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The Catalan Ombudsman recalls that judicial decisions that affect the ideological freedom of political prisoners are an attack on fundamental rights
It questions the intent to condition access to a particular prison treatment to reintegration programs that are meant to inculcate certain ideology in inmates.
The application of the regime of article 100.2 RP (penitentiary regulation) and the progression to third degree by the Catalan penitentiary administration are adjusted to law
The Spanish Supreme Court has declared itself competent to hear penitentiary issues and reintegration mechanisms instead of the specialized courts
Never before had the suspensive effect of the third degree been applied on the occasion of the Prosecutor’s appeal against the administrative decision
The objective situations of the nine convicted people transcend the specific case and could have a detrimental effect on the more than 6,000 convicted people in Catalan prisons.
The Catalan Ombudsman has today submitted the report Effects on rights of the criminal enforcement of Supreme Court ruling 459/2019 before the Parliament of Catalonia. The Catalan Ombudsman, accompanied by the Deputy General, Jaume Saura, also gave a press conference to explain the main points in the media.
The purpose of this report is to analyze the two reintegration instruments provided for in the prison regulations that have been applied to the nine people serving prison sentences for the so-called “Catalan process”, such as the regime of article 100.2 RP and the progression to “third degree”. Both mechanisms have been the subject of an appeal by the Penitentiary Surveillance Prosecutor's Office, on which the Supreme Court has decided or will resolve.
Regarding the application of the life regime of article 100.2 RP, the Spanish Supreme Court revoked it to Carme Forcadell and is expected to resolve the appeals of Junqueras, Romeva, Rull, Turull, Forn, Sanchez and Cuixart. In relation to Dolors Bassa, the Provincial Court of Girona dismissed the appeal of the Public Prosecutor’s Office for loss of object, since at the time of resolving the appeal Bassa no longer enjoyed the flexible regime and was in the third degree. Against this ruling, the Public Prosecutor’s Office submitted an incident of nullity, as it considers that the Court of Girona did not have jurisdiction to rule on the regime of life.
And with regards to the application of the “third degree” (which basically implies that inmates spend their days out of jail and only sleep therein), the Spanish Supreme Court is pending to resolve the appeals filed by the Prosecutor’s Office against the rulings submitted by the two penitentiary surveillance courts that confirmed the progression to third degree of the nine political prisoners.
After analyzing the situation, the Catalan Ombudsman concludes that the application of the regime of article 100.2 RP and the progression to third degree by the Catalan penitentiary administration are adjusted to law, given that all proposals and decisions have been confirmed by three different and independent prison surveillance courts.
The Catalan Ombudsman also points out that this is the first time that the Spanish Supreme Court established that the sentencing court is competent to know in the last instance the flexible regime of article 100.2. The Supreme Court, as the sentencing body, has declared itself competent to hear penitentiary issues and reintegration mechanisms against the provincial courts, which have a specialized section on penitentiary matters, claiming that the sentencing court cannot lose the control over the execution of the sentence. This fact clearly expresses a certain lack of confidence in penitentiary surveillance judges, which are specialized bodies with specific sensitivity and training, which are not biased by having convicted the individual and value, from a more objective point of view, the evolution of the person deprived of liberty.
In the same regard, it also points out that regarding the third degree, the suspensive effect had never been applied following the Prosecutor’s appeal against the administrative decision. The first time has been in relation to the seven people serving sentences in Lledoners, and has been conditioned by the decision of the Supreme Court of July 22, 2020, so that these seven people have suffered an unequal situation and their rights have been violated.
In addition, the Spanish Supreme Court introduces circumstances that the Law does not provide for to decide on reintegration mechanisms and that, in the opinion of the Catalan Ombudsman, are contrary to the principle of legality. And, in this same regard, the Public Prosecutor's Office focuses on elements that are alien to the circumstances of the implementation of the penalty and makes restrictive interpretations in relation to article 100.2 RP which can be detrimental to other people deprived of their liberty.
The Catalan Ombudsman also questions the intent to condition access to a particular prison treatment to reintegration programs that are meant to inculcate certain ideas in inmates. To force anyone to renounce his own ideology must be considered a violation of ideological freedom, in the sense indicated by both the Spanish Constitutional Court and the ECHR.
In short, the Catalan Ombudsman recalls that inmates are subjects of rights and that any administrative action or judicial decision that attacks their freedom of thought or ideological freedom violates fundamental rights.
As for the prosecution's appeal to the Supreme Court against progressions to the third degree, which describes this situation as an emptying of the judgement, it is unaware that the third degree is a form of enforcement of the sentence, that people classified in this degree are far from free to move anywhere and that they remain subject to the penitentiary system.
In addition to all the above, the Catalan Ombudsman warns that the objective situations set out in the previous conclusions for the nine convicted people transcend the specific case and have an impact on the entire Catalan prison system, and also on the more than 6,000 people convicted in Catalan prisons. For example, the new suspensive effect of prosecution appeals on third-degree and flexible regime can lead to disruption and destabilization of the life of people that enjoy them, as is already happening as a result of the ruling of the Spanish Supreme Court.
On the other hand, the Catalan Ombudsman states that it is necessary to continue pursuing on the instruments of reintegration that exist in the penitentiary legislation and, in this sense, it can be a good opportunity to review the approved circulars on flexible regime, as the current circular was passed in 2005 and includes elements that currently do not have a practical application, and further promote the application of Article 100.2 RP.
To their knowledge and consideration, in addition to the Parliament of Catalonia, this report will be forwarded to the European Committee for the Prevention of Torture and to the Spanish Ombudsman.
