Case 16

Violation of fundamental rights in Catalonia by Spain

On the occasion and after the self-determination referendum on 1 October 2017, in Catalonia there has been an increase in civil and human rights’ infringements by the Spanish public authorities, such as it is the case with the right to freedom of expression, to assembly and to demonstrate.

On the occasion and after the self-determination referendum on 1 October 2017, in Catalonia there has been an increase in civil and human rights’ infringements by the Spanish public authorities, such as it is the case with the right to freedom of expression, to assembly and to demonstrate.

Description

During 1 October, while voters were peacefully gathered in front of polling stations protecting the ballot boxes, Spanish police forces assaulted polling stations in 92 municipalities and closed 400 of them. As a result, some ballot boxes were seized and 770,000 potential votes were lost (voters registered in the census of closed polling stations).   In addition, as a consequence of the disproportionate use of force, including rubber bullets firing, use of tear gas and violent charges against people who wanted to exercise peacefully their right to vote, 1066 people were injured.

Several journalist suffered unjustified limitations to inform about police charges in many polling stations. Some of them were assaulted by police officers while they were covering the facts at the polling stations.

Image from: El Racó català.cat

Before

On 12 September 2017, the Contentious-Administrative Court No. 3 of Madrid precautionarily forbade an event about Catalan people’s right to decide, organised by the group “Madrileños por el Derecho a Decidir” (People from Madrid for the Right to Decide). This event had to take place in a venue assigned by Madrid’s City Council. In the same vein, on 14 September Gijón’s local government revoked the authorization initially granted to the organizers of a debate that it forbade called: “Cataluña: de la transición al referéndum” (Catalonia: from Transition to referendum). On 15 September, the local police of Vitoria cancelled under a court order a debate about the Catalan referendum. On 21 September, the council of Zaragoza forbade a public event at the city’s school Pignatelli. That event was called “Asamblea estatal de parlamentarios y alcaldes por la libertad de expresión, la fraternidad y el diálogo” (State Assembly of parliamentarians and mayors for the freedom of expression, fraternity, and dialogue”). And on 27 September, Barcelona’s Council (at the Sarrià – Sant Gervasi district) stroke out the application to celebrate a public event sought by a local neighbourhood’s association. It was denied because they considered it a political event with the goal of promoting the referendum.

On 13 December, Spanish police prevented a public statement in Valencia. That communication had to be done by members of the pro-independence political party CUP to the media in a public area.

On 14 September, Santa Coloma de Gramenet’s city council forbade a political event called “Democràcia” (Democracy) organized by Òmnium Cultural, a private organization.

On 15 September, Spanish Civil Guard security forces seized advertising material in Sant Carles de la Ràpita and lately identified and “detained” three people for two hours in the police station. That same day, Spanish Civil Guard went to a private company, “Impremta Indugraf”, in Constantí, in order to seize referendum’s advertising material. After having the authorisation from the on-duty court of Tarragona, police officers remained there for seven hours, without finding any kind of advertising material. That same day, many Spanish Civil Guards, state police, local police and Mossos d’Esquadra (Catalan police) officers seized advertising material from several citizens, political offices and local institutional representatives. Officers also identified them and, in some cases, even detained them. Such type of actions were carried out in many Catalan localities such as Montcada i Reixac, Cerdanyola del Vallès, Sant Carles de la Ràpita, Figueres, Masquefa, Premià de Mar and Llagostera, among others.

On 16 September, Palafolls’ local police identified several members of the political party Esquerra Republicana de Catalunya (ERC) that were on the street pasting political posters. After that, they also reported them for disrespect towards duly constituted authority. In other localities such as Torredembarra, Vall de Ges, Santpedor, El Prat de Llobegat, Torelló and Barcelona there were also similar police interventions. That same day, Sitges’ local police identified some citizens on the street and withheld the camera and the mobile phone of a journalist working for the online media Nació Digital.

