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SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN REGARDING THE DAY OF OCTOBER 1, 2017

NOVEMBER 2017

SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING THE DAY OF OCTOBER 1, 2017

NOVEMBER 2017 Síndic de Greuges de Catalunya

1st edition: November 2017 Summary report of actions taken by the Catalan Ombudsman regarding the day of october 1, 2017. November 2017 Layout: Síndic de Greuges

Original design: America Sanchez Cover picture: © Pixabay INDEX

INTRODUCTION ...... 5

1. EVENTS PRIOR TO OCTOBER 1ST ...... 7

1.1. Freedom of assembly and expression ...... 7 1.2. Lack of proportionality in actions of the Prosecutor’s Office ...... 7 1.3. Arrests of elected officials and various searches ...... 10 1.4. Intervention of the Autonomous Catalan Government ...... 11 1.5. Constitutional Court fines levied against members of the Electoral Commission of ...... 12

2. THE DAY OF OCTOBER 1ST ...... 13

3. COMPLAINTS AND QUERIES RECEIVED IN THIS PERIOD ...... 15

4. EVENTS FOLLOWING OCTOBER 1ST ...... 17 4.1. Proposal for dialog and investigation ...... 17 4.2. Order for pretrial imprisonment of Catalan National Assembly and Òmnium Cultural presidents ...... 18 4.3. Application of Article 155 ...... 18 4.4. Criminal indictment of the dismissed government and Presiding Board of Parliament ...... 19

SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING OCTOBER 1, 2017 5

INTRODUCTION take a number of positions, always with the purpose of protecting respect for and fundamental freedoms and In the month of April, 2017, the Catalan making repeated appeals for a start to Ombudsman filed in the Parliament of political dialog to resolve the conflict. Aside Catalonia the report on the subject matter from the competent Catalan and Spanish of human rights: “Human Rights Regression authorities, these statements and reports in : Elected Officials’ Freedom of have been addressed to the European Expression and the ".1 Commissioner for Human Rights, the This report detailed a number of laws and , the UN High practices at the State level that had a Commissioner for Human Rights, the significant impact on Catalonia, and were Spanish and Autonomous Community eroding the standards of internationally- Ombudsmen, and also the members of recognized civil and political rights. Among International Ombudsman Institute. other affairs, the report sought to draw attention to the partisan use of the justice The report now being presented system, which was accompanied by a summarizes and systematizes the growing judicialization of the political statements, letters and reports published debate on Catalonia, to the undermining of by the Catalan Ombudsman from 15 the separation of powers and limitations to September to 2 November of this year2 the freedom of expression, especially of placing special emphasis on the elected officials. The report was debated in Ombudsman’s role in the defense of the a committee meeting on July 10 of this year. fundamental rights and the public freedoms of the citizens of Catalonia before As of the ratification of Law 19/2017, of any public authority. Furthermore, this September 6, on the self-determination report details the actions taken by the referendum (appealed by the Spanish institution in this period following the Government on September 7, and complaints and queries received from suspended by the Constitutional Court the citizens, and updates the statistics and same day), an escalating spiral of events analyses of the events that have been the have transpired, leading this institution to subject of investigation.

1 http://www.sindic.cat/site/unitFiles/4402/Report%20Human_rights_regression.pdf. 2 The original texts referred to by these statements, letters and reports are as follows: - Letter from the Catalan Ombudsman, http://www.sindic.cat/site/unitFiles/4701/Carta%20SG%20v%203-ENG.pdf (15 September 2017) - Statement of the Catalan Ombudsman http://www.sindic.cat/en/page.asp?id=53&ui=4711&prevNode=408&mon th=8 (20 September 2017) - Report by the Catalan Ombudsman http://www.sindic.cat/site/unitFiles/4713/Report%20%2022%20september%20 2017_eng.pdf (22 September 2017) - Statement of the Catalan Ombudsman http://www.sindic.cat/en/page.asp?id=53&ui=4716 (26 September 2017) - Participation of children and adolescents, pluralism in schools http://www.sindic.cat/site/unitFiles/4727/La%20parti- cipació%20dels%20infants%20i%20adolescents%20i%20pluralisme.pdf (29 September 2017) - Actions of the Spanish state’s law enforcement agencies on October 1st http://www.sindic.cat/site/unitFiles/4730/ Comunicat%201-O-EN-FINAL.pdf (2 October 2017) - Proposal for dialog and before the current context http://www.sindic.cat/en/page.asp?id=53&ui=4743&pre vNode=408&month=9 (4 October 2017) - The European Commissioner for Human Rights notifies the Catalan Ombudsman that he has requested that the police baton charges of October 1 be investigated, http://www.sindic.cat/en/page.asp?id=53&ui=4753&prevNode=408 &month=9 (9 October 2017) - The Catalan Ombudsman states that the independence movement cannot be criminalized, makes appeal for politi- cal dialog http://www.sindic.cat/en/page.asp?id=53&ui=4773&prevNode=408&month=9 (18 October 2017)

