Opinion; Subjects: SPAIN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.19-11749 (E) 171219 181219
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fourth session, 24 April–3 May 2019
Opinion No. 12/2019 concerning Joaquín Forn I Chiariello, Josep Rull I
Andreu, Raúl Romeva I Rueda and Dolores Bassa I Coll (Spain)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 21 September 2018 the
Working Group transmitted to the Government of Spain a communication concerning
Joaquín Forn, Josep Rull, Raúl Romeva and Dolores Bassa. The Government replied to the
communication on 21 November 2018. The State is a party to the International Covenant on
Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2019/12
General Assembly
Distr.: General
10 July 2019
English
Original: Spanish
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Submissions
Communication from the source
4.
Mr. Forn became the Minister of the Interior of the government of Catalonia on 14
July 2017. From 1999 to 2017, he was a member of Barcelona City Council and between
2011 and 2015 he was First Deputy Mayor of Barcelona. He oversaw the Office of the
Mayor and matters related to interior affairs, security and transportation. He is the president
of the public transport operator Transportes Metropolitanos de Barcelona. He was elected
as a member of the parliament of Catalonia at the end of 2017.
5.
Mr. Rull was the Minister for Territory and Sustainability of the government of
Catalonia and councillor with responsibility for those matters in Terrassa City Council
between 2003 and 2014. He was also the general coordinator of the political party
Convergencia Democrática de Cataluña until 2016.
6.
Mr. Romeva was the Minister for Foreign Affairs, Institutional Relations and
Transparency, a member of the parliament of Catalonia from 2015 and a Member of the
European Parliament between 2004 and 2014.
7.
Ms. Bassa was the Minister for Labour and Social and Family Affairs and a member
of Torroella de Montgrí Town Council between 2007 and 2015. She has been a member of
the parliament of Catalonia since 2015.
8.
On 6 September 2017, the parliament of Catalonia voted to hold an independence
referendum. On 7 September 2017, the Constitutional Court declared the referendum
unconstitutional. On 20 and 21 September 2017, pro-independence demonstrations took
place in Barcelona. The referendum was held on 1 October 2017.
9.
On 22 September 2017, the Public Prosecution Service filed a lawsuit against the
persons considered responsible for the demonstrations. On 16 October 2017, two political
leaders who had spearheaded the independence movement were arrested.
10.
On 27 October 2017, the parliament of Catalonia voted to approve a unilateral
declaration of independence. On the same day, the Government of Spain invoked article
155 of the Constitution, suspended the provincial government and called fresh elections.
11.
On 30 October 2017, the Public Prosecution Service filed a complaint of rebellion,
sedition and misuse of public funds against members of the provincial government,
including Mr. Forn, Mr. Rull and Ms. Bassa.
12.
On 31 October 2017, the National High Court in Madrid considered itself competent
to hear the complaint and summoned the defendants to appear two days later to make their
initial statements.
13.
On 2 November 2017, Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa appeared
before the High Court. The Court issued detention orders against the four of them, as well
as the vice-president of Catalonia and other ministers. The Court reportedly did not specify
the individual charges laid against each defendant.
14.
On 22 November 2017, the investigative chamber of the National High Court
submitted the case file to the Supreme Court for review.
15.
On 24 November 2017, the Supreme Court ordered the joinder of the case that had
been brought before the National High Court with a Supreme Court investigation begun on
30 October 2017 in relation to other members of the parliament of Catalonia.
16.
On 4 December 2017, the Supreme Court granted conditional release and bail to Mr.
Rull, Mr. Romeva and Ms. Bassa, and upheld the continued detention of Mr. Forn.
17.
On 21 December 2017, new elections were held in Catalonia. Mr. Forn, Mr. Rull,
Mr. Romeva and Ms. Bassa were elected as members of parliament. On 5 January 2018, the
Appeals Chamber refused to allow Mr. Forn’s release.
18.
On 24 January 2018, following the denial of his requests to attend the opening of
parliament, Mr. Forn resigned his parliamentary seat and undertook to refrain from political
activities and to step down from both the parliament and government of Catalonia. He took
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these steps with the express purpose of securing his release. It was established before the
judge that these actions would remove any risk of renewed criminal activity of the type
alleged, thereby eliminating the justification for his detention. Mr. Forn was not released.
19.
According to the source, following the local elections, attempts to form a new
government in Catalonia were hampered by the judicial proceedings and the detention
measures imposed.
20.
On 22 March 2018, given her obligation to appear before the Supreme Court the
next day, Ms. Bassa returned her election certificate, thereby ceasing to be a member of
parliament, and announced her intention not to stand as a candidate in future elections. She
asked to return to the school where she had worked before entering politics.
21.
On 23 March 2018, Mr. Rull, Mr. Romeva and Ms. Bassa appeared before the
Supreme Court. The investigating judge ordered that they should all be detained on the
grounds that there was an alleged risk of flight and of repeat offending, despite the fact that
they had observed the conditions required for their release. The decision reportedly made
reference to events that occurred in 2012, without making an individual link to the
defendants.
22.
On 9 July 2018, the Appeals Chamber of the Supreme Court upheld the suspension
of the members of parliament.
23.
On 12 July 2018, a regional high court in Germany considered a European arrest
warrant issued for one of the co-defendants and decided to refuse his extradition to Spain.
Immediately after this decision, the Supreme Court of Spain withdrew all the European
arrest warrants it had issued against six of the co-defendants, who were in Switzerland,
Scotland and Belgium, demonstrating that the investigating judge lacked confidence in the
charges on which the detention was based.
24.
The source claims that the detention resulted from the exercise of rights and
freedoms enshrined in articles 19–21 of the Universal Declaration of Human Rights and
articles 19, 21, 22 and 25 of the Covenant.
25.
The source indicates that the indictment against Mr. Forn, Mr. Rull, Mr. Romeva
and Ms. Bassa is based on their role in the peaceful demonstrations of late 2017. However,
the Supreme Court understands the demonstrations to be just one element of a wider plan.
