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The Catalan Ombudsman appears before the Council of Europe to evaluate the degree to which the Spanish Government has complied with the recommendations of Resolution 2381 (2021) of the Parliamentary Assembly

29/04/2022

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Ten months after the adoption of the Resolution, no recommendation has been fully complied with

Rafael Ribó also held a meeting with the Committee for the Prevention of Torture regarding the regression of rights that may involve the application of the new protocol of coercive means in prisons

On 21 June 2021, the Parliamentary Assembly of the Council of Europe adopted the Resolution 2381, entitled Should politicians be prosecuted for statements made in the exercise of their mandate?, which focused on two CoE member states: Spain and Turkey. The resolution was based on the report drafted by Member of Parliament Boriss Cilevičs, to which he had devoted more than a year and for which he had visited Spain with the support of state public authorities, including the Catalan Ombudsman, and contained a series of recommendations.

This morning, the Catalan Ombudsman, Rafael Ribó, appeared before the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe to assess the degree of achievement of the recommendations that were made. In general, the Catalan Ombudsman emphasized that none of the recommendations contained in the Resolution, ten months after its adoption, had been fully implemented.

As for the first general recommendation of the Resolution, which calls on all Council of Europe states to ensure that everyone, including politicians, enjoys freedom of expression and assembly, the Catalan Ombudsman has denounced that in Spain these rights have been suffering from serious problems for a long time.

From this point of view, it should be noted that Organic Law 4/2015 on the protection of public safety (“Gag Law”) has not yet been repealed, although its revision is currently being debated in the Congress of Deputies. This legislation contains several provisions which, in the opinion of the European Commissioner for Human Rights and the Venice Commission (as well as the Catalan Ombudsman), violate freedom of assembly and expression, and need to be thoroughly reviewed. Also, a disproportionate interpretation of the Organic Electoral Law by the administrative body that oversees the elections in Spain (the Central Electoral Board) has led to the removal of member of Parliament status of various politicians for actions and expressions made within the framework of their political ideology, such as hanging flags and ribbons in public buildings.

The first specific recommendation for Spain stated that an in-depth review of the crimes of sedition and rebellion is needed to prevent them from being used to condemn the organization of illegal referendums. During the first half of 2021 (before the adoption of the Parliamentary Assembly Resolution) the media announced that the Spanish Government was preparing a reform of the Penal Code in connection with the crimes of rebellion and sedition. According to the media, the Government has withdrawn this reform. The Council of Europe's recommendation has therefore not been complied with.

The Resolution also contained the recommendation to pardon or release Catalan politicians convicted for their role in organizing the October 2017 referendum, as well as considering the possibility of nullifying the extradition proceedings filed against Catalan politicians who are abroad. In this section, the Catalan Ombudsman explained that although the nine people sentenced to prison terms by STS 459/2019 were pardoned on 22 June, the other non-custodial sentences were not pardoned, so the disqualification from holding public office remains in force. Extradition proceedings have also not been revoked.

Regarding the recommendation to withdraw the remaining proceedings against other high-ranking and lower-ranking officials, the Catalan Ombudsman has warned that there has been no widespread withdrawal of these proceedings by the Public Prosecutor's Office. By contrast, there have been a steady stream of criminal cases, especially against protesters who took to the streets in protest of the police actions in the 1-O and subsequent trials. At present, the number of cases related to these events has reached several hundred.

Regarding the embezzlement recommendation, the Catalan Ombudsman stated that the Court of Auditors is holding open proceedings for possible accounting liabilities against thirty-four high-ranking officials of the Catalan government, many of which have been tried for embezzlement by various courts, including the Supreme Court.

The report also recommended to withdraw the demand that Catalan politicians who serve their sentences renounce their deep political convictions in exchange for a more favourable prison regime or the possibility of being granted a pardon. At this point, the Catalan Ombudsman stressed that the pardon is conditional on not committing a serious crime again, which can be perceived as a threat that limits the freedom of action of pardoned persons and the full exercise of their rights. In the Catalan Ombudsman's view, it is also questionable whether the Supreme Court should use the argument of lack of remorse to oppose the granting of pardons or to revoke prison benefits that had been granted to convicts.

