Open Letter: The case of Jordi Cuixart through the lens of international human rights standards on the right to peaceful assembly

Mr. Pedro SánchezCastejón

President of the Government of Spain

Ms. DoloresDelgado

State Prosecutor's Office

Mr. Juan JoséGonzález Rivas

President of the Constitutional Court

Ms. ConsueloCastro Rey

Spanish Attorney General

Ms. MeritxellBatet President of the Congress of Deputies

Geneva, June 2, 2020

Dear Mr. Sánchez Castejón,

Dear Mses. Delgado, CastroRey and Batet,

Dear Mr. González Rivas,

The World Organisation Against Torture (OMCT) works with around 200 memberorganisations which constitute its SOS-Torture Network, to end torture, fightimpunity and protect human rights defenders worldwide. The OMCT is writing toyou on this occasion to reiterate[1] its serious concerns regarding the breaches of the rights of freedom ofexpression and peaceful assembly in the case of Mr. Jordi Cuixart i Navarro,President of the non-governmental organisation Òmnium Cultural[2].

On October 14, 2019, the Supreme Court convicted Mr. Jordi Cuixart for sedition(Article 544 of the Spanish Criminal Code) and sentenced him to nine years inprison and nine years of disqualification from holding public office.

The OMCT recalls that the Supreme Court´s decision came after two years ofarbitrary pre-trial detention, since October 16, 2017[3]. Human rights organisations including the OMCT have expressed theirconcern over the fact that the case was examined by the Supreme Court and notby a natural judge – that would be an ordinary court in Catalonia where thefacts examined took place. The decisions of the Supreme Court are not subjectto appeal, which has a direct impact on Mr. Cuixart´s right to a fair trial ashe could not appeal to a higher Court.

Mr. Cuixart’s only remedy to challenge the ruling ofthe Supreme Court was before the Constitutional Court, on the ground that thedecision had violated his fundamental rights. On May 6, 2020, theConstitutional Court unanimously admitted the Appeal for Protection (Recurso deAmparo) filed by Mr. Cuixart against the decision of the Supreme Court.

The charges brought against Mr. Cuixart's relate tohis leading role in the mobilisation of 40,000 demonstrators on September 20,2017, who gathered outside the Regional Ministry of Economy, while the buildingwas being searched by a judicial commission was searching its facilities[4].The demonstrators protested against the raids, searches and arrests of variousCatalan officials that were carried out by the Spanish police with the aim ofstopping the referendum on Catalan independence, which was organised on October1, 2017, and which Spain's Constitutional Court had declared illegal[5].

The OMCT is also concerned by the conviction of theformer president of the Catalan National Assembly (ANC)[6],Mr. Jordi Sànchez i Picanyol, for the same facts.

While the OMCT reiterates its commitment for therespect of the principle of judicial independence, it recalls that the Spanishauthorities are bound to conform with the international human rights standards containedin the international instruments ratified by Spain.

Based on the analysis of the facts, the course of thetrial and the content of Judgment No. 459/2019, two elements are of particularconcern to the OMCT. First, the ruling violated Jordi Cuixart and Jordi Sànchez’sindividual rights. Second, it sets a precedent that could negatively impact theeffective enjoyment of the right to freedom of assembly in Spain.

1. The SupremeCourt’s judgment did not consider the facts attributed to Jordi Cuixart andJordi Sànchez to fall within the scope of the right to freedom of assembly

The OMCT recalls that freedom of assembly encompasses the liberty tocome together to debate and speak out about shared concerns as long as theorganisers of the gathering have peaceful intentions, means and manners. Moreover,according to international human rights standards, assemblyorganizers and participants should not be considered responsible (or heldliable) for the unlawful conduct of others and they should not be maderesponsible for the maintenance of public order[7].

As observed by the OSCE/ ODIHR Guidelines on Freedom of Peaceful Assembly,the “term ʻpeacefulʼ should be interpreted to include conduct that may annoy orgive offence, and even conduct that temporarily hinders, impedes or obstructsthe activities of third parties”[8]. For instance, in the case Taranenkov. Russia (15 May 2015, Application no. 19554/05)[9] the European Court of Human Rightsunderlined that the protest, although involving some disturbance of publicorder, had been largely non-violent and had not caused any bodily injuries andhighlighted that the disproportionate sanction against Taranenko had adeterring effect on protesters.

The judgment by the Supreme Court ruled out that the conduct of JordiCuixart and Jordi Sànchez could fall within the scope of the right to freedomof peaceful assembly. However, international human rights law would haverequired that the Court justified its decision by carrying out an analysis ofthe facts guided by the human rights principles of legality, necessity, andproportionality. It is the view of the OMCT that, in failing to do so, theruling establishes an unjustified restriction and sets an unjust dangerousprecedent for the right to freedom of assembly. The OMCT fears that this rulingcould have a deterring effect on future protesters - thus de facto restrictingthe enjoyment of the right to freedom of assembly in Spain.

2. The definitionof crime of sedition in articles 544 and 545 of the Spanish Criminal Code isvery vague and the interpretation of the offence given by the Supreme Court in itssentencing is disproportionately extensive

The principle of legality establishes that only the lawcan define a crime and prescribe a penalty. The European Court of Human Rightshas interpreted that the principle of legality requires that the offence beclearly defined in law, so that “the individual can know from the wording ofthe relevant provision and, if need be, with the assistance of the court’sinterpretation of it, what acts and omissions will make him liable”[10].

