BRIEFING #9/2019

597 DAYS OF ARBITRARY DETENTION

UN Working Group calls for immediate release of jailed Catalan leaders

In its recently released Opinion 6/2019 , the UN Working Group on Arbitrary Detention calls on the Spanish Government to release three of the Catalan pro- independence leaders currently on trial:

“The deprivation of liberty of Mr Jordi Cuixart, Mr Jordi Sánchez and Mr Oriol Junqueras being in contravention of articles 2, 9 to 10, and 18 to 21 of the Universal Declaration of Human Rights and articles 3, 14, 19, 21, 22 and 25 of the International Covenant on Civil and Political Rights, is arbitrary ” (§144)

As such, “The Working Group requests the Government of Spain to take the steps necessary to remedy the situation (…) without delay” (§145), which “taking into account all the circumstances of the case would be to release Mr Cuixart, Mr Sánchez and Mr Junqueras immediately ” (§146).

Moreover, the UN Working Group on Arbitrary Detention (WGAD) calls on the Spanish Government “to accord them an enforceable right to compensation and other reparations (…)” (§146) and to “ ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr Cuixart, Mr Sánchez and Mr Junqueras ” (§147).

After taking into consideration the arguments and information submitted by both the defendants and the Spanish Government, the WGAD claims that it “ verified that violence is an essential requisite of the charges brought against the defendants” and that “the Spanish Government (…) did not provide information on concrete activities by the defendants which could have implied violence and thus constitute an offense in accordance with the applicable law .” (§113) In actual fact, the WGAD recalls the “ ruling by a German Court, which (…) did not find the elements of violence (…) required in the offense of rebellion ” (§116). Thus, “ the inexistence of the element of violence and convincing information about actions attributable to Mr Cuixart, Mr Sánchez and Mr Junqueras (…) have convinced the Working Group that the criminal charges brought against them aim at coercing them for their political opinions as regards the independence of Catalonia and to prevent them from pursuing this pretension in the political arena. ” (§119)

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Beyond arbitrary detention: the UNWGAD vs the ongoing trial

The Work Group considers that “ there were no grounds for temporary detention or trial ”. However, given that the latter is already taking place, the WGAD’s Opinion also looks into “whether fundamental elements of a fair, independent and impartial trial have been respected in the course of the said judicial procedure “ (§121).

To do so, the Working Group examines whether the rights of the defendants have been respected by Spanish political and judicial authorities in respect to four aspects: their right to presumption of innocence (§122-§128), their situation in pre-trial detention (§129-§130), their right to be judged by a competent and impartial Court (§131- §136), and to have enough time and means to prepare their defence (§137-§140). On these issues, the WGAD draws the fallowing conclusions :

• “(…) the right to presumption of innocence of Mr Cuixart, Mr Sánchez and Mr Junqueras was violated”, “given the declarations by high state officials providing the public opinion with a premature criminal responsibility of the defendants.” (§128)

• “The Working Group concludes that the detention is arbitrary (…)”. “ On the other hand, it has not been possible to verify that the judges or the Government analysed and concluded (…) the existence of legitimate, necessary and proportional grounds to restrict these human rights by means of the deprivation of liberty (…). Accordingly, the Working Group must conclude that the pre- trial detention has been in violation of article 9.3 of the Covenant . (§130)

• “The Working Group was not convinced that the courts currently handling the alleged offenses of this case are the ones predetermined by law ” (§135) and thus concludes that “[the defendants’] right (…) to be judged by a competent and impartial Court has been disregarded.” (§136)

“Consequently, the Working Group was convinced that the deprivation of liberty of [the defendants] was carried out at the expense of the fundamental guarantees of due process and fair trial, presumption of innocence, to be judged by a competent and impartial court and adequate defence .” (§140)

What next?

In reaction to the publication of the report by some media, the Spanish Government attacked the WGAD’s opinion by raising doubts on the group’s independence and impartiality, while stressing the nonbinding nature of the Working Group’s opinion.

However, as the WGAD has explained on the occasion of previous Opinions , “ The Opinions of the Working Group on Arbitrary Detention are legally-binding to the extent that they are based on binding international human rights law, such as the International Covenant on Civil and Political Rights (ICCPR).” “The binding nature of its 2

opinions derives from the collaboration by States in the procedure, the adversarial nature of is findings and also by the authority given to the WGAD by the UN Human Rights Council. The Opinions of the WGAD are also considered as authoritative by prominent international and regional judicial institutions, including the European Court of Human Rights.”

On the same vein, as stated in the body’s latest report , “ The Working Group recalls that the continued detention of those individuals is a continued violation of their right to liberty, under article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights ” (§12, page 21)

According to the same report, 31 people were released in 2017 as a result of the Working Group’s Opinions . States such as Cuba, France, Israel, Turkey or the US have heeded the calls of the UNWGAD and released individuals the Working Group declared to be under arbitrary detention.

Although this Opinion looks into the situation of Mr. Cuixart, Mr. Junqueras and Mr. Sánchez, following their appeal in 2018, other defendants submitted similar appeals to the consideration of the UNWGAD , which the group will need to consider and issue the relevant Opinions in due course.

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