictions imposed respond to an imperative social need (SECHR of July 8, 1999, Sürek v. Turkey; and of July 10, 1999). July 1998, Soulas et al. v. France).
Lastly, with express reference to constitutional jurisprudence, they highlight that, in its pronouncements, the Constitutional Court has recognized freedom of expression, and with it the rights of assembly and demonstration, a pre-eminent place in the system of fundamental rights, which imposes a rigorous justification for any limitation of its content that is sought. And so, they refer to STC 192/2003, which defines urban space as an area of participation, and to STC 236/2007, which censured the restriction of the right of assembly to certain foreign citizens in Spain, recognizing that it is "in the practice, one of the few means available to publicly express their ideas and claims. They end their allegations by emphasizing that, in the present case, the recipients of the protest were representative public officials who must assume a higher level of criticism and interpellation from citizens. To which, as they understand, it must be added that there were no events that went beyond the exercise of the fundamental rights on which they base their claim of protection.
c) Violation of the right to criminal legality and proportionality (art. 25.1 CE in relation to art. 24.1 CE). The appeals question the subsumption of proven behaviors in the crime defined in art. 498 CP, alluding to its scarce entity.
In the writ of amparo no. 4037-2015 denounces the violation of the material guarantee of taxation or certainty mandate, which weighs on the legislator, but also on the judge, to guarantee the normative predetermination and the predictability of criminally relevant conducts. In his opinion, following the reasoning of the dissenting opinion of the Supreme Court ruling, the judicial body had incurred in an analogical or extensive application in malam partem of art. 498 CP, by including in it the behaviors declared proven, since they are not expressive of force, violence, intimidation or serious threat, which are the verbs that describe the typical action. The contextual fact that hundreds of demonstrators participated in the protest does not allow - regardless of the will of their authors - to transform them to the point of essentially altering their nature, giving them a violent or intimidating stamp that they did not have in themselves. Even less, they point out, would the seriousness required by the type be present in accordance with an interpretation attentive to the evolution of the precept since its original wording, which did foresee actions of a non-serious nature as typical, albeit in an attenuated manner.
In the writ of amparo no. 4098-2015, it is also insisted that the mild nature of the conduct accused of the plaintiff cannot alter its nature due to the fact that hundreds of demonstrators participated in the protest who carried out similar conduct or of similar significance. On the other hand, it is noted that art had never been applied. 498 CP, so that there were no prior jurisprudential criteria on its generic content. Such an application gap, it is alleged, makes it possible to appreciate that the protesters themselves acted convinced of the legality of their protest conduct, given that there were precedents that had not been assessed as punishable -the "Surround the Congress" demonstration in Madrid-, it was counted with the legitimacy of the claims of the "15-M movement" and its peaceful way of expressing itself, and they knew - it is said - that the motto was symbolic, that the concentration had been allowed by the public authority and, therefore, with it he was exercising the right to freedom of expression and demonstration. All this, concludes the appellant, reveals that he knew that the action could not alter the normal development of parliamentary functions and that the protest was framed in a symbolic plane of disapproval of the representative function that parliamentarians had been exercising. For the resolution of the case, they cite, as applicable precedents, both STC 110/2000, of May 5, which proscribes the discouraging effect on the exercise of fundamental rights that occurs when criminal law is applied disproportionately to behaviors related to the exercise of fundamental rights;
such as STC 66/1995, of May 8, on the requirements of the precise proportionality trial to assess the conformity to the Constitution of decisions limiting fundamental rights (in the same sense, STC 104/2011, of 20 of June).
Both demands base the special constitutional importance on the novelty of the delimitation of fundamental rights posed by the analyzed case, regarding the rights to freedom of demonstration and freedom of expression and participation in public affairs, pointing to the role criminal law in these situations. The general and social importance of the legal framework defined for the right of assembly is also highlighted. In resource no. 4037-2015 also points out that the lawsuit offers the possibility of adjusting the constitutional doctrine on the procedural guarantees of the second instance to the jurisprudence of the European Court of Human Rights, which has repeatedly condemned Spain in cases of conviction in second instance with modification of the subjective element of the crime, as would be the case.
In the lawsuits, consequently, the annulment of the conviction handed down by the Criminal Chamber of the Supreme Court is requested, which means maintaining the acquittal decision agreed in the instance.
5. The First Chamber of this Court, through orders of November 28, 2016, agreed to admit the amparo claims for processing after appreciating that they offer special constitutional significance (art. 50.1 LOTC), because the appeals pose a problem or affect a facet of a fundamental right on which there is no doctrine of the Court [STC 155/2009, FJ 2, a)].
In application of the provisions of art. 51 LOTC, it was also agreed to carefully request from the judicial bodies the referral of the testimony of the proceedings and the location of those who had been a party to the procedure, with the exception of the appellant, so that they could appear within ten days in the court. present protection process.
6. In the order of November 28, 2016, which agreed to admit the amparo appeal no. 4037-2015, the formation of the separate suspension part was also agreed.
In a document registered in this Court on December 7, 2016, the procedural representation of Mr. Jordi Raymond Parra requested, after the admission for processing of his appeal for amparo (no.
4098-2015), the formation of the separate piece of precautionary suspension regarding the custodial sentence. Through AATC 2 and 3/2017, of January 16, the First Chamber of this Court agreed to deny the suspension requested by all the plaintiffs, since in the previous judicial process the suspension of the execution of the custodial sentence had already been agreed. freedom imposed, pending the processing of the requested pardon (Order of the First Chamber of the National Court of June 16, 2015), therefore the budget from which art. 56.2 LOTC to grant suspension; that is, that the execution of the sentence imposed in the contested resolution in amparo would have caused damage that would make it lose its purpose.
7. On February 24, 2017, by ordering procedure, it was agreed to hear the proceedings in relation to the amparo appeal no. 4037-2015 and the writ of amparo no. 4098-2015 to the appellant, the Public Prosecutor's Office and the parties appearing for a common period of twenty days to present the allegations that are appropriate to their right, in accordance with art. 52.1 LOTC. The proceedings indicated that, in accordance with art. 83 LOTC, they could argue in the first ten days of the period on the possible accumulation of the writ of amparo no. 4098-2015 to the writ of amparo no. 4037-2015.
8. By ATC 82/2017, of May 22, in accordance with what was alleged by the appellants and the Public Prosecutor, it was agreed to accumulate the writ of amparo no. 4098-2015 to the writ of amparo no. 4037-2015, since the connection required by art. 83 LOTC, given that, although they have been filed by different plaintiffs acting under different legal assistance, they challenge identical court decisions with a matching legal reasoning.
9. The appellants, Ms. Bergillos, Mr. Munter, Mr. Molina and Mr. Cobos, in a written document registered on March 28, 2017, ratified the allegations made in their application for amparo and adhered to those made by the party plaintiff in appeal no. 4098-2015.
The appellant Mr. Raymond Parra, in a written document registered on March 28, 2017, ratified the allegations made in his amparo claim, with the sole addition of understanding that the claim is reinforced because it is pending resolution by the European Court of Human Rights two lawsuits from others convicted in the same case.
10. The prosecutor before the Constitutional Court, in writings registered on April 28, 2017, requested the partial estimate of the amparo appeals for violation of the right to a process with all the guarantees, in relation to the right of defense of the accused ( art. 24.2 CE) and for violation of the right to the principle of criminal legality and proportionality of the sentence (art. 25.1 CE), with dismissal of the alleged violation of the fundamental rights of freedom of expression, assembly and demonstration [arts. 20.1 a) and 21 CE]. Likewise, it requested the declaration of nullity of the contested court decisions.
a) Regarding the alleged infringement of the right to a process with all the guarantees (art. 24.2 CE), it notes that the lower court ruling, together with the specific acts carried out by the appellants during their participation in the statement also declared other facts proven, based on which he established the subjective element of the imputed conduct; facts that refer to the purpose pursued by the demonstration called and to the circumstances concurrent to its development, which, finally, justified his acquittal by understanding the preponderant purpose of protest. These factual elements, however, are valued by the Supreme Court in the opposite sense, which leads it to affirm the guilt of the appellants, when appreciating that the purpose of the demonstration, as evidenced by the facts, was to alter or prevent the normal functioning of Parliament; This purpose is also attributed to the appellants, who actively participated in the protest demonstration.
The prosecutor reasons that this pronouncement of guilt, based on a different assessment of subjective elements, has not duly complied with the constitutional guarantees that must govern in the second instance in accordance with the doctrine established by the Constitutional Court, in whose evolution the guarantee of hearing of the defendant has been established as necessary to be able to revoke an acquittal or to aggravate a sentence based on a new assessment of the subjective element of guilt of the typical conduct (SSTC 88/2013, of April 11, FFJJ 8 and 9; and 172/2016, FFJJ 7 and 8). The Public Prosecutor concludes its allegations by stating that the infringement of the appellants' fundamental right to due process must be assessed, in relation to the right of defense in the second instance and, in order to restore the violated right, it is appropriate to declare the nullity of the contested judicial decisions issued by the Supreme Court.
b) Subsidiarily, in the event that the previous claim is not upheld, in its analysis, the Public Prosecutor rules out the infringement of the right to freedom of expression and the rights of assembly and demonstration (arts. 20.1 a] and 21.1 and 2 EC), which are alleged by the appellants, insofar as it coincides with the assessment of the Supreme Court, according to which the judgment of first instance has mistaken the keys of constitutionality with which it has carried out the trial of weighting of the fundamental rights concurrent. Specifically, it criticizes the fact that, in justifying the acquittal decision, far from making a true consideration of conflicting claims, the rights of assembly and demonstration have been granted an abstract and preferential prevalence over any other constitutionally relevant good; prevalence that is based on the consideration that they represent forms of direct democracy, but that does not confront the value that should be constitutionally granted to the fundamental right to political participation of citizens through their legitimate representatives, freely chosen in periodic elections (art. 23.1 CE), which is consistent with the constitutional principles on which our democratic system is based.
The prosecutor emphasizes that the proven facts show that, in this case, we are not dealing with a mere suspicion or conjecture that the right to political participation through freely chosen representatives could have been affected by the exercise of the right of assembly, which would not allow sacrificing this right in application of the principle favor libertatis, as pointed out by SSTC 170/2008, 37/2009, 38/2009 and 96/2010 (demonstrations during the electoral period, with possible incidence in the free conformation of the popular will in the election of political representatives). On the contrary, there have been specific acts carried out by the demonstrators which, as the court ruling admitted, amounted to an excess and abuse of the exercise of the right to assembly and demonstration, and unduly compromised the fundamental right to political participation in article 23 CE.
It concludes that "in view of this concurrence of fundamental rights, it is not possible to recognize a priority constitutional protection for the exercise of the right of assembly at the sacrifice of the right of citizens to political participation."
The Public Prosecutor adds that the abstract provision of criminal sanction established in article 498 CP is constitutionally legitimate, through which the legislator has established an external limit of the right of assembly and demonstration in attention to the guarantee of inviolability of Parliaments (art. 66.3 EC and 55.3 of the Statute of Catalonia), and in order to preserve the normal functioning of the constitutional body that has been attributed the legislative power and represents the popular will. In his opinion, "the sanctioning response of article 498 CP must be considered necessary to guarantee the proper functioning of the constitutional democratic system itself, even in the event that the sanctioned acts have occurred in relation to the exercise of other fundamental rights, insofar as that the violent acts that it describes suppose an attack on the representative political participation of the citizens, embodied in the General Courts and the autonomous Parliaments”. In support of such a conclusion about the constitutional legitimacy of the restriction, he appeals to STC 112/2016, FJ 2, where "the legitimacy of the restriction implied by the application of the crime of exalting terrorism is accepted when the exercise of freedom of expression and freedom of ideology is a manifestation of hate speech, which indirectly fosters a situation of risk for the persons or rights of third parties or for the system of freedoms itself”.
c) Finally, when analyzing the complaint that denounces the violation of the right to criminal legality and proportionality (art. 25.1 in relation to art. 24.1 EC), the Public Prosecutor specifically addresses the specific penal sanction response that has had the case in the judgment of the Supreme Court issued when resolving the appeal.
On the one hand, it deals with analyzing whether the reasoning that the conviction carries out to subsume the acts attributed to the appellants in the criminal offense of article 498 CP could have infringed the substantive guarantee of the principle of legality, by assuming an application extensive of the literalness of the norm, or an interpretation of it that does not respond to the criteria of admissible axiological interpretation. In the prosecutor's opinion, "the sentence handed down by the Supreme Court has made an attribution of criminal responsibility established in article 498 CP based on the presence of the appellants in some of the different groups of demonstrators who approached the different deputies, some of whom, who were not identified, carried out significant violent acts, understanding that it was possible to demand that the appellants be responsible for "the coercive climate and intimidating atmosphere" generated by the set of acts that were produced by the actions of different people who were part of the groups of demonstrators who approached the Deputies”. This procedure, as he argues, omits a true individualization of the criminal responsibility of the appellants, as imposed by the canon of reinforced subjective responsibility, which does not admit the extension of criminal responsibility for the mere fact of participating in the group (STC 69/ 2016, FJ 2). In the opinion of the prosecutor, the specific acts that have been attributed to the appellants (standing in front of the Deputies with open arms, following them with arms raised, or holding up banners in front of them, while chanting the slogans of the demonstration contrary to the budget cuts and saying that they did not represent them) lack the entity claimed by art. 498 CP, which imposes a custodial sentence of 3 to 5 years and has as a factual assumption the performance of serious acts of violence, intimidation or threat to a parliamentarian in order to prevent him from attending his meetings or restrict the exercise of its representative responsibilities, so that its sanction can be considered as an extensive and disproportionate application of the type, in relation to the legitimate purpose pursued by it.
On the other hand, although in close connection, the Public Prosecutor analyzes the penalizing response to behaviors linked to the exercise of fundamental rights from the criteria of necessity and proportionality that, in its jurisprudence, both the European Court of Human Rights uses (SECHR July 10, 2008 Soulas et al. v. France, §§ 32 and 33; and March 15, 2011, Otegui v. Spain, §§ 51 et seq.) and the Constitutional Court itself (STC 88/2003, FJ 8). In attention to them, very singularly, it understands that the "discouragement effect" due to the severity of the response to behaviors that, being related to the exercise of fundamental rights, even exceed the borders of constitutional protection, should be avoided. The prosecutor considers that in the subsumption of the conduct in the criminal type applied, which provides for custodial sentences of 3 to 5 years in prison, the cassation sentence has dispensed with granting relevance to the concurrent circumstances in the development of the demonstration ( organizational deficits of the public authority) or to what was the effective injury caused by the acts prosecuted to the legal right protected in the type (delay of 11 minutes in the beginning of the parliamentary session and alteration in the treatment of the agenda), which It allows us to conclude that the penal reaction was disproportionate.
For the foregoing, the prosecutor is interested in a ruling that partially upholds the amparo appeals filed, declaring that the conviction handed down in cassation has violated the fundamental right to due process in the second instance in relation to the right of defense of the defendants of art. 24.2 CE, and the right to the principle of legality and proportionality of art. 25.1 EC.
11. Presented a writ of certiorari to the Plenary by three magistrates on June 11, 2019, by order of June 13, 2019, its certiorari has been agreed.
12. Having declined the presentation, the magistrate Hon. Mr. Cándido CondePumpido Tourón, by Agreement of June 2, 2021 of the Hon. Mr. President of this Court and under the provisions of art. 80 LOTC in relation to art. 206 LOPJ, the Hon. Mr. Antonio Narváez Rodríguez.
13. By ruling dated June 22, 2021, the 24th of the same month and year was designated for deliberation and judgment.
II. LEGAL BASIS
1. Purpose of the amparo appeal and claims raised.
a) In these accumulated amparo appeals, the plaintiffs challenge the judgment of February 18, 2015, issued in the process of cassation by the Criminal Chamber of the Supreme Court, which revoked the previous acquittal decision adopted by the First Section of the Criminal Chamber of the National Court, handed down on July 7, 2014. Likewise, they have sought the annulment of the Order of May 19, 2015 of the same Chamber of the Supreme Court, which dismissed the extraordinary incidents of annulment of actions promoted against that judgment revoking the instance.
After appreciating the appeals body that, in the course of a protest concentration on public roads duly communicated to the government Authority, they used violence or intimidation against various regional deputies in order to prevent them from voting in favor of the budgets annuals that, that same day, were going to be debated in the Parliament of Catalonia, the appellants were sentenced, as perpetrators of a crime against the institutions of the State of art. CP 498, to the penalty of three years in prison and special disqualification for the right to passive suffrage during the time of the sentence.
The criminal precept applied in this case (art. 498 CP, in the wording given by Organic Law 10/1995, of November 23) punishes with a prison sentence of three to five years “those who use force, violence, intimidation or serious threat to prevent a member of the Congress of Deputies, the Senate or a Legislative Assembly of an Autonomous Community from attending their meetings, or, by the same means, restrict the free expression of their opinions or the issuance of your vote."
b) There are three nuclear issues, differentiated by reason, that arise in the lawsuits: the first, of a procedural nature and the remaining two of a substantive nature. They are the following:
(i) In the first place, the constitutional limits of the claim to review in cassation a previous acquittal decision (an issue that has been repeatedly and recently addressed by this Court): the plaintiffs, invoking constitutional jurisprudence and that of the European Court of Human Rights, consider their right to a trial with all the guarantees violated (art. 24.2 EC), for having been sentenced in cassation without having been personally heard on the basis of considering a subjective element of the type that had not been concurrent appreciated in the instance; specifically, that the defendants acted with the intention of preventing the autonomous deputies from accessing the Parliament of Catalonia, so that they could debate the draft budget of the Generalitat that was on the agenda.
(ii) Secondly, the delimitation of content between the rights to freedom of expression, assembly and demonstration (arts. 20.1 and 21 CE), and the right to representative political participation (art. 23 CE), which it is opposed as a criminal limit favoring the sanction of conducts that affect its content. The contested sentence is based on the need for criminal protection for the normal development of parliamentary activity, which is an expression of the right of citizens to participate in public affairs through their freely chosen representatives, and also of the right of the representatives themselves to exercise, with the requirements established by law, the functions attached to the parliamentary representative public office that they had obtained in the Catalan regional elections. The appellants (whose behaviors have been described in the third precedent of this resolution) affirm, on the contrary, that, as participants in a protest rally on public roads, they confronted the parliamentarians, doing so in the legitimate exercise of their rights assembly and free expression, for which they should have been acquitted.
(iii) Finally, thirdly and from another perspective closely related to the previous one, the appellants discuss the predictability, necessity and intensity of the criminal reaction that is challenged (arts. 24.1 and 25.1, in relation to arts. 20 and 21 CE). They affirm that the declared proven conducts for which they have been convicted do not fit into the tenor of art. 498 CP, therefore, to justify his conviction, this precept would have been extensively interpreted and applied by the Supreme Court, in malam partem, and without the necessary attention to the fundamental rights involved, which, in any case, would have demanded a proportionate criminal response.
The Public Prosecutor's Office is interested in partially granting the requested amparo, since the sentencing decision has violated the fundamental right to a trial with all the guarantees, in relation to the right to defense of those accused of art. 24.2 CE, and also the right to the principle of legality and proportionality of criminal sanctions (art. 25.1 CE). Consequently, it requests that this Tribunal declare the annulment of the conviction handed down in cassation.
It considers, first of all, that the appeal judgment has violated the right to a process with all the guarantees invoked by the plaintiffs (art. 24.2 CE) insofar as, to establish their guilt and assess the concurrence of the subjective element of the imputed crime (the intention of preventing the access of the deputies to the Parliament of Catalonia and the development of the parliamentary session), is based on a new assessment of personal evidence that, in order to guarantee the right of contradictory defense, would have required to give hearing to the defendants acquitted in court.
On the other hand, it understands that the judgment handed down in cassation has also violated the right to criminal legality and the principle of proportionality of the infractions and sanctions (art. 25.1 CE), to the extent that the plaintiffs were considered perpetrators of an offense provided for in art. 498 CP despite the fact that, according to the concurrent circumstances, the behaviors declared proven did not individually reach the standard of typical severity required, without the climate of intimidating violence generated by others being taken into account to assess the entity of their behaviors. Regarding the specific penal sanction response, it considers that the discouragement effect resulting from the severity of the sentence imposed must be avoided, which allows us to appreciate that the sentencing decision was disproportionate for not giving relevance to the concurrent circumstances in the development of the demonstration and the effective injury caused to the normal development of parliamentary activity.
On the contrary, the prosecutor does not appreciate that the rights to freedom of expression, assembly and demonstration of the plaintiffs have been violated. It considers that the abstract criminal legislative provision that has been applied in this case (art. 498 CP) is constitutionally legitimate, given that the fundamental right to political participation of citizens through their legitimate representatives freely chosen in periodic elections (art. 23.1 CE), constitutes a constitutionally relevant purpose that allows criminal limitation of the right of assembly and demonstration. It affirms that, in the consideration of the interests in conflict in this case, the right of assembly and demonstration does not reach a preferential value since the conducts prosecuted constituted an excess of limits or abuse and not its legitimate exercise, an appreciation of the latter that, erroneously , based the judgment of instance.
2. Order of analysis of the grounds for protection.
STC (Plenary) 146/2017, of December 14, FJ 2, which refers to previous ones, has declared that, based on the constitutional interests at stake in the case under consideration, its possible novelty and The nature of the complaints raised allows this Court to determine not only the order of examination of the grounds for amparo adduced, but also whether it is necessary or convenient to rule on all the alleged violations of fundamental rights, once has appreciated the concurrence of any of them with the corresponding effects.
As we already explained in the background, the appeals were admitted for processing after appreciating that they have a special constitutional significance because they pose a problem or affect a facet of a fundamental right on which there is no doctrine of this Court [STC 155/2009, FJ 2, a)]. This conclusion is appreciated in a singular way in the last two issues raised in the lawsuits, which are substantive in nature. In them, the criminal reaction against conducts that, according to what is affirmed, although they affected the rights of representative political participation recognized in art. 23.1 CE, were protected by the rights of free expression, assembly and demonstration or, at least, closely related to their exercise.
Therefore, our analysis will begin with those substantive complaints; This is also justified by its material content, that is, both the conflict of claims protected by fundamental rights, which is presented as a prerequisite for the amparo petition, as well as the judicial pronouncements on it that based the acquittal in the instance and, later, sentence in marriage.
3. Interrelation of the substantive claims raised.
As we have already explained, the substantive challenge of the criminal conviction is carried out in appeals from two different perspectives: (i) that of the rights to freedom of expression, assembly, demonstration and political participation (arts. 20, 21 and 23 CE), on the one hand, and (ii) the right to legality of infractions and sanctions (art. 25.1 CE), on the other. In this regard, two additional considerations are necessary:
a) In substantiating their claim, the appellants also affirm that they have acted in exercise of their right to the direct participation of citizens in public affairs (art.
