The Catalan Ombudsman reiterates before the Central Electoral Commission and the European Commissioner for Human Rights that the passive suffrage of the jailed candidates must be reconciled with their deprivation of liberty



The instruction judge of the Supreme Court in the special case 20907/2017 rejected, on 14th December, 2017, the request made by Jordi Sànchez (Catalan independence leader) to enjoy permits to participate in election campaign events and to be able to give interviews to the penitentiary centre where he is remanded in custody, and also connect to the Internet in a broad schedule that allows him to intervene in the campaign.

In this context, and in the most scrupulous respect for judicial decisions, the Catalan Ombudsman reiterates its statement of December 5th on the right of political participation on an equal footing, enshrined in article 23 of the Constitution and in Article 3 of the Additional Protocol to the European Convention on Human Rights.

In the European framework, the jurisprudence of the European Court of Human Rights effectively recognizes that the electoral rights of persons deprived of their liberty are not absolute and can be modulated, under the principle of proportionality, by the electoral legislation of the states. The ruling, however, does not make any modulation about the personal and unique situation of the candidate, and it denies each and every one of the measures he proposes to participate in the campaign, a participation that is naturally an integral element of the right to passive suffrage:  neither permits (escorted, if necessary, by the public force), nor contacts with the media that are not inserted in "the ordinary internal regime of the penitentiary establishment ", nor availability of the Internet "outside the ordinary control system set by the same centre".

The Catalan Ombudsman also reminds that the Electoral Law only limits the right of passive suffrage in the case of a criminal conviction, even if the judgement is not final, which does not occur in this case. Without a legal basis to substantially, limiting the right of passive suffrage is improper for a jurisdictional decision to restrict this right, nor can it be possible to restrict the rights established in the Law or the Constitution on the basis of the European Convention on Human Rights.

Consequently, the refusal, as a precautionary measure in a criminal procedure, that people remanded in custody may participate actively in an election campaign in which they are outstanding candidates violates, in the opinion of this institution, their fundamental right to passive suffrage.

This statement has been made known to the Central Electoral Board and the European Commissioner for Human Rights.