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The Catalan Ombudsman analyzes the independence of the Spanish judiciary and recommends that it not be used to solve political conflicts
The institution sustains that criminal measures should be limited as much as possible to scenarios of violence, turmoil and in general, any true risk to the integrity of the State.
The Catalan Ombudsman determines thatJudgment 42/2014of the Spanish Constitutional Court was the starting point for attributing legal effects to a parliamentary resolution of a merely political character. By changing this criterion, Judgment 42/2014 has allowed the prosecution of the members of the Presiding Committee of the Catalan Parliament.
The institution alerts that an excessive intervention of criminal law in social and political sphere brings about a reduction of individual freedom and the free exercise of the right to freedom of expression.
The Catalan Ombudsman recalls that the Special Rapporteur of the UN, Pablo de Greiff, on the promotion of truth, justice, reparation and guarantees of non-recurrence, states that Spain has not faced up to its past, or done sufficient justice.
The Ombudsman of Catalonia has submitted to the Catalan Parliament the monographic report Human rights regression: Elected officials’ freedom of expression and the separation of powers in the kingdom of Spain. The report responds to the mandate of the Catalan Ombudsman in the defense of rights and freedoms in Catalonia. It analyzesthe democratic regression in rights and freedoms that have been denounced in annual reports 2014, 2015 and 2016 and several monographic reports submitted to the Catalan Parliament.Although this report does not derive from the motion of March 30thof the Catalan Parliament,it can partially respond to some of the matters brought up therein.
The report states that Spain is suffering democratic regressions that affect fundamental rights and freedoms recognized in the national and international legal frameworks, with special impact being experienced in Catalonia.
The warning statements for these setbacks, unfit to rule of law, have crossed the state level have been echoed by prominent international organizations, such as GRECO, the Venice Commission and the rapporteur of the United Nations who have called for reforms to ensure the separation of powers.
The report denounces the instrumentalization of the judiciary by the Spanish Government, especially evident with regards to the political conflict in recent years with the Catalan institutions. In this sense, the institution sustainsthere must be a return to traditional constitutional case law, in which parliamentary resolutions for political momentum did not have legal effects, and were not jurisdictionally challengeable. It is the new interpretation of the Spanish Constitutional Court that has allowed to criminally charge the President and other members of the Presiding Committee of the Parliament of Catalonia.
Furthermore, it stresses that the reform of the Constitutional Court in 2015 driven by the Popular Party has become one of the leading exponents of the blurred separation of powers in Spain, because of the sanctioning authority granted to the Constitutional Court. This formula is practically unknown in comparative law, as showed the Venice Commission of the Council of Europe, which has clearly criticized that the Constitutional Court decides about the separation of elected officials.
To the Ombudsman’s opinion, the influence of the Executive over the Prosecutor’s Office has been apparent in judicial proceedings involving politicians for acts committed in the exercise of their duties and has led tothe accusation and sentencing of the former president of the Government of Catalonia and three ministers of his cabinet.
Regarding the criminal charges against elected officials related to freedom of expression and disobedience (elected official Joan Coma, Mayor of Berga, Montserrat Venturós,and some elected officials of Badalona City Hall), the Ombudsman suggests that possible interpretations must be sought oriented to avoiding the use of criminal proceedings to solve political conflicts. In this context, measures against individuals, especially those holding elected office, should be limited as much as possible to scenarios of violence, turmoil and in general, any true risk to the integrity of the State. Consideration must be given to the possibility of allowing the defendants who do not wish to appear voluntarily to notify the court, making it possible to continue with the trial and proceedings without having to make any arrests.
In light of scandals such as the revelation of conspiratory conversations between the then-Minister of Home Affairs and the previous director of the Anti-Fraud Office of Catalonia, the Spanish government must adopt all measures necessary to investigate what transpired, without prejudice to determining any criminal or political liabilities that may arise.
To the ombudsman’s opinion, interferences and shortcomings in electoral processes must also have an appropriate answer from competent bodies (Prosecutor’s Office and electoral board, depending on the case).
The document also refers to the Report of the Special Rapporteur of the UN, Pablo de Greiff, on the promotion of truth, justice, reparation and guarantees of non-recurrence, in which it was shown that Spain has not faced up to its past, or done sufficient justice.
According to de Greiff, “The most serious shortcomings are to be found in the spheres of truth and justice. No State policy was ever established with respect to truth; there is no official information and no mechanisms for elucidating the truth".
The report submitted by the Ombudsman of Catalonia also shows that there is an abuse of criminal categories of glorification of terrorism and crimes for hate speech. Regarding the glorification of terrorism, the ombudsman showed some examples such the puppeteers or Cassandra Vera, who was condemned for joking about the death of Carrero Blanco in a terror attack. According to the Ombudsman, it is necessary to review the legislation in force and case law doctrine to achieve a perfect balance with hate crimes, glorification of terrorism and freedom of expression.
The report also outlines thatthe apparent deterioration of democratic quality is not exclusive to the Spanish State. In early 2017, the Catalan Ombudsman began two ex-officio actions following statements made by Catalan political authorities which, at the very least, could be deemed unfortunate. First, a statement that implied that the Government of Catalonia had obtained tax data of citizens. Second, the remarks made by the Catalan Minister of Governance, in which she encouraged civil servants to request a holiday to support former president on the first day of the trial for the 9N independence consultation.
The report has been submitted to the Parliament of Catalonia, requesting that it be discussed in the plenary. It has also been submitted to the European Commissioner for Human Rights, the Spanish Ombudsman, the governments of Spain and Catalonia and the Spanish Parliament, among others.
Access to report in pdf format
