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4 de nov. 2017

Ensuring The Rule Of Law

This is an urgent appeal to the European institutions, by a private European citizen.

As soon as can I shall add links to each of my affirmations to back my arguments and claims.

Why urgent?

Because in the case of the treatment by Spain of the Catalan independence process, fundamental rights have been violated, as well as non-compliance and/or grotesques interpretation of Spanish laws.

Because two presidents of the collegiate boards of civil society organisations working through transparent, radically democratic and non-violent means towards an independent Catalonia were arrested and are being held without bail in Soto del Real prison, 600 km from their homes, under accusations of crimes which a host of legal specialists (including drafters of the articles of the criminal code now being applied) regard as proposterous. They face up to 15 years in gaol if found guilty.

Because eight regional ministers were also detained, by the same judge and are being held without bail in two other prisons, likewise 600 km from their homes, after being denied any space of time for their defence strategy to be discussed, simply for having implemented their electoral commitments with a parliamentary mandate, again on charges which a host of legal specialists (for the same reasons as before) regard as proposterous. Bail has been turned down on grounds which specialists regard as equally flimsy.(see here and here: http://www.juecesdemocracia.es/2017/11/03/garantias-y-derechos/ ).

Because international search warrants, and a request for extradition, have been issued against the President of Catalonia and four other regional ministers who have received no summons, and who have stayed in Brussels (Belgium) in order to inform the International community of the gravity of the situation, and such time as they receive assurances that, if the charges are not simply dropped on account of their political motivation, they will receive a fair trial.

Because the vengeful tone of the Prosecutor-General is evident by the (hidden) metadata file name of the press communiqué: "Más dura serà la caída" (the harder they fall) (ref).

Because among other things, "sedition" and "rebellion" under Spanish law require violent uprisings which have by no stretch of the imagination taken place. Not a hair of a single official has been touched, far less at the behest of any of the 20 politicians involved in this case.

Because the Speakers of the Parliament and five members of the Bureau are to appear before the Supreme court after being given a week for their defence strategy to be discussed. Again, the charges against them are flagran violations of the rights of political representatives.

Because all of this could have been avoided if on any single one of the dozens of attested occasions - right up to the very last minute - on which dialogue and negotiation have been called for from the Catalan side, the Spanish government had not spurned the offer, often in an arrogant way.

Because my appeal to Mr. Tusk went unheeded and unanswered (link). Appeals at this late stage for "dialogue", after seven years of flat refusal to seek a solution to the 2010 institutional crisis on the part of the Spanish government, do not seem at all appropriate. As early as 2012 there were plenty of authorized voices inside and also outside Catalonia calling for a solution to be sought (link).

Because in a number of cases young children are being deprived of their mothers or fathers. Every day counts.

Some details

Spain, an EU Member State, has taken drastic measures against the Government of Catalonia, having refused since 2010 to politically address a serious constitutional crisis (deriving from a highly controversial Constitutional court decision that led to an immediate reaction in the form of a vast demonstration in July). Since then it has fined, barred from office, and now imprisoned leading politicians and social leaders for seeking to exercise article 1 of UN International human rights instruments ratified by Spain. It has taken over the regional administration and curtailed the regional Parliament, against Spain's own laws, by an application of Article 155 through a set of measures many of which legal specialists regard as totally illegal and unconstitutional in themselves.

These measures have been adopted in a State of Spanish public opinion in which almost anything goes. A tweet by a Spanish police union, treated Catalan politicians, the police chief, the head of public TV, as if they were hunting trophies to be achieved.
Given the uproar it caused, it has been deleted. What have not been deleted are many videos of Spanish Police contingents being sent off by crowds to chants of "A por ellos!" ("Go get 'em!", #APorEllos). Many videos be found on YouTube. Here's one example, from Huelva: link. Nor have literally hundreds of hate messages broadcast in the past few years by Spanish politicians (and a few Catalan ones), opinion leaders, journalists, military officers, clergymen... Latest batch: link. For years the media have been giving a monolithic, biassed, one-sided view of what is happening in Catalonia (for 2014, see link). A more recent study on hatred discourse analysed dozens of cases of "catalanophobia" (link). I claim that the intensity of propaganda about the Catalan problem, based on prejudici and stereotypes, makes it inconceivable for any Spanish judge without first hand familiarity with what is really going on to be able to be neutral in the issue.