23.1 CE). Said allegation cannot be considered autonomous, but rhetorical, since it only expresses a reinforced argumentation, which coincides with the alleged violation of the freedoms of assembly, demonstration and expression, the exercise of which, in the present case, referred to matters of undoubted public relevance and general interest, such as political and economic decisions on public income and spending, submitted to Parliament for deliberation through the budget law.
It is not possible to minimize the importance of the democratic model that characterizes the social rule of law in our Constitution, as well as the decision that resides sovereignty in the people (art. 1 CE) and expresses the commitment of the public powers to facilitate the participation of all in political life (art. 9.2 CE). They are constitutional principles and decisions that allow a coherent interpretation of all the institutes of the order on the participation of citizens in political life. But even so, it is evident in this case that, due to the purpose and object of the call, the public protest concentration was not, in principle, but a constitutionally recognized and qualified form of expression for dealing with matters of general interest, therefore that it is not possible to independently prosecute the justification of the imputed conducts based on the right to direct political participation recognized by art. 23.1 CE but, more correctly, as part of the also alleged rights of free expression, assembly and demonstration.
Not in vain, as we will see, this Court has been reiterating since its first resolutions that the right of assembly, insofar as it is a collective manifestation of freedom of expression, is not only one of the inherent inviolable rights that are the foundation of the political order and social peace (art. 10.1 EC), but, due to its purpose, it constitutes a channel of the participatory democratic principle (SSTC 101/1985, of October 4, FJ 2; and 85/1988, of April 28, FJ 2).
b) As this Court had the opportunity to express in ATC 4/2008, of January 9, the different substantive perspectives from which the appellants challenge the sentencing decision do not respond, in principle, to a relationship of consumption, so that only one of them covers all the content of the other, but rather they are a consequence of the diversity of constitutional values that each of them incorporates: on the one hand, through arts. 20 and 21 CE, the constitutional requirement is established not to unduly limit or discourage the conduct of citizens through which, verbally or symbolically, they publicly express their opinions and value judgments; singularly, those that refer to matters of general interest whose debate contributes to the formation of a free public opinion; This guarantee, as we have reiterated so many times, is one of the pillars of a free and democratic society (SSTC 137/1997, of July 21, FFJJ 6 and 7; and 235/2007, of November 7, FJ 4). ; and on the other, the necessary predictability and proportionality of criminal sanctions is a constitutional requirement embodied in art. 25.1 CE, which addresses the special incidence that the criminal reaction must have on fundamental rights, whether they are those involved in the sanctioned conduct or those that have to do with the nature of the sentence imposed.
Despite the autonomy they maintain, the arguments used by the parties about the requirement of legal provision, or about the necessary and proportionate nature of the limitation, are partly coincidental and appear inevitably related, which will require addressing them with a global perspective, attentive to the different interests that some and other alleged rights protect. It could not be otherwise, since the requirement of legal provision in the limitation of fundamental rights is also the essential feature that identifies the content of the principle of penalizing legality, and -as expressed by STC 136/1999, of July 20, FJ 21-, proportionality in the strict sense and the need for the measure, in addition to constitutional requirements for the limitation of fundamental rights, "constitute two complementary elements or perspectives of the principle of proportionality of criminal sanctions", inherent in the relationship between the art. 25.1 CE and the other fundamental rights and public liberties concerned: in this case, the personal freedom of art. 17 CE -because the sentences imposed are deprivation of liberty-, and the alleged freedoms recognized in the arts. 20 and 21 CE.
4. Delimitation of the affected rights: Freedom of assembly and demonstration and right of political participation.
The variety of accumulated substantive claims raised by the appellants (arts.
20, 21, 23.1 and 25.1 CE), the coincident arguments that supported his acquittal in the instance and those that, in contrast, justified his criminal conviction in cassation (arts. 23.1 and 66.3, 67.2 and 71.1 CE), show the need to approach its examination in an orderly manner, given that, as we have stated, the various grounds for amparo are sometimes based on coinciding or complementary arguments, the appreciation of which would make it unnecessary to exhaust the reasoning on all the others raised.
For this reason, we must proceed, firstly, to the delimitation of the fundamental rights in conflict and then carry out the due judgment of weighting between them, but not before noting that, when in an amparo remedy the violation of the content of a substantive fundamental right, the task entrusted to the Constitutional Court is not intended to judge the consideration or evaluations made by the judicial decisions submitted to our control, but the direct and immediate examination of the facts declared proven by them to determine if , when prosecuting them, have been respected or not (SSTC 200/1998, of October 14, FJ 4; and 88/2003, of May 19, FJ 1), "although for this purpose it is necessary to use criteria other than those applied by the courts, since their reasons do not bind this Court” (SSTC 23/2010, of April 27, FJ 2; 176/2013, of October 21, FJ 4 and those cited there; as well as, recently, STC 25/2019, of February 25, FJ 2, letter g]).
From these initial considerations, then, we will dedicate this legal basis to the examination of the question related to the delimitation of the fundamental rights in conflict.
a) The plaintiffs jointly invoke their rights to freedom of expression, assembly and demonstration, guaranteed by arts. 20 and 21 CE, inasmuch as, according to what they affirm, the public concentration before the Parliament of Catalonia, whose call had been communicated to the authorities in advance, was intended to express a political protest on the spending criteria that, through the budget law, were going to be debated in parliament. To do so, they rely on the justification of the judgment of the National Court, which only took into account the analysis of the exercise of these rights to understand that the actors and the context in which their individual behaviors took place were covered by the exercise of those rights. rights and constituted a cause of justification (FJ 2 of the judgment of July 7, 2014), which, since it was not unlawful, exonerated the appellants from any responsibility as participants in that collective act of freedom. On the contrary, the judgment of the Supreme Court opposes the exercise of those rights of the appellants, that of political participation of the deputies who intended to attend the Plenary Session of the Parliament (art. 23 EC), understanding that the latter should prevail over the former.
b) Our judgment of weighting between the exercise of those rights and the political participation of art. 23 CE must start from the recognition, in this last right, of the existence of a double dimension: (i) of individual scope, in the sense that each and every one of the deputies of the Parliament of Catalonia had the right to freely exercise their public offices and, consequently, to be able to access Parliament that day to freely carry out their functions as parliamentarians; and (ii) also a collective dimension, since the actions tending to obstruct or prevent entry to parliamentary headquarters, constituted an impediment to the exercise of the right of citizens to participate in public affairs through their legitimate representatives, since the intention was to prevent Parliament from freely performing its parliamentary function.
Like freedom of expression, the right to assemble and demonstrate are basic political freedoms on which our political order is based (art. 10.1 CE). To this extent, the limitations to its exercise must be interpreted restrictively. In our jurisprudence, we have developed the constitutional content of the right of assembly and its limits - of which the right to demonstrate is one aspect - with a doctrine that connects with that of the European Court of Human Rights.
Thus, this Court has stated that the right of assembly is a collective manifestation of freedom of expression carried out through a temporary association of people that operates instrumentally at the service of exchanging or exposing ideas, defending interests or publicity of problems and claims, constituting a channel of the participatory democratic principle. Its configuring elements are the subjective (group of people), the temporary (transitory duration), the finalist (lawfulness of the pursued purpose) and the real or objective (place of celebration): this is how it already appears in STC 85/1988, of April 28, FJ 2, and later, among others, in SSTC 66/1995, of May 8, FJ 3; 196/2002, of October 28, FJ 4; 170/2008, of December 15, FJ 3; 38/2009, of February 9, FJ 2; 193/2011, of December 12, FJ 3 and 172/2020, of November 19, FJ 6 B).
We have also highlighted "the fundamental relief that this right -channel of the participatory democratic principle- possesses, both in its subjective and objective dimension, in a social and democratic State of Law as the one proclaimed in the Constitution", noting that “for many social groups this right is, in practice, one of the few means available to them to be able to publicly express their ideas and demands” (SSTC 66/1995, FJ 3;
196/2002, FJ 4; 195/2003, FJ 3; 110/2006, FJ 3; 301/2006, FJ 2; 170/2008, FJ 3). Moreover, freedom of assembly, as a collective manifestation of freedom of expression, is closely linked to political pluralism as it contributes to the formation and existence of public opinion, "in such a way that it becomes a prior and necessary condition for the exercise of other rights inherent to the functioning of a democratic system, such as precisely the rights of political participation of citizens” (STC 170/2008, FJ 4).
As we stated in STC 101/2003, of June 2, FJ 3, “without free public communication other rights enshrined in the Constitution would be emptied of their real content, representative institutions would be reduced to empty forms and the principle of democratic legitimacy stated in art. 1.2 CE, which is the basis of all our legal-political order.
This characterization highlights the close link that exists between the right of assembly and freedom of expression [art. 20.1 a) CE], and that of both rights with democracy, direct and representative. This connection has been emphasized by the European Court of Human Rights, which qualifies art. 10 ECHR, which proclaims freedom of expression, as lex generalis in relation to art. 11 ECHR, which provides for freedom of assembly (lex specialis). Despite being an autonomous right with its own scope of application, when -as in this case- the objective of exercising the right of assembly is the expression of one's own opinions in a public forum through claims or protests, its content must be examined, also, in light of art. 10 ECHR (for all, ECHR of October 15, 2015, of the Grand Chamber, issued in the case of Kudrevičius et al. v. Lithuania, §§ 85-86).
Now, whether they are private or public meetings, static or in the form of a demonstration, we must emphasize that what art. 21 EC recognizes and protects the right to peaceful assembly (which obviously rules out the use of weapons); In this way, those meetings or demonstrations in which their organizers or participants have violent intentions, intend to induce others to exercise it or, in another way, reject the foundations of a democratic society are excluded from their scope of protection (Court of September 20 of 2018, Mushegh Saghatelyan v. Armenia, § 227).
The requirement that the assembly or demonstration be peaceful and without weapons is a constitutional protection requirement (SSTC 59/1990, of March 29, FJ 5; 196/2002, of October 28, FJ 4), which It can be evaluated before or after its development. So that any meeting with violent intentions can be prohibited as long as it is outside the constitutional content of the fundamental right protected in art. 21 CE. On the other hand, given that meetings and demonstrations are, on many occasions, spaces for the visibility of unsatisfied interests and claims, the requirement of the peaceful nature of the meeting also serves to exclude from the constitutionally protected area the meetings and demonstrations during which certain levels of intentional use of violence are reached in a general way, in particular, when there are aggressive excesses of a certain intensity against people or property.
c) The other fundamental right that should be the object of this weighting judgment is the right to political participation in the double dimension previously stated.
The right of the deputy member of a parliamentary assembly extends to permanence in the exercise of public office and to perform it in accordance with the law, without illegitimate constraints or disturbances [SSTC 10/1983, of February 21, FJ 2; 32/1985, of March 6, FJ 3; 220/1991, of November 25, FJ 5; 71/1994, of March 3, FJ 6; 109/2016, of June 7, FJ 3 a); 11/2017, of January 10, FJ 3 a), and 139/2017, of November 29, FJ 4 a)], since "the constitutional norm would lose all effectiveness if, respecting access to public function or office in conditions of equality, its exercise could be mediated or prevented without legal remedy” (STC 161/1988, of September 20, FJ 6). This guarantee acquires special relevance when it comes to parliamentary representatives in defense of the exercise of their functions, since this also entails defending the very right of citizens to participate through the institution of representation in public affairs recognized in art. 23.1 CE [STC 32/2017, of February 27, FJ 3, citing SSTC 161/1988, of September 20, FJ 6; 177/2002, of October 14, FJ 3, and 40/2003, of February 27, FJ 2 a)].
In effect, regarding this list of rights recognized in the two sections of art. 23 CE, this Court has said that, when it comes to representative positions, the right enunciated in article 23.2 CE must be connected with the fundamental right of citizens to participate in public affairs through representatives, freely chosen in periodic elections by universal suffrage (art. 23.1 CE). This relationship must be verified if one takes into account that it is the representatives, precisely, who update the right of citizens to participate in public affairs, now apart from the direct nature that the precept itself guarantees. These are “two rights that embody the political participation of citizens in the democratic system, in connection with the principles of sovereignty of the people and political pluralism enshrined in art. 1 CE”, which are mutually presupposed and appear “as modalities or variants of the same principle of political representation” [STC 185/1999, FJ 4 c), citing SSTC 119/1985, of October 11, FJ 2, and 71/1989, of April 20, FJ 3;
doctrine reiterated by STC 139/2017, FJ 4 d)]. Thus, the right of article 23.2 CE, as well as indirectly the one that article 23.1 CE recognizes for citizens, would be empty of content, or would be ineffective, if the political representative were deprived of it or illegally disturbed in its exercise [SSTC 119/2011, of July 5, FJ 3; 109/2016, FJ 3 a); 11/2017, FJ 3 a); 139/2017, FJ 4 d), and 49/2018, of May 10, FJ 4].
As we will have the opportunity to analyze, certain deputies of the Parliament of Catalonia, whose identifying data have been reflected in the account of proven facts, were, in some cases, prevented from being able to access the Catalan chamber by their own means, others found difficulties in said access and, finally, some of them had to enter Parliament using extraordinary means of transport (helicopter), so the personalized and individual dimension of the right to political participation acquires necessary relevance here for the weighting judgment that we must carry out
The action of a more or less numerous group of people gathered in front of the parliament building, either, as the appellants allege, to carry out protests that affected their social or economic rights, or, as the Court maintains Supreme Court, to try to prevent the access of the deputies to their facilities in order to hold a plenary session, also affects the right of political participation of those parliamentary representatives, who, for this very reason, deserve to be included in the judgment of weighing rights preceding the examination of the facts.
5. Judgment of weighting between the previous rights.
A) Approach.
a) In the previous legal basis we have limited ourselves to detailing the fundamental rights that come together and that have even come into conflict in the present case.
Now it is a question of carrying out the weighting judgment that corresponds to this Court in relation to those fundamental rights that we have identified as compromised in their exercise, based on what is contained in the account of proven facts of the judgment of the National Court .
Of course, we have already ruled out in advance the approach of the Court of Instance, which only took into consideration the fundamental rights of assembly, demonstration and freedom of expression invoked by the appellants, given that it would be an incomplete viewing of the constitutional problem subject to our trial. On the contrary, we must accept, as a starting criterion for our analysis, the best balanced judgment between the previous rights and that of political participation to which the Court of Appeal referred in its judgment.
b) Next, in order to carry out the weighting judgment, it is necessary that we start from the description of the context in which the events took place and also determine what the actions of the five appellants were, to later assess them from the perspective of the fundamental rights they invoke.
B) Context and conduct specifically imputed to the appellants.
From the facts declared proven by the Judgment of the National Court, to which we have mentioned in the background, we can extract, on the one hand, the context in which the events in which the conduct of the recurring behaviors and, on the other hand, an exposition of each of their own individual behaviors:
a) In this sense, the sentencing decision considers relevant the context that took place on the day of June 15, 2011. The following data should be highlighted: (i) the headquarters of the Parliament of Catalonia is located in the interior of the Parc de la Ciutadella in Barcelona;
As described in the sentencing decision, the facts charged to the plaintiffs occurred in the course of a rally on public roads, previously publicized and duly communicated to the authority, with the motto “Aturem el Parlament, no deixarem that they approve retallades” -Let's stop the Parliament, we will not allow them to approve cuts-; (ii) the concentration was called for June 14 and 15, 2011, the latter date on which the first parliamentary vote on the annual budgets of the autonomous community was scheduled; (iii) the concentration was attended by between six hundred and one thousand people who spent the night in the place; (iv) from 08 h. On the 15th, the deputies walked to the Parliament building to enter through door 7, the only one in Parc de la Ciutadella which, under police custody, was determined to be the access door once the concentration that had been dissolved by the police force there was in front of her; (v) at that moment, those gathered occupied the road on several occasions, preventing vehicle access or obstructing their march; (vi) while trying to access the park where the Parliament is located, several deputies were rebuked by the protesters, who personally confronted them, expressing their disagreement with the spending policies that were going to be put to the vote and the expected outcome thereof; (vii) at the same time, during the protest, when she tried to access the park, the coat of one of the deputies was spray-painted; (viii) a procession of vehicles and motorcycles in which the President of the Generalitat and the Parliament were traveling had to give up in their attempt to access the premises with the vehicles, in the face of the congregated crowd that occupied the road; (ix) several deputies sought police help to gain access on foot to the premises where the parliamentary headquarters are located, after unsuccessfully trying to do so due to the human barriers that were formed, some of whose members threw liquids on two deputies; (x) A handbag he was carrying was taken from one of the deputies, and the documents he was carrying from another, as well as a packet of tobacco and a lighter; Finally, (xi) two deputies had an altercation with a group of demonstrators, who surrounded them at the door of a garage and had to seek the protection of police officers. Finally, they arrived at Parliament in a helicopter, around 10:20.
b) According to the historical account of the judgment, the individual conduct of each of the appellants was as follows:
(i) Mr. Francisco José Cobos García intervened with his arms crossed before two parliamentarians who had previously been rebuked by a hundred protesters when they were walking along the public road towards the Parliament, and then followed another parliamentarian with hands raised, shouting the slogans of the demonstration; while Mrs. Angela Bergillos Sheriff, followed the same parliamentarian with her hands raised, moving them, and chanting the slogans of the demonstration.
(ii) Mr. Jordi Raymond Parra is accused of having personally confronted two deputies loudly asking other protesters, who had already rebuked them, not to let them pass into the compound where the Parliament is located, displaying at the same time a banner, which caused the deputies to ask for the protection of the police officers to access the premises where the Parliament is located.
(iii) Mr. Rubén Molina Marín and Mr. Carlos Munter Domec were in a group of demonstrators who, when a deputy went to the Parliament by the only practicable route, reproached him for the public spending policies included in the budgets and told him They said that by supporting them, I did not represent them; Before the large group of protesters, five police riot officers accompanied the parliamentarian who, with such support, overcame the protesters and entered Parliament.
C) Judgment of weighting.
a) The first reason for amparo invokes the violation of the freedoms of assembly, demonstration and expression of the appellants, since the application of the criminal type to their conduct contravenes the constitutionally protected content of those freedoms. Considering this approach, only if this freedom was exercised without excess, taking into account that it is also concerned, in what is now important, the right of political participation of the deputies of the Parliament of Catalonia, would it be recognizable and the estimation of this would proceed. reason for the appeal.
According to the doctrine that has already been exposed, the exercise of the freedoms of assembly, demonstration and expression is not unlimited, since it has as limits those required by the protection of other goods or constitutional values, among which, without Undoubtedly, there are those that, such as the rights of political participation of art. 23 CE, have the character of fundamental rights in themselves. The foregoing makes it necessary to specifically determine the legal situation of fundamental right that, in collision with another of the same condition, should prevail in view of the circumstances of the case.
In the case prosecuted, we must assess, as a matter prior to the constitutionality trial on the application of the criminal offense itself and always taking into account the concurrent circumstances of the case, if the prosecuted conduct constituted the lawful exercise of the freedoms of assembly and demonstration in intimate connection with freedom of expression and, consequently, if it was justified by its predominant value. In said examination we reached a negative conclusion, since such conduct was not covered by the exercise of those rights, since that action of the appellants, pretexting the exercise of their rights, affected the rights of third parties (deputies of the Parliament) who , in that situation, should prevail, taking into account the manner, time and place in which the protest was made effective.
Our weighing judgment must attend, on the one hand, to the value that the freedoms of assembly, demonstration and expression entail in a democratic society, which are concerned here; and, on the other hand, to the need to protect other fundamental rights, such as political participation, in the aforementioned double dimension of the exercise of representative public office and the right of citizens to that participation through their representatives in a parliamentary assembly. And, given the circumstances of the case, the value of both rights, the context in which those circumstances developed and the conduct of the accused, the fundamental right of art. 23 CE.
b) This Tribunal confirms that a large group of people gathered in front of a parliament building and carried out acts of protest and demand that, in addition to its initial schedule of calling a public meeting and demonstration to carry out political and social criticism in defense of their interests, was followed, in reality, by a context, described in the historical account of the judgment of the National Court, with the use of unnecessarily coercive acts, gestures and expressions to which was added the conduct of the now appellants, equally collected in the proven facts and revealed in that coercive environment.
Such a combination of circumstances forces our weighing judgment to start from the need to say that those freedom rights invoked by the appellants admit justified limitations in the protection of other constitutionally relevant rights and assets that, provided by law, are provided for that legitimate purpose.
c) Certainly, the criminal sentence imposed on the appellants for the facts charged objectively implied a restriction of their rights to assembly and demonstration, interpreted in light of freedom of expression, as such interference not only operates when meetings are prohibited or, once authorized, they are coercively dissolved, but also when, once completed, their organizers or those who have participated in them are sanctioned for the conduct carried out during their development (SECHR of April 26, 1991, Ezelin v.
France; of May 15, 2014, Taranenko v. Russia; of October 15, 2015, Kudrevičius and others v. Lithuania; and of September 20, 2018, Mushegh Saghatelyan v. Armenia).
For the Supreme Court, the conduct of the appellants, individualized in the account of proven facts, acquired criminal relevance, precisely because they were carried out "in a coercive setting and climate, in an intimidating atmosphere", in which hundreds of People advocated the same common objective: to question the budget proposal, making it difficult and obstructing the access of deputies to the urban park inside which the Parliament of Catalonia is located.
We agree with the assessment presented by the Criminal Chamber of the Supreme Court in that the evaluation of the coercive or intimidating nature of the imputed conducts cannot be isolated from the context in which they were developed. Prior to or at the same time as the actions under trial, other protesters carried out other specifically intimidating actions (throwing objects and liquids at deputies, spraying paint on a deputy's outerwear, and even stealing personal belongings from another parliamentarian). These facts reveal a climate of physical tension that could not go unnoticed by the deputies. A climate in which the interposition of the appellants, their personal confrontation with the deputies, the gestures and fuss with their hands, the loud request to other protesters to prevent them from passing, or the personal rebukes directed at them questioning the proposal budget submitted to a vote, are behaviors objectively capable of influencing those who tried to access the premises, partially blocked, to exercise the representative parliamentary function at its headquarters.
It should not be forgotten that, both due to the advance and duration with which the rally was called -since the afternoon before the vote-, as well as the hyperbolic nature of its slogan - "Let's stop the Parliament, we will not allow them to approve cuts ”- and due to the number of people who attended -between six hundred and a thousand-, the police protection device of the parliamentary headquarters ordered the closure of all the access doors to the Parc de la Ciutadella, except one, through which, in a vehicle or on foot, the parliamentarians who were thus forced and exposed to directly and personally confront the protesters who had gathered in the vicinity of said door had to travel.
