Suspension of the Catalonia President without prior conviction or proportional assessment

Facts

This is a noteworthy case as it stands out due to its intersection of political, legal, and human rights dimensions within the context of the Catalan independence movement in Spain. It raises complex questions about the balance between political activism and legal obligations, particularly regarding the suspension of elected officials during criminal proceedings relating to his political activities. It also dealt with the question of automatic suspension in case of persons who stage a violent and public uprising, interestingly the domestic courts found the criteria to be met and suspended the author’s participation. This case underscores the challenges in reconciling domestic legal processes with international human rights standards, highlighting the importance of procedural fairness and the right to political participation in contentious political environments.

The author, Carles Puigdemont i Casamajó was the President of the Generalitat of Catalonia from January 10, 2016, to October 27, 2017, and during this time he navigated a tumultuous period marked by Catalonia’s declaration of independence. This declaration led to a constitutional crisis, triggering a heavy-handed response from the Spanish government, including arrests and legal proceedings against pro-independence leaders, including the author.

The crisis escalated when Catalonia held a referendum on independence on October 1, 2017, despite the Spanish Constitutional Court’s suspension of the referendum law. The referendum resulted in a 92% vote in favor of independence, but only a 43% turnout, amidst clashes with police officers sent by the Spanish government. Following Catalonia’s declaration of independence on October 27, 2017, the Spanish government dissolved the Catalan Parliament under article 155 of the Constitution and called for new regional elections on December 21, 2017.

On October 30, 2017, the Spanish Attorney General initiated criminal proceedings against the author and other pro-independence leaders for rebellion, sedition, and misappropriation of public funds. Facing imminent arrest, the author and five ministers fled to Belgium on October 30, 2017. Subsequently, on November 3, 2017, a European arrest warrant was issued for the author and other exiled leaders for failing to appear before the National High Court.

Amidst legal battles, the author was re-elected to the Parliament of Catalonia on December 21, 2017, maintaining a majority of pro-independence parties. However, attempts to nominate the author as President of Catalonia faced challenges due to legal restrictions imposed by the Spanish government and courts. Despite efforts to petition the Constitutional Court and the Supreme Court for relief, the author faced prolonged legal hurdles, which hindered his political rights and rendered him unable to assume office.

In January 2018, after a series of legal challenges and dismissals of petitions by the Constitutional Court and the Supreme Court, the author opted to step aside to allow the nomination of an alternative candidate for the presidency of Catalonia. This decision was prompted by the author’s perceived lack of viable options due to the ongoing legal constraints and the risk of detention upon returning to Spain. Thus, the author relinquished his candidacy to avoid further political deadlock and enable the functioning of the government of Catalonia under new leadership.

The author asserts that the State party’s actions were aimed at obstructing his exercise of freedom of political opinion, contrary to article 9 of the Covenant. He contends that the measures taken by all branches of the government constitute a systematic and cumulative infringement of his rights to political association, assembly, and peaceful protest, as outlined in articles 21 and 22 of the Covenant. Additionally, he argues that the State party violated his rights under article 25 of the Covenant, which safeguards the right to participate in public affairs, including voting and standing for election. The author claims to have exhausted domestic remedies, as his appeals to the Constitutional Court and the Supreme Court, which could have provided redress, were rejected, leaving him with no other recourse. He urges the Committee to recognize the State party’s violations and demand remedial action to halt these alleged infringements. 

Admissibility

The Committee noted two main issues on which it decided the admissibility of the author’s claims: (a) obstruction of the author’s candidacy for the Catalan Presidency and (b) his suspension as a deputy in the Parliament of Catalonia. In this regard, the Committee held that the author raised for the first time allegations under article 14 (2) of the Covenant in his comments on the State party’s observations on the merits Since the author has not explained why he could not submit these allegations under article 14 (2) at the time of the initial communication or at the time of submitted an expanded version thereof, the Committee held these allegations to be an abuse of the right of submission and hence inadmissible. At the same time, the Committee also found that the author’s general claims under articles 19, 21 and 22 had not been sufficiently substantiated in relation to either of the two specific actions on which his communication was based and therefore finding those claims inadmissible as well.

Regarding the mootness of the communication due to the author stepping down as a deputy, the Committee maintained that the alleged harm remains until retroactively repaired. The State party’s argument that the communication was premature due to pending domestic rulings was rejected, in view of procedural economic considerations and the opportunity for both parties to present their case.

Concerning exhaustion of domestic remedies, the Committee noted the author’s efforts to prevent alleged violations and ineffective nature of the subsequent remedies that were made available to him. The Committee found the arguments substantiated and that no other reasonably available remedies were offered by the State party. Consequently, the communication was declared admissible under article 25 of the Covenant for consideration of its merits.

Merits

The Committee decided to determine the merits of the claims made under article 25 as per the above-mentioned two main issues. With respect to obstruction of the author’s candidacy for the Catalan presidency, the author claimed that requiring physical presence at the investiture meeting obstructed his candidacy, that such a requirement was not established by law, that investiture was not essential for fulfillment of parliamentary functions, and the true goal of insisting on it was to prevent his election due to past events. Additionally, returning to the State party would result in his arbitrary detention in connection with the criminal charges levelled against him.

The Committee noted that certain conditions for exercising rights under article 25 had to be established by law, including implicit ones, and while exceptions were made during the COVID-19 pandemic, physical presence was not automatically deemed unnecessary. Still, despite being abroad, the author exercised various political rights and held proxy voting in parliament. Therefore, the Committee found no violation of article 25 of the Covenant, as the requirement of physical presence aimed to protect the rights of parliamentarians and constituents.

Regarding the second issue of the author’s suspension as a deputy in the Parliament of Catalonia, the Committee noted his argument that the suspension was not established by law, as the offence of rebellion under article 472 of the Criminal Code is limited to persons who stage a violent and public uprising. A similar criterion of violence is also included in article 384 bis of the Criminal Procedure Act. As a result, he claimed that his actions cannot be understood as meeting this criterion. Concerning article 472 of the Criminal Code, the Committee noted the State party’s argument that the investigating judge’s assessment was not arbitrary. However, it was not tasked with evaluating the courts’ interpretation of domestic law or the facts. Instead, it had to determine if the initial application of article 472 and the resulting application of article 384 bis met the Covenant’s requirements.

The Committee acknowledged that the investigating judge charged the author with rebellion for inciting protest, but that he was eventually convicted of sedition as no violence occurred. It emphasized the presumption of peaceful assemblies and the lack of evidence linking the author to violent acts. Concerning article 384 bis of the Criminal Procedure Act, the Committee recognized the State party’s interest in upholding civic responsibility and the rule of law but noted the author’s argument that such suspensions should be reserved for extraordinary circumstances. It deemed the automatic suspension of elected officials before conviction incompatible with the Covenant’s requirements of reasonableness, and objectivity.

In conclusion, the Committee found that the State party violated the author’s rights under article 25 of the Covenant, as the decision to prosecute him for rebellion automatically led to his suspension as a deputy, without reasonable and objective grounds established by law.

Recommendations

The State party is obligated, inter alia, to:

a) Provide the author with an effective remedy;

b) Make full reparation to individuals whose Covenant rights have been violated;

c) Take steps to prevent similar violations from occurring in the future.

Implementation

Deadline for implementation: 14 September 2023

More information on the case:

— El País – Puigdemont celebra una resolución de un comité de la ONU que dictamina que España no debió suspenderlo como diputado.

— La Vanguardia – ONU dictamina que España vulneró el derecho a la participación política de Puigdemont.

— The Guardian – Spain has violated Puigdemont’s political rights, his lawyers tell UN