26.
The source points out that the demonstrations were not organized by the detainees
alone. A number of trade unions, universities, political parties and professional associations
were also involved, but none of their members have been prosecuted, much less deprived of
their liberty. The demonstrations were held in support of the exercise of the right to self-
determination through a referendum, with no violent intentions.
27.
According to the indictment, the actions of the defendants were intended to incite
the general public to reject the institutions and powers of the State, with the aim of
encouraging and justifying non-compliance with orders issued by the State and mobilizing
society to support the aims of independence. In the source’s view, their actions amounted to
legitimate political activity, which does not justify detention. The indictment includes, as
part of the criminal proceedings, other activities that are not punishable offences and that
are protected by the Covenant, such as organizing peaceful, one-off, flexible and large-scale
mass gatherings and calling for strikes and rallies.
28.
The source indicates that, in a decision refusing Mr. Forn’s release, the Appeals
Chamber found that the organization of future gatherings was largely dependent on him and
that he should therefore not be released. The source claims that legitimate demonstrations
are being characterized as criminal acts.
29.
In Mr. Forn’s case, his membership of the associations Omnium and the Catalan
National Assembly was highlighted in the arrest warrant as an indication of the offences he
had committed, despite the fact that both of those entities are legal and that membership of
them falls under the right to freedom of association and expression.
30.
The source indicates that the only allegations regarding the criminal responsibility of
Mr. Rull and Mr. Romeva relate to their status as members of the government of Catalonia.
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Mr. Rull’s level of involvement is said to flow from the fact that he has “contributed to the
process since 2015” and participated in numerous meetings. Mr. Romeva is mentioned in
only six lines of the 70-page decision, in connection with a plan to allow overseas voting
via the Internet, which is unrelated to any form of violence.
31.
In the source’s view, using those factors to justify the detention shows that it is
based on the exercise of the rights to freedom of association and assembly and is therefore
arbitrary.
32.
The source indicates that following the amendment of Organic Act No. 2/2005, the
act of calling for a referendum was decriminalized in Spain as it is considered to be a
legitimate form of the exercise of freedom of expression.
33.
The source states that Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa have
expressed their political opinions peacefully. There is no evidence that their actions were
violent or that they incited or caused violence. In its parole decision of 4 December 2017,
the Supreme Court recognized that there had been no violence.
34.
Mr. Forn’s belief in independence was explicitly cited in the decision of 2 February
2018 as one of the reasons for refusing his release, together with his alleged determination
to commit acts designed to cause political instability.
35.
According to the source, the decision of 2 February 2018 states that the defendants
continue to aspire to the goal that drove the behaviour under investigation, the goal being
that the territory of the autonomous community in which they reside should form the
territorial basis of a new republic.
36.
The source alleges that Ms. Bassa’s detention is based on her political convictions,
since she is not even mentioned in the decision of 21 March 2018. According to the
Supreme Court, Mr. Romeva’s criminal conduct consisted of promoting the creation of
State structures and making attempts to boost overseas recognition of the republic of
Catalonia. Mr. Rull’s criminal conduct consisted of participating in meetings since 2015,
signing a pro-independence agreement with civil society and assisting with the holding of
the referendum.
37.
The source notes that Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa are elected
representatives who have served in the parliament or government of Catalonia. Their
detention has the aim and effect of limiting their ability to participate in elections and to
represent voters, as well as preventing them from contributing to political life and
organization.
38.
Despite the defendants’ political activities being legal, the judges ruled that the risk
of criminal conduct was expressly linked to the detainees’ public responsibilities. The
source indicates that their detention is designed to prevent them from participating in public
affairs.
39.
Although Mr. Forn was prevented from participating in the election campaign at the
end of 2017, he was nevertheless elected as a representative. The detainees have been
prevented from carrying out their functions as parliamentarians. Ms. Bassa resigned her
seat in parliament and agreed not to stand in future elections. Mr. Forn relinquished his
political role, his freedom of opinion and expression and his right to participate in public
affairs in an attempt to end his detention.
40.
On 26 June 2018, in its decision upholding the charge of rebellion, the Supreme
Court invoked article 384 of the Criminal Procedure Act, thereby preventing the detainees
from entering parliament even though no final decision had been issued and appeals were
still pending. The Court stated that the detainees were rebels, despite there having been no
use of violence or weapons and despite the fact that their suspension had not been approved
by the parliament of Catalonia, as required by article 25 of its rules of procedure.
41.
The source argues that the statements of the then Deputy Prime Minister, in which
she congratulated the former Prime Minister for having succeeded in decapitating and
wiping out the pro-independence parties, demonstrate the intentions of the Government.
The source also draws attention to statements reportedly made by the Minister of the
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Interior, in which he threatened to prosecute and detain two other politicians for preparing
electoral lists.
42.
The source argues that the detention violates the standards of competence,
independence and impartiality of the court, the right to be informed of the charges, the
presumption of innocence and the provision of adequate time and means to prepare a
defence.
43.
In the source’s view, the competent court is the High Court of Catalonia because the
alleged offences were committed in that territory. The source indicates that the National
High Court considers that if sedition seeks to change the territorial organization of the State
and declare a part of its territory independent, it should be considered an offence against the
form of government. The source argues that this is a tactic to hand jurisdiction over the case
to the National High Court under article 65 (1) of the Organic Act on the Judiciary.
44.
The source argues that the National High Court has considered this offence solely as
an attack on the parliamentary monarchy, instead of as a bid to change and reorganize the
regional structure. It is wholly unprecedented and unjustified for the scope of the offence to
be broadened in order to justify detention.
45.
In its ruling of 2 December 2008, the National High Court concluded that rebellion
had never fallen under its jurisdiction. The source indicates that 100 professors of criminal
law warned that the National High Court lacked competence.1
46.
The source argues that transferring the case to the Supreme Court does not
compensate for previous irregularities, because it was the National High Court that issued
the detention order and because in any event the Supreme Court does not have jurisdiction
over the case either.
