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A Tense Wait for Justice – The Catalonian Case

The last referendum in Catalonia, organized on 1st October 2017, was declared illegal by Spain’s Constitutional Tribunal and boycotted by those opposed to independence. 12 pro-independence politicians face trials in Madrid and some could face up to 25 years in prison if found guilty of violating Spanish laws.

The public prosecution in the Supreme Court of Spain has used Spanish police reports to craft a narrative that speaks of “violence,” “rebellion” and “misuse of public funds.” The Catalonian defense team says their clients merely acted on “the mandate from the people” and never used violent means to declare independence.

In the Spanish constitution, Article 92 has provisions for the King to permit a referendum. In this modern world, where the monarchy is defunct as it promotes one-man rule and is against the system of natural justice, a Catalonian can never aim to become the King, so, therefore, the King will never allow a referendum to take place in Catalonia.

In a modern democracy it is the will of the people, and those who voted during the Catalonian referendum, an overwhelming 90%, expressed the desire for an independent state of Catalonia. Many did not vote in the referendum fearing state persecution and the unleashing of state-sponsored violence on Catalonian civilians which ultimately happened after the voting and the results.

In the run-up to the referendum, Spain sent thousands of troops into Catalonia to seize ballot papers and arrest pro-independence officials. Websites informing Catalans about the election were shut down.

On the day of the referendum, the police used rubber bullets and truncheons to control the crowds and keep people out of the streets. Hundreds were injured in what the Times described as “one of the gravest tests of Spain’s democracy since the end of the Franco dictatorship.”

Spain has to recognize that the Catalonians exercised their right to freedom of association, right to vote, and the right to self-determination.

Conducting a trial in Madrid is against the will of the people of Catalonia, taking this case directly to the Supreme Court is again a matter of great debate as there are lower courts in which the accused could have been tried and then if found guilty, the case could have been shifted to the Supreme Court.

(Sasha Popovic/Flickr)

At the same time, the perpetrators of violence during the referendum polling and the aftermath, in this case, the Spanish police, are being tried at the provincial courts in Barcelona, while those political prisoners are directly sent to the Supreme Court, violating the principle of natural justice.

In Madrid, there is public outrage against those facing the trial and this is evident with the Spanish flags flying on top of almost all the buildings in Madrid. The public display of Spanish nationalism could weigh on the minds of the judges and these emotional displays of Spanish unity could go against a fair trial.

The only violence that occurred during the referendum on 1 October was committed by the Spanish police or Guardia Civil, and not by the Catalan government.

Holding referendums is not a new trend in Europe. In the UK, the Westminster parliament permitted Scotland to hold an independence referendum. No such referendum has been granted by the Spanish parliament despite demands from the Catalonians, forcing the Parliament of Catalonia to draft the future of the Catalonians. Catalan is the 10th most common language of Europe and their unique identity needs to be protected.

In the 21st century in Europe and across the world, either people decide on their own future, or there will be no permanent solution to the problem due to the issue of the Right to Self Determination.

Spain had never before invoked Article 155 of its constitution, allowing it to suspend Catalonia’s political autonomy, but did it in October 2017 to crush the legitimate aspirations of the Catalan people.

A brief look at history is necessary to understand this political problem.

The fight for freedom of Catalonia has been a three-century project, one that can be traced back to 1714, when Philip V of Spain captured Barcelona.

Catalonia is the richest region in Spain and the most industrialized. It houses many of Spain’s metalworking, food-processing, pharmaceutical and chemical facilities. It also boasts a booming tourism industry, thanks to popular spots such as Barcelona. The region has about 16 percent of Spain’s population and accounts for 20 percent of the national economy.

Catalans often complain that they contribute more in taxes to the Spanish government than they get back. In 2014, Catalonia paid about $11.8 billion more to Spain’s tax authorities than it received.

The Rights to Freedom of Peaceful Assembly and of Association

The rights to freedom of peaceful assembly and of association are enshrined in a number of international and regional human rights instruments, from the Universal Declaration of Human Rights (Article 20) to the International Covenant on Civil and Political Rights (Articles 21 and 22). Similar protections exist in a number of regional human rights instruments as well, including the Charter of Fundamental Rights of the European Union (Article 12).

The right to freedom of peaceful assembly is the right to gather publicly or privately and collectively express, promote, pursue and defend common interests.

This right includes the right to participate in peaceful assemblies, meetings, protests, strikes, sit-ins, demonstrations and other temporary gatherings for a specific purpose. States not only have an obligation to protect peaceful assemblies but should also to take measures to facilitate them.

Everyone has the right to peaceful assembly. States may not limit this right for certain groups based on race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or any other status.

Under international law, the right to freedom of peaceful assembly is not absolute. Assemblies may be subject to certain restrictions, but such measures must be prescribed by law and “necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Any restrictions must meet a strict test of necessity and proportionality. Freedom must be the rule and not the exception. Restrictions should never impair the essence of the right. International law only protects assemblies which are peaceful, and the peaceful intentions of those assembling should be presumed.