As the ECHR has pointed out, in modern democratic societies obstructive physical behaviors that affect road traffic or the free movement of people are not uncommon, in such a way that the activities carried out by others are significantly disturbed. And it is not unusual for them to be carried out when freedom of assembly or demonstration is exercised (STC 59/1990, of March 29, FJ 8). However, these are conducts that are not part of the core of powers to act that defines the freedom recognized in article 11 of the ECHR; that is, because they are far from their foundation, they are not the main object of protection of this public freedom, although -as we have already explained- they are not excluded from the general scope of protection that the recognition of such right entails (Court of Human Rights of 15 December October 2015, Kudrevičius and Others v. Lithuania, § 97).
d) We have highlighted in previous resolutions, particularly SSTC 136/1999, of July 20, FJ 15 and 112/2016, of June 20, FJ 2, that freedom of expression -of which the right meeting is a collective manifestation -, insofar as it is a guarantee of reasoned dissent, it grants all citizens the right to express their value judgments without suffering interference from public powers that are not supported by laws that impose constitutionally admissible limits. When opinion is an instrument of political participation or refers to matters of general interest, its protection acquires a greater scope since the legal right protected by it is the formation of a free public opinion.
However, based on this ground, messages that, due to their content or the way they are expressed, include threats or intimidation of others, cannot be considered a legitimate exercise of freedom of expression, assembly or demonstration, it is that is to say, those cases in which the rights are exercised in an excessive and exorbitant way in attention to the end to which the Constitution grants its preferential protection (STC 171/1990, of November 12, FJ 6).
Already then, this Court pointed out the inappropriateness of trying to define in the abstract which messages or communications are threatening or intimidating and which are not. It is an issue that must be addressed on a case-by-case basis, aware of the difficulty of "drawing the weak dividing line between threatening messages and those that are not" (STC 136/1999, FJ 16). In the present case, however, said difficulties do not arise because the criminal limitation imposed does not seek to limit the content of the protest message -the disagreement with the spending policy pending parliamentary approval-, but rather the exorbitant and intimidating manner in which that said disagreement became visible, that is, by making it difficult with their conduct for the deputies to access the Parliament headquarters so that the latter could carry out the plenary session called normally and address the scheduled agenda, which included the debate on the general budgets of the Autonomous Community and, therefore, the annual decisions on public spending, to whose eventual cuts the call for the concentration had directed their protests.
In the conduct carried out by the plaintiffs, it is easy to dissociate the protest message and the impeding acts that are criminally sanctioned, in such a way that said acts, as objectively intimidating, can be subject to limitation, even criminal, if they concur in They are the elements that make up the crime typified by law and if, in addition, its application does not produce, due to its severity, an unnecessary or disproportionate sacrifice of the freedom concerned or an effect that, in many other previous resolutions, we have described as discouraging the exercise of the fundamental rights involved in the sanctioned conducts (STC 177/2015, of July 22, FJ 2, d]); effect that can lead citizens not to fully and freely exercise their rights for fear that any excess will be severely penalized.
D) Dismissal.
In the present case, after having carried out this necessary balancing trial between the fundamental rights invoked by the appellants and those of art. 23 CE, to determine if the conduct subject to prosecution constitutes a lawful exercise of the freedoms of assembly, demonstration and expression, in confrontation with the right to political participation of the deputies of the Parliament, we have reached the conclusion that it is not possible recognize the legitimate exercise of those rights by the appellants, in view of the various concurrent circumstances in the case, the individual acts of each one of them, as well as the context in which they were carried out, therefore those conducts They were not within the objective scope of protection of said freedoms that they claimed to exercise.
For all these reasons, this first complaint of the amparo appeal must be dismissed.
6. Right to criminal legality.
A) Approach.
The second of the amparo grounds, denounced by both accumulated resources under the alleged violation of the right to criminal legality (art. 25.1 CE), actually encompasses two complaints: (i) On the one hand, it is questioned the subsumption of the conduct of the appellants in the criminal offense of art. 498 CP, due to the scarce entity of those described and imputed to each one of them in the historical account of the case. According to the lawsuits, those behaviors were atypical and the Supreme Court has incurred in an analogical or extensive application of the type of art. 498 PC. (ii) On the other hand, the infringement of the principle of proportionality of the sentences is also alleged, considering that the custodial sentences imposed on them, three years in prison for each of the five appellants, are disproportionate, which , in turn, generates a "discouragement effect" on the exercise of fundamental rights when criminal law is applied disproportionately.
In separate sections below, we will examine both complaints.
B) Invoked violation of the material guarantee (restrictiveness or mandate of certainty).
a) In relation to this reason for amparo, the appellants do not complain about the penal norm in the abstract, this is the penal type of art. 498 CP in itself considered and the formal guarantee tied to the principle of legality, which is typical of criminal law. On the contrary, the claim for protection is located in the material guarantee of this fundamental right recognized in art. 25.1 EC. More specifically, in the judicial application to the specific case of the aforementioned criminal precept, which the two lawsuits raise from a double perspective: (i) on the one hand, they denounce that, to the extent that it is the first time that the type criminal to a specific case and there is no previous jurisprudence on its criminal configuration, that material area would suffer from a lack of predictability and adequacy of the conduct to what is in accordance with the prohibition norm that contains this criminal type; (ii) and, as has been anticipated, the lightness of the individual conduct of each of the appellants should have led to a final acquittal by the Appeals Chamber due to atypical conduct.
b) Having ruled out, therefore, any challenge related to the formal guarantee of the principle of criminal legality and the complaints centered on the material guarantee of that fundamental right, we must remember that this Court has recently declared that "the principle of legality It comprises a series of material guarantees that, in relation to the legislator, fundamentally entail the requirement of normative predetermination of the conducts and their corresponding sanctions, through a precise classification endowed with the adequate concretion in the description that it incorporates. In this sense, we have declared -as recalled by STC 142/1999, of July 22, FJ 3- 'that the legislator must make the maximum possible effort in the definition of criminal offenses (SSTC 62/1982, 89/1993, 53 /1994 and 151/1997), enacting specific, precise, clear and intelligible regulations (SSTC 69/1989, 34/1996 and 137/1997). We have also pointed out that the law must describe ex ante the assumption of fact to which the sanction and correlative punishment are tied (SSTC 196/1991, 95/1992 and 14/1998). Expressed in other words, the legislator has to operate with rates; that is, with a stereotyped description of the actions and omissions incriminated, indicating the symmetrical penalties or sanctions (SSTC 120/1994 and 34/1996), which requires a specification and precision of the basic elements of the corresponding criminal figure; this requirement being unknown when an assumption of fact so extensively delimited is established that it does not even allow us to deduce what kind of conduct can be penalized (STC 306/1994)'. All of this aimed at guaranteeing legal certainty, so that citizens can know in advance the scope of what is prohibited and thus foresee the consequences of their actions (STC 151/1997, of September 29, FJ 3)” [STC 91/2021, of April 22, FJ 11.1. A.b)].
Also, this Court has insisted on the importance of the "restrictive mandate" and, citing its reiterated doctrine, which we are now summarizing (especially STC 146/2015, of June 25, FJ 2), affirms that that mandate of certainty or strictness "translates into the requirement of normative predetermination of the conducts and their corresponding sanctions (lex certa), by virtue of which the legislator must promulgate concrete, precise, clear and intelligible norms, so that the citizens can know in advance the scope of what is proscribed and thus foresee the consequences of their actions (STC 185/2014, of November 6, FJ 8)”. [STC 91/2021, FJ 11.1.B)].
In addition, such a guarantee of certainty, "does not only operate with respect to criminal or sanctioning regulations (regulatory scope), since it is also projected to the interpretation and application of these by judicial bodies to specific factual assumptions (application scope ), as reflected in the recent STC 14/2021, of January 28, FJ 2” [STC 91/2021, FJ 11.1 B), already cited]. In this sense, judicial bodies should avoid extensive interpretation or analogy in malam partem (for all, STC 229/2007, of November 5, FJ 4, to which we refer).
Likewise, this Court has specified the requirements to which the judicial bodies must be subject, when verifying the work of subsuming the facts in the criminal law, having affirmed (quoting STC 129/2008, of October 27 , FJ 3, to which we also refer) that the right to criminal legality is broken "when the conduct under trial, the one already defined as proven, is unreasonably subsumed in the criminal type that is applied, either by the interpretation that is made of the norm, either by the subsumption operation itself. In such cases, the sentence is surprising for its addressee and criminal intervention is, in addition to being contrary to the value of legal certainty, the result of a judicial decision that breaks the legislative monopoly on the definition of criminal conduct (for all, STC 137/ 1997, of July 21, FJ 6)” [STC.91/2021, FJ 11.1. D)].
We have also declared that the reasonableness of the subsumption of the proven facts in the criminal norm obeys a series of criteria, which we now present in a summarized way: (i) "respect for the literal wording of the norm", which implies that the subsumption of the factual assumption in the applicable criminal type should not be foreign to the possible meaning of the terms of the applied norm; (ii) reasonableness of the logical discourse, which "must be analyzed from the axiological guidelines that inform our constitutional text [] and from argumentation models accepted by the legal community itself." (iii) Finally, “[t]here are also constitutionally rejectable those applications that due to their methodological support -an illogical or indisputably extravagant argument- or axiological -an evaluative basis alien to the criteria that inform our constitutional system- lead to solutions essentially opposed to the material orientation of the standard and, therefore, unpredictable for its addressees []” [STC 91/2021, FJ 11.1.D)].
Lastly, it should be pointed out that this Court is not responsible for substituting the judicial bodies in the exercise of the function of subsuming the facts in the norms, since it is a task that "corresponds exclusively to ordinary judges and courts, As established in the art. 117.3 EC. This implies that, in this seat, it is not appropriate to sponsor interpretative alternatives to the one supported by the sentencing court, even if they were considered more appropriate or of greater strength. We must limit ourselves, therefore, to verifying an external judgment on the compatibility of the interpretation made with the literal wording of the norm and on its methodological and axiological reasonableness”. [STC 91/2021, FJ 11.1.F)].
c) In the present case, the criminal offense appears written in clear and precise terms, since it sanctions the use of a series of coercive, physical and psychological means -force, physical violence, intimidation or serious threat - as instruments for a series of typical purposes included in the precept. In the present case, the historical account reveals that the actions of the people gathered in front of the Parliament, among which were the appellants, were aimed at "preventing" the deputies from accessing the Catalan parliamentary headquarters with the aim of the plenary session of the chamber is not constituted and the budgets of the Autonomous Community are not approved.
Once the prevalence of the right of political participation of the Catalan parliamentarians was established in the weighting trial and, on the other hand, the exercise of the rights of assembly, demonstration and freedom of expression that the appellants used as a pretext to constitutionally legitimize their action, was ruled out, the motto of the banner that had originated the call "aturem el Parlament, no deixarem que aprovin retallades" is expressive enough of that objective pursued to naturally accept the thesis of the Criminal Chamber of the Supreme Court that it was not “to express disagreement with the restrictive budgetary policies through a concentration in the vicinity of Parliament.
Nor did that demonstration have the objective of serving as a vehicle to proclaim collective indignation against these policies”, but rather its purpose was to “provoke the body of political representation of the Catalan people to find itself incapacitated for debate and action politics”, and ultimately stressing that “[w]hat those concentrated there were pursuing was to attack the very roots of the democratic system. Strip the body that expresses the will of the people of any possibility of normative creation (“no deixarem que aprovin/we will not allow them to approve”)”.
This Court appreciates, in accordance with what was argued by the Supreme Court, that the criminal offense of art. 498 CP protects, not only the individual freedom of the deputies and their right, as representatives of the popular will, to access the parliamentary headquarters to fully perform their parliamentary functions, but also, it is aimed at preventing certain concentrations or demonstrations before parliamentary institutions, using the coercive means expressed in the type, have the objective of preventing “the normal functioning of the parliamentary body, with the consequent impairment of the right of participation recognized in art. 23 of the CE” [FJ 5, section F) of the STS of March 17, 2015, contested), to which must be added the special constitutional significance of the seat that houses the legislative power in a system of parliamentary democracy as the one designed by the 1978 Constitution, in which, as in this case, the Catalan Parliament and its headquarters constitute the representative body of the popular will of Catalan citizens, where "pluralism is preferably expressed and it is made public the political debate” (art. 55 of the Statute of Autonomy of Catalonia, approved by Organic Law 6/2006, of July 19).
d) For the rest, as we have already said, it is not the responsibility of this Court to replace the judicial bodies in the exercise of the function of subsuming the facts in the norms, since that task corresponds exclusively to ordinary judges and courts , As established in the art. 117.3 EC. We must limit ourselves, then, to verifying an external judgment on the compatibility of the interpretation made with the literal wording of the norm and on its methodological and axiological reasonableness. And this Court considers that the task of subsuming the facts in the applied penal norm conforms to the exposed canon.
The Criminal Chamber of the Supreme Court, with the support of the account of proven facts, provides up to ten factual elements, in addition to the motto of the call, to deduce the existence of a context of coercion intended to prevent the deputies from to get to the headquarters of the Parliament, which was sufficiently important in the spirit of the parliamentarians that some of them found it difficult to access the Chamber, others had to make their way with the help of the police forces and, finally, others had to to go to Parliament using extraordinary means of transport. Likewise, the conduct of each of the now appellants for amparo is described, within that context and in tune with it [FJ 6 B) of this sentence], therefore, from the external judgment of reasonableness that corresponds to make In this Court, the argument of the Criminal Chamber respects the literal nature of the criminal precept applied, its reasoning conforms to the rules of logic and does not stray from the material orientation of the norm and the typical elements that make it up.
Consequently, the complaint for alleged infringement of the principle of strictness of the criminal law and, therefore, of the principle of criminal legality must be dismissed.
7. Principle of proportionality.
7.1. Approach.
The accumulated amparo claims also denounce a second violation of the fundamental right to criminal legality, in this case regarding the principle of proportionality, in relation to the fundamental rights of assembly, demonstration and freedom of expression that they invoke in their exercise.
Specifically, they allege, first of all, the application of disproportionate penalties, since they maintain the lightness of the conducts committed and, therefore, the penalties imposed have been disproportionate based on those conducts and the fundamental rights expressed . In the opinion of the actors, the sentence of each of them to a sentence of three years in prison is disproportionate taking into account the possible individual participation that, according to the historical account, they would have had in the events. And, secondly, that the punitive reaction applied by the judgment of the Supreme Court produces a "discouraging effect" in the exercise of fundamental rights, repeatedly proscribed by the jurisprudence of the European Court of Human Rights and by the doctrine of this Court.
Thus, although the complaint is articulated under the statement of a single violation, the truth is that it presents two differentiated aspects that, despite being related to each other, justify a separate treatment: (i) that of the proportionality of the custodial sentences imposed, taking into account the lightness of the conduct of the appellants; (ii) The affectation of the fundamental rights to freedom of assembly, demonstration and expression due to the lack of proportionality of the sentences imposed.
For methodological reasons, our analysis will invert the order of prosecution of the two aspects of the principle of proportionality of the sentences alleged by the appellants, since, mainly, they link the violation of their right to criminal legality with the exercise of fundamental rights to freedom of assembly, demonstration and expression.
7.2. Affectation of other fundamental rights due to the lack of proportionality of the penalties.
7.2.1. constitutional doctrine.
a) Determine if the challenged decision of a custodial sentence has materially violated art. 25.1 CE, requires analyzing the proportionality requirements that are projected on the limitation of the freedoms of peaceful assembly, demonstration, expression and, ultimately, through the sentence imposed, on personal freedom.
This Court declared in STC 55/1996, of March 28, FJ 3, that the principle of proportionality can be inferred from various constitutional precepts -1.1, 9.3 and 10.1 of the Constitution-. This is an interpretation criterion that does not constitute in our legal system an autonomous canon of constitutionality whose claim can be made in isolation, that is, without reference to other constitutional precepts (STC 62/1982, of October 15, FFJJ 3 and 5 ; 160/1987, of October 27, FJ 6; 177/2015, of July 22, FJ 2; and 112/2016, of June 20, FJ 2).
The area in which the principle of proportionality is normally and in a very particular way applicable is that of fundamental rights, where it constitutes a rule of interpretation that, by its very content, stands as a limit of all state interference, incorporating , even before the law, positive and negative demands. Thus, this Court has been recognizing this, which has declared that the disproportion between the aim pursued and the means used to achieve it may give rise to prosecution from the constitutional perspective when that lack of proportion implies an excessive and unnecessary sacrifice of the rights that the Constitution guarantees.
For the above reasons, both the legislative configuration of the limitations of fundamental rights, as well as their specific judicial or administrative application, must be reduced to those that are aimed at a constitutionally legitimate purpose that can justify them. And even so, once such a legitimate purpose has been identified, the limitation will only be justified to the extent that it entails a sacrifice of the fundamental right that is strictly necessary to achieve it and is proportionate to that legitimate purpose. The European Court of Human Rights has expressed itself in similar terms when interpreting the clauses that, in the Convention, allow restrictions on fundamental rights when, provided for by law, they are necessary in a democratic society for the satisfaction of a legitimate purpose (STEHR July 13, 1995, Tolstoy Milovslasky v. United Kingdom, §§ 52-55, November 25, 1999, Nilsen and Johnsen v. Norway, § 53, and February 29, 2000, Fuentes Bobo v. Spain, §§ 49 and 50).
b) Based on the foregoing general considerations, this Court has had the opportunity to rule on the linkage of conduct of criminal relevance in the context of the exercise of fundamental rights. Specifically, in SSTC 104/2011, of June 20, FJ 6 and 62/2019, of May 7, FJ 7, it has specified the criteria that, in summary, can be synthesized in the following aspects:
1. Conduct that "constitutes a regular exercise of the fundamental right." In such cases, the Court has declared that:
(i) “[P]rimary types cannot be interpreted and applied in a manner contrary to fundamental rights” [SSTC 299/2006, of October 23, FJ 6, or 108/2008, of September 22, FJ 3]. Also, it has been affirmed on this point that "the proven facts cannot be assessed at the same time as acts of exercise of a fundamental right and as conduct constituting a crime" [SSTC 2/2001, of January 15, FJ 2 , or 29/2009, of January 26, FJ 3].
(ii) “The legitimacy of criminal intervention in cases where the application of a type collides with the exercise of fundamental rights is not determined by the limits of the exercise of the right, but by the delimitation of its content (As we have indicated, for example, in SSTC 137/1997, of July 21, FJ 2; 110/2000, of May 5, FJ 4; or 185/2003, of October 27, FJ 5)” [ STC 62/2019. FJ 7].
(iii) "When a conduct constitutes, unequivocally, an act adjusted to the regular exercise of the fundamental right, responding for its content, purpose or means used to the possibilities of action or resistance that the law grants, the imposition of a criminal sanction, even if the subsumption of the facts in the norm were in accordance with its literal wording (in this sense, SSTC 185/2003, of October 27, FJ 5, or 108/2008, of September 22, FJ 3)".
(iv) In short, "when a conduct is covered by the legitimate exercise of a right, it cannot be considered unlawful, even if such conduct is subsumable in a criminal offense" [STC 62/2019, FJ 7].
2. Conduct in which excesses are observed in the exercise of a fundamental right, even though such excesses do not reach to "disnaturalize or disfigure" it: The doctrine of this Court has prescribed that:
(i) These are the cases in which "it is unequivocally appreciated that the act falls within its content and purpose and, therefore, in the raison d'être of its constitutional consecration."
In these cases, “without prejudice to other consequences that the excess incurred could eventually lead to, the severity represented by the criminal sanction would imply a violation of the right, by implying a disproportionate and unnecessary sacrifice of the fundamental rights at stake that could have a dissuasive or discouraging effect on their exercise (STC 88/2003, of May 19, FJ 8)” [STC 62/2019, FJ 7].
(ii) In these cases "the need to consider whether the criminal sanction implies an unnecessary or disproportionate sacrifice of the right or freedom in question may arise and, therefore, has a discouraging effect" [STC 62/ 2019, FJ 7].
3. Assumptions that are excluded from the protection of the fundamental right, which are those "in which the invocation of the fundamental right becomes a mere pretext or subterfuge to, under its alleged protection, commit unlawful acts" [STC 62/2019, FJ 7 ]. "The penal instrument will only be constitutionally lawful when, regardless of what is alleged by the appellant, it can be affirmed that we are only facing an apparent exercise of a fundamental right and that the conduct prosecuted, due to its content, due to the purpose for which it is guides or through the means used, denatures the exercise of the right and is situated objectively, outside its own content and, therefore, where appropriate, in the sphere of what is potentially punishable” [STC 185/2003, of 27 December October, FJ 5].
7.2.2. Prosecution and dismissal.
We can anticipate that, of the three cases previously exposed, we have to place the case in the third of them, that is, in which the invocation of the fundamental right becomes a pretext for the commission of an unlawful act .
In FJ 6 we have carried out a weighing judgment between the fundamental rights that, on the one hand, the appellants have invoked, the exercise of their freedoms of assembly, demonstration and expression; and, on the other hand, that of political participation that was doubly affected, in the terms exposed therein. And we have reached the conclusion that, as the Supreme Court ruling shows, the concentration had "a very clear objective" [FJ 5 G) of the STS of February 18, 2015], which was included in the motto that guided the concentrates, among which were the appellants.
The account of proven facts reveals the verification of a scenario on the morning of June 15, 2011, hours before the Parliament of Catalonia held a plenary session to debate the budget bill for that Community Autonomous Community, in which a large group of people, between six hundred and a thousand, of which the appellants were a part, gathered in front of the doors of Parliament under the motto "Aturem el Parlament, no deixarem que aprovin retallades" (Let's stop Parliament, we will not allow them to pass cuts).
According to the ruling of the Supreme Court, with that concentration and with the coercive context included in the historical account (referenced in FJ 6 B of our ruling), it was a matter of preventing the deputies from accessing the parliamentary headquarters, occupying the road on several occasions, preventing vehicle access or obstructing their march, verbally rebuking some of the parliamentarians, spraying a deputy's outerwear with spray paint, forcing the president to give up his attempt to access the premises of the Generalitat and other deputies who tried to do so in official vehicles.
That obstruction reached the point that some of the popular representatives had to resort to using a helicopter to be able to avoid the siege of those who surrounded the Parliament and thus gain access to the interior of the Chamber.