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1. EVENTS PRIOR TO OCTOBER 1st suspends any parliamentary procedure derived from pro-sovereignty political rulings, as the Catalan Ombudsman stated 1.1. Freedom of assembly and in his report of April 2017. expression In any case, the ideological freedoms of The first action taken by this institution, a expression, demonstration and letter dated 15 September sent to the information are pillars of democracy and aforementioned institutions, was triggered therefore, the prohibition of the Madrid by possible violations of the freedom of event and the ruling that appears to expression and assembly, as well as prohibit public communication media possible abuse of authority by the Spanish from broadcasting certain information Prosecutor’s Office in judiciary duties, could be violating fundamental rights which will be referred to in the following recognized in the and statute, section. as well as international treaties ratified by Spain, in particular the European First, the Judicial Review Court no. 3 of Convention for the Protection of Human Madrid suspended a permit to use Rights and Fundamental Freedoms (ECHR). publicly-owned premises to hold an event entitled, “Madrid, For the Right to Decide” The Catalan Ombudsman also quoted a through a court order dated September 12. recent report of the Committee on Legal It was an event planned for September 17 Affairs and Human Rights of the by an association with the endorsement Parliamentary Assembly of the Council of of the local administration, which allowed Europe, which states that in our societies, the use of a publicly-owned facility in it must be possible to address and resolve which to hold it. These prohibitions spread matters relative to self-determination or to thwart similar events planned in Vitoria secession “through peaceful and Gasteiz (by a court) and Gijón (by the democratic dialogue that respects the rule municipal government). of law and human rights (including the rights of national minorities) between the At the same time, on September 12, the concerned and the government of High Court of Justice of Catalonia notified the State of which it forms part”.3 several individuals, including the management of the Catalan Audiovisual Thus, the Catalan Ombudsman conveyed Media Corporation (CCMA-TV3 and to all recipient institutions an alert Catalunya Ràdio) of the ruling by the regarding these acts, and made a solemn plenary session of the Constitutional appeal for all involved institutions to Court suspending Law 19/2017, which also immediately engage in political dialog to prohibited “informing on any agreement resolve such a transcendental matter. or action that would allow the preparation and/or celebration of the self- determination referendum of Catalonia”. 1.2. Lack of proportionality in actions The court also warned of possible criminal of the Prosecutor’s Office punishments in case of disobedience. State Public Prosecutor. Upon the approval At this point, it is important to note the of the Referendum Act and its suspension irregularities that took place in the by the Constitutional Court, the state approval of Law 19/2017 in the Parliament public prosecutor issued on 15 September of Catalonia, both as regards the instructions addressed to the four Regulations of Parliament as well as the provincial prosecutors’ offices of Catalonia Council of Statutory Guarantees Act. to open investigative proceedings on over These irregularities are likely attributable 700 mayors, with the instruction to to, among other reasons, the constitutional subpoena them as persons under judicial case law that immediately blocks and investigation with the explicit warning

3 Report by the Committee of Judiciary Affairs and Human Rights of the Council of Europe, 4 September 2017 (Doc. 14390). 8 EVENTS PRIOR TO OCTOBER 1st that failure to appear would result in their consultations by means of referendum.” In arrest and being brought before the court. other words, articles 506 bis and related provisions introduced by In his letter of 15 September, the Catalan 20/2003, due to insufficient entity to Ombudsman cast doubt on the Prosecutor’s constitute a crime. In fact, the opening ability to autonomously undertake these statement of the abolishing reform of that actions when prior judicial proceedings precept stated that the calling of a were already underway. The Catalan referendum by one who does not have the Ombudsman’s concern was corroborated capacity to do so “does not have sufficient several days later in an order handed down entity to warrant criminal punishment, by the High Court of Justice of Catalonia even less so if the punishment established (27 September) to which reference will be is imprisonment.” Further it added, “in our made in the following section. Additionally, legal framework there are means for it was stated that the judicial action and control of legality other than criminal law.” prosecution of alleged criminal activity Therefore, considering that criminal law is with relation to the Order of the Prosecutor’s governed by the principles of minimal Office had to be inspired by the principle of intervention and proportionality, the proportionality (Article 5 of the Organic Catalan Ombudsman believes that the use Statute of the Prosecutor’s Office). of criminal law for the legal control of the right to call or promote consultations by Days later (20 September), the Catalan those who do not hold the legal competency Ombudsman insisted once again on the to do so, is inappropriate. disproportion of the measure, given that the subpoenas of over 700 mayors were The Instruction should have been limited motivated by laws that had been suspended, to the possible disobedience of the but not yet declared unconstitutional (the Constitutional Court’s September 7 ruling of the Constitutional Court is from mandate, which was addressed to certain 17 October), and were of a preventive public authorities through personal nature, considering that no activities to notifications specified by name. The prepare the consultation had yet been extension of disobedience to anyone not materialized. All of this was being done nominally included in the Constitutional against the aiding of an act—the Court notice could result in an overreach referendum—which does not constitute a not supported by the regulations in force. crime. Additionally, Instruction 4/17 did not mention the crimes to be investigated and High Prosecutor’s Office of Catalonia. On prosecuted. September 12, the High Prosecutor’s Office of Catalonia issued Instruction 4/17, in As regards coordination of law enforcement which it ordered the judiciary police to agencies, the Catalan Ombudsman calls take actions “to block the illegal referendum attention to the fact that the legislation in called for October 1 in Catalonia.” It also force establishes police coordination ordered that the command of the Civil channels, which are none other than the Guard coordinate the operations of the Catalonia Security Council. In fact, Article three police forces involved in the 46.2 of the Organic Law on Law Enforcement operations: Police of the Generalitat- Agencies and Corps facilitates “concurrence Mossos d’Esquadra, National Police and of corps in certain services or the Civil Guard (PG-ME, CNP and GC). performance of a specific action.” Additionally, pursuant to the Statute of With respect to the order to block the Autonomy, the Mossos d’Esquadra have “illegal referendum”, the Catalan the two-fold role of maintaining public Ombudsman issued a statement safety and order (Article 164.5 a) and (September 26) featuring the reminder that judiciary police (164.5 c). In keeping with the calling of a referendum ceased to be a this second competency, they could be crime following Organic Law 2/2005, which ordered by judges or prosecutors to prevent abolished the articles of the Criminal Code the celebration of a referendum, but it that punished the calling “of general, would not be justified that the first role, of autonomous or local elections, or popular ensuring public safety and order, be put in SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING OCTOBER 1, 2017 9

