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The Catalan Ombudsman recommends political and social dialogue, and to stop criminalizing freedom of expression and political dissidence
The abusive and disproportionate use of the cautionary measure of pre-trial incarceration is perhaps the most flagrant violation of fundamental rights in this situation
Given that this conflict, of an imminently historical and political nature, is impacting on fundamental rights, the start of constructive dialog is necessary to achieve a political solution to the conflict. This dialog must not be limited only to the political and institutional realms, but must also take place between the civil societies of Catalonia and the rest of the State, on one hand, and representatives of all political and social sensitivities in Catalonia, on the other
Responsibilities for the violence employed on October 1 must be determined, as requested by international bodies (Council of Europe and the United Nations)
The blocking of some of the candidates who had been elected, and who were in possession of their political rights, from standing as candidates for the presidency of the Catalan Government (Generalitat de Catalunya)
It is necessary to strengthen the democratic guarantees that ensure the exercise of the rights and fundamental freedoms, such as the freedom of expression, assembly and demonstration
The punishable facts associated with the political conflict in Catalonia must be tackled according the democratic principles of minimal criminal intervention
It is necessary a complete re-establishment of self-rule in Catalonia, without intervention in its administration or its finances
The inability of the Spanish State to tackle the Catalan conflict with the legal mechanisms of a democratic regime has become evident with the overwhelming reaction that the authorities have shown to have before the voting of 1-O and 21-D. In the report Human rights regression: Elected officials’ freedom of expression and the separation of powers in the kingdom of Spain, the Catalan Ombudsman already alerted in April 2017 of the erosion of the separation of powers in Spain and its effects on democratic principles.
One year after, the reaction of the three powers of the State has been characterized by resorting to exceptional measures framework that have significant impaired fundamental rights and constitutional principles, especially the freedom of expression. This is explained in the report submitted by the Catalan Ombudsman on Monday, May 28th, Report on the violation of fundamental rights and freedoms arising from the criminal justice reaction following October 1, and application of article 155 of the Spanish Constitution
According to the report, the restriction of personal freedom of several political and social leaders by an abusive and disproportionate use of the cautionary measure of pre-trial incarceration is perhaps the most flagrant violation of fundamental rights in the context of the facts that have been described in this report.
Likewise, the dissolution by article 155 of the Parliament and the removal of over 250 senior officials of the government, including the president of the Catalan Government and the entire Executive Council, have a direct impact on the right to political participation recognized in Article 23 of the Spanish Constitution, in two ways: on one hand, the rights of ousted public officials and representatives whose dismissal followed the premature dissolution of the Parliament are impaired; and, on the other, citizens’ rights to political participation, in general, are also impaired as the representatives they have elected have not been able to take office to serve the terms for which they were elected.
The right to political participation was also affected by the acts that, after the elections of December 21, blocked some of the candidates who had been elected, and who were in possession of their political rights, from standing as candidates for the presidency of the Catalan Government, in the process of investiture meant to form a new government.
The regression of freedom of expression and the rights of assembly and demonstration are not limited to pro-independence expressions or demonstrations in Catalonia, but are of a wider scope, and are being applied to different forms of protest and dissidence.
The report warns that, within the framework of the criminal proceedings underway in several judicial instances for actions derived from the October 1 referendum and the October 27 declaration, the possible impairments of fundamental rights are extremely alarming. One of the more notable impacts is the one that refers to the principle of “no punishment without law” when disproportionate accusations are made, based on clearly distorted facts, without the inseparable typical legal provision. This violation of the “no punishment without law” principle in the processing of crimes such as rebellion, sedition, terrorism or criminal organization, among others, seems to seek punishments that set an example and a deterrent effect over certain future political positions.
Furthermore, from a procedural standpoint, the possible violations of fundamental rights to the judge predetermined by law, the right to due process of law and the right to defence, as well as the public demonstrations that have taken place in recent years, all of which questions the necessary judicial impartiality.
Last, on several occasions throughout the period covered in this report, and especially on October 1, 2017, the Spanish Civil Guard and the Spanish National Police Corps acted in a manner that could be considered disproportionate, and caused damage greater than that which they supposedly sought to prevent. Especially serious is the fact that on October 1 State law enforcement agencies used rubber bullet.
