An Analysis of the Spanish Judgement against Catalan Pro-independence Leaders in the eyes of the European Convention on Human Rights

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AMSTERDAM LAW SCHOOL

AN ANALYSIS OF THE SPANISH

JUDGEMENT AGAINST CATALAN

PRO-INDEPENDENCE LEADERS IN

THE EYES OF THE EUROPEAN

CONVENTION ON HUMAN RIGHTS

IS THE JUDGEMENT NO. 459/2019 OF THE SPANISH

SUPREME COURT IN LINE WITH THE RIGHTS TO

FREEDOM OF EXPRESSION AND ASSEMBLY UNDER THE

ECHR?

Ivan Hortal Sánchez

Email: ivanhortal.ub@gmail.com Student No. 12744972

Master in Public International Law (International and European Law) Supervisor: Leonie Huijbers

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ABSTRACT

On the 14th_{of November 2019, the Spanish Supreme Court delivered what is probably the}

most relevant judgement in the history of Catalonia. Through this ruling –known as the judgement of the procés, in reference to the political process initiated in 2012 to achieve the independence of Catalonia from Spain–, the Supreme Court convicted nine Catalan pro-independence leaders for the serious crime of sedition. This judgement considered that these leaders were guilty of sedition because they had mobilised a tumultuous uprising that, outside the legal channels, intended to avoid the enforcement of a court order and the application of the laws in Catalonia. Two mobilisations were key in this regard: the protests on the 20th_of

September 2017 against the search and arrest of high-ranking officials, who allegedly were preparing the referendum, and the referendum on self-determination itself, which was held on the 1st_{of October 2017.}

This thesis analyses whether this ruling respected the rights to freedom of expression and assembly, as embodied in Articles 10 and 11 of the European Convention of Human Rights (ECHR) respectively. To this end, it first discusses the way of reasoning and deciding of the European Court of Human Rights (ECtHR or the Strasbourg Court) in relation to these two rights. In this sense, it bears noting that the Strasbourg Court tends to follow the same approach when it has to assess whether there has been an interference with a fundamental right by a Contracting Party. Accordingly, if the measure complies with all the requirements of the ‘three-step test’ (i.e., if it is prescribed by law, pursues a legitimated aim and is necessary in a democratic society), then the interference can be deemed as justified.

In the second part of this thesis, the objective is to compare the interpretation of the Supreme Court of these two rights in the judgement of the procés with the standards of the ECtHR. In this regard, the thesis pays special attention to political speech in the context of self-determination. As these two freedoms are closely intertwined and the ECtHR oftentimes combines both rights or interprets one right in light of another, they are examined in the same chapter.

This thesis concludes that the interference with the rights to freedom of expression and assembly caused by this judgement cannot be seen as necessary in a democratic society. In any case, even though the ECtHR might eventually hold that Spain violated these rights under the ECHR as the leaders of the procés plan to complain before this body, the exact outcome of such a case remains to be seen.

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If we do not believe in freedom of speech for those we despise, we do not believe in it all. Noam Chomsky

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ACKNOWLEDGEMENTS

To Leonie Huijbers, who has been especially supportive during all the process of writing of this thesis. I would like to thank her very much for her thorough and constructive feedback, both substantive and formal.

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1. INTRODUCTION

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1.1. POINT OF DEPARTURE

On the 14th_{of November 2019, the Spanish Supreme Court (Supreme Court) delivered a}

historic verdict, condemning nine pro-independence leaders to almost a hundred years of prison altogether, with the penalties ranging from nine to thirteen years. They were convicted, among other crimes, for the offence of sedition because according to the definition of this felony, they mobilised a public and tumultuous uprising to prevent both the compliance of an order of the court that was investigating the preparations on the referendum of independence in Catalonia held in 2017, as well as the application of the laws.

1.2. THE RESEARCH QUESTION OF THIS THESIS

This thesis aims to answer the following research question: Does the crime of sedition, as

construed by the Judgement No. 459/2019 (judgement of the procés), comply with the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, Convention or ECHR), concretely with reference to the rights to freedom of expression and assembly?

While some claim that numerous human rights were violated due to this judgement such as the right to a fair trial (Article 6 ECHR) or the more complex right to self-determination, among others, this thesis will only focus on the rights to freedom of expression and assembly, enshrined in Articles 10 and 11 ECHR, respectively. Furthermore, although it would be interesting to analyse the principle of legality (Article 7 ECHR) in relation to these two rights, addressing this issue in detail would surpass the narrow scope of the present thesis.

The analysis of the crime of sedition under Spanish law is key for the purposes of this thesis. Numerous criminal law experts2_{and non-governmental organisations (NGOs) have criticised}

the construction of this crime in the cas d’espèce. The main point of the defendants was that

1_{All electronic documents were last accessed on the 18}th_{of July 2020.}

2_{More than one hundred of Spanish university lecturers signed a manifesto that rejected the application of the} crime of sedition in the cas d’espèce, stating that ‘at no time has there been any indication that the accused have induced, provoked or staged any tumultuous uprising in order to prevent compliance with the law, unless incitement to the right to association and assembly is interpreted as sufficient for this purpose, even though it is a fundamental right’. See ‘The trivialisation of the crimes of rebellion and sedition’ (2018).

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celebrating a referendum of independence and mobilising citizens to protest against a court order fell within the scope of the rights to freedom of expression and assembly. In this sense, the objective of this thesis is to review the Supreme Court’s interpretation of these two rights to see whether such construction was in accordance with the ECHR.

To answer this question, human rights treaties and case-law, mainly from the European Court of Human Rights (ECtHR or Strasbourg Court), will be analysed. These provide the standards against which the judgement of the procés case can be measured, although, at the moment of writing, the appeal against this ruling has not been brought before the ECtHR. In addition, secondary sources (e.g., handbooks, articles, guidelines, reports from UN treaty bodies and NGOs) are also relevant for this study and are also included. These sources help to give a better understanding of the primary sources and they offer different ways of interpretation. It should be pointed out, however, that due to the recentness of this judgement, scholarly literature is scarce about this issue. For this reason, due regard will be paid to the reports of Amnesty International as this is the NGO that has addressed this ruling more thoroughly.

1.3. THE STRUCTURE OF THIS THESIS

Chapter 2 introduces the background of the political conflict between Catalonia and Spain, paying special attention to the referendum on independence held in 2017 and its political and especially its criminal consequences.

Chapter 3 serves as a legal framework for the rest of the thesis. Accordingly, it examines the rights to freedom of expression and assembly under the ECHR as some of the currently imprisoned pro-independence leaders plan to lodge an appeal before the ECtHR.

Chapter 4 compares the judgement of the procés with the case-law of the ECtHR regarding the rights to freedom of expression and assembly. It first explains why there has been an interference with these rights in the cas d’espèce. Right after, it analyses whether this interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.

