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The Catalan Ombudsman demands that the right of participation be guaranteed on the 21-D of the candidates in custody

13/12/2017

The European Court of Human Rights, in the Piermont case against France, notes that free elections and freedom of expression, especially the freedom of political debate, are the foundation of every democratic regime

The classification of the facts by the Attorney General Office as a sedition or rebellion and the provisional measures do not seem to comply with the principle of proportionality

Before the ruling of the judge of the Supreme Court on the personal situation of the people investigated in the special case 20907/2017, in which it is arranged to maintain the precautionary measure of provisional custody without bail to Cuixart, Forn, Junqueras and Sànchez, the Catalan Ombudsman, with the most scrupulous respect for judicial decisions, states the following:

1. The right of political participation, enshrined in article 23 of the Constitution and in article 3 of the additional protocol to the European Convention on Human Rights (ECHR), requires candidates for democratic elections to participate in the campaign in full conditions of equality with the rest of the candidates. Following the jurisprudence of the European Court of Human Rights (ECHR), as the ECHR found in the Piermont case against France, the content of article 3 of Additional Protocol no. 1 aims to guarantee the free access of all opinion groups to political activity, to reinforce the pluralism, tolerance and openness that a democratic society demands. In this sense, free elections and freedom of expression, especially the freedom of political debate, are the foundation of every democratic regime. The two rights are interdependent and mutually reinforcing each other. Consequently, "freedom of expression is one of the conditions that guarantee the free expression of a people's opinion on the election of the legislative body."

 

For all this, it is particularly important, during electoral periods, to allow opinions and information of all kinds to circulate freely. In this way, especially in electoral periods, the right to freedom of expression guaranteed by article 10 of the ECHR must be considered in accordance with the right to make free elections, protected by article 3 of the Additional Protocol no. 1. The fact that three candidates of two different formations being in provisional custody during the campaign that begins, objectively distorts these elections and, therefore, their results. The Catalan Ombudsman has already reported in a report issued in April a worrying tendency to judge political life. In the current situation, the election campaign is also judicialized.

 

2. During the incipient investigation of the facts that are imputed to all the people investigated, including those that have remained under the jurisdiction of the Spanish National High Court, the Office of the Prosecutor and the instructional judge have made assertions that could be interpreted as criminalization of the freedom of expression and manifestation, which are rights of political participation indispensable in a democratic state. This happens when the instructional judge encompasses the crime of rebellion, which includes violence as a typical element, demonstrations of September 11 held peacefully in recent years or, equally disturbingly, allusions to eventual and future popular mobilizations, which in no case can be presumed to be violent. Or, in another context, some recent decisions of the central and provincial electoral boards of Barcelona and Tarragona about the use of yellow colour by individuals and institutions.

3. The jurisprudence of the Constitutional Court shows 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. The qualification of the facts by the Fiscal Ministry as a sedition or rebellion, assumed by the instructors of the case, as well as the provisional measures adopted at the time and that are maintained today for some of those investigated, do not seem to comply with this principle.

For all these reasons, the Catalan Ombudsman considers that respect for the Spanish Constitution cannot be confined to isolated provisions out of context, but must include all its scope of safeguard of fundamental rights and public freedoms and of recognition of self-government (article 2 and Title VIII), which has collided with the application of article 155, as the Catalan Ombudsman already stated on November 2nd.

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