Current events: news and press releases

Statement regarding the suspension from public office of six MPs of the Parliament of Catalonia

11/07/2018

cc

On July 10th, 2018, the judge's ruling of the Spanish Supreme Court in special cause 20907/2017 was issued, ordering the suspension from public office of six MPs of the Parliament of Catalonia in application of article 384 bis of the Spanish Law of criminal prosecution (LeCrim).

With regard to this decision, the Catalan Ombudsman states the following:

1. As indicated in the statement issued on June 29th, an interpretation of article 384 bis in accordance with the doctrine of the Spanish Constitutional Court (STC 199/1987) would make inapplicable the automatic suspension of office or public function of the people indicted and imprisoned for alleged crimes linked to the Catalan process, since in this case the use of weapons or explosives has not occurred at any time, as the Spanish Supreme Court itself acknowledges in its ruling June 26th, 2018. For this reason, the Catalan Ombudsman believes that the MPs affected by the suspension measure, in exercise of their right of participation and representation, may appeal against the decision to the competent jurisdictional bodies, including the constitutional one.

2. The suspension of public office or public function of article 384 bis of LeCrim may have a direct effect on the majorities of the Parliament of Catalonia and may distort the result of the elections of December 21, 2017. In this regard, it should be noted that, by means of a judicial decision of a merely precautionary nature and not on the grounds of the case under trial, several MPs could be deprived of exercising their functions for an indefinite period. Therefore, there would be a violation of the fundamental right of participation of the MP as an individual in the Parliament and, above all, of the collective right of participation of Catalan voters in the formation of political majorities through elections every four years. This decision, at the present stage of the procedure, would contradict the case law of the ECtHR, for whom "the role of the judicial bodies cannot change the expression of the people in any case" (Kerimova against Azerbaijan, September 30th, 2010).

3. The alternative provided by the judge's ruling, according to which the Parliament of Catalonia could agree to replace the suspended MPs by other members of the corresponding candidates, is not provided for in the legal system, supposes an overruling of the judicial functions for invasion of the legislative power, represents an interference with parliamentary autonomy and raises for all these reasons serious difficulties of effective application. In particular, the delivery of acts of provisional MPs, that would correspond to the Electoral Board and that cannot be sustained in the Organic Law of General Electoral Regime (LOREG). Therefore, all the risks of distortion of the electoral results of the last elections to the Parliament of Catalonia indicated in the previous point subsist for the time being.

4. Finally, the Catalan Ombudsman again emphasizes, as he has shown in his recent report of June 2017, on the violation of fundamental rights and freedoms arising from the criminal justice reaction to October 1st, that the accusations of rebellion, sedition and criminal organization that are being substantiated by the Spanish Supreme Court, the Spanish National Court and other courts of instruction are clearly disproportionate to the events that occurred in Catalonia, particularly between September and October 2017. More specifically, regarding the rebellion, the references made by the Spanish Constitutional Court (STC 199/1987) to the use of war and explosive weapons to justify the suspension of public office of people prosecuted and imprisoned by rebellion clearly denote that none of the facts that are investigated in special cause 20907/2017 incur in this criminal type. This ruling is a step in the opposite direction to the necessary dialogue to resolve the political conflict in Catalonia.

This statement is brought to the attention of the European Commissioner for Human Rights and the Parliamentary Assembly of the Council of Europe to their knowledge and consideration.

Back to the begining of the news list

The Catalan Ombudsman meets with the European Commissioner for Human Rights to expose the situation of rights violation in Spain

19/06/2018

At the meeting, the Catalan Ombudsman emphasized the violation of rights of the dismissed public officials and ceased representatives following the dissolution of Parliament, the right of political participation of citizens and the right to freedom of expression

In addition, he has requested the organizations with whom he has met to verify that the Spain fulfils the commitment to carry out an investigation for the police batton chargeson the 1st October

The Ombudsman also held meetings with the Directorate of Human Rights and the State of Law and with the Committee for the Prevention of Torture, both of which are also in the Council of Europe

