December 16, 2019
By Massimo Frigo (Senior Legal Adviser of the International Commission of Jurists)
On 14 October, the Supreme Court (Tribunal Supremo) of Spain convicted 12 people in connection with their part in the organisation on 1 October 2017 of a referendum on Catalonian independence, that was conducted despite having been declared illegal by the Constitutional Court.
Nine of the twelve leaders on trial – including high-ranking Catalan government officials – were convicted, in addition to other offences of abuse of power and disobedience, of the more severe offence of sedition.
The verdict was much expected and was issued in a context charged with political tension and expectations in a country that has been polarized by very contrasting opinions on the claims of self-determination in Catalunya, the carrying out of the referendum on 1 October 2017 despite the Constitutional Court’s ruling about the lack of legitimacy of this consultation under the Constitution, and the fact that the voting process during the referendum was forcibly suppressed in many locations by the police, with credible reports of the use of unnecessary and disproportionate force in breach of Spain’s international law obligations.
The defendants were convicted by the Supreme Court for having promoted and carried out, in their capacity as public officers and leaders of political parties and associations, a referendum found previously to be unconstitutional by the Constitutional Court. The Supreme Justices held that all defendants were aware of what it deemed to be the manifest unlawfulness of the referendum and that any of its outcomes could not result in sovereignty for Catalunya. They were aware that what they did was only “the signal for the mobilisation of people that would never end up in the creation of a sovereign State” but that the mobilisation would have end up in the disregarding of the ruling of the Constitutional Court (Note: all citations in English of the judgment are unofficial translations by the author, see the judgment in Spanish here).
Certain legal aspects of the judgment of the Supreme Court were criticized by several observers, including the International Commission of Jurists.
I this blog post, I set out my personal arguments that the criminal conviction and sentence for sedition disproportionately interfered with the defendants’ rights to freedom of expression, assembly and association.
In this regard, I will focus on the most severe of the offences with which the defendants were charged, those of rebellion and sedition. The piece will not address or express any opinion on the legitimacy of claims of self-determination under international law and will not address the validity of convictions for offences carrying a lighter punishment such as those of abuse of power or disobedience.
The offences of sedition and rebellion
The Court excluded the offence of rebellion (article 472 of the Criminal Code), presented by the public prosecution, because the contested acts were manifestly inapt to realise the promised independence and were, in the Court’s view, nothing more than a strategic form of political pressure that the defendants wanted to put on the Government. It was not therefore possible to link the alleged violence – whether physical or psychological – to the specific intent required to directly overthrow the constitutional order.
The Court did, on the other hand, consider the facts proven to constitute the offence of sedition, which is defined by Spanish law as covering anyone “who publicly and tumultuously rise[s] up to obstruct, by force or without using legal means, the implementation of laws or the legitimate exercise of the functions of any authority, official bodies or public officers, or the implementation of their orders, or of the resolutions of administrative or judicial authorities” (article 544 Criminal Code).
The convictions by the Supreme Court raise significant concerns in terms of undue restrictions of the defendants’ freedoms of expression, assembly and association protected by articles 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR) and articles 10 and 11 of the European Convention on Human Rights (ECHR).
The Supreme Court dedicated a considerable part of its judgment to address and reject allegations of breach of procedural and fair trial rights of the defendants both under national and international law. Surprisingly, it dedicated much less attention to address the interference to the rights to freedom of expression, assembly and association.
Under international law, these rights can be subject only to restrictions that are in accordance with law, serve a legitimate aim, and are necessary and proportionate to that aim. As the UN Human Rights Committee has held, for these rights “no restriction to this right is permissible unless it is (a) imposed in conformity with the law; and (b) necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), protection of public health or morals or protection of the rights and freedoms of others.” The same may be said for the ECHR. As the European Court has held, these rights cannot be interpreted restrictively (see, among others, the Grand Chamber in Kurdevicius and Others v. Lithuania).
Criminal offences may constitute restrictions of certain human rights when their effect is to prevent or punish a conduct or omission that is the exercise of such rights. Therefore, criminal offences that end up punishing acts of freedom of expression, association and/or assembly would constitute restrictions of these rights that must respect the requirements of international human rights law set above (again, see, Kurdevicius and Others v. Lithuania).
While the use of the offence of sedition would probably raise concerns with regard to the principle of legality, the judgment and sentencing of the Supreme Court in this case require an assessment in terms of the proportionality of the restrictions to freedoms of expression, assembly or association.