Very few Spaniards really know why and when the conflict started. 

I really fear that the popular indignation of what was till now the "smiling revolution" may well overflow into uncontrolable violence. This would ideally suit Spain (that has over 10,000 policemen in ships in Barcelona and Tarragona ports itching to go into action). Groups of fit looking young men with nothing better to do (presumably on a tip-off, turn up at midnight to meet two Catalan ministers returning discreetly to Barcelona from Brussels - to be incarcerated a couple of days later - with Spanish flags and offensive chants. (link)

A scenario of violence is what many observers think it has been angling for for several months. This would allow a state of siege to be announced, and would allow it to postpone the 21 December election (the guarantees of which are already extremely unsure), that all surveys foresee would if held yield another majority for independence. Hardly surprising given the millions of toughened voters that despite all the threats, actually voted in the epic 1 October referendum.

In the meantime, the detainees are to my mind in serious danger in prison. They have been jeered at by policemen hoping the vicepresident will get raped in prison (ref). They have been vexed by being handcuffed behind their backs, and stripped naked as if they were traffickers (ref). Inmates have shouted "Bloody separatists, we'll kill you!" (ref). These same sources explain that one at least of the ministers was played the Spanish national anthem 17 times on a Mobile phone. They were driven at over 100 kph, without their seat belts being buckled.

Further reading

1. I recommend this:

Upholding the Rule of Law in the European Union

An open letter concerning the upholding of the Rule of Law in the European Union, co-signed by 188 scholars, politicians, public intellectuals and members of the European Parliament and sent on November 3, 2017.

https://opendemocracy.net/can-europe-make-it/barbara-spinelli-et-al/upholding-rule-of-law-in-european-union

2. And also this:

"Leading specialists in constitutional and criminal law raise serious doubts about the decision to imprison the Catalan ministers" (video)
 

Annex


Extracts from "EU Framework to strengthen the Rule of Law",
http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf

"[C]ase law of the Court of Justice of the European Union ("the Court of Justice") and of the European Court of Human Rights, as well as documents drawn up by the Council of Europe, building notably on the expertise of the Venice Commission, provide a non-exhaustive list of these principles and hence define the core meaning of the rule of law as a common value of the EU in accordance with Article 2 TEU. Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law". (p. 4)

" Article 7 TEU aims at ensuring that all Member States respect the common values of the EU, including the rule of law. Its scope is not confined to areas covered by EU law, but empowers the EU to intervene with the purpose of protecting the rule of law also in areas where Member States act autonomously. As explained in the Commission's Communication on Article 7 TEU, this is justified by the fact that "if a Member State breaches the fundamental values in a manner sufficiently serious to be caught by Article 7, this is likely to undermine the very foundation of the EU and the trust between its members, whatever the field in which the breach occurs". (p. 5)

"The Framework would not prevent the Commission from using its powers under Article 258 TFEU in situations falling within the scope of EU law. Nor would it prevent the mechanisms set out in Article 7 TEU being activated directly, should a sudden deterioration in a Member State require a stronger reaction from the EU". (p. 7)

"Where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission will initiate a structured exchange with that Member State. The process is based on the following principles:
  - focusing on finding a solution through a dialogue with the Member State concerned;
  - ensuring an objective and thorough assessment of the situation at stake; 
  - respecting the principle of equal treatment of Member States;
  - indicating swift and concrete actions which could be taken to address the systemic threat and to avoid the use of Article 7 TEU mechanisms." (p. 7)



26 d’oct. 2017

ECHR

Below is my letter (October 26 2017) to Dr. Nils Muižnieks, Council of Europe Commissioner for Human Rights


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23 d’oct. 2017

FM Dastis' incendiary claims

Abridged selection (made between 11.30 and 12.20 today October 23), on the Dastis interview on the BBC Andrew Marr show yesterday (latest on top; many that link to same URLs have been omitted) 

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22 d’oct. 2017

Nadal-Aiguaviva

This is an English translation of an interview with Prof. Josep Maria Nadal, former President of the University of Girona, who was beaten with a Spanish policeman's baton during the October 1 referendum and had to be treated in hospital for his injuries.