The Council of Europe also recommended to establish an open and constructive dialogue with all the political forces in Catalonia in order to strengthen the quality of Spanish democracy. In this sense, a round table has been initiated between the Spanish and the Catalan governments, although with no tangible results to date. Currently, as a result of the alleged espionage through the Pegasus software, which is also likely to be investigated by the Parliamentary Assembly of the Council of Europe, this round table is even more threatened.

Finally, with regard to the principles of the rule of law, as defined by the Council of Europe, the Catalan Ombudsman emphasized that Spain has not yet fully complied with any of the recommendations of the Council of Europe’s Working Group against Corruption (GRECO) in relation to the independence of the judiciary and the election system of its governing body.

Meeting with the Council of Europe’s institutions

During the same trip, the Catalan Ombudsman also held a meeting with officials from the Committee for the Prevention of Torture and presented them the report Mechanical restraint in the Catalan prison system, analysis of the practice and legal framework, which analyses the new Circular 1/2022, which came into force on April 1, and makes an assessment of the changes that have been made and those that have not been introduced at the suggestion of the Catalan Mechanism for the Prevention of Torture (MCPT). During the meeting, the Catalan Ombudsman warned of the regression of rights that could derive from the application of the new protocol of coercive means in prisons, and stated that he recommended that mechanical restraints in bed should be carried out by health professionals and not by prison staff, as it is regulated at present; that the communication to the penitentiary surveillance court must be made as soon as the restraint occurs, and that the aim to be pursued is to achieve zero mechanical restraints.

The Catalan Ombudsman also met with the team of the European Commissioner for Human Rights and with representatives of the Monitoring Committee of the Council of Europe, to whom he presented the follow-up report on the recommendations contained in CoE’s Resolution 2381, so that it can be part of their work, and has also expressed their concern about the alleged situation of espionage through the Pegasus system and other software in Catalonia.

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The Catalan Ombudsman presents a monitoring report on the recommendations set out in the Resolution of the Parliamentary Assembly of the Council of Europe

06/04/2022

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It has been presented to the Parliament of Catalonia and will be sent to the Council of Europe

In its report, the Catalan Ombudsman analyses the implementation by the State of the recommendations addressed by the Parliamentary Assembly of the Council of Europe through the Resolution 2381 (2021), led by the rapporteur Cilevičs

Freedom of expression has been suffering from serious problems for some time

Reform of the crimes of rebellion and sedition is still pending

Criminal proceedings and extradition requests are maintained

Disqualification from holding public office for politicians convicted by STS 459/2019 is still in force

On 21 June 2021, the Parliamentary Assembly of the Council of Europe adopted the Resolution 2381, entitled "Should politicians be prosecuted for statements made in the exercise of their mandate?", which was based on the report written by Boriss Cilevičs, to which he had devoted more than a year, including a visit to Spain supported by the state public authorities and in which he interviewed a wide range of actors from both the legal and political spheres.

The work in Catalonia included the collaboration of the Catalan Ombudsman, meetings and interviews of the rapporteur's team with entities in our country were held and reports were provided on the rights and freedoms of the institution, which were used as a basis and supporting documents in the part of the arguments.

The Resolution proposed, among other things, the necessary political treatment -not criminal- of the conflict, the modification or reinterpretation of crimes such as sedition, rebellion and embezzlement, the granting of pardons or the release of political prisoners (in accordance with the description of Resolution 1900 (2012)), the cessation of legal proceedings against others for cases related to the referendum of 1 October and the dialogue between the parties. The report also stated that in Europe there should be no room for criminal prosecution of politicians in the acts carried out in the exercise of their mandate and that freedom of expression and the possibility of questioning the status quo of a state must be protected.

