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The Catalan Ombudsman reports violations of rights in the Supreme Court interlocutory decrees that revoke the third degree of prison regime

04/12/2020

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STATEMENT REGARDING THE INTERLOCUTORY DECREES OF THE SPANISH SUPREME COURT OF DECEMBER 4, 2020

  • Giving up one's own ideology should be considered a violation of ideological freedom, as stated by both the Spanish Constitutional Court and the European Court of Human Rights
  • The sentencing court is not the judicial body laid down by law for this matter, since it is not specialized in judicial control of criminal enforcement 

 

On December 4, 2020, the Supreme Court has issued the interlocutory decrees which, following the appeals filed by the public prosecutor, revoke the third degree of prison regime (the lowest category within the prison system) granted by the Secretariat of Criminal Measures, Reintegration and Attention to the Victim of the Catalan Government to the nine people sentenced by the Supreme Court Ruling 459/2019, of October 14, 2019. The application of the "semi-freedom" status of article 100.2 of the Penitentiary Regulations is also denied "due to lack of connection of a treatment program of this type with a process of reintegration of the crimes committed".

Among the reasons to deny criminal enforcement measures to these people are the "lack of regret" and that they have not served half their sentence.

The Catalan Ombudsman published a few weeks ago the report Effects on rights of the criminal enforcement of Supreme Court Ruling 459/2019. On this basis, and in view of the decisions adopted on December 4, 2020, by the Supreme Court, the Catalan Ombudsman considers that it is important to highlight the following considerations:

1. Judicial body laid down by law

The decision to grant the third degree to the nine people deprived of their freedom has gone through a technical process (the treatment boards of the prisons in which they are serving their sentence) and has been endorsed by two different prison supervision courts. The existence of these specialized jurisdictional bodies in the penitentiary field, as specialized bodies entrusted with the control of the legality of the decisions and measures of the penitentiary administration, is a guarantee for the criminal enforcement of the sentences. The intervention in matters of criminal enforcement of the court that issued the sentence, which may be biased by this fact, blurs the guarantee of the rights of people deprived of their freedom, consisting of a judicial control by a specialized and autonomous judicial body, which is in the spirit of the Penitentiary Law.

2. Ideological freedom

To the extent that the prison situation is conditioned to the recognition of the crime, to regret and to a treatment program connected with the crime, the Supreme Court interlocutory decrees could threaten the ideological freedom of the convicted people. These people have never denied the facts and have fully complied with their criminal consequences. To demand that the criminal nature of these acts be accepted or that programs aimed at changing their ideas and beliefs be imposed as prison treatment, as a condition for obtaining a specific prison regime, would constitute a violation of ideological freedom recognized in article 16.1 of the Spanish Constitution and of the freedom of thought recognized in article 9.1 of the European Convention on Human Rights. Giving up one's own ideology should be considered a violation of ideological freedom, in the sense indicated by both the Constitutional Court and the ECHR.

3. Length of the sentence

Certainly, the length of the sentence is one of the variables of articles 102 of the Penitentiary Regulations and 63 of the General Prison Act in order to grant or not a third degree. However, in the case of the nine convicted people, the revocation of the third degree on the basis of the time of completion or the length of the sentence is not justified, and cannot be considered a privileged treatment with respect to other people convicted to long sentences. Prison practice in Catalonia, protected by the law, does not require that in order to be progressed to the third degree, one must have served a quarter of the sentence, not to say half of it, and have had permits. Prison legislation only requires that the person deprived of freedom has a favorable background and record. When this is the case, the person deprived of freedom can be progressed to third degree without having served a quarter of the sentence and even be initially classified as third degree.

4. Inadequate unity of action

The Catalan Ombudsman did not consider appropriate the application of reinsertion mechanisms to a unity of action (same date and same proposed mechanism), since it is more common in prison practice for different people convicted in the same proceeding to be assessed by different treatment boards, with different dates and proposed mechanisms, bearing in mind the principle of scientific individualization. By the same argumentative logic, the interlocutory decrees released on December 4, 2020, by the Supreme Court, although formally separated, do not comply either with the principle of scientific individualization, since they coincide in date, arguments and result, and treat the nine convicted people as a unity of action and not individually.

Taking into account all of the above, the Catalan Ombudsman reaffirms that the progression to the third degree approved by the Catalan penitentiary administration was and is consistent with the law, and that its application is in line with the Catalan penitentiary policy that promotes such mechanisms.