47.
In the source’s view, this shows that in this case the courts are neither competent,
independent or impartial. The source alleges that the statement by the Deputy Prime
Minister about decapitating the independence parties demonstrates the lack of
independence of the judicial process, as it describes the defendants’ detention as a political
achievement of the Prime Minister.
48.
The source indicates that the lack of jurisdiction of the courts, as well as their lack of
independence and impartiality, impacted their decisions, including the ordering of
detention, in violation of articles 9 and 10 of the Universal Declaration of Human Rights
and articles 9 and 14 of the Covenant.
49.
Regarding the accusation of misuse of public funds, the source claims that there are
five reports from the Ministry of Finance denying that funds were diverted for the purposes
of the referendum of 1 October 2017. The charge of embezzlement cannot therefore be used
as grounds for detention.
50.
With regard to sedition, the source states that article 544 of the Criminal Code
requires there to be a disorderly, violent and collective public uprising intended to disrupt
the application of the law; the declaration of independence, the referendum and the
demonstrations that preceded them were none of those things. A peaceful protest cannot
constitute sedition, nor can calling for or participating in a referendum be interpreted as
sedition, since those acts were decriminalized in 2005. Furthermore, the source claims that
supporting self-determination in Catalonia is not a crime; it simply constitutes the exercise
of the fundamental rights to freedom of thought and of association, which are protected
under articles 16 and 22 of the Constitution.
51.
The source argues that under article 472 of the Criminal Code, rebellion also
requires a violent and public uprising. Peaceful declarations of independence which lack the
necessary element of violent confrontation cannot constitute the offence of rebellion. The
source claims that, in order to avoid complying with the requirement of violence, the
accusations refer to general allegations of intimidation without specifying a particular place
or time. For example, the arrest warrant of 2 November 2017 relating to Mr. Forn alleges
1 “Legalidad penal y proceso independentista”, eldiario.es, 9 November 2017.
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that he committed “many acts” but does not provide specific details about them. In the
absence of specific charges relating to acts of violence, the detainees cannot be deprived of
their liberty on a charge of rebellion.
52.
According to the source, the former Prosecutor of the High Court of Catalonia stated
that no violence had been used and that the democratic conduct of more than a million
citizens, who exercised their right to demonstrate peacefully, could not retroactively be
portrayed as violent in order to serve as an element of rebellion.
53.
The source states that in other similar cases, courts in Catalonia have considered
complaints of sedition and rebellion in connection with separatist activities.2 For example,
in connection with the referendum of 9 November 2014, the High Court of Catalonia
accepted that the offences could amount to disobedience, misconduct in public office and
misuse of public funds. It refused to imprison the defendants and sentenced them for
disobedience and misconduct.
54.
The source highlights the refusal by a regional high court in Germany to enforce a
European arrest warrant issued for one of the co-defendants in the same case. That decision
was based on the finding that the element of violence required for the offence of rebellion
had not been present and that the acts amounted to the pursuit of a peaceful political
objective by democratic means.
55.
The source claims that the presumption of innocence is violated if an official
statement about a defendant gives the impression that he or she is guilty before a verdict
has been reached. Such a violation occurred in the present case when the Prime Minister
reportedly described the independence movement and its leaders as reckless and dangerous
rebels, and when the Deputy Prime Minister declared that the Government had successfully
decapitated the pro-independence parties. In the source’s view, these statements deprived
the defendants of the presumption of innocence since the judicial proceedings are still under
way and guilt has not yet been established. The statements demonstrate the lack of
independence of authorities in this case and amount to violations of article 11 (1) of the
Universal Declaration of Human Rights and article 14 (2) of the Covenant.
56.
The source stresses that the right to a defence implies the unhindered ability to
present evidence that supports the defence and influences the outcome of the trial. The
source alleges that the defendants were summoned to testify at a hearing to be held the
following day, on 2 November 2017, and were heard and arrested on that date. They did not
therefore have time to prepare, and one of the defence lawyers was not even present.
57.
On 31 October 2017, the complaint was received from the Public Prosecution
Service. On 1 November, which was a public holiday, Mr. Forn’s family received a
summons at their home while he was out of the country. The defendant and his lawyer
immediately travelled from Barcelona to Madrid, a distance of 630 kilometres, in order to
appear at the hearing on 2 November. The source claims that the legal representatives did
not therefore have time to consult, analyse and respond to the 117-page complaint and the
documents in the case file. The source states that at the hearing, all the defendants raised
the fact that they had been unable to prepare their defence in the time available.
58.
Lastly, the source alleges that because the detention of Mr. Forn, Mr. Rull, Mr.
Romeva and Ms. Bassa stems from their defence of the right of the Catalan people to self-
determination, it amounts to discrimination based on political opinion and therefore falls
under category V.
59.
The source emphasizes the link between the detainees and the political situation. The
detainees in this case are publicly recognized leaders of the political movement for the
independence of Catalonia. Furthermore, the events in question took place in Catalonia.
This provides an additional basis for considering the detention of Mr. Forn, Mr. Rull, Mr.
Romeva and Ms. Bassa to be arbitrary.
2 Decisions of 24 March 2014 and 8 January 2015.
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Response from the Government
60.
The Government notes that the detention of Mr. Forn, Mr. Rull, Mr. Romeva and
Ms. Bassa is part of a criminal case brought before the Supreme Court that has been joined
together with another case that had initially been brought before the National High Court.
The investigating judge initially decided to deprive them of their liberty, and the Criminal
Chamber of the Supreme Court later upheld and prolonged their detention.
61.
The Government notes that article 17 of the Constitution provides for the possibility
of imposing provisional detention and that the Criminal Procedure Act gives criminal
judges the power to impose it as a precautionary measure on the grounds set forth in articles
503 and 504 of the Act. Spain is subject to the rule of law and the principle of the
separation of powers; therefore, neither the legislative branch nor the executive branch have
intervened in the decisions of the judicial branch (in this case, the Supreme Court).
62.