In this context, the Catalan Ombudsman asked the Parliament of Catalonia to create a specific study commission to monitor and assess the level of compliance of the measures and recommendations contained in the report, which to date has not been formalized.

The report presented today aims to contribute to the follow-up of the Council of Europe resolution and makes an assessment of the degree of compliance of its recommendations.

Regarding the first recommendation of the Resolution, which calls on all the states of the Council of Europe to ensure that everyone, including politicians, enjoy freedom of expression and assembly, the Catalan Ombudsman denounces that in Spain these rights have been suffering for a long time from serious problems. To exemplify this, it has been emphasized that criminal proceedings have only been opened in the last four years and that the courts have sentenced people to various sentences (fines, imprisonment and disqualification sentences, depending on the case) for expressions contained in songs or published in social networks. Of particular concern is the use of the crimes of exaltation of terrorism, insults to the Crown and hate crimes (from expressions directed against some national institutions or the police, which are not protected as such).

The second recommendation stated the need for States to examine their criminal provisions and their application in practice in light of the judgments and decisions of the Court and also vis-à-vis with other countries, to ensure that their provisions are drafted sufficiently clearly and narrowly and that they do not lead to disproportionate penalties. In this context, the Catalan Ombudsman recalled that the most problematic provisions of Organic Law 4/2015, on the protection of public safety of 2015 (the Gag Law), have not yet been repealed, although a legislative amendment is being processed in the Congress of Deputies.

In the specific case of Spain, the Resolution recommended in the first place to reform the criminal provisions on rebellion and sedition so that they cannot be interpreted in such a way as to invalidate the decriminalization of the organization of an illegal referendum, as intended by the legislature when it abolished this specific crime in 2005, or lead to disproportionate sanctions for non-violent transgressions. In this section, the Catalan Ombudsman emphasized that, once the pardons were granted, the Government withdrew this reform. Therefore, the Council of Europe's recommendation has not been complied with at the time this report was written.

The resolution also contained the recommendation to pardon or release Catalan politicians convicted for their role in the organisation of the October 2017 referendum and the related peaceful mass demonstrations, and to consider dropping extradition proceedings against Catalan politicians living abroad who are wanted on the same grounds. In this section, the Catalan Ombudsman states that the nine people sentenced to prison terms by STS 459/2019 were pardoned on 22 June 2021, on condition that they did not re-offend, and were released. The other non-custodial sentences were not pardoned, so they are still disqualified from holding any public office.

The Catalan Ombudsman also emphasized that, contrary to the recommendations of the Parliamentary Assembly, the extradition proceedings against Catalan politicians living abroad who are being persecuted on the same grounds have not been nullified.

Regarding the recommendation to withdraw the remaining proceedings against lower-ranking officials, also implicated in the 2017 unconstitutional referendum, and not punish those who have succeeded the imprisoned political leaders, the Catalan Ombudsman recalls that there has been no general withdrawal of these proceedings by the Prosecutor's Office.

The Recommendation also called for ensuring that the provision on embezzlement of public funds was applied only when real and quantified losses could be ascertained in the budget or patrimony of the State. In this sense, the Catalan Ombudsman states that the Court of Auditors is holding open proceedings against high-ranking officials who have already been tried for these acts by the Supreme Court.

The report also recommended to withdraw the demand that Catalan politicians who serve their sentences renounce their deep political convictions in exchange for a more favourable prison regime or the possibility of being granted a pardon. At this point, although they did not have to give up their political convictions in order to obtain a pardon, the Catalan Ombudsman did question whether this recommendation had been fully complied with. The fact is that the pardon is conditional on not committing a serious crime again, which can be perceived as a threat that limits the freedom of action of pardoned persons and the full exercise of their rights. In the opinion of the Catalan Ombudsman, it is also questionable whether the Supreme Court should use the argument of lack of remorse to oppose the granting of pardons or to revoke prison benefits that had been granted to convicts. In this section, it is also questionable whether convicted persons had to undergo a reintegration program aimed at instilling certain ideas in them.

