Before addressing the subject, a brief information about what the Council of Europe (don’t confuse it with the European Union) and the institutions that make it up is appropriate. Constituted by the Treaty of London of May 5, 1949, it is an international organization of continental scope aimed at promoting the configuration of a common political and legal space, based on the values ??of democracy, human rights and the empire of the law. The Council of Europe consists of several internal bodies, including the Parliamentary Assembly, the Committee of Ministers and the General Secretariat. The European Court of Human Rights (ECtHR) is undoubtedly the most well-known of the international bodies linked to the organization, due to the political and legal significance of its work. The Convention on Human Rights and Fundamental Freedoms (ratified by Spain on October 10, 1979) creates a European Commission and the ECtHR (based in Strasbourg).
In the case of the Catalan pro-independence demands, the Commission has taken them into consideration and, using Article 28 of the agreement, invites the parties to reach a conciliation based on respect for human rights. It grants a deadline until January 12, 2024 to complete the friendly agreement. If it is achieved, the Committee of Ministers will be notified, which will ensure compliance with the terms of the agreement.
The rules of operation of the court establish that if the parties could not reach an amicable agreement or other solution, and the room was convinced, in view of the respective arguments, that the matter is admissible and is in a condition to be tried on the substance, the chamber itself will immediately adopt a decision on admissibility. The letter that the ECtHR has sent to the parties seems to me sufficiently suggestive of the great possibilities that it will come to resolve the matter on the merits if a friendly agreement is not reached. It must be pronounced on whether the Spanish Supreme Court has made an “unpredictable or expansive interpretation of article 7 of the agreement”, in which it is established that “no one may be condemned for an action or omission that at the time in which it was committed do not constitute an offense under national or international law”.
To elucidate this issue, the Strasbourg judges have the full text of the final judgment that was confirmed, by majority, by the TC. The key, therefore, lies in the content of the narrative of the proven facts. The issue has already been delimited, because once the crime of sedition has disappeared, they will only have to pronounce on whether there is enough basis to justify a crime of misappropriation of public funds for profit by disloyal administration.
The plaintiffs complain that articles 10 and 11 of the European Convention, referring to freedom of expression and freedom of assembly and association, were also violated. They allege that they were convicted of crimes of sedition when, according to their opinion, they had only encouraged citizens to participate in demonstrations in defense of the pro-independence process and to participate in a referendum on the independence of Catalonia. It is supposed to be what the response of the Spanish Government will be.
The court is interested in an issue that has already been addressed by the United Nations Working Group on Arbitrary Detention. The Human Rights Committee and the Parliamentary Assembly of the Council of Europe have also strongly criticized the provisional prison that the convicts suffered, so they want to know the opinion of the Spanish State on the violation of article 5 of the European Convention, which regulates the right to freedom and security. In view of the allegations and the documentation provided (reproduction of the recording of the oral trial sessions), it will examine whether article 6 of the agreement, which enshrines the right to a fair trial, was violated. It also calls into question the respect for their right of defense and asks if there was a violation of article 3 of protocol number 1 of the convention, which refers to the free expression of the opinion of the people in the election of the legislative body
This list of questions does not presuppose or anticipate the decision that the ECtHR will take in due course, but it is worth noting that if it had not aroused your interest they would have been rejected completely and it would not have insisted on inviting the State to reach an amicable agreement with the claimants.
So far we have been able to verify the rejection by the entire European legal community of the requests made by the Spanish court, which is indicative of its notorious deficiencies and of its collision with the democratic culture of the judges of the countries to which it has been required the arrest and delivery of people who are in the area of ??freedom, security and justice of the European Union.
The Spanish State has enough time until January 14 to make a decision that is directly demanded by many sectors of politics and law, and that demands an amnesty that includes, as is logical, not only the plaintiffs, but the thousands of citizens, police and civil guards prosecuted due to the development of the events known to everyone. An amnesty would lead to the filing of the lawsuits and would avoid condemnatory and disqualifying pronouncements for the Supreme Court. The ECtHR judges have rolled out a carpet for us to walk towards amnesty. Don’t waste it.
