The Catalan Ombudsman appears before the Council of Europe to evaluate the degree to which the Spanish Government has complied with the recommendations of Resolution 2381 (2021) of the Parliamentary Assembly



Ten months after the adoption of the Resolution, no recommendation has been fully complied with

Rafael Ribó also held a meeting with the Committee for the Prevention of Torture regarding the regression of rights that may involve the application of the new protocol of coercive means in prisons

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 focused on two CoE member states: Spain and Turkey. The resolution was based on the report drafted by Member of Parliament Boriss Cilevičs, to which he had devoted more than a year and for which he had visited Spain with the support of state public authorities, including the Catalan Ombudsman, and contained a series of recommendations.

This morning, the Catalan Ombudsman, Rafael Ribó, appeared before the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe to assess the degree of achievement of the recommendations that were made. In general, the Catalan Ombudsman emphasized that none of the recommendations contained in the Resolution, ten months after its adoption, had been fully implemented.

As for the first general recommendation of the Resolution, which calls on all Council of Europe states to ensure that everyone, including politicians, enjoys freedom of expression and assembly, the Catalan Ombudsman has denounced that in Spain these rights have been suffering from serious problems for a long time.

From this point of view, it should be noted that Organic Law 4/2015 on the protection of public safety (“Gag Law”) has not yet been repealed, although its revision is currently being debated in the Congress of Deputies. This legislation contains several provisions which, in the opinion of the European Commissioner for Human Rights and the Venice Commission (as well as the Catalan Ombudsman), violate freedom of assembly and expression, and need to be thoroughly reviewed. Also, a disproportionate interpretation of the Organic Electoral Law by the administrative body that oversees the elections in Spain (the Central Electoral Board) has led to the removal of member of Parliament status of various politicians for actions and expressions made within the framework of their political ideology, such as hanging flags and ribbons in public buildings.

The first specific recommendation for Spain stated that an in-depth review of the crimes of sedition and rebellion is needed to prevent them from being used to condemn the organization of illegal referendums. During the first half of 2021 (before the adoption of the Parliamentary Assembly Resolution) the media announced that the Spanish Government was preparing a reform of the Penal Code in connection with the crimes of rebellion and sedition. According to the media, the Government has withdrawn this reform. The Council of Europe's recommendation has therefore not been complied with.

The Resolution also contained the recommendation to pardon or release Catalan politicians convicted for their role in organizing the October 2017 referendum, as well as considering the possibility of nullifying the extradition proceedings filed against Catalan politicians who are abroad. In this section, the Catalan Ombudsman explained that although the nine people sentenced to prison terms by STS 459/2019 were pardoned on 22 June, the other non-custodial sentences were not pardoned, so the disqualification from holding public office remains in force. Extradition proceedings have also not been revoked.

Regarding the recommendation to withdraw the remaining proceedings against other high-ranking and lower-ranking officials, the Catalan Ombudsman has warned that there has been no widespread withdrawal of these proceedings by the Public Prosecutor's Office. By contrast, there have been a steady stream of criminal cases, especially against protesters who took to the streets in protest of the police actions in the 1-O and subsequent trials. At present, the number of cases related to these events has reached several hundred.

Regarding the embezzlement recommendation, the Catalan Ombudsman stated that the Court of Auditors is holding open proceedings for possible accounting liabilities against thirty-four high-ranking officials of the Catalan government, many of which have been tried for embezzlement by various courts, including 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, the Catalan Ombudsman stressed 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 Catalan Ombudsman's view, 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.

The Council of Europe also recommended to establish 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 Spanish and the Catalan governments, although with no tangible results to date. Currently, as a result of the alleged espionage through the Pegasus software, which is also likely to be investigated by the Parliamentary Assembly of the Council of Europe, this round table is even more threatened.

Finally, with regard to the principles of the rule of law, as defined by the Council of Europe, the Catalan Ombudsman emphasized that Spain has not yet fully complied with any of the recommendations of the Council of Europe’s Working Group against Corruption (GRECO) in relation to the independence of the judiciary and the election system of its governing body.

Meeting with the Council of Europe’s institutions

During the same trip, the Catalan Ombudsman also held a meeting with officials from the Committee for the Prevention of Torture and presented them the report Mechanical restraint in the Catalan prison system, analysis of the practice and legal framework, which analyses the new Circular 1/2022, which came into force on April 1, and makes an assessment of the changes that have been made and those that have not been introduced at the suggestion of the Catalan Mechanism for the Prevention of Torture (MCPT). During the meeting, the Catalan Ombudsman warned of the regression of rights that could derive from the application of the new protocol of coercive means in prisons, and stated that he recommended that mechanical restraints in bed should be carried out by health professionals and not by prison staff, as it is regulated at present; that the communication to the penitentiary surveillance court must be made as soon as the restraint occurs, and that the aim to be pursued is to achieve zero mechanical restraints.

The Catalan Ombudsman also met with the team of the European Commissioner for Human Rights and with representatives of the Monitoring Committee of the Council of Europe, to whom he presented the follow-up report on the recommendations contained in CoE’s Resolution 2381, so that it can be part of their work, and has also expressed their concern about the alleged situation of espionage through the Pegasus system and other software in Catalonia.