Is the criminalisation of Catalan leaders justified?
Despite facing arrest warrants the Catalan pro-independence politicians Carles Puigdemont and Toni Comín officially took their seats as MEPs this week, in a key moment for the independence movement.
Last October Spain’s Supreme Court sentenced nine independence leaders to prison, finding them guilty of sedition for spearheading the unapproved referendum in 2017. “In a democracy like Spain, nobody is subject to trial for his or her ideas or politics but rather for criminal conduct as provided by the law,” said socialist leader Pedro Sánchez, who was then Spain’s acting prime minister. However, Catalan separatists say the imprisonment of their former leaders is a form of state repression in the face of their democratic initiative.
The expert’s view
Dr Neus Torbisco-Casals has been advisor to Puidgemont during his legal battle at the UN Human Rights Council and has worked on the defence of the Catalan leaders. A lawyer and human rights activist, she is a professor of international human rights law at Geneva’s Graduate Institute, and a Senior Research Fellow at the Albert Hirschman Centre for Democracy. Here she tells us about the government’s criminalisation of Catalan politicians and protesters.
I strongly believe that the trial and conviction for sedition has frightening implications for democracy, as it tacitly authorises strong disproportionate restrictions to freedom of conscience and peaceful assembly, which are key to minority dissent and protest.
Unsurprisingly, Catalonia was shaken by protests following this appalling decision, which have been even more harshly repressed by Spanish police forces, prompting further detentions of protesters to whom judges are now applying anti-terrorist laws without any legal basis. While Spanish President, Mr. Pedro Sánchez, has called the judgment an important one in the history of the country’s democracy, Catalonia’s President has strongly contested the nature of the trial as political, and the verdict as unjust.
Most human rights lawyers, including myself, share the concern that the normative interpretations of sedition crimes made in this decision strongly contradict international human rights law. The crime of sedition is actually highly contested and dubiously compatible with the exercise of basic political freedoms which are a bedrock for democracy that demand the full eradication of the notion of ‘political crimes’ from the legal system.
In the case of Catalonia, dissident minorities are portrayed as outsiders, disloyal, and dangerous. Their struggle are criminalised, and their political rights increasingly restricted in the name of a unified, unconflicted vision of the nation. A common reaction of authoritarian states is to shoot the messenger rather than listening to the message, thus discrediting the role of international institutions and of international human rights law. This has been Spain’s reaction so far to two separate Opinions of the United Nations Working Group on Arbitrary Detention (UNWGAD) last Spring that declared unlawful the preventive detentions of civil and political Catalan leaders, at the time facing trial for their role in the 2017 independence referendum.
According to the WGAD, multiple international law provisions on human rights have been violated that Spain is obliged to protect as a member in different international treaties, such as the 1966 UN Covenant on civil and political rights. The opinion cast doubts on the impartiality and fairness of judicial proceedings leading to the detentions, and asserts that the imprisoned leaders exercised their rights to freedom of thought, conscience and peaceful assembly. It also asserts the violation of the presumption of innocence during the judicial procedures, and therefore calls for the immediately release of the political prisoners, and investigation on their detention and a fair compensation to the victims.
The lengthy prison convictions (between 9 and 13 years) for all civil and political leaders for their participation in the 2017 referendum (including Carme Forcadell, the President of the Catalan Parliament for having allowed the debate on the referendum) are based upon a deliberately broad definition of the crime of sedition, which opens the door to a dangerous restriction of individual human rights and violates key principles of the rule of law in a democratic society.
This assessment has been corroborated by the Amnesty International report released following the publication of the judgement last October. The report specifically stresses that the conviction of social activist leaders Jordi Sànchez and Jordi Cuixart for sedition violates their right to freedom of expression and peaceful assembly and they must be immediately released.
Exiled politicians have so far won the cases against the European arrest warrants in Belgium. In the case of President Puigdemont, a German court refused to extradite him to Spain (to be judged for the crimes of rebellion or sedition) as it did not perceive that the defence of self-determination and the referendum of October 2017 could fall into those criminal categories that require a violent uprising, which clearly didn’t take place.
Spain, however, seems so far immune to these international calls and no change of strategy seems to be in the horizon, as the continuing detention and imprisonment of Catalan protesters and activists under terrorist law demonstrates. Obviously, in the current conditions – with political prisoners and exiles – the pre-conditions for any meaningful dialogue or negotiation are largely lacking.
The disproportionate use of force, the criminalisation of Catalan political leaders, and the violations of individual civil and political rights are tacitly justified as a state tour de force to win this battle, and as a lesson to prevent Catalans from pursuing the path to independence.
Unfortunately, Spain seems determined to pay the high price (in terms of human rights violations and international reputation) of following the same strategy that was pursued in the Basque country to fight against ETA (the Basque terrorist group, and the political parties that supported Euskadi’s independence since the 1980s), disregarding the crucial fact that Catalan secessionism has been overwhelmingly peaceful and democratic.
In my opinion, these attempts at disregarding, discrediting and criminally repressing the pro-independence movement, while refusing to engage in a constructive dialogue to restore the damaged trust, will strengthen Catalans’ support for independence as it confirms that unfortunately, nothing much has changed over the last decade.
There are many international actions that could be taken – for instance, against the state passivity in prosecuting police violence and the brutal actions against defenceless citizens on the day of the referendum. Applications should also be lodged to the European Court of Human Rights (ECtHR) in a more strategic and organised fashion. In fact, I suspect access to the ECtHR and other international courts is the main reason why appeals lie unresolved at the Constitutional Court desk, as exhaustion of domestic remedies is a requirement in most cases. Yet the lack of effectiveness to prevent human rights violations domestically is an important reason to justify a more direct access. This is a path to be pursued to avoid further violations of rights.
I voted in the referendum for the independence of Catalonia on October 1, 2017, and that was one of the most extraordinary days of my life because of the huge amount of citizen involvement and democratic, collective civil disobedience, and later because of the shock and trauma that the unexpected police crackdown caused us, the voters. I know many people whose life and whose families’ lives have been affected by this turn to repression. They made sacrifices to organise the referendum, and I feel morally responsible to do whatever I can to help denounce this repressive move. Only by distorting facts and law can politicians regard Catalan pro-independence leaders as criminals.