hands of the Spanish Ministry of Home In light of this instruction, and also the Affairs by decision of a prosecutor. appearance in the media of news that suggested that in Catalonia there was a In the view of this institution, the process of indoctrination or that in Catalonia Prosecutor’s Office overreached its there was no respect for students’ freedom competencies, which could justify demands of thought and conscience, the Catalan for accountability. This abuse of authority Ombudsman calls attention to Article 13 of meant control over the PG-ME that is not the Convention on the Rights of the Child, established in the legislation. It made for a which recognizes children’s and de facto intervention that, in any event, adolescents’ right to freedom of expression the (not the and establishes that this includes the Prosecutor’s Office) should have enacted right to receive and disseminate any kind via Article 155 of the Spanish Constitution. of information and ideas. Further, Article 14 of the CRC states that member states Last, as had been stated on September 15, must respect children’s rights to freedom and pursuant to Article 773 of the Criminal of thought, conscience and religion. Procedure Act, the prosecutor must “cease their proceedings as soon as they become Additionally, among the guiding principles aware of the existence of court proceedings of the educational system, Law 12/2009, of regarding the same events.” Therefore, this 10 July, on education (LEC), establishes: article defines the priority of judicial personal freedom, responsibility, authority and prohibits the duality of pre- solidarity, respect and equality (Art. 2.1.b), trial initiatives. pluralism (Art. 2.1.e), school inclusion and social cohesion (Art. 2.1.f) and exclusion Following the Catalan Ombudsman’s of any sort of proselytism and statement, the Civil and Criminal Chamber indoctrination (Art. 2.1.q). In fact, in the of the High Court of Justice of Catalonia exercise of their teaching duties, teachers (TSJC) categorically ordered the prosecutor and educators “have the specific duty to to cease their “proceedings, actions and contribute to the development of the instructions carried out up to then with school’s activities in an atmosphere of regard to these facts” (the October 1 respect, tolerance, participation and referendum), which makes clear how freedom that promotes among students exorbitant the activity of the Prosecutor’s the values inherent to a democratic Office had been up until that time. society” (Art. 29.2.b). Unfortunately, the order did not specify whether the actions ordered by the Additionally, Article 21 acknowledges Prosecutor up until that time were null and students’ right to assembly, and if void, or if the aim was, to the contrary, to necessary, form associations in the justify them. framework of the legislation in force. Last, Organic Law 9/1985, which regulates the Juvenile Affairs Prosecutor’s Office. On right to education, expressly establishes September 27, the Juvenile Affairs in Article 8 that as of the third year of Coordination Unit of the State Prosecutor’s mandatory secondary school, students Office sent the provincial prosecutors of can collectively decide on class attendance, Catalonia an instruction requesting they which is not punishable if the result is the launch individualized cases after having exercise of the right to assembly, and is received information that suggested that previously communicated to the school minors still of compulsory education ages administration. had requested authorization from their schools to be excused from attending This notwithstanding, and although it is classes and thus be able to attend rallies true that schools cannot remain isolated and demonstrations. The instruction from their social environment, the Catalan specified that, regardless of whether the Ombudsman draws attention to the fact parents have given their authorization, the that the political or ideological position of schools are not exempt from their the administration, faculty, or certain obligations of custody of the children and members of a school’s educational minors during teaching hours. community regarding the socio-political 10 EVENTS PRIOR TO OCTOBER 1st situation of the country, or a given political neither the referendum nor collaboration juncture, must not involve the student in an illegal referendum—at that time, body. Schools, therefore, must refrain merely suspended—are crimes. from promoting or encouraging participation of the student body in an a) The arrests of individuals, who did not ideological, political or religious position. oppose the search or the police’s activity, Nor should they promote students’ that took place within the framework of demonstrating in favor of a given political these searches were especially egregious. position in or outside the school.. For the most part, they were public officials and servants who cooperated with the procedural action. 1.3. Arrests of elected officials and various searches b) Searches of various printing presses were conducted around the Catalan On September 20, the first subpoenas territory, in which employees and were served to mayors for them to appear management were made to wait for hours before the Prosecutor’s Office. Additionally, while the court order was procured. Thus, 14 individuals were arrested that day, questions must be asked regarding the most of them senior officials of the proportionality in the use of the means, if Catalan government. The arrests were the hours that were taken to produce the ordered by the Examining Court no. 13, court orders are taken into account. within the proceedings begun against former senator Santiago Vidal for his c) Two law firms were entered and remarks on the presumably illegal use of searched. This sort of search warrants Catalan citizens’ personal data. With must be accompanied by the special respect to those remarks, the Catalan procedural guarantees pursuant to the Ombudsman’s April 2017 report already terms of European Court of Human Rights stated that the institution had opened an case law. Additionally, the Ombudsman ex officio action and regretted that the reminds readers of the importance of Ministry of the Vice-Presidency had not preserving professional secrecy, contained appeared in the case. in Article 542.3 of the Organic Law on the Judiciary Branch. The Civil Guard operation also involved 22 searches of a number of sites, including Of the persons detained, two were several autonomous Catalan ministries, attorneys, and there is no record of the such as the Ministry of Economy, the Barcelona Bar Association (ICAB) being Directorate General of Heritage, or the notified of their arrest, neither as Ministries of Governance and Social detainees nor as attorneys. Apparently, Affairs. Searches were also conducted at the ICAB found out about the arrest printing presses, companies allegedly through the attorneys who took over the storing electoral materials and private defense of these individuals. residences. d) There was also an attempted search The arrests and searches of September 20 without a warrant in the headquarters of sparked street protests, with an especially a political party (CUP) in Barcelona by a noteworthy one taking place in front of number of agents of the Police Intervention the Autonomous Ministry of Economy, Unit (UIP), and material was confiscated deemed by the Spanish High Court as at the entrance to these offices. It is presumably constituting the crime of important to remember that these persons sedition, which will be discussed in greater represent their electorate, and therefore, detail in later sections of this report. an attempted search of the headquarters of a political party with a warrant, that is, The Catalan Ombudsman highlighted without the proper procedural guarantees, certain possible excesses and irregularities stands for a frontal attack on the entire in these arrests and searches, drawing society, especially if it is supposedly attention once again to the fact that democratic and plural. SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING OCTOBER 1, 2017 11