We have to agree with the judgment of the Supreme Court in the appreciation that the motto of the call for the concentration was decisive to determine the objective pursued by the unlawful conduct of the appellants. That motto revealed the true purpose of the call and of those who seconded it. The judgment of the High Court precisely explains that, despite the pretext of two unidentified spokespersons in the account of proven facts and, also, despite the fact that the summons with the motto had been communicated to the Government Authority, it was included in the facts that what was really sought was to "stop the attack against social rights and public services () that were going to be approved." That is to say, to prevent the Plenary Session of the Parliament from being able to constitute itself, debate and, where appropriate, approve the budget project that was on the agenda of the session. In the order resolving the incident of annulment of proceedings, it is highlighted precisely "the relevance" that the content of these statements had "for the criminal classification of the facts", in the prosecution that the Criminal Chamber of the Supreme Court has made of the historical account provided by the instance statement.
Therefore, we are not in a case of legitimate exercise of a right, nor in the case of an excess of that exercise, since their conduct, as participants in that concentration, had an objective, the to "stop the Parliament", that is, to prevent the normal functioning of the Chamber and, furthermore, to do so when it was going to hold a plenary session in which one of the most important legislative initiatives of any political course was going to be debated, such as that of the budget bill of that Autonomous Community.
To do this, it was about putting obstacles to the access of the deputies to the interior of the Chamber. As the sentence highlights, the concentrated and the appellants were not there, among them, to show their rejection of certain budgetary initiatives that could mean cuts in social rights and public services, but to "cause" the Catalan Chamber to see itself "incapacitated[ a] for debate and political action.”
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Given this historical account, we must reiterate that one cannot speak of the legitimate exercise of a right and the concurrence of a cause of justification that would exonerate the appellants of the unlawful conduct committed; Nor is it possible to speak of an excess in the exercise of that right, from the point and time in which the objective of the concentration called was to paralyze the activity of the Chamber and that the budget project was not approved. To this end, all the actions carried out by the appellants, which are included in the proven facts and the context in which they occurred, tended to hinder and prevent the access of the deputies to the Chamber's headquarters.
Consequently, this first aspect of the plaintiffs' complaint must be dismissed, referring to the eventual disproportion of the penalties imposed for being in the legitimate exercise of fundamental rights or, at least, in a situation of excess in that exercise , which also prevents the appreciation that the criminal sentence could have generated a "discouraging effect" of the exercise of fundamental rights in the sanctioned conducts.
Rather, in the absence of the constitutional coverage provided by fundamental rights, the penalties imposed fulfill the purpose of prevention, general and special, which is a characteristic of the response of the rule of law to the commission of criminal acts.
7.3. The principle of proportionality of penalties:
7.3.1. Constitutional doctrine on the principle of proportionality of penalties.
Discarded the previous complaint, now proceeds the analysis of the second of the alleged in the accumulated lawsuits, which is referred, in this case, to the denounced disproportion between the sentences imposed on the appellants and the entity of their acts, taking into account, as they affirm, the lightness of the behaviors appreciated in the proven facts. To do this, we will begin by presenting, in a brief summary, the doctrine of this Court on the principle of proportionality of penalties.
a) The trial of proportionality of the sentence, which constitutes an essential element for the configuration of the criminal typology of criminal acts, was studied by the already distant STC 136/1999, of July 20, whose doctrine It is, however, fully topical because it was recently ratified by this Court [SSTC 91/2021, of April 22, FJ 11.5.1.3;
and 106/2021, of May 11, FJ 11, E) among others]. In summary, the criteria that define this doctrine are the following (STC 136/1999, FJ 23):
(i) It is the exclusive power of the legislator to configure "criminally protected assets, criminally reprehensible behaviors, the type and amount of criminal sanctions, and the proportion between the behaviors that it intends to avoid and the penalties with which try to get it." With the limits established by the Constitution, the legislator enjoys a wide margin of freedom "that derives from his constitutional position and, ultimately, from his specific democratic legitimacy."
(ii) "The proportional relationship that a typical criminal behavior must have with the sanction assigned to it will be the result of a complex trial of opportunity that does not imply a mere execution or application of the Constitution, and for which it must attend" to the "essential and direct purpose of protection to which the rule responds" and to "other legitimate purposes that may be pursued with the penalty", as well as "to the various ways in which it operates and that could be classified as its functions o Immediate purposes of the various ways in which the abstract injunction of the sentence and its application influence the behavior of the recipients of the norm - intimidation, elimination of private revenge, consolidation of general ethical convictions, reinforcement of the feeling of fidelity to the ordering, resocialization, etc.- and which are doctrinally classified under the denominations of general prevention and special prevention”.
(iii) These effects of the penalty will depend, in turn, "on factors such as the seriousness of the behavior that is intended to be deterred, the factual possibilities of its detection and punishment, and social perceptions regarding the adequacy between crime and grief." (iv) The trial under amparo, in protection of fundamental rights, “must therefore be very cautious. It should limit itself to verifying that the criminal norm does not produce "a patent useless waste of coercion that makes the norm arbitrary and that undermines the elementary principles of justice inherent to the dignity of the person and the Rule of Law" (STC 55/1996, 8th legal basis) or an 'arbitrary public activity that does not respect the dignity of the person' (STC 55/1996, 9th legal basis) and, with it, of the fundamental rights and freedoms of the same”.
(v) The penal reaction is proportionate “when the norm seeks the preservation of assets or interests that are not constitutionally proscribed or socially irrelevant, and when the penalty is instrumentally suitable for such pursuit. The penalty, moreover, will have to be necessary and, now in a strict sense, proportionate. And it will be "if the legal right protected by the questioned norm or, better, if the immediate and mediate purposes of its protection, are sufficiently relevant". In addition, “it must be investigated whether the measure was suitable and necessary to achieve the protection purposes that constitute the objective of the precept in question. And, finally, if the precept is disproportionate from the perspective of the comparison between the entity of the crime and the entity of the sentence”.
(vi) The criminal norm or criminal sanction included in the precept must be classified as "unnecessary" when "it is evident that an alternative means that is less restrictive of rights is evident for the equally effective achievement of the purposes desired by the legislator ". "And it will only be possible to classify the criminal norm or the penal sanction that it includes as strictly disproportionate 'when there is a patent and excessive or unreasonable imbalance between the sanction and the purpose of the norm based on constitutionally indisputable axiological guidelines and their concretion in the legislative activity itself.
7.3.2. Prosecution and dismissal.
a) The application of the criteria exposed to the amparo claims raised is aimed at analyzing whether the sentencing decision agreed upon in this case, insofar as it is deprivation of liberty, was done to protect a constitutionally legitimate purpose (which seems incontestable) and if, in addition, it represented a useful sacrifice, necessary and proportionate to the achievement of said purpose (art. 25.1 CE).
From the perspective of art. 25.1 of the Constitution, what is questioned in the accumulated resources is not the criminal norm, nor the penalty provided in the abstract for the type of art.
498 CP (three to five years in prison), but its judicial application to the specific case. In other words, the constitutional question raised in the appeals has nothing to do with the abstract legal provision contained in art. 498 CP, given that the legal rights that it protects are relevant enough to deserve criminal protection, but with the proportionality in the strict sense of the specific criminal response adopted in this case.
b) As we anticipate, the criminal law applied pursues a legitimate purpose, is not indeterminate and is provided for in the law in an accessible and predictable manner. There is no reasoned or reasonable doubt about the relevance and legitimacy of the purpose of the criminal type applied, since it is aimed at protecting the normal development and without coercion of representative parliamentary activity. In recent pronouncements whose content we must reiterate here (SSTC 19/2019, of February 12, FJ 5 and 45/2019, of March 27, FJ 6) this Court has highlighted the importance of the seat of Parliament as a space that guarantees that the deputies can exercise their representative function without disturbances; We have added there that the seat of Parliament “also fulfills a symbolic function, since it is the only place where the immaterial subject that is the people is present before the citizens as a unit of imputation and the centrality of this institution is evidenced; () is the venue where political pluralism is preferably expressed and political debate is made public”. To that extent, the legal right protected by the criminal law constitutes, without a doubt, an essential public interest.
On the other hand, the diction of art. 498 CP is accessible and predictable, since it expresses a clear mandate not to prevent a member of a Legislative Assembly of an Autonomous Community from attending its meetings, through force, violence, intimidation or serious threat, or not restrict the free expression of their opinions or cast your vote.
c) For this reason, our analysis will focus on the proportionality of the criminal sanction imposed, a judgment criteria that, with emphasis, has also been questioned by the appellants in their allegations, since they understand that the sentence imposed does not correspond , in terms of proportionality, with the lightness of the conduct that, with respect to each of them, is reflected in the account of proven facts of the sentence of the National Court, which is what the Supreme Court has taken into account to assess their participation in the events. In addition, they denounce that the same sentence has been imposed on all of them, without even their behavior reflected in that story having been identical.
Consequently, we must make a series of general considerations before addressing the prosecution of this complaint:
(i) In the first place, having dismissed the previous claim of the appellants, regarding the denounced violation of the principle of criminal legality and the imposition of a penalty for being in the legitimate exercise of fundamental rights, or, at least In a subsidiary way, in a case of excess in the exercise of those rights, the starting point of our analysis cannot be other than to understand that those conducts were carried out under the pretext of exercising fundamental rights that cannot serve cause of justification of the unlawful actions that the appellants may have carried out.
(ii) Secondly, that the trial of subsumption of the behaviors reflected in the account of proven facts within the crime of art. 498 CP, the concurrence of the elements of the type, the delimitation of its participants and the determination of the degree of individualized participation, as well as the penalty imposed on each of them is, in principle, a task that corresponds exclusively to the ordinary jurisdiction. , in this case to the Supreme Court, in its exclusive power to judge and enforce the judgment (art. 117.3 CE). In relation to these aspects, it is not for us to make a judgment on the constitutionality of the degree of participation of each of the appellants and on whether, based on that degree of participation, the penalty imposed on each of them has been proportionate to their degree of participation. .
Our judgment must be limited solely to assessing whether or not the reasoning offered by the Supreme Court ruling is arbitrary, manifestly unreasonable, can be branded as aberrational or is seen as contrary to the parameter of axiological reasonableness established by our doctrine.
(iii) Finally, the lawsuit does not question the constitutionality of art. 498 CP nor the penalty provided in the abstract. Nor does it invite the TC to consider an (internal) question of unconstitutionality. Therefore, respect for the proven facts prevents appreciating the concurrence of a legitimate exercise of the rights to freedom of expression, assembly or demonstration, which, in turn, does not allow appreciating the concurrence of a defense or an attenuation. , which would correspond, in any case, to the ordinary jurisdiction. As recalled in the paper, the facts cannot be, at the same time, the exercise of a right and criminal conduct.
On the basis of the previous general considerations we must now carry out the analysis of the complaint raised. Thus, we can notice that:
(i) The Court of Appeal rules out the authorship for this crime "of all those with respect to which the National High Court has only considered their presence at the scene of the events proven, without direct relation to the incidents that in the trial historical are described”. Therefore, it establishes a preliminary delimitation between the people who, being present at the concentration, their participation in the criminal acts was not proven, and those who were referred to in them.
(ii) In the description of the different elements of the type, sections F) and G) of FJ 5 of the judgment of the Supreme Court, determine, for the typical case prosecuted, the legal configuration of the crime of art. 498 CP, as a crime of tendency, this is as a criminal type that, for its consummation, does not require the production of the desired or expected result by the participants in the criminal act, but rather, by legislative decision, the criminal protection of the criminals is anticipated. legal assets protected, the mere accreditation of that purpose or objective being sufficient.
The use of the instruments of physical and mental violence that characterize the typical action is also verified; and, subsequently, based on the account of the proven facts, the sentence identifies the perpetrators of the criminal type among which it includes the five appellants, making, later on, a detailed and individualized list of the singular acts that, in the context of “coercive climate” and in the “intimidating atmosphere described in the proven fact”, carried out each one of the amparo applicants, with the same purpose in all of them of trying to “paralyze the parliamentary activities that provided for the approval of budgetary restriction measures of public spending”.
(iii) Similarly, the judgment of the Supreme Court has held the perpetrators of the crime of art.
498 CP to the five appellants. Regarding the assessment of the specific conduct of each of the appellants, the typical description included in art. CP 498 places us before what the doctrine calls "collective types." Sometimes, the legislator uses expressions that cover both a single prohibited action and several of the same tenor. In this way, with only one of them the crime is already perfected, so that its repetition or the concurrence of several active subjects does not imply another crime/s to be added. Therefore, in this case, it is not appropriate to make distinctions regarding the greater or lesser incidence of individual participation. The action of each one of them contributes to the commission of the act, because with their coercive conduct exercised in a general context of environmental intimidation, they causally contribute to the performance of the typical conduct. The sentence highlights that the now appellants acted under common agreement and with the same objective, to prevent the deputies from entering the Parliament headquarters so that the Chamber could not carry out its legislative activity normally.
In any case, the lack of a specific individualization of the participation of each one of the appellants can be considered innocuous from the perspective of the proportionality of the sentence, since the minimum sentence has been imposed on all of them, that is, the three years in prison.
(iv) As regards the intrinsic severity of the three-year prison sentence imposed on each of them, it is the minimum sentence and corresponds to the relevance of the protected legal right to which we have made mention above. It must not be forgotten that parliamentary venues “have a double importance that makes them worthy of legal protection. On the one hand, they house the effective development of representative functions through the functioning of the legislative body in its different forms and compositions. On the other hand, their character of institutional representation of the popular will is inherent to them, even when they are inactive, so that they constitute a symbol of the highest constitutional value” [STC 172/2020, of November 19, FJ 6 C .c)].
The type of the art. 498 CP protects a set of legal assets of special significance and relevance for the constitutional architecture of the democratic rule of law and for the system of parliamentary democracy designed by the 1978 Constitution. Hence, the custodial sentence provided for this crime takes into account abstract a certain severity, between three and five years, than in the catalog of penalties of art. CP 33.3 reaches the condition of less serious penalty, with an intermediate punitive charge. The sentence has considered the five appellants as perpetrators of this crime and has imposed the minimum sentence provided for them, therefore, from the strict perspective of the reaction of the punitive power of the State, the penal response applied by the sentence of the Supreme Court to the crime committed has been the minimum.
(v) Lastly, from the perspective of the trial and external control of constitutionality that is the responsibility of this Court, we must reach the conclusion that the judgment of the Supreme Court has offered an argumentation that, in a reasonable manner, has made a trial of legal classification of the facts, has appreciated the concurrence in the five appellants of a common agreement to act in pursuit of the same objective, that of trying to prevent access to the parliamentary compound of the deputies that each of them found; has assumed the account of proven facts provided by the trial judgment and, based on that historical account, has individualized the acts of force and intimidation that, within the context also described in the historical account, carried out by each of the recurring, being reasoned and reasonable that the individual analysis of those behaviors is carried out in the aforementioned collective context.
For all these reasons, it is also reasonable that the penalty to be imposed is the same, taking into account that all of them have been legally qualified with the same participatory category as perpetrators of that crime, also being the minimum penalty provided for by criminal law for its commission.
Consequently, we must dismiss this last complaint linked to the principle of criminal legality and the proportionality of sentences.
8. Right to a process with all the guarantees and right of defense.
A) Approach.
a) Along with the substantive claims already analyzed, the plaintiffs allege another violation of a procedural nature. They denounce in their lawsuits that the sentencing decision has ignored their rights to a process with all the guarantees and the presumption of innocence (art. 24.2 EC), in relation to the right to "due and fair proceedings" (art. 6 ECHR ).
In both joined appeals, it is alleged that the Supreme Court has unduly extended its scope of knowledge to the review of the imputed facts when assessing the concurrence of the subjective element of the crime against the institutions of the State for which they have been convicted. They understand that, by concluding that the purpose of all the participants in the demonstration was to prevent the normal development of the parliamentary activity called for June 15, 2011, they have undeclaredly modified the account of proven facts of the instance, which describes a general context contrary to that purpose. They add that, in this way, an alternative factual trial has been carried out that assesses the personal evidence provided, particularly the witness statements of the two spokespersons of the social organizations calling for the protest.
Such a way of proceeding, they conclude, violates the guarantees established by the European Court of Human Rights and by the Constitutional Court within the framework of the right to a fair trial, since the obligatory public debate that has not existed in the appeal process , with the participation of the defendants, would have allowed them to personally answer the questions of fact and law that, in relation to their guilt and innocence, supported the appeals that they challenged. As can be inferred from this reasoning, the reference to the right to the presumption of innocence is not autonomous, but a simple argumentative nominal reinforcement of the reported injury.
b) The Public Prosecutor supports this claim for amparo. It considers that the Court of Appeal, contrary to the lower court ruling, has assessed the factual elements that allow it to infer the purpose that guided the actions of the plaintiffs. While the first instance sentence appreciates the purpose of the protest as predominant, the Criminal Chamber of the Supreme Court affirms the guilt of the appellants after appreciating that both their intention and the purpose of the demonstration were none other than to alter or impede the normal functioning of Parliament. For the prosecutor, said pronouncement exceeds the limits of the possibility of review in cassation of an acquittal decision for not having given a personal hearing to the acquitted defendants, which is why she requests the annulment of the contested decisions issued by the Supreme Court.
B) Constitutional doctrine.
a) The recent STC 18/2021, of February 15, makes a detailed exposition of the doctrine of this Court on "the requirements that a criminal sentence or aggravation must meet in second or subsequent instances to respect the right to a process with all the guarantees. In the recent STC 35/2020, of February 25, FJ 2, the Plenary of this Court recalls having summarized it in SSTC 88/2013, of April 11, FFJJ 7 to 9; 146/2017, of December 14, FFJJ 6 and 7, and 1/2020, of January 14, FJ 4. All of them highlight that the issue has been the subject of careful and extensive analysis in numerous resolutions - inspired by the pronouncements of the European Court of Human Rights - which start from STC 167/2002, of December 18, FFJJ 9 to 11. Then, this Court in full declared that respect for the principles of publicity, immediacy and contradiction, that are part of the content of the right to a process with all the guarantees (art. 24.2 CE), inexorably imposes that any sentence based on personal evidence be based on an evidentiary activity that the judicial body has examined directly and personally in a public debate in respecting the possibility of contradiction. This doctrine was complemented by STC 184/2009, of September 7, FJ 3, in which we point out that also in these cases, the requirement of the defendant's personal hearing must also be met as a specific guarantee linked to the right of defense ( article 24.2 CE)” (FJ 3).
The indicated STC 18/2021 summarizes, in this sense, the most relevant aspects, setting the margins of the review: “(i) It violates the right to a process with all the guarantees (art.
24.2 CE) that a judicial body, hearing through an appeal, condemns the person who had been acquitted in the instance or worsens their situation based on a new assessment of personal evidence or a reconsideration of the estimated facts proven to establish their guilt, provided that a public hearing has not been held in which the necessary evidentiary activity is carried out with the guarantees of publicity, immediacy and contradiction that are their own and the accused is given the possibility of defending himself by presenting his personal testimony.
(ii) This constitutional complaint cannot be made when the conviction or worsening of the situation, despite the fact that no public hearing has been held, originates from a strictly legal dispute between the courts of first and second instance in which the guarantees of publicity, immediacy and contradiction are not involved and for whose resolution it is not necessary to hear the accused. The hearing could have no impact on the decision that could be adopted and the party's position can be understood to be duly guaranteed by the presence of his lawyer” (FJ 3).
Descending to more specific planes of the review and taking into account that the main object of the complaint formulated by the appellants in the present case is located in the subjective element of unfairness, characteristic of the criminal offense of art. 498 CP, since those understand that the Court of Appeal, even without having modified the historical account of the judgment of the National Court, has made a new assessment of the personal evidence, without having given audience to the appellants in the oral hearing. of the appeal that was held in the Supreme Court, STC 35/2020, of February 25, has also declared that "[i]n relation to the question related to the subsumption of the subjective elements of the crime, the Court has affirmed that ' The European Court of Human Rights has made it clear that all the judgment of inference on the subjective element of the crime, the intention to commit a crime, is a matter of fact that when it is articulated from the data extracted from personal evidence, it requires the holding of a hearing when it comes to revoking an acquittal or worsening the sentence. This jurisprudence is applicable even if the control is made in cassation and the Criminal Chamber of the Supreme Court argues that it cannot hold a hearing, which has meant that precisely resolutions of the Supreme Court, and of this Constitutional Court that confirmed them, have been declared contrary to art. 6.1 of the European Convention for the protection of human rights and fundamental freedoms, for example, in the SSTEDH of November 22, 2011, matter Lacadena Calero c. Spain; March 20, 2012, Serrano Contreras v. Spain; o November 27, 2012, case of Vilanova Goterris and Llop García v. Spain. These same resolutions indicate that the right to immediacy supposes a hearing with practice of that personal evidence. Thus it is stated that 'it is not possible to proceed to legally assess the actions of the accused without first trying to prove the reality of said actions, which necessarily implies verification of the intention of the accused in relation to the facts that are imputed to him' (SSTEDH November 22, 2011, Lacadena Calero v. Spain matter, § 47; or March 20, 2012, Serrano Contreras v. Spain matter, § 38); that 'the issues that must be examined by the Supreme Court need the direct assessment of the testimony of the accused or other witnesses' (ECHR, March 20, 2012, Serrano Contreras v. Spain matter, § 40); or that 'the defendant was not personally heard on a matter of fact that was decisive for the assessment of his credibility' (SECHR March 20, 2012, Serrano Contreras v. Spain matter; § 41; or November 27, 2012, Vilanova Goterris y Llop matter García v. Spain, § 35)” (SSTC 172/2016, of October 17, FJ 8, and 1/2020, of February 14, FJ 4).
Finally, constitutional jurisprudence has also highlighted that no constitutional complaint can be made for the fact that the sentence pronounced in the second instance or the aggravation of the situation, despite the fact that no public hearing has been held, brings cause of a dispute about the subsumption of the subjective elements of the type when said dispute is based on erroneous legal considerations about its necessary concurrence, that is, if it is about errors in the legal qualification (STC 125/2017, of November 13, FJ 6 )” (FJ 2).
Precisely, in this last thesis, the most recent STC 18/2021, cited above, has insisted when, after collecting the general doctrine previously exposed, it has indicated that "[n]evertheless, the prosecution related to the concurrence of the subjective fact of the strict legal classification that must be assigned to that fact once its existence is proven. There is no constitutional objection to the sentence or the aggravation under appeal, despite the fact that no public hearing has been held, as long as it brings cause of erroneous legal considerations about its necessary concurrence, that is, if it is about the correction of subsumption errors based on the factual elements reflected in the contested resolution (SSTC 125/2017, FJ 6, 35/2020, FJ 2). In such a case, the debate developed in the reviewing jurisdiction does not concern questions of fact and law, where it would be necessary to hold a public hearing with the participation of the accused, but rather purely legal aspects, the object of the essential contradiction for the right of defense. through the intervention of his lawyer (STEHR of October 22, 2013, Naranjo Acevedo v. Spain case, § 17 to 19, and February 23, 2016, Pérez Martínez v. Spain case, § 37, 39 and 40 )” (FJ 3).
