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Spain
22.11.18
Urgent Interventions

Open Letter: End the arbitrary pre-trial detention of social leader Mr. Jordi Cuixart

To:

Mr. Pedro Sánchez Castejón

President of the Governmentof Spain

Ms. María José Segarra

Spanish Attorney General

Mr. Francisco Fernández Marugán

Spanish Ombudsman

Geneva, November 22, 2018

Re: End the arbitrarypre-trial detention of social leader Mr. Jordi Cuixart

Dear Messrs. SánchezCastejón and Fernández Marugán,

Dear Ms. Segarra,

TheWorld Organisation Against Torture (OMCT), the largest network of NGOs fightingagainst torture, summary executions, enforced disappearances, arbitrarydetentions, other cruel, inhuman or degrading treatment or punishment, andproviding a comprehensive system of support and protection for human rightsdefenders in the world, is writing to you to express serious concern about the ongoingarbitrary pre-trial detention of Mr. JordiCuixart i Navarro, President of the non-governmental organisation ÒmniumCultural.

Òmnium Cultural is a non-profit organisation, foundedin 1961 under Franco’s dictatorship to promote the use of the Catalan language,which had been suppressed and reduced to family use for decades, and culture.Throughout the years, the NGO has expanded its areas of work. In 2015, it led acampaign against impunityfor crimes committed during Franco’s dictatorship as well as the campaign“shared struggles” that aimed at recalling 50 years of joint commitment betweencivil society organisations fighting for workers’ rights, non-discrimination ongrounds of sex or origin or the right to housing. In 2018 it also launched acampaign “Tomorrow it could be you”, that aims at denouncing the Organic Law onthe Protection of Citizen Security (known as the Gag Law, “Ley Mordaza”) and the reforms of the Criminal Code, which have beenwidely criticized due to the imposition of severe limitations on the rights tofreedom of assembly and expression[1].

The OMCT recalls that Mr. Jordi Cuixart has remained in pre-trialdetention[2] since October 16, 2017, on charge of “sedition” (article 544 of the SpanishCriminal Code). On March 21, 2018, Mr. Cuixart was also charged with “rebellion”(article 473 paragraph 1 of the Criminal Code). On November 2, 2018, the PublicProsecution requested 17 years in jail for Mr. Cuixart.

Thecharges relate to Mr. Cuixart’s leading role in the mobilisation of 40,000demonstrators on September 20, 2017, who gathered outside the Regional Ministryof Economy, while a judicial commission, composed of 25 Civil Guard agents, wasinside searching its facilities[3], to protest against the raids, searches andarrests of various Catalan officials that were carried out by the Spanishpolice with the aim of stopping the referendum on Catalan independence, whichwas organised on October 1, 2017, and which Spain’s Constitutional Court haddeclared illegal[4]. The OMCT is also seriously disturbed by thepre-trial detention of Mr. Jordi SánchezI Picanyol, former president of the Catalan National Assembly (ANC) -grassroots organisation with around 80,000 members which advocates for Catalanindependence - who has been deprived of liberty and prosecuted with thecharges, and for the same facts, as Mr. Jordi Cuixart.

TheOMCT recalls that freedom of assembly enshrines the liberty to come together todebate and speak out about shared concerns as long as the organisers of thegathering have peaceful intentions, means and manners. Nevertheless, asobserved by the OSCE/ ODIHR Guidelines on Freedom of Peaceful Assembly, the “the ﷽﷽﷽﷽﷽﷽ and distribute leaflensitivecasesCT is concerned by the fact that Supreme Court wave placards and distribute leaflethe ﷽﷽﷽﷽﷽﷽and distribute leaflensitive casesCT is concerned by the fact that SupremeCourt wave placards and distributeleafleterm ʻpeacefulʼ should be interpreted to include conduct that mayannoy or give offence, and even conduct that temporarily hinders, impedes orobstructs the activities of third parties”[5]. In the case Taranenko v. Russia (15 May 2015, Application no. 19554/05)[6] the European Court of Human Rights underlinedthat the protest, although involving some disturbance of public order, had beenlargely non-violent and had not caused any bodily injuries and highlighted thatthe disproportionate sanction against Taranenko had a deterring effect onprotesters.

OnOctober 4, 2017, OMCT also criticised the indiscriminate and excessive use offorce by the police in Catalonia during the referendum organized on October 1,2017, and called for an immediate, exhaustive and impartial investigation ofpolice interventions that could amount to torture or cruel, inhumane ordegrading treatment[7].

TheOMCT recalls that Mr. Cuixart has lodged requests and appealed several timesagainst to be released, before Spain’s Criminal Chamber of the Supreme Courtand the Constitutional Court, with no success. The prosecutor and the courtsassert that there is risk of recidivism if he was granted release, arguing thathe could lead mass demonstrations that favour a social uprising and he belongsto an organized group which pushes for Catalan independence by means outsidethe Spanish legal framework. The OMCT further recalls that as a measureimpacting the right to personal liberty,in order to be compatible with international standards and thepresumption of innocence, pretrial detention must only be applied as a lastresort.

The OMCT condemns the ongoing arbitrary detention andjudicial harassment against Mr. Jordi Cuixart and Mr. Jordi Sánchez, whichconstitutes a disproportionate restriction on his fundamental rights to freeexpression, peaceful assembly and personal liberty. The OMCT further considersthat the charges against them are unfounded and must therefore be dropped.

