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Statement by the Catalan Ombudsman

03/11/2017

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On October 27th, after the approval of two resolutions in the Parliament of Catalonia, clearly outside the constitutional framework with the alleged declaration of independence, the Senate Plenary authorized a broad following of measures regarding the Government in application of Article 155 of the Spanish Constitution (SC). From here, the prime minister of Spain has adopted several royal decrees that include the cessation of the president, the vice president and the directors of the Government of Catalonia, as well as other senior officials of the Government, and the dissolution of the Parliament of Catalonia. This dissolution brings together the call for autonomous elections for December 21st this year. The State Attorney General has also raised before the Supreme Court and the National High Court criminal complaints against the members of the Government of Catalonia and against the Bureau of Parliament, which have been admitted by both courts.

In this context, the Catalan Ombudsman reiterates that the conflict that has been posed for years between the Catalan and Spanish institutions, manifested in a growing and peaceful manner by a very important part of the citizens of Catalonia and debated in the institutions of Catalonia and in the whole of the society with serenity, has an essentially political dimension and should be resolved through the political, institutional, legal, agreements, proposals of reforms of the basic regulation, with consultations to the citizens and with gestures of understanding. And it can still be solved by political and sincere and loyal dialogue, with a generous interpretation of the legal framework and with respect to the fundamental rights provided for in the international treaties, in force also in Spain.

The application of Article 155 of the Spanish Constitution

The Constitutional Court's action suspending or declaring unconstitutional laws passed by the Catalan Parliament or subsequent statements shows that there are legal measures within the current order to guarantee compliance with the constitutional order more adequate than the use of Article 155 SC. Besides not having explicitly set a temporary limit of validity, the measures adopted by the Spanish State could violate the fundamental right to political participation of all citizens of Catalonia, recognized in Articles 23 SC and 3 of the additional Protocol to the European Convention on Human Rights. These precepts establish:

" Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage " (art. 23 CE)

“The High Contracting Parties undertake to organize, at reasonable intervals, free elections with secret scrutiny, under conditions that guarantee the free expression of the opinion of the people in the election of the legislative body” (art. 3 Additional Protocol)

The exercise of the parliamentary mandate of the elected positions is protected by the jurisprudence of the European Court of Human Rights in application of this last precept and, from this point of view, the dismissal of the Catalan Government violates the right to political participation of all the citizens of Catalonia, regardless of the options they voted for in the elections of September 2015. This is the case in which this removal occurs with a possible transgression of the Spanish legal system itself, since no provision of the Spanish Constitution, included Article 155,  does not provide for such a measure to be adopted.

This resolution can be appealed by citizens, even in constitutional proceedings, by those who consider their right of participation to be violated. On the other hand, in the face of irregularities committed in the parliamentary headquarters that damage rights, parliamentarians have, as the Catalan Ombudsman has already stated, the specific remedy provided for in the Constitutional Court Law.

In addition, the interpretation made by the Senate and the Government of Article 155 seems contrary to other constitutional precepts. Decisions taken on the competence to dissolve the Parliament and call elections, as well as cease the President and the Government, may violate the right to autonomy recognized in Article 2 of the SC and the system developed in Title VIII. However, the elections called for December 21 must be able to develop with all democratic guarantees and without any threat or warning in relation to their results. And, in any case, the Spanish Government should publicly commit itself to lifting the exceptional measures adopted once the new government of Catalonia is formed freely and according to the statutory provisions.

Furthermore, regardless of whether the suspension of the self-government of Catalonia can be considered an intrinsic violation of rights or not, the fact that the Administration of the Government of Catalonia is ruled remotely, by instances beyond the will expressed by citizens of Catalonia not responding to their legitimate representatives, can generate a risk of mismanagement and potential violations of rights.

The indictment of the dismissed Government and the Parliament's Bureau

All legal and institutional channels should prevail over the criminal path to resolve these issues. In this sense, the exposition of motives of the Organic Law of Modification of the Penal Code that decriminalized the convocation of illegal referendums, after affirming that this conduct does not have sufficient penal entity, expressly indicates that "in our order there are other forms of control of the legality different from the criminal one. Thus, the exercise of the powers to convene or promote consultations by those who do not have them legally attributed is perfectly controllable by means other than criminal. "

Therefore, with full respect for the independence of the judiciary, and underlining the need to always collaborate with it, it is important to point out the potential affectation to fundamental rights recognized in international treaties and in the SC through the admission of criminal complaints filed by the State Attorney General in the Supreme Court and National High Court.

In the first place, they can represent a violation of the right to the judge predetermined by Law, which should be the ordinary jurisdiction of Catalonia, and first of all the Superior Court of Justice of Catalonia (TSJC).

Even so, it is surprising the disparity of criteria between the two instances, Supreme Court and National High Court , regarding the exercise of the right of defence and the application of precautionary measures.

Secondly, in the case of the members of the Bureau, it seems to be avoided, as already stated in the report submitted in April, the inviolability enjoyed by deputies in their parliamentary function, as it is, without a doubt , the admission to process, through voting, of resolution proposals.