C) Prosecution: Dismissal.
a) The doctrine of this Court, which had its origin in the already old STC 167/2002, of September 18, FJ 9 and which has been repeatedly and successively enriched with different evaluative elements, due to specific circumstances concurrent in the assumptions raised, reveals as an important aspect of the prosecution that of its profound casuism and that of its necessary adjustment to those specific circumstances.
Certainly, the general criteria of the doctrine of this Tribunal have remained unchanged since then, having also been strengthened with important clarifications, different qualifications or even complementary clarifications, which have contributed to reinforce the validity and effectiveness of the guarantee of immediacy as a manifestation and essential support of the right to a trial with all the guarantees within, in this case, the scope of criminal proceedings. This doctrine, on the other hand, has been assumed, as it could not be otherwise (art. 5.1 LOPJ), by the Courts and Tribunals in the exercise of their jurisdictional functions, which does not prevent, in some cases, from being reproduce complaints for violation of this fundamental right in certain processes, as a consequence of the application of said doctrine to the specific case.
Due to the peculiarities of the appeal before the Criminal Chamber of the Supreme Court derived from the procedural nature of that means of challenge, the prosecution by this Constitutional Court of the complaints raised by appellants of amparo has had particular significance. , in relation to the validity of the principle of immediacy and the effectiveness of the right to a process with all the guarantees, when the object of its challenge has been the sentences handed down by that High Court, which have been revoking the previously acquittals of the courts inferiors pronounced in the instance (STC 172/2016, of October 17, FJ 8). The execution and transfer to forensic practice of the rulings issued by the Constitutional Court, estimating the violation of the fundamental right, has simultaneously raised notable problems in its application (STC 146/2017, of December 14).
Consequently, the application of our general doctrine as, also, that of the cases in which the principle of immediacy does not operate because they are review trials of a legal nature, in which the questions of fact raised are not affected, must adjust to the circumstances of the specific case submitted to its prosecution and make a specific assessment of what was done by the higher court (appeal or cassation), in relation to the pronouncement issued by the lower judicial body.
Singular difficulty also involves delimiting the application of the guarantee of immediacy and determining whether the review trial of the High Court has entailed a new assessment of the evidence, for which the prior hearing of the defendant with holding should have been required. of view, or, on the contrary, it has dealt with a legal issue, in which case, it would not have required a view. Those cases in which the object of the controversial question lies in the appreciation of the subjective elements of the criminal type, particularly in those crimes in which, due to their legal configuration, they only admit intentional guilt, an added difficulty arises that requires the maximum precision to determine on a case-by-case basis whether or not the contested resolution has violated the aforementioned guarantee of immediacy.
For this reason, the solutions offered by this Court have been contrary, depending on the constitutional problems raised in each case. On occasions, the pronouncement of this Court has been an estimate of the violations of the fundamental right denounced (SSTC 172/2016, of October 17; 125/2017, of November 13; 146/2017, of December 14;
149/2019, of November 25; or 172/2019, of December 16), while in other cases it has been dismissed (SSTC 1/2020, of January 14; 35/2020, of February 25, or 18/2021, of February).
b) Based on the above general considerations, we must now analyze the factual assumption referred to in this appeal.
The sentence of March 17, 2015 of the Supreme Court now contested, annuls and annuls the previous acquittal sentence of July 7, 2014 of the National Court, based on the partial estimation of a ground of appeal, promoted by the Prosecutor's Office under the provisions of art. 849.1.º LECrim., which denounced a violation of the law due to a legal error based on, in its opinion, improper non-application, among others, of art. 498 PC. An error that the prosecutor made him extend to a possible incorrect application of the cause of justification provided for in art. 20.7 CP, insofar as the court of instance had understood the concurrence of the legitimate exercise of fundamental rights, specifically the freedoms of assembly, demonstration and expression, which would have excluded the illegality of the conduct and, consequently, the exemption from liability criminal of the actors
Based on the historical account of the first instance judgment and, without modifying or altering it, the Supreme Court makes a double judgment of those facts:
(i) In the first place, a judgment to weigh the fundamental rights in conflict as a consequence of the facts prosecuted. According to the High Court, the judgment of the National High Court had only taken into account the fundamental rights invoked by the appellants, that is, the freedoms of assembly, demonstration and expression, in order, on the basis of its recognition, to limit its prosecution work. to affirm that the action of the then defendants was based on the exercise of those rights that they had invoked and, therefore, constitutionally protected by arts. 20.1 a) and 21 EC. He had supported his assessment that the call for the rally before the headquarters of the Parliament of Catalonia was previously communicated to the corresponding government authority, which had not objected to its holding, as well as the statements of two people promoting the call that, Despite the motto ''Aturem el Parlament, no deixarem que aprovin retallades" (Let's stop the Parliament, we will not allow them to approve cuts) that was to preside over the concentration, the meaning of the collective act had two precise messages, that of rejection of the financial cuts provided for in the budget bill that was going to be debated and possibly approved in parliament, and the claim that the deputies who made those decisions no longer represented them.
In the opinion of the Court of Appeal, the lower court judgment incurred "in a patent error when resolving the conflict that arose", since it understands that there was "a conspicuous blurring" regarding the constitutional values at stake. The Supreme Court considers that the preceding ruling should have carried out a weighting trial in which, in addition to the fundamental rights invoked by the appellants, the right to political participation in art. 23 SC, in the double dimension analyzed above, of the deputies of the Parliament of Catalonia, who were the object of the acts described in the factum of the lower court ruling.
(ii) A trial, according to the appeal judgment, of subsumption of the subjective element of the criminal type related to the purpose pursued by the defendants, because, contrary to what was said by that one, the true objective of the now plaintiffs of amparo, who attended that call was the diction of the motto that had led them to stand in front of the parliamentary headquarters, that is, that of "aturem el Parlament" / stop Parliament and for this to prevent deputies from accessing to the Chamber and start the plenary session of the budget debate.
c) Of the two evaluative judgments carried out by the judgment of the Supreme Court, it is the second of those mentioned that is now of interest to resolve the appellants' complaint, since, on the one hand, it is in this one in the one that located the foundation of his denounced violation of the fundamental right to process with all the guarantees, tied to the right of defense and the presumption of innocence; and, on the other hand, we have already resolved the complaints specifically addressed by the amparo claims against the first of the prosecution acts (balancing trial between fundamental rights) carried out by the appeal judgment.
Well, now we can anticipate that we are not facing a new evaluation of the evidence, but rather an act of subsumption of the subjective element of the criminal offense of art. 498 CP, carried out by the Superior Court based on its own account of the proven facts of the sentence of the lower judicial body. The former can review the logical coherence between the historical account and the legal qualification of the facts, so that, if from the account itself the concurrence of a subjective element of the type that has not been appreciated by the body a quo is inferred, the sentence of instance can and should be reviewed. The appreciation of the subjective element thus becomes a legal issue.
In effect, unlike other cases that this Court has had the opportunity to analyze, in which the Appeals Chamber or, as the case may be, the Cassation Chamber, deduced the subjective element of the type, without modifying the account of the facts evidence of the judgment of the lower body, but extracting from that account the subjective element of the type or guilt of the accused without the said account expressly stating such bias or guilt of the appellants, in the present case it occurs, however , a particular situation and it is that that tendential spirit that configures the subjective element of the type of art. CP 498 is also made explicit in the verdict's own account of proven facts.
This reasoning is well illustrated by the quote from STC 125/2017, of November 13, in which this Court found the violation of the right to a process with all the guarantees for violation of the principle of immediacy because the judicial body of Cassation revoked the initial acquittal and sentenced for the crime of reckless documentary falsification, affirming the defendant's guilt (not even outlined in the account of proven facts), based on some objective elements of the fallacious nature of the document (which were expressed in the document). account of proven facts). What the Supreme Court had done in this case, and hence the infringement of the principle of immediacy, was that it linked the account of proven facts with other personal evidence (witnesses), in such a way that it inferred reckless guilt. of the crime of documentary falsification incorporating an evaluative element, that of the accused's guilt, which was not expressed in the account of proven facts.
The same thing happens with the case of fact analyzed in STC 149/2019, of November 25, also with an affirmative ruling of this Court and of appreciated violation of the fundamental right of reference. As in the previous case, in this case the Appeals Chamber, without being explicit in the account of the proven facts of the judgment of the body a quo the criminal tendency of the defendant, revoked the initial acquittal and replaced it with another condemnatory , doing so from a new assessment of the evidence, documentary (a video) and personal.
Well, unlike the previous ones, in the present case the subjective element of the criminal type, this is the intention or objective of “preventing” the parliamentarians from entering the parliamentary headquarters for the celebration of a plenary session, through the use of physical or intimidating force, is expressly included in the account of proven facts of the court ruling, in such a way that the appeals body has not had the need to make a new assessment of the evidence, but simply has limited itself to pointing out that the literal tenor of what is expressed therein in the account of proven facts expressly identifies the concurrence of the subjective element of the unjust required by art. 498 PC. The task, then, of the Supreme Court in this case has simply consisted of gathering that tendential spirit expressed in the proven facts and understanding that it covers the typical requirement of the subjective element of this crime.
The appeal judgment has nothing to add or deduct. The motto of the call, already repeated repeatedly, "Aturem el Parlament", which includes the account of the proven facts of the court ruling, is in itself eloquent enough and reflects the meaning of the call to those who will gather before the headquarters of the Parliament that it is not necessary to make any evaluative judgement, ruled out as the Supreme Court has done in its previous trial to ponder the pretexted invocation of the exercise of the fundamental rights of assembly, demonstration and expression by the appellants. In view of the foregoing and as a complement to the foregoing, the second part of the motto of the call further strengthens that trending spirit that the objective of the accused was to prevent Parliament from approving the budget project. The terms “no deixarem que aprovin retallades”/we will not allow cuts to be approved”, do not require any probative evaluation, but rather, due to their own grammatical content, already reflect this tendential spirit.
Therefore, unlike other cases in which the judicial body that resolved the appeal, had to deduce the subjective element of the type or guilt of the defendants from the account of proven facts, adding to this its own assessment of the evidence carried out. , in the present case that tendential spirit that configures the subjective element of the typical unfair appears expressly reflected in the proven facts themselves, in such a way that the Supreme Court has not had to make any assessment, but simply an act of legal qualification consisting of subsuming all the elements, objective and subjective, of the type of art. CP 498, reflected in the proven facts, and understand that, as soon as all of them have been fulfilled, the appellants are authors of art. 498 CP, for which reason it has finally reached a reversal of the lower court ruling.
d) Notwithstanding the foregoing, this Tribunal, in its work of maximizing the analysis of the complaint formulated by the appellants, cannot stop its examination in what has been affirmed up to now, but rather, in order to exhaust all possibilities of determining If the sentence of the Criminal Chamber of the Supreme Court finally carried out this task of subsuming the subjective element of the type based on the proven facts or, on the contrary, made a new assessment of the evidence practiced, it cannot be allowed to pass disregarding the very account of proven facts and, specifically, the reference to the fact that the call for the concentration with the slogan of the same had been communicated to the governmental authority, without any measure having been adopted by the latter; and to the fact that in the press conference held before the day of the events, the two spokespersons for the social movements that called them had declared that they did not intend to prevent the Parliament from functioning.
Based on this description, which appears in section 1 of the proven facts, this subsumption of the subjective element of the type "is not obscured", as indicated in the Supreme Court ruling, by the account of the facts quoted:
(i) In the first place, because a sufficiently long period of time elapses, five days between the holding of the press conference and that of the concentration (from June 10 to 15, 2011), that if it is not loses, at least the link between the wishes and intentions of the conveners manifested in that communicative act and what happened in subsequent days and as a result of the broadcast call itself can be blurred. In addition, the content of what was stated there did not deviate from the motto of the call, since those spokespersons spoke of "stopping the attack against social rights and public services that the budgetary measures that were going to be approved meant."
(ii) Secondly, the intensity of the terms of the slogan of the call "aturem el Parlament" was expressive enough to externalize an objective to be achieved with the concentration, which differed substantially from the initial intention that five days Before they could house the promoters of the call. Proof of this was the subsequent sequence of events that, described in sections 2 to 12 of the historical account, followed that motto, which correspond directly to the objective expressed in the motto itself.
(iii) In case there was any trace of doubt about the objective of the call, other terms completed the reason for the concentration; The initial motto was completed with the phrase “no deixarem que aprovin retallades”/we will not allow cuts to be approved”, which clarified the reasons why the Parliament was intended to “stop” it.
(iv) The prior communication of the call to the Governmental Authority and the fact that, as the proven facts indicate, it has not adopted any measure to regulate the correct course of the concentration, in no way attenuates the verification of the appreciated trend spirit in the motto of the same, since the question related to the possible action or inaction of the Governmental Authority that followed the communication received about the motto of the call and the concentration that was going to take place days later in front of the headquarters of the Parliament, does not at all affect how that collective action was to be carried out, since, in any case, it would be a matter affecting third parties and unrelated to the appellants, the only consequence to which it could have led is that, in its In any case, the possible inaction of the Government Authority would have contributed to facilitating the objective of that concentration, which was expressed in the motto of the call. However, the accreditation that the concentration was communicated days before to the competent Authority does not confer any constitutional legitimacy to the content of the message disseminated with that motto, whose objective, we must reiterate, was tried to be put into practice, among others, for the appellants.
Consequently, the complaint of the appellants regarding the alleged violation of the right to a trial with all the guarantees must also be dismissed. Likewise, it is appropriate to dismiss the claims of the right of defense and the presumption of innocence which, because they are associated with the previous one and have not offered the amparo claims an autonomous argument, should lead to the same dismissal result.
FAILURE
In view of all the foregoing, the Constitutional Court, by the authority conferred on it by the Constitution of the Spanish Nation, has decided to dismiss the amparo appeal filed by Mrs. Ángela Bergillos Alguacil, Mr. Carlos Munter Domec, Mr. Rubén Molina Marín Mr. Francisco José Cobos García and Mr. Jordi Raymond Parra, against the sentence of March 17, 2015 of the Criminal Chamber of the Supreme Court and against the subsequent Order of May 19, 2015, of the same Chamber.
Publish this Judgment in the “Official State Gazette”.
Given in Madrid, on June twenty-fourth, two thousand and twenty-one.
Dissenting particular opinion formulated by Judge Encarnación Roca Trías regarding the sentence handed down in the amparo appeals nos. 4037 and 4098 -2015.
In the exercise of the power granted to me by art. 90.2 of the Organic Law of the Constitutional Court, and with the greatest respect for the opinion of the majority, I express my discrepancy with the decision to dismiss the amparo appeals formulated. I believe, on the contrary, that they should have been estimated for violating the right to a process with all the guarantees (art. 24.2 CE) of the amparo applicants, since the review of the acquittal in cassation required having given them a prior hearing.
I refer to the constitutional and European doctrine set forth in the judgment from which I disagree. However, I want to highlight a specific paragraph of the Court of Justice of November 22, 2011, matter Lacadena Calero c. Spain, § 47: “In the opinion of the Court, the Supreme Court departed from the lower court ruling after having ruled on elements of fact and law that allowed it to determine the guilt of the accused. In this regard, it is obligatory to verify that, when the inference of a court has been related to subjective elements (as in this case the existence of eventual intent), it is not possible to proceed to the legal assessment of the defendant's actions without having previously dealt with to prove the reality of this action, which necessarily implies the verification of the intention of the defendant in relation to the facts that are imputed to him”.
For the judgment of the majority, in this case, “we are not faced with a new evaluation of the evidence, but with an act of subsumption of the subjective element of the criminal offense of art. 498 CP, carried out by the Superior Court based on the account of the proven facts of the sentence of the lower judicial body", in such a way that, "if from the account itself the concurrence of a subjective element of the type that has not been inferred appreciated by the body a quo, the judgment of instance can and should be reviewed. The appreciation of the subjective element thus becomes a legal issue” [FJ 8 C) c)]. There is, therefore, “a particular situation”, which is that “that tendential spirit that configures the subjective element of the type of art. CP 498 is also made explicit in the statement of proven facts of the judgment itself” [FJ 8 C) c)].
Most of the magistrates consider that the subjective element of the intention to prevent parliamentarians from entering the parliamentary headquarters to hold a plenary session was expressly included in the account of proven facts when detaching from the motto of the call: “Aturem el Parlament” (let's stop the Parliament), as well as other expressions or slogans such as “no deixarem que aprovin retallades” (we will not allow them to approve cuts).
However, this Court has said that “as long as the mental elements are inferred from the author's conduct, that is, from his external manifestation in a determined context, the appreciation of his concurrence not only expresses a factual evaluation usually needed of publicity, immediacy and contradiction, but, in any case, the defendant, who denies having committed the act with which he is accused, must be offered the possibility of being present in a public debate where he can defend his interests adversarially” (SSTC 125 /2017, of November 13, FJ 6, and 149/2019, of November 25, FJ 2). In my opinion, in line with the foregoing, the tendency of the amparo applicants cannot be deduced solely from the "grammatical content itself" [FJ 8 C) c)] of the motto of the call which, it must be taken into account, was authorized by the corresponding government authority. Although the intention to commit a crime was articulated on the basis of the data contained in the proven facts, he needed a public debate in which the defendants could have intervened.
As noted in the sentence to which this particular opinion is formulated, the doctrine of this Court reveals as an important aspect of the prosecution of complaints filed in relation to the application of the principle of immediacy and the effectiveness of the right to a process with all the guarantees, "that of its profound casuism and that of its necessary adjustment to those specific circumstances" [FJ 8 C) a)]. In this case, and regardless of the peculiarities of the criminal appeal, I consider that the circumstances of the case required a prior hearing of the defendants before sentencing them after having been acquitted in court, offering them the possibility of defending their interests adversarially. . I do not believe that it can be inferred, without making any evaluative judgment about the behavior of each one of them, what their intention really was, beyond verifying, in their case, that there was force, violence, intimidation or serious threat. Arguments such as that the statements made at a press conference by two spokespersons of the convening social movements, in which it was stated that they did not intend to prevent the functioning of the Parliament, were made in a sufficient period of time -five days before the concentration- as to blur the link between his intentions and what happened, or the intensity of the terms used in the call and in the sentences that completed them, do not allow, in my opinion, regardless of their sufficiency or insufficiency to infer the subjective element, assess the intent of the appellants without first having heard them, as required by our jurisprudence in line with that of the ECtHR.
Therefore, and for the reasons stated, I consider that the reported complaint of violation of the right to a trial with all the guarantees and the right to defense (art. 24.2 CE) should have been upheld to assess the appeal judgment, after the acquittal in the instance, the concurrence of the subjective element of the crime charged, that is, the intention of the defendants to alter or prevent the normal development of the parliamentary function, without the prior hearing of the convicted. Without giving them, therefore, the opportunity to present their personal version of their participation in the events. Said estimation made it unnecessary to know about the remaining complaints invoked that, in my opinion, should be resolved after their previous prosecution.
Particular opinion formulated by Judge Juan Antonio Xiol Ríos and Judge María Luisa Balaguer Callejón regarding the sentence pronounced in the accumulated appeals for amparo appeals nos. 4037-2015 and 4098-2015.
With the utmost respect to our colleagues in the Plenary Session, we express our discrepancy with the legal foundation and with the ruling of the sentence, which we consider should have been an estimate for violation of the rights to a process with all the guarantees and the presumption of innocence (art. 24.2 CE), since there has been a conviction in the second instance with revocation of a previous acquittal without giving the amparo applicants the opportunity to address the court that sentenced them; and, in any case, for violation of the right of assembly (art. 21 CE), since there has been a severe penal response to the exercise - even if it were exceeded - of this fundamental right, generating an unwanted discouragement effect.
1. The reasons why we consider that in this case there has been a violation of the rights to a process with all the guarantees and to the presumption of innocence (art. 24.2 CE), due to the sentence suffered in the appeal with annulment of the contested acquittal without having given the possibility to the amparo applicants to address the judicial body that sentenced them, respond to what we understand should have been a correct application of constitutional jurisprudence (thus, among the latter, SSTC 125/2017, of November 13; 36/2018 and 37/2018, of April 23; 59/2018, of June 4; 73/2019, of May 20; 88/2019, of July 1; 172 /2019, of December 16; 1/2020, of January 14) and of the ECHR, which has condemned Spain on successive occasions for this reason (thus, among the last, SSTEDH of March 8, 2016, Porcel Terribas case and others v. Spain;
of March 29, 2016, case of Gómez Olmeda v. Spain; of June 13, 2017, case of Atutxa Mendiola et al. c. Spain; of September 24, 2019, case of Camacho Camacho c. Spain;
of January 14, 2020, case of Pardo Campoy and Lozano Rodríguez v. Spain; or of September 8, 2020, case of Romero García v. Spain).
The exposition developed in the dissenting vote to this sentence by the magistrate Mr. Cándido Conde-Pumpido Tourón is sufficiently clarifying on this matter. We refer to his reasoning to express our discrepancy with the majority position on which the sentence for the dismissal of this specific invocation is based.
2. The previous violation, due to the annulment effect it would have had on the contested conviction and confirmatory of the acquittal agreed in the trial judgment, would have been sufficient to avoid having to analyze the invocation of the right of assembly (art. 21 EC). However, since the majority opinion on which the sentence is based has also dismissed the invocation of this right, it is necessary to make some considerations to expose our disagreement with this conclusion.
This need is all the more pressing because of what we appreciate is a worrying drift from constitutional jurisprudence that, in the treatment of criminal convictions for conduct that takes place in the material sphere of the rights to freedom of expression and assembly , seems to distance itself more and more from the jurisprudence of the ECHR, as we have already shown in successive individual opinions (thus, for example, SSTC 190/2020, of December 15; 192/2020, of December 17; 121/2021 and 122/2021, of June 2). The abusive recourse to the criminal justice system to the detriment of other less daunting responses to rights so linked to the very essence of a fully consolidated constitutional system is an objective impoverishment of the quality of our democracy. This seems to be confirmed by the successive sentences against Spain by the ECtHR in these matters (for example, SSTEDH of June 14, 2016, case Jiménez Losantos v. Spain; of March 13, 2018, case of Stern Taulats and Roura Capellera v. Spain; November 20, 2018, Toranzo Gómez v. Spain case; March 9, 2021, Benítez Moriana and Íñigo Fernández v. Spain case; June 22, 2021, Erkizia Almandoz v. Spain case).