1.4. Intervention of the Autonomous Committee for Economic Affairs took Catalan Government “measures in defense of the general interest and to guarantee public services in the Autonomous Community of Catalonia.” On September 20, the Spanish government According to this decision, the Autonomous announced the freeze of the Autonomous Catalan Government had to report to the Catalan Government’s accounts, which was Spanish state all payments for budgetary made effective on September 22. In this credits relative to fundamental public matter, the Catalan Ombudsman believes services or high priority services or items. that the Spanish government has taken Additionally, the state would not make any action ignoring the control mechanisms of new transfers of resources to the autonomous community bodies. Specifically, Autonomous Catalan Government, but the ordinary supervisory mechanism rather would directly make the payments established in Article 153 of the Spanish for public services or high priority budget Constitution as well as the exceptional items, such as suppliers’ invoices or the mechanism in Article 155 SC, which to be payroll of public employees. applied requires a warning letter to be sent to the president and approval by an absolute This is another example of the Autonomous majority of the Senate. Catalan Government being intervened by budgetary means, although in this case the The intervention of the Autonomous possible actions derived from the budgetary Catalan Government was equivalent to the plans are not limited or blocked, but rather suspension of the right to self-rule through are completely submitted to the decisions a procedure of dubious legality, and that of the State. was likely unconstitutional, which has taken place without respecting Organic Law It is worth noting that the measures adopted 2/2012 on budgetary stability, and that is a through Order HFP/878/2017 contravene covert application of Article 155 without Articles 25 and 26 of Organic Law 2/2012, of following the established procedure. The budgetary stability, as they do not respect aforementioned Organic Law 2/2012 calls the period of 15 days between non- for monthly reporting of information to the compliance and adoption of the agreement Spanish Treasury via a certificate detailing for budgetary non-availability, as the the amount of authorized and committed Autonomous Catalan Government was only loans, obligations recognized in the budget, given 48 hours. Additionally, the material expenses pending payment accounted for scope of the agreement seems not to respect in non-budgetary accounts, other expenses the legally-required proportionality, and total payments made. Through Order considering that it has a very general PRA/686/2017, 21 July, it was established dimension, and is not limited to certain that the monthly reporting of information credits directly linked to compliance with a by the Autonomous Catalan Government specific objective of budgetary stability. would become weekly to scrutinize any There were plans for the creation of a possible expenses devoted to electoral committee of experts to evaluate the processes, a result of various statements by situation and propose measures. Last, the Catalan representatives who had expressed direct adoption by the Spanish Treasury of the intention to hold a referendum. the Budgetary Non-availability Agreement, According to this order, these two events in the hypothesis that the Autonomous placed the financial stability and normal Catalan Government does not do so, is a operation of the Administration and covert application of Article 155. autonomous institutions in jeopardy. To conclude, this decision does not fit The government of the Generalitat within Organic Law 2/2012. From a material announced, by a letter dated September 13, standpoint, it is not proportional to invoke 2017, that it would not comply with the the principle of budgetary stability, weekly reporting requirement. associated with resources from the FLA (Autonomous Liquidity Fund) to justify Through Order HFP/878/2017, 15 September, budgetary non-availability of a very broad the Spanish Government Delegate scope when resources eventually devoted to 12 EVENTS PRIOR TO OCTOBER 1st referendum-related expenses would be very acts, must follow the established procedure limited. From a procedural point of view, and can be reviewed in a jurisdictional the Spanish government did not adopt the setting, or the courts themselves, and they mentioned agreement, as would be required can also be reviewed in the jurisdictional (Art. 26.1 of Organic Law 2/2012), following setting. On the other hand, the coercive the procedure established in Article 155 of fines levied by the CC stipulate: the Constitution (vote by an absolute majority of the Senate) and therefore, it . Inaudita altera parte: they can be levied stands for a covert application of this ex-officio by the government, without even constitutional provision. listening to the sanctioned parties. The report to be requested from them is to These intervention measures, which by inform on compliance with the CC ruling definition should have been temporary and by which they are being sanctioned (Art. were meant to block the celebration of the 92.4 OLCC) and therefore does not meet ballot, continue in force today, which the minimum conditions of a prior hearing. completely lacks justification. But, furthermore, fines can be levied in some cases without even having to produce this report (Art. 92.5 OLCC). The latter case 1.5. Constitutional Court fines levied is what has happened to some of the against members of the Electoral individuals who have been fined by the Commission of Catalonia aforementioned court orders.

As regards the levying of several fines by . Without any possibility of later judicial the Constitutional Court (CC) against a review, as the rulings of the CC cannot be number elected officials for alleged appealed. Even in the case that a reversal disobedience of the rulings meant to appeal were allowed (which is not expressly prevent celebration of the referendum, the provided for either), this could not be Catalan Ombudsman believes that these considered an appeal that would allow fines may contravene Article 6 of the ECHR. judicial review of the challenged act, given This is because, if they are considered to the contamination of the entire body if the have a punitive character, the guarantees fine has been levied by the court in plenary of the aforementioned Article 6 ECHR session (as is the case). should be applied (this character is confirmed in the dissenting votes of the The fact that the fines do not have a ruling), especially as regards the principle sanctioning or punitive nature does not of contradiction. This punitive character mean they are exempt from judicial review. does not depend on the legal denomination, This is even more relevant if the fines have or the class of process that drives them, but been levied without following any their materially afflictive nature. The proof procedure in which the sanctioned parties is found in the fact that the amount of the have been able to exercise their right to fine is grounded in the severity of the defense, or even be heard. alleged violation and the level of authority of the sanctioned officials (see ATC-P court . Additionally, the request for a report on order of 21-9-2017). compliance with the decisions of the CC could, in itself, contravene the right to It is true, however, that Ruling 185/2016 defense if criminal proceedings have been rejected the punitive character. But even in begun in parallel, as is the case at hand, this case the levy of this kind of fines must because then the individual would be be accompanied by legal guarantees. This obliged to testify against themselves, is what occurs, for example, in the case of which would mean a direct violation of the the coercive fines levied by the rights recognized in Article 24 SC (not Administration, which, as administrative testifying against oneself). SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING OCTOBER 1, 2017 13