The Council of Europe also recommended establishing an open and constructive dialogue with all the political forces in Catalonia in order to strengthen the quality of Spanish democracy. In this sense, a round table has been initiated between the Catalan and the Spanish governments, with no tangible results to date.

Finally, the Resolution recalled that the principles of the rule of law, as defined by the Council of Europe, must be respected, which implies respect for the rule of law but also for fundamental rights, including freedom of expression. However, the Catalan Ombudsman warns that in Spain there has been a legalistic and formalist understanding of the rule of law in this matter, which does not take into account its other essential elements. This was shown when the President of the Supreme Court and of the General Council of the Judiciary stated that article 2 of the Spanish Constitution, relative to the indissoluble unity of the Spanish nation, is the “ultimate, nuclear and irreducible basis of all the law of a State”.

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Statement of the Catalan Ombudsman on the Russian armed attack against Ukraine

04/03/2022

foto (c) Pixabay

In light of the armed aggression against Ukraine led by Russia, with the support of Belarus, the Catalan Ombudsman has issued a number of considerations.

  1. This armed attack violates the prohibition on the use of force, violates the principle of sovereign equality and violates the respect for the territorial integrity and political independence of Ukraine, protected by the UN Charter. Continued attacks on targets and non-military personnel are violations of the Geneva Conventions and other instruments of international humanitarian law. For these reasons, those responsible for the aggression and its military development may have committed war and anti-peace crimes, which may be prosecuted by the International Criminal Court.
  2.  The international society, and in particular the European society, through its cooperation institutions (Council of Europe, European Union), has the responsibility to promote all the necessary actions to channel a dialogue between the parties involved that allows a ceasefire and a peaceful solution to their differences.
  3. States and European institutions also have the duty to receive the refugees fleeing from the armed conflict and to protect their rights under the terms of the 1951 Geneva Convention.
  4. The Catalan Government must continue to develop reception policies and to promote a culture of peace.

The Catalan Ombudsman also addressed his Ukrainian and Russian counterparts and offered them cooperation in all matters of protection of fundamental rights. And it has appealed to the European ombudsmen community to promote actions by their governments to encourage dialogue between Russia and Ukraine, and to ensure the protection of the rights of refugees within the borders of their states.

On the other hand, the International Ombudsman Institute (IOI) has issued a statement condemning strongly and unequivocally the use of force in settling international disputes, which urges all parties involved to fully respect their international obligations. The IOI has called for the immediate provision of emergency services and the development of appropriate and fully operational reception centres for refugees and displaced people, offering medical and health services, psychological support and adequate housing and meals; services aiming to reunite families; and the monitoring of detention conditions and treatment of both civilians and combatants, in accordance with the UN (CAT and OPCAT) and Council of Europe (CPT) standards and international law. The statement expresses a deep solidarity with the ombudsman institutions in Ukraine and their teams.

The European Network of Ombudspersons for Children (ENOC) issued, on 28 February 2022, a statement to which the Catalan Ombudsman has adhered. In this statement, the ENOC, after recalling that both Russia and Ukraine have ratified the United Nations Convention on the Rights of the Child, calls on Russia to immediately halt its invasion to protect the lives, safety and well-being of children. It also calls for ensuring support and humanitarian assistance to vulnerable children and young people, and for the need to accept and protect refugees.

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Statement of the Catalan Ombudsman on the Russian armed attack against Ukraine

04/03/2022

foto (c) Pixabay

In light of the armed aggression against Ukraine led by Russia, with the support of Belarus, the Catalan Ombudsman has issued a number of considerations.