The observations submitted by the Government are based on the decisions in the
criminal case, which are an expression of the position of the State judicial branch that
issued the detention decisions. The Government states that comments made by members of
the executive branch or members of political parties are therefore irrelevant, since the
decision to impose detention was not made by them, nor is there any indication that they
have influenced the judiciary.
63.
The Government states, in the first instance, that (a) the Venice Commission of the
Council of Europe informed the government of Catalonia that the referendum did not
comply with international standards; (b) the Government did not assume the powers of the
parliament of Catalonia, rather its functions were performed by the Permanent Committee;
(c) the investigating judge issued an indictment on 21 March 2018 and, in accordance with
the law, summoned Ms. Bassa, Mr. Romeva and Mr. Rull to appear with their defence
counsel and the plaintiffs to decide on interim protective measures; and (d) a regional high
court in Germany considered it absurd to think that political persecution existed in Spain,
while Amnesty International is of the view that there are no prisoners of conscience in
Spain.
64.
The Government stresses that the Constitution can be amended through a specific
procedure. In Spain, political parties that promote the separation of Catalonia are legal, and
the Constitution provides for mechanisms that make it possible for that to happen. As the
Constitutional Court reaffirmed in judgment No. 42/2014, “the right of the citizens of
Catalonia to decide” must be expressed through the principles of democratic legitimacy,
dialogue and legality, wholly within the framework of the reform procedures established in
the Constitution.
65.
In the Government’s view, because the independence movement did not have the
majorities required by the Constitution it decided to disregard the rule of law and to act
unilaterally. According to the Constitutional Court:
Such a serious offence against the rule of law is an equally grave violation of
the principle of democracy. The parliament has ignored the fact that the submission
of all citizens to the Constitution is another form of submission to the will of the
people, expressed as constituent power held by the Spanish people as a whole and
not by any portion thereof.3
66.
The Government points out that by controlling the government and parliament of
Catalonia and with the support of civil society organizations, the independence movement
promoted a referendum and approved unconstitutional laws that led to independence being
declared. The movement did this despite not holding the majority of votes or the qualified
majority of seats in the parliament of Catalonia required by the Statute of Autonomy.
67.
According to the Government, 68 per cent of the electorate in Catalonia participated
in the referendum of 6 December 1978 on the Spanish Constitution. Of the votes cast in
Catalonia, 90.46 per cent were in support of the Constitution, meaning that 62 per cent of
all Catalans were in favour of it. The Government points out that the independence
movement, on the other hand, has never enjoyed majority support in Catalonia.
3 STC 117/2017.
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68.
The Government notes that since the restoration of full democracy in 1977, Spain
has established itself as a strongly democratic country where the rights and freedoms of all
inhabitants are guaranteed. It highlights the widespread international recognition of the
country’s democratic transition, the cornerstone of which was the 1978 Constitution.
69.
According to the Government, the legal action taken in the case cannot be viewed as
a reaction to a legitimate political aspiration, but should be seen rather as a judicial measure
imposed in response to specific acts performed outside the rule of law. Since the decisions
relating to detention were taken, they have been upheld in several judicial rulings and the
continuation of the detention has been confirmed as necessary owing to the risk of
reoffending.
70.
The Government indicates that the detention was ordered on 2 November 2017 by
the investigating judge and was subsequently confirmed by the Criminal Chamber of the
National High Court and the Supreme Court in response to repeated requests for release
and/or bail. The Government points out that the most complete factual account of the events
on which the detention is based is contained in the 21 March 2018 decision of the
investigating judge.
71.
The factual account contained in the decision of 21 March 2018, submitted by the
Government, describes a series of events that occurred as part of the independence
movement, from the approval of a political agreement on 19 December 2012 to the events
of 1 October 2018 and the subsequent declaration of independence. It describes how the
political parties, civil society and the government and parliament of Catalonia took concrete
steps, such as the adoption of laws or resolutions, the drafting of the so-called white paper
and the issuance of calls for protests and demonstrations, in a bid to advance the goal of
independence. It also describes how State bodies such as the Constitutional Court, the
Senate and the national Government adopted resolutions or other measures that outlawed or
prohibited the actions of the independence movement or were otherwise intended to thwart
them. However, according to the factual account, the movement persisted with actions
prohibited by the State authorities.
72.
The factual account contained in the decision of 21 March 2018 includes
information about a meeting on 28 September 2017 between senior leaders of the police
force of Catalonia (Mossos d’Esquadra) and the President of the government of Catalonia,
the Vice-President Oriol Junqueras and the Minister of the Interior, Mr. Forn. The political
leaders were reportedly warned by the security services that an escalation of violence
seemed likely owing to the large number of groups that had mobilized. They were advised
not to proceed with the referendum on 1 October. According to the decision, the
“responsibility of the three members of the government present at that meeting is
essentially determined [...] by their decision to promote the referendum on the declaration
of independence and to accept or use to their advantage the violence that would inevitably
accompany the vote”.
73.
The Government states that the offences were initially categorized as sedition;
however, the investigating judge later considered that they amounted to the criminal
offence of rebellion.
74.
The decision of 21 March 2018, submitted by the Government, contains an analysis
of the element of violence required for the offence of rebellion under the terms of article
472 of the Criminal Code and the jurisprudence of the Criminal Court. The Government
states that the events of 20 September 2017 amounted to an act of violence and revealed a
risk of future rallies turning violent. According to the decision, the insistence on holding the
referendum on 1 October, in addition to accepting the risk of violence, spurred large
numbers of people to meet with force any attempt by the State to prevent it. The decision
states that:
The detailed and well thought out nature of the strategy designed to bring
about the independence of Catalonia leads to the conclusion that the main
perpetrators of the acts must always have known that the process would lead to the
instrumental use of force.
75.
The Government states that the basis for Mr. Forn’s detention stems from the fact
that he ordered the continuation of the independence process, called on the population to
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mobilize and participate and promoted the design of a Catalan police operation to enable
the vote to go ahead and to confront the State police force.