2. THE DAY OF OCTOBER 1ST treated by health care region and diagnostic classification.4 Furthermore, the Council of Doctors’ Associations of On the weekend of October 1st, on an Catalonia published a statement in which exceptional basis, the Catalan it reminded the public that “there can be Ombudsman’s Office remained open, and no doubt as to the professionalism and the availability of the team was bolstered independence of the doctors when over the following days. In fact, to fulfill certifying the injuries suffered on the day the competencies and responsibilities of the referendum, as doctors work under granted by Article 78 of the Statute of a code of ethics when treating and Autonomy and the Catalan Ombudsman diagnosing patients.” Act, the service was expanded so that all persons who considered that their rights The Catalan Ombudsman is aware that had been violated could contact the Examining Court no. 7 of Barcelona is institution through the usual channels. already handling over 200 complaints on injuries caused by these law enforcement In light of the events of October 1st, and agencies on October 1. It is also aware of following the twenty complaints received the Catalan Government’s intent to create by the institution that same day and on an investigation committee regarding the later days, the Catalan Ombudsman made police violence suffered that day, although it known that it would investigate the this body has been suspended following actions of the Spanish state law application of Article 155. Other enforcement agencies and corps. organizations, such as the group Therefore, an ex-officio action has been #somdefensores, have also provided launched to determine if excessive and public information on reports of alleged disproportionate actions have been taken on October 1st.5 in the instructions issued by the High Court of Justice of Catalonia in its In this investigation, the objective of the September 27 2017 court order. This court Catalan Ombudsman is to find out who order dictated a number of measures ordered the baton charges and the specific meant to block the celebration of the order the policemen had. Additionally, the referendum, but “without affecting normal use of rubber bullets by the Spanish National civic order”. The Police of the Generalitat- Police is also being investigated. Rubber Mossos d’Esquadra, the Spanish National bullets have been prohibited since April Police and the Civil Guard were ordered to 2014 by the Mossos d’Esquadra police force. work together. Clearly, that does not make them illegal for other law enforcement agencies. But their Additionally, there were numerous usage reveals an alarming lack of sensitivity complaints by citizens, and many pictures toward the social rejection felt in Catalonia and videos of aggressions at polling toward this instrument for the keeping of stations by national police and the Civil public order. Guard toward individuals offering passive, pacific resistance to try to express This institution is also studying whether themselves by voting. There were baton the Spanish National Police and Civil Guard charges and a significant number of accredited, by certifiable means in all cases, injuries, some of them severe. When faced the court order to enter and search the with certain news items that sought to schools and public premises, and also minimize the official statistics on the whether the damages caused were the number of victims (which have surpassed minimum indispensable, as well as the one thousand), the Catalan Health Care extent of legality in cases of confiscation of Service published a report in which it private property in the course of these informed on the number of persons entries and searches.

4 http://premsa.gencat.cat/pres_fsvp/docs/2017/10/20/11/15/232799c8-755f-4810-ba56-0a5bbb78609c.pdf. 5 http://iridia.cat/wp-content/uploads/Informe-DDHH_1OCT.pdf

