Violation of Fundamental Rights in Europe: The Catalan Trial as a Case Study

INDEX

• THE CHILLING EFFECT
• FREEDOM OF EXPESSION AS A CRIME?
• FREEDOM OF POLITICAL OPINION AS A CRIME?
• THE RIGHT OF ASSEMBLY: HOW TO MONITOR THE INSTITUTIONS?
• IS THERE A BASIC RIGHT OF TERRITORIAL UNITY?
• CAN A WORD BE A CRIME BECAUSE OF ITS HISTORY?
• DO CITIZENS HAVE THE DUTY TO DEFEND BASIC RIGHTS?
• RESTRICTED EVIDENCE
• A CIVILIAN FACING AN EXCEPTIONAL COURT
• DID AN UNAUTHORISED SEARCH LEAD TO PROLONGED TENSION LASTING 20 HOURS IN THE STREETS?
• IN SPAIN AS IN AZERBAIJAN?
• JUSTICE WITHOUT POWER IS INEFFICIENT AND POWER WITHOUT JUSTICE IS TYRANNY
• EXCERPTS FROM JORDI CUIXART`S STATEMENT
• STATEMENT BY NJCM-TRIAL OBSERVATION: CATALAN SEPARATISTS AND PROTEST LEADERS, SUPREME COURT IN MADRID
 

Extract from the speech – [The first eleven minutes have been cut. These are concerned with the fact that no more than twenty witnesses for the defence have been accepted, and expert evidence countering that presented by the prosecution has not been allowed.]

THE CHILLING EFFECT: IF THE EXERCISE OF BASIC RIGHTS IS BEING JUDGED, THE INSTITUTIONS ARE CONVEYING THE MESSAGE THAT EXERCISING OUR RIGHTS CAN BE DANGEROUS

“We understand that the reason why my client stands accused solely and exclusively pertains to matters involving the exercise of basic rights. Hence, we understand that, with regard to my client, starting a trial in which the only matter being discussed is the exercise of basic rights could mean that it will become a trial about basic rights or, to put it simply and straightforwardly, even a trial against basic rights in terms of the well-known concept of the “chilling effect”, which has already been invoked by some of my colleagues.

If, in the end, people are put on trial because they exercise their basic rights, the message sent out by the institutions to citizens is that there is a danger in exercising basic rights and this will therefore discourage citizens from exercising those rights, which means that the democratic system could end up being void of content.”

English subtitles available. Click on the subtitle icon to enable them.

FREEDOM OF EXPESSION AS A CRIME?

“In our brief we raise, first of all, the matter of freedom of expression (…). Concern over this issue seems to be shared by both the prosecution and the State Counsel (p. 67 for the prosecution and p. 50 for the State Counsel). The indictment reads, “The initiative of Omnium Cultural, which created the website Let Catalans Vote, was determinant in obtaining the support of people who are more or less well-known in the international sphere, and in sustaining protests over legal action taken to shut down the referendum websites”.

This is what we are accused of, and the reason why such a harsh sentence has been requested in the case of Mr Jordi Cuixart. And this is the matter regarding which we must appraise the evidence in this case. And what is this matter? Seeking support for a political demand for a referendum from people as well-known as Noam Chomsky and the Nobel Peace Prize laureate Jody Williams—and we have requested that they should be called as witnesses in this plenum but the court considers that they do not constitute relevant testimony—but, in any case, can it be a criminal offence to seek support for a demand for a referendum from these personalities? Can this be a criminal offence appearing in an indictment? We believe that this cannot be so in a democratic system.”

English subtitles available. Click on the subtitle icon to enable them.

FREEDOM OF POLITICAL OPINION AS A CRIME?

“Second part of the case: protesting over the official shutdown of websites, or protesting the government shutdown of 200 websites, as happened in Catalonia. Must we condemn civil society for being alert and vigilant regarding possible abuse of basic rights? We believe that this should not be the case and that, therefore, this charge should not appear in an indictment.