For their information, and as was done with the report of November 13, this statement will be sent to the European Committee for the Prevention of Torture and to the Spanish Ombudsman. 

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The Catalan Ombudsman recalls that judicial decisions that affect the ideological freedom of political prisoners are an attack on fundamental rights

13/11/2020

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It questions the intent to condition access to a particular prison treatment to reintegration programs that are meant to inculcate certain ideology in inmates.

The application of the regime of article 100.2 RP (penitentiary regulation) and the progression to third degree by the Catalan penitentiary administration are adjusted to law

The Spanish Supreme Court has declared itself competent to hear penitentiary issues and reintegration mechanisms instead of the specialized courts

Never before had the suspensive effect of the third degree been applied on the occasion of the Prosecutor’s appeal against the administrative decision

The objective situations of the nine convicted people transcend the specific case and could have a detrimental effect on the more than 6,000 convicted people in Catalan prisons.

The Catalan Ombudsman has today submitted the report Effects on rights of the criminal enforcement of Supreme Court ruling 459/2019 before the Parliament of Catalonia. The Catalan Ombudsman, accompanied by the Deputy General, Jaume Saura, also gave a press conference to explain the main points in the media.

The purpose of this report is to analyze the two reintegration instruments provided for in the prison regulations that have been applied to the nine people serving prison sentences for the so-called “Catalan process”, such as the regime of article 100.2 RP and the progression to “third degree”. Both mechanisms have been the subject of an appeal by the Penitentiary Surveillance Prosecutor's Office, on which the Supreme Court has decided or will resolve. 

Regarding the application of the life regime of article 100.2 RP, the Spanish Supreme Court revoked it to Carme Forcadell and is expected to resolve the appeals of Junqueras, Romeva, Rull, Turull, Forn, Sanchez and Cuixart. In relation to Dolors Bassa, the Provincial Court of Girona dismissed the appeal of the Public Prosecutor’s Office for loss of object, since at the time of resolving the appeal Bassa no longer enjoyed the flexible regime and was in the third degree. Against this ruling, the Public Prosecutor’s Office submitted an incident of nullity, as it considers that the Court of Girona did not have jurisdiction to rule on the regime of life.

And with regards to the application of the “third degree” (which basically implies that inmates spend their days out of jail and only sleep therein), the Spanish Supreme Court is pending to resolve the appeals filed by the Prosecutor’s Office against the rulings submitted by the two penitentiary surveillance courts that confirmed the progression to third degree of the nine political prisoners.

After analyzing the situation, the Catalan Ombudsman concludes that the application of the regime of article 100.2 RP and the progression to third degree by the Catalan penitentiary administration are adjusted to law, given that all proposals and decisions have been confirmed by three different and independent prison surveillance courts.

The Catalan Ombudsman also points out that this is the first time that the Spanish Supreme Court established that the sentencing court is competent to know in the last instance the flexible regime of article 100.2. The Supreme Court, as the sentencing body, has declared itself competent to hear penitentiary issues and reintegration mechanisms against the provincial courts, which have a specialized section on penitentiary matters, claiming that the sentencing court cannot lose the control over the execution of the sentence. This fact clearly expresses a certain lack of confidence in penitentiary surveillance judges, which are specialized bodies with specific sensitivity and training, which are not biased by having convicted the individual and value, from a more objective point of view, the evolution of the person deprived of liberty.

In the same regard, it also points out that regarding the third degree, the suspensive effect had never been applied following the Prosecutor’s appeal against the administrative decision. The first time has been in relation to the seven people serving sentences in Lledoners, and has been conditioned by the decision of the Supreme Court of July 22, 2020, so that these seven people have suffered an unequal situation and their rights have been violated.

In addition, the Spanish Supreme Court introduces circumstances that the Law does not provide for to decide on reintegration mechanisms and that, in the opinion of the Catalan Ombudsman, are contrary to the principle of legality. And, in this same regard, the Public Prosecutor's Office focuses on elements that are alien to the circumstances of the implementation of the penalty and makes restrictive interpretations in relation to article 100.2 RP which can be detrimental to other people deprived of their liberty.

The Catalan Ombudsman also questions the intent to condition access to a particular prison treatment to reintegration programs that are meant to inculcate certain ideas in inmates. To force anyone to renounce his own ideology must be considered a violation of ideological freedom, in the sense indicated by both the Spanish Constitutional Court and the ECHR.

In short, the Catalan Ombudsman recalls that inmates are subjects of rights and that any administrative action or judicial decision that attacks their freedom of thought or ideological freedom violates fundamental rights.

