May 13, 2025
Dr. Anıl Güven Yüksel
In Costa i Rosselló and Others v. Spain, delivered on 27 February 2025, the European Court of Human Rights (ECtHR) declared the applications inadmissible, reaffirming the compatibility of protecting constitutional order with the Convention framework. The case concerned several members of the Catalan Parliament who challenged enforcement measures—and, in some instances, criminal proceedings—initiated following their support for parliamentary initiatives promoting Catalan self-determination.
While the judgment engages important issues concerning political participation, freedom of expression, and the functioning of regional parliaments, it ultimately leaves key democratic principles underexplored, particularly at the intersection of political expression and parliamentary representation. This post focuses on the Court’s approach to the interaction between political rights, constitutional enforcement, and criminal sanctions, highlighting both the strengths and limitations of the decision in shaping the future of political expression in multi-level democratic systems.
Between 2015 and 2019, the Parliament of Catalonia adopted a series of resolutions aimed at initiating a political process towards Catalan independence, challenging the constitutional principle of the unity of the Spanish State. These resolutions asserted Catalonia’s claimed right to self-determination, criticised the Spanish State’s responses to separatist initiatives, and gradually questioned the authority of the Spanish Constitutional Court.
A pivotal moment occurred with Resolution 1/XI of 2015, through which the Catalan Parliament declared the beginning of a ‘disconnection’ process from Spain, advocated for a new republican constitution. The central government immediately contested this resolution, leading to its annulment by the Constitutional Court on grounds of national sovereignty and democratic legality.
Despite repeated annulments of similar initiatives, the Catalan Parliament continued to adopt legislative texts reaffirming republican ideals and criticising the Spanish monarchy. Escalation intensified in 2017 when the Parliament approved legislation to hold a unilateral referendum and establish a legal framework for an independent Catalan republic. Although these laws were swiftly suspended and later annulled by the Constitutional Court, the referendum took place on 1 October 2017, followed by further declarations advocating secession.
Tensions culminated in 2019 when the Parliament of Catalonia adopted two resolutions, reaffirming its claim to sovereign authority and endorsing institutional disobedience. In response, the Constitutional Court initiated enforcement proceedings, issuing suspensions and direct warnings to Catalan officials, including members of the Bureau of the Parliament. These measures explicitly prohibited the Bureau from processing or admitting future proposals repeating the same content previously declared unconstitutional. Officials were personally notified that failure to comply could result in individual liability, including the possibility of criminal prosecution for disobedience.
Subsequently, criminal proceedings were initiated against certain members of the Bureau, on charges of disobedience of Constitutional Court decisions. The applicants challenged these proceedings, relying on parliamentary immunity and invoking their rights to freedom of expression and political participation under the Convention. Although they were ultimately acquitted by the High Court of Justice of Catalonia in 2022, appeals concerning the scope of parliamentary immunity and political expression remain pending at the national level, lodged by both the public prosecutor and the parties.
In Costa i Rosselló and Others v. Spain, ECtHR unanimously declared the applications inadmissible. The applicants were 32 members of the Parliament of Catalonia including Vice President Costa i Rosselló (first applicant) and Secretary Campdepadrós i Pucurull (second applicant), both of whom served on its Bureau. They alleged that enforcement measures imposed by the Spanish Constitutional Court infringed their rights under Article 10 (freedom of expression), Article 11 (freedom of assembly and association), and Article 3 of Protocol No. 1 (right to free elections). The Court ultimately found that the complaints were either manifestly ill-founded or unsubstantiated.
Concerning the Constitutional Court’s orders preventing the processing of certain parliamentary proposals and the initiation of criminal proceedings against Bureau members, the first applicant alleged political motivation under Article 18, while all applicants claimed discrimination based on their pro-independence views under Articles 6, 13, and Article 1 of Protocol No. 12.
The Court chose to examine admissibility alongside the merits, even though the Spanish Government raised preliminary objections concerning ratione personae, ratione materiae, and the loss of victim status, emphasizing that the complex legal and factual background necessitated a detailed substantive analysis before determining inadmissibility (§ 109).
The applicants’ complaints fell at the intersection of political participation under Article 3 of Protocol No. 1 and the freedoms of expression and assembly under Articles 10 and 11. Recognizing the interconnected nature of these rights in the parliamentary context—where political expression and legislative debate are closely linked (§§ 122–123)—the Court accepted that the Constitutional Court’s prohibitions and the mere initiation of criminal proceedings constituted interferences (§§ 120–121). The key question, however, was whether these interferences could be justified under the Convention framework.
The Court carefully distinguished the standards governing permissible restrictions, noting that while Articles 10 and 11 require strict scrutiny—involving assessments of legality, legitimacy, and necessity—Article 3 of Protocol No. 1 allows states a broader margin of appreciation, with emphasis on avoiding arbitrariness and ensuring the free expression of the people’s will (§ 125).
