El Defensor del Poble Català, el Síndic

The Síndic recommends social and political dialogue, and to stop criminalising freedom of expression and political disputes.

The abusive and disproporciante use of the precautionary measure of curtailing freedom may constitute in the fragrant violation of fundaments rights which have been produced.

Given the historical nature of the situation, an eminently political nature which also touches on basic rights, the Síndic insist on the need for constructive dialogue between the civil societies of Catalonia and the rest of the State, on one hand, and the actors of all political and social colours of Catalonia, on the other.

On 1st October, there was a disproportionate use of police force and, as the European Council and the United Nations are demanding, those responsilble must be identified.

It is worrying that people who have been selected and who are in possession of there political rights cannot be candidates for the presidency of the Generalitat.

It is important to bolster democratic guarantees that safeguard for exercising fundamental freedoms and rights, such as the freedom of expression, the right to assembly and to protest.

The judically punishable facts linked to the Catalonia’s political conflict have to be addressed with minimal penal intervention.

It is imperative that Catalonia’s self-government be completely reestablished, without intervention in management nor finances.

The Spanish State’s inability to face the Catalan conflice with the very legal mechanisms of a democratic regime has been made clear with the excessive reaction shown by the authorities ahead of the 1st October and the 21st December. In the report Retrocessos (Regresses) on the matter of human rights: freedom of expression of elected officials and separation of the powers to the Kingdom of Spain, the Síndic, in April 2017, already warned of the erosion of the separation of powers in Spain and of its effect against democratic principles.

A year later, the behaviour the State’s three powers has been characterised by the application of exceptional measures that have limited, weakend and even criminalised exercising fundamental freedoms and rights, especially the freedom of expression. The Síndic explains in the report presented on Monday 28th March, the weakening of fundamental civil freedoms and rights upon the criminal response since 1st October and the application of Article 155 of the Spanish Constitution.

According to the report, the restriction of personal freedoms of many social and political leaders by way of an abusive and excessive use of the preventive measure of the deprivation of freedom may constitute as a case of the most flagrant violation of fundamental rights.

Therefore, the dissolution of Parliament by means of Artcle 155 and the destitution of more than 250 high Government officials directly affected the right to political participation which Article 23 of the Spanish Constitution recognises, in a double entendre: on one hand, the right of destitute public officials and ousted representatives become affected due to the anticipated dissolution of Parliament; and on the other hand, the right to the citizens political participation is afected, in general, insomuch as the representatives who they elected have not been able to perform their function during the time for which they were elected.

The right to political participation in Article 23 is also seen to be affected by the acts which, following the elections celebrated on 21st December 2017, and without any legal foundation, prevent people who have been elected as deputies of the Parliament of Catalonia, and who are entitled to their rights, from being candidates to the presidency of the Generalitat.

The attacks and setbacks to freedom are not circumscribed to expressions or protests of a nationalist nature in Catalonia, but they do have a wider reach and they are applying different forms of protest and dissidence.

The report warns that the framework of criminal prosecutions that are followed in different jurisdictional bodies due to causes brought on by the 1st October consultation and the declaration on 27th October, the possible affectation to fundamental rights is deeply worrying. One of the most remarkable is one that makes reference to the principal of criminal legality, when unreasonable accusations are made, based on grossly twisted facts, without the normal legal provision. This violation of the principal of criminal legality on the instruction of crimes such as rebellion, sedition, terrorism or organised crime, among others, it appears to look for exemplifying punishments and a dissuasive effect for certain political positions in the future.

Therefore, from a processal point of view, the possible violations of the right to defense are also serious, as well as the public protests that have been generated over recent years, which puts in question the necessary judicial imparciality.

Finally, on many occasions during the period which the report refers to, and especially on the day of 1st October 2017, the Spanish Military Police and the National Police Body behaved in a disproportionate manner, and they caused more suffering to an already bad situation than they supposedly wanted to avoid. Particulary concerning and unacceptable was the use of rubber bullets.

Original source (Síndic. 28/05/2018)


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