When assessing the proportionality, the European Court has found that
“any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it … . The nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued …. Where the sanctions imposed … are criminal in nature, they require particular justification ….” (Kurdevicius and Others v. Lithuania, paras. 145-146).
The Strasbourg judges have ruled in Stankov and the United Macedonian Organisation Ilinden v. Bulgaria that even “the fact that a group of persons calls for autonomy or even requests secession of part of the country’s territory – thus demanding fundamental constitutional and territorial changes – cannot automatically justify a prohibition of its assemblies.” The same may be applied to restrictions to the freedoms of expression and association.
The European Court has held that restrictions of these rights by criminal law offences, bearing punishment of imprisonment, can only be justified when the persons responsible for a certain statement or the organisation of an assembly have violent intentions. It is worth noting that the Court has found that lengthy prison terms for unarmed confrontations with the police or throwing of stones or other missiles at them without causing grave injuries was disproportionate.
In the judgment of the Procès, the Spanish Supreme Court has rejected the allegations that the defendants’ freedoms of expression and assembly could be breached. The Supreme Court said that the “right to protest cannot turn into an exotic right to physically impede the authority of agents to implement a judicial order, and to do it in a generalised way throughout an entire autonomous community where, for one day, the execution of a judicial order was suspended” (unofficial translation).
Furthermore, the Supreme Court has imposed extremely severe sentences on most of the defendants. Oriol Junqueras (former Catalan vice-president), Carme Forcadell (former Catalan parliament speaker), former Catalan ministers Jordi Turull, Raül Romeva, Joaquim Forn, Dolors Bassa, Josep Rull, as well as Jordi Sànchez and Jordi Cuixart, respectively the former leader of the Catalan National Assembly (ANC) and former head of the independence organisation Òmnium Cultural, were sentenced to terms of imprisonment ranging from 10 to 13 years.
Regardless of what one may think of the issue of self-determination in Catalonia and of the desirability or less of holding a referendum despite a Constitutional Court order declaring it void of legal effect, the extreme severity of this punishment for non-violent behaviour is striking.
As it is clear for an assessment of international law obligations binding on Spain, any restriction of freedoms of expression, assembly or association would need to be prescribed by law and be necessary and proportionate to the legitimate aim of protecting public order or national security.
The excessive length of the terms of imprisonment fails to meet the test of proportionality of the interference by serving draconian terms of imprisonment disconnected from the actual harm inflicted, if any.
Regardless of what is anyone’s thought on the issue of the self-determination of Catalunya and the importance to ensure that orders by judicial authorities are respected and implemented, any action by the authorities will always need to respect the principles of legality, necessity and proportionality.
The sentencing of several persons for promoting and organising a non-violent event – even if in defiance of a judicial order – cannot be addressed by making use of an over-wide criminal offence imposing an excessive punishment that should only be contemplated for very violent deeds.
The Procès has demonstrated that the offence of sedition is outdated and risks leading to undue restrictions of human rights. The Spanish authorities should abolish this offence to bring this aspect of its legal system into line with their human rights obligations.
Very interesting, very important. This issue represents hell of complications. Just worth to note, that when dealing with freedom of expression, one should differentiate between two aspects or dimensions born by that issue:
One, content. Means,what is the subject matter and the content of the right at issue. The other, availability or having the means to express what is about to be expressed. The case of Belarus referred in the post, is different. There, the authorities declined to grant permission, not on the basis of the content of the expression ( allegedly at least) but rather, refusing, to grant effective infrastructure for assembling and protecting ( only in designated locations meant for it, and, having contracts with public service providers ). While:
In the case of Spain, it was rather the content of the expression. Now, why it is important, to differentiate between them both:
This is because, both sides ( state v. protesters ) should be bound by measurement and alternatives.The state for example, should offer alternatives for protesting in terms of locations and places, and, int terms of manners. The protesters also, should comply with other alternatives only proportionally restricting their right. When both sides are aware to it, the game can become more fair. And,dynamic in good faith, can reduce denial of rights, and violence finally.
So, the protesters in Belarus, had to show also, why to protest in other places other than those designated, was that much vital and necessary for fulfilling their rights ? That hadn’t been done by them it seems. But, unfortunately, no reply forwarded to the Human rights Committee by Belarus. This is bad. And in Spain, we couldn’t understand, what alternative measures, could fulfill the rights of those separatists(like negotiations, with dead line, or petitioning first courts or International bodies).
Just correcting my comment:
Instead of : ” for assembling and protecting ” should be of course : ” for assembling and protesting ” .