The Council of Europe will send a fact-finding mission to Madrid and Barcelona in order to assess the case of the jailed Catalan leaders. On Tuesday October 1st, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly published a memorandum that builds on earlier resolutions which voiced concern about “the politicians imprisoned following statements made in the exercise of free speech”, in a reference to the Catalan case, as well as Kurdish representatives in Turkey. The new document makes provisions for a fact-finding trip to Barcelona and Madrid.
The memorandum —drafted by Latvian representative Boris Cilevics, an MEP with the Socialists, Democrats and Greens Group— makes several preliminary considerations about the trial of the jailed Catalan leaders. The rapporteur notes that “the prosecution of the politicians who organised the referendum of 1 October 2017 for the crime of rebellion can hardly be based on actual violence […]. Having apparently understood this, the Spanish prosecution and Supreme Court reportedly adopted a novel interpretation of the violence requirement for the crime of rebellion dubbed “violence without violence” or “bloodless violence”. Under this interpretation, the sheer number of demonstrators mobilized by the organisers constitutes an inherent threat of violence, designed to intimidate and overwhelm the authorities”. Cilevics goes on to argue that “in my view, such a wide interpretation of the notion of violence, in conjunction with the earlier explicit decriminalisation of the organisation of an illegal referendum [in Spain’s 2005 criminal code], creates an issue of “nullum crimen, nulla poena sine lege [nobody may be punished for something that is not prohibited by law]”. The rapporteur believes that “such an unpredictable interpretation of the law might violate Article 7 of the European Convention on Human Rights, which established that any crime must be clearly laid out by law”. The author also claims that “an interpretation which would penalise the organisation of peaceful demonstrations […] could violate the freedom of assembly protected by Article 11”.
The memorandum puts forward three proposals in order to further the investigations leading to a final report:
1. To call for an Opinion of the Venice Commission —a Council body made up of constitutional law experts— to clarify in which circumstances, if any, the European Convention on Human Rights allows the criminalisation of calls by politicians or representatives of civil society for radical constitutional changes by peaceful means - including calls for independence.
2. To ask the legal services whether this constitutes a crime in the 47 countries represented in the Council.
3. To carry out a fact-finding visit to Madrid and Barcelona.
The Council of Europe —not to be confused with the European Commission— is a body that brings together the 47 countries who have adhered to the European Convention on Human Rights.