Less than a year ago, Spain was condemned in the European Court of Human Rights over its violation of the basic right of freedom of expression. This concerned a ruling, of which the court is well aware, whereby the citizens Jaume Roure and Enric Estern were found guilty by the Spanish state of committing a crime, although the European Court of Human Rights considers that their conduct was an exercise of freedom of expression. The sentence of the European court tells us that with regard to citizens criticising power and criticising the institutions, there are practically no limits to freedom of expression. It says that Article 10 of the European Convention of Human Rights leaves virtually no space for restrictions on freedom of expression in political discourse and debate.

This is a position that the European Court of Human Rights ratified last summer, on 28 August 2018, in a ruling against Russia stating that civil servants acting in an official capacity are subject to wider limits of acceptable criticism than ordinary citizens, and still more so when such criticism concerns a whole public institution. This is an example which is relevant here: creating a web page, and seeking political support for protest against a government shutdown of this web page. In our understanding, this is a situation which, at the very least, comes close to violation of the basic right of freedom of expression. And, if I may say so, this is a right we all invoke, and we ask the court to ensure its protection and guarantees in this instance.”

English subtitles available. Click on the subtitle icon to enable them.

THE RIGHT OF ASSEMBLY: HOW TO MONITOR THE INSTITUTIONS?

“An action, when carried out collectively, gives rise to another, even more important right, which is the basic right of assembly. Also known colloquially as the right of association, this is a right which, we suggest, has possibly been violated owing to the way in which the accusations are being made in the present proceedings. In this regard, the prosecution, the State Counsel, and VOX are all moving in the same direction and are raising it directly. The indictment states that the accused played a crucial and, it is understood, criminal role, in literally inciting “mass-based mobilisation as an instrument of pressure.”

In this indictment, inciting “mass-based mobilisation as an instrument of pressure” is criminalised. Or to get to the crux of the matter of the basic right of assembly, really, when we read the indictments (…) we see that, at least with regard to Jordi Cuixart, we are accused of taking part in large demonstrations on 11 September (present in the charges: folios 72 and 77). And on the 13th, on the 14th and 15th, and so on. We are accused of having participated in massive demonstrations on 20 September 2017 at the Catalan Government’s Ministry of the Vice-Presidency and of the Economy and Finance, as stated in the examining court number 13 (folios 77-91). And we are accused with regard to demonstrations in educational centres on 1 October (folios 91-116). In other words, fifty pages of the prosecution brief are devoted solely to actions of peaceful demonstration. We must therefore take note of this and call attention to it because, in the situation in which we now find ourselves, large demonstrations of peaceful citizens, some of which, as we know, numbered tens of thousands of people, are deemed to be a criminal offence. This, we believe, is incompatible with a state that purports to be a “social and democratic State, subject to the rule of law”, according to Article 1 of the Constitution. Consequently, we must draw attention to this because, moreover, in the case of Jordi Cuixart, it is the only accusation made against him: his relationship with these demonstrations.

We are not the only ones saying this. Amnesty International says it: Jordi Sánchez and Jordi Cuixart are private citizens and presidents of civil society organisations and they have the right to organise and promote peaceful assemblies in support of the referendum. The World Organization Against Torture says it when it speaks of legal harassment against Jordi Cuixart and Jordi Sánchez, thus constituting disproportionate restriction of the basic right of peaceful assembly. Front Line Defenders, winner of the 2018 United Nations Human Rights Prize, says it, pointing out that Jordi Cuixart is a defender of human rights and that the charges against him are acts of reprisal for his peaceful work to protect civil and political rights.”

English subtitles available. Click on the subtitle icon to enable them.

IS THERE A BASIC RIGHT OF TERRITORIAL UNITY?

“Your Honour, people in the human rights sphere are paying attention to this trial and ask that it should not begin because the content of the indictments criminalise actions pertaining to the fundamental right of assembly (…).

Which basic right justifies limiting the basic right of assembly? What is it? Territorial unity? Because territorial unity—and let us see if this will happen—as my distinguished colleague Marina Roig noted, means that we are faced with the wretched situation where it would seem that people are willing to sacrifice universally recognised basic rights in a purported defence of some principle of the indissolubility of the Spanish nation when there is no basic right to territorial unity. It does not exist as a right that is recognised in any international treaty of basic rights, while the basic right of peaceful assembly does exist in all treaties of basic rights and is recognised and contemplated in all the international courts. Therefore, we believe and state, always with the utmost respect, that in order to preserve the validity of basic rights, we must find a way of annulling these indictments which criminalise the exercise of these selfsame basic rights.”

