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The Catalan Ombudsman calls for political dialogue, participation and freedom

1. A political issue. A political conflict should be resolved by political means

As well as in other occasions over the last few months, the Catalan Ombudsman shows that the territorial conflict existing between Catalonia and the rest of Spain has an eminently political character and results of a restrict interpretation of the constitutional precepts on territorial self-government (among others, Articles 2, 3, 149 and 156 CE, regarding nationalities, linguistic diversity, territorial dialogue and financing), which has as a turning point the ruling of the Spanish Constitutional Court of 2010 on the Statute of Catalonia.

This eminently political conflict is affecting fundamental rights, including the rights of political participation through elected representatives, freedom of expression and expression, and the right to individual freedom.

A conflict of this type can only have a political solution, based on the linguistic, cultural and national diversity of the Kingdom of Spain. A constructive dialogue must be initiated to achieve a political solution to the conflict; an imaginative and ambitious dialogue, such as the one that occurred during the Transition to democracy, which should include a consultation to the people of Catalonia.

In this sense, article 4 of Law 24/2009, of December 23, sets out, among the powers of the Catalan Ombudsman, to promote conciliation and carry out, where appropriate and within its scope of action, mediation functions or dispute resolution. For this reason, the Catalan Ombudsman, within its function of mediation, offers public authorities and society to organize a board of understanding and agreement, in the framework of its institutional responsibility and with full respect for human rights.

2. Right to participate. Citizens have the right to choose representatives, who have the right to perform their duty of representation

The Catalan Ombudsman has repeatedly stated that article 23 of the Spanish Constitution and article 3 of Additional Protocol n. 1 to the European Convention of Human Rights (ECHR), when they recognize the right to active and passive suffrage, determine that people who do not incur non-eligibility can be chosen as popular representatives. The right to passive suffrage is not limited, however, to the right to be voted on or to be chosen, but it is deployed, once chosen, in the right to carry out the task of representation for which they have been elected. This was already stated by the European Commission on Human Rights in 1984, considering that "it is not enough that a person has the right to be a candidate, they must also have the right to act as a parliamentarians once chosen. Adopting an opposite opinion would mean void the meaning of the right to be candidate in elections "(Case M. against the United Kingdom, decision of the Commission of March 7, 1984, No. 10316/83).

a) As it was noted in the statement issued almost one year ago (June 29, 2018), an interpretation of article 384 bis LECrim (Spanish Law of Criminal Procedure) in accordance with the doctrine of the Spanish Constitutional Court (Judgment 199/1987) makes inaplicable the automatic suspension of public office or public function of the people prosecuted and imprisoned for crimes of which MPs are accused of, since in this case the use of weapons or explosives has not occurred at any time, such as "it has been revealed throughout the hearing and recognized by the Supreme Court itself in its ruling on June 26, 2018. For this reason, the Catalan Ombudsman considers that the rights of MPs and senators have been affected in the participation in conditions of equality, which also affects voters’ rights, and, as a result, this may lead to appeal against this decision to the competent judicial authorities, including the Constitutional Court.

b) Furthermore, it must be reminded that the application of article 384 bis corresponds exclusively to the examining judge and that it must be taken, if appropriate, immediately after having dictated the indictment of an person, if they are being remanded in custody for that cause. No other public authority, neither judicial nor of any other type, can use this extraordinary criminal procedural rule.

c) The same considerations have to be made regarding the people who have been elected as Members of the European Parliament and as Councillor of the City Council of Barcelona, so that they must be able to fully and effectively act as elected MPs and Councillor and enjoy the respective prerogatives linked to their duty.

d) Article 99 of the Spanish Constitution states that, after the renewal of the Congress of Deputies, the king "after consultation with representatives appointed by political groups with parliamentary representation [...] will propose a candidate for the Presidency of the Government". It is completely improper, and violates the principle of separation of powers, that the Second Hall of the Supreme Court has prevented the deputy appointed by a political group with parliamentary representation from going to the query with the head of the State, adducing that it can be done by another deputy.

