SPAIN: The right to protest in Spanish Courts – Statement by the International Trial Watch

On 22 January 2020, Spain was questioned by  the Universal Periodic Review (UPR) on the OHCHR. On 21 January, the European Civic Forum took part in a side event organised by the Human Rights Institute of Catalogna to  share insights on the situation of civic space in Spain in the broader European context. Below, find the intervention by one of the key-note speakers, Anaïs Franquesa Griso, Director of Iridia, presenting the conclusions of the International Trial Watch. The International Trial Watch is a platform of organisations working to defend human rights and freedoms which has organized and facilitated the participation of 62 observers, 34 of whom are internationals from 17 different countries in the trial of Catalan political prisoners and social leaders that took place in the Spanish Supreme Court in 2019.

“As already mentioned, the space of civil society in the Spanish state has been shrinking over the years. The reform of the Criminal Code of 2015 and the approval of the Law on Citizen Security, known as the Gag Law, are good examples of this, as my fellow members have already explained.

The process of the leaders of the independence movement is another example, and surely one of the clearest because criminal charges for extremely serious acts such as rebellion or sedition have been used to suppress a social mobilisation that has always been characterised by the use of non-violence. For this reason, it is not only a cause for concern in the Spanish State but also in international organisations like the United Nations or the Council of Europe.

In fact, already in April 2018, the Special Rapporteur on the right to freedom of opinion and expression made a statement expressing his “concern about the accusations of the crime of rebellion“, considering that such “charges for acts that do not involve violence or incitement to violence may interfere with rights of public protest and dissent” and “urged the Spanish authorities to refrain from charging Catalan political figures and demonstrators with the crime of rebellion, which carries a prison sentence of up to 30 years”.

This concern led several national organisations to create the Platform International Trial Watch – Catalan Referendum Case, as a mechanism to ensure that as many international organisations and human rights experts as possible could observe the trial from the perspective of international human rights law. International Trial Watch (from now on ITW) has organised and facilitated the participation of 62 observers, 34 of whom are internationals from 17 different countries, in the trial that has taken place before the Supreme Court against pro-independence Catalan politicians and social leaders.

The sentence issued by the Supreme Court on 14 October  2019 condemned:

  • six members of the Catalan government from 10.5 to 13 years in prison for the crimes of sedition and abuse of public funds;
  • the President of the Parliament of Catalonia to 11 years and 6 months of imprisonment for the crime of sedition;
  • the leaders of the civil organisations Òmnium Cultural and Catalan National Association, Jordi Cuixart and Jordi Sànchez to 9 years‘ imprisonment for the crime of sedition.
  • 3 members of the Government to 10 months sentence for the crime of disobedience.

This sentence confirms what was already feared: that the judicial process to pursue the Catalan independence process criminalises political dissidence and protest, violating fundamental rights and guarantees.

Many organisations that have observed the trial and analysed the sentence within the framework of ITW consider that this process and the judgement violate the following principles and rights: principle of legality in criminal law, right to liberty, freedom of expression, freedom of ideology, right to peaceful assembly and the free exercise of representative public office, as well as the right to due process and with all guarantees.

The sentences that vary from 9 to 13 years imprisonment, for a crime of sedition, violate the principle of legality in criminal law. Violation of this principle takes place when criminal law is enforced unreasonably so that the enforcement is unpredictable for its recipients. Indeed, sedition is not a mitigated modality of an armed and violent rebellion. Sedition is an autonomous crime against public order, which should only be enforced when there is a tumultuous uprising, i.e. when there is an insurrection or violent mutiny (by force or unlawfully) to prevent enforcement of laws or the exercise of public duties. It is the only way to differentiate it from the administrative infraction (article 36.4 LPS3). Nevertheless, the judgement disregards the concept of “uprising” as devised by the Court’s own case law, replacing it with the concept “tumultuous disobedience, collective and together with resistance or force(page 396).