On 19 September 2017, besides entering into other printing houses and seizing material, at 6 am six Spanish Civil Guard armoured vans turned up at Unipost offices, in Terrassa, meaning to seize referendum-related material. This appearance was performed, apparently, following instructions from the prosecution authorities of Catalonia but without any search warrant. Because of that, company heads refused to facilitate police access without any warrant. For hours, some citizens gathered peacefully and spontaneously took to singing in front of the office and were partly expelled so that the Court Secretary of Terrassa Duty Court was able to appear twelve hours after Civil Guard’s appearance (at 6:00 pm) and show the search warrant.

On 19 September 2017, non-uniformed state police officers, who refused to identify themselves, seized documents and informative and advertising material from a stand held by the Assemblea Nacional Catalana association in Reus. That stand was on the street, prepared for a public event organized for that same night, and due to the police action three citizens were forced to go to the police station to be identified and detained for some hours.

Over 20 and 21 September, the arrest of fourteen Catalan government officers and technical staff of various departments of the Catalan Government, generated several gatherings, all them spontaneous and peaceful, in many Catalan localities. The most important one, in Barcelona, congregated around 40,000 protesters in front of the Catalan Department of Economy. The assistant district attorney from the National Criminal Court prosecution authorities decided to lodge a criminal complaint before the National Criminal Duty Court against an undefined number of protesters and the heads of Òmnium Cultural and Assemblea Nacional Catalana for a possible sedition offence (these heads are, today, still, in pre-trial detention).

Correos, a public mail delivery corporation, blocked arbitrarily several postal consignments during the days before 1 October referendum. One of these consignments included 60,000 copies of Òmnium Cultural’s magazine, periodically received by its members.

Law enforcement officers went to some Catalan media offices in order to hand a court order from the High Court of Catalonia, identifying the editors of these media (El Punt-Avui, La Nació Digital, Vila Web, El Nacional, el Racó Català and Llibertat.cat) without such requirement being explicitly stated by the corresponding court order.

More than 140 websites and dozens of applications were closed and the access to some websites from abroad was blocked by coercing Internet private suppliers. In addition, some individuals were investigated by Spanish police by means of searches in their private homes and subsequently indicted accused of cloning referendum websites. On 27 September, without any notification, Spanish Civil Guard blocked the political party’s CUP website as well as Òmnium, ANC and Empaperem websites.

During these months it was forbidden to take “estelades” (independentist) flags to football fields and other sports’ events. For example, Madrid Government’s Delegation, ordered the prohibition of such flags, not to mention about sanctions for whistling the Spanish anthem.

The outcome

The Supreme Court charged the Catalan Parliament President and several members of its general committee with alleged offences of rebellion, sedition and embezzlement. The President is now in pre-trial detention, thus breaking the parliamentarians’ right to inviolability in their freedom of expression.

Eight teachers working at La Seu d’Urgell are under investigation by justice authorities for alleged “hate offences” when debating in class with their students about 1 October and police violence. 13 teachers in Sant Andreu de la Barca are also under investigation. Not only teachers are under investigation for so-called “hate offences”, also a mechanic from Reus, several firemen and the managers of a gym are being investigated.

Private media are under investigation by justice authorities. For example, the Spanish weekly publication “El Jueves”, which is a humorous magazine, is under investigation for insult and hate offences resulting from a joke about the law enforcement forces’ actions on 1 October.

Badalona’s third deputy mayor (Badalona is the third biggest city in Catalonia) is being investigated by justice authorities for “disrespect” and “obstruction to justice” when he gave back banners and posters to a group of citizens that had been seized by local police officers before 1 October.

On 10 November, a court of Reus launched an inquiry on an alleged hate offence committed by public workers, entrepreneurs, councillors and neighbours in a demonstration. They requested National Police (officers who took part in police charges on 1 October) to leave the hotel where they were staying.

On 16 November, Eduard Biosca, actor and journalist, was subpoenaed for a radio joke about Spanish police settled in cruises at the port of Barcelona, the ones who performed the police charges on 1 October. However, the first-instance criminal court No. 9 of Barcelona has dismissed the complaint assessing it involved no criminal offence. Toni Albà, another comedian, has been also subpoenaed for an insult offence based on some tweets about the judge Lamela.