The Catalan Ombudsman, Rafael Ribó, was to Strasbourg on Tuesday, June 19, to meet with the new Human Rights Commissioner of the Council of Europe, Dunja Mijatović. The Catalan Ombudsman expressed his concern about the precariousness of democracy in Spain over the last years, and especially in relation to the Catalan conflict. Specifically, he has delivered the report that he has recently submitted to the Parliament of Catalonia. Report on the violation of fundamental rights and freedoms arising from the criminal justice reaction following October 1, and application of article 155 of the Spanish Constitution

Ribó also explained the main points of the report to several members of the Council of Europe with whom he met previously: Günter Schirmer, Head of Legal Affairs and Human Rights of the Secretariat of the Parliamentary Assembly of the Council of Europe, Europe; Christos Giakoumpoulos, of the Directorate of Human Rights and the Rule of Law, and Hugh Chetwynd, head of section of the Committee for the Prevention of Torture.

In addition, he has requested the organizations with whom he has met to verify that the Spain fulfils the commitment to carry out an investigation for the police batton chargeson the 1st October. In particular, it refers to the commitment that the former Spanish Foreign Affairs Minister, Alfonso Dastis, acquired with the Secretary General of the Council of Europe, Thorbjørn Jagland, as part of a meeting.

According to the report, the abusive and disproportionate use of the cautionary measure of pre-trial incarceration is perhaps the most flagrant violation of fundamental rights in this situation

Likewise, the dissolution by article 155 of the Parliament and the removal of over 250 senior officials of the government, including the president of the Catalan Government and the entire Executive Council, have a direct impact on the right to political participation recognized in Article 23 of the Spanish Constitution, in two ways: on one hand, the rights of ousted public officials and representatives whose dismissal followed the premature dissolution of the Parliament are impaired; and, on the other, citizens’ rights to political participation, in general, are also impaired as the representatives they have elected have not been able to take office to serve the terms for which they were elected.

The right to political participation was also affected by the acts that, after the elections of December 21, blocked some of the candidates who had been elected, and who were in possession of their political rights, from standing as candidates for the presidency of the Catalan Government, in the process of investiture meant to form a new government.

The regression of freedom of expression and the rights of assembly and demonstration are not limited to pro-independence expressions or demonstrations in Catalonia, but are of a wider scope, and are being applied to different forms of protest and dissidence.

Last, on several occasions throughout the period covered in this report, and especially on October 1, 2017, the Spanish Civil Guard and the Spanish National Police Corps acted in a manner that could be considered disproportionate, and caused damage greater than that which they supposedly sought to prevent. Especially serious is the fact that on October 1 State law enforcement agencies used rubber bullet.

In the report Human rights regression: Elected officials’ freedom of expression and the separation of powers in the kingdom of Spain, the Catalan Ombudsman already alerted in April 2017 of the erosion of the separation of powers in Spain and its effects on democratic principles.

Back to the begining of the news list

The Energy Ombudsmen Network-NEON General Meeting focuses on the analysis of the Proposal for a Directive on representative actions for the protection of the collective interest of consumers

13/06/2018

The Catalan Ombudsman, who is one of the founding members, agrees that the Proposal may reinforce the protection of consumers

The Catalan Ombudsman participated this Wednesday, 13th June, in Brussels at the NEON General Meeting, which focused on the recent Proposal of the Council of Europe  that must allow consumers to organize themselves collectively.

As already stated last April, the NEON has welcomed the Directive: By allowing consumers to join up to defend their case collectively before a court, this proposal sets the framework for national legal landscapes allowing for an enhanced cooperation between public interest out-of-court settlement bodies –which are already dealing with cases of mass harm on a daily basis– and the judiciary.

This is the case of of all the NEON members. In this sense, the Commission proposal would thus allow them to be designated as “qualified entities” by Member States, allowing them to bring a case to court whenever the mediation process leads to a dead end.

To be fully effective, the NEON considers that ombudsman institutions need to be inserted in a coherent legal framework ensuring that national and regional ombudsmen and mediators, ADR bodies, regulators, public authorities, consumer organizations and the courts work together to achieve the same goals.