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3. COMPLAINTS AND QUERIES erroneous, and therefore the assigned school RECEIVED IN THIS PERIOD did not match their address. In these cases, the Catalan Ombudsman conveyed the citizens’ requests to the Autonomous Ministry Since the month of September, the Catalan of the Vice-Presidency, Economy and Finance, Ombudsman has handled near 200 actions in which holds the competency for this subject which citizens have sought his intervention matter. regarding situations related with the celebration of the ballot announced for October Also regarding the electoral census, some 20 1. actions were begun at the behest of citizens who deemed illegal the treatment of their With regard to the calling of the referendum, personal data for the preparation of the 15 actions have been processed on behalf of electoral census, and who requested that the citizens who expressed their disagreement Catalan Ombudsman protect their with the way in which the parliamentary fundamental right to data protection. Within process for the manner in which the this block, especially noteworthy is the Referendum Act and the Legal Transition Act complaint filed by the leader of the opposition had been ratified, as well as for others who in the Parliament of Catalonia. The Catalan considered the vote as well as its possible Ombudsman, in addition to conveying these results illegal. Along these lines, especially matters to the Autonomous Ministry of the noteworthy is the complaint filed by all MP’s of Vice-Presidency, Economy and Finance, has the Socialists of Catalonia Party, in which they also sent some of them to the Catalan Data sought the Catalan Ombudsman’s intervention Protection Authority (APDCAT). in the violation of their rights to participate, and the consequent contravention of the As for the events leading up the celebration of fundamental right described in Article 23 SC the vote, especially as of September 15, the by the Presiding Board of the Parliament due Catalan Ombudsman processed nearly 30 to the actions that took place in Parliament on complaints and queries regarding the different September 6 and 7 and that culminated in the actions carried out by the Prosecutor’s Office approval of the two aforementioned laws. and law enforcement agencies, described above. These include the confiscation of The Catalan Ombudsman reminded them electoral material and correspondence, that the office’s mission is the defense of searches, website shut-downs, arrests and fundamental rights and public freedoms. With subpoenas, as parties to be investigated, of this aim, the Catalan Ombudsman supervises over 700 mayors. With regard to specific cases, the activity of the Catalan administrations. the Catalan Ombudsman reminded citizens But the workings of the Parliament as a that, pursuant to the competency framework political body, and the consequent debate, are established by the Regulating Law of the outside the Ombudsman’s competencies. institution, the Office cannot supervise actions That said, the Catalan Ombudsman did offer of the justice administration. Notwithstanding certain considerations with relation to the this, in his letter of September 15, to which approval of the two laws by an ad hoc reference has been made, the Catalan procedure, with violations of the Regulations Ombudsman questioned the legal validity of of Parliament and the Council of Statutory the actions taken by the General State Guarantees Act, and also with the suspension Prosecutor’s Office in these cases. The of these laws, at that time, by the Constitutional complaints on the actions taken by the postal Court. administration, for example, have been conveyed to the . An important number of the actions leading up to October 1 were motivated by citizens’ Other actions opened in this period and in the concern toward configuration of an electoral days following October 1 referred to the actions census. Some forty individuals addressed the of some media outlets. On one hand, some Catalan Ombudsman in defense of their right individuals who came to Catalan Ombudsman to vote, especially in the cases in which they have accused some news media (public wanted to vote but had not been able to Catalans outlets and other privately-owned ascertain the polling station where they were newspapers that circulate throughout the to do so, or in which the information was Spanish State) of lack of impartiality in the 16 COMPLAINTS AND QUERIES RECEIVED IN THIS PERIOD information they offered. This is the case of an cases, the Catalan Ombudsman called action opened regarding a children’s-format attention to the fact that the Law on Rights news program broadcast by the CCMA, in and Opportunities of Children and Adolescents which it was attempted to explain the events recognizes as a severe breach the dissemination of October 1 to children. The Catalan of children’s or adolescents’ personal data by Ombudsman has conveyed this complaint to news media, and establishes a punishment the Audiovisual Council of Catalonia, regimen for which the Directorate General for reminding them that the communication Childhood and Adolescence Services (DGAIA) media have a clearly educational role and that, is competent. The Catalan Ombudsman also along those lines, and more so in the case of reminded these organizations that the use of children and adolescents, they must guarantee images or the name of minors in the news pluralism and exclusion of any proselytism or media that could imply illegitimate indoctrination. The Catalan Ombudsman also interference in their privacy, honor or reminded them that the legislation attributes reputation, or that is contrary to their to public authorities the duty to ensure that interests, would determine the intervention the information received by children and of the Prosecutor’s Office. adolescents be true, plural and respectful of constitutional principles. As for October 1 itself, the Catalan Ombudsman opened over 30 actions. Some On another note, cases have been begun on citizens expressed to the Catalan Ombudsman the references by some private newspapers to their considerations on the illegality of the the supposed usage and manipulation of notification they had received to be election children in Catalan “political causes”, and the judges, and sought the Ombudsman’s publication of photos of children associated intervention to defend their rights, while with news on the current political juncture. others expressed the difficulties faced on Statements by certain politicians on an alleged October 1 to exercise their duties as an manipulation and usage of children in this election judge, because of the technical context, broadcast in some news programs, problems that arose with the electronic have also been the object of claims filed by platform prepared for the ballot and the citizens. As regards statewide private media, difficulties of contacting the relevant technical the Catalan Ombudsman has conveyed the service. In other cases, citizens expressed their cases to the Spanish Ombudsman and, for disagreement due to the lack of legal Catalan media outlets, they have been sent to guarantees for the voting process, which they the CCMA. considered a violation of their right to vote with guarantees. The Catalan Ombudsman also has been notified of the usage of children’s photos on Yet the majority of actions related with October the websites of private organizations in which 1 refer to the interventions of the Spanish these photos are linked to a narrative on the National Police and the Civil Guard toward manipulation of children to carry out actions citizens who were waiting in front of polling related with the “secessionist cause” or with stations to be able to vote, the violent acts the the October 1 referendum. Considering the police committed when entering polling stations special protection that our legislative and confiscating electoral materials, and the framework offers on the right to privacy and consequent destruction caused to the facilities, protection of personal data when the parties as explained in the preceding paragraph. involved are children, the Catalan Ombudsman has opened ex-officio actions with the aim of In these cases, each of the individual conveying these cases to the Prosecutor’s complaints received has been followed up. At Office and the APDCAT. the same time, ex-officio actions have been opened to study the possible lack of The publication of children’s photos linked to proportionality and the consequent violation newsworthy events that had to do with the of individual rights and public freedoms due October 1 voting process by some news media to the actions of the Spanish law enforcement also gave rise to complaints by fathers and agencies and corps that acted that day. In mothers who saw perfectly identifiable images these cases, the Catalan Ombudsman is of their sons and daughters published without waiting to receive the reports requested from having given their prior consent. In these the various competent administrations. SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING OCTOBER 1, 2017 17

4. EVENTS FOLLOWING OCTOBER 1ST the President of the Spanish Government and the President of the Autonomous Government Among the acts that took place after October of Catalonia, the Spanish Parliament and the 1, especially noteworthy is the ex officio Parliament of Catalonia, and all other action opened to study the situation that authorities of the State, while also making an came about in a secondary school of the appeal to the Spanish Ombudsman. Barcelona metropolitan area on October 2, in which, as the news media reported, a teacher The Catalan Ombudsman proposed they reproached a student, who is the son of a reach a consensus, as a starting point among Civil Guard officer, for the actions of that all those called to the mediation, to establish corps the day before. At this time, the Catalan a “zero hour” for understanding and Ombudsman is waiting for the report agreement. Along these lines, he made yet requested on the matter from the another appeal for political dialog to resolve Autonomous Ministry of Education. the situation.

Furthermore, the Catalan Ombudsman has Following the sending of information to the received several requests from individuals, European Commissioner for Human Rights organizations and social groups that claimed on the social and political context in Spain on their behalf a more direct intervention to and Catalonia and especially, on the actions help resolve the lack of understanding that the of Spanish law enforcement agencies on current political crisis has brought about, by October 1, the Commissioner had addressed offering his mediation between the state and the Spanish Minister of Home Affairs, urging autonomous governments, proposing him to ensure, “in co-operation with other channels for dialog or any other possible authorities in charge of law enforcement that strategy to reach an agreement. The Catalan swift, independent and effective investigations Ombudsman has also given his opinion on the are carried out into all allegation of police pretrial imprisonment of the presidents of the misconduct and disproportionate use of force National Catalan Assembly and Òmnium during the events of 1 October 2017 in Cultural for alleged crimes of sedition. Catalonia.” (October 4).

Last, the Catalan Ombudsman has also given Despite the categorical tone employed by Nils his opinion on the application of Article 155 Muižnieks, the Spanish minister dismissed of the Constitution and the criminal charges the recommendation in a letter in which he filed against the ousted government of stated “the state security forces and corps, Catalonia and Presiding Board of Parliament. following instructions from the judiciary, acted with caution and proportionality” (6 October).

