Council of Europe report on prosecution of Catalan politicians (4 JUN 2021)

Report by Committee on Legal Affairs and Human Rights: "Should politicians be prosecuted for statements made in the exercise of their mandate?" On Turkey and Spain.

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2/Here is the provisional version of the report: https://t.co/neT7jKq6yC

— PACE_Legal (@PACE_LegalHR) June 3, 2021

 

 

 Council of Europe

Parliamentary Assembly

 Provisional version

Committee on Legal Affairs and Human Rights
 

Should politicians be prosecuted for statements made in the exercise of their mandate?
Report
 

Rapporteur: Mr Boriss Cilevičs, Latvia, Socialists, Democrats and Greens Group

 [...]

6. The Assembly recalls its Resolution 1900 (2012) on the definition of political prisoners. It considers that any politicians who are detained for having made statements in the exercise of their political mandates that respect the limits of freedom of speech recalled above (paragraph 3) fall under the said definition and should be released without delay. 

[...]

8. As regards more specifically Spain, the Assembly recognises that Spain is a living democracy, with a culture of free and open public debate, and that the mere expression of pro-independence views is not a ground for criminal prosecution. The Parliamentary Assembly fully respects the constitutional order of Spain. Nevertheless, several senior Catalan politicians were prosecuted and eventually convicted to long prison terms for sedition and other crimes, inter alia for statements made in the exercise of their political mandates, in support of the unconstitutional referendum on the independence of Catalonia in October 2017 - organised by application of the “disconnection laws” approved by the Parliament of Catalonia in September 2017 and found to be unconstitutional by the Spanish Constitutional Court - and calling for participation in the mass protests surrounding this event.”

8.1. Incriminatory statements included public speeches supporting the unconstitutional referendum in October 2017 on the independence of Catalonia and calling for participation in several demonstrations, as well as votes in the Catalan parliament expressing the same support or allowing debates on this topic to be included in the agenda of parliament. The Assembly notes that the referendum had previously been ruled unconstitutional by the Spanish Constitutional Court, which had also warned the politicians in question against organizing it.

8.2. Some of the politicians in question were also found guilty of abusing public funds and other resources, in particular by allowing public buildings to be used as polling stations.

8.3. The Assembly notes that the crime of organising an illegal referendum, punishable by up to 5 years in prison, was abrogated by the Spanish legislature in 2005. In this reform of the Criminal Code, the crime of sedition, punishable by up to 15 years in prison, which requires an element of violence (“tumultuous uprising”) remained unchanged. The organisers of the illegal referendum on 1 October 2017 were convicted of sedition.

8.4. It is undisputed that none of the politicians in question called for violence. To the contrary, it is recognised, also by the prosecution, that they called on demonstrators to refrain from any violent acts. Indeed, on several occasions, hundreds of thousands of demonstrators turned out without there being any violent incidents, thanks also to the restraint exercised most of the time by the Catalan and Spanish security forces, who were also deployed in large numbers.

8.5. The Assembly warmly welcomes the fact that the criminal provisions on rebellion and sedition have become subject to intense debate in the political and legal spheres in Spain. They were enacted in response to the frequent attempts at military takeover in the past. Doubts were therefore expressed as to their application to the organisers of peaceful demonstrations. This required novel interpretations such as the notion of “violence without violence” developed by the prosecution, according to which the sheer number of demonstrators exercised psychological coercion on the police officers facing them, and a very wide meaning given to the term of “tumultuous uprising” required for the crime of sedition.

8.6. It further notes that, even after the conviction of the leading Catalan politicians involved in the 2017 unconstitutional referendum, the Spanish judicial authorities have also prosecuted the next set of Catalan leaders and a number of lower-ranking Catalan officials involved in the events in 2017. The Spanish authorities also continue to pursue the extradition of Catalan politicians living in other European countries, despite several setbacks in German, Belgian and United Kingdom courts. It finally notes on a positive note that several high-profile prosecutions, of the head of the Catalan police force and of members of the Catalan election commission, recently ended in acquittals.

8.7. Reportedly, the Spanish authorities have made the application of the milder prison regime usually applied to non-violent offenders or the consideration of an pardon subject to the prisoners expressing regrets for their actions and/or an undertaking not to commit further crimes, as is the case for all convicts under Spanish law. The prisoners in question consider that they cannot be obliged to disown their deeply held political convictions.

8.8. The Assembly finally respects the independence of the Spanish tribunals to solve pending appeals, respecting as well the right to appeal to the European Court of Human Rights in due course.

9. In view of the above, the Assembly invites [...]

9.3. the Spanish authorities to:

9.3.1. reform the criminal provisions on rebellion and sedition in such a way that they cannot be interpreted so as to undo the decriminalisation of the organisation of an illegal referendum, intended by the legislature when it abolished this specific crime in 2005, or lead to disproportionate sanctions for non-violent transgressions.

9.3.2. consider pardoning or otherwise release from prison the Catalan politicians convicted for their role in the organisation of the October 2017 unconstitutional referendum and the related peaceful mass demonstrations, and consider dropping extradition proceedings against Catalan politicians living abroad who are wanted on the same grounds;

9.3.3. drop the remaining prosecutions also of the lower-ranking officials involved in the 2017 unconstitutional referendum and refrain from sanctioning the successors of the imprisoned politicians for symbolic actions merely expressing their solidarity with those in detention;

9.3.4. ensure that the criminal provision on misappropriation of public funds is applied in such a way that liability arises only when actual, quantified losses to the state budget or assets can be established;

9.3.5. refrain from requiring the detained Catalan politicians to disown their deeply held political opinions in exchange for a more favourable prison regime or a chance of pardon; they may however be required to undertake to pursue their political objectives without recourse to illegal means.

9.3.6. enter into an open, constructive dialogue with all political forces in Catalonia, including those opposing independence, in order to strengthen the quality of Spanish democracy, one of the most ancient States of Europe, through the authority of the rule of law, good governance and total respect of human rights, without recourse to criminal law, but in full respect of the constitutional order of Spain.