In this week's plenary session, the Constitutional Court studies two matters that affect two politicians of different types but who could end up receiving a boost. In the plenary session that begins today, the eleven magistrates of the guarantee court will study the presentations regarding the appeals presented by the general coordinator of EH Bildu, Arnaldo Otegi, and by the former leader of Podemos Alberto Rodríguez.
Both have filed appeals against Supreme Court decisions related to their respective sentences. In the case of Otegi it is a complicated matter. The Supreme Court ordered that the trial for the Bateragune case be repeated again as his conviction was annulled by order of the European Court of Human Rights (ECtHR).
Otegi won the judicial battle against Spain and recognized that the judge of the National Court had acted in a partial manner. The Bildu leader, who has already served a sentence for this, now finds himself in the position that the high court has annulled the previous trial and has ordered a repeat trial, but he does not want to sit on the bench again, once Europe has already told him has proven right.
The high court's argument is that if it is not retried then the case remains without a sentence because it has been annulled. The argument of Otegi's defense is that once the ECtHR has ruled in favor of the violation of his rights, it is his decision whether he wants to face a trial again for which he was convicted and has already served his sentence and that is why He appealed to the Constitutional Court.
The speaker of the sentence, Juan Carlos Campo, believes that Otegi is right. In his opinion, trying him again for this matter would be a violation of the right to effective judicial protection since it would violate the principle of 'non bis in idem', which prohibits trying the same person for the same facts.
If he went ahead with the support of the progressive majority bloc, the TC ruling would open the door for Otegi to claim compensation from the State for damages caused by his time in prison.
This matter comes from a decade ago, when in 2012 the National Court sentenced Otegi and the other defendants to sentences of between 6 years and 6 and a half years in prison for a crime of belonging to a terrorist organization. In his battle in Europe, Otegi managed to get the ECHR to recognize that the Court violated Article 6.1 of the European Convention, since it understood the "legitimate fear" of the accused of a lack of impartiality on the part of the court.
The reason was that one of the judges of the court that tried him was Ángela Murillo, who had previously tried Otegi in another case. In that oral hearing, Murillo asked Otegi if he condemned ETA and, given his refusal to offer an answer, the judge told him that she already knew that she was not going to answer him. The Supreme Court removed the judge, who served as president of the court, from the case, appreciating "prejudice" in her. The oral hearing was repeated and the former Batasuna spokesperson was acquitted in that procedure. However, Murillo met again with Otegi in another new procedure, which was the one that was later annulled by the ECtHR.
The Plenary will also review the sentence handed down by the Supreme Court of the former Canarian leader of Unidas Podemos Alberto Rodríguez for kicking a police officer at a demonstration. The sentence was light, imprisonment replaceable with a fine, but the disqualification was fixed, which forced the Congress of Deputies to disqualify him and lose his record as a deputy.
Now, the TC's presentation agrees with him and considers that that sentence was disproportionate. The text, which must be voted on in plenary session, the Supreme Court violated the principle of legality, by understanding that the sanction of a fine (as a substitute for a prison sentence) cannot carry with it the accessory of disqualification, which would mean annulling the withdrawal of seat.
