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3 de jul. 2018

Síndic de Greuges / Ombudsman on Violation of Human Rights in Catalonia

Ombudsman of Catalonia.


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http://www.sindic.cat/site/unitFiles /5324/Report%20on%20violation%20of%20fundamental%20rights%20and%20freedoms%20arising%20from%20October_1_eng.pdf


From the strictly judicial perspective, which is that of this report, the contravention of rules of a constitutional and statutory rank by the Catalan institutions, especially as of September, 2017, could be responded to, as indeed happened, through the usage of various ordinary instruments available to the state, especially before the CC.

On the other hand, the reaction of the three powers of the State has been characterized by resorting to exceptional measures such as application of Article 155 SC (interpreted, furthermore, on an extensive basis) and the forced application of criminal law, beyond the offense of disobedience of the CC, which was explicit and patently clear. The measures adopted in this framework have significant impaired fundamental rights and constitutional principles, which have suffered restrictions devoid of legal provision, legitimate aim and proportionality. All of these impairments have been examined in this report and it can be concluded that the most noteworthy are those having to do with the rights and principles of personal freedom, political participation, freedom of expression and rights of assembly and demonstration, the “no punishment without law” principle, and due process of law.

Indeed, the restriction of personal freedom of various political and social leaders by an abusive, disproportionate use of the cautionary measure of pretrial incarceration is perhaps the most flagrant violation of fundamental rights in the context of the facts that have been described in this report.

Furthermore, the dissolution by article 155 of the Parliament and the removal of over 250 senior officials of the government, including the president of the Generalitat and the entire Executive Council, have a direct impact on the right to political participation recognized in Article 23 of the Constitution, in two ways: on one hand, the rights of ousted public officials and representatives whose dismissal followed the premature dissolution of the Parliament are impaired; and, on the other, citizens’ rights to political participation, in general, are also impaired as the representatives they have elected have not been able to take office to serve the terms for which they were elected.

The right to political participation (art. 23 SC) was also affected by the acts that, after the elections of December 21, blocked some of the candidates who had been elected, and who were in possession of their political rights, from standing as candidates for the presidency of the Generalitat, in the process of investiture meant to form a new government.

Freedom of expression and the rights of assembly and demonstration are also suffering a regression that the Catalan Ombudsman has not been alone in decrying. These regressions are not limited to pro-independence expressions or demonstrations in Catalonia, but are of a wider scope, and are being applied to different forms of protest and dissidence.

Within the framework of the criminal proceedings underway in various judicial instances for actions derived from the October 1 referendum and the October 27 declaration, the possible impairments of fundamental rights are extremely alarming. One of the more notable impacts is the one that refers to the principle of “no punishment without law” when disproportionate accusations are made, based on clearly distorted facts, without the inseparable typical legal provision. This violation of the “no punishment without law” principle in the processing of crimes such as rebellion, sedition, terrorism or criminal organization, among others, seems to seek punishments that set an example and a deterrent effect over certain future political positions.

Furthermore, from a procedural standpoint, the possible violations of fundamental rights to the judge predetermined by law, the right to due process of law and the right to defense, as well as the public demonstrations that have taken place in recent years, all of which questions the necessary judicial impartiality.

Last, on several occasions throughout the period covered in this report, and especially on October 1, 2017, the Civil Guard and the National Police Corps acted in a manner that could be considered disproportionate, and caused damage greater than that which they supposedly sought to prevent, with interventions before persons with pacific attitudes that did not respect the principles of congruence, opportunity and proportionality taken up in the laws that regulate the activities of law enforcement agencies and corps

Especially serious is the fact that on October 1 State law enforcement agencies used rubber bullets, which caused at least one serious injury. The Parliament of Catalonia completely prohibited these weapons as of April 30, 2014, at the proposal of the Study Commission for Security Models and Public Order and the Use of Anti-riot Materials in Mass Events. For this reason, the Catalan Ombudsman believes that this prohibition must be respected by all law enforcement agencies acting in Catalonia.

In this context, the Catalan Ombudsman makes the following recommendations:

One. The immediate release of the individuals indicted for the crimes of rebellion and sedition who are in pretrial custody while the trial is not held with full guarantees and there is an enforceable judgment.

Two. We find ourselves facing historical conflicts of an imminently political nature that have impacts on fundamental rights. Therefore, the start of constructive dialog is necessary to achieve a political solution to the conflict. This dialog must not be limited only to the political and institutional realms, but must also take place between the civil societies of Catalonia and the rest of the State, on one hand, and representatives of all political and social sensitivities in Catalonia, on the other.

Three. In the current context of rights regression, which is not exclusive to the immediate context of Catalonia, it is necessary to strengthen the democratic guarantees that ensure the exercise of the rights and fundamental freedoms, such as the freedom of expression, assembly and demonstration.

Four. The possible offenses that have been committed (such as disobedience of the Constitutional Court) must be faced in the framework of the strict, constitutionally-established principle of “no punishment without law”.

Five. In light of the disproportion of the criminal law handling of all these affairs, it is necessary to recommend the recovery, by the state public prosecutor and all institutions that make up the judiciary, of the democratic principles of minimal intervention and proportionality in the strict application of the Criminal Code in relation to the description of punishable facts associated with the political conflict in Catalonia.

Six. The determination, as requested by international bodies (Council of Europe and the United Nations) of responsibilities for the violence employed on October 1. Along these lines, it is necessary to claim strict respect for the principle of proportionality by law enforcement agencies and corps that have to intervene in citizen demonstrations, and especially, the need to respect the prohibition of rubber bullets.

Seven. The complete re-establishment of self-rule in Catalonia, without intervention in its administration or its finances.

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