76.
According to the decision, Mr. Romeva’s detention is based on his participation in
activities intended to bring about overseas recognition of a Catalan republic through the
Public Diplomacy Council of Catalonia, the fact that he submitted for approval legislation
that supported the independence process and his participation in the demonstration on 20
September, where he encouraged the protesters. It states that Mr. Romeva placed “the
parliament in the service of the violent outcome of the referendum”.
77.
The decision states that Ms. Bassa took control of all offices belonging to her
Ministry “to ensure that the referendum would go ahead and that its outcome would be
successful”. She reportedly also gave permission for her department to bear the cost of the
vote.
78.
Lastly, the decision states that after signing the independence agreement on 30
March 2015, Mr. Rull “participated in numerous meetings to formulate the independence
strategy” and that he prevented a ferry carrying State security forces from docking at the
port of Palamós.
79.
The Government points out that it is on the basis of the above-mentioned legal
categorization that the Supreme Court upheld the continued detention. It also states that the
decision of 21 March 2018 upholding the provisional detention uses as justification the risk
of recidivism and the serious risk of flight. The decision states that:
Given the seriousness of the acts described in the indictment, the use of
institutions to carry out those acts, the intention to take the action described in the
white paper and the fact that the defendants remained committed to the general ideas
for a long period of time before the investiture, their political rights should not be
prioritized or given greater protection than the rights that this decision is intended to
preserve.
80.
The Government reports that the judiciary, in ordering pretrial detention, considered
that the requirements of article 503 of the Criminal Procedure Code had been met, namely:
(a) the acts amount to an offence punishable by more than 2 years’ imprisonment; (b) there
are sufficient grounds for holding a particular person criminally responsible; and (c) there is
deemed to be a risk of flight and of recidivism.
81.
Based on the foregoing, the Government concludes that detention is lawful as long
as it has a basis in law. In the present case, the measures have not been taken in order to
restrict rights protected by the Covenant, but rather as a consequence of the actions of the
individuals concerned, which the judge believes constitute very serious offences.
82.
In relation to the claims that the National High Court and the Supreme Court lack
competence and jurisdiction because the alleged acts took place in Catalonia, the
Government points to the decision of 9 May 2018 in which the Supreme Court considered
itself competent in view of the fact that “an offence is committed in all jurisdictions in
which any element of it occurs”. The Court considered that some of the actions that have
been taken as part of the independence movement have extended beyond the territory, for
example, canvassing for votes, the purchase of ballot boxes and the printing of ballot papers
abroad, thereby attributing jurisdiction to the Supreme Court.
83.
With regard to the alleged violation of the presumption of innocence, the
Government notes that this principle can be violated only by the judiciary and not as a
result of statements made by members of the executive branch.
84.
In relation to the allegation of a lack of time and facilities to prepare a defence, the
Government states that the detention order for the defendants issued by the investigating
judge of the National High Court on 2 November 2017 makes clear that no adjournment
was requested at the beginning of the hearing, but that an application was submitted
through the general registry after the hearing ended. Therefore, in the Government’s view,
the persons concerned showed a lack of diligence, in that they should have informed the
investigating judge at the beginning of the hearing that they wished to request an
adjournment.
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85.
In connection with the subsequent applications for release and appeals against the
denial of the same, the Government points out that during the domestic proceedings the
detainees have not alleged that the exercise of their defence has been limited by a lack of
time or of information.
86.
The Government points out that there is no discrimination in the present case and
refers to the statement by the Criminal Chamber of the Supreme Court in its decision of 5
January 2018, in which it denied one of the applications for release:
The promotion of a theory or political preference which favours the
independence of part of the national territory is legitimate. The Constitution allows
for the defence of any political position, including those that promote the elimination
of the Constitution itself and the establishment of a non-democratic regime. A
petitioner can defend the relevance of achieving the independence of a part of Spain,
or the benefit or desire to do, without committing any offence. The present lawsuit
has not therefore been initiated in order to persecute political dissidents or those who
support independence. The defendants cannot therefore be described as political
prisoners because no one is persecuted for promoting an idea, and the system allows
for the promotion of all ideas through multiple channels.
87.
The Government concludes by recalling that both a regional high court in Germany
and Amnesty International consider that political persecution does not exist in Spain.
Additional comments from the source
88.
The source submitted additional comments on the non-violent manner in which Mr.
Forn, Mr. Rull, Mr. Romeva and Ms. Bassa expressed their political opinions. In the
comments, their detention is described as arbitrary since it resulted from the exercise of
their rights to freedom of association, freedom of assembly and participation in the public
affairs of their country. The source also supplied further information concerning violations
of the detainees’ right to due process.
Discussion
89.
The Working Group thanks the source and the Government, respectively, for
submitting relevant information concerning the detention of Mr. Forn, Mr. Rull, Mr.
Romeva and Ms. Bassa.
90.
The Working Group is mandated to investigate all cases of alleged arbitrary
deprivation of liberty that are brought to its attention. In the discharge of its mandate, it
refers to the relevant international norms set forth in the Universal Declaration of Human
Rights and the Covenant. In its actions, the Working Group adheres to the rules set out in
its methods of work and refers to consistent, recognized State practice in the processing of
individual communications.
91.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations.4
92.
In the present case, the Working Group notes that Mr. Forn, Mr. Rull, Mr. Romeva
and Ms. Bassa are public figures known for their work in support of the independence of
Catalonia. In addition, they have held positions in political parties, the civil service and the
parliament. The Working Group was persuaded that they have been deprived of their liberty
since November 2017 and for most of the duration of the lawsuit.
Category II
93.
The Working Group emphasizes that everyone has the right to freedom of
expression, which includes the right to impart information and ideas of all kinds, whether
orally or in any other form. In addition, the Working Group reiterates that the exercise of
4 A/HRC/19/57, para. 68.
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11
this right may be subject to restrictions that are expressly provided for by law and are
necessary to ensure respect for the rights or reputation of others, or for the protection of
national security or of public order, health or morals.5
94.