As for the prosecution's appeal to the Supreme Court against progressions to the third degree, which describes this situation as an emptying of the judgement, it is unaware that the third degree is a form of enforcement of the sentence, that people classified in this degree are far from free to move anywhere and that they remain subject to the penitentiary system.

In addition to all the above, the Catalan Ombudsman warns that the objective situations set out in the previous conclusions for the nine convicted people transcend the specific case and have an impact on the entire Catalan prison system, and also on the more than 6,000 people convicted in Catalan prisons. For example, the new suspensive effect of prosecution appeals on third-degree and flexible regime can lead to disruption and destabilization of the life of people that enjoy them, as is already happening as a result of the ruling of the Spanish Supreme Court.

On the other hand, the Catalan Ombudsman states that it is necessary to continue pursuing on the instruments of reintegration that exist in the penitentiary legislation and, in this sense, it can be a good opportunity to review the approved circulars on flexible regime, as the current circular was passed in 2005 and includes elements that currently do not have a practical application, and further promote the application of Article 100.2 RP.

To their knowledge and consideration, in addition to the Parliament of Catalonia, this report will be forwarded to the European Committee for the Prevention of Torture and to the Spanish Ombudsman.

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Statement regarding the judgement of the Spanish Supreme Court about the ban from public office of the president of the government of Catalonia

28/09/2020

Today, the judgment of the Second Chamber of the Spanish Supreme Court in the appeal filed by the Mr. Joaquim Torra Pla, President of the Government of Catalonia, against the judgment of 19 December 2019 of the Superior Court of Justice of Catalonia has been announced. In this ruling, the Supreme Court confirms the ruling of the Superior Court of Justice of Catalonia and bans the President of the Government of Catalonia from “holding public office”.

Before this situation, the Catalan Ombudsman states the following:

1. The display of banners and symbols of a political nature in public buildings, when it is protected by a democratic decision and has as its pretension a specific claim linked to the defence of rights, must be considered protected by the right to freedom of expression. In this sense, the Catalan Ombudsman ruled in his resolution of 17 September 2018.

2. Notwithstanding the above, in the election period it is necessary to extreme the neutrality of this type of institutional buildings and, for this reason, the Catalan Ombudsman recommended to the President of the Catalan Government in a decision of March 15, 2019 the removal of the banner requesting the release of political prisoners, in compliance with the decision taken by the Spanish Central Electoral Board.

3. The ban from holding public office of a democratically elected president for delaying the execution of the Central Electoral Board’s mandate by three days is, however, completely disproportionate and therefore contrary to the basic principles of criminal law. The maintenance of the banner had a vindictive, political character, which should be criminally irrelevant, as happens in most legal systems of democratic countries. It must not be forgotten that the President of the Government of Catalonia was already administratively sanctioned for this.

4. Evidence of this disproportion is that this ban from public office is a direct violation of the right to passive suffrage of President Torra, who was a Member of Parliament until his ban sentenced by the Superior Court of Justice of Catalonia. The restriction of such a fundamental right as the right to be elected in competitive elections can only be understood in cases of the most serious crimes.

Indirectly, the decision also violates the right to active suffrage of all citizens of Catalonia who participated in the elections to the Parliament of Catalonia on December 17, 2017.

For the above reasons, the Catalan Ombudsman considers that this ruling violates fundamental rights of the President of the Government of Catalonia and undermines democracy in our country.

This statement is sent to European human rights bodies to their knowledge and consideration.

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The Catalan Ombudsman is reviewed by other ombudsmen and makes public the results

26/06/2020

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The review process consisted of the evaluation by other ombudsmen of the efficiency and effectiveness of the institution, the effectiveness of the basic processes and the quality of the services

The methodology used has been based on the guidelines established by the International Ombudsman Institute

The process has ended with the publication of a report that summarizes the strengths and weaknesses of the institution

Positive and relevant elements initiated during the current term have been highlighted, such as the ability to address new and mainly social issues or those related to the most vulnerable people

The Catalan Ombudsman has undergone a review of its working methods through a methodology called peer review. This process has consisted of the evaluation by other ombudsmen of the efficiency and effectiveness of the institution, the effectiveness of the basic processes, the quality of the services offered, and good practices in case management. according to accepted criteria of what makes a good ombudsman service. The evaluation process has ended with the issuance of a report diagnosing the state of the institution and also includes some recommendations.

