As regards more specifically Spain, the Assembly recognises
that Spain is a living democracy, with a culture of free and open
public debate, and that the mere expression of pro-independence
views is not a ground for criminal prosecution. The Assembly fully
respects the constitutional order of Spain. Nevertheless, several senior
Catalan politicians were prosecuted and eventually sentenced to
long prison terms for sedition and other crimes, inter alia for
statements made in the exercise of their political mandates, in
support of the unconstitutional referendum on the independence of
Catalonia in October 2017 – organised by application of the “disconnection
laws” approved by the Parliament of Catalonia in September 2017
and found to be unconstitutional by the Spanish Constitutional Court
– and calling for participation in the mass protests surrounding
this event.
9.1 Incriminatory statements
included public speeches supporting the unconstitutional referendum
in October 2017 on the independence of Catalonia and calling for
participation in several demonstrations, as well as votes in the
Catalan Parliament expressing the same support or allowing debates
on this topic to be included in the agenda of the parliament. The
Assembly notes that the referendum had previously been ruled unconstitutional
by the Spanish Constitutional Court, which had also warned the politicians in
question against organising it.
9.2 Some of the politicians in question were also found guilty
of abusing public funds and other resources, in particular by allowing
public buildings to be used as polling stations.
9.3 The Assembly notes that the crime of organising an illegal
referendum, punishable by up to five years in prison, was abrogated
by the Spanish legislature in 2005. In this reform of the Criminal
Code, the crime of sedition, punishable by up to fifteen years in
prison, which requires an element of violence (“tumultuous uprising”)
remained unchanged. The organisers of the illegal referendum on
1 October 2017 were convicted of sedition.
9.4 It is undisputed that none of the politicians in question
called for violence. On the contrary, it is recognised, also by
the prosecution, that they called on demonstrators to refrain from
any violent acts. Indeed, on several occasions, hundreds of thousands
of people demonstrated without any violent incidents, thanks also
to the restraint exercised most of the time by the Catalan and Spanish
security forces, who were also deployed in large numbers.
9.5 The Assembly warmly welcomes the fact that the criminal
provisions on rebellion and sedition have become subject to intense
debate in the political and legal spheres in Spain, in particular
as regards the need to update and restrict the definition of the
crime of sedition. These provisions were enacted in response to
the frequent attempts at military takeover in the past. Doubts were
therefore expressed as to their application to the organisers of
peaceful demonstrations. This required novel interpretations such as
the notion of “violence without violence” developed by the prosecution,
according to which the sheer number of demonstrators exercised psychological
coercion on the police officers facing them, and a very wide meaning
given to the term of “tumultuous uprising” required for the crime
of sedition.
9.6 The Assembly further notes that, even after the conviction
of the leading Catalan politicians involved in the 2017 unconstitutional
referendum, the Spanish judicial authorities also prosecuted the succeeding
set of Catalan leaders and a number of lower-ranking Catalan officials
involved in the events in 2017. The Spanish authorities also continue
to pursue the extradition of Catalan politicians living in other
European countries, despite several setbacks in Belgian, British
and German courts. Finally, it notes a positive development in that
several high-profile prosecutions, of the head of the Catalan police force
and of members of the Catalan election commission, have recently
ended in acquittals.
9.7 The Spanish authorities have reportedly made the application
of the milder prison regime, usually applied to non-violent offenders,
or the consideration of a pardon subject to the prisoners’ expressing regret
for their actions and/or undertaking not to commit further crimes,
as is the case for all convicts under Spanish law. The prisoners
in question consider that they cannot be obliged to disown their
deeply held political convictions.
9.8 The Assembly respects the independence of the Spanish
tribunals to solve pending appeals, while respecting the right to
appeal to the European Court of Human Rights in due course.