4.1. Proposal for dialog and investigation The international appeals for an impartial investigation into the events of October 1 On October 4, the Catalan Ombudsman have been repeated by the UN High announced that he was offering to all public Commissioner for Human Rights6, Amnesty authorities the institution of the Síndic de International7 and Human Rights Watch8, Greuges de Catalunya (Catalan Ombudsman), among others. This was also the tone of the in its mediation role, pursuant to Article 4 of debate held on October 129 by the Law 24/2009, of 23 December on the Catalan Parliamentary Assembly of the Council of Ombudsman, to organize, in the realms of Europe and the commitment made by the Catalonia, Spain and the international Spanish Minister of Foreign Affairs before the community, a table for understanding and secretary general of this international agreement for all involved parties, such as organization.10

6 http://www.un.org/apps/news/story.asp?NewsID=57785#.WeB4AVu0Pbg (2 October) 7 https://www.amnesty.org/es/latest/news/2017/10/spain-excessive-use-of-force-by-national-police-and-civil-guard- in-catalonia/ (3 October) 8 https://www.hrw.org/es/news/2017/10/12/espana-la-policia-utilizo-la-fuerza-de-manera-excesiva-en-cataluna (12 October) 9 Alícia Sans: “Debat al Consell d’Europa contra la violència i pel diàleg” (Council of Europe Debates Violence, Supports Dialog), Ara, October 13, 2017. 10 https://www.coe.int/en/web/secretary-general/-/spokesperson-of-the-secretary-general-meeting-between-secre- tary-general-jagland-and-the-foreign-minister-of-spain-alfonso-dastis-quecedo (9 October) 18 EVENTS FOLLOWING OCTOBER 1st

4.2. Order for pretrial imprisonment of movement, exclusively for their ideas, in a Catalan National Assembly and manner that clearly contravenes freedoms Òmnium Cultural presidents recognized internationally and in the Constitution, especially the freedom of On October 16, the judge of the Central expression. In fact, in the criminal code there Examining Court No. 3 of the Spanish High are other less severe cautionary measures to Court ordered communicated pretrial prison prevent the presumption of future criminal with visitation rights and without bail for the recurrence, insufficiently grounded in the presidents of the Catalan National Assembly judge’s decision. The non-application of (ANC) and Òmnium Cultural for an alleged these measures, as has occurred with other crime of sedition. individuals under judicial investigation, can lead to the belief that there is an attempt to The Catalan Ombudsman in the framework criminalize organizations and currents of of his statutory mandate for the defense of opinion in Catalonia and remove their individual rights and public freedoms, and leadership. without prejudice to his respect for the independence of the Judiciary, has stated that Furthermore, the Catalan Ombudsman calls imprisonment of the former Deputy Catalan attention to the fact that, pursuant to Article Ombudsman and current president of the 6 of the European Convention of Human ANC, as well as of the president of Òmnium Rights, everyone shall have the right to a fair Cultural, constitutes a decision contrary to trial, and specifically, to be presumed innocent the rights and freedoms comprised in of a crime until legitimately proven guilty. international treaties ratified by the Kingdom of Spain, especially the freedom of expression, As a result, the Catalan Ombudsman the freedom of assembly and demonstration, expresses the urgent need to place and right to freedom and security. fundamental rights as a keystone of the democratic and legal state. The Catalan Ombudsman reminds the public that the organizations led by Mrrs. Jordi The Catalan Ombudsman points out that the Sànchez and Jordi Cuixart have tens of conflict between Catalonia and Spain could thousands of members who defend an idea– have as a solution the political dialogue the independence of Catalonia–that is neither between both parties. This path of dialogue, punishable nor illegal, as is plainly concluded which until now has not been possible, will from Ruling 42/2014 of the Constitutional undoubtedly be difficult for decisions that Court. In that ruling, the Constitutional Court can lead to the violation of fundamental confirmed that all ideas fit within the rights of people. constitutional framework, even those that sought to alter the very foundations of the Meanwhile, the Catalan Ombudsman constitutional order, and that they could continues its investigations on possible conduct preparatory activities to fulfill this violations of rights and freedoms regarding objective. October 1st.

The pro-sovereignty organizations and their presidents have participated in the 4.3. Application of Article 155 organization of demonstrations that have mobilized hundreds of thousands of people Last October 27, following the approval of on several occasions over recent years, two resolutions in the Parliament of especially those for the National Day of Catalonia, which were clearly outside the Catalonia (“la Diada”), always in a peaceful, constitutional framework, with the festive manner. The pacifistic backgrounds of intended declaration of independence, at Mrrs. Sànchez and Cuixart are more than the behest of the Council of Ministers, the well-known. Senate in plenary session authorized a broad range of measures to be taken toward The court order handed down by Central the Autonomous Government of Catalonia Examining Court no. 3 contains elements in application of Article 155 of the Spanish that could be interpreted as the criminalization Constitution (SC). From then on, the of certain organizations and a social president of the Spanish government has SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING OCTOBER 1, 2017 19