The Working Group shares the view of the Human Rights Committee that freedom
of opinion and freedom of expression are indispensable conditions for the full development
of the person and constitute the cornerstone of a free and democratic society. 6 Both
freedoms are the basis for the effective exercise of a wide range of human rights, such as
freedoms of assembly, association and political participation, as set forth in articles 20 and
21 of the Universal Declaration of Human Rights and articles 21, 22 and 25 of the
Covenant.7
95.
In the view of the Working Group, the importance of freedom of opinion is such that
no government may infringe other human rights on the basis of a person’s actual or
perceived opinions, whether of a political, scientific, historical, moral, religious or any
other nature. Consequently, criminalizing the expression of an opinion is incompatible with
the Universal Declaration of Human Rights and the Covenant. This implies that
harassment, intimidation or stigmatization of a person, including by means of arrest,
detention, trial or imprisonment, on the basis of his or her opinions constitute violations of
the Covenant.8
96.
It is also important to note that freedom of opinion and expression includes the
opportunity to express the way in which peoples may freely choose their political system,
constitution or government, which points to the link with other human rights. The Human
Rights Committee has stated that:
The rights under article 25 are related to, but distinct from, the right of
peoples to self-determination. By virtue of the rights covered by article 1 (1),
peoples have the right to freely determine their political status and to enjoy the right
to choose the form of their constitution or government. Article 25 deals with the
right of individuals to participate in those processes which constitute the conduct of
public affairs.9
97.
The Working Group, noting that referendums are permitted in Spain on a wide range
of topics, considers that calls issued by individuals or organizations for the implementation
of processes that promote public participation are legitimate forms of the exercise of the
rights to freedom of opinion and freedom of expression.
98.
The Working Group noted that, on 20 and 21 September 2017, public
demonstrations took place in support of a referendum on the independence of Catalonia and
that some demonstrators engaged in clashes or confrontations with the police. In this
regard, the Working Group did not receive convincing information from the Government
that Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa should be held responsible for these
incidents.
99.
On the basis of information from the parties, the Working Group verified that Mr.
Forn, Mr. Rull, Mr. Romeva and Ms. Bassa were in fact among the thousands of people
who took part in the September demonstrations, which were coordinated by a number of
organizations.
100.
The Working Group, on the basis of information provided by both parties, was able
to verify that Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa were charged with sedition in
connection with the demonstration or social protest held on 20 and 21 September 2017, and
that the charge was subsequently changed to rebellion.
5 Opinion No. 58/2017, para. 42.
6 General comment No. 34 on freedoms of opinion and expression, para. 2.
7 Ibid., para. 4.
8 Ibid., para. 9.
9 General comment No. 25 on the right to participate in public affairs, voting rights and the right of
equal access to public service, addendum, para. 2.
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101.
The Government provided information on the independence process in Catalonia
and the clashes between demonstrators and the police during the September protests. It did
not provide information on any non-peaceful exercise of rights or individual actions on the
part of the defendants that could be considered violent and that therefore amounted to
offences under applicable law, including international law.
102.
The Working Group is aware that violence is an essential component of the legal
classification of the offences of sedition and rebellion. In that context, the Working Group
was persuaded that the actions of Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa, both
before and after the demonstrations of 20 and 21 September 2017, were not violent, that the
defendants did not seek to incite violence and that their conduct did not result in any violent
events or acts. On the contrary, their actions amounted to the peaceful exercise of rights and
freedoms protected by the Covenant.
103.
Furthermore, on the basis of the information received, the Working Group is not
persuaded that other acts attributable to Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa
with the aim of organizing a referendum can be considered criminal.
104.
In the view of the Working Group, the detention of Mr. Forn, Mr. Rull, Mr. Romeva
and Ms. Bassa from the outset of the criminal proceedings appears unreasonable when
analysed against the backdrop of the tumultuous political context in which the charges were
brought, with a group of well-known members of the independence movement arrested just
a few days after the referendum was held.10 In the light of the information received, the
Working Group cannot disregard the fact that the defendants are known for their work to
promote independence for Catalonia.
105.
Furthermore, in this context, the Working Group considers relevant the statements
made by senior government officials in which they spoke of decapitating the leadership of
the independence movement and described Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa
as having engaged in violent conduct in the context of social protests.11
106.
In this respect, the Special Rapporteur on the promotion and protection of the right
to freedom of opinion and expression raised concerns regarding the arrests, insofar as they
were directly related to calls for mobilization and public participation made in the context
of the referendum. He also expressed his concern that the charge of rebellion could be
considered disproportionate and therefore incompatible with the obligations of Spain under
international human rights law.12
107.
The Working Group considers it relevant to note that a German court, in its
consideration of the extradition of another defendant charged alongside Mr. Forn, Mr. Rull,
Mr. Romeva and Ms. Bassa, found that the alleged acts did not involve violence, which is a
necessary component of the offence of rebellion. The court therefore established that the
actions attributed to the person whose extradition had been requested could not be
interpreted as a violent political attempt to overthrow the Government. It stated that the
defendants were seeking independence using democratic means.13
108.
In this context, the Working Group received convincing information, which was not
refuted by the Government, that Mr. Forn offered to relinquish his political role in an
attempt to be released. In other words, he was driven to give up his freedom of opinion and
expression and his right to participate in public life in an attempt to put an end to his
detention. Similarly, Ms. Bassa returned her certificate of election in the context of the
criminal proceedings against her.
109.
The absence of violence and the lack of persuasive information regarding any
specific, individual acts attributable to Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa that
would link them to prohibited conduct have led the Working Group to find that the purpose
of the criminal charges brought against them and the ensuing lawsuit is to intimidate them
10 Opinion No. 6/2019, para. 118.
11 See paras. 41, 47 and 55 above.
12 AL ESP 1/2018.
13 Decision of the Regional High Court of Schleswig-Holstein, 12 July 2018.
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13
because of their political views and expression regarding the independence of Catalonia and
to prevent them from pursuing that cause by political means.