English subtitles available. Click on the subtitle icon to enable them.

CAN A WORD BE A CRIME BECAUSE OF ITS HISTORY?

“The court will not be unaware of the fact that, in the charges against Jordi Cuixart, it is said that we are accused of something as serious as pronouncing, in a speech on 20 September, the slogan “No pasarán” (They shall not pass). I repeat, the prosecution brief states, as a charge against Jordi Cuixart, that on 20 September he said “they shall not pass” emulating those Spanish democrats who fought to defend the Republic.

And we say that this approach of criminalising the use of this catchphrase which is so meaningful in Spanish contemporary history, and also in contemporary world history, must not continue. We say this because, one way or another, these words have been used throughout history and to the present day as a slogan in defence of democratic values and in the struggle against those who wish to restrict the scope of these democratic values. This is so much the case that, last summer, when the court in Strasbourg ruled in favour of Pussy Riot—the group of musicians you will know about—stating that Russia violated the basic rights of the members of this group, and taking note of the fact that, at this criminalised concert, the members of Pussy Riot were wearing a T-shirt with a very specific slogan, and this slogan was “they shall not pass”. Therefore, there is a historic thread running through world democratic history in relation with these words.

Nevertheless, it would seem that the prosecution and VOX wish to charge us for using this slogan. We believe that the prosecution brief should remove these charges because, if not, the next time the president of Omnium Cultural, the tenth president of Omnium Cultural, appeals to the European Court of Human Rights in Strasbourg, it will not be Russia or Turkey that are found guilty, but it will necessarily be the State of Spain. We state this as a well-informed opinion because, in addition to the statements of the human rights organisations we have indicated above, there are also other pronouncements made by several human rights rapporteurs concerning the content of this present lawsuit. These are rapporteurs we consulted when required, and they were called as witnesses in these proceedings, among them Mr David Kaye, UN Special rapporteur on the promotion and protection of the right to freedom of opinion and expression, and Mr Alfred de Zayas, independent expert on the promotion of a democratic and equitable international order, who spoke on 28 September about violations of the right of assembly resulting from the measures being adopted to prevent the referendum from being held in Catalonia. This was before 1 October. After this date, on 4 October, Ms Annalisa Campi, UN special rapporteur on the rights to freedom of peaceful assembly and of association, also made a statement, as did Michel Forst, UN Special rapporteur on the situation of human rights defenders. We have also presented many other statements to the same effect, thus justifying the approach of our representation in which we state that the key issue of these proceedings in the case of Mr Jordi Cuixart is the exercise of the right to freedom of expression, which is none other than freedom and the basic right of assembly and, specifically, with a very particular aim, namely exercising the right to self-determination, as enshrined in Article 1 of the International Covenant on Civil and Political Rights. And when we explain this in our defence brief, in a context where the public authorities are jeopardising basic rights, we wish to ask how citizens should respond when these basic rights are being jeopardised, including when this it due to actions of government authorities.”

English subtitles available. Click on the subtitle icon to enable them.

DO CITIZENS HAVE THE DUTY TO DEFEND BASIC RIGHTS?

(…) “How should citizens react? Well, in our milieu, some constitutions expressly stipulate that citizens have the right and duty to defend basic rights, including when they are violated by the public authorities. This is stipulated in Article 21 of the Portuguese Constitution, for example. It is stipulated in Article 23.3 of the Constitution of Berlin, and in Article 19 of the Constitution of Bremen. All of them are evidently constitutions drawn up in highly particular political contexts. And they specifically provide for a mandate whereby citizens can defend basic rights under any circumstances. What is the position of the Spanish Constitution? We believe that, although there is no explicit mandate, all citizens must defend basic rights. This is what Mr Jordi Cuixart says, and this is the matter of the present proceedings (…).”

English subtitles available. Click on the subtitle icon to enable them.

