Europe must act

Translation of “Europe in der Pflicht”, by Krystyna Schreiber, 17 March 2018

A team of renowned international jurists has determined that the actions of the Spanish government against the Catalan independence movement are illegal. The experts are concerned about violations of Spanish and international law by Spain and “a clear lack of separation of powers.” In statements to the German newspaper “Junge Welt”, one of these experts, the President of the European Center for Constitutional and Human Rights (ECCHR) in Berlin, Wolfgang Kaleck, calls for the member states and the institutions of the EU to intervene.

Krystyna Schreiber, Barcelona/Berlin

A group of international law experts, including French Jean Paul Costa, former president of the European Court of Human Rights, and Belgian François Tulkens, former judge of the same court, has published a report in which they value the actions of the Spanish government against the Catalan independence movement from the point of view of the proportionality of the measures and their compatibility with international law.

Wolfgang Kaleck, founder and president of the European Center for Constitutional and Human Rights (ECCHR), and a member of the expert group that has drafted the report, stresses the importance of these issues in an interview with the German daily, Junge Welt: “It is always debated whether secession would be legal or not, but a large number of the measures taken by the Spanish state that we have been analysing were applied before the declaration of independence. On a legal level, they should be differentiated.” The German expert also points out that “even several Spanish jurists have questioned the legality of these actions.”

According to Kaleck, at the request of the Republican Party of Catalonia (ERC), this group of experts has analysed independently and from a purely legal perspective both the measures of the Spanish Constitutional Court against the work of members of the Catalan parliament and the criminal prosecutions to which they have been subjected between 2013 and 2017.

Violations of basic rights and lack of division of powers

International jurists conclude that these are measures that represent serious violations of legality and division of powers. The fact that the Constitutional Court can determine what is debated and voted on in the Catalan parliament and the fact that the Catalan representatives are prosecuted on a legal and criminal level for ‘disobedience’ represents “a frontal attack on fundamental rights such as the freedoms of opinion and assembly”, experts said.

“If I, as a politician, journalist or activist, declare myself to be in favour of the independence of Catalonia and publish it in a newspaper article, in a demonstration, an assembly or as a political resolution, it should not be possible to punish me,” says Kaleck.

The report also determines that it is disproportionate to arrest members of the government and impose fines of up to 12,000 euros per day for having prepared the referendum on 1 October, or that some Catalan politicians are prosecuted for having organized the non-binding popular consultation of November 9, 2014. The latter is precisely the reason why the former president of the Generalitat de Catalunya, Artur Mas, was suspended from office for two years, as well as having to pay a multimillion-euro fine. According to jurists, these measures are illegal, because organizing a referendum or a popular consultation is not a crime in the Spanish Penal Code.

The proceedings of the Constitutional Court have been particularly questionable, having used its own resolutions as a legal basis for the legal prosecution of politicians, even though the alleged crimes do not appear in the Spanish Penal Code. According to the experts’ report, the Constitutional Court ‘assumes a political and legislative role whose aim is to maintain the unity of Spain’. In this case, there is a violation of the separation of powers.

Europe must act

Wolfgang Kaleck is also concerned about the hundreds of Catalan citizens and politicians pursued legally for having peacefully defended the independence of Catalonia, already over 900 prosecutions. Still, the President of the European Center for Constitutional and Human Rights in the German capital believes that activating international judicial bodies is a possible but very slow and complicated procedure. As it is necessary to deal with hundreds of cases of infringement of rights by the Spanish State, it is the other states and institutions of the European Union who should act: “The Spanish government cannot, on the one hand, argue that it acts on behalf of the unity of Europe and, on the other, not respect that which is most European: minimum legal standards. I believe that the European institutions have an obligation to uphold the fundamental rights accorded to citizens,” says Kaleck.

The article is available in Spanish and in Catalan.

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