We have recently made public our discrepancy, through separate opinions formulated to the SSTC 121/2021 and 122/2021, of June 2, regarding the analysis of the constitutionality of the interference that the criminal sanction supposes on the right of assembly of the conducts that, although in an extra-limited way, are developed within the material scope of this right. In coherence with the position held in those individual opinions, we now believe it necessary to reiterate some of the fundamental ideas that were established there before going into the explanation of the reasons why we consider that also in this specific case there has been a violation of the right of meeting of the persons requesting amparo.
I. The problems of constitutionality of the use of the criminal sanction against conducts developed in the material sphere of the exercise of fundamental rights.
3. Constitutional jurisprudence and that of the ECtHR have established that the constitutionality parameter to be applied in those cases in which the criminal justice system is used to sanction behaviors that take place in the material sphere of the exercise of fundamental rights has three sequences of control:
(i) Verification that the conduct subject to criminal sanction is carried out within the scope of protection of the fundamental right, which would already imply, due to the matter, the need to consider the affectation of the fundamental right concerned from of the criminal response.
(ii) Verification that the criminally sanctioned conduct, in response to the bundle of guarantees and possibilities of action or resistance granted by the fundamental right in question, has fully developed within the scope constitutionally protected by this right -that is, represents a legitimate exercise of the right -, which would imply immunity against any action and interference by state power, also that derived from the sanctioning power, based on the premise that a conduct cannot be at the same time valued as a act of exercising a fundamental right and as constituting an illegal act of any nature. In such a case, the punitive reaction must be considered an unjustified interference in the substantive fundamental right detrimental to it.
(iii) The verification that the criminal sanction of the conduct -even when said conduct cannot be considered as a legitimate exercise of the fundamental right in question because its limits of strict protection have been exceeded- supposes an interference in said right.
In these cases, although the conduct carried out cannot be considered covered by the fundamental right, since it is conduct that has its origin in the exercise of said right, its excessive exercise cannot be punished by resorting to criminal law, except in those cases where those in which the punishable conduct clearly has no connection with the area protected by the fundamental right. If this is not the case, the criminal reaction must be considered a disproportionate interference in the substantive fundamental right that is detrimental to it, incompatible with the discouragement effect that it would cause on the sanctioned subject and the community for the exercise of the fundamental right.
4. In the present case, our discrepancy with the majority position on which the judgment is based is based on the analysis of the breadth of the fundamental right concerned -in this case, the right of assembly (art. 21 CE)- and, especially, in the possibilities of interference in this right through the recourse to the penal sanction of the conducts that are developed in connection with its scope of protection and the concrete assessment made on the legitimacy -justification and proportionality- of the interference in this right in the form of the criminal sanction of three years in prison imposed on the persons requesting amparo, despite the eventual conflict that could arise with the right to political representation of the then deputies of the Parliament of Catalonia.
II. The possibilities of legitimate interference -justified and proportional- through recourse to the criminal justice system in the exercise of the right of assembly.
5. The majority position on which the sentence is based exposes the constitutional scope of protection of the right of assembly (art. 21 EC) affecting some of its essential aspects: (i) The basic nature of this right, which is constituted as a pillar fundamental of a democratic society; (ii) its configuration as a collective manifestation of freedom of expression at the service of the free exchange of ideas and demands in the context of a participatory democracy; (iii) a material scope of protection linked to the peaceful nature of the meeting; (iv) the possibility of limitations or proportionate interference in the exercise of the right justified by the prevalence of other interests or constitutional values; and (v) the need for the limitations to its exercise to be interpreted and applied restrictively.
However, in our opinion, it would have been necessary to delve into certain relevant aspects for the most correct prosecution of the case, on which the jurisprudence of the ECtHR has had a special impact, which has developed a broad and casuistic treatment of the cases of interference in this right. For these purposes, it is necessary to highlight certain ideas both in relation to the material scope of protection of this right itself and, especially, with respect to the legitimacy of its interference through recourse to the criminal justice system.
6. The material scope of protection of the right of assembly extends to any type of peaceful assembly or demonstration, in the sense that the organizers and participants do not have violent intentions, incite violence or imply the denial of the foundations of a democratic society. (thus, Court of Justice of July 24, 2012, case of Fáber v. Hungary, § 37;
October 15, 2015, Kudrevičius et al. v. Lithuania, § 92; of July 25, 2017, case of Annenkov et al. v. Russia, § 122; o November 15, 2018, Navalnyy v. Russia, § 98).
The ECHR has made special emphasis on the fact that what is relevant for the meeting to unfold within the material scope of protection of this right is not so much that acts of violence have occurred in the context of the meeting or demonstration, but that, even in the case of prohibited demonstrations, a violent intention is not accredited in its conveners or participants. Thus, it is established that a person does not cease to enjoy the right of peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the person in question remains peaceful in his own intentions or behavior (SECHR of June 12, 2014, Primov et al. v. Russia case, § 155; October 15, 2015, Kudrevičius et al. v. Lithuania case, § 94; July 25, 2017, Annenkov et al. v. Russia case, § 124; or of October 6, 2020, case of Laguna Guzmán v.
Spain, § 35). Likewise, that even if there is a real risk that a public demonstration is the cause of disturbances due to events beyond the control of the organizers, this demonstration, for this reason alone, does not fall outside the protection of this right, being enforceable that any restriction imposed meets the requirements of the legitimacy of the limitation of the right (thus, ECHR of June 18, 2013, case of Gün et al. v. Turkey, § 51;
May 15, 2014, Taranenko v. Russia, § 66; o October 15, 2015, Kudrevičius et al. v. case. Lithuania, § 94).
On the other hand, the jurisprudence of the ECtHR has also highlighted that the mere fact that there may be a criminally unlawful intention or conduct in the conveners or participants, as long as it is not violent, is not enough to exclude the scope of application of this fundamental right. Thus, for example, in the Court of Justice of May 15, 2014, Taranenko v. Russia, there was no objection based on the matter to consider that the right to peaceful assembly was concerned - and even to conclude that he was injured - an alleged occupation by protesters of the reception area of a public building, in which they caused damage, demanding a meeting with those responsible for the public administration and denouncing the breach of the Constitution; nor in the Court of Justice of July 25, 2017, case of Annenkov et al. v. Russia, referring to the permanent occupation of a private property in protest against its transfer to a private company and until the aspects related to the legality of its demolition are clarified; or in the Court of Justice of April 9, 2002, case Cisse v.
France, faced with the occupation for almost two months of a Catholic church. The same happened in the case of the ECHR of October 15, 2015, Kudrevičius et al. v. Lithuania, referring to the maintenance of the road traffic blockade of a public highway for three days.
In conclusion, in our opinion, it would have been necessary, based on art. 10.2 EC, in relation to the jurisprudence of the ECtHR, which would have materialized, within the parameter of constitutionality control related to the right of assembly with regard to its material scope of protection, in a more precise and nuanced way the following:
(i) The scope of material protection of this right covers any peaceful assembly or demonstration, understanding as such one that, regardless of the radical nature of the message and the claims made, the organizers and participants do not have violent intentions , incite violence or imply the denial of the foundations of a democratic society.
(ii) The peaceful nature of a meeting or demonstration is not denied (a) by the fact that acts of violence have occurred in its context, even if there was a real risk that due to the nature of the situation they could riots, if the person in question remains peaceful in his own intentions or behavior, (b) nor for the mere fact that there could be a criminally illegal intention or conduct in the conveners or participants, provided that it is not violent -occupations, small damage, obstruction of circulation, etc.- (c) nor that they take place in protest, opposition or contradiction with resolutions of the competent authorities, including meetings expressly prohibited.
7. The fact that a certain conduct or act falls within the material scope of the right of assembly does not logically imply that any restriction or interference is constitutionally prohibited. However, any restrictions or interference to which it is subject are subject to the strict requirements that legitimize this type of limitation:
regulatory provision, pursuit of a legitimate purpose, necessity and proportionality.
The interferences or restrictions that pose the greatest problems are, precisely, those that consist of the criminal repression of behaviors that take place in the material sphere of the right of assembly. These interferences, in principle, do not usually pose problems from the perspective of their regulatory provision -also protected by the right to penalizing legality- or the pursuit of a legitimate purpose -normally linked to the protection of public order or interests or values constitutionally protected by the corresponding penal type. However, they must be the object of very special and intense scrutiny from the perspective of their necessity and proportionality, since they represent the most serious interference in the right of assembly in view of the radical nature of the state response that affects other substantive fundamental rights -the who are subject to deprivation as a consequence of the sentence - and due to its special intensity on the right of assembly itself due to the devastating discouraging and disincentive effect that it has both on the penalized subject and on the community in the exercise of public freedom without which the very concept of constitutional democracy cannot be understood. This scrutiny must be stricter the more severe qualitatively and quantitatively the state's sanctioning response is.
The jurisprudence of the ECtHR is developed in this context of thought, by repeatedly establishing that within the term restrictions or interference applicable to the right of peaceful assembly are the punitive measures adopted as a consequence of the development of the meeting provided that (i) there is a clear and recognized link between the exercise of this right and the sanction imposed (thus, SSTEH of December 4, 2014, Navalnyy and Yashin v. Russia case, § 52; or January 14, 2020, Varoğlu Atik and others c, Turkey, § 29), which even extends to cases of acquittal derived from the mere fact of the existence of a criminal prosecution (SECHR of November 29, 2007, case of Balçık et al. v. Turkey, § 41; or of December 18, 2007, Nurettin Aldemir et al. v. Turkey case, §§ 34-35); and (ii) a legitimate objective of preserving public order and/or protecting the rights and freedoms of third parties is pursued (ECtHR of October 15, 2015, Kudrevičius et al. v. Lithuania case, § 140), which usually be present in those cases in which in the exercise of the right of assembly, even if it is carried out peacefully, there are intentions that do not form part of the essential core of this right, such as those behaviors that, to draw attention to the elements or ideas to vindicate, have the immediate objective of hindering and even preventing the normal development of the exercise of fundamental rights of third parties, such as, for example, the occupation of the reception area of a public building, preventing political and administrative work (CHR of 15 of May 2014, Taranenko v. Russia case), of a Catholic church, hindering the exercise of religious freedom (Court of April 9, 2002, Cisse v. France case), of facilities and office of an academic authority for prevent him from carrying out his work (ECHR of October 11, 2018, Tuskia et al. v. Georgia) or the blocking of road traffic (CtHR of October 15, 2015, case Kudrevičius et al. v. Lithuania).
Similarly, the jurisprudence of the ECtHR has stressed that it is not enough that the sanction imposed pursue a legitimate purpose, but that it is also required that it be necessary in a democratic society, which implies that there is a proportionality of this response with the legitimate aim pursued, in the sense that the presence of the legitimizing purposes of this punitive intervention, its need for the protection of the interests and values that are intended to be protected, and, on the other, the sacrifice that all this implies of the right of assembly (SECHR of October 15, 2015, case Kudrevičius et al. v. Lithuania, § 144; or of November 15, 2018, case Navalnny v. Russia, § 128).
In the same way, the jurisprudence of the ECHR has placed special emphasis on the fact that any interference in the form of intervention of the penal system or any punitive response has a deterrent effect on those who are affected by these restrictions and on the people who could have interest in exercising this right in the future -either organizing or participating in similar meetings-, with the impoverishment of an open public debate that this entails (ECHR of November 29, 2007, case of Balçık et al. v. Turkey, § 41).
Lastly, the jurisprudence of the ECHR has also established that the nature and severity of the sanctions imposed are factors that must be taken into account when evaluating the proportionality of the interference or restriction, emphasizing that (i) a peaceful demonstration does not should, in principle, be subject to the threat of a criminal sanction and particularly a custodial sentence and (ii) sanctions of a criminal nature require a particular justification and must be subject to a particularly careful examination (SECHR of October 15, 2015, Kudrevičius et al. v. Lithuania case, § 146 or November 15, 2018, Navalnny v. Russia case, § 128). In this sense, the ECHR has also shown that the imposition of long prison sentences can be considered disproportionate in cases of unarmed confrontations with the police or situations such as throwing stones or other objects without causing serious injuries (SECHR 19 January 2016, Gülcü v. Turkey case, § 115;
October 4, 2016, Yaroslav Belousov v. Russia, §§ 177 to 180; or of January 30, 2018, case Barabanov v. Russia, §§ 74-75).
In conclusion, in our opinion, it would have been necessary, based on art. 10.2 EC, in relation to the jurisprudence of the ECHR, which would have materialized, within the parameter of constitutionality control related to the right of assembly with regard to the trial of proportionality of the measures of interference consisting of criminal sanctions, in a more precise way and qualified the following:
(i) The criminal sanction as a consequence of calling or participating in a peaceful assembly is an interference in the right of peaceful assembly therefore, in addition to being a legally provided measure, it must (a) pursue a legitimate objective preservation of public order and/or protection of the rights and freedoms of third parties; and (b) be necessary and proportionate to the sacrifice that it implies both for the right affected by the content of the sanction imposed and for the right of assembly itself due to the discouragement effect that it can generate on its exercise, requiring a justification and legitimacy analysis. especially intense.
(ii) The criminal sanction consisting of long prison terms for calling or participating in peaceful assemblies in which there may be unarmed confrontations with law enforcement or other incidents such as throwing objects without causing serious injuries should be considered, In principle, disproportionate.
III. The application of the parameter of constitutionality of the right of assembly to the conduct for which the amparo applicants were sentenced to three years in prison and disqualification.
8. We consider that a correct interpretation of the right of assembly, in line with that made by the jurisprudence of the court and the ECtHR, should have determined that it be established that the conduct of the amparo applicants fell within the material scope of protection of the right of assembly peaceful.
It does not seem that the fact that the conduct for which the amparo applicants were finally sentenced could be reasonably disputed took place in the context and closely linked to the material sphere of protection of the right of peaceful assembly, for the following reasons:
(i) The concentration in which the conducts subject to condemnation occur, in the terms set forth in the statement of proven facts, was duly communicated by the organizing organizations to the competent authority, which did not consider it necessary to adopt any measure special in relation to the terms of the call -date, time or place-, which was publicized by various media and the subject of a press conference in which the news and public explanation of its objectives was given. Therefore, it is a case of exercise of the right of assembly in which, for its call, strict compliance was given to the requirements set forth in Organic Law 9/1983, of July 15, regulating the right of assembly.
(ii) The call, in the terms also set forth in the statement of proven facts that gave rise to the convictions, had as its object a rally before the Parliament of Catalonia on the occasion of the approval of the budgets of said autonomous community in protest against the alleged reduction in social spending. The slogan of the mobilization was "Aturem el Parlament, no deixarem que aprovin retallades" (Let's stop Parliament, we will not allow them to approve cuts). prevent the functioning of Parliament but to stop the attack against social rights and public services that meant the budgetary measures that were going to be approved.Therefore, it is a case in which it is also conclusive that the meeting has an objective and claims of peaceful development.
(iii) In the specific development of the concentration there were certain situations of obstruction of the passage of the deputies to the headquarters of Parliament, they were yelled at and rebuked and liquids or other substances were spilled on the clothes of the deputies and throwing non-dangerous objects at one of the cars that tried to access the venue. This situation occurs, as the account of proven facts that gives rise to the convictions also acknowledges, in a context in which, by decision of the public authority itself, of the various accesses to parliamentary headquarters, only one of the entrances is left free. doors for deputies to access and "at no time was a perimeter delimited or a police cordon erected to guarantee transit on that road."
The participation of amparo applicants in specific and specific acts of obstruction, which will be specified later, are what lead to their criminal sentence of three years in prison. Therefore, although it has been proven that there were sporadic acts of singular pressure on certain deputies by the concentrations, this does not prevent us from considering that the concentration had a peaceful nature from its origin and development in the sense affirmed by the jurisprudence of the ECtHR.
In this regard, it is necessary to clarify some of the considerations that are made both in the contested judgment and by the majority position from which it seems to be considered that the character is excluded, a priori peaceful concentration. We are referring to the statement that the motto of the convocation itself, by referring to stopping Parliament, since its grammatical meaning is to stop and impede the normal development of the parliamentary function, evidenced that its objective was not to express disagreement with restrictive budgetary policies by rallying near Parliament or serving as a vehicle to proclaim collective outrage at such policies; but rather "causing the body of political representation of the Catalan people to be incapacitated for debate and political action by forming the majorities that follow the exercise of the right to vote", which means "attacking the very roots of the democratic system. (). Stripping the body that expresses the popular will of any possibility of normative creation”.
We cannot share an appreciation of this nature. (a) It is contradictory to other affirmations recognized in the very statement of proven facts that led to the sentences, which deny that purpose, and above all with the proven fact that, at least as regards the persons requesting amparo , his conduct was in no way obstructive of the access of the deputies to the parliamentary headquarters, but, as will be detailed later, simply recriminatory of his eventual support for the budgets. (b) It starts from a simplistic grammatical analysis that ignores the hyperbolic, exaggerated and excessive language typical of the slogans and slogans used in the exercise of the right of assembly. (c) In addition, it implies deep censorship for the very government authority to which the concentration was communicated. Ultimately, if both the contested ruling and the majority position on which the ruling is based, affirm that the very motto of the call, which was already known previously by the authority to which the holding of the concentration should be communicated , objectively revealed its criminal nature, confronted with art. CP 498, this statement means attributing a manifest breach of the provisions of art. 5.a) of the aforementioned LO 9/1983, which establishes that the government authority will suspend the meetings “when they are considered illegal in accordance with the Criminal Laws”. (d) On the other hand, it does not seem constitutionally correct to convey what could be the intentions of the conveners, who are the ones who determine the motto of the summons to which the conviction is given so much importance and the majority position on which the sentence is based , to the convicted persons who, at least in view of the statement of proven facts, were mere participants in the concentration and not its conveners.
9. Based on the foregoing, we consider that the central problem of the control of the constitutionality of the judicial decision to impose a sentence of three years in prison and disqualification on the applicants for amparo for the conduct they carried out as participants in the called concentration is to determine whether that judicial decision involved a necessary and proportionate interference in their right to assembly to achieve the legitimate objective of preserving prevailing constitutional values, such as, in this case, the right to political participation of the deputies of the Parliament of Catalonia and the normal functioning of that institution.
For these purposes, as we stated in the deliberation, we consider that, in the circumstances of the case, the recourse to the criminal justice system itself to impose such a serious sanction on the persons requesting amparo is disproportionate and injurious to the right meeting due to the discouragement effect that may imply for the exercise of this right. The reasons that lead us to support this conclusion are the following:
(i) The consideration of the right of assembly as one of the essential freedoms of democracy, due to its connection with the guarantee of ensuring a forum for public debate and the open expression of protest even in relation to issues that may make them uncomfortable or disturb power, acquires its maximum dimension in relation to the actions of social groups and associations, since, as constitutional jurisprudence has highlighted, "its configuration as an expression of the participatory democratic principle acquires greater relevance, if possible, since this right is In practice, for many social groups, 'one of the few means available to publicly express their ideas and demands'” (STC 172/2020, of November 19, FJ 6). In the present case, the amparo applicants had the exercise of the right of assembly as one of the instruments for shaping the collective opinion regarding a matter of collective interest: the approval of the regional budgets. Therefore, if in general any limitation to the right of assembly must be subject to a restrictive interpretation, in the convicted persons the aforementioned circumstances concur that should have led to special scrutiny regarding the singular affectation that their criminal repression could generate in the fundamental right of assembly.
(ii) The specific behaviors carried out by each one of the amparo applicants that in the contested resolution have been considered deserving of a criminal sanction of three years in prison as allegedly necessary in a democratic society have been, according to the statement of proven facts of the conviction, the following:
(a) The petitioner for amparo, Ms. Ángela Bergillos Sheriff, followed, at some point, one of the deputies who tried to gain access to the parliament building “with her arms raised, waving her hands, chanting slogans of the demonstration. There is no record that she would have pushed him ”.
(b) The amparo applicants Mr. Carlos Munter Domec and Mr. Rubén Molina Marín were among a group of protesters with whom another of the deputies met who "recriminated the policies of cuts in public spending and told him that did not represent them.
() There is no record that he was attacked or pushed.”
(c) The amparo claimant Mr. Francisco José Cobos García “interposed with his arms crossed before the parliamentarians, at a given moment. There is no record that he spit on them ”. He followed one of the deputies "with his hands raised, shouting the slogans of the meeting."
(d) The amparo claimant Mr. Jordi Raymond Parra asked several protesters, regarding the deputies who tried to gain access to the parliamentary headquarters “that they not let them pass, so that they would not vote, while he displayed a banner to display a legend".
We do not consider that these conducts, valued in isolation or in the general context of the concentration, have the necessary objective seriousness for the defense of a democratic society to require recourse to interference in the sphere of protection of the right of assembly of such a restrictive nature as that represented by criminal law. In general, these are conducts that do not seem to exceed what may be typical of the exercise of a right of conflict, as on some occasions, and this case is an example, the right of assembly can be transmuted. In fact, in the terms already stated, the jurisprudence of the ECHR has established that the imposition of prison sentences should be considered disproportionate in cases of confrontations without weapons or situations such as the throwing of other objects without causing serious injuries in situations of greater tension than those generated in the present case (STEHR January 19, 2016, Gülcü v. Turkey case, § 115; October 4, 2016, Yaroslav Belousov v. Russia case, §§ 177 to 180; or January 30, 2018 , Barabanov v. Russia case, §§ 74-75). Therefore, the obstructive situation that could have been generated for access to the parliamentary headquarters from the confluence of the number of concentrated protesters, the behavior of some of them and the decision of the authority that access be limited to a single door and without the proper protection for the deputies who had to pass through it, would have made state intervention possible to expedite access to the parliamentary headquarters -as stated in the account of proven facts that occurred early on the morning of that day to open the access door. Beyond this, the interference in the right of assembly of the amparo applicants in the form of a severe criminal response, confronted with the specific behaviors that were developed by each one of them, appears as unnecessary, disproportionate and discouraging for the exercise of the right of assembly.
(iii) The consideration that the criminal response to the conduct of the amparo applicants and the severe limitation that this implies of their assembly rights is proportionate, has also been established coincidentally in the contested sentence and by the majority position on which the sentence is based on the seriousness of the constitutional values injured with the conduct carried out by the convicted persons: the violation of the right of political representation of the deputies of the Parliament of Catalonia and the proper functioning of this legislative institution. Specifically, it emphasizes that the criminal seriousness of the conduct resides in the fact that its real purpose was to disable the legislative action of this body, preventing the conformation of the majorities that follow the exercise of the right to vote and, therefore, strip it "of all possibility of normative creation”, obstructing the access of the deputies.