Finally, the criminal qualification as rebellion proposed by the Public Prosecutor's Office and initially accepted by the highest jurisdictional authorities seems completely disproportionate to describe the facts of all known, as was also disproportionate the order of preventive imprisonment without bail imposed on Jordi Sànchez and Jordi Cuixart, which remains to this date despite the substantial modification of the circumstances in which that judicial decision was made. The precautionary measures of provisional prison now applied to dismissed ministers are another example of the disproportion of justice.

The jurisprudence of the Constitutional Court clearly states that articles 25.2 and 9.3 of the Constitution oblige to guarantee a principle of proportionality of penalties that does not seem to be respected in this case. Likewise, the retroactive the description by the criminal complaint of large demonstrations that have been exemplary because of their civility as intimidating may pose a serious risk of transgression of Article 21 SC, which recognizes the right to assembly and demonstration.

These violations of fundamental rights and public freedoms recognized in the Constitution and in the European Convention for the safeguarding of fundamental rights and public freedoms and in their additional protocols could end up in the European Court of Human Rights. Unfortunately, the most predictable Strasbourg pronouncements will come after a long time, when the violations of rights are irreversible and the only possible reparation is the moral one or, depending on the cases, the economic one. The Catalan Ombudsman urge the different powers to revert from the beginning these situations that violate rights and freedoms to avoid, as repeatedly happened, that the highest European jurisdictional body on human rights condemn the Spanish State for violations of human rights internal and international norms for violation of human rights.

The Catalan Ombudsman already warned in the report about the regression of rights and freedoms, following the warnings received from European authorities, about the threats to rights in the use of the criminal solution for institutional political conflicts and the partisans drifts in judicial bodies.

The Catalan Ombudsman will continue to watch out for violations of rights that may occur during the validity of this situation and will exercise its functions of investigation, supervision, study and report to all instances in all their extension.

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The Catalan Ombudsman states that independence movement cannot be criminalized and calls for immediate political dialogue

18/10/2017

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On October 16, the magistrate of the Central Court of Instruction No. 3 of the Spanish National Court decided to preventively jail without bail the presidents of the Catalan National Assembly and Òmnium Cultural for an alleged crime of sedition.

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The Catalan Ombudsman, within the framework of his statutory mandate to defend individual rights and public freedoms, notwithstanding the independence of the judiciary, states that the imprisonment of the former ombudsman’s general deputy and current president of the ANC, as well as the president of Òmnium Cultural, constitutes a decision contrary to the rights and freedoms set out in the international treaties ratified by the Kingdom of Spain, in particular freedom of expression, freedom of assembly and demonstration and the right to freedom of expression and security.

The Catalan Ombudsman reminds that the entities presided over by Jordi Sànchez and Jordi Cuixart have tens of thousands of associates, who defend an ideology −the independence of Catalonia− that is neither punishable nor unlawful, as it is unmistakably clear in the Judgment 42/2014 of the Spanish Constitutional Court. In this decision, the Constitutional Court affirmed that all ideas, including those that seek to alter the very foundation of the constitutional order, have a place within the constitutional system, and that preparatory activities can be deployed.

Pro-independence entities, and their presidents, have participated in the organization of demonstrations that have mobilized hundreds of thousands of people on several occasions over the last few years, in particular the demonstrations of the National Day of Catalonia, always in a peaceful and festive way. The pacifist trajectory of Sànchez and Cuixart is well known.

The ruling of the Central Court of Instruction no. 3 contains elements that could be interpreted as the criminalization of entities and a social movement, exclusively because of their ideology, in a way clearly contrary to rights and freedoms recognized internationally and in the Constitution, particularly freedom of expression. In fact, in the criminal order there are other precautionary measures less severe to avoid the presumption of future criminal reiteration, insufficiently motivated in the ruling. The lack of implementation of these measures, as happened with the other persons investigated, may lead one to think that it intends to criminalize entities and currents of opinion in Catalonia and to weaken their leadership.

Likewise, the Catalan Ombudsman reminds that, according to Article 6 of the European Convention on Human Rights, everyone has the right to a fair trial and, in particular, that anyone accused of an offense is presumed innocent until proven legally guilty.

Accordingly, the Catalan Ombudsman expresses the urgent need to restore fundamental rights as a key to a democratic and legal state, in which the scrupulous respect for human rights is essential in any situation.

The Catalan Ombudsman finally points out that the conflict between Catalonia and Spain has as a way of solution the political dialogue between both parties. This path of dialogue, which until now has not been possible, will undoubtedly be hampered by decisions that may lead to the abuse of people's fundamental rights.

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The European Commissioner for Human Rights has informed the Ombudsman that he has requested that the police charges of 1st-Oct be investigated

09/10/2017

The Catalan Ombudsman recently sent the Commissioner information on the social and political context in Spain and in Catalonia

Nils Muižnieks has made the letter sent on October 4th to the Spanish Minister of Internal Affairs public

He has also made public the answer of the minister, who dismissed the request and defended the actions of the security forces

“I urge you to ensure, in co-operation with other authorities in charge of law enforcement that swift, independent and effective investigations are carried out into all allegation of police misconduct and disproportionate use of force during the events of 1 October 2017 in Catalonia”. This is the requirement that the European Commissioner for Human Rights recently sent (4 October) to the Minister of the Interior, Juan Ignacio Zoido. The Catalan Ombudsman also sent the Commissioner information on the social and political context in Spain and Catalonia; in particular, he has forwarded information about the actions of the state security forces on October 1st and the institution's desire to elucidate judicial and police responsibilities.