RESTRICTED EVIDENCE

“However, there are other questions in our brief, some of which may have a rather harsh title, as in the case of the declaration we present suggesting that the accusation, in the form in which it is presented by the prosecution, is an indictment that covers up torture. We should like to clarify this notion as it is a harsh statement to make, but we believe that the law will determine that we are correct in the way we approach it. The fact is that the indictment presented by the prosecution details and describes, one by one, the lesions that police agents deployed on 1 October received while on duty, yet it totally omits to mention the lesions that men and women citizens also received that same day. In other words, in this one brief we have meticulous detail concerning some people who were injured but in the case of other injured people, citizens who were in the polling stations that selfsame day, it is merely noted that there were a great number of them but that the numbers were manipulated and exaggerated.

Hence, we believe that this stance of the prosecution, namely trimming reality and only telling part of the real story, is not appropriate behaviour for the prosecution in criminal proceedings, especially when the prosecution has access to the facts. Furthermore, it is probable that the prosecution is the only body that has all the data on how many injured people are represented in all the lawsuits presently scattered in the Catalan courts. We therefore believe that the minimum position regarding the obligation of the prosecution to cover all victims of the crime is to record the data concerning all the injured people so that they can also appear as established facts in the sentence resulting from the present proceedings. In addition to all this, it should not be forgotten, either, that the United Nations High Commission for Human Rights and the Council of Europe demanded that the Spanish authorities and, we believe accordingly, the State Prosecutor as well, should carry out a fast, thoroughgoing investigation in the events. And, today, what we find, however, in the first trial to take place with regard to the events of 1 October, is that the prosecution is omitting some of the truth. Truth is always very relative but procedural truth, at least, is duly documented in the court records. Consequently, from this standpoint, in order to safeguard this basic right, the right to bodily integrity and prohibition of torture as stated in Article 3 of the European Convention on Human Rights and, especially, effective legal protection for those people being brought to trial, as is happening today, in a case where the events are going to be discussed but with only half the information being made available, we believe that this case for the prosecution must not go ahead or must not proceed in the terms in which the case has been formulated by the prosecution.

And, at this point, we could continue by listing several other procedural flaws affecting our basic right to due process, some of which have a lot of weight in the proceedings, for example matters like the natural judge, right of appeal, and an impartial and independent court. All these questions have been dealt with in court with the edict of 27 December 2018, but we do not agree with the court’s ruling and, at this point, we wish to register our dissent.”

English subtitles available. Click on the subtitle icon to enable them.

A CIVILIAN FACING AN EXCEPTIONAL COURT

“In particular, we wish to indicate that our client, Mr Jordi Cuixart Navarro, president of Omnium Cultural, has never had parliamentary immunity, and does not now have parliamentary immunity and, accordingly, his being brought to trial before the Supreme Court is a situation which, as we see it, is very difficult to understand and justify. This is still more the case since the court we are addressing, when resolving the question of prior judgement we raised in our defence brief, informs the present court that the events accounting for the fact that the Schleswig-Holstein court ruled against a European Detention Order in the case of Mr Carles Puigdemont have no direct bearing on the events leading to the trial of Mr Jordi Cuixart.

In brief, we do not understand why we are presently at a trial in the Supreme Court as if this were a case of parliamentary immunity.”

English subtitles available. Click on the subtitle icon to enable them.

DID AN UNAUTHORISED SEARCH LEAD TO PROLONGED TENSION LASTING 20 HOURS IN THE STREETS?

“In our brief we raised the quantity and great number of procedural defects and instances of invalidity in the investigation. However, perhaps the most important and interesting matter—which we shall not fail to highlight because of the accusation against Jordi Cuixart and the events of 20 September—is that, after thorough checking of the case, we have ascertained that a good part of the police search that occurred in the headquarters of the Vice-Presidency of Catalonia on 20 September, as a result of which protests that were organised and these protests are the issue in this trial today, was carried out even though most of this search was not legally authorised. In other words, as stated in the lawsuit, the judge, the magistrate judge of the examining magistrate’s court number 13 in Barcelona, had authorised an entry and search order—folio 384 of the separate item number 6—in relation with four offices. The judge did not authorise a search of the whole Ministry of the Economy building—although this had been authorised, for example, in relation with CESICAT (Centre for Information Security) and CTTI (Centre for Telecommunications and Information Technologies) headquarters, as noted in this case. Rather, it only authorised a search of four offices. Nevertheless, scrutiny of the log entry record—folios 603 to 615—reveals that the search was not restricted to the authorised offices but that it was carried out through the whole building. What procedural effects might derive from this overreach in the procedure of a police search without legal authority? We know that that these effects are limited and relative because this situation does not refer to a private home and, consequently, effects on the right to privacy and inviolability are not so great. But if we are judging a protest that occurred outside the headquarters of the Vice-Presidency of Catalonia, would it be relevant if the search lasted only two hours because four offices were searched, or if it lasted 22 hours because the whole building was searched? Well, from this perspective, perhaps there might be some relevance in the fact that this procedure, which we now bring before the court, is replete with procedural irregularities and defects. These are particularly related with an overreach in criminal procedure, and the fact that this procedure was transformed into something like procedural law of the enemy, which goes hand in hand with criminal law of the enemy, an issue that my colleagues raised in some of the questions we formulated in this morning’s session.”