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21 d’oct. 2017

Their 155 can end up backfiring in their face


https://www.vilaweb.cat/noticies/el-seu-155-els-pot-acabar-sortint-per-la-culata/


Legal analysis by Marcel Mateu, professor of Constitutional Law: "To put into operation some of these measures would require various complicities that they may not necessarily manage to achieve"

President Rajoy's government has decided to completely liquidate the autonomy of Catalonia and has approved another New Scheme Decree (Nueva Planta, the 1716 decree) making itself a custom-built article 155. It has given itself a blank check, ignoring the Constitution and the Statute of Autonomy of Catalonia. The PP Government, with the complicity of the PSOE and Ciudadanos, has radically destroyed the autonomous system unilaterally, changing some of the pillars that held up the autonomous edifice, and eliminating what little political autonomy remained. For, in actual fact, a few weeks ago, under the euphemism of the economic intervention of the Generalitat, the political character of autonomy had received a death-blow, and now they have put it out of its misery, twisting article 155 of the Constitution to make it say what it literally does not say.

Article 155 allows the government to "give instructions" to all authorities of the autonomous communities (which is enough in itself!), but does not exempt it from complying with the law, and therefore the measures that are taken and the instructions that are given may not contradict the law. And all the measures that the Cabinet has agreed, all of them, directly violate the Statute of Autonomy of Catalonia ("EAC", which is an organic law of the State). The Statute lays down that the president of the Generalitat can only be elected by the Parliament, from among its members (article 67.2) and the causes of his or her replacement (art. 67.7) do not include his or her dismissal by the political decision of the Spanish prime minister, not even with the endorsement of the Senate. T
he appointment and dismissal of the rest of the members of the Government is only up to the President of the Generalitat to decide (article 17.1 of Law 13/2008). The early dissolution of the Parliament and the consequent election call is a political decision that the Statute attributes to the exclusive prerrogative of the President (art. 75), an indelegable power, because it is the very personal power of the President of the Generalitat. No-one else can exercise this attribution, and the Statute explicitly states that even in extreme cases in which the president were to die or be barred from office on a criminal conviction, the person replacing him or her temporarily (the Vice President) could not dissolve Parliament (Article 67.8) for, in such cases, Parliament would have to elect another President from its membership. Only the Catalan Government can direct the Administration of the Generalitat (article 68.1 EAC). In accordance with the Statute that has been liquidated today, the Spanish Government had no right to veto the Parliament's activity: its legislative, budgetary or political control powers (art. 55.2). These are just a few examples, but the same could be said about the command of the Mossos d'Esquadra or the direction of the public audiovisual communication media, to illustrate that what the Government of Spain has done today is a messy reform of the Statute, bypassing the procedures laid down in the Statute (arts 222 and 223).

Now, these measures agreed upon by the Spanish government, once approved by the Senate, will have to be applied. But to implement some of these measures, a number of complicities would be needed, and they may not necessarily be achieveable, such as that of most of the civil servants of Catalonia's administration. Moreover, with a massive and perseverant response from Catalan citizens, some of these measures will not be able to be applied effectively and this may make clear that the Spanish government no longer has control over Catalan territory. It can be made evident internationally that the Spanish State, in fact, can no longer exercise a sovereign power in Catalonia. The whole business could thus end up backfiring in their face.


The decision of the Spanish government to apply article 155 of the Constitution and to do so in such a clearly illegal and unconstitutional way leaves
the Parliament of Catalonia with a single dignified solution: to make a formal declaration of independence (which is what the Law of the Self-determination Referendum stipulates), which automatically means two things: that the law that will act as a provisional constitution of Catalonia (the Transitional and Foundational Law of the Republic) will enter into force and that the constituent process must begin. Within six months.

This is not the first time the Spanish government and other state agencies assert that they defend the law and the Constitution but flout them clumsily or violate them flagrantly. The latest example is the imprisonment of the two Jordis [presidents of the two main pro-independence NGOs]. But today the government of Rajoy has definitely bulldozed the master wall not only of the autonomous system but of the Rule of Law and therefore of the Spanish democracy. When the edifice falls, we need to be outside it.


Marcel Mateu, professor of constitutional law at the UOC.
 
