Demolishing report from the Ombudsman over the ‘democratic regressions’ in the Spanish state

The Catalan Ombudsman, Rafel Ribó, made a demolishing report in April about the recent ‘democratic regressions’ in the Spanish state. The document will be presented in public a large event on 29 May at the Catalonia Bar Association. It has thirty-one pages and makes an exhaustive review of the reformation of the Spanish Constitutional Court, the judicial persecutions of former president Mas and three of his ministers, councillors of Badalona and Vic, and the lack of separation of powers in the state; and he also remembers the warnings and recommendations that the Venice Commission and the Council of Europe made to Mariano Rajoy’s government, which continues to ignore them. The report is titled Retrocessos en matèria de drets humans: llibertat d’expressió dels càrrecs electes i separació de poders al Regne d’Espanya, [Human rights regression: elected officials’ freedom of expression and the separation of powers in the kingdom of Spain] and can be read in full here:

VilaWeb offers a summary:

Introduction
“This report will analyse how the area of human rights and fundamental freedoms, in the opinion of this institution, are being attacked by the kingdom of Spain, and especially in Catalonia. The report will show that there are laws passed by the Spanish Parliament that in themselves harm or jeopardise fundamental rights and freedoms.”

Human rights and separation of powers in the Spanish context
“The European Court believes that although expression is an essential freedom for everyone, it is even more so for political parties and their active members. […] Regarding criticism of the politicians, the admissible leeway for critical discourse is broader still when referring to a government (more than a political individual) than when it refers to a simple individual. […] There is nothing more desirable for the state’s competent authorities than to take criminal measures as guarantors of public order, with the intention of reacting adequately and not excessively.”

Legislative restrictions on the right to freedom of expression in the kingdom of Spain: Citizens’ security law and Criminal code
“Amnesty International’s report 2016/17 starts the section on Spain with this statement: ‘Throughout the year, unjustified restrictions were imposed on the rights to freedom of information, of expression and gathering, based on the reformation of the Criminal Code and the new Citizens’ Security Law which had been enforced in 2015’.”

“In fact, Spain has recently provided itself with administrative and criminal legislation which, in the opinion of this institution, excessively restricts fundamental rights and freedoms in a way that is incompatible with the jurisprudence of the European Court: […] The 2015 reformations of the Criminal Code (Organic Law 1/2015, of 30 March) and of the Citizens Security Organic Law– LOSC– (Organic Law 4/2015, of 30 March).”

The LOSC introduces a model of administrative control that prioritises the presumption of truth of the state security forces and bodies over the presumption of innocence, which is a foundation of any democratic regime, with a vague and imprecise text that allows an excessive leeway for the executive powers in restricting individual freedoms, including freedom of expression. […] It is significant that in the seven months covered by the graph, more than 10,000 fines were imposed for lack of respect to authority or disobedience, breaches in which the reporting agent is both the victim and the witness of the events.”

The Greco report
“The Council of Europe’s complaint in the so-called Greco Report is symptomatic, in which it criticises the kingdom of Spain for failing to follow its recommendations over strengthening judicial independence.”

“In 2013, the Council of Europe Group of States against Corruption (Greco) sent the kingdom of Spain eleven recommendations to better combat corruption amongst parliamentarians, judges and prosecutors. Almost three years later, they believe that none of the eleven measures proposed at that time has been satisfactorily answered. Six of the measures have not even been started up. The institution reminds the kingdom of Spain that ‘the political authorities must not intervene in any of the stages of the process of appointing magistrates’. […] And it must not be forgotten that the General Council of Judicial Powers appoints all magistrates of the Supreme Court, all presidents of the superior courts of justice and all presidents of the provincial audiences.”

The reformation of the Organic Law of the Constitutional Court
“The reformation allows the Constitutional Court to apply executive measures to oblige the remaining powers to fulfil its sentences. These measures are undetermined with regard to content, are unlimited in time, affect graduated people, allow no possibility of appeal, and would be taken without hearing the party […]. In short, exorbitant measures from any democratic perspective of sanctioning law, whether criminal or administrative.”

“In the states of our surroundings that have a Constitutional Court, it is generally the executive that deals with guaranteeing the execution of its sentences. The fact that this capacity is given to the court itself is a further element that causes alarm as to the connections between the government and the Constitutional Court.”