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2. BACKGROUND: THE CIRCUMSTANCES SURROUNDING THE

JUDGEMENT OF THE PROCÉS

2.1. THE PROBLEMATIC RELATIONSHIP BETWEEN CATALONIA AND SPAIN

For a better understanding of the judgement of the procés, it is necessary to first address the complex relationship between Catalonia and Spain. Since the approval of the Spanish Constitution in 1978, which entered into force three years after the death of the dictator Franco, Spain is organised territorially in autonomous communities, i.e., regional sub-entities with a notable array of powers (education, healthcare, infrastructures…). Each region has a Statute of Autonomy, which is a sui generis organic law hierarchically located under the Spanish Constitution. This law governs inter alia the institutions, the powers and the institutional relations of every autonomous community.

Catalonia is one of the 17 autonomous communities in which Spain is divided. Its first Statute of Autonomy (Estatut, in Catalan) was approved in 1979. However, the current Estatut dates from 2006.3_{Article 1 of the current Estatut enshrines that ‘Catalonia, as a nationality,}

exercises its self-government constituted as an autonomous community in accordance with the Constitution and with this Estatut, which is its basic institutional act’.4_{However, a ruling}

of the Spanish Constitutional Court (Constitutional Court) in 2010 modified drastically the Estatut and that caused a huge political turmoil in Catalonia. The peak of the displeasure was a demonstration in Barcelona on the 10th_{of July 2010 with the slogan ‘We are a nation. We}

decide’, which gathered hundreds of thousands of protesters in the streets of Barcelona.5

This demonstration was followed by several protests, being the demonstration in 2012 one of the most important ones.6_{This event can be considered as the starting point of what is known}

popularly as the procés, i.e., the social and politic process to achieve the independence of Catalonia.

3_{Catalan Organic Act 6/2006, of the 19}th_{of July, on the Reform of the Statute of Autonomy of Catalonia} (Estatut). https://www.parlament.cat/document/cataleg/150259.pdf

4_{Emphasis of the legislator.}

5_{See, e.g., ‘One million march to support statute on Catalan autonomy’ France24 (11 July 2010).}

https://www.france24.com/en/20100711-spain-catalan-one-million-protest-statute-constitutional-court-challenge

6_{Since 2012, the National Catalan Assembly and Òmnium Cultural, two organisations in favour of the} independence of Catalonia, have organised massive demonstrations and protests, especially every 11th_of September, which is the National Day of Catalonia. In 2012, the demonstration under the slogan ‘Catalonia: new state in Europe’ gathered 1,5 million of protesters, according to the Barcelona Municipal Police.

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On the 9th_{of November 2014, a non-binding referendum was held in Catalonia, with almost}

1,9 million of Catalans (there were almost 7,5 million of Catalans in 2017) voting in favour of independence.7_{However, this consultation had not allowed by the Constitutional Court.}

Consequently, Artur Mas, the then President of the Generalitat de Catalunya (the Catalan Government), as well as two ministers of his cabinet, were disqualified from the exercise of elective public posts and condemned to pay a millionaire fine for the crimes of perversion of justice and disobedience.8

On the 27th_{of September 2015 and for the first time in the history of Catalonia, the}

pro-independence parties won the elections, reaching the absolute majority of the deputies (72 out of 135). The leading coalition Junts pel Sí (‘Together for Yes’, in English) had framed these elections as a plebiscite and its main electoral objective was to declare the independence and to set all the legal structures to become a State.9

Carles Puigdemont was appointed by the Parliament of Catalonia as the new President of the Generalitat de Catalunya. After unfruitful negotiations with the Spanish Government, Puigdemont announced that a referendum will be held on the 1st_{of October 2017 with the}

following question: ‘Do you want Catalonia to become an independent state in the form of a republic?’. Furthermore, three weeks before the referendum took place, the Parliament of Catalonia passed the Act 19/2017, of the 6th of September, on the referendum of self-determination10_{. The Spanish Government, however, submitted an appeal on the grounds of}

unconstitutionality of the referendum before the Constitutional Court, which suspended this law.11

7_{See the results on the website: Generalitat de Catalunya, ‘9N 2014 Tu hi participes. Tu decideixes.’ [in Catalan;} ‘9N 2014 You participate. You decide.’]. http://www.participa2014.cat/index.html

8_{Judgement - Abbreviated Procedure No. 1/2016 (High Court of Justice of Catalonia, 3 March 2017) [in} Spanish]. http://www.gencat.cat/eapc/revistes/RCDP/Documents_interes/RCDP_54/09_01_STSJC_9N.pdf 9_{Junts pel Sí, ‘Electoral program’ (2015) 30-2 [in Catalan].}

https://juntspelsi.s3.amazonaws.com/assets/150905_Programa_electoral_v1.pdf

10_{See Catalan Organic Act 19/2017, of the 6th of September, on the Referendum of Self-determination [in} Catalan].

https://portaljuridic.gencat.cat/ca/pjur_ocults/pjur_resultats_fitxa/?action=fitxa&mode=single&documentId=796

531&language=ca_ES

11_{Judgement No. 114/2017 in response to the appeal on the grounds of unconstitutionality No. 4334-2017} suspending the Act of the Parliament of Catalonia 19/2017 of the 6th_{of September on the referendum of}

self-determination (Spanish Constitutional Court, 17 October 2017) [in Spanish].

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Despite this prohibition, the referendum was held anyway and a total of 2.286.217 citizens voted, with more than 90% of them voting in favour of independence.12_{Nevertheless,}

according to the Catalan Government, up to 770.000 potential voters could not participate because many voting stations were closed down by police.13_{Several NGOs such as Amnesty}

International denounced the excessive use of force by police against voters and peaceful protesters.14

On the 10th_{of October 2017, the Parliament of Catalonia celebrated an extraordinary session}

to implement the results of the referendum. The narrow, yet absolute majority of the deputies (70 out of 135) voted in favour of declaring the independence, whereas ten voted against and two cast a blank vote.15_{The other political parties, Ciudadanos, the Socialist Party of}

Catalonia and the Catalan Popular Party –which were against the independence and had 53 deputies in total– abandoned the chamber as a way to protest.

During this session, Puigdemont declared unilaterally the independence in the Parliament. Nonetheless, te immediately suspended the effects of this declaration so as to start a dialogue with the Spanish Government to reach an agreed solution.16_{The Spanish Government,}

however, triggered the application of the direct rule, embodied in Article 155 of the Spanish Constitution. This Article reads as follows:

‘1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute majority of the Senate, take the measures necessary in

12_{Generalitat de Catalunya, ‘Catalan referendum results. Infographic on the results of the October 1 referendum} in Catalonia’.

https://catalangovernment.eu/catalangovernment/in-two-minutes/303482/catalan-referendum-results

13_ibid.