 

11 d’oct. 2017

reformaconstitució


21 September 2017

Rajoy: “La prioridad no es reformar la Constitución sino defenderla de los que quieren liquidarla”

El presidente del Gobierno defiende posponer el debate hasta superar el embate independentista

https://politica.elpais.com/politica/2017/09/13/actualidad/1505286175_002207.html


tusk


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legalidad


Constitución Española 1978
https://www.boe.es/buscar/doc.php?id=BOE-A-1978-31229

Artículo 152.
... 2. Una vez sancionados y promulgados los respectivos Estatutos, solamente podrán ser modificados mediante los procedimientos en ellos establecidos y con referéndum entre los electores inscritos en los censos correspondientes.


Ley Orgánica 4/1979, de 18 de diciembre, de Estatuto de Autonomía de Cataluña.
https://www.boe.es/buscar/doc.php?id=BOE-A-1979-30178

Artículo 56
3. La aprobación de la reforma por las Cortes Generales mediante Ley Orgánica incluirá la autorización del Estado para que la Generalidad convoque el referéndum a que se refiere el párrafo b) del apartado 1 de este artículo.


Ley Orgánica 6/2006, de 19 de julio, de reforma del Estatuto de Autonomía de Cataluña.
https://www.boe.es/buscar/act.php?id=BOE-A-2006-13087

Artículo 223.
1. La reforma [del Estatuto] debe ajustarse al siguiente procedimiento:
a) La iniciativa de reforma corresponde al Parlamento, al Gobierno de la Generalitat y a las Cortes Generales. Los Ayuntamientos y los titulares del derecho de voto al Parlamento pueden proponer al Parlamento que ejerza la iniciativa de reforma en los términos establecidos por el artículo 222.1.a).


Sentencia 31/2010, de 28 de junio de 2010. Recurso de inconstitucionalidad 8045-2006. Interpuesto por noventa y nueve Diputados del Grupo Parlamentario Popular del Congreso en relación con diversos preceptos de la Ley Orgánica 6/2006, de 19 de julio, de reforma del Estatuto de Autonomía de Cataluña
https://boe.es/diario_boe/txt.php?id=BOE-A-2010-11409

La reforma de l'Estatut d'Autonomia de Catalunya de 2006 per part del Tribunal Constitucional -la modificació del seu text- el 2010...

(a) No s'ha fet d'acord amb l'article 223 del mateix Estatut de 2006, que va entrar en vigor a partir del 09/08/2006.
(b) No s'ha fet d'acord amb l'article 152 de la Constitució.
(c) No s'ha ratificat per referèndum.

Per tant, Catalunya té, des del 28 de juny de 2010, un marc estatutari contrari a la Constitució espanyola. Per l'acció -insòlita: és el primer cop que un Estatut és recorregut davant el TC- de les institucions de l'Estat.

Tornem a la legalitat, votant en referèndum aquest Estatut d'Autonomia de Catalunya de 2010, a favor o en contra?







Numbers


Referendum on 2006 Statute of Autonomy
http://www.congreso.es/consti/elecciones/referendos/ref_cata_2006.htm
Yes vote: 1.899.897
Census: 5.310.103
Votes counted: 2.594.167

27 Setembre de 2015

https://www.parlament.cat/document/composicio/150360.pdf
JUNTS PEL SÍ     1.628.714   39,59   62
CIUTADANS         736.364   17,90   25
PARTIT DELS SOCIALISTES DE CATALUNYA  523.283  12,72  16
CATALUNYA SÍ QUE ES POT   367.613   8,94  11
PARTIT POPULAR    349.193   8,49   11
CUP-CRIDA CONSTITUENT  337.794  8,21 10

7 d’oct. 2017

Defeats

Even as I translated this - at times almost poetic - reflection on what happened last Sunday, my eyes watered several times. Noone, and certainly not me, can describe better the intense, unique combination of feelings that rushed, flowed, hammered through millions of Catalans that day, October 1st, the day of Catalonia's Referendum Self-determination that the Spanish government did all in its power to prevent taking place. David Fernàndez's analysis is, to my mind, brilliant; otherwise I wouldn't have translated and posted it.

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6 d’oct. 2017

Three Metaphors on Catalonia

In this post I answer three of the main questions related to the Catalan independence process, particularly in the more recent phase. I do so using metaphors -and even a fable - which even the most uninformed (or misinformed) reader will understand.

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4 d’oct. 2017

Proportionality

I never thought I would be faced in Western Europe with blocked websites of NGOs I belong to, advice on secure browsers and new encrypted social networks, friends having police confiscate things from their cars, other friends being threatened with "sedition" charges,