The vagueness of the definition of the crime ofsedition in the Spanish Criminal Code creates a risk of undue restrictions onthe rights to freedom of peaceful assembly and expression by criminalisingactions that are protected under international human rights law. Moreover,while other crimes against public order covered by the Spanish legislationexplicitly require the use or threat of violence, the crime of seditioncriminalises actions carried out “by force or outside of legal channels”.

The crime of sedition as defined by the SpanishCriminal Code has been applied and defined for the first time through the SupremeCourt’s ruling from October 14, 2019. The OMCT considers, however, that theruling failed to properly justify that the application of the crime of seditionto Messrs. Cuixart and Sànchez was foreseeable, necessary, and proportionate inresponse to their acts while exercising their right to freedom of peacefulassembly. The references in the ruling to the “massive” and “generalised”character of the protest as criteria for the application of this crime wouldconstitute a disproportionately extensive interpretation of the crime ofsedition.

Considering all the above, the OMCT considers that theprinciple of legality has been violated in the cases of Jordi Cuixart and JordiSànchez and calls on the Spanish authorities to review the definition of thecrime of sedition.

3. Conclusionand recommendations

Because of all the above, the OMCT respectfully urgesyou to:

i. Annul theconvictions of Jordi Cuixart and Jordi Sànchez as they are disproportionaterestrictions to their right to freedom of peaceful assembly. As aninterim measure, the execution of theirsentences should be suspended until the Constitutional Court ruleson the Appeal.

ii. Comply withall international obligations to respect the exercise of the citizens' rightsto freedom of expression and assembly, as established by international humanrights treaties ratified by Spain, in particular by amending the Basic Law forthe Protection of Public Security and the Criminal Code.

iii. Review thedefinition of the crime of sedition in the Spanish Criminal Code through thelens of the respect of the principle of legality and ensure that the new definitionestablishes safeguards against possible restrictions to the exercise of therights to freedom of expression and peaceful assembly, including acts of civildisobedience or obstructive protest.

In the hope that the concerns expressed in this letterwill receive the attention they deserve, we remain at your disposal for anyfurther information.

Sincerely yours,

Gerald Staberock

OMCT Secretary General

The OMCT works with over 200member organisations which constitute its SOS-Torture Network, to end torture,fight impunity and protect human rights defenders worldwide. Together, we makeup the largest global group actively standing up to torture. Helping localvoices be heard, we support our vital partners in the field and provide directassistance to victims. Our international secretariat is based in Geneva, withoffices in Brussels and Tunis.

For more information,please contact :

Iolanda Jaquemet, Director of Communications

ij@omct.org,

+41 79 539 41 06

[1] See OMCT’s Open Letter from November 22,2018, available here: https://www.omct.org/monitoring-protection-mechanisms/urgent-interventions/spain/2018/11/d25127/

[2] Òmnium Cultural is a non-profitorganisation, founded in 1961 under Franco's dictatorship to promote the use ofthe Catalan language, which had been suppressed and reduced to family use fordecades, and culture. Throughout the years, the NGO has expanded its areas ofwork. In 2015, it led a campaign against impunity for crimes committed duringFranco's dictatorship as well as the campaign "shared struggles" thataimed at recalling 50 years of joint commitment from civil societyorganisations fighting for workers' rights, non-discrimination on the basis ofsex or origin and the right to housing. In 2018, Òmnium Cultural also launcheda campaign "Tomorrow it could be you", that aimed at denouncing theOrganic Law on the Protection of Citizen Security and the reforms of theCriminal Code, which have been widely criticized due to the imposition ofsevere limitations on the rights to freedom of assembly and expression. Formore information on this law, see: http://www.omct.org/es/human-rights-defenders/statements/spain/2015/03/d23072/.

[3] Jordi Cuixartwas held for eight months in Soto del Real prison (Autonomous Community ofMadrid), 700 km away from his place of residence, and, since July 2018, he is deprivedof his liberty in Lledoners Prison (Autonomous Community of Catalonia).

[4] The judicial commission was de facto blockedinside the Regional Ministry of Economy for 19 hours, due to the presence ofcrowds outside the building. The last agents were able to exit on the earlymorning of September 21, 2018, escorted by the Mossos d'Esquadra (police forceof the Autonomous Community of Catalonia).

[5] Repressive measures taken bySpanish authorities ahead of the Catalan referendum on October 1, 2017, werecriticized by UN experts, stating that "regardless of the lawfulness ofthe referendum, the Spanish authorities have a responsibility to respect thoserights that are essential to democratic societies". See UN statement,September 28, 2017, available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22176.

[6] The ANC is a grassroots organisation witharound 80,000 members which advocates for Catalan independence.

[7] See for example Report A/HRC/20/27, para 31 (2012) bythe UN Special Rapporteur on Peaceful Assembly and Judgment by the ECtHR in thecase Ziliberberg v. Moldova (Application No. 61821/00 (2004)).

[8] OSCE / ODIHR Guidelines on Freedom ofPeaceful Assembly, para. 1.3. Available at: https://www.osce.org/odihr/73405?download=true

[9] The case concerned the detention andconviction of a participant in a protest against the politics of RussianPresident Vladimir Putin in 2014, organised by the Bolsheviks Party. YevgeniyaTaranenko was part of a group of about 40 people that forced their way throughidentity and security checks into the reception área of the president'sadministration building and locked themselves in one of the offices, where theystarted to wave placards and distribute leaflets out of the window

[10] See European Court of Human Rights, Kokkinakisv. Greece.