110.
In the light of the foregoing, the Working Group has been persuaded that the
detention of Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa resulted from the exercise of
their rights to freedom of thought, opinion, expression, association, assembly and political
opinion, in violation of articles 18–21 of the Universal Declaration of Human Rights and
articles 19, 21, 22 and 25 of the Covenant. Their detention is therefore arbitrary under
category II.
Category III
111.
In the light of the findings in relation to category II, under which it was concluded
that the detention resulted from the exercise of human rights, the Working Group considers
the pretrial detention and prosecution of the defendants to be disproportionate and
unjustified. Nevertheless, since a trial is taking place, with long prison sentences being
requested, and in view of the claims made by the source, the Working Group will analyse
whether, during the course of the judicial proceedings, the fundamental elements of a fair,
independent and impartial trial have been respected.
Presumption of innocence
112.
Article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the
Covenant recognize the right of all persons charged with a criminal offence to be presumed
innocent. This right imposes a number of obligations on all State institutions to treat
persons accused of a criminal offence as innocent until they have been found guilty beyond
any reasonable doubt. In the view of the Working Group, as well as that of the Human
Rights Committee, this right carries an obligation for all public authorities, including the
executive branch, to avoid prejudging the outcome of a trial, which means refraining from
making public statements affirming the guilt of the accused.14
113.
The Working Group has determined that statements publicly condemning the
accused person before a sentence has been passed violate the presumption of innocence and
constitute undue interference that undermines the independence and impartiality of the
court.15
114.
The European Court of Human Rights has stated that the public statements of high-
ranking officials violate the right to presumption of innocence if such statements declare
persons guilty of an offence for which they have not yet been tried, thereby leading the
public to believe them guilty and prejudging the assessment of the facts by the competent
judicial authority.16
115.
In the present case, the Working Group was satisfied that the Deputy Prime Minister
of Spain made statements congratulating the Prime Minister for successfully decapitating
the Catalan pro-independence parties by arresting their leaders. The Working Group also
received credible information regarding statements made by the Minister of the Interior, in
which he referred to the leaders of the independence movement as reckless and dangerous
rebels.
116.
In the light of the statements made by high-ranking government officials
prematurely attributing guilt to the independence leaders, which could influence how they
are viewed by the courts, the Working Group has been persuaded that the right of Mr. Forn,
Mr. Rull, Mr. Romeva and Ms. Bassa to be presumed innocent has been violated, in breach
14 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial,
para. 30. See also Human Rights Committee, CCPR/C/112/D/1773/2008, para. 9.8.
15 Opinions No. 90/2017, No. 76/2018 and No. 89/2018.
16 European Court of Human Rights, Allenet de Ribemont v. France, para. 41; Daktaras v. Lithuania,
para. 42; Petyo Petkov v. Bulgaria, para. 91; Peša v. Croatia, para. 149; Gutsanovi v. Bulgaria, paras.
194–198; Konstas v. Greece, paras. 43 and 45; Butkevičius v. Lithuania, para. 53; Khuzhin and Others
v. Russia, para. 96; Ismoilov and Others v. Russia, para. 161.
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of article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the
Covenant.
Pretrial detention
117.
It is an established norm of international law that pretrial detention should be the
exception, rather than the rule, and should be ordered for the shortest possible time. Article
9 (3) of the Covenant requires that the justification for pretrial detention should be analysed
in a reasoned judicial decision in every case. This provision also establishes that “release
may be subject to guarantees to appear for trial, at any other stage of the judicial
proceedings and, should occasion arise, for execution of the judgement”. It follows that
detention should be an exceptional measure used in the interests of justice. The provisions
of article 9 (3) of the Covenant can be summarized as follows: any detention should be
exceptional and short-term, and the accused person should be released if there are measures
in place to guarantee that he or she will appear for trial and for execution of the judgment.
If the period of pretrial detention is extended, there should be an increased likelihood of
granting bail.
118.
In the present case, the defendants were arrested in November 2017, released in
December 2017 and detained again from March 2018 onward. They have thus been held in
pretrial detention for most of the trial, which has not yet ended. The source has indicated
that conditional release has been denied on the basis of the alleged risk that they might
repeat their call for independence, since this could lead to new public demonstrations. The
Working Group concluded that the detention is arbitrary, since it stems from the exercise of
the right to freedom of opinion, expression, association, assembly and participation.
Furthermore, it has not been established that either the judiciary or the Government carried
out an analysis and determined, as required by the Covenant, that there are legitimate,
necessary and proportional grounds for restricting these human rights through deprivation
of liberty during the trial. Consequently, the Working Group can only conclude that this
continued application of pretrial detention violates article 9 (3) of the Covenant.
Right to be tried by a competent, independent and impartial tribunal
119.
According to article 14 (1) of the Covenant, everyone shall be entitled to a fair
hearing by a competent, independent and impartial tribunal in the determination of any
criminal charge against them. The Working Group considers that the requirement of
impartiality demands that judges must not allow their judgment to be influenced by
personal bias or prejudices, nor harbour preconceptions about the particular case before
them, nor act in ways that promote the interests of the parties. The tribunal must also appear
to a reasonable observer to be impartial.17
120.
The Working Group has found that the criminal prosecution of individuals accused
of offences committed in a particular territory by courts located in another jurisdiction
constitutes a violation of the right to a hearing before a competent court if national
legislation expressly attributes competency to the jurisdiction that corresponds to the place
in which the offence is alleged to have been committed.18
121.
In the present case, the Working Group was convinced that the territorial, personal
and material jurisdiction to investigate and adjudicate on possible criminal acts fell to the
Catalan courts, since the offences were allegedly committed in Catalan territory by officials
of the Catalan government and parliament. In addition, the Working Group received
credible information according to which the Catalan courts have heard complaints relating
to the movement in favour of independence from Spain. Moreover, the Working Group was
not convinced that the natural judge of the alleged offences in the present case is the courts
that are currently hearing them.
