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The Catalan Ombudsman presents a monitoring report on the recommendations set out in the Resolution of the Parliamentary Assembly of the Council of Europe

On 21 June 2021, the Parliamentary Assembly of the Council of Europe adopted the Resolution 2381, entitled "Should politicians be prosecuted for statements made in the exercise of their mandate?", which was based on the report written by Boriss Cilevičs, to which he had devoted more than a year, including a visit to Spain supported by the state public authorities and in which he interviewed a wide range of actors from both the legal and political spheres.

The work in Catalonia included the collaboration of the Catalan Ombudsman, meetings and interviews of the rapporteur's team with entities in our country were held and reports were provided on the rights and freedoms of the institution, which were used as a basis and supporting documents in the part of the arguments.

The Resolution proposed, among other things, the necessary political treatment -not criminal- of the conflict, the modification or reinterpretation of crimes such as sedition, rebellion and embezzlement, the granting of pardons or the release of political prisoners (in accordance with the description of Resolution 1900 (2012)), the cessation of legal proceedings against others for cases related to the referendum of 1 October and the dialogue between the parties. The report also stated that in Europe there should be no room for criminal prosecution of politicians in the acts carried out in the exercise of their mandate and that freedom of expression and the possibility of questioning the status quo of a state must be protected.

In this context, the Catalan Ombudsman asked the Parliament of Catalonia to create a specific study commission to monitor and assess the level of compliance of the measures and recommendations contained in the report, which to date has not been formalized.

The report presented today aims to contribute to the follow-up of the Council of Europe resolution and makes an assessment of the degree of compliance of its recommendations.

Regarding the first recommendation of the Resolution, which calls on all the states of the Council of Europe to ensure that everyone, including politicians, enjoy freedom of expression and assembly, the Catalan Ombudsman denounces that in Spain these rights have been suffering for a long time from serious problems. To exemplify this, it has been emphasized that criminal proceedings have only been opened in the last four years and that the courts have sentenced people to various sentences (fines, imprisonment and disqualification sentences, depending on the case) for expressions contained in songs or published in social networks. Of particular concern is the use of the crimes of exaltation of terrorism, insults to the Crown and hate crimes (from expressions directed against some national institutions or the police, which are not protected as such).

The second recommendation stated the need for States to examine their criminal provisions and their application in practice in light of the judgments and decisions of the Court and also vis-à-vis with other countries, to ensure that their provisions are drafted sufficiently clearly and narrowly and that they do not lead to disproportionate penalties. In this context, the Catalan Ombudsman recalled that the most problematic provisions of Organic Law 4/2015, on the protection of public safety of 2015 (the Gag Law), have not yet been repealed, although a legislative amendment is being processed in the Congress of Deputies.

In the specific case of Spain, the Resolution recommended in the first place to reform the criminal provisions on rebellion and sedition so that they cannot be interpreted in such a way as to invalidate the decriminalization of the organization of an illegal referendum, as intended by the legislature when it abolished this specific crime in 2005, or lead to disproportionate sanctions for non-violent transgressions. In this section, the Catalan Ombudsman emphasized that, once the pardons were granted, the Government withdrew this reform. Therefore, the Council of Europe's recommendation has not been complied with at the time this report was written.

The resolution also contained the recommendation to pardon or release Catalan politicians convicted for their role in the organisation of the October 2017 referendum and the related peaceful mass demonstrations, and to consider dropping extradition proceedings against Catalan politicians living abroad who are wanted on the same grounds. In this section, the Catalan Ombudsman states that the nine people sentenced to prison terms by STS 459/2019 were pardoned on 22 June 2021, on condition that they did not re-offend, and were released. The other non-custodial sentences were not pardoned, so they are still disqualified from holding any public office.

The Catalan Ombudsman also emphasized that, contrary to the recommendations of the Parliamentary Assembly, the extradition proceedings against Catalan politicians living abroad who are being persecuted on the same grounds have not been nullified.

Regarding the recommendation to withdraw the remaining proceedings against lower-ranking officials, also implicated in the 2017 unconstitutional referendum, and not punish those who have succeeded the imprisoned political leaders, the Catalan Ombudsman recalls that there has been no general withdrawal of these proceedings by the Prosecutor's Office.

The Recommendation also called for ensuring that the provision on embezzlement of public funds was applied only when real and quantified losses could be ascertained in the budget or patrimony of the State. In this sense, the Catalan Ombudsman states that the Court of Auditors is holding open proceedings against high-ranking officials who have already been tried for these acts by the Supreme Court.

The report also recommended to withdraw the demand that Catalan politicians who serve their sentences renounce their deep political convictions in exchange for a more favourable prison regime or the possibility of being granted a pardon. At this point, although they did not have to give up their political convictions in order to obtain a pardon, the Catalan Ombudsman did question whether this recommendation had been fully complied with. The fact is that the pardon is conditional on not committing a serious crime again, which can be perceived as a threat that limits the freedom of action of pardoned persons and the full exercise of their rights. In the opinion of the Catalan Ombudsman, it is also questionable whether the Supreme Court should use the argument of lack of remorse to oppose the granting of pardons or to revoke prison benefits that had been granted to convicts. In this section, it is also questionable whether convicted persons had to undergo a reintegration program aimed at instilling certain ideas in them.

The Council of Europe also recommended establishing an open and constructive dialogue with all the political forces in Catalonia in order to strengthen the quality of Spanish democracy. In this sense, a round table has been initiated between the Catalan and the Spanish governments, with no tangible results to date.

Finally, the Resolution recalled that the principles of the rule of law, as defined by the Council of Europe, must be respected, which implies respect for the rule of law but also for fundamental rights, including freedom of expression. However, the Catalan Ombudsman warns that in Spain there has been a legalistic and formalist understanding of the rule of law in this matter, which does not take into account its other essential elements. This was shown when the President of the Supreme Court and of the General Council of the Judiciary stated that article 2 of the Spanish Constitution, relative to the indissoluble unity of the Spanish nation, is the “ultimate, nuclear and irreducible basis of all the law of a State”.

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