3. Right to freedom. Pre-trial detention for 20 months has been abusive and freedom should be restored

The Catalan Ombudsman has repeatedly stated that the restriction on the personal freedom of several political and social leaders through abusive and disproportionate use of the precautionary measure of pre-trial detention constitutes a flagrant violation of fundamental rights.  A political claim for a political problem can never be confronted or solved by criminal law procedure.

The institution has also stated that the classification of the facts object of the different judicial processes as rebellion or sedition is manifestly inappropriate and can be contrary to the principle of legality. In addition, it could be understood as a criminalization of freedom of expression and demonstration, as the peaceful demonstrations of the population, as accredited by a report of two Scotland Yard former commanders, can never be understood as a substrate for such serious crimes. The release of these people would make a decisive contribution to coexistence and favour political dialogue. Furthermore, their  release would automatically result in the inapplicability of article 384 bis LECrim by any instance, including the judicial one.

In this regard, the Working Group on Arbitrary Detentions of the United Nations, in Opinion 6/2017, of May 27, 2019, and with similar arguments to those stated by the Catalan Ombudsman in reports and statements issued last year and a half, has stated that the detention of Cuixart, Sánchez and Junqueras was arbitrary, concluding that the Kingdom of Spain should immediately release them and compensate them for the time they have been deprived of their freedom. The arguments of the Working Group can be extended to the rest of people deprived of freedom within the framework of the special cause 20907/2017.

In the opinion of the Catalan Ombudsman, the legal value of this Opinion is comparable to that issued by committees linked to international human rights treaties. This was stated by the European Court of Human Rights (ECtHR) in the decision of admissibility of the Peraldi case c. France (April 7, 2009), when defining this working group, under article 35. 2 of European Convention of Human Rights (ECHR), as "a procedure for international investigation or settlement".

In this context, it should be recalled that the Spanish Supreme Court, in its judgment of July 17, 2018 (2747/2018), stated that, although there is no specific and autonomous procedure in the Spanish legal system to comply with the recommendations of a United Nations Committee on the violation of fundamental rights, "it goes beyond doubt" that its opinions "shall be binding /obligatory for the State".

In accordance with this jurisprudence, the State should give immediate consideration to the Opinion 6/2017 of the Working Group. In this regard, the questioning that the Government of the Kingdom of Spain has made about the impartiality of two of the members of the Working Group has not been made in the opportune time process, which should have been in the framework of the response stage to the complaint lodged by the applicants.

Finally, it should be noted that the Opinion of the Working Group on Arbitrary Detention does not prevent from lodging in the future applications before the ECtHR for other facts related to the violation of fundamental rights and freedoms recognized in the European Convention that affect issues related to this process beyond these detentions considered as arbitrary (Savda c. Turkey, of June 12, 2012, paragraphs 64-70).

4. Conclusions

Therefore, the Catalan Ombudsman calls:

• on the political representatives, parliamentary groups and authorities to seek a settlement to the constitutional conflict;
• on the social leaders to promote this dialogue offering the Ombudsman institution to foster it;
• to consider as positive the release of the people linked to the Catalan independence process in pre-trial detention;
• to consider the suspension of MPs and Senators to be revoked, taking into account that this measure affects the right of passive suffrage and equal participation of suspended MPs, and also −indirectly− that of Catalan citizens who voted in the elections on April 26, 2019.

This appeal has been sent to the Parliament of Catalonia (presidency and parliamentary groups), the Government of Catalonia, the Spanish Prime Minister, the President of the Spanish Parliament, the Spanish Ombudsman, the European Ombudsman, the Commissioner for Human Rights of the Council of Europe, the United Nations High Commissioner for Human Rights and all European members of the International Ombudsman Institute. It will also be sent to social leaders who can promote and favour this dialogue.

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