14_{Amnesty International, ‘Spain: Recent developments in Catalonia from 1 October’ (17 November 2017) 1.}

https://www.amnesty.org/download/Documents/EUR4174732017ENGLISH.pdf

15_{The declaration of independence was voted in a secret ballot to avoid criminal proceedings against the} members of the Parliament. Moreover, the declaration was not published on the official website of the Parliament of Catalonia (www.parlament.cat). See, inter alia, ‘Catalans declare independence as Madrid imposes direct rule’ BBC (London, 27 October 2017). https://www.bbc.com/news/world-europe-41780116

16_{Parlament de Catalunya, ‘Sessió 43. Compareixença del president de la Generalitat davant el Parlament per a} informar sobre la situació política actual’ (10 October 2017) 8 [in Catalan; ‘43rd_{Session. Appearance of the} president of the Generalitat before the Parliament to inform about the current political situation’].

https://www.parlament.cat/document/dspcp/236781.pdf; See also Parlament de Catalunya, ‘Declaració dels

representants de Catalunya’ (10 October 2017) [in Catalan; ‘Declaration of the representatives of Catalonia’].

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order to compel the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interests.

2. With a view to implementing the measures provided in the foregoing clause, the Government may issue instructions to all the authorities of the Autonomous Communities.’17

Accordingly, the Spanish Prime Minister, Mariano Rajoy, sent a requisition to Puigdemont urging him to confirm whether the independence of Catalonia was declared and if so, to revoke such declaration.18_{The reply of Puigdemont did not clearly specify whether he indeed}

declared the independence and instead, he urged Rajoy to ‘stop the repression against the people and the government of Catalonia’, as well as to meet as soon as possible to find a solution.19

On the 21st_{of October 2017, the Spanish Government decided that Puigdemont had not}

provided an answer to the requisition. Consequently, the Catalan Government was ceased, the Parliament was dissolved and new elections were held on the 21st_{of December 2017. This}

requisition was upheld by the Spanish Senate a few days later, with an overwhelming majority (214 out of 262 senators voted in favour).20

2.2. THE FIRST CRIMINAL PROCEEDINGS: THE PRE-TRIAL DETENTION OF THE JORDIS

The celebration of the referendum and the posterior declaration of independence unleashed criminal proceedings against some of the Catalan politicians and activists involved. On the 16th_{of October 2017, two of the main pro-independence activists, Jordi Sànchez and Jordi}

17_{Emphasis added.}

18_{Presidencia del Gobierno, ‘Requerimiento al M.H. Sr. Presidente de la Generalitat de Cataluña’ (11 October} 2017) 7-8 [in Spanish; ‘Requisition to the Right Honourable President of the Generalitat de Catalunya’].

https://www.lamoncloa.gob.es/consejodeministros/Documents/11102017-requerimiento.pdf

19_{‘Aquesta és la carta de resposta de Puigdemont al requeriment de Rajoy’ El Periódico (Barcelona, 16 October} 2017) [in Catalan; ‘This is the letter of reply of Puigdemont to the requisition of Rajoy’].

https://www.elperiodico.cat/ca/politica/20171016/reproduccio-carta-puigdemont-resposta-requeriment-rajoy-6355530

20_{Boletín Oficial de las Cortes Generales (Senado), ‘Autorizaciones. Requerimiento del Gobierno al Senado de} aprobación de las medidas a las que se refiere el artículo 155 de la Constitución’ (28 October 2017) 70-71 [in Spanish; ‘Authorisations. Requisition from the Government to the Senate regarding the approval of the measures referred in Article 155 of the Constitution’].

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Cuixart (the Jordis)21_{, were charged with the crime of sedition and detained due to their}

participation in a protest on the 20th_{of September 2017 against a police and judicial operation}

in Barcelona, which consisted of the searches of many Catalan governmental buildings including the Department of Economy and resulted in the detention of some politicians for allegedly preparing an unconstitutional referendum.22

After almost two years of pre-trial detention, the Jordis were both sentenced to nine years of prison under the crime of sedition. This offence is embodied in Chapter I of the Title XXII about ‘Felonies against public order’ of the Spanish Criminal Code (Criminal Code).23_{It is}

enshrined in Article 544, which reads as follows:

‘Conviction for sedition shall befall those who, without being included in the felony of rebellion, public and tumultuously rise up to prevent, by force or outside the legal channels, application of the laws, or any authority, official corporation or public officer from lawful exercise of the duties thereof or implementation of the resolutions thereof, or of administrative or judicial resolutions.’

Article 545(1) of the Criminal Code sets out the penalties of this offence and states that those guilty of sedition ‘shall be punished with a sentence of imprisonment from eight to ten years, and with that ten to fifteen years if they are persons with the status of authority’.

Nevertheless, it bears noting that in their draft conclusions, both the Public Prosecutor’s Office (PPO)24_{and the actio popularis}25_{–exercised by the far-right political party Vox}26_–

characterised the facts as constituting the offence of rebellion, which is a felony against the

21_{Jordi Sànchez was the then president of the Assemblea Nacional Catalana, a pro-independence organisation.} Jordi Cuixart was the then president of Òmnium Cultural, a Catalan NGO founded in 1961, whose aims are promoting the Catalan language and culture, education, social cohesion and civil and human rights. They are known popularly as the Jordis.

22_{Order – Abbreviated Procedure 82/2017 (Central Investigating Court Nº 3, 16 October 2017) [in Spanish].}

https://filesedc.com/uploads/17/docs/2017/10/autoJordis.pdf

23_{Spanish Organic Act 10/1995, of the 23}rd_{of November, on the Criminal Code (Spanish Criminal Code).}

https://www.legislationline.org/download/id/6443/file/Spain_CC_am2013_en.pdf

24_{Judgement No. 459/2019 (Spanish Supreme Court, 15 October 2019) (Judgement of the procés) 9-11.} Emphasis added.

http://www.poderjudicial.es/stfls/TRIBUNAL%20SUPREMO/NOTAS%20DE%20PRENSA/20191216%20STS

,%20Sala%202,%2014-10-2019%20-%20Sentencia%20proc%C3%A9s%20INGL%C3%89S.pdf

25_{Article 125 of the Constitution allows citizens to engage in popular action before criminal courts, even if they} are not directly affected by the Court’s decision. This provision also allows political parties or NGOs, inter alia, to participate in criminal proceedings. In this sense, the party Vox is known for intervening in criminal proceedings, especially against pro-independence politicians but also against left-wing ones.

