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

To:

Mr. Pedro Sánchez Castejón

President of the Government of Spain

Ms. Dolores Delgado

State Prosecutor's Office

Mr. Juan José González Rivas

President of the Constitutional Court

Ms. Consuelo Castro Rey

Spanish Attorney General

Ms. Meritxell Batet

Geneva, June 2, 2020

Dear Mr. Sánchez Castejón,

Dear Mses. Delgado, Castro Rey and Batet,

Dear Mr. González Rivas,

The World Organisation Against Torture (OMCT) works with around 200 member organisations which constitute its SOS-Torture Network, to end torture, fight impunity and protect human rights defenders worldwide. The OMCT is writing to you on this occasion to reiterate^[1] its serious concerns regarding the breaches of the rights of freedom of expression 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 in prison and nine years of disqualification from holding public office.

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

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

The charges brought against Mr. Cuixart's relate to his leading role in the mobilisation of 40,000 demonstrators on September 20, 2017, who gathered outside the Regional Ministry of Economy, while the building was being searched by a judicial commission was searching its facilities[4]. The demonstrators protested against the raids, searches and arrests of various Catalan officials that were carried out by the Spanish police with the aim of stopping the referendum on Catalan independence, which was organised on October 1, 2017, and which Spain's Constitutional Court had declared illegal[5].

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

While the OMCT reiterates its commitment for the respect of the principle of judicial independence, it recalls that the Spanish authorities are bound to conform with the international human rights standards contained in the international instruments ratified by Spain.

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

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

The OMCT recalls that freedom of assembly encompasses the liberty to come together to debate and speak out about shared concerns as long as the organisers of the gathering have peaceful intentions, means and manners. Moreover, according to international human rights standards, assembly organizers and participants should not be considered responsible (or held liable) for the unlawful conduct of others and they should not be made responsible 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 or give offence, and even conduct that temporarily hinders, impedes or obstructs the activities of third parties”[8]. For instance, in the case Taranenko v. Russia (15 May 2015, Application no. 19554/05)[9] the European Court of Human Rights underlined that the protest, although involving some disturbance of public order, had been largely non-violent and had not caused any bodily injuries and highlighted that the disproportionate sanction against Taranenko had a deterring effect on protesters.

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

2.             The definition of crime of sedition in articles 544 and 545 of the Spanish Criminal Code is very vague and the interpretation of the offence given by the Supreme Court in its sentencing is disproportionately extensive

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

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

The crime of sedition as defined by the Spanish Criminal Code has been applied and defined for the first time through the Supreme Court’s ruling from October 14, 2019. The OMCT considers, however, that the ruling failed to properly justify that the application of the crime of sedition to Messrs. Cuixart and Sànchez was foreseeable, necessary, and proportionate in response to their acts while exercising their right to freedom of peaceful assembly. The references in the ruling to the “massive” and “generalised” character of the protest as criteria for the application of this crime would constitute a disproportionately extensive interpretation of the crime of sedition.

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

3.             Conclusion and recommendations

Because of all the above, the OMCT respectfully urges you to:

i.                     Annul the convictions of Jordi Cuixart and Jordi Sànchez as they are disproportionate restrictions to their right to freedom of peaceful assembly. As an interim measure, the execution of their sentences should be suspended until the Constitutional Court rules on the Appeal.

ii.                   Comply with all international obligations to respect the exercise of the citizens' rights to freedom of expression and assembly, as established by international human rights treaties ratified by Spain, in particular by amending the Basic Law for the Protection of Public Security and the Criminal Code.

iii.                 Review the definition of the crime of sedition in the Spanish Criminal Code through the lens of the respect of the principle of legality and ensure that the new definition establishes safeguards against possible restrictions to the exercise of the rights to freedom of expression and peaceful assembly, including acts of civil disobedience or obstructive protest.

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

Sincerely yours,

Gerald Staberock

OMCT Secretary General

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

For more information, please contact :

Iolanda Jaquemet, Director of Communications

ij@omct.org,

+41 79 539 41 06