On 17 November, Spanish police arrested six people indicted of incitement to hatred for their comments on social networks about 1 October police charges.

The Spanish Ministry of the Interior has provided citizens an email and a telephone number to report the so-called “hate offences in Catalonia”. The aim of this action is to inspire people to report cases in which pro-independence people are against, for example, of police charges on 1 October.

First-instance criminal court No. 2 of Manresa has charged the alderman of Sant Joan de Vilatorrada, who is a professional clown, with a hate offence and a serious offence of contempt of authority for having a photo taken (wearing a clown nose) next to a Spanish Civil Guard during the police searches at the Catalan Government’s Office on 20 September.

Reus court No. 2 has accused two firemen of possible hate and misappropriation of public funds’ offences for attending the 3 October demonstration in front of Gaudí Hotel wearing the official helmet and jacket of the fire department.

At the King’s Cup football match played on 21 April in Madrid, Spanish police made F.C.Barcelona supporters who wore a yellow t-shirt (Supporting political prisoners) undress: they were banned from entering the football pitch if they would wear any yellow t-shirt.

Violated laws

It has to be said that both, the call for the Referendum and its promotion are not offences in Spain under Organic Law 2/2005 and that, as stated in the current Spanish Constitution (Articles 20 and 21), supporting any referendum is a lawful exercise of the following rights: freedom of expression, of assembly and to demonstrate. According to that, from the previous factual account we can mention the following possible violations of rights:

Spanish Constitution: articles 20 (freedom of expression) and 21 (right to assembly)

ECHR: article 10 (freedom of expression) and 11 (freedom of assembly)

UDHR: article 19 (freedom of opinion and expression); article 20.1 (freedom of peaceful assembly); article 12 (inviolability of correspondence).

ICCPR: article 19 (freedom of expression); article 21 (freedom of peaceful assembly); article 17 (inviolability of correspondence).

 From these rules and from constitutional and European case law it can be deduced that not only information or ideas propitiously accepted or considered inoffensive or indifferent are entitled, but also those that annoy, unsettle or offend Spain or whichever section of its population. Such are the requirements of pluralism, tolerance and of the spirit of openness, without which there cannot exist any democratic society.

Consequently, even though the Spanish Government doesn’t like people expressing their support to the independence of Catalonia or to hold a sovereignty referendum in events, meetings, on media, on banners, slogans, or artistic performances, it doesn’t legitimate politicians to carry out illegitimate interferences in such rights. And, according to the reported facts, there has been at least three fields which suffered such interferences:

a) When restricting or censoring free expression before being broadcast. These kind of procedures have had a deterrent effect when discussing issues with a legitimate general interest. For example, by banning events or meetings, or carrying out recordings aiming to intimidate the speakers.

b) When restricting freedom of expression and the right to assembly when being exercised. Freedom of peaceful assembly, as were all the assemblies located in front of the polling stations, defending the ballot boxes and people’s freedom of expression, is of such importance that can’t be limited (even less with a violent behaviour via police charges) because they were not illegal or punishable actions.

So, rights to freedom of expression and to assembly were violated when the events in favour of “Catalan people’s right to decide” were banned.   Also when police officers violently assaulted people who, without committing any illegal action, were peacefully assembled in front of the polling stations.

c) When citizens and elected officers have been a posteriori prosecuted. For example, teachers who debated in their classes about the 1 October events; deputies of the Catalan Parliament’s General Committee for voting in favour of handling parliamentary initiatives to support the referendum; and journalists and artists for expressing through their creations supporting the process of Catalan sovereignty.

In all these cases, the message conveyed is political, demanding “more democracy”, not illegal, peacefully expressed and shared by most of Catalan citizens.