With regard to the specific moment when this uprising or insurrection is supposed to have taken place, the sentence refers to two days of massive mobilisations:

  • 20 September 2017: the massive protest against the arrest of various public officials at the headquarters of the Ministry of Economy, where a police raid was taking place in connection with the preparation of the referendum of October 1. The sentence holds that it is proven that the raid was carried out.
  • 1 October 2017: a crowd of citizens gathered in front of the voting centres for the referendum that had been suspended by the Constitutional Court. It was a referendum without legal effects so the vote was merely symbolic and was an expression of the legitimate exercise of freedom of expression and ideology;

Footage of police violence against voters and demonstrators was seen all over the world. Numerous statements called for effective and swift investigations of these events.

Today, two years later, the investigation is still ongoing in some of the courts of Catalonia, with more than 50 agents prosecuted in the city of Barcelona. In this case, the Public Prosecutor’s Office has recently asked for the case to be closed and for the investigation to be discontinued, considering that the facts are not criminal in general, except for six specific situations in which the use of force could have been disproportionate.

This is in contrast with the position of the Public Prosecutor’s Office, which in the proceedings [against the leaders of the independence movement] before the Supreme Court accused [the leaders] of rebellion and requested up to 25 years in prison, while in the proceedings to investigate police violence it is asking for the case to be closed.

Returning to the Supreme Court’s ruling, the main basis to justify the conviction is the claim that the convicted individuals protected, promoted, called or organised gatherings to prevent the enforcement of laws or the exercise of public duties.The Court considered to be proved that in each and every appeal carried out by the now convicted, it was specifically and repeatedly asked that people were to demonstrate peacefully, non-violently and avoiding provocations.

All these actions are at the core of the right to peaceful assembly and freedom of expression, from the individual viewpoint. By criminally convicting the organisation and promotion of mass and peaceful protests with the capacity to put pressure on institutions, the right to protest is being criminalised, and the rights to peaceful assembly and demonstration are violated. As a consequence, this causes a clear chilling effect for the rest of the population, which may be amplified when enforcement measures target a well-known public figure and attract extensive media coverage (ECHR’s judgement Nemtsov v Russia), as it is the case of Jordi Cuixart and Jordi Sànchez or of the members of the Parliament.

Recommendations or questions addressed to State delegations:

  1. whether the State of Spain intends to comply with the recommendations made to it in the previous UPR in 2015, which were accepted by the State, but have not yet been implemented, such as

131.109 Strengthen the Government’s commitment to guarantee the fundamental rights to freedom of expression, peaceful assembly and association, and continue to cooperate with civil society, in particular human rights defenders, by taking additional measures to create a favourable environment for members of civil society organisations (Serbia)

131.110. Avoid any legislative amendments that could disproportionately limit the exercise of the right to freedom of assembly (Sweden)

131.111 Amend the law on Citizen Security so that freedom of expression and the right to peaceful assembly are not limited (Chile)

131.112 Take measures to ensure that legislation, particularly laws concerning the right of all persons to assemble and demonstrate peacefully, is consistent with its international human rights obligations (Costa Rica)

131.113 Guarantee the full enjoyment of the rights to freedom of assembly and freedom of expression, facilitate peaceful assembly and review existing laws or refrain from adopting new laws that unduly restrict or curb the exercise of freedom of assembly and freedom of expression (Czech Republic)

In this regard, removing the offence of sedition from the Criminal Code would be an appropriate measure, since its incorporation into the Criminal Code dates back to the time of the dictatorship of Francisco Franco, with virtually no use in a democracy. Based on the interpretation made by the Supreme Court, it is already and it will be even more in the future a way to unduly restrict and stop the exercise of freedom of assembly and freedom of expression.

131.115 Raise awareness among the security forces regarding respect for human rights during demonstrations in order to guarantee the right to peaceful assembly and freedom of expression and association (Switzerland);

In this regard, whether the State will seek to change the position of the Public Prosecutor’s Office in criminal proceedings involving the disproportionate use of force by the security forces, especially in proceedings investigating the charges of 1 October

        2. whether the State of Spain intends to comply with the recommendations made to it in the previous UPR in 2015, which were partially accepted by the Spanish State:

131.114 Adopt legislation defining the necessity and proportionality of the use of force by the police during civilian (Russian Federation).”


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