  1. This armed attack violates the prohibition on the use of force, violates the principle of sovereign equality and violates the respect for the territorial integrity and political independence of Ukraine, protected by the UN Charter. Continued attacks on targets and non-military personnel are violations of the Geneva Conventions and other instruments of international humanitarian law. For these reasons, those responsible for the aggression and its military development may have committed war and anti-peace crimes, which may be prosecuted by the International Criminal Court.
  2.  The international society, and in particular the European society, through its cooperation institutions (Council of Europe, European Union), has the responsibility to promote all the necessary actions to channel a dialogue between the parties involved that allows a ceasefire and a peaceful solution to their differences.
  3. States and European institutions also have the duty to receive the refugees fleeing from the armed conflict and to protect their rights under the terms of the 1951 Geneva Convention.
  4. The Catalan Government must continue to develop reception policies and to promote a culture of peace.

The Catalan Ombudsman also addressed his Ukrainian and Russian counterparts and offered them cooperation in all matters of protection of fundamental rights. And it has appealed to the European ombudsmen community to promote actions by their governments to encourage dialogue between Russia and Ukraine, and to ensure the protection of the rights of refugees within the borders of their states.

On the other hand, the International Ombudsman Institute (IOI) has issued a statement condemning strongly and unequivocally the use of force in settling international disputes, which urges all parties involved to fully respect their international obligations. The IOI has called for the immediate provision of emergency services and the development of appropriate and fully operational reception centres for refugees and displaced people, offering medical and health services, psychological support and adequate housing and meals; services aiming to reunite families; and the monitoring of detention conditions and treatment of both civilians and combatants, in accordance with the UN (CAT and OPCAT) and Council of Europe (CPT) standards and international law. The statement expresses a deep solidarity with the ombudsman institutions in Ukraine and their teams.

The European Network of Ombudspersons for Children (ENOC) issued, on 28 February 2022, a statement to which the Catalan Ombudsman has adhered. In this statement, the ENOC, after recalling that both Russia and Ukraine have ratified the United Nations Convention on the Rights of the Child, calls on Russia to immediately halt its invasion to protect the lives, safety and well-being of children. It also calls for ensuring support and humanitarian assistance to vulnerable children and young people, and for the need to accept and protect refugees.

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The Catalan Ombudsman's annual report highlights the need to strengthen the welfare state to overcome the deep social crisis evidenced by the pandemic

11/02/2022

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Annual Report 2021

During 2021 the institution has received 11,932 complaints an 12,727 consultations and it has initiated 264 ex officio actions

Primary care must be a priority and must be strengthened

A new protection system that is better suited to the needs of vulnerable people is needed

It recommends policies in favour of the right to enjoy nature based on the implementation of the zero alternative

Rafael Ribó claims the effective right to self-government

The Catalan ombudsman, Rafael Ribó, accompanied by his two deputies, Jaume Saura i M. Jesus Larios, delivered to the President of the Parliament, Laura Borràs, the annual report of the institution corresponding to the year 2021, which once again has been marked by the pandemic of the Covid-19, with the consequent effects not only to the health system, but to a broad set of rights to the economic activity of the country.

In 2021, the number of complaints lodged, close to 12,000, was again surpassed, and more than 18,000 were processed. There were also more than 12,700 inquiries and a large number of ex officio proceedings (264). In total, around 25,000 cases have been initiated, 14% more than the previous year, which was already extraordinary.

In addition to this report, during 2021, in accordance with the regulations applicable to the institution, the Annual Report on the Rights of the Child 2021, the Annual Report of Catalan of Prevention of the Torture 2021 and The Annual Report on transparency 2020 were also submitted. In addition, the Catalan Ombudsman delivered five monographic reports, The granting of a partial pardon to the persons sentenced by ruling 459/2019 of the Supreme Court, Inclusive education in Catalonia or several reports on segregation school.

PROTECTION OF SOCIAL RIGHTS

Once again, actions related to social policies are the most important in the Catalan Ombudsman's institution, with more than 40% of new complaints and almost 60% of new official actions. As for the right to health, the biggest impact of Covid lies in the effects it has had on primary care and waiting lists. In this area, the Catalan Ombudsman considers that tackling the situation of primary care does not allow for further delays and calls for the determination and firmness of the Plan for the strengthening and transformation of primary care that has been launched. The Catalan Ombudsman also considers it essential to demand from the State the budgetary execution of the 9 billion euros of the so-called covid fund, in the part that pertains to Catalonia.

