José Antonio Yturriaga
Ambassador of Spain
On 28 May, the European Court of Human Rights (ECHR) refused to deal with the lawsuit brought against Spain by 76 former members of Catalonia’s Parliament, led by its former president Carme Forcadell. This is cause for special rejoicing, as this Court has not always done justice to Spain, as happened in the cases “Parot”, “Del Río” or “Betaragune”.
Facts that motivated the lawsuit
On 9 November 2015, the Catalan Parliament (‘Parlament’) adopted resolution 1/XI on the beginning of the constituent political process, with the aim of Catalonia becoming an independent Republic. The central government challenged this resolution and the Spanish Constitutional Court (TC) upheld the challenge in its ruling 259/2015 and declared it unconstitutional and null and void. The Generalitat and the ‘Parlament’ ignored it and, a year later, the ‘Parlament’ adopted Resolution 263/XI, by which it agreed to hold a referendum of self-determination, the drafting of its own Constitution and the unilateral declaration of independence. After the appeal presented by the Government, the Court agreed in its judgement 170/2016 on the unconstitutionality and consequent nullity of the resolution.
On September 6 and 8, 2017, the ‘Parlament’ adopted Laws 19/2017, on the referendum of self-determination, and 20/2017, on the transitory legal and foundational nature of the Republic, respectively. The laws were adopted by surprise, with maliciousness and nocturnality, through an urgent procedure in which debate was not allowed the participation of the Opposition MPs, 16 of whom -members of the PSC- filed an appeal for protection. The Constitutional Court allowed the appeal and decided to suspend the aforementioned laws, which were later declared unconstitutional. Despite this, the Generalitat held a pseudo-referendum of self-determination on 1 October. On 6 October, it was convened a plenary session of the ‘Parlament’ to evaluate the results of the referendum while the Constitutional Court prohibited it. However, the president of the Generalitat, Carles Puigdemont, appeared the 10th before the ‘Parlament’ and formulated a Unilateral Declaration of Independence of Catalonia, the suspension of which he then declared.
Purpose of the complaint
The 76 separatist MPs of the ‘Parlament’ challenged before the ECHR the suspension of the plenary session agreed by the TC as a provisional measure prior to the eventual decision of the Court on the appeal for protection filed by the deputies of the PSC. The application was submitted to the plaintiffs individually in their capacity as deputies belonging to the parties Juntos por Cataluña and CUP, and by some members of the Bureau, because the decision of the Constitutional Court had violated Articles 10 and 11 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, relating to freedom of expression and freedom of assembly.
Article 10 establishes that everybody has the right to freedom of expression, although this right may be subject to certain conditions and restrictions laid down by law, which constitute necessary measures, in a democratic society, for “national security, territorial integrity or public security, the defence of order and the prevention of crime”. According to article 11, everyone has the right to freedom of peaceful assembly. Its exercise may not be subject to any restrictions other than those provided for by law, which constitute necessary measures in a democratic society for national or public security, the defence of order, the prevention of crime or the protection of the rights of others.
The applicants also alleged that the suspension of the meeting had violated Article 3 of Protocol No. 1 annexed to the Convention because it undermined the free expression of the people’s opinion on the choice of a legislative body. Finally, they maintained that article 6 of the Convention, which provides that everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal, had been violated. The ECHR has unanimously decided that all of the plaintiffs’ allegations were unfounded and rejected the processing of the complaint.
Violation of freedom of assembly
At the outset, the Court has clarified that the application was not submitted by a “governmental organization” but by a group of individuals who consider themselves victims of a violation by a State of the rights and freedoms recognized in the Convention, so that they are affected individually and not the Parliament as an institution.
As the lawsuit was based on the fact that the Constitutional Court had banned the meeting of the Parliament convened by the Bureau on 6 October 2017, the ECtHR focused on the examination of Article 11 of the Convention, which only protects “peaceful meetings” and not those in which participants incite violence or deny the foundations of a democratic society. The alleged interference was manifested in the decision by which the Constitutional Court admitted the appeal for amparo filed by the minority and suspended the meeting. As the ECHR observed, article 56 of the Organic Law of the Constitutional Court grants the Court the capacity to adopt preventive measures and provisional decisions to prevent an appeal accepted for processing from losing its objective and provides that, in urgent cases, the suspension of the challenged meeting may be decided from the moment the Court admits the appeal for processing. Such a pronouncement could be challenged by the affected parties within five days of receipt of the notification and the TC increased to 10 days the time limit for the parties to pronounce.