We cannot agree that the recourse to criminal repression of the persons requesting amparo is based on the fact that it was necessary to devalue an alleged risk that their conduct could give effect to the stripping of the Parliament of Catalonia of its capacity to create regulations by the way to prevent access to deputies to form a sufficient quorum in the approval of the annual budget. The account of proven facts is categorical in establishing, as has already been reiterated, that the conduct of the convicted persons was essentially reproachful to the deputies, to whom slogans of the called concentration were shouted, but it cannot be recognized that for on their part, conclusive acts of physical obstruction to parliamentary headquarters or other actions that, due to their violent or intimidating component, implied a specific and individual compulsion on singular deputies, were carried out. In the same way, and already in relation to the holding of the parliamentary session, it is also verified, as highlighted by the acquittal, that the disturbance generated in the session consisted in the fact that the start of the session was delayed by 11 minutes and there were to change the order of the day.
In this way, neither in the seriousness of the risk or infringement of constitutional values can it be sustained that there is an urgent need for its preservation to demand a penal repression of the characteristics of those imposed on persons requesting amparo.
10. In conclusion, we consider that, in the present case, the interference in the right of assembly of the persons claiming amparo through recourse to criminal sanctions is disproportionate considering the circumstances that (i) the concentration had certain objectives and characteristics of development that had been duly communicated to the competent authority that was able to adopt the preventive measures it considered necessary to protect other prevailing constitutional interests, including those tending to guarantee access to parliamentary headquarters; (ii) the concentration, in general, had a peaceful nature both in its call and in its development apart from sporadic situations of tension; (iii) the conduct of the people sentenced to prison was not to cause a paralysis of legislative action but to show political representatives their disagreement with the ideological lines on which the budget project to be approved was based, as it is derived that the specific action carried out by each one of them, which materialized in issuing reproaches to the deputies in line with the ideas that led to the call for the concentration but without conclusive acts of obstruction or violent impediment to access to parliamentary headquarters;
and (iv) the concentration resulted in a mere non-significant delay with respect to the parliamentary session and an alteration of the agenda that did not prevent its normal development.
In these circumstances, an adequate consideration of all these facts in the context of the fundamental right of assembly and the possibilities of interference in it through recourse to the criminal justice system in order to preserve prevailing constitutional values, should have led to the conclusion, maintained by us in the deliberation, that a criminal sanction was disproportionate and had an undesirable discouraging effect on the exercise of a fundamental right.
A criminal response, especially the severity of those imposed on the persons requesting amparo, which by their extension imply an effective serving of imprisonment, in the face of the specific acts that they carried out during their participation in the concentration, supposes an interference in the right of assembly, which, as we already stressed in the individual votes to SSTC 121/2021 and 122/2021, of June 2, has a devastating discouraging effect on it, impoverishes our democracy, aligns us with societies disciplined by the abuse of the penal system in the repression of behaviors that develop in the material field of fundamental rights and distance us, in short, from the need for a progressive interpretation and application of those rights that allow the normal participation of citizens in democracies full. To this reflection we must now add that cutting off in such a radical way the only means of collective expression that citizens have outside the participatory channels typical of representative democracies, can not only imply the already mentioned discouragement effect for those affected and the rest of the citizenry for the exercise of the right of assembly but the most paradoxical of fostering and fostering an undesirable detachment towards a political system whose protection has been tried to justify in this case the imposition of the criminal sanction.
Particular opinion formulated by Judge Cándido Conde-Pumpido Tourón regarding the Judgment handed down in the accumulated appeals for amparo nos. 4037 and 4098-2015.
In the exercise of the power conferred on me by article 90.2 of the Organic Law of the Constitutional Court, and with the utmost respect for the opinion expressed by the majority, I formulate this individual Opinion for disagreeing with both the rationale and the ruling of the Judgment handed down in this proceeding.
My discrepancy with the opinion of the majority is not nuanced, but basic and radical, insofar as I consider that it expresses a conception of the alleged fundamental rights and the method of constitutional analysis of the claims in contention that is far from previous pronouncements consolidated by constitutional jurisprudence. This was the reason that led me to decline the paper that had been assigned to me, after not accepting the solutions proposed to the Plenary which, far from the one that was finally adopted, would have justified the estimation of the requested amparo.
My disagreement extends to the four conclusions on which the dismissal decision is based, insofar as it considers that the criminal conviction of the appellants as perpetrators of a crime against State institutions (art. 498 of the Penal Code): ( i) it is respectful of the requirements of criminality imposed by the principle of criminal legality (art. 25.1 CE); (ii) it refers to behaviors that are not part of the objective scope of protection of the alleged rights to freedom of expression, assembly and demonstration (art. 20 and 21 CE); (iii) is itself proportionate and, finally; (iv) it has been declared for the first time in cassation with full respect for the defendants' right to defense and the guarantees that make up their right to a fair trial (art. 24.2 CE).
However, to facilitate the reading of this discordant opinion, I will follow the order of analysis set forth in the dismissal judgment. In it, to justify the uncritical assumption and full ratification of the conclusions and reasoning of the condemnatory decision agreed upon in cassation by the Criminal Chamber of the Supreme Court, the majority relies on a common assumption that I cannot share: according to what is stated , based on the motto with which the demonstration was convened in the course of which the acts under trial were produced, it is procedurally and materially in accordance with Law to declare that the purpose of the convening and the objective of all attendees was "to paralyze the activity of the Chamber [Autonomous Region of Catalonia] and that the budget project was not approved”, or, as stated in another passage of the resolution: “causing the Catalan Chamber to be incapacitated for debate and political action”.
1. Regarding the relationship of the conducts prosecuted with the exercise of the freedoms of expression, assembly and demonstration: method of constitutional analysis and dismissal conclusion.
1.1. With reference to previous jurisprudence, in the recent STC 122/2021, of June 2 (FJ 9.4.2), the Plenary has exposed the various moments of analysis that methodologically have to be followed to resolve the amparo claims in which, as justification for their conduct in the face of a criminal conviction, the appellants allege the undue limitation of their substantive fundamental rights.
In accordance with said pronouncement, the process of analysis of the resources analyzed should have been as follows, and it should have been carried out in its entirety:
a) Based on the facts declared proven by the judicial bodies and the content of the alleged substantive fundamental rights, the examination should have focused, in the first place, on the conducts that are a factual presupposition of the sentence, to determine if by their nature, due to the purpose to which they are oriented or due to the means used, can be framed within the scope of protection proper to the rights and freedoms that have been alleged, regardless of any consideration as to whether or not their specific exercise implied an excess of limits. . It is not a question, at this first moment, of analyzing the possible limitations or restrictions to the exercise of the right, but of determining and delimiting the content and purpose of the alleged right of assembly and demonstration. Such scrutiny makes it possible to identify and exclude those cases in which the invocation of the fundamental right becomes a mere pretext or subterfuge for, under its alleged protection, committing unlawful acts; what can happen when the exercise of the right is distorted, objectively placing itself outside its own content (SSTC 185/2003, of October 27, FJ 5; and 104/2011, of June 20, FJ 6).
b) Secondly, if we conclude that the conducts in question form part of the scope of protection proper to the alleged right, it will be necessary to examine whether, because it is a fully legitimate exercise of its content, such circumstance materially operates as an exclusive cause of its unlawfulness . The analysis is then aimed at determining whether the sanctioned conduct is unequivocally situated within the scope of the content of the right and, in addition, respects the limits established for its exercise (among others, SSTC 111/1993, of March 25, FFJJ 5 and 6 137/1997, of July 21, FJ 2; 110/2000, of May 5, FJ 4; 88/2003, of May 19, FJ 8;
299/2006, of October 23, FJ 6; 104/2011, of June 20, FJ 6; and 177/2015, of July 22, FJ 2).
If so, the conducts prosecuted could not suffer any legal reproach; nor due to the application of legal provisions of a punitive nature whose purpose is the protection of other constitutionally recognized rights or goods, even if the subsumption of the facts in the norm were in accordance with its literal wording (in this sense, SSTC 185/2003, of October 27, FJ 5; and 108/2008, of September 22, FJ 3).
This doctrine, initially elaborated within the framework of the conflict between the fundamental rights to honor and freedom of expression and information (SSTC 104/1986, of July 17, FJ 6; 107/1988, of June 8, FJ 2; or 20/1990, of February 15, FJ 2), has also been transferred to the examination of the criminal response to behaviors related to the exercise of other fundamental rights (SSTC 254/1988, of December 21, FJ 3, crime of coercion in a context of strike, 137/1997, of July 21, FJ 3, lack of coercion and right to strike;
104/2011, of June 20, FJ 6, crime of disobedience and right to strike; 185/2003, of October 27, FJ 6, insults and union freedom) and, in particular, with the right of peaceful assembly (SSTC 196/2002, of October 28, FFJJ 5 and 6, electoral crime; and STC 88 /2003, of May 19, FJ 8, search of the domicile of a legal-public person in the context of a union assembly). For the rest, the relationship of exclusion between the legitimate exercise of a fundamental right and its punishment also guides the legitimacy of non-criminal sanctions linked to the exercise of the right of assembly in the pronouncements that have been analyzed (SSTC 42/2002, of 14 December February, FJ 5; 124/2005, of May 23, FJ 3; and 110/2006, of April 3, FJ 4).
c) In concluding that the conduct analyzed is not a fully legitimate exercise of the right of assembly alleged, but rather an excess of its exercise, the constitutional analysis of the complaints raised in the lawsuit cannot be stopped or resolved solely with a debate on whether the Alleged fundamental rights, exercised in this way, have or do not have preferential value compared to the purpose of protection of the applied penal norm. Such a limited examination leads to an acquittal decision as the only solutions to the dispute, or to a sentence in accordance with the legally provided extension in the abstract criminal provision, which prevents and makes it difficult to analyze and adjust the need and intensity of the criminal reaction aimed at protecting its legitimate purpose.
To avoid such simplification, in such cases it is necessary to make other considerations that are complementary to the previous ones, which only analyzed their fully legitimate or unlawful nature.
The constitutional analysis must then be aimed at determining if, in the circumstances of the case, the criminal sanction, given its nature and its extension, can be considered a proportionate reaction to the protection needs that justify it. In this third moment the examination shifts from behavior to limitation. And in it the judgment on the proportionality of the penal reaction plays a decisive role. Its evaluation is aimed at guaranteeing that the criminal sentence cannot produce, due to its severity, an unnecessary or disproportionate sacrifice of the freedom it affects or, even further, a dissuasive or discouraging effect on the legitimate exercise of the fundamental rights involved in the conduct. sanctioned.
In effect, if it is appreciated that the imputed conduct must be classified as an excess of limits in the exercise of freedom or alleged rights, the examination must then focus on the limitation imposed, that is, on the sentencing decision, given that only Those limitations that (i) provided for by law (ii) pursue a legitimate purpose, and (iii) are proportionate to the purpose of protection that justifies them will be constitutionally admissible (SSTC 59/1990, of March 29, FJ 7; and 85 /1992, of June 8, FJ 4).
d) Closely related to this last analysis, it may be necessary to take into consideration other valuation perspectives with constitutional relevance that, in part coinciding, derive from the criminal nature of the limitation imposed (art. 25.1 CE). This is what the appellant advocates in the present case: it is about specific protection contents that make up the right to legality of the infractions and sanctions, since the Constitution imposes on the public powers additional requirements of predictability and proportionality of the reaction when it comes to of limitations on the exercise of fundamental rights that derive from the exercise of the state ius puniendi (SSTC 104/1986, 107/1988, 137/1997, 110/2000, 88/2003, and 104/2011, already cited, as well as ATC 4/ 2008, of January 9).
1.2. Expressed in this way, the method of analysis that I consider we should have followed and exhausted, it is now time to highlight that the majority decision unduly stopped its examination at the first moment of those that have been described, after considering [FJ 5, c) and FJ 7.2.2] that due to the purpose of the demonstration -which would be none other than to paralyze the activity of the Parliament of Catalonia and that the budgets were not approved-, the conduct of the appellants was not even part of the scope of protection of the alleged fundamental rights because it affected the rights of third parties (autonomous deputies) whose protection "should prevail" over those, so that the alleged exercise of fundamental rights is nothing more than a pretext or subterfuge for the commission of a unlawful act.
In my opinion, as I expressed during the deliberation, although the conducts under trial do not constitute a legitimate exercise of the alleged freedoms of expression, assembly and demonstration, they are undoubtedly framed within the scope of protection of said freedoms, for which reason it was necessary to continue our analysis to determine if the possibility of criminal limitation was provided for in the law, was appropriate and necessary, and implied a proportionate action to protect the legal interest that constitutes the object of the criminal type applied.
a) I agree with the majority that the conduct prosecuted in the previous criminal case is not a legitimate exercise of the alleged freedoms of expression, assembly and demonstration.
This assessment of its unlawful nature is supported by the fact that the criminal limitation imposed does not try to curtail the content of the protest message -the disagreement with the spending policy pending parliamentary approval-, but rather the exorbitant and intimidating way in which Said disagreement became visible, that is, by making the normal development of the parliamentary session in which the debate on said annual decisions on public spending began. It is therefore possible to dissociate the protest message and the impeding acts that were penalized.
b) But, quite unlike the majority of my colleagues in the college of magistrates, I understand that, as the public prosecutor's office maintains, such conduct can only be considered unnecessary excesses or overreach in the exercise of the rights of political protest in that they say to be founded
Given the time and context in which they occurred, as well as their simple description, I consider that the behaviors that have been attributed to the appellants constituted acts of protest and claim that, despite their unnecessarily coercive verbal and gestural nature, They are directly related to the political and social criticism that justified the calling of the public meeting and demonstration before the Parliament of Catalonia.
For this reason, they are not outside the general framework of protection that the Constitution grants to the rights of free expression, assembly and demonstration. The criminal sentence imposed on the appellants for the facts charged objectively implied a restriction of their rights to assembly and demonstration, interpreted in light of freedom of expression, as such interference not only operates when meetings are prohibited or, once authorized , are coercively dissolved, but also when, once finished, their organizers or those who have participated in them are sanctioned for the conduct carried out during their development (SECHR of April 26, 1991, Ezelin v. France; of May 15, 2014 , Taranenko v. Russia; of October 15, 2015, Kudrevičius and others v. Lithuania; and of September 20, 2018, Mushegh Saghatelyan v. Armenia).
As the European Court of Human Rights has repeatedly declared in relation to the right of peaceful assembly, only those meetings or demonstrations in which their organizers or participants have violent intentions, seek to induce others to use violence or otherwise undermine the foundations of a democratic society. This last expression has always been linked in the casuistry of the European court to calls for violence, hatred or the same armed insurrection [SECHR of October 20, 2005 (case Stankov and United Macedonian Organization Ilinden v. Bulgaria, and United Macedonian Organization Ilinden and Ivanov v. Bulgaria), § 99; of October 23, 2008 (Sergei Kouznetsov v. Russia matter), § 45); of October 21, 2010 (Alekseyev v. Russia case), § 80), or of September 20, 2018 (Mushegh Saghatelyan v. Armenia case), § 227]. None of these circumstances occurs in the case analyzed, so the incidence of the content of the alleged right on the questioned criminal response required additional considerations that have been eluded in the majority decision with which I disagree.
For this reason, our analysis of the criminal conviction should not have stopped at the justified or unlawful nature of the conducts prosecuted, but should have analyzed whether the elements that make up the crime typified by law concur in them and if, in addition, Due to its severity, its application produces or does not cause an unnecessary or disproportionate sacrifice of the freedom concerned or an effect that, in many other previous resolutions, we have described as dissuasive or discouraging from the exercise of the fundamental rights involved in the sanctioned conducts (STC 177/ 2015, of July 22, FJ 2, d]); effect that can lead citizens not to fully and freely exercise their rights for fear that any excess will be severely penalized. I will analyze these extremes when examining the proportionality of the specific sentence imposed.
2. On the typical nature of the conducts prosecuted, based on the legal provision established in art. 498 of the Penal Code.
Leaving aside now the alleged violation of arts. 20 and 21 CE, the appellants, by reference to the dissenting opinion of the judgment handed down in cassation, also denounce in their appeals for amparo the violation of the material guarantee of the right to the legality of infractions and sanctions (art. 25.1 CE) , insofar as it recognizes the principle of criminality, which imposes a strict subjection to criminal law on the applicator of the Law, in such a way that both the extensive interpretation and the analogical application in malam partem of criminal regulations are prohibited, that is, their exegesis and application outside the assumptions and limits that they determine (for all, STC 137/1997, of July 21, FJ 6).
For the appellants, their conduct does not express the use of “force, violence, intimidation or serious threat” aimed at preventing a parliamentarian from attending their meetings or restricting the casting of their vote. They reject, as does the public prosecutor's office, that the behaviors carried out by them respond to the typical requirements of the precept, not even in attention to the context of collective protest in which they were developed. They understand that the context cannot alter their nature to such an extent by attributing to them, regardless of the will of their authors, traits of violence or serious intimidation that they did not have. The public prosecutor's office agrees with this appreciation and also proposes, for this reason, the estimation of the claim for amparo.
The conclusion of the majority, rejecting this complaint, is based on a judgment of reasonableness (FJ 6, in fine) that leads to the consideration that the factual elements taken into consideration by the court of cassation are sufficient to deduce the existence of a context of coercion intended to prevent deputies from reaching Parliament; context that had sufficient importance on the mood of the parliamentarians, some of whom found it difficult to access the Chamber, others did so with the help of the police, and others had to attend the meeting using extraordinary means of transportation.
On this point I agree with the public prosecutor's office that there has been an extensive application of the criminal law. I consider that, exceeding its grammatical meaning and the common use of language, it has been improperly applied to cases that, due to their minor nature, are not included in its scope based on the literal wording of the criminal law, which requires the use of legal means. Commissioners capable of producing force, violence, intimidation or serious threat. The axiological guidelines that inform our constitutional text in relation to the rights of expression, assembly and peaceful demonstration without weapons are not respected either, insofar as they guarantee the possibility of expressing in a symbolic way, even rude and hurtful, the disagreement with the budgetary and social policies which were to be submitted to parliamentary scrutiny. These fundamental values have not had any impact on the sentencing decision and its ratification at this headquarters.
To support this assessment, I believe that the following aspects should have been taken into consideration in a relevant manner: (i) the less seriousness of the individual conducts carried out by the appellants [described in FJ 5. B), b) of the rejecting decision]; (ii) that a prior agreement between the appellants, or between them and the rest of the protesters, to commit violent acts or seriously harass parliamentarians has not been declared proven; (iii) that, despite its slogan, so relevant to the majority, the demonstration was not prohibited by the government authority, nor were its organizers persecuted; (iv) in short, no matter how relevant the context in which they occurred (so-called environmental intimidation) is given to assess the sanctioned conducts, such extrapolation cannot lead to justifying individual responsibility through its collective integration in the acts of coercion carried out by other unidentified persons, since, in any case, one can only criminally answer for one's own acts and not for those of others [SSTC 131/1987, of July 20, FJ 6;
219/1988, of November 22, FJ 3; 254/1988, of December 21, FJ 5; 246/1991, of December 19, FJ 2; 146/1994, of May 12, FJ 4 b); 93/1996, of May 28, FJ 1, and 137/1997, of July 21, FJ 5].
3. On the proportionality of the penal reaction questioned.
In addition to the reasons set forth in the previous section, there are other jurisprudential and factual reasons that, in my opinion, allow us to appreciate that the custodial sentence imposed on each of the appellants, lasting three years, is objectively disproportionate , in attention to the behaviors that they carried out and the context of political protest in which they developed.
3.1. The STC 177/2015 has highlighted the risks derived from the use of the ius puniendi in the state response to a possible exercise, excessive or not, of the right to freedom of expression, due to the disproportion that resorting to this power may entail and the discouragement effect that this can generate (in the same sense STC 112/2016). For this reason, both the legislator when defining the criminal norm, and the judge when applying it, cannot "react disproportionately to the act of expression, not even in the event that it does not constitute a legitimate exercise of the fundamental right in question and even when it is foreseen legitimately as a crime in the penal precept” (STC 110/2000, of May 5, FJ 5).
In our jurisprudence, the trial of proportionality of limitations of a criminal nature has been specifically addressed on several occasions in the field of conduct related to freedom of expression and information, of which freedom of assembly is a specific modality (STC 85/1988, of April 28, FJ 2). In the aforementioned STC 110/2000, we emphasize that the objective dimension of fundamental rights, their nature as essential elements of the legal system, allows us to affirm that "the verification that the sanctioned conduct exceeds the borders of constitutionally protected expression is not enough." ”, but it must be ensured that the reaction to said excess “cannot produce, due to its severity, an unnecessary or disproportionate sacrifice of the freedom of which they are deprived, or a dissuasive or discouraging effect on the exercise of fundamental rights involved in the sanctioned conduct” (in the same sense, SSTC 88/2003, of May 19, FJ 8 and 187/2015, of September 21, FJ 4). Regarding the requirement of proportionality, it is worth mentioning in the same sense STC 85/1992, of June 8, FJ 4, and the SSTEDH of July 13, 1995, Tolstoy Milovslasky c. United Kingdom, §§ 52 to 55; of November 25, 1999, Nilsen and Johnsen v. Norway, § 53 and of February 29, 2000, Fuentes Bobo v.
Spain, §§ 49 and 50).
But such a limit does not operate exclusively within the scope of art. 20.1 EC, but in relation to all fundamental rights: SSTC 190/1996, of November 25, FJ3, on freedom of information and honor; 136/1999, of July 20, FJ 20, on freedom of expression and ideological freedom in electoral campaigns; 88/2003, of May 19, FJ 8, on the right of assembly in the field of trade union action; 104/2011, of June 20, on the right to strike; 140/2016, of July 21, FJ 10, on access to justice; 91/2021, of April 22 and 122/2021, of June 2, on the same rights and freedoms alleged in this case.
The European Court of Human Rights has pronounced in the same sense, also repeatedly, in the SSTEDH, of February 22, 1989, Barfod c. Norway, § 29; of May 20, 1999, Bladet Tromsø and Stensaas v. Norway, § 64; of March 21, 2002, Nikula v.
Finland, § 54; of December 15, 2005, Kyprianou v. Cyprus, §§ 175, 181 to 183; of July 21, 2011, Heinisch v. Germany, §§ 91 and 92; of October 3, 2013, Kasparov and others v. Russia, § 84; of May 15, 2014, Taranenko v. Russia, §§ 95 and 96; of October 14, 2014, Yilmaz Yildiz and others v. Türkiye, § 33; of October 15, 2015, Gafgaz Mammadov v. Azerbaijan, § 50; and, more recently, the Court of Justice of September 4, 2018, Fatih Taş c. Türkiye (No. 5), § 40.