References

About banning pro-referendum events:

Court order of Madrid Contentious Administrative Court No. 3 suspending the event (in Spanish) https://www.scribd.com/document/358715787/Auto-Suspension-Acto-Matadero-Madrid

Entries and searches into private companies and media (in Catalan):

http://www.ccma.cat/324/la-guardia-civil-vol-tornar-a-registrar-la-impremta-de-constanti-per-l1-o/noticia/2807808/

https://www.vilaweb.cat/noticies/la-policia-local-de-montcada-i-reixac-requisa-a-erc-material-de-campanya-del-referendum-de-l1-o/

(In Spanish):

http://www.lasexta.com/noticias/nacional/guardia-civil-busca-documentacion-referendum-empresa-mensajeria-lhospitalet_2017091959c0b63c0cf209c229be9f41.html

http://www.rtve.es/noticias/20170909/guardia-civil-registra-local-valls-busca-material-para-consulta-ilegal-del-1 de octubrectubre/1611460.shtml

Seizure of material and advertising about referendum from citizens and some later arrest (in Spanish):

http://www.diarimes.com/es/noticias/reus/2017/09/19/agentes_paisano_la_policia_nacional_requisan_material_identifican_miembros_l_anc_reus_24919_1092.html

Websites closed down (in Catalan):

http://www.levante-emv.com/comunitat-valenciana/2017/09/23/policia-interroga-joven-replicar-web/1619030.html

(In Spanish):

http://www.diariovasco.com/politica/interrogatorio-espejos-web-referendum-20170925114444-ntrc.html

Ban on “estelades” (pro-independence flags), wearing yellow ribbons and t-shirts supporting political prisoners. Penalties for whistling the Spanish anthem in sporting events (in Catalan):

https://www.vilaweb.cat/noticies/un-jutge-de-madrid-avala-lexhibicio-destelades-en-camps-de-futbol-perque-ho-empara-la-llibertat-dexpressio-futbol-barca-barcelona-sevilla-copa-rei-dancausa-calderon/

(In Spanish):

https://elpais.com/deportes/2015/07/27/actualidad/1438022652_274369.html; http://www.europapress.es/nacional/noticia-audiencia-nacional-condena-santiago-espot-pago-7200-euros-multa-pitada-himno-20171222113811.html

Prosecuting the Catalan Parliament President and other members of its General Committee for voting (violation of parliamentary inviolability) (in Spanish): 

https://www.scribd.com/document/362996215/Querella-de-la-Fiscalia-General-del-Estado-contra-la-Mesa-del-Parlament-ante-el-Tribunal-Supremo

http://estaticos.expansion.com/opinion/documentosWeb/2017/11/09/Auto%20Forcadell.pdf

Prosecuting citizens, artists and journalists who expressed their support to the referendum of independence for “hate offences” (in Catalan):

https://www.vilaweb.cat/noticies/el-jutge-mante-com-a-investigats-els-vuit-professors-de-la-seu-durgell-per-haver-parlat-de-l1-o-a-classe-independencia-catalunya-referendum/

(In Spanish):

http://www.europapress.es/catalunya/noticia-fiscalia-cita-13-profesores-instituto-sant-andreu-barca-polemica-20171226112746.html

(In Spanish):

https://www.eldiario.es/catalunya/politica/Declara-incitacion-mecanico-Reus-arreglar_0_737726597.html

(In Catalan):

http://www.elnacional.cat/ca/cultura-idees-arts/jueves-demanda-estat-advocacia_217188_102.html?utm_source=Newsletter+CATALÀ&utm_campaign=0a9c567e76-EMAIL_CAMPAIGN_2017_10_25&utm_medium=email&utm_term=0_a31d6c8a9b-0a9c567e76-94652421

(In Spanish):

http://www.lavanguardia.com/local/tarragona/20180212/44738615323/jueza-instruye-delito-odio-reus-investiga-dos-bomberos-mas.html

Documents

– Here you can find a thorough report about freedom of expression violations before and after 1 October, conducted by journalists (In Catalan):

https://www.media.cat/wp-content/uploads/2017/12/Informe_1 de octubre_CAT.pdf

– International criminal complaint promoted by “Col·lectiu Praga”, signed by 650 jurists and presented on 26 February 2018 before several organisms of the Council of Europe (in English):

http://collectiupraga.cat/wp-content/uploads/2018/02/Denu%CC%81ncia-CEDH.-26-2-2018-Angle%CC%80s.pdf

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