Misc 15/11/2019

International Trial Watch denounces a "major violation" of rights during the trial of the Catalan leaders

ITW warns of the criminalization of the right to protest and criticizes the Spanish court for ignoring a UN report

Montse Riart
3 min
Els presos polítics al judici del Tribunal Suprem

BarcelonaInternational Trial Watch (ITW), the international watchdog that monitored the trial against the 2017 Catalan independence bid, has published a report analysing the ruling by Spain’s Supreme Court in which it denounces a "major violation" of the defendants’ basic rights. According to the report, "any earnest attempt at interpreting the judgement based on technical and legal concepts, such as sedition, uprising, violence or fundamental right becomes unsuccessful. The reason is surely because it is a clearly ideological resolution aimed at replacing the political solution that is needed in the con ict in Catalonia". The report has the support of 31 state and international organizations, including the European Association of Democratic Lawyers, the American Association of Jurists, the Catalan Association for the Defence of Human Rights, the University of Barcelona’s Observatory on the Penal System, the Irídia Centre for the Defence of Human Rights, and the Free Association of Lawyers. More than five hundred lawyers have signed a petition in support of the report, 23% of which are from outside Spain.

According to ITW, it is not possible to find the defendants guilty of sedition since there was no uprising, on either 20 September or 1 October. The observers argue that characterising these two protests as uprisings constitutes a violation of the freedom of assembly and the right to protest, especially in regard to the part played by Jordi Sànchez and Jordi Cuixart (who do not hold public office and who were exercising their right to protest), but also with regard to the former ministers of the Catalan government, who merely encouraged people to participate. ITW warns that the court’s finding "criminalizes the right to protest and violates the right to peaceful assembly and the right to demonstrate". The president of the Free Association of Lawyers, Belén de las Nieves Caballero, pointed out that the verdict "not only affects the independence leaders", but "the exercise of the right to peaceful assembly and freedom of expression".

According to the lawyer and spokesperson for ITW, Anaïs Franquesa, "the basis of the verdict" is that a crime of disobedience "turns into sedition for having encouraged the people to take part in the demonstrations". In reality, for Franquesa, it was a "peaceful demonstration" which is protected under the "freedom of expression and right to public protest" which in no way justifies a prison sentence. According to Franquesa, "it is criminalizing the right to protest and violating the freedom of assembly", and therefore "the verdict violates fundamental rights which affect everyone". ITW also criticises the Supreme Court for failing to take into account in its ruling the report by the UN working group which recommended the defendants be released, which Cuixart’s defence team submitted to the court on the last day of the trial.

Neither an uprising nor a public order offence

The ITW report concludes that on 20 September and 1 October no uprising or public order offence took place and rejects the idea that two demonstrations on different days could be considered a sustained “multiple uprising" or "consecutive uprisings". It goes on to argue that "If, as stated, there were two consecutive uprisings, it makes no sense that the state did not deploy the legal instruments which exist for such exceptional situations, to partially or wholly suspend rights". ITW believes that the conviction for sedition "is unreasonable" and that in many instances the court ends up confusing and punishing actions which, at most, would constitute a crime of disobedience.

In addition, ITW also argues that the verdict assumes that the defendants were behind the events which took place on 20 September and 1 October, without considering whether these two days "constituted a legitimate exercise of the freedom peaceful assembly", which is how the organisation see them.

Aside from the violation of this right, the report also points out that the sentence violates others, such as the parliamentary immunity of the former Speaker of the House Carme Forcadell, who —in ITW’s opinion— simply allowed a debate to take place concerning the so-called disconnection law "without overseeing its content" one way or another.

Another of the rights violated, according to the report, is the fact that those who have been found guilty weren’t tried by an ordinary judge assigned to their case, in this case the High Court of Justice of Catalonia (TSJC) or a lower court in the case of Sànchez and Cuixart, who were not MPs. According to Robert Sabata, the President of European Democratic Lawyers, the trial should have taken place in Catalonia, but the Supreme Court made a "loose interpretation" of its jurisdiction, thus infringing on the rights of the defendants to have a “higher-ranking court” which they could appeal to.

ITW also considers the fact that the videos shown during the trial were excluded until the documentary evidence phase or that the president of the court, Manuel Marchena, interrupted the defence during cross examinations on numerous occasions, were also violations of the defendants’ rights.