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Constitution and establishes a harsher penalty. This crime is enshrined in Article 472 of the Criminal Code, which in its relevant provisions, reads as follows:

A conviction for the offence of rebellion shall be handed down to those who violently and publicly rise up for any of the following purposes: (…)

5. To declare the independence of any part of the national territory;27

The key feature of this provision is the reference to violence, which was finally not proven before the Supreme Court. Otherwise, the “rebels”, as the Catalan leaders were called by the PPO and Vox, would have faced a penalty of imprisonment from 15 to 25 years.28

2.3. CRITICISMS OF THE JUDGEMENT OF THE PROCÉS

This ground-breaking ruling, known colloquially as the judgement of the procés, not only condemned the Jordis for sedition but also nine ministers of the Government of Catalonia (2015-2017), as well as the then President of the Parliament of Catalonia, Carme Forcadell. Six of the ministers were charged with sedition and/or embezzlement, whereas three of them were charged with the minor offence of disobedience, which led to a fine and 20 months of disqualification from the exercise of elective public posts.

This judgement has faced a lot of criticisms and pro-independence supporters, among others, qualify them as political prisoners. What is more, several NGOs such as Amnesty International criticised the broad construction of the crime of sedition in this case and urged the Spanish authorities to release the Jordis.29

In a similar vein, the Working Group on Arbitrary Detention of the Human Rights Council (the Working Group) adopted an opinion concerning the detention of the Jordis (and Oriol Junqueras, the then vice-president of the Generalitat de Catalunya). After examining the relevant facts and exchanging information with the Spanish Government, it reached the conclusion that the deprivation of liberty of the Jordis and Oriol Junqueras was in contradiction, inter alia, with the rights to freedom of expression and peaceful assembly

27_{Spanish Criminal Code art 472.} 28_{ibid art 473.}

29_{Amnesty International, ‘Spain: Analysis of the Supreme Court’s ruling in the case of Catalan leaders’ (19} November 2019) 6. https://www.amnesty.org/download/Documents/EUR4113932019ENGLISH.PDF

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under the International Covenant on Civil and Political Rights (ICCPR).30_{And, therefore, it}

held that their detention was arbitrary.31_{What is more, the Working Group considered that the}

most suitable remedy would be to release them immediately, as well as grant them a right to compensation.32

30_{Human Rights Council - Working Group on Arbitrary Detention, ‘Opinion No. 6/2019 concerning Jordi} Cuixart I Navarro, Jordi Sánchez I Picanyol and Oriol Junqueras I Vies (Spain)’ (13 June 2019) UN Doc A/HRC/WGAD/2019/6 para 144 [in Spanish].

31_ibid.

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3. THE FRAMEWORK OF THE EUROPEAN CONVENTION ON

HUMAN RIGHTS (ECHR)

3.1. INTRODUCTION

The ECHR was drafted in 1950 by the Committee of Ministers of the Council of Europe and entered into force in 1953.33_{This Convention was inspired by the Universal Declaration of}

Human Rights proclaimed by the UN General Assembly on 1948 and its first section reflects mostly civil and political rights, which were agreed by like-minded States in Europe.34_Spain

ratified the ECHR on the 4th_{of October 1979.}35

Article 1 ECHR demarcates the scope of application by stating that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’.36_{As explained by the ECtHR, this means that States have both}

negative and positive obligations, whose extent varies depending on the right in question. A negative obligation is one by which a State is required to abstain from interference, whereas a positive obligation requires States to actually take action in order to secure human rights.37

Section II of the ECHR establishes the ECtHR. Article 34 ECHR embodies that the ECtHR may receive applications from any person, NGO or group of individuals claiming to be the victim of a violation by one of the Parties of the rights set forth in the Convention or the Protocols thereto.

It should also be noted that all judgements before the Grand Chamber are final and shall be published.38_{Moreover, judgements of the ECtHR are binding and their execution is to be}

supervised by the Committee of Ministers.39

33_{William A. Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press} 2015) 8-9.

34_{Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human} Rights, as amended) (4 November 1950) (ECHR) preamble.

35_{Chart of signatures and ratifications of the ECHR.}

https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/signatures?p_auth=LhHsMUN5. (after link)

37_{David Harris, Michael O'Boyle, Ed Bates and Carla Buckley, Law of the European Convention on Human} Rights (4th_{edn, Oxford University Press 2018) 24.}

38_{ECHR art 44(1) & 2.} 39_{ECHR art 46(1) & (2).}

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3.2. ADMISSIBILITY OF A COMPLAINT ON THE PROCÉS

Regarding the admissibility criteria that an eventual application against the judgement of the procés must comply with, the Convention establishes the rule of exhaustion of all domestic remedies and also poses a time limit of six months from the date on which the final decision was taken.40_{Furthermore, the Strasbourg Court shall declare inadmissible any application that}

is anonymous, is substantially the same as a matter that has already been examined either by the ECtHR or by another international body, is manifestly ill-founded, or does not cause a significant disadvantage to the applicant.41

Concerning the judgement of the procés, it bears noting that this verdict is final and, therefore, not subject to ordinary appeal.42_{However, there is an extraordinary appeal before}

the Constitutional Court called recurso de amparo, which can be lodged in case of violation of rights and liberties embodied in Articles 14 to 29 of the Spanish Constitution.43_{The rights}

to freedom of expression44_{and of peaceful unarmed assembly}45_{are protected by the recurso}

de amparo, which has to be lodged in a period of 20 days after having exhausted all ordinary jurisdictional remedies.46

In case a recurso de amparo is granted by the Constitutional Court, the judgement shall contain at least one of the following pronouncements: (1) a declaration of the nullity of the impugned decision, (2) a recognition of the right in the light of the provision relating to its substance and (3) the full restoration of the applicant’s right and, where appropriate, the adoption of measures to ensure its preservation.47

On the 6th_{of May 2020, the Constitutional Court unanimously accepted the appeals, arguing}

that they ‘are of special constitutional relevance, as they pose an issue or affect a part of a fundamental right without doctrine from this Court’.48_{At the time of writing, the decision is}

40_{ECHR art 35(1).} 41_{ECHR art 35(2) & (3).} 42_{Judgement of the procés 482.}

43 _{Spanish Organic Act 2/1979, of the 3}rd_{of October, on the Constitutional Court art 41.}

https://www.tribunalconstitucional.es/es/tribunal/normativa/Normativa/LOTC-en.pdf

44_{Spanish Constitution (29 December 1978) art 20.}

https://www.boe.es/legislacion/documentos/ConstitucionINGLES.pdf

45_{ibid art 21.}

46_{Spanish Organic Act on the Constitutional Court art 43.} 47_{ibid art 55(1).}

48_{Spanish Constitutional Court, ‘Press Release No. 50/2020. The plenary of the Constitutional Court} unanimously accepts the appeals for amparo filed by Cuixart, Forn, Rull, Turull, Sánchez, Bassa and Forcadell against the judgement issued by the Supreme Court that convicted them for committing sedition’ (6 May 2020).