17 General comment No. 32, para. 21.
18 Opinion No. 30/2014.
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15
122.
Like the Human Rights Committee, the Working Group considers that:
States should take specific measures guaranteeing the independence of the
judiciary, protecting judges from any form of political influence in their decision-
making through the constitution or adoption of laws [...]. A situation where the
functions and competencies of the judiciary and the executive are not clearly
distinguishable or where the latter is able to control or direct the former is
incompatible with the notion of an independent tribunal.19
123.
The Working Group considers that the statement by the Deputy Prime Minister
recognizing the Prime Minister’s political achievement of decapitating the independence
movement by detaining its leaders, together with the fact that the pretrial detention of Mr.
Forn, Mr. Rull, Mr. Romeva and Ms. Bassa was ordered by the judiciary in contravention
of Covenant rights, gives rise to a situation that affects the perception of the lack of
impartiality of the court for any reasonable observer.
124.
For the reasons given above, the Working Group considers that the right of Mr.
Forn, Mr. Rull, Mr. Romeva and Ms. Bassa to a hearing by a competent and impartial
tribunal, as recognized in article 10 of the Universal Declaration of Human Rights and
article 14 (1) of the Covenant, was disregarded.
Right to adequate time and facilities for the preparation of a defence
125.
Article 14 (3) (b) of the Covenant recognizes the right of every person to have
adequate time and facilities for the preparation of a defence, which is an important
guarantee of a fair trial and the principle of equality of arms.20 Adequate facilities for a
defence include, inter alia, early access to all materials, documents and other evidence that
the prosecution plans to offer in court.21
126.
The Working Group shares the view that if the lawyers consider that the time
offered for the preparation of a defence is not sufficiently reasonable, they may request the
adjournment of the trial, and the authorities are, in principle, obliged to grant such a
request. It is important to note that “there is an obligation to grant reasonable requests for
adjournment, in particular, when the accused is charged with a serious criminal offence and
additional time for preparation of the defence is needed”.22
127.
In addition, as the Human Rights Committee has also pointed out, having adequate
facilities to prepare a defence includes access to all materials, documents and other
evidence that the prosecution plans to present to the court.23
128.
In the present case, the Working Group has been persuaded that Mr. Forn, Mr. Rull,
Mr. Romeva and Ms. Bassa did not have adequate time to prepare their defence, in view of
the very short period of time between their being summoned to appear in court and the
hearing itself, and given the size of the case file. In addition, it found that the defendants
were not allowed additional time to prepare their defence and that this limited their access
to the facilities necessary for their legal protection. The foregoing amounts to a violation of
the right recognized in article 11 (1) of the Universal Declaration of Human Rights and
article 14 (3) (b) of the Covenant.
129.
In the light of the foregoing, the Working Group is convinced that the deprivation of
liberty of Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa undermined the fundamental
safeguards of due process and a fair trial, in particular the rights to presumption of
innocence, to a hearing by a competent tribunal and to an adequate defence, in violation of
the provisions of articles 9, 10 and 11 of the Universal Declaration of Human Rights and
articles 9 and 14 of the Covenant, and gives the deprivation of liberty an arbitrary character
under category III.
19 General comment No. 32, para. 19.
20 Ibid., para. 32.
21 Ibid., para. 33.
22 Ibid., para. 32.
23 Ibid., para. 33.
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Category V
130.
The Working Group has found that deprivation of liberty is arbitrary when it is
intended to punish members of political groups as a means of silencing their calls for self-
determination.24
131.
In the present case, the Working Group has found that the detention of Mr. Forn, Mr.
Rull, Mr. Romeva, Ms. Bassa and other leaders of the independence movement 25 was
carried out as a result of a concerted effort made by the national apparatus for the
enforcement and administration of justice against certain leaders of the Catalan
independence movement, and that those efforts enjoyed the public political backing of
high-ranking officials within the Spanish Government, including expressions of support for
decapitating the movement. The detention undermined the principle of the equality of
human beings because it was motivated by their political opinions as leaders, in violation of
the provisions of article 2 of the Universal Declaration of Human Rights and article 3 of the
Covenant, and is therefore arbitrary under category V.
132.
The Working Group, in accordance with paragraph 33 (a) of its methods of work,
has decided to refer information relating to the rights of freedom of opinion, expression,
assembly and association received in the context of the present case to the Special
Rapporteur on the rights to freedom of peaceful assembly and of association and the
Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression.
Disposition
133.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Joaquín Forn, Josep Rull, Raúl Romeva and
Dolores Bassa, being in contravention of articles 2, 9–11 and 18–21 of the Universal
Declaration of Human Rights and articles 2, 14, 19, 21, 22, 25 and 26 of the
Covenant, is arbitrary and falls within categories II, III and V.
134.
The Working Group requests the Government of Spain to take the steps necessary to
remedy the situation of Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa without delay and
to bring it into conformity with the relevant international norms, including those set out in
the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights.
135.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Forn, Mr. Rull, Mr. Romeva and Ms.
Bassa immediately and accord them an enforceable right to compensation and other
reparations, in accordance with international law.
136.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Forn, Mr. Rull, Mr. Romeva and Ms. Bassa and to take appropriate measures against those
responsible for the violation of their rights.
137.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the rights to freedom of peaceful
assembly and of association and the Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression.
138.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
24 Opinion No. 11/2017.
25 Opinion No. 6/2019.
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17
Follow-up procedure
139.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa have been released
and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Forn, Mr.
Rull, Mr. Romeva and Ms. Bassa;
(c)
Whether an investigation has been conducted into the violations of the rights
of Mr. Forn, Mr. Rull, Mr. Romeva and Ms. Bassa and, if so, the outcome of the
investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Spain with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
140.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
141.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
142.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has requested them to take account of its
views and, where necessary, to take appropriate steps to remedy the situation of persons
arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have
taken.26
[Adopted on 26 April 2019]
26 Human Rights Council resolution 33/30, paras. 3 and 7.