3.2. In SSTC 55/1996, of March 28, FJ 9 and 161/1997, of October 2, FJ 12, we have indicated that a legally provided criminal sanction can be classified as strictly disproportionate "when there is a patent and excessive imbalance or unreasonable difference between the sanction and the purpose of the rule, based on the constitutionally indisputable axiological guidelines and their concretion in the legislative activity itself.
Examining whether a specific custodial sentence has been adjusted or has ignored the principle of proportionality requires determining whether, due to its nature and extent, it is necessary for the protection of the purpose pursued by the criminal law. Such a value judgment must relate the sentence imposed with its purpose of protection, based on the entity of the crime charged. As was already highlighted in STC 62/1982, of October 15 (the first to address this issue), it is not possible to ignore the difficulty of applying a general principle of law to a specific case that, formulated as an indeterminate legal concept, allows a margin of appreciation that must be recognized in favor of Judges and Courts, to whom also corresponds the general protection of fundamental rights and public liberties.
In any case, from the constitutional perspective that is ours, there are in the present case various objective circumstances that should have been taken into account when assessing the proportionality of the specific sanction imposed:
(i) It should be noted, first of all, that there is no proportionality judgment in the sentencing decision that relates the length of the sentence imposed with the entity of the imputed conducts, nor on the eventual minor illegality of these that could derive from the context of public protest in which they occurred. All the plaintiffs, whose behaviors are not identical, have been given the same sentence: three years of imprisonment, coinciding with the minimum amount of the abstract legal criminal provision. On the sole legal basis of the conviction handed down as a consequence of the appeal, after qualifying the proven facts as constituting a crime against State institutions, provided for and punished in art. CP 498, laconically stated: "The Chamber considers that the imposition of the minimum penalties provided for in the indicated precept proceeds." That's all.
Either because they understand that the abstract proportionality judgment made by the legislator when setting the minimum amount of the abstract penalty provided for is adequate and sufficient, or because they consider that the relationship of the imputed conducts with the exercise of freedom of expression , meeting and demonstration does not contribute anything to its specific determination, or whether it is a simple omission, I understand that it is not possible to make an external judgment on the reasons that the room has taken into consideration, since they have not been made explicit. Neither can any specific conclusion on this aspect be drawn from the grounds of the appeal judgment.
(ii) The sentence imposed is imprisonment. And it is so to a significant extent -three years in duration- that according to the applicable legislation (art. 80 CP) does not admit the suspension of its execution; that is, it is a mandatory prison sentence.
The custodial nature of the sentence imposed is an element that, in itself, cannot fail to be taken into consideration in the trial of proportionality of the interferences that affect freedom of expression (SECHR of September 23 of 1994, § 35, Jersild v.
Denmark; of April 11, 2006, § 43, Brasilier c. France; of April 23, 2015, § 176, Morice v. France [Grand Chamber]; and of July 12, 2016, § 73, Reichman v. France). According to the parameters used by the ECHR in the context of acts related to freedom of expression, it is a penalty that must be classified as severe. Thus, a sentence of one year and eleven months in prison is conceptualized (CHR of July 17, 2018, Mariya Alekhina et al. v. Russia, § 215) and even a nine-month fine, with subsidiary personal liability in the case of non-payment (ECHR of January 12, 2016, Rodríguez Ravelo v. Spain, § 44). Also in the Court of Justice of May 15, 2014, Taranenko v. Russia, §§ 94 and 95, the European Court has qualified as unusual and exceptionally severe, and therefore disproportionate, a three-year prison sentence (suspended in its execution) imposed as a consequence of accessing a group of forty people, removing the guard who tried to prevent them from entering the building that houses the administrative offices of the Government Presidency, and remain locked up for hours in an office.
In short, due to the severity of the sentence imposed on the plaintiffs, a discouraging effect on future acts of political protest cannot be excluded.
(iii) It stood out before the sentencing decision, and its ratification by the majority, has decisively granted criminal relevance to the individual conduct carried out by each of the plaintiffs as long as they were carried out "in a coercive scenario and climate , in an intimidating atmosphere” generated by the participation of hundreds of demonstrators in the protest, some of whom expressed their disagreement with the budget proposal of the Catalan government that was going to be submitted to parliamentary debate in an energetic, sometimes rude and illegal way. .
When assessing the proportionality of the specific measure of punishment that has been determined as a criminal reaction, it is not possible to fail to take into account that the conducts individually attributed to each of the appellants did not constitute acts of physical aggression or personal assault, but of verbal and gestural confrontation with the parliamentarians.
The public gathering in the chosen place and day was duly communicated and allowed by the government authority, which adopted the public order prevention measures it deemed appropriate. Its development was mostly peaceful, although on the morning of June 15, when the deputies accessed the premises where the Parliament headquarters are located, some violent acts were recorded. The protest was functional to the objective of channeling social demands that were considered legitimate about which there is room for any controversy in an open society. There is no record that any of the appellants collaborated in the most violent acts already described that occurred during the protest, nor has it been declared proven that there had been an intentional use by the appellants of the aforementioned intimidating climate, nor that they acted in concert for that purpose. .
(iv) Despite the fact that the requirement of proportionality of the criminal limitation of a fundamental right relates its purpose of protection with the sacrifice that it imposes on the affected right, it must be agreed with the public prosecutor's office when it alleges that, in the contested ruling, there is no mention or consideration of the effective impact that the sanctioned conduct had on the development of parliamentary activity scheduled for June 15, 2011.
In this sense, the conviction declares the crime consummated with the acts carried out by the appellants, insofar as it qualifies the criminal type applied as “a crime of tendency [that] does not require for its consummation that, as an effect of the means employees, the deputy has not been able to attend meetings, has not effectively voted or has experienced an effective restriction of his freedom of expression”. It is a reasoned and non-arbitrary legal-criminal qualification that it is not up to us to question because its determination is the exclusive function of the Judges and Courts. However, we must emphasize that, without prejudice to agreeing with the appeal judgment in which the normal functioning of the Representative Chamber was altered due to the access difficulties outlined, we appreciate that, in order to establish the intensity of the reaction criminal, it should have been an element to consider the real effect that the imputed acts of protest had on the parliamentary session, given that, as reflected at the time by the media, as scheduled, the debate and vote took place on the day of the date -including the one related to the amendments to the totality presented to the budget law-, and could be held a few minutes after the scheduled time.
(v) In the previous judicial process, the consideration that the conducts prosecuted constituted a legitimate exercise of the alleged freedoms was precisely the ratio of the acquittal of the first instance because, without making any judgment of criminality, it was considered as a cause of justification that of acting in the legitimate exercise of a right (art. 20.7 CP). The decision was later revoked on appeal, questioning the weighting of interests made in the acquittal decision.
I have already indicated before that, due to their coercive content, the imputed conducts cannot be considered a fully legitimate exercise of the right of assembly and demonstration; that is, they did not constitute a lawful exercise of the alleged freedoms, for which reason they may deserve criminal sanction.
Consequently, I consider that the lower court ruling overstated the constitutional content of the alleged right of assembly and demonstration, including in its fully legitimate exercise conducts that, given their characteristics and the context in which they occurred.
constituted an excess of the powers of action that it recognizes.
Nevertheless, the conducts on trial externalized a political and social protest, and were directly related to the exercise of the alleged fundamental rights, without this relevant circumstance having been taken into consideration in the appeal judgment to determine the taxable penalty. I do not question that the behaviors carried out by the appellants have been foreseen and declared criminal, but I do question the quantum of the agreed penal response, given their custodial nature.
In this sense, it should be appreciated that the decision of the majority from which I disagree, as did the appeal judgment, underestimates the content of the alleged fundamental right, not recognizing any effect when determining the applicable penalty. However, the relation of the imputed conducts with the powers of action that the right of assembly and demonstration recognizes, together with the rest of the circumstances that we have analyzed, allows in this case to appreciate in them less unlawfulness, less harmful content than , had it been taken into account when legally and criminally assessing the conduct of the appellants, would have led to attenuating the specific duration of the custodial sentence imposed below the established abstract legal minimum.
Our criminal legal system is especially suitable for materializing the proportionality requirements that we have analyzed in those cases in which the imputed conducts suppose an excess of a fundamental right. Not only because the law provides for them an undetermined sentence of variable length -a penological arc that goes from a minimum to a maximum-; a legal framework in need of specificity on a case-by-case basis in which the Judge can assess "the greater or lesser seriousness of the act" (art. 66.6 CP), but rather because through the rules for applying the penalty it is required to adjust the response when circumstances of mitigation or exemption fully or partially exist that justify it.
To respond proportionately to behaviors related to the exercise of fundamental rights, the applicator must assess the exemption from liability excluding the illegality of the conduct when it is a legitimate exercise of a right (art. 20.7 CP); which will lead to acquittal. In the same sense the art. 21 CP contemplates as mitigating the causes of exemption "when all the necessary requirements are not met to exempt from responsibility in their respective cases", legal provision to which art. 68 CP establishes as a requirement the imposition of "the penalty one or two degrees lower than that indicated by law", a graduation that, in turn, depends on the "number and entity of the requirements that are missing or present and the personal circumstances of its author”. Through said legal provision, given the circumstances of the present case, it was not only possible, but required, to individualize and temper the criminal reaction to the illegality of the assessed conduct, given their limited coercive intensity, the context of political protest in which they were developed, their relationship with the exercise of the right of assembly and demonstration, and the real affect that they produced to the development of the parliamentary session. However, this legal possibility was not examined in the sentencing decision when determining the sentence that should be imposed.
In short, taking into account the criteria and circumstances set forth allows me to conclude that, by imposing a three-year prison sentence on the appellants without appreciating the concurrence of the aforementioned mitigation possibilities, the decision of sentence imposed in the contested appeal judgment, due to its nature and duration, cannot be considered proportionate to the legitimate objective pursued by the applied criminal law; that is, it does not express a fair balance between the alleged fundamental rights and the purposes of protection that have justified the conviction. From which it results that, partially addressing the claims of the appellants, supported by the public prosecutor, understand that we should have declared the principle of criminal legality violated (art. 25.1 CE) as comprehensive of the constitutional proscription of disproportionate penalties.
Expressed in this way my discrepancy with the substantive reasons alleged by the appellants (arts. 20, 21 and 25 EC), it remains for me to address a reason for discrepancy that, despite its procedural nature, is equally relevant for deviate from the majority decision from which I dissent. It has to do with the fact that the sentencing decision was established when resolving an appeal filed against a previous acquittal.
4. On the constitutional limits of the review in cassation of the acquittal decision adopted in the instance (art. 24.2 CE).
I consider that the opinion of the majority reflected in the sentence handed down in the present appeal has incurred in an erroneous application of the consolidated constitutional doctrine that this court has been developing since STC 167/2002 in relation to the procedural impossibility of appreciating in cassation the concurrence of subjective elements of the crime.
4.1. To facilitate the understanding of my disagreement, it is appropriate to highlight that the initial acquittal decision excluded the unlawfulness of the defendants' conduct, understanding that it was a legitimate exercise of the rights of assembly and demonstration, reasoning to which he dedicated his main argumentative effort. It is relevant to note that the analysis of the first instance judgment stopped at said consideration and, by ruling out its unlawfulness, obviated in its justification the analysis of the typicity of the conducts that supported the accusation.
In the account of proven facts, there is no reference to the purpose that could encourage the appellants. Despite this, in its legal foundation, when reasoning about the legitimacy of the conduct of the appellants (FJ 2.1.1) it does affirm that the call and the collective action of protest had the purpose of "disseminating messages of protest in relation to the legislative decisions, and for this it was about occupying the surroundings of the parliamentary building to direct the deputies, the media and society to reject such measures to cut social spending to the detriment of public services and the effectiveness of social rights”. It is also stated that the motto of the call -"Let's stop Parliament, we will not allow them to approve cuts"- although problematic, was symbolic and contained two precise messages, since "those who protested did not want the economic restrictions on benefits and public services ; and those who made such decisions no longer represented them.”
On the contrary, after ruling out that the conducts imputed to the appellants could be classified as a legitimate exercise of the rights of assembly and demonstration, the appeal judgment faces for the first time the task -now essential- of subsuming the conducts declared proven in the offense provided for and punishable in art. 498 CP, which qualifies as a "crime of tendency", for whose consummation it is enough that the typical conduct is carried out in order to prevent the attendance of the deputies to the scheduled parliamentary sessions. By subsuming the conduct of the plaintiffs in the crime in question, the Supreme Court affirms:
(i) that the conduct is sufficiently significant, in view of the context, to be classified as use of force, violence, intimidation or serious threat, and (ii) that it was motivated by the purpose of preventing parliamentarians from attending meetings of the legislative assembly. Said impeding purpose is deduced from the coercive context described in the account of proven facts and from the motto of the call itself. Based on both factors, it is affirmed that the intention that guided the conduct of each of the appellants was not to protest but to prevent the deputies from attending Parliament. In this way, the purpose of the demonstration is equated with the specific purpose that animates the actions of the finally convicted plaintiffs, who made private contributions to the collective act of hindering parliamentary tasks.
4.2. My discrepancy with the majority decision does not refer to the constitutional doctrine that is expressed in FJ 8, B) of the majority decision, but to its defective application that leads to improperly assessing that the personal hearing of the defendants was not accurate in this case because the intention that encouraged the conduct of the appellants was deduced from the motto of the demonstration and the coercive context in which it occurred, data that is described in the account of proven facts and is considered objective and, therefore, assessable in cassation .
It seems clear to me that once again, the issue raised in this amparo is none other than the violation of procedural guarantees that, in the face of the defendant who denies having carried out the act with the imputed intention, they must be observed when resolving the appeal in order to be able to attend a claim of conviction formulated against an acquittal decision agreed in the instance.
As set out in detail in STC 125/2017, of November 13, FJ 3, the content of such procedural guarantees has been addressed by this Court in a reiterated, complementary and progressively expanded jurisprudence that, rectifying previous pronouncements, has its initial moment in STC 167/2002 of September 18 (FFJJ 9 to 11). The doctrine was expanded from the Court of Justice of March 10, 2009, Igual Coll c. Spain, which revealed the insufficiency of the initial jurisprudential perspective. The ECHR had declared that when a review body must hear a matter of fact and law and has the power to study the question of guilt or innocence as a whole, it cannot, for reasons of fairness of the process, decide these questions without direct assessment of the evidence presented in person by the defendant who claims not to have committed the act considered criminally unlawful.
The full acceptance of said criterion by this Court began in STC 184/2009, of September 7, FJ 3, according to whose doctrine, what is constitutionally relevant is to evaluate if the review jurisdiction “makes a new appreciation of the estimated facts proven in the first instance and reconsiders them”, thus placing itself beyond strictly legal considerations; which occurs whenever the review expresses "a position on decisive facts for the determination of the plaintiff's guilt", that is, it pronounces on subjective circumstances of the defendant. And so we have indicated that "when the inference of a court refers to subjective elements (such as, in this specific case, the purpose that guided the conduct of the appellants), it is not possible to proceed to the legal assessment of the defendant's behavior without having previously tried to prove the reality of this behavior, which necessarily implies verification of the intention of the defendant in relation to the facts that are imputed to him” (SECHR of November 22, 2011, Lacadena Calero v. Spain, § 38; of 20 March 2012, Serrano Contreras v. Spain, § 31; June 13, 2017, Atutxa Mendiola et al. v. Spain, § 43, and September 24, 2019, Camacho Camacho v. Spain, § 30).
Summarizing the double content of said doctrine, Plenary Judgment 88/2013, of April 11, concluded that “in accordance with the constitutional doctrine established in SSTC 167/2002 and 184/2009, it violates the right to a process with all the guarantees (art. 24.2 CE) that a judicial body, hearing on appeal, condemns the person who had been acquitted in the instance or worsens their situation based on a new assessment of personal evidence or a reconsideration of the Estimated facts proven to establish his guilt, provided that a public hearing has not been held in which the necessary evidentiary activity is carried out, with the guarantees of publicity, immediacy and contradiction that are his own, and the accused is given the possibility of defending himself by exposing his personal testimony” (FJ 9).
This evolution has had a special impact on the treatment of sentencing decisions that revoke an acquittal based on the reconsideration of the concurrence of the subjective elements of the crime (those that have to do with the intention that guides its author or the degree of commitment to the action carried out that can be blamed). Although at first (STC 167/2002), when they were supported by documentary evidence, the debates around their attendance were valued as "legal debates" that did not require a public view or immediacy or the presence of the accused, the taking In consideration of the ECHR issued in the Igual Coll case, it modified the meaning of the pronouncements of this Court (SSTC 184/2009, of September 7, 45/2011, of April 11, and 142/2011, of September 26). . Since then, we have been affirming repeatedly that, "as soon as the mental elements are inferred from the author's behavior, that is, from his external manifestation in a given context, the appreciation of his concurrence not only expresses a factual assessment usually in need of publicity, immediacy and contradiction, but, in any case, the defendant, who denies having committed the act with which he is accused, must be offered the possibility of being present in a public debate where he can defend his interests contradictorily; These are requirements that, in our legal system, are not consistent with the current procedural structure of criminal appeals and cassation, whose scope of knowledge has been thus delimited” (STC 125/2017, FJ 6). Consolidated and reiterated criteria, among the most recent sentences, in STC 149/2019, of November 25, FJ 2.
In short, it is a criterion fully established in our doctrine and coincides with the consideration of the European Court of Human Rights that the review of the subjective elements of the crime constitutes a matter of fact and not a matter of legal qualification.
And, therefore, apart from being a reasonably justified inference, it always requires a hearing for the accused (SECHR of March 29, 2016, Gómez Olmedo v. Spain matter;
June 13, 2017, Atutxa Mendiola v. Spain matter, March 13, 2018, Vilches Coronado et al. v. Spain matter; and September 24, 2019, Camacho Camacho v. Spain matter.
As recently stated in judgment 149/2019, of November 25, “In the words of the European Court of Human Rights, “when the reasoning of a Court is based on subjective elements, [] it is impossible to proceed to the legal assessment of the defendant's behavior without having previously tried to prove the reality of said behavior, which necessarily implies verification of the defendant's intent in relation to the facts that are imputed to him” (for all, matter Lacadena Calero v. Spain, § 47). Or, in our own words, "as long as the mental elements are inferred from the author's behavior, that is, from his external manifestation in a given context, the appreciation of his concurrence not only expresses a factual assessment usually in need of publicity, immediacy and contradiction, but, in any case, the defendant, who denies having committed the act with which he is accused, must be offered the possibility of being present in a public debate where he can defend his interests contradictorily (STC 125/2017, FJ 6)”.
4.3. In my opinion, the application of the criteria set forth in this case allows us to appreciate the existence of the violation of the right to a trial with all the guarantees and of the right to defense (art. 24.2 CE), due to the estimate made in the judgment of appealed appeal of the concurrence of the subjective element of the crime charged: the intention of the defendants to prevent the normal development of parliamentary activity.
As expressed by the plaintiffs and maintained by the public prosecutor in the allegations presented in this constitutional process, we must take into account that the double affirmation made by the Criminal Chamber of the Supreme Court to justify their sentence (FJ 5, letter G ]) - according to which the purpose of the demonstration and the participants in it was to prevent parliamentary activity, and that this was the specific purpose of the appellants since they acted within the framework of a kind of general agreement to commit typical actions -, supposes consider proven elements that are not contemplated in the factual account of the instance and that, moreover, differ from the radically discrepant assessment made there.
For the rest, the examination by the Supreme Court of these three elements -purpose of the demonstration, intention of the appellants and existence of an implicit agreement- cannot be considered as a pronouncement referring to questions of Law, as upholds the majority decision, insofar as it involves assessing facts that are decisive for determining the guilt of the plaintiffs on which the affirmation of the coercive and typical meaning of their conduct rests. This is an issue on which there was no prior ruling by the court of first instance (as in the case Igual Coll v. Spain, § 35). At no time did the ruling of the National Court consider the impediment of parliamentary activity as defining the end of the demonstration, nor did it even impute an objective intimidating efficacy to the concentration. In fact, it assumes the affirmation of the spokespersons of the convening organizations according to which "they did not intend to paralyze parliamentary activity but they did try to prevent the approval of the budget project".
With such a procedure, the Supreme Court, instead of returning the case to the court of first instance to complete its analysis by conducting the judgment of criminality, has made a new assessment of the facts, to which it gives meaning and weight different from the one conferred by the trial judgment and, from them, has made an affirmative pronouncement on the guilt of the defendants previously acquitted. In such conditions, his personal audience was constitutionally required. The affirmation of the Supreme Court accepted by the majority, according to which the factum of instance is respected and it is only a matter of strictly legal subsumption, is not compatible with the dimension of its intervention, where -at least- a modification is produced inference of the subjective element of the crime that leads to affirming the guilt of the appellants, even if the proven facts are not explicitly modified.
In short, as we concluded in STC 146/2017, of December 14, FJ 8, to affirm their guilt, the reasoning of the Supreme Court also extended in this case to assess the intention of the defendants, who it is inferred from the proven facts completed and reinterpreted, so the issue could not be resolved without giving them the chance to be heard in person.
Consequently, I consider that the alleged violation of the right to a process with all the guarantees in relation to the right to defense should have been estimated, from which it necessarily follows in the current case, in accordance with the jurisprudential doctrine, the consequent violation of the right to the presumption of innocence, since the sentence handed down in cassation is based, essentially and exclusively, on the reconsideration of the evidentiary activity carried out in the first instance, to declare the concurrence of a subjective element of the type that had not been previously appreciated by the sentencing Court.
In conclusion, my discrepancy extends to the assessment that the majority makes of the three grounds for amparo that have been exposed: I understand that the conduct of the defendants on trial, due to its lesser harmfulness, cannot be considered typical without exceeding the interpretative limits that correspond to the jurisdictional bodies (art. 25.1 CE); I consider that the custodial sentence imposed, in the amount that it has been, is manifestly disproportionate, given the evident relationship of the conducts prosecuted with the content of the alleged rights of assembly and demonstration (art. 21 CE); Finally, I appreciate that it was not constitutionally possible to agree in cassation the sentence of the appellants without violating their rights to a process with all the guarantees and defense (art. 24.1 and 2 EC), since their personal hearing was required to be able to charge them a criminal intent that had not been appreciated in the instance. The requested amparo should have been granted and, as an effect, the annulment of the conviction handed down in cassation should have been declared.
