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The Catalan Ombudsman warns of the restrictive interpretation of fundamental rights in Judgment 459/2019 of the Spanish Supreme Court

Today, January 16, 2020, the Catalan Ombudsman, Rafael Ribó, accompanied by the Deputy General, Jaume Saura, has delivered to the President of the Parliament of Catalonia, Roger Torrent, the report about the Judgment 459/2019 of the Spanish Court Supreme and its impact on the exercise of fundamental rights 

The report, also motivated by the complaints received, is based on the contributions and reflections from a workshop that took place at the Catalan Ombudsman's office on November 13, 2019, in which expert lawyers participated. The report analyzes, on the one hand, the impact on sentenced people and their fundamental rights in the context of this criminal process. And, on the other, the potential extension of a restrictive interpretation of fundamental rights, such as freedom of assembly and demonstration or freedom of expression throughout the State, the prospect of possible violation of rights set out in the European Convention on Human Rights, and also the principle of parliamentary inviolability and separation of powers.

According to the Catalan Ombudsman, the sentence of twelve political and social leaders derived from Judgment 459/2019, nine of which between nine and thirteen years of imprisonment, is disproportionate and may have violated the constitutional rights of sentenced persons, and may also have an effect on the fulfillment of fundamental rights and freedoms by all citizens.

The report's main conclusions state that in this case the Spanish Supreme Court was not the “default ordinary judge by law”, but the disproportionate initial accusation of rebellion vitiated the entire case and led to several situations, such as the imposition of unjustified and disproportionate pre-trial detention.

With regard to the fragmentation of the case, it is found that the facts that are the subject of the prosecution in this judgment are being known by different jurisdictions at the same time (Spanish National Court, Superior Court of Catalonia,  Judicial 13 of Barcelona), which adversely affects the right to defense and the right to non-discrimination.

The report emphasizes that the Judgment makes an expansive interpretation of weak legal precepts (with regard to the crime of sedition, for example, disobedience becomes sedition; and sedition, a crime essentially of disobedience) and does not make a specific weighting of the rights to free expression and freedom of assembly and demonstration regarding the events attributed to those charged with criminal law, to evaluate them from the perspective of the exercise of fundamental rights and not exclusively from the the Criminal Code perspective. Issues such as barring the cross-examination of witnesses, barring defenses from asking questions about the ideology of certain witnesses, disregarding judge recusals or breaching the presumption of innocence by senior state officials could entail violations of fundamental rights recognized in the European Convention on Human Rights.

With regard to sentences imposed for sedition, they could incur disproportion with respect to the penalties provided for in the offenses applicable as criminal limits on the rights of assembly and demonstration, even in those that provide for the use of weapons and explosives, which the Spanish Supreme Court itself does not consider to have occurred in any event.

Generally speaking, the Supreme Court’s interpretation of some basic elements of the crime of sedition, such as the purpose of the uprising (which for the Supreme Court is to "hinder", not "prevent", the normal operation of services and public institutions and, in particular, the execution of a court decision) and the way it should be carried out (by comparing non-violent resistance to force and intimidation and without considering that the expression legal pathways used in the Criminal Code can refer to the exercise of fundamental rights), coupled with the indeterminacy of the same concept of tumultuous uprising (which in fact assimilates a mass mobilization of citizens, even peacefully), could be an excessive restriction on the right of assembly and demonstration in future citizen protests.

The Judgment culminates a long process of intervention of the courts in the internal organization and operation of the Parliament of Catalonia. Under the threat of criminal sanctions, the courts, in many cases, at the behest of the State Government, preemptively determine what issues can be discussed in Parliament and which ones are not to be discussed. The inviolability of the Parliament and its members and, indirectly, the right to political participation of the citizenry and the separation of powers are obviated.

Once again, the Catalan Ombudsman emphasizes that the conflict between Catalonia and the rest of the State is eminently political in nature and it is the result of a restrictive interpretation of the constitutional precepts on territorial self-government. Such a conflict can only have a political solution, based on the linguistic, cultural and national diversity of the Kingdom of Spain. The institution also states that the release of the sentenced persons in this case is essential for the successful exit of a negotiated solution to the current political conflict. And to do this, the State Government and the Spanish Parliament have fully constitutional tools such as the pardon or amnesty law. The repeal of the crime of sedition could also have this effect.

At the same time, the report makes several recommendations:

• Political and legal mechanisms must be activated to repeal, or revise in depth, the current regulation of the crime of sedition in the Spanish Penal Code, which has historically strong authoritarian connotations and, as seen in Judgment 459/2019 of the Court Supreme, it can be interpreted extensively as a violation of fundamental rights to freedom of assembly and of expression, in connection with freedom of expression.
• The legal instruments allowed in the constitutional framework must be launched to achieve the release of the persons sentenced in Judgment 459/2019, regardless of the necessary reform of the Criminal Code.
• A constructive dialogue must be started to achieve a political solution to the conflict between Catalonia and the State; a brave dialogue that must include a consultation with the people of Catalonia about their political future.

To their knowledge and consideration, this report will be forwarded to the Government of Catalonia, the Parliament of Catalonia, the Spanish Parliament, the State Government, the European Commissioner for Human Rights and international ombudsmen.

For the past two and a half years, the Catalan Ombudsman, in exercising its statutory and legal function to protect and defend the rights and freedoms recognized by the Spanish Constitution and the Statute of Catalonia, has warned in several reports on the regression of fundamental rights and freedoms in the Kingdom of Spain. The latest of these reports, entitled Violation of fundamental rights and freedoms arising from the criminal justice reaction following October 1, and application of article 155 of the Spanish constitution, of May 2018, with political and social leaders charged with rebellion and in pre-trial detention, shows that the actions of state powers were characterized by the application of exceptional measures that limited −and even criminalized− the exercise of fundamental rights and freedoms, especially freedom of expression.

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