In any case, the NEON considers that the Directive finally approved should set out some issues that are not well resolved for the time being.

NEON (www.neon-ombudsman.org)

The National Energy Ombudsmen Network (NEON) has as its main objectives the dissemination of alternative dispute resolution mechanisms, in accordance with the recommendations of the European Commission, encouraging consumer protection, establishing links with other European agents in the sector and to facilitate the exchange of information, experiences and good practices among its members. The four founding members are the Mediation Service of the Energy Sector of Belgium, the Ombudsman Service of the United Kingdom, the National Mediator of the Energy Sector of France and the Catalan Ombudsman. Also participating in the meetings there are representatives of Italy, Ireland and the Czech Republic.

The NEON is the interlocutor of the ombudsman in the energy sector with the European Commission and, accordingly, participates in several working groups of the General Directors of Energy and Justice. There is also a permanent working relationship with the Council of European Energy Regulators (CEER) and the European Association of Consumer Associations (BEUC).

Back to the begining of the news list

The Catalan Ombudsman recommends political and social dialogue, and to stop criminalizing freedom of expression and political dissidence

28/05/2018

Report on the violation of fundamental rights and freedoms arising from the criminal justice reaction following October 1, and application of article 155 of the Spanish Constitution

The abusive and disproportionate use of the cautionary measure of pre-trial incarceration is perhaps the most flagrant violation of fundamental rights in this situation

Given that this conflict, of an imminently historical and political nature, is impacting on fundamental rights, the start of constructive dialog is necessary to achieve a political solution to the conflict. This dialog must not be limited only to the political and institutional realms, but must also take place between the civil societies of Catalonia and the rest of the State, on one hand, and representatives of all political and social sensitivities in Catalonia, on the other

Responsibilities for the violence employed on October 1 must be determined, as requested by international bodies (Council of Europe and the United Nations)

The blocking of some of the candidates who had been elected, and who were in possession of their political rights, from standing as candidates for the presidency of the Catalan Government (Generalitat de Catalunya)

It is necessary to strengthen the democratic guarantees that ensure the exercise of the rights and fundamental freedoms, such as the freedom of expression, assembly and demonstration

The punishable facts associated with the political conflict in Catalonia must be tackled according the democratic principles of minimal criminal intervention

It is necessary a complete re-establishment of self-rule in Catalonia, without intervention in its administration or its finances

 

The inability of the Spanish State to tackle the Catalan conflict with the legal mechanisms of a democratic regime has become evident with the overwhelming reaction that the authorities have shown to have before the voting of 1-O and 21-D. In the report Human rights regression: Elected officials’ freedom of expression and the separation of powers in the kingdom of Spain, the Catalan Ombudsman already alerted in April 2017 of the erosion of the separation of powers in Spain and its effects on democratic principles.

One year after, the reaction of the three powers of the State has been characterized by resorting to exceptional measures framework that have significant impaired fundamental rights and constitutional principles, especially the freedom of expression. This is explained in the report submitted by the Catalan Ombudsman on Monday, May 28th, Report on the violation of fundamental rights and freedoms arising from the criminal justice reaction following October 1, and application of article 155 of the Spanish Constitution

According to the report, the restriction of personal freedom of several political and social leaders by an abusive and disproportionate use of the cautionary measure of pre-trial incarceration is perhaps the most flagrant violation of fundamental rights in the context of the facts that have been described in this report.

Likewise, the dissolution by article 155 of the Parliament and the removal of over 250 senior officials of the government, including the president of the Catalan Government and the entire Executive Council, have a direct impact on the right to political participation recognized in Article 23 of the Spanish Constitution, in two ways: on one hand, the rights of ousted public officials and representatives whose dismissal followed the premature dissolution of the Parliament are impaired; and, on the other, citizens’ rights to political participation, in general, are also impaired as the representatives they have elected have not been able to take office to serve the terms for which they were elected.