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pending. Only in case the appeal is rejected, the applicants can still lodge a complaint before the ECtHR since the rights that were allegedly violated are embodied in Articles 14-29 of the Spanish Constitution, as well as in the ECHR.49

3.3. LIMITATIONS OF RIGHTS: THE ‘THREE-STEP TEST’

As a preliminary issue, it is important to distinguish limitations from derogations. Whereas derogations consist of the suspension of a specific right under exceptional circumstances and fall outside the scope of rights, limitations actually define the scope of rights.50

The essence or core of a right has to be respected under any circumstances and its infringement should be justifiable; it can be said that it constitutes the “limit to the limits”.51

The core of a right refers to the elements without which the right ceases to be itself and thus becomes worthless for its beneficiaries.52_{Besides, this concept is a vehicle for expanding the}

sphere of protection of the ECHR for the purposes of guaranteeing its effet utile and it can be used as a “reviewing tool” to establish a hierarchy among different rights when this is required in a particular case.53

In order to assess the limitations of a given right, the Strasbourg Court follows what is known as the ‘three-step test’, which is set out in the Convention itself and has been developed by the

https://docreader.readspeaker.com/docreader/?cid=bukvg&lang=en_uk&voice=en_gb_amy&url=https%3A%2F %2Fwww.tribunalconstitucional.es%2fNotasDePrensaDocumentos%2fNP_2020_050%2fPress+Release+No.+5

0-2020.pdf

Note that this outcome is more the exception than the rule. For instance, in 2019, only 119 out of 7554 recursos de amparo (1,58%) were declared admissible, of which 50 judgements were annulled (0,66%). See figures 14 and 16 in Spanish Constitutional Court, ‘Estadísticas jurisdiccionales’ (2019) [in Spanish; ‘Jurisdictional statistics’].

http://www.tribunalconstitucional.es/es/memorias/Estadisticas/ESTADISTICAS-2019.pdf

49_{All rights protected by the recurso de amparo (including the rights to freedom of expression and assembly) are} analogous to the rights embodied in the ECHR or the Protocols, with few exceptions such as the right to petition. See question nº 24 Spanish Constitutional Court, ’26 cuestiones básicas sobre el recurso de amparo constitucional’ (2018) [in Spanish; ’26 basic questions about the constitutional recurso de amparo’].

https://www.tribunalconstitucional.es/es/jurisprudencia/InformacionRelevante/PreguntasFrecuentes.pdf

For more information, see Francisco Pérez de los Cobos, ‘El recurso de amparo y el recurso ante el TEDH: pautas de interacción’ (2017) Actualidad Jurídica Uría Menéndez 7 [in Spanish; ‘The recurso de amparo and the appeal before the ECtHR: patterns of interaction’].

https://www.uria.com/documentos/publicaciones/5654/documento/tribuna.pdf?id=7544

50_{Frédéric Mégret, ‘Nature of obligations’ in Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran and David} Harris, International Human Rights Law (3rd_{edn, Oxford University Press 2017) 99.}

51_{Sébastien van Drooghenbroeck and Cecilia Rizcallah, ‘The ECHR and the Essence of Fundamental Rights:} Searching for Sugar in Hot Milk?’ (2019) 20 German Law Journal 904, 907.

52_{ibid 906.} 53_ibid.

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case-law of the ECtHR. Accordingly, a limitation shall (1) be prescribed by law, (2) pursue a legitimate aim and (3) be necessary in a democratic society.

3.4. THE RIGHTS TO FREEDOM OF EXPRESSION (ART. 10 ECHR) AND ASSEMBLY (ART. 11 ECHR)

3.4.1. Scope

3.4.1.1. The right to freedom of expression

Article 10 of the Convention establishes that ‘[e]veryone has the right to freedom of expression’ and that ‘[t]his right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.54_{The Strasbourg Court has repeatedly recalled that freedom of expression}

‘constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment’.55

In a similar vein, the ECtHR has asserted that one of the main features of democracy is the possibility that offers of resolving the problems of a given country through dialogue, avoiding the use of violence, even when such problems may seem irksome.56_{In short, ‘[d]emocracy}

thrives on freedom of expression’.57

Furthermore, the Strasbourg Court has stressed repeatedly that freedom of expression ‘is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb’.58

3.4.1.2. The right to freedom of assembly

Article 11(1) ECHR embodies that ‘[e]veryone has the right to freedom of peaceful assembly’. This civil and political right, along with the right to freedom of expression, is a fundamental right in a democratic society and constitutes one of the foundations of such

55_{See, inter alia, Lingens v Austria App no 9815/82 (ECtHR (Plenary), 8 July 1986) para 41; Sürek and Özdemir} v Turkey Apps nos 23927/94 and 24277/94 (ECtHR (GC), 8 July 1999) para 57. Emphasis added.

56_{United Communist Party of Turkey and others v Turkey App no 19392/92 (ECtHR (GC), 30 January 1998)} para 57.

57_ibid.

58_{Observer and Guardian v the United Kingdom App no 13585/88 (ECtHR (Plenary), 26 November 1991) para} 59.

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society.59_{Accordingly, it shall not be interpreted restrictively.}60_{Regarding the content of this}

right, it bears noting that it covers both private and public meetings, as well as static meetings and public processions.61

The Strasbourg Court has also stressed that even though several definitions of assembly may exist in the different domestic legal systems of the Parties to the ECHR, this classification has only relative value and serves merely as a starting point.62_{Therefore, the term “assembly” in}

the ECHR possesses an autonomous meaning, which is aimed at protecting this right against inadequate classifications in domestic law.63

According to the ECtHR, an assembly can be defined as ‘a specific form of communication of ideas, where the gathering of an indeterminate number of persons with the identifiable intention of being part of the communicative process can be in itself an intensive expression of an idea’.64_{The support for the idea in question is being expressed through the presence of a}

group of people, particularly at a place accessible to the general public.65_{Besides, an}

assembly may be an adequate forum where the participants and the speakers can exchange ideas, even if they disagree with each other.66

The obligations of the Contracting Parties to ensure that this right is respected are another aspect worthy of consideration. Thus, even though the main objective of this right is to protect the individual against arbitrary interferences by domestic authorities (negative obligations), positive obligations may be added to secure the effective enjoyment of this freedom67_even

when it comes to relations between individuals.68_{Indeed, the State has a positive obligation to}

ensure that even demonstrations that may offend or annoy other people can still be held.69

59_{Djavit An v Turkey App no 20652/92 (ECtHR (3}rd_{Section), 9 July 2003) para 56.} 60_ibid.

61_ibid.