With regards to poverty, the Catalan Ombudsman denounces that the pandemic has increased the poverty rate in Catalonia, and it claims that it is necessary to make progress in redefining existing benefits and setting up a new protection system that is more in line with needs of more vulnerable people. Also, the pandemic has increased the difficulties in accessing and maintaining the usual housing, which makes it more evident the insufficiency of the existing social housing stock, and the number of people in a situation of energy poverty.

In education, the Catalan Ombudsman emphasized that the Pact against School Segregation is being implemented more slowly than expected and called for a decisive and without delay approach to the implementation phase of the planned actions, particularly the instruments. provided for in the new student admission decree.

WOMEN'S RIGHTS

And, in the field of sexual and reproductive health, it has been established that not all women in Catalonia, such as those in the health regions of Lleida and the Alt Pirineu and Aran, could access voluntary interruption. of pregnancy in its territory. In this case, the Catalan Ombudsman has called for the immediate implementation of the right to voluntary termination of pregnancy in these health regions.

In the field of taxation, discrimination has also been detected in the case of the tax treatment of the amounts received in relation to the care of children affected by cancer or other serious illness. From the analysis of the cases studied, the Catalan Ombudsman has been able to ascertain that for civil servants the reduction of the working day associated with this leave is quantified as income from work and is subject to taxation, while non-civil servants perceive it as an economic benefit and is not subject to personal income tax. In this regard, the Catalan Ombudsman has asked the Spanish Ombudsman to propose the relevant legislative amendments to ensure fairness and tax justice.

RIGHTS OF PEOPLE WITH DISABILITY

Adequate attention to the needs of people in a vulnerable situation due to dependency or disability is an essential part of social policies and must be a priority in an advanced society aimed at the full enjoyment of the rights of children. In this context, the Catalan Ombudsman considers it essential to modify the circuits and simplify the procedures for recognizing the situation of dependency and the right of access to services and related economic benefits, increasing the provision of residential places for people with intellectual disabilities and to intensify the actions of the administrations to eliminate the architectural barriers. It also calls for more determined action by the public authorities to facilitate access to employment opportunities for this group.

NATURAL ENVIRONMENT

In this section, the Catalan Ombudsman highlighted the hundreds of complaints received about the disagreement with the configuration of the tax on carbon dioxide emissions from mechanically propelled vehicles, the selective collection system implemented in several municipalities, or the rejection of the model established in the Decree on Urgent Measures for Climate Emergencies and the Promotion of Renewable Energy. The Catalan Ombudsman recommended improvements to the Administration both in terms of the configuration of the CO2 tax (and, for example, not taxing vehicles that are deregistered), the readjustment of waste management (adapting it to the needs of each district or municipality) and the need to draw up a sectoral territorial plan for the implementation of renewable energies and to prioritize implementation in degraded or already altered soils.

CIVIL AND POLITICAL RIGHTS

Following the report, should politicians be prosecuted for statements issued in the exercise of their mandate?, approved by the Parliamentary Assembly of the Council of Europe, which raises, among other things, the necessary political treatment - not criminal - of the conflict, the modification of crimes such as sedition, rebellion and embezzlement, the granting of pardons and dialogue between the parties, the Catalan Ombudsman asked the Parliament to set up a commission or working group to monitor and assess the level of compliance with the measures contained therein, which is still pending.

LINGUISTIC RIGHTS

The establishment of a 25% share of classes in Spanish in a general way in the whole education system interferes with the current and obvious legal framework that, according to the data available so far, Spanish is already vehicular language in our education system. The Catalan Ombudsman warns that not implementing the language immersion model can lead to a risk of social and linguistic segregation, and negatively affect the linguistic competence in the Catalan language of children from non-Catalan-speaking families who do not have the opportunity to speak or develop it in its closest environment.

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