The opinion of the Venice Commission
“In short, the Commission observes that the Constitutional Court’s responsibility to guarantee the execution of its own sentences is the exception in compared law, and asks for this power to be reconsidered. It establishes that the reformation might seem to increase the power of the Constitutional Court, but what is happening is that its independence is being harmed.”

“With this pronouncement of the Venice Commission, the central government has studied the application of article 116 of the Spanish constitution in case it were necessary to stop the Catalan process. In fact, the document of allegations that the central government sent to the Venice Commission says that ‘if the situation were more serious’ and could not be resolved with other tools, such as article 155 of the Spanish constitution, article 116 could be applied, which refers to the state of alarm, exception and siege. This is the most extreme measure that can be taken in any democratic regime.”

Regressions in rights and freedoms in Catalonia
“As will be seen, this point is especially affected by Sentence 42/2014, which is the starting point for attributing legal effects to a political Parliamentary resolution, something the Constitutional Court had never accepted before.”

Some recent cases of judicialisation of politics
“The investigation and conviction of the former president of the government of Catalonia and of three of his ministers has caught the attention even of the United Nations bodies responsible for supervising human rights. As this report is presented, the oral trial has already been held and both cases have been sentenced. […] The sentences aside, it is extraordinary to have judged a political action without legal effects and which only gave a result of political value and citizens’ expression. It is disproportionate for such facts to have criminal effects when the answer should have been active political action on the part of the government and political parties.”

Regarding the legal action against Carme Forcadell and other members of the Bureau, the report says:

“The action of the president of the Parliament and the members of the bureau is protected by the prerogative of Parliamentary inviolability. As Prof Mercè Barceló reveals, article 57 of the Statute establishes that ‘the members of the parliament are inviolable for the votes and opinions they issue in the exercise of their position’, a principle backed by consolidated jurisprudence starting with Constitutional Court Sentence 36/1981.36.”

With reference to keeping the Catalan flag of independence hanging from Berga town hall, the report says:

“If the town hall complies with the presence of official flags, there is nothing to prevent it from adding other symbols, as often happens (flags of the colours of the rainbow, signs in favour of refugees or against gender violence, etc.).”

Regarding the declarations by the counsellor Joan Coma (about eggs and omelette), the report says:

“Coma’s declarations have to be considered as part of the freedom of expression, in which anyone can consider whether they are adequate or not, whether they are words coherent with someone who believes firmly in the process or whether advocating disobedience is something irresponsible from a public post. But it is disproportionate that these declarations should be considered of criminal interest.”

About the fact that councillors in Badalona tore up the requirement in public:

“It is understood that the councillors were free to give their performance as a political action within the freedom of expression, and that no criminal precept was breached.”

Conclusions 
“The origins of the Democratic regressions set out in the report are in the laws passed by the Spanish Parliament.

In the institutional area, the international pronouncements −Greco, Venice Commission and the rapporteur of the United Nations − have called for reformations to guarantee the separation of powers.

The LOSC is vague and imprecise and allows excessive leeway for the executive power in restricting individual freedoms, including freedom of expression.

Excessive intervention by criminal law in social life causes a reduction in the area of individual freedom and is particularly serious when it is used on political representatives and elected posts.

In a democratic state, scrupulous respect for the principle of separation of powers is essential. Spain seems to erode this principle because none of the eleven measures proposed by the Greco in combating corruption amongst parliamentarians, judges and prosecutors has been satisfactorily answered, and six have not even been started up.

We have recently seen trials of politicians for acts performed in the exercise of their duties in which the influence of the government over the prosecution has been obvious. The investigation and condemnation of the former president of the government of Catalonia and three of his ministers has caught the attention even of the United Nations bodies responsible for supervising human rights.”

Recommendations
“Possible recommendations must be sought in order to avoid such resorting to the criminal courts in solving political conflicts.

The immediate application of the sentences of the European courts must be guaranteed, and particularly, in the case of the clauses limiting mortgages, the sentence of the European Court of Justice must be applied to all those affected and the future law of real estate contracts must be fully adapted.

A return is needed to traditional constitutional jurisprudence in which political Parliamentary resolutions had no legal effects and could not be challenged in court.

Political actions must only be answered by political actions on the part of the government and political parties.

The possibility must be considered of allowing defendants who voluntarily do not wish to appear to notify the court, so that the court can continue with the actions and the case without needing to make an arrest.”