62_{Tatár and Fáber v Hungary Apps no 26005/08 and 26160/08 (ECtHR (2}nd_{Section), 12 June 2012) para 38.} 63_ibid.

64_{ibid. Emphasis added.} 65_ibid.

66_ibid.

67_{Wilson, National Union of Journalists and others v the United Kingdom Apps nos 30668/96, 30671/96 and} 30678/96 (ECtHR (2nd_{Section), 2 October 2002) para 41.}

68_{Platform “Ärtze für das Leben” v. Austria App no 10126/82 (ECtHR (Chamber), 21 June 1988) para 32.} 69_{See, mutatis mutandis in relation to freedom of association, Ouranio Toxo and others v Greece App no} 74989/01 (ECtHR, (1st_{Section), 20 January 2006) para 37.}

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According to the ECtHR, one should be able to freely participate in assemblies without being scared of being physically attacked by their opponents.70

In a similar vein, it should be pointed out that this right is secured to everyone who organises or participates in a demonstration, but only insofar it is peaceful. According to the ECtHR, the Convention does not apply to those assemblies where both the organisers and the protesters have violent intentions or deny the bases of democracy.71_Thus,

‘any measures interfering with the freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles—however shocking and unacceptable certain views or words used may appear to the authorities—do a disservice to democracy and often even endanger it’.72

What is more, even if there is a real risk of a public procession resulting in disorder by developments outside the control of the organisers, such assembly still falls within the scope of Article 11 ECHR.73

3.4.2. Limitations

As the majority of the rights enshrined in the Convention, freedom of expression is not absolute and, in the words of the ECtHR, ‘is subject to the exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly’.74

Regarding the right to freedom of assembly, it should be noted that the term “restrictions” must be interpreted as including not only measures taken before or during the assembly, but also those taken afterwards, that is to say, punitive measures.75

70_ibid.

71_{Alekseyev v Russia Apps nos 4916/07, 25924/08 and 14599/09 (ECtHR (1}st_{Section), 11 April 2011) para 80.} In a similar vein, Bioy has argued that the ECHR allows discourses that are “simply” seditious, but not those that, by themselves, constitute a denial of democracy. See Xavier Bioy, 'La Protection Renforcée de la Liberté d'Expression Politique dans le Context de la Convention Européenne des Droits de l'Homme' (2012) 53 Les Cahiers de Droit 739, 756 [in French].

72_{Sergey Kuznetsov v Russia App no 10877/04 (ECtHR (4}th_{Section), 23 January 2009) para 45. Emphasis} added.

73_{Christians against Racism and Fascism v the United Kingdom App no 8440/78 (European Commission of} Human Rights, 16 July 1980) 148.

74_{Marônek v Slovakia App no 32686/96 (ECtHR (2}nd_{Section), 19 April 2001) para 52.} 75_{Nemtsov v Russia App no 1774/11 (ECtHR (1}st_{Section), 15 December 2014) para 73.}

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(a) Prescribed by law

Firstly, the rule of law test requires that the term “law” must be always understood in its substantive sense and not in its formal one, meaning that it should include all sorts of written law (statutes, decrees, regulations…), as well as judge-made law, which is very typical of common law jurisdictions.76_{In the words of the Strasbourg Court, ‘the “law” is the provision}

in force as the competent courts have interpreted it’.77

Secondly, the law must be adequately accessible, meaning that any citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.78

Thirdly, the norm shall be precise enough to enable any citizen to regulate their conduct, to reasonably foresee the consequences which a given action may entail.79_{However, while}

certainty is highly desirable, the Strasbourg Court has recognised that many laws inevitably use terms that are vague and broad and need to be interpreted and applied by courts and tribunals.80

Finally, the rule of law also requires the domestic law of the Parties to include measures of legal protection against arbitrary interferences by national authorities with the rights protected by the ECHR.81

(b) Legitimate aim

It is important to point out that the practice of the Strasbourg Court is to be rather succinct when determining the existence of a legitimate aim within the meaning of the second paragraphs of Articles 8 to 11 of the ECHR.82_{That means that the ECtHR oftentimes passes}

over this issue and tends to focus on whether the specific interference is necessary in a democratic society.

76_{Leyla Şahin v Turkey App no 44774/98 (ECtHR (GC), 10 November 2005) para 88; Steven Greer, ‘The} exceptions to Articles 8 to 11 of the European Convention on Human Rights’ (Council of Europe Publishing 1997) 9. https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-15(1997).pdf

77_{Leyla Şahin v Turkey para 88.}

78_{The Sunday Times v the United Kingdom (No. 1) App no 6538/74 (ECtHR (Plenary), 26 April 1979) para 49.} 79_ibid.

80_ibid.

81_{Karácsony and others v. Hungary Apps nos 42461/13 and 44357/13 (ECtHR (GC), 17 May 2016) para 156.} 82_{S.A.S. v France App no 43835/11 (ECtHR (GC), 1 July 2014) para 114.}

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Like Article 10(2) ECHR, Article 11(2) sets out a list of legitimate purposes. However, this list is slightly narrower than the one in Article 10(2) and does not include, for instance, territorial integrity. In any case, the enumeration of these exceptions is strictly exhaustive and the definition of them is necessarily restrictive, meaning that these restrictions must be narrowly construed.83

S

(c) Necessary in a democratic society

The concept of necessary in a democratic society

The jurisprudence of the Strasbourg Court has repeatedly insisted on the fact that democracy is a fundamental feature of the European public order and that the Convention was designed to promote and maintain the ideals and values of a democratic society.84_{Accordingly, with}

regard to Articles 8 to 11 of the Convention, the only necessity that justifies an interference with any of the rights contained in these provisions is one that might claim to emerge from a democratic society.85

Concerning the adjective “necessary”, it should be noted that it implies the existence of a “pressing social need”.86 _{Indeed, the Contracting Parties enjoy a certain margin of}

appreciation in assessing whether such a need exists, but this goes hand in hand with the supervision of the ECtHR, which has the final say on whether a restriction (or formality, condition or penalty) is reconcilable with the rights to freedom of expression and assembly.87

Margin of appreciation and subsidiarity

The doctrine of the margin of appreciation was first adopted by the ECtHR in the context of derogations in 195988_{and since then, it has “leaked” into every part of the Convention. This}

83_{Sidiropoulos and others v Greece App no 26695/95 (ECtHR (Chamber), 10 July 1998) para 38.} 84_{Bączkowski and others v Poland App no 1543/06 (ECtHR (4}th_{Section), 24 September 2007) para 61.} 85_ibid.

86_{Observer and Guardian v the United Kingdom (n 58) para 59.} 87_ibid.

88_{‘The Government should be able to exercise a certain measure of discretion in assessing the extent strictly} required by the exigencies of the situation’. In Greece v the United Kingdom (Report of the European Commission of Human Rights, 2 October 1958) 176.