The right to political participation was also affected by the acts that, after the elections of December 21, blocked some of the candidates who had been elected, and who were in possession of their political rights, from standing as candidates for the presidency of the Catalan Government, in the process of investiture meant to form a new government.

The regression of freedom of expression and the rights of assembly and demonstration are not limited to pro-independence expressions or demonstrations in Catalonia, but are of a wider scope, and are being applied to different forms of protest and dissidence.

The report warns that, within the framework of the criminal proceedings underway in several judicial instances for actions derived from the October 1 referendum and the October 27 declaration, the possible impairments of fundamental rights are extremely alarming. One of the more notable impacts is the one that refers to the principle of “no punishment without law” when disproportionate accusations are made, based on clearly distorted facts, without the inseparable typical legal provision. This violation of the “no punishment without law” principle in the processing of crimes such as rebellion, sedition, terrorism or criminal organization, among others, seems to seek punishments that set an example and a deterrent effect over certain future political positions.

Furthermore, from a procedural standpoint, the possible violations of fundamental rights to the judge predetermined by law, the right to due process of law and the right to defence, as well as the public demonstrations that have taken place in recent years, all of which questions the necessary judicial impartiality.

Last, on several occasions throughout the period covered in this report, and especially on October 1, 2017, the Spanish Civil Guard and the Spanish National Police Corps acted in a manner that could be considered disproportionate, and caused damage greater than that which they supposedly sought to prevent. Especially serious is the fact that on October 1 State law enforcement agencies used rubber bullet.

Back to the begining of the news list

The Catalan Ombudsman reiterates that preventing the inauguration of Jordi Sànchez violates his political rights and the independence of the Parliament of Catalonia

12/04/2018

The institution considers that the Spanish Supreme Court acts against the jurisprudence European Court of Human Rights and ignores the UN Human Rights Committee

The Catalan Ombudsman reiterates that denying a special permit to Jordi Sànchez to participate, as a candidate, in the inauguration session convened by the President of the Parliament of Catalonia for the next 13 April violates the rights of political participation of the MP and of all the citizens of Catalonia. As brought up in the statement issued on the occasion of the first attempt to inaugurate Sànchez, the refusal of the examining judge to allow his participation in an inauguration session in which he is the nominated candidate violates these rights flagrantly and is contrary to the jurisprudence of the European Court of Human Rights (ECHR).

The decision also affects the separation of powers, as, in accordance with the Statute of Catalonia (art. 67) and within the framework of the Spanish Constitution, the status of MP generates a potential right to become president of the Catalan government, if  there is a majority support of the chamber. This can only be decided by the President of Parliament, after consultations with the parliamentary groups, and the judiciary cannot supersede this democratic function.

Following this recent ruling, the Catalan Ombudsman considers that active and passive elements of the right to political participation and freedom of Jordi Sànchez are violated. Furthermore, within the framework of the statutory mandate for the defence of individual rights and public liberties, regardless of the respect for the independence of the judiciary, the Ombudsman reiterates, as in other occasions, that the criminal qualification as rebellion or sedition of the facts around October 1st is clearly disproportionate and may be in violation of the principle of criminal legality. Likewise, the prison on remand of eight people within the framework of these proceedings is disproportionate. And, as long as it has been adopted based on the ideology of these people, it would be contrary to the right to freedom of expression, freedom of assembly and demonstration and the right to personal freedom and security.

Additionally, the UN Human Rights Committee, in the acknowledgement of receipt of the communication sent by Sànchez for the alleged violation of article 25 of the International Covenant on Civil and Political Rights (Comma No. 3160 / 2018), has reminded the Spanish authorities that they must "take all necessary measures to ensure that Jordi Sànchez can exercise his political rights in accordance with article 25 of the Covenant." This warning was made in the framework of article 92 of the Rules of Procedure of the Committee, which allows this body "to notify the State its opinion on the advisability of taking provisional measures to prevent irreparable damage to the victim of the reported violation".

The Catalan Ombudsman will inform about these violations the European Commissioner for Human Rights, Dunja Mijatović, and the competent human rights bodies of the United Nations.

Back to the begining of the news list