English subtitles available. Click on the subtitle icon to enable them.

IN SPAIN AS IN AZERBAIJAN?

“We will therefore begin our conclusion with two very specific questions. We cite in our defence brief a ruling that we believe is very interesting. All of them are, and this one is especially so because it is particularly applicable to this case. This is the ruling of the European Court of Human Rights in the case Rashad Hasanov and Others vs. Azerbaijan of 7 June 2018. In this case the detention of several civil society activists had been brought before the court to be evaluated or judged. In 2011, this movement, NIDA, had called for freedom, justice and change in Azerbaijan, from a strict standpoint of rejecting violence and exclusively using non-violent methods. In 2013, after peaceful demonstrations had been held in Baku, the government detained civil society leaders and imprisoned them after accusing them of terrorism. When the case came before the European Court of Human Rights, in the ruling we refer to, it was considered that Article 5 on the right to freedom had been violated. But, what is perhaps more interesting for us, is the court’s perceived violation of Article 18 of the European Convention, which occurs when there is a certain skewing of power, or when a basic right is restricted without legal grounds, or for ends that are not expressly stipulated by law. What the European Court of Human Rights is saying in its ruling is that imprisonment of these civil society leaders occurred solely and exclusively in order to silence and punish leaders who consider and present political activities other than the official option. What was the European Court of Human Rights weighing up when it came to this conclusion?

First, it was considering the declarations of the state prosecutor deeming that the movement’s activities were criminal. Second, it took into account the fact that the accused were leaders of a peaceful civil society movement. Third, it noted that a special court had been used instead of the ordinary court which should have been used in such a case. Fourth, it drew attention to the existence of reports by international human rights organisations noting deterioration in the observance of human rights in the case of actions regarding civil society in Azerbaijan. We find that this ruling is very interesting since we believe that it could be applied to our case as well.”

English subtitles available. Click on the subtitle icon to enable them.

JUSTICE WITHOUT POWER IS INEFFICIENT AND POWER WITHOUT JUSTICE IS TYRANNY

“The philosopher Blaise Pascal said that justice without power is inefficient and power without justice is tyranny. One of the fathers of the Spanish Constitution, Gregorio Peces Barba, cited these words in a highly interesting book on basic rights, in which he reminded his readers that power must always be restricted by basic rights, and must always act from a standpoint of protecting the humanist morality of freedom, equality, and pluralist democracy. This is the essence of democratic rule of law.

Considering everything we have presented in the defence, we believe that there have been violations of all basic rights of freedom of expression, of assembly, legality of criminal proceedings, and of presumption of innocence. In brief, we argue that this criminal procedure is in opposition to the essence of democratic rule of law. This trial, as we understand it, is a collective defeat for Spanish society. With the utmost respect, we repeat that this trial should not begin, at least in the form in which it is formulated. If it does begin, we understand that the system of rights and freedoms has ventured into a realm of unknown, irreparable risks. Thank you, Your Honour.”

English subtitles available. Click on the subtitle icon to enable them.

EXCERPTS FROM JORDI CUIXART`S STATEMENT

English subtitles available. Click on the subtitle icon to enable them.

STATEMENT BY NJCM-TRIAL OBSERVATION: CATALAN SEPARATISTS AND PROTEST LEADERS, SUPREME COURT IN MADRID

Click here
 

MORE INFORMATION:

Prosecution Report of Public Prosecutor

Full Video of the Plea of Benet Salellas (Jordi Cuixart’s lawyer)