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The Catalan Ombudsman demands the acquittal of all five electoral commissioners

03/03/2021

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The institution emphasizes that the months and years spent under the most serious accusations constitute an attack on rights and freedoms that would have no place in a democratic and lawful state

These people resigned from their posts as a result of the coercive fine imposed by the Constitutional Court, which the same Court subsequently lifted

On the occasion of the beginning of the oral hearing in the criminal case against five members of the Electoral Commission of October 1, the Catalan Ombudsman demands the acquittal of all five election commissioners, and has conveyed this to the European Commission on Human Rights, the Director General for Human Rights and the Rule of Law and the Secretary General of the Council of Europe, for their knowledge and consideration.

It recalls that these people resigned their positions a few days after being appointed, as a result of the coercive fine imposed by the Constitutional Court (Ruling 126/2017, of September 20), which the same Court was to subsequently suspend (ITC of November 14, 2017) when the resignation was to take place.

In the Report on the violation of fundamental rights and public freedoms as a result of the criminal reaction after October 1 and the application of 155 CE, dated May 2018, the Catalan Ombudsman expressed its opinion on these sanctions, in accordance with what had been stated in the report of the Venice Commission of the Council of Europe on the reform of the Organic Law of the Spanish Constitutional Court (TC): the provisions relating to sanctions for non-compliance are unclear and the sanctions are so severe that they must be considered equivalent to a criminal sanction and, in accordance with the case law of the ECtHR, must enjoy the guarantees of Article 6 ECHR. The imposition of exorbitant fines (up to 12. 12,000 euros per day) by the TC on the members of the Electoral Commission for alleged disobedience to the resolutions aimed at preventing the holding of the referendum confirmed the fears of the Venice Commission, and the Catalan Ombudsman understood that these fines could represent a violation of Article 6 ECHR, especially with regard to the principle of contradiction, since they were imposed without hearing the persons affected and without the right to appeal. The fact that the penalties were finally annulled does not prevent us from affirming that this type of fine can have a dissuasive effect on the exercise of rights and freedoms.

The subsequent criminal prosecution for disobedience against these people, whom the Constitutional Court itself had avoided further prosecution, is incomprehensible, legally disproportionate and typical of a conception of criminal law as an instrument of repression.

The Catalan Ombudsman emphasizes that, although this is the result of the criminal proceedings, the months and years spent under the most serious accusations constitute an attack on rights and freedoms that would have no place in a democratic and lawful state. Investigations and preventive measures that have a dissuasive effect on the exercise of fundamental rights have been strongly criticized by the European Court of Human Rights in numerous judgments and should only be initiated and adopted when there is a certain likelihood of the commission of a serious crime, which in this case is clearly not the case.

Finally, the Catalan Ombudsman recalls that the resolution of the territorial conflict in Catalonia passes through an amnesty law that makes a clean sweep of all criminal proceedings of all persons involved in the events of October 1 and demands a legal referendum that gives the floor to the citizens with all the guarantees to decide the political future of Catalonia.

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