In the context of the referendum in Catalonia on the 1st of October, 2017 and the aftermath, it is clear from the visuals provided by the defense lawyers that the people who had assembled at Barcelona were very peaceful and there were no signs of violence. From the visual evidence provided in the court, it becomes very clear that a good number of women and men well above the age of 60 were participating without any fear and exercising their right to freedom of peaceful assembly. The volunteers could also be seen facilitating the smooth flow of people and they could be seen side by side next to the police.

The only people who had climbed on top of vehicles in large numbers were the photographers and journalists to get a better view. In the videos shown in the courtroom, there was no provocation by any Catalonian leaders nor any violence visible. The Spanish authorities have converted the right to assembly and demonstration, into a crime of rebellion. Neither the events of 20 September 2017 nor those of 1 or 3 October 2017, led to the violence required in Article 472 of the Spanish Criminal Code as this crime requires a violent public uprising which never happened.

According to the Universal Declaration of Human Rights, freedom of expression is the right of every individual to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Participation rights are inextricably linked to other human rights such as the rights to peaceful assembly and association, freedom of expression and opinion and the rights to education and to information. The right to directly and indirectly participate in political and public life is important in empowering individuals and groups and is one of the core elements of human rights-based approaches aimed at eliminating marginalization and discrimination.

It is a well-documented fact that the Spanish police fired blank cartridges and rubber bullets, seriously injuring one person and causing him to lose sight in one eye. Easily visible was the brandishing of batons by the police on women and men who were on the streets.

The central government used aggressive methods to disrupt the referendum, adding to a chaotic environment that did not allow for fair and transparent balloting. Police deployed by the central authorities were ordered to halt the vote, in part by seizing ballot materials, and in some cases they used baton charges against peaceful demonstrators outside polling locations and many leading human rights groups alleged excessive use of force by the Spanish police.

Questions over the Independence of the Judiciary

The 12 judges of the Spanish Supreme court who sit on the 20-member General Council of the Judiciary which oversees the courts and ensures their independence are not directly elected by their peers, but appointed through a three-fifths vote in the parliament, as are the other eight members.

Supreme Court judges are appointed by the General Council of the Judiciary (CGPJ), the body elected by the Spanish parliament, in a process which has been challenged due to political interference which can potentially jeopardize the independence of the high ranks of the judiciary, particularly in politically sensitive cases.

The Council of Europe has criticized the fact that under current law, the constitution provides for an independent judiciary, and the courts operate autonomously in practice. Experts have argued that this arrangement increases the risk of political influence.

The highly political nature of the ongoing criminal procedure is evidenced by the fact that the far-right political party VOX is taking part in the private prosecution.

Pre-trial detention

The right to personal liberty, in order to be compatible with international standards and the presumption of innocence, pretrial detention must only be applied as a last resort. Pre-trial detention constitutes a disproportionate restriction on his fundamental rights to free expression, peaceful assembly, and personal liberty. Many international human rights organizations who have examined the Catalonian case thoroughly have concluded that the charges against those detained are unfounded and must, therefore, be dropped.

Ideological Freedom

Section 16, Constitution of Spain states that “Freedom of ideology, religion, and worship is guaranteed, to individuals and communities with no other restriction on their expression than may be necessary to maintain public order as protected by law.”

In the case of the detained leaders, it is very clear that all of them stood for an ideology, the ideology that represents the freedom to live and exist as a people, the people of Catalonia to be precise. They stood for the ideology of upholding the Right to Self Determination, enshrined in all the books of human rights from the beginning of the 20th century.

Everyone has the inherent right to self-determination; the Spanish authorities are questioning this very basic right and have imprisoned the nine Catalonian political prisoners. They have been deprived of all their basic rights including the right to adequate leisure as they are forced to move to the court from morning and stay till very late in the evening. If natural justice is to prevail, the case has to be moved to a neutral venue in the light of Germany and Belgium acquitting Mr. Carles Puigdemont for the crimes of sedition, rebellion, and misuse of public funds.

Spain has a conflict of interest in this trial. Spain is the sixth worst member state in the EU’s judicial independence perception index. The state forces have so far enjoyed complete impunity and there is no guarantee that it will not be extended. Keeping these events and the past history of the Spanish Judiciary, it is pertinent that if justice and truth have to prevail, the case has to be shifted to a neutral venue and under an international tribunal.

Spain has obligations to protect freedom of expression, including political expression, under Article 10 of the European Convention on Human Rights (ECHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR); and freedom of peaceful assembly and association under Article 11 ECHR and Article 21 and 22 ICCPR.

It is also a false allegation that those illegally put behind bars laundered public money as they are leading politicians and social workers who have a positive reputation in the society and charging them with sedition and laundering of public money is an absurd charge with complete disrespect for human rights.