signed numerous royal decrees that include damaged their right of participation. On the firing of the President, Vice-President the other front, when facing irregularities and Ministers of the Autonomous Catalan committed in parliament that damage their Government, as well as other senior rights, members of parliaments have, as Government officials and the dissolution of the Catalan Ombudsman has indicated, the Parliament of Catalonia. This dissolution channels for specific appeals outlined in brings about the call for autonomous the Constitutional Court Law. elections on December 21 of this year. In addition to this, the Senate and Constitutional Court acts that suspend or Government’s interpretation of Article 155 declare unconstitutional laws approved by appears contrary to other constitutional the Parliament or later declarations proves precepts. The decisions taken on the that within the legislation in force there are competency to dissolve Parliament and call legal measures to guarantee respect for the elections, and to remove the president and constitutional order that are more Government, could violate the right to appropriate than the use made of Article autonomy recognized in Article 2 of the SC 155 SC. Aside from not explicitly setting a and the system developed under Title VIII. time limit for exceptional measures, the Nonetheless, the elections called for measures taken by the Spanish government December 21 must be conducted with all could violate the fundamental right to democratic guarantees, and without any political participation of all citizens of threat or warning with regard to the results. Catalonia, recognized in Articles 23 of the In any event, the Spanish government must Constitution and 3 of the Additional publicly commit to lifting the exceptional Protocol to the European Convention on measures adopted once the new Human Rights. These precepts establish: Autonomous Catalan Government is formed, freely and according to the “Citizens have the right to participate in statutory provisions. public affairs, directly or through representatives freely elected in regular Additionally, regardless of whether the elections by universal suffrage” (Art. 23 SC). suspension of Catalan self-rule could be considered an intrinsic violation of rights, “The High Contracting Parties undertake to the fact that from Monday the hold free elections at reasonable intervals Administration of the Generalitat was being by secret ballot, under conditions which governed from a distance, by bodies alien will ensure the free expression of the to the popular will expressed by the citizens opinion of the people in the choice of the of Catalonia and that are not accountable legislature.” (Art. 3, Additional Protocol). to their legitimate representatives, can generate a risk of maladministration and The exercise of parliamentary mandates by potential rights violations. elected officials is protected by the case law of the European Court of Human Rights in application of the latter precept, and 4.4. Criminal indictment of the from this point of view, the firing of the dismissed government and Presiding whole Catalan government violates the Board of Parliament right to political participation of all citizens of Catalonia, regardless of the options they All legal and institutional channels must voted for in the elections of September prevail over the criminal course to resolve 2015. This is also true in that the removal matters such as those at hand. Along these has taken place with a possible violation of lines, in the opening statement of the the Spanish legal framework, as no precept Organic Law that modified the Criminal of the Spanish Constitution, not even Code to decriminalize holding illegal Article 155 SC, establishes the ability to referendums, after stating that this conduct adopt a measure of this nature. did not have sufficient entity to constitute a crime, expressly states that “in our legal This decision can be judicially challenged framework there are means for control of by citizens, even as a complaint of legality other than criminal law. Therefore, unconstitutionality, by those who consider the exercise of competencies to call or 20 EVENTS FOLLOWING OCTOBER 1st promote consultations by those who do not this case. Furthermore, a retroactive hold the legal competency to do so, is reference made in the charges, deeming perfectly controllable by means other than “threatening” the large demonstrations criminal law.” that have been exemplary for their civic behavior may make for a violation of That is why, with full respect for Article 21 SC, that recognizes the right to independence of the Judiciary, and assembly and demonstration. emphasizing the need to cooperate with it at all times, it is important to indicate that These encumbrances of fundamental the court orders of the Supreme Court and rights and public freedoms recognized in the Spanish High Court may contravene the the Constitution and in the European fundamental rights recognized in the Convention for Fundamental Rights and international treaties and in the SC, by Public Freedoms and in their additional allowing the criminal charges filed by the protocols, could end up before the European General State Prosecutor. Court of Human Rights. Unfortunately, the more than foreseeable rulings by Strasbourg In the first place, they may represent a will arrive once a long period has transpired, violation of the rights of the judge when the violations of rights are irreversible predetermined by Law, which should be the and the only possible reparation would be ordinary jurisdiction of Catalonia, and in moral, or in some cases, economic. The the first place the High Court of Justice of Catalan Ombudsman urges the various Catalonia (TSJC). authorities that have competencies to do so to reverse ab initio these numerous Still and all, the disparity of criteria between situations of violation of rights and the two instances, Supreme Court and High freedoms to prevent, as has happened on a Court of Spain, in terms of exercising the reiterated basis, the highest European right to defense and the application of jurisdictional body in human rights from cautionary measures, is surprising. finding the Spanish state guilty of violations of internal and international human rights In second place, in the case of the members rules. of the Presiding Board, it appears that there has been an omission, as was stated in the In his report of April 2017, the Catalan April 2017 report, of the immunity members Ombudsman already warned about of parliament enjoy in their parliamentary regressions in rights and freedoms, duties, as is, without a doubt, the allowing, following the cautions received from by vote, of proposals for resolution. European bodies, on the dangers to rights brought about by the use of the criminal Last, the labeling as rebellion proposed by law solutions for institutional and political the Prosecutor’s Office, and accepted by the conflicts, and the partisan tendencies in highest jurisdictional bodies, appears judiciary bodies. completely disproportionate to describe the events known to all, as was the order for Consequently, the Catalan Ombudsman pretrial imprisonment without bail brought expresses the urgent need to return against Jordi Sànchez and Jordi Cuixart, still fundamental rights as the cornerstone of in force today, despite the substantial the democratic state and rule of law, the modification of the circumstances in which rigorous respect for which is indispensable that judicial ruling was handed down. The in any situation. cautionary measures of pretrial imprisonment now applied to dismissed Last, the Catalan Ombudsman states that ministers are another example of the the conflict between Catalonia and Spain disproportion of the justice system. should be solved through political dialog between both parties. The pathway of The case law of the Constitutional Court dialog, impossible until now, will makes clear that Article 25.2 and 9.3 of the indubitably be hindered by decisions that Constitution require the guarantee of the could lead to the damage of individuals’ principle of proportionality of punishments fundamental rights. that are apparently not being respected in SUMMARY REPORT OF ACTIONS TAKEN BY THE CATALAN OMBUDSMAN REGARDING OCTOBER 1, 2017 21

In the meantime, the Catalan Ombudsman place during the validity of the measures will continue with his investigations on applied through Art. 155 SC, exercising his possible rights violations related to the duties of investigation, supervision, study October 1 ballot, and will continue to follow and reporting to all bodies, and to the up on rights violations that could take fullest extent. Síndic de Greuges de Catalunya Passeig Lluís Companys, 7 08003 Barcelona Tel 933 018 075 Fax 933 013 187 [email protected] www.sindic.cat