Despite the forcefulness of Nils Muižnieks’ letter, the Spanish minister dismissed the recommendation in a letter stating that "the state security forces and bodies, following instructions from the judiciary, acted with caution and proportionality."

The Catalan Ombudsman, who is continuing his research and has already received about 200 complaints on this situation, considers that this issue must be looked into and it should be ensured that it does not happen again.

Rafael Ribó also informed about the seriousness of the events, besides the European Commissioner for Human Rights, the European Ombudsman, the UN High Commissioner for Human Rights, the president of the International Ombudsman Institute and the regional ombudsmen.

Among the international rights defence organizations that have so far spoken against the violence used by the security forces there are the Congress of European Local and Regional Authorities, the Parliamentary Assembly of the Council of Europe, the Organization for to the Security and the Cooperation in Europe, as well as the United Nations High Commissioner for Human Rights and the special rapporteur for freedom of expression and opinion.

The Catalan  Ombudsman also learned that Amnesty International concludes, in the report prepared by observers, that there was an excessive and unnecessary use of force by the police on defenceless people and the use of rubber balls, and also that Human Rights Watch is also writing one.

Access to the letters available at the European Comissioner for Human Rights website

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Proposal for dialogue and mediation in the current political context

04/10/2017

In view of the serious events that occurred on Sunday, October 1st, with flagrant transgression of human rights, as well as the current context and the political and social situation in Catalonia, the Catalan Ombudsman reiterates its strong position in favour of dialogue without conditions, at a time when the fulfilment human rights in Spain are at risk, including the most basic rights.

Article 4 of Law 24/2009 sets out that one of the functions of the Catalan Ombudsman is promoting conciliation and carrying out, if necessary and within its sphere of action, mediation or dispute resolution.

The Law establishes that, in exercising the functions of mediation, "the Ombudsman shall organize the exchange of views between the parties involved, encouraging that they reach an agreement and formulating proposals of conflict resolution, without binding character, so that those affected can freely decide on the basis of these proposals".

For all of this, and within the framework of its powers, the Catalan Ombudsman offers the institution of the Ombudsman of Catalonia in its mediating role to public authorities, in order to organize –in the areas of Catalonia, Spain and the international community– a table of understanding and agreement, from institutional responsibility and full respect for human rights by all branches of government to the highest levels of the three branches of separation of powers (legislative, executive and judicial), and – specifically the Spanish Prime Minister and the Prime Minister of the Government of Catalonia– the Spanish Parliament and the Parliament of Catalonia, and the other powers of the State, as well as the Ombudsman.

The Catalan Ombudsman proposes to agree, as a common starting point between all those concerned, to set the tramline to zero for agreement and understanding.

The Catalan Ombudsman reminds that the United Nations High Commissioner for Human Rights states that the current situation must be resolved through political dialogue, with full respect for democratic freedoms, and has called for an independent and impartial investigation into the facts.

The Catalan Ombudsman has also exposed the numerous signs of support and condemnation of the facts that the institution has received at the international level.

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Proposal for dialogue and mediation in the current political context

04/10/2017

In view of the serious events that occurred on Sunday, October 1st, with flagrant transgression of human rights, as well as the current context and the political and social situation in Catalonia, the Catalan Ombudsman reiterates its strong position in favour of dialogue without conditions, at a time when the fulfilment human rights in Spain are at risk, including the most basic rights.

Article 4 of Law 24/2009 sets out that one of the functions of the Catalan Ombudsman is promoting conciliation and carrying out, if necessary and within its sphere of action, mediation or dispute resolution.

The Law establishes that, in exercising the functions of mediation, "the Ombudsman shall organize the exchange of views between the parties involved, encouraging that they reach an agreement and formulating proposals of conflict resolution, without binding character, so that those affected can freely decide on the basis of these proposals".

For all of this, and within the framework of its powers, the Catalan Ombudsman offers the institution of the Ombudsman of Catalonia in its mediating role to public authorities, in order to organize –in the areas of Catalonia, Spain and the international community– a table of understanding and agreement, from institutional responsibility and full respect for human rights by all branches of government to the highest levels of the three branches of separation of powers (legislative, executive and judicial), and – specifically the Spanish Prime Minister and the Prime Minister of the Government of Catalonia– the Spanish Parliament and the Parliament of Catalonia, and the other powers of the State, as well as the Ombudsman.

The Catalan Ombudsman proposes to agree, as a common starting point between all those concerned, to set the tramline to zero for agreement and understanding.

The Catalan Ombudsman reminds that the United Nations High Commissioner for Human Rights states that the current situation must be resolved through political dialogue, with full respect for democratic freedoms, and has called for an independent and impartial investigation into the facts.

The Catalan Ombudsman has also exposed the numerous signs of support and condemnation of the facts that the institution has received at the international level.

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