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doctrine now ‘constitutes one of the cardinal points of the Strasbourg case-law’.89_{It is rooted}

in the principle of subsidiarity, which means that

‘[a] margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions’.90

With the entry into force of Protocol No. 15 of the ECHR the doctrine will be included in the preamble of the ECHR.91

The margin of appreciation doctrine shows that the duty of the Strasbourg Court when it exercises its supervisory jurisdiction is not to replace the competent domestic authorities but rather to review the decisions they adopted in accordance with their margin of appreciation.92

In other words, the role of the ECtHR is not only to determine whether the State exercised its discretion reasonably, carefully and in bona fide, but also to examine the interference in question alongside the case as a whole and to establish whether such restriction was proportionate to the legitimate aim pursued, and if the reasons put forward by the public authorities to justify it were relevant and sufficient.93

However, it bears noting that the margin of appreciation doctrine has to be analysed on a case-by-case basis. Accordingly, the Strasbourg Court has accorded a wide margin of appreciation in those cases where the national courts have acted in an arbitrary or manifestly unreasonable manner.94_{By contrast, a narrow margin of appreciation implies that the reasons}

for an interference must be convincingly established and that the ECtHR will examine that the

89_{Pieter van Dijk, Fried van Hoof, Arjen van Rijn, Leo Zwaak Theory (eds.), Theory and practice of the} European Convention on Human Rights (2nd_{edn, Kluwer Deventer 1990) 372.}

90_{Zehentner v Austria App no 20082/02 (ECtHR (1}st_{Section), 16 October 2019) para 57.}

91_{In this regard, note that Article 1 of Protocol No. 15 states that ‘[a]t the end of the preamble to the Convention,} a new recital shall be added, which shall read as follows: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention,” (emphasis added). Nonetheless, this Protocol has not entered yet into force as two of the 47 High Contracting Parties (Italy and Bosnia and Herzegovina) have not ratified it. See the status of ratifications in

https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213/signatures?p_auth=KTzv1Kb3

92_{Observer and Guardian v the United Kingdom (n 58) para 59.} 93_ibid.

94_{The Communist Party of Russia and others v Russia App no 29400/05 (ECtHR (1}st_{Section), 19 September} 2012) para 116.

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arguments given by the domestic authorities are both persuasive and of quality.95_This

flexibility is what makes this doctrine a perfect tool to review different national interpretations about the rights set out in the Convention.96

The threefold test: suitability, necessity and proportionality

Some scholars argue that when the ECtHR has to assess whether an interference of a right is deemed as necessary in a democratic society, it follows implicitly the classic proportionality review.97_{Accordingly, the Court first determines if the measure affecting one or more rights}

was suitable to facilitate or achieve the pursued legitimate aim.98_{Secondly, the suitable}

measure needs to be also necessary; in other words, if there are less restrictive measures available to the domestic authorities, those are preferred.99_{Finally, the measure must be}

proportional in the strict sense, meaning that a fair balance is struck in light of the rights and interests involved, which in any case should not destroy the essence of the right.100_However,

it bears noting that the emphasis in the Strasbourg Court’s review is generally on the proportionality stricto sensu requirement.101

In any case, leaving doctrinal discussions aside, when the ECtHR has to assess the proportionality of an interference, the nature and severity of the penalty imposed102_{, as well as}

the fairness of proceedings and the procedural guarantees afforded to the applicant103_are

some of the factors that need to be taken into account. What is more, civil sanctions such as an injunction are considered to be less serious than criminal penalties.104

95_{Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of} Human Rights’ (2018) 18 Human Rights Law Review 495, 499.

96_{ibid 500.}

97_{Oliver De Schutter and Françoise Tulkens, ‘Rights in Conflict: The European Court of Human Rights as a} Pragmatic Institution’ in Eva Brems (ed.), Conflicts between Fundamental Rights (1st_{edn, Intersentia 2008) 169.} 98_{Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention} on Human Rights (Martinus Nijhoff Publishers 2009) 69

99_{ibid 70.} 100_ibid.

101_{Janneke Gerards, ‘How to improve the necessity test of the European Court of Human Rights’ (2013) 11} I·CON 466, 469.

102_{Ceylan v Turkey App no 23556/94 (ECtHR (GC), 8 July 1999) para 37.} 103_{Baka v Hungary App no 20261/12 (ECtHR (GC), 23 June 2016) para 161.}

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3.5. CONCLUSION

Freedom of expression and assembly are the cornerstone of a democratic society. Although these freedoms are not absolute, national authorities must be especially careful when restricting such rights. In this regard, the Strasbourg Court is very methodical when assessing a restriction and closely examines whether the interference with these rights is necessary in a democratic society.

This chapter serves as a basis for the legal analysis of the judgement of the procés. It will also serve as a framework for the comparison of the standards between the Supreme Court and the ECtHR with regard to the crime of sedition, which will be done in the following chapter.

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4. THE JUDGEMENT OF THE PROCÉS IN LIGHT OF THE RIGHTS

TO FREEDOM OF EXPRESSION AND ASSEMBLY UNDER THE

ECHR

4.1. INTRODUCTION

In this chapter, the construction in the judgement of the procés of the rights to freedom of expression and assembly will be examined in the eyes of relevant case-law of the ECtHR. Due to the similarities between these two rights, as a general rule, they will be analysed jointly. As done in the previous chapter, firstly, the scope of these rights will be defined. Secondly, the interference with the rights of the leaders of the procés will be analysed in light of the ‘three-step test’.

4.2. THE SCOPE OF THE RIGHTS TO FREEDOM OF EXPRESSION AND ASSEMBLY

As a preliminary issue, it should be pointed out that in some cases, freedom of assembly and freedom of expression are closely linked as the protection of personal opinions, secured by the latter, is one of the objectives of the former.105_{The Strasbourg Court has also asserted that}

in matters of political debate, the guarantees enshrined in Articles 10 and 11 ECHR are often complementary.106_{What is more, the link between these two rights is especially important}

when there has been an interference with the right to freedom of assembly in reaction to the opinions expressed by participants in a demonstration.107

The ECtHR tends to address both rights jointly, arguing that, in some cases, Article 10 ECHR shall be regarded as a lex generalis in relation to Article 11.108_{However, in other judgements,}

the Strasbourg Court has found it more appropriate to examine a case under Article 10, although interpreted in the light of Article 11.109

105_{Ezelin v France App no 11800/85 (ECtHR (Chamber), 26 April 1991) para 37.}

106_{Primov and others v Russia App no 17391/06 (ECtHR (1}st_{Section), 13 October 2014) para 92.}

107_{Stankov and the United Macedonian Organisation Ilinden v Bulgaria Apps no 29221/95 and 29225/95} (ECtHR (1st_{Section), 2 January 2002) para 85.}

108_{ibid para 35.}

109_{See, inter alia, Taranenko v Russia App no 19554/05 (ECtHR (1}st_{Section), 13 October 2014) para 69;} Women on Waves and others v Portugal App no 31276/05 (ECtHR (2nd_{Section), 3 May 2009) para 28 [in} French].