Relying on Kokëdhima v. Albania, the Court reiterated its deference to national constitutional interpretation, intervening only when such readings are manifestly unreasonable (§ 124). Nevertheless, given the indivisible connection between political participation and expressive freedoms in this case, it applied the stricter ‘necessity’ standard across all claims (§ 126).
Applying this standard, the Court found the contested measures lawful, rooted in relevant institutional and criminal laws, and pursuing legitimate aims: safeguarding the constitutional order and protecting the rights of others (§§ 127–130, 133). It underscored that ‘constitutional loyalty’ required compliance with binding constitutional procedures, not ideological agreement (§ 136).
Importantly, the Court observed that the applicants sought to circumvent constitutional reform mechanisms rather than pursuing change through legitimate parliamentary channels (§ 137). The existence of open avenues for lawful debate weakened their claims of undue restriction on political expression.
While acknowledging that the Spanish Constitutional Court had prohibited further debates on certain matters, the ECtHR clarified that this was not an ex ante censorship but a reaction to repeated unconstitutional initiatives (§ 140). Thus, the prohibition did not prevent parliamentarians from expressing their political views within the legitimate framework of parliamentary debate.
Ultimately, the Court declared all complaints manifestly ill-founded, emphasising that the contested measures did not seek to suppress political ideas as such, but rather aimed to uphold constitutional order in the face of repeated institutional defiance (§§ 142–144).
As for the first applicant, the Court acknowledged that, although the initiation of criminal proceedings constituted a limitation, they concluded swiftly with an acquittal and had no demonstrated impact on his parliamentary duties, making any potential ongoing consequences speculative, particularly in light of the still-pending appeals at the national level (§ 145). Regarding the other 31 applicants, the Court concluded that the interference with their political activities did not rise to the level of arbitrariness or disproportionality, particularly when viewed against the backdrop of the Constitutional Court’s consistent jurisprudence (§ 149).
The Court also dismissed the first applicant’s claims under Article 18 (misuse of power) and Article 1 of Protocol No. 12 (discrimination) for lack of evidence establishing political bias or discriminatory treatment (§§ 154–158). Similarly, complaints under Articles 6 and 13—concerning fair trial rights and effective remedies—were rejected either for non-exhaustion of domestic remedies or for being unsubstantiated (§§ 163–165).
In Costa i Rosselló and Others v. Spain, while the Court rightly emphasised that in a social and democratic State governed by the rule of law, democratic legitimacy cannot be invoked to override constitutional legality, several analytical shortcomings in the Court’s reasoning deserve closer scrutiny—especially regarding its proportionality analysis and its treatment of the structural relationship between political expression and parliamentary functions.
Although the Court correctly refrained from directly interpreting Spanish constitutional law—an area where it appropriately exercises institutional deference (§ 124)—its reasoning nevertheless engaged in a form of indirect constitutional assessment, particularly concerning the balance of powers within Spain’s constitutional framework.
Accordingly, these shortcomings appear most clearly in the following areas:
The Court appropriately considered the broader social and political environment in Catalonia at the relevant time (§ 140). However, by focusing primarily on the fact that similar resolutions continued to be debated—albeit under modified terms—and emphasizing that the criminal proceedings resulted in acquittals (§§ 46–48, 145), the Court arguably underestimated the forward-looking harm: namely, the risk that future legislative initiatives could be deterred by the looming threat of Constitutional Court enforcement measures or criminal sanctions. A more rigorous inquiry into the possible chilling effect on parliamentary processes would have enhanced the Court’s assessment of necessity and proportionality.
The parties’ arguments regarding parliamentary immunity warranted deeper engagement. The Government, supported by the Spanish Constitutional Court, argued that immunity protected only votes and opinions, not administrative functions such as setting parliamentary agendas (§ 104). While the Court did not directly address this distinction, it appeared to imply that immunity was not central to the case, noting, instead that the criminal proceedings against the first applicant were initiated only after he left office and focusing on the impact of those proceedings on his parliamentary duties (§ 145).
However, this formalist focus arguably underplays the functional overlap between administrative decisions and political expression. In parliamentary practice, deciding which motions are admitted for debate can, in certain circumstances, be intrinsically linked to political representation and freedom of expression. The Court missed an opportunity to examine whether the Bureau’s acts—while procedurally administrative—were, in substance, an exercise of political expression protected under Articles 10 and 11. Overmore, broader jurisprudence demonstrates that parliamentary immunity concerns not only Article 6 (in respect of fair trial guarantees regarding non-accountability, A. v. United Kingdom, and inviolability, Kart v. Turkey), but also intersects with Article 10, particularly regarding the political activities of parliamentarians (Castells v. Spain).