The approach adopted for this peer review is in line with the draft IOI Guidelines on conducting peer reviews. The Ombudsman of Catalonia contacted the IOI requesting a peer review so a review panel was chosen. The panel was formed by Rob Behrens CBE, the UK Parliamentary and Health Service Ombudsman, Catherine De Bruecker, Belgium Federal Ombudsman, and two other members of their institutions. The panel members were specifically chosen in light of their long experience serving in European Ombudsman institutions, their experience of peer reviews and in IOI Board.

In line with the IOI peer review approach, the review was undertaken both remotely, through analysis of key documentation relating to the service, and in person, via a visit to the Ombudsman’s offices in Barcelona on 20th January 2020.

During the visit, the panel received a number of presentations from senior staff about the Catalan Ombudsman. Additionally, bilateral meetings took place between the panel and staff with functional responsibilities.  This included a meeting between the panel and Ombudsman staff at all levels held in private with the organisation’s leadership absent. The panel also received a briefing from an academic specialist in constitutional law. The panel was given opportunities to view casework and monographic reports.

The review has tackled four areas: mandate and operation, citizen accessibility and redress, effectiveness and efficiency, and leadership, professionalism and human resource management. Within the framework of this four areas the panel has made a number of suggestions for incremental change and improvement.

In terms of mandate: it should be strengthened the relationship with the Spanish National Ombudsman, through either a working protocol or amended legislation. The panel recognises that this matter is not simple and has been the subject of extensive litigation. The process also culminated in highlighting positive and relevant elements initiated during the current term, such as the ability to address new issues and of a mainly social nature or related to the most vulnerable people, the strong international leadership carried out by the Catalan Ombudsman or the efficiency with which the projects have been undertaken, with figures comparable to those of other European offices.

In terms of citizen accessibility and redress, the use of alternative mechanisms to formal complaint resolutions should be investigated. Alternative dispute resolution techniques, such as mediation. It would also be worthwhile to establish a follow-up process of monographic reports in order to assess its direct impact on improving public services and defending human rights.

In terms of efficiency and effectiveness, the Catalan Ombudsman should review investment in the number of general staff available to support advisers undertaking technical analysis. Improvements in this space could have a positive impact on the quality of investigations and processing speeds The panel felt that in addition to existing meetings with bodies under investigation, it would be worthwhile for the Catalan Ombudsman to develop new models of cooperation with administration such as visits to complaint teams in departments and services or bilateral meetings with case workers. This would allow the leadership of the Ombudsman to see how complaints are being handled in the organisations being investigated, and to ascertain how improvements could be made to service response times for information.

In terms of leadership, it suggests using an annual confidential staff survey to gauge staff feedback on significant issues. Finally, in terms of work/life balance, the Office should examine whether more could be done in terms of homeworking and flexible working.

The fact is that the current ombudsman, Rafael Ribó, is at the end of his second term and, therefore, this independent evaluation of the operating model of the institution can be a good tool that will surely help to assess operation and accountability.

Interview Radio Ombudsman (PSHO)

The Catalan Ombudsman, Rafael Ribó, was invited to the interview space led by the United Kingdom's Ombudsman, Rob Behrens. The interview reviewed the personal and professional career of the Catalan Ombudsman, with special reference to his training and influences, and how these were useful to him in the task of defending human rights.

Special mention is also made of the peer review, launched to help improve the operation of the institution, to be more open to people and their grievances, to make resources more efficient, and to address in a deeper and more efficient way problems of society, such as those generated by the health system or the care of people. The Catalan Ombudsman stated that "a colleague can teach you a lot to improve".

During the interview, he tackled issues related to the international work carried out by the Catalan Ombudsman within the International Ombudsman Institute, or relations with the Council of Europe, and emphasized the importance of the Principles of Venice, which have been drawn up with the aim of being an international benchmark in terms of the guidelines that states must follow to protect ombudsman institutions.

Link to the interview: https://www.ombudsman.org.uk/news-and-blog/radio-ombudsman-podcast

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The Catalan Ombudsman will reopen its doors on 15 June

12/06/2020

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The Catalan Ombudsman reopens the doors of the headquarters, Passeig Lluís Companys, 7, on June 15, 2020 with a new schedule.

Front office hours are from 8.30 am to 2 pm, Monday to Friday.

On the other hand, the telephone service hours are from 8 a.m. to 3 p.m., Monday to Friday.

For better service, it is recommended to request an appointment by calling 900 124 124 or 933 018 075

We appreciate your cooperation and caution in continuing to comply with the safety measures established by the health authorities.

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