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4.2.1. Freedom of expression

In the judgement of the procés, counsel for defendants argued that the right to freedom of expression of any member of the legislature (the Catalan Parliament in this case) protects deputies from being criminally prosecuted.110_{However, the Supreme Court rejected this}

claim, arguing that the parliamentary privilege does not cover intentional acts of ignorance of the decisions delivered by the Constitutional Court as they impose ‘a justified restriction for the achievement of a constitutionally legitimate and necessary purpose in a democratic society’.111

The defendants also argued that the violation of the right to freedom of expression springs from the approach assumed by the PPO of criminalisation of political speech to justify a criminal conviction.112_{Nonetheless, again, the Supreme Court disagreed with their assertion.}

Based on Article 20(1) of the Spanish Constitution113_{and Article 10 ECHR, as well as}

relevant case-law in support to these provisions, this Court stated that the target of criminal reproach

‘is not to give an opinion or advocate a secessionist option, but to define a parallel, constituent legality and to mobilise a multitude of citizens to oppose the execution of the legitimate decisions of the judicial authority, holding a referendum declared illegal by the Constitutional Court and the High Court of Justice of Catalonia, the result of which was the necessary condition for the entry into force of the law of transience, which implied a definitive break with the structure of the State.’114

On another note, taking into account that all the Catalan leaders convicted were public officials before the verdict, with the only exceptions of the Jordis, it is important to analyse the case-law of the ECtHR about political speech, especially in the context of self-determination. In this regard, the landmark case Castells v Spain provides some interesting parameters. Mr Castells was a Spanish senator elected on a party supporting independence for

110_{Judgement of the procés 221. In this regard, Article 57(1) of the Estatut establishes that ‘[m]embers of} Parliament are inviolable with regard to the votes and opinions they may express in exercise of their position. During their term in office, they enjoy legal immunity and may not therefore be arrested unless in flagrant offence’.

111_{ibid 228.} 112_{ibid 237.}

113_{Article 20(1)(a) of the Spanish Constitution states that ‘the right to freely express and spread thoughts, ideas} and opinions through words, in writing or by any other means of reproduction’ is recognised and protected. 114_{Judgement of the procés 238. Emphasis added. The Catalan Act 20/2017, of the 8}th_{of September, of Juridical} Transition and Foundation of the Republic (law of transience) was repealed by the Constitutional Court.

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the Basque Country who wrote an article accusing the Spanish Government to seek the political elimination of Basque dissidents.115_{The Spanish Supreme Court convicted Mr}

Castells for an offence of insulting the Government.116

The Strasbourg Court held that ‘[w]hile freedom of expression is important for everybody, it is especially so for an elected representative of the people’ as they, inter alia, represent the electorate, draw attention to their preoccupations and defend their interests before the parliament.117_{Accordingly, interferences with the freedom of expression of an opposition}

Member of Parliament (MP) shall be carefully scrutinised by the Strasbourg Court.118

Coming back to the cas d’espèce, it should be noted that even if the political party Junts pel Sí was in the Catalan Government for two years (between October 2015 and October 2017), the pro-independence parties represented a minority in the Spanish Congress of Deputies and belonged to the opposition.119_{Thus, being the judgement of the procés such a serious}

restriction with the freedom of expression of the Catalan leaders, in an eventual complaint before the ECtHR, this Court would closely examine this interference.

To sum up, mobilising people to participate in protests and in a referendum falls doubtlessly within the scope of the right to freedom of expression of the separatist leaders. Indeed, in the case at hand, it seems undeniable that there has been an interference with such right.

4.2.2. Freedom of assembly

First and foremost, it should be noted that the discussion about whether the referendum held on the 1st_{of October 2017 should be considered as an assembly or as a legitimate consultation}

with legal effects is still open. On the one hand, the promoters based the legitimacy of the referendum on the right to self-determination of Catalonia and argued that the Generalitat de Catalunya had a mandate to apply its results and implement the Catalan Republic. On the

115_{Castells v Spain App no 11798/85 (ECtHR (Chamber), 23 April 1992) paras 6-7.} 116_{ibid para 9.}

117_{ibid para 42.} 118_ibid.

119_{In the 12}th_{term of the Congress of Deputies (2016-2019), the Catalan pro-independence parties (Esquerra} Republicana de Catalunya and Convergència Democràtica de Catalunya) had 17 deputies out of 350. See the results of the Spanish general election held on the 26th of June 2019 on

http://www.infoelectoral.mir.es/infoelectoral/min/busquedaAvanzadaAction.html?vuelta=1&codTipoEleccion=2 &codPeriodo=201606&codEstado=99&codComunidad=0&codProvincia=0&codMunicipio=0&codDistrito=0&

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other hand, and from a constitutional perspective, this vote did not comply with the legal requirements of a referendum as it was forbidden by the Constitutional Court, there was no census, the police seized multiple ballots and ballot boxes… The approach of the Supreme Court in this regard is categorical: there was no referendum and the events of the 1st_of

October 2017 should be analysed from the perspective of the right to freedom of assembly. As the purpose of the present thesis is to critically review the judgement of the procés, the approach taken by the Supreme Court will be followed, and the referendum will be considered as an assembly.

Regarding the right to freedom of assembly itself, the Supreme Court argued that no acts of protest were criminalised and that the legitimacy of this right was undisputed.120_However,

this Court stated that the scope of this freedom does not include mobilising a multitude to impede the police to carry out its duty, i.e., in this case, preventing the referendum from taking place.121_{In short, it can be said that both the protests of the 20}th_{of September 2017 and}

the referendum clearly fall within the scope of this right as the assemblies were mostly peaceful and the organisers did not call to violence, quite the opposite.

4.3. THE LIMITATIONS OF THE RIGHTS TO FREEDOM OF EXPRESSION AND ASSEMBLY

The convictions of the pro-independence leaders constituted a crystal-clear and serious interference with their freedom of expression and assembly, despite the denial of the Supreme Court. Even more so when they were condemned for such a serious crime like sedition, which entails very harsh penalties up to 15 years. Whether this interference is justified will be analysed below pursuant to the ‘three-step test’.

In Castells v Spain, the Strasbourg Court stated that

‘the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means

120_{Judgement of the procés 239-240.} 121_{ibid 240.}

An Analysis of the Spanish Judgement against Catalan Pro-independence Leaders in the eyes of the European Convention on Human Rights