TheOMCT is also particularly concerned by the fact that Mr. Cuixart and Mr.Sánchez are prosecuted before the Supreme Court (Tribunal Supremo), the highest judicial body, whose decisions arenot subject to appeal, instead ob being prosecuted in front of their naturaljudge. Moreover, OMCT is concerned by the fact that Supreme Court judges areappointed by the General Council of the Judiciary (CGPJ), body elected by theSpanish parliament, in a process which has been challenged due to politicalinterference which can potentially jeopardize the independence of the highranks of the judiciary, particularly in politically sensitive cases[8]. The highly political nature of the ongoingcriminal procedure is evidenced by the fact that the far-right political partyVOX is taking part of the private prosecution.

Accordingly, the OMCT respectfully urges you to:

i. immediatelyand unconditionally release Mr. Jordi Cuixart and Mr. Jordi Sánchez, as theirpre-trial detention is arbitrary:

ii. putan end to all acts of harassment, including at the judicial level, against themand guarantee in all circumstances the right to afair trial, in particular by:

- ordering that the facts be examined bytheir natural judge, in application of the right to equality before the courts,by transferring the file to an ordinary court and competent to judge facts thattook place in Catalonia;

- guaranteeing that Messrs. Jordi Cuixart and JordiSánchez can benefit from a double degree of jurisdiction.

iii. complywith all international obligations to respect the exercise of the citizens'rights to freedom of expression and freedom of association and assembly, asestablished in the International Covenant on Civil and Political Rights (ICCPR),in particular its Articles 19.2 and 21, inparticular by:

- amending the Basic Law for the Protection of Public Security and theCriminal Code so as to guarantee the highest international human rightsstandards regarding the right to social protest.

iv.Ensure in all circumstances respect for human rights and fundamental freedomsin accordance with international human rights standards and internationalinstruments ratified by Spain.

In the hope that theconcerns expressed in this letter will receive the attention they deserve, weremain at your disposal for any further information.

Sincerelyyours,

Gerald Staberock

OMCT Secretary General

[1] For more information, see http://www.omct.org/es/human-rights-defenders/statements/spain/2015/03/d23072/.

[2] Jordi Cuixart was heldfor eight months in Soto del Real prison (AutonomousCommunity of Madrid), 700 km away from his place of residence, and, since July2018, he is in Lledoners Prison (Autonomous Community of Catalonia).

[3] The judicial commissionwas de facto blocked inside the Regional Ministry of Economy for 19 hours, dueto the presence of crowds outside the building, the last agents were able toexit on the early morning of September 21, 2018, escorted by the Mossosd’Esquadra (police force of the Autonomous Community of Catalonia).

[4] Repressive measures taken by Spanish authorities ahead of the Catalanreferendum on October 1, 2018, were criticized by UN experts, stating that“regardless of the lawfulness of the referendum, the Spanish authorities have aresponsibility to respect those rights that are essential to democraticsocieties”. See UN statement, September 28, 2017, available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22176.

[5] OSCE / ODIHR Guidelineson Freedom of Peaceful Assembly, para. 1.3. Available at: . https://www.osce.org/odihr/73405?download=true

[6] Thecase concerned the detention and conviction of a participant in a protestagainst the politics of Russian President Vladimir Putin in 2014, organised bythe Bolsheviks Party. Yevgeniya Taranenko was part of a group of about 40people that forced their way through identity and security checks into thereception área of the president’s administration building and locked themselvesin one of the offices, where they started to wave placards and distributeleaflets out of the winwow.

[7] For more informationsee: http://www.omct.org/es/urgent-campaigns/statements/spain/2017/10/d24562/

[8]The criteria and evaluation requirements for the appointment of the higherranks of the judiciary, including the Supreme Court judges, in Spain, have beenquestioned by the Group of States against Corruption (GRECO), Council ofEurope’s anti corruption body, who has recommended that objective criteria arelaid down to ensure that these appointments do not cast any doubt on theindependence, impartiality and transparency of this process. Fourth EvaluationRound of Spain, GrecoRC4(2017)18, para. 39. See also “Rights InternationalSpain and Judges for Democracy Request UN Expert Visit to Spain, 22 February2017 (https://www.liberties.eu/en/news/ris-jueces-para-la-democracia-letter-to-un/11444). @font-face { font-family: Arial;}@font-face { font-family: Times;}@font-face { font-family: Wingdings;}@font-face { font-family: "MS 明朝";}@font-face { font-family: "Cambria Math";}@font-face { font-family: Calibri;}@font-face { font-family: "Arial Narrow";}p.MsoNormal, li.MsoNormal, div.MsoNormal { margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Courier; }p.MsoFootnoteText, li.MsoFootnoteText, div.MsoFootnoteText { margin-right: 0cm; margin-left: 0cm; font-size: 10pt; font-family: Times; }span.MsoFootnoteReference { vertical-align: super; }a:link, span.MsoHyperlink { color: blue; text-decoration: underline; }a:visited, span.MsoHyperlinkFollowed { color: purple; text-decoration: underline; }p.En-tt, li.En-tt, div.En-tt { margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Courier; }p.Piedd, li.Piedd, div.Piedd { margin: 0cm 0cm 0.0001pt; font-size: 12pt; font-family: Courier; }span.widgetstatebox--additionalinfo { }span.NotedebasdepageCar { font-family: Times; }.MsoChpDefault { font-size: 10pt; }div.WordSection1 { }

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