Although the Court acknowledged that the first applicant was acquitted due to the absence of clear and specific proof of disobedience to a Constitutional Court order (§ 131), it did not fully engage with the existing and ongoing uncertainty that Bureau members may face when assessing the constitutionality of legislative proposals, especially where prior Constitutional Court rulings leave room for interpretation. Despite the national courts acknowledging the political nature of these acts and the need to protect parliamentary expression (§ 75), the ECtHR ultimately declared the applications manifestly ill-founded without addressing these broader concerns.
A more careful analysis of the relationship between administrative acts within Parliament and political expression, and of the proper threshold for criminal responsibility for alleged disobedience, could have substantially enriched the proportionality assessment and might have led to a more nuanced evaluation of the merits.
While the Court acknowledged the complex interplay between the Convention articles, it did not fully seize the opportunity to conduct a truly layered proportionality analysis across these interlocking rights. The Court, at the end, did not systematically assess whether the degree and method of interference were proportionate not only to the aim of preserving constitutional order but also to the essential democratic role of parliamentary debate.
While correctly finding that the Catalan Parliament lacked legal authority to amend the Spanish Constitution, the Court insufficiently addressed whether political expression advocating constitutional change—absent formal amendment powers—should nevertheless enjoy robust protection in a parliamentary context. The mere tabling of motions, even if symbolic or unconstitutional, may arguably fall within the protected core of political speech.
Indeed, Council of Europe standards stress that political debate must protect even radical proposals for constitutional change, including shifts toward federalism, confederalism, or independence. (PACE Resolution 2381, §1). Moreover, the Court’s own case-law on political parties affirms that radical political ideas merit protection unless they pose an imminent threat to democracy (Refah Partisi (The Welfare Party) and Others v. Turkey, §§ 102–104). In contrast, the Court’s reference here to ‘extreme circumstances’ and exhaustion of ‘all possible venues’ before pursuing criminal action (§ 142) lacked a clear threshold akin to the ‘imminent danger’ standard (Gül and Others v. Turkey, § 42) or the ‘least restrictive means’ requirement often emphasized under Article 10 (see Women On Waves and Others v. Portugal, § 41). While institutional deference to national constitutional structure is understandable, the Court’s reliance on these vague formulations without connecting them clearly to its established case-law, risks introducing arbitrariness into the evaluation of future restrictions on parliamentary debate.
This raises fundamental questions:
Spain’s constitutional framework itself provides mechanisms for managing exceptional disputes within autonomous communities. For instance, article 155 of the Spanish Constitution, for instance, allows the central government—with Senate approval—to take necessary measures against a noncompliant autonomous region. This provision was invoked in 2017 following the referendum process, leading to renewed elections in Catalonia. Meanwhile, the Spanish Constitutional Court retains competence to strike down unconstitutional acts at the regional level.
Thus, while the Court appropriately emphasised the turbulent political context, it did not integrate that context into a broader analysis of democratic safeguards. Respecting constitutional order and maintaining national unity are critical objectives, but they must be balanced against the need to protect freedom of expression and political initiative, particularly within parliamentary institutions.
The Court understandably stressed the acquittal and ongoing amnesty process (§ 145); yet it missed the chance to discuss the severity of prosecuting sitting or former parliamentarians for political acts. Where judicial actions intersect with political dynamics, stronger human rights safeguards are essential (Venice Commission). The Court could have outlined minimal principles on proportionality and necessity when applying criminal law to elected officials (Karácsony and Others v. Hungary, §§ 138, 157), reinforcing the separation of powers and strengthening Convention protections against politically motivated prosecutions.
Additionally, linking these concerns to potential political misuse under Article 18 could have enabled a deeper reflection on protecting political participation, highlighting that even lawful judicial interventions must be guided by clear human rights principles to prevent chilling effects and uphold democratic safeguards.
The decision in Costa i Rosselló and Others v. Spain reaffirms the Court’s commitment to safeguarding constitutional order in exceptional circumstances within the Convention framework, but while acknowledging the complexity of parliamentary political rights, it stopped short of fully engaging with the deeper democratic principles at stake.
Though the Court acknowledged Spain’s constitutional structure and Catalonia’s political climate, it missed a key opportunity to scrutinize the broader impacts of constitutional enforcement and prosecution, offering instead a surface-level proportionality review despite the depth of the issues at stake.
Even if the outcome remained unchanged, a brief but principled discussion on the interference with political expression would have enhanced the judgment’s legitimacy and contributed to evolving Convention standards on political participation in multi-level democracies. A focused analysis of parliamentary political expression (see 3/c) could have provided valuable guidance to help prevent politically motivated interferences, especially in volatile regional or municipal contexts.
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