The session of the Parliament was convened in application of Law 19/2017, which -having been provisionally suspended by the TC on 7 September- had ceased to be applicable. The suspension was personally notified to each of the MPs. Law 20/2017 was also suspended by the Constitutional Court, which subsequently declared both laws unconstitutional by judgments handed down on 17 October and 11 November 2017. The ECHR admitted that, by its decision to suspend the meeting, the Constitutional Court sought to protect the rights of minority MPs against majority abuses. Therefore, the suspension pursued the legitimate aims mentioned in Article 11 of the Convention, especially those relating to public security, the maintenance of order and the protection of the rights of others. The decision of the Bureau to authorize the convening of a plenary session of the ‘Parlament’ amounted to a manifest lack of respect for the decisions of the TC suspending Laws 19 and 20/2017. The TC exposed the irregularities that occurred during the process of adopting these laws and tried to avoid imposing on minority deputies the irregularities carried out by the majority and preventing them from legitimately exercising their functions, in accordance with article 23 of the Constitution. It also sought to preserve the right of citizens to participate in public affairs through their representatives.
State interference responded to an “imperative social need” and suspension was “necessary in a democratic society” for the maintenance of public security, the defence of order and the protection of the rights and freedoms of others. And, to culminate the accumulation of irregularities, the president of the Generalitat, Carles Puigdemont, appeared before the ‘Parlament’ on 10 October to declare the independence of Catalonia, a declaration that was then suspended and rendered null and void. For all these reasons, the ECHR considered that it was appropriate to reject the application as manifestly ill-founded, in accordance with Article 35.4 of the Convention, which provides that the Court shall consider any individual application inadmissible “when it considers it incompatible with the provisions of the Convention or its Protocols, manifestly ill-founded or abusive”.
On the applicants’ allegation that the suspension of the meeting undermined the free expression of the people’s opinion on the legislative body, the ECHR observed that the Plenary meeting was intended to evaluate the results of October 1st referendum and its effects, but pointed out that electoral procedures in the form of a referendum did not fall within the scope of application of Article 3 of Protocol 1. In order for this to happen, the procedure should have been developed “under conditions that ensure the free expression of the people’s opinion on the election of the legislative body” and such conditions “were not met in Catalonia”. The meeting was convened in application of Law 19/2017, which had been temporarily suspended by the Constitutional Court, so it was inapplicable, and, consequently, the convening of the meeting by the Bureau implied a manifest failure to respect the decision of the Court, “which sought the protection of the constitutional order”. The ECHR therefore concluded that the application was incompatible with the provisions of the Convention.
With regard to the allegation of violation of Article 6 of the Convention on the right of citizens to a fair hearing by a court, the applicants merely stated that neither they nor the ‘Parlament’ had access to a court to denounce their claims, but did not provide any evidence. The ECHR did not accept the allegation because it is not in accordance with the law.
Although it was a question of the simple inadmissibility of a lawsuit, the ECHR went to the heart of the matter and gave a resounding slap in the face to the Catalan coup plotters, imprisoned or exiled, who have put all their hopes in the Court of Strasbourg. The Court has also sent a subliminal message when it has stated that, in exercising its control over human rights, it does not seek to replace domestic jurisdictions, but to verify that the decisions they take by virtue of their capacity to assess, and that it should confine itself to checking whether the respondent State had acted in good faith and in a reasonable manner, whether its action had been “proportionate to the legitimate aim pursued” and whether its motives were “relevant and sufficient”. The ECHR considered that the action of the TC was foreseeable, legitimate and necessary, and fulfilled the requirements for limiting the rights of assembly and expression. The Strasbourg Court has stressed that political parties may promote changes in the law and legal or constitutional structures of a State, but “provided that it uses legal and democratic means” and that it proposes changes “compatible with fundamental democratic principles”.
The Catalan pro-independence authorities have shown their contempt for the law and have become accustomed to the impunity they have enjoyed so far in the face of their continued violation of the Constitution and the laws and non-compliance with the judgments of the Courts. They have used, and abused, the procedures available to them under the Constitution, the Statute and the laws to violate them. They have recklessly formulated unworkable resources and -although they have achieved some successes, such as the regrettable resolution of the Landesgericht of Schleswig-Holstein or the refusal of the Belgian Justice to comply with a European Arrest and Surrender Order in the case of Puigdemont and other escaped politicians- in the end they have come up against Spanish and even international justice. The resolution, on the other hand, serves as a warning to the coup plotters, since it has shown that -as El Mundo’ pointed out in a leading article- European justice will never approve the territorial disintegration of an EU Member State.
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