A/HRC/WGAD/2019/6

GE.19-09609 (E) 180719 220719



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. 6/2019 concerning Jordi Cuixart I Navarro, Jordi Sánchez

I Picanyol and Oriol Junqueras I Vies (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 8 August 2018 the

Working Group transmitted to the Government of Spain a communication concerning Jordi

Cuixart I Navarro, Jordi Sánchez I Picanyol and Oriol Junqueras I Vies. After requesting an

extension of the deadline for submitting a response, the Government responded to the

allegations on 8 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,

United Nations

A/HRC/WGAD/2019/6

General Assembly

Distr.: General

13 June 2019

English

Original: Spanish

A/HRC/WGAD/2019/6

2

GE.19-09609

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Jordi Cuixart I Navarro is a member and the president of Òmnium Cultural, an

association that seeks to protect the culture and language of Catalonia.

5.

Jordi Sánchez I Picanyol was president of the Catalan National Assembly, an

organization dedicated to achieving the independence of Catalonia through democratic and

peaceful means; he organized two major protests that took place on 11 September 2012 and

11 September 2013. Mr. Sánchez was elected as a member of the parliament of Catalonia

for the term starting in 2018. He led a movement dedicated to the defence of the Catalan

language, culture and nation between 1983 and 1994.

6.

Oriol Junqueras I Vies was Vice-President of the Government of Catalonia and the

Minister of Economic Affairs and Finance. He was Mayor of San Vicente dels Horts

between 2011 and 2015 and a member of the European Parliament between 2009 and 2012.

He was elected as President of the Esquerra Republicana party in 2011 and as a member of

the parliament of Catalonia in 2012; he was re-elected in December 2017.

7.

According to the information received, on 20 and 21 September 2017, there was a

public demonstration in Barcelona in support of a referendum on the issue of Catalan

independence.

8.

On 22 September 2017, the Attorney General’s Office filed a complaint for sedition

in view of the events that had occurred during the demonstration. On 27 September, the

National High Court in Madrid declared its jurisdiction over the case. On 3 October, it

summoned Mr. Cuixart and Mr. Sánchez to give evidence, as persons under investigation,

at a hearing on 6 October 2017.

9.

On 16 October 2017, the court of investigation of the National High Court in Madrid,

after having taken their statements, ordered the provisional detention of Mr. Cuixart and Mr.

Sánchez, who appealed against the decision. In the order, the judge confirmed his

jurisdiction and ruled in favour of detention, on the basis of the severity of the penalty that

would be applicable in their case.

10.

On 6 November 2017, the appeal was dismissed. The source points out that the

ruling of the appeal court was not unanimous. One judge considered the detention to be

disproportionate on the grounds that the allegations and their legal classification were so

vague as to fall short of minimum standards of legal certainty.

11.

On 27 October 2017, the parliament of Catalonia approved a unilateral declaration

of independence. In response, on the same day, the Government of Spain invoked article

155 of the Constitution and decided to suspend all members of the parliament of Catalonia

and to dissolve this body.

12.

On 30 October 2017, the Attorney General’s Office filed a complaint for rebellion,

sedition and misappropriation of funds against the newly removed members of the

Government of Catalonia, including Mr. Junqueras. The source alleges that the complaint

did not specify the facts that constituted offences.

13.

According to the information received, on 31 October 2017, the National High Court

declared its jurisdiction over the case of Mr. Junqueras and summoned him to give evidence

two days later. On 2 November 2017, Mr. Junqueras testified before the court and was

placed in detention by order of the central court of investigation.

14.

The source points out that, in its decision to impose provisional detention, the court

considered that Mr. Junqueras had had the time and facilities to prepare his defence, even

though his lawyer was absent and the acts with which he was charged were not specified.

15.

The cases of Mr. Cuixart and Mr. Sánchez were joined with that of Mr. Junqueras

and brought before the Supreme Court, because of Mr. Sanchez’ status as a member of the

A/HRC/WGAD/2019/6

GE.19-09609

3

Government of Catalonia. On 22 November 2017, the court of investigation submitted

information to the Supreme Court. According to the source, the judge described a complex

organization, whose aim was to bring about the secession of Catalonia and to change the

political structure of the State.

16.

The source notes that, far from being limited to the charges that concerned the

events of 20 and 21 September 2017, the information that was submitted to the Supreme

Court went back to 2015. However, there was no allegation that specific, concrete acts had

been committed, other than acts that did not constitute damage or offence.

17.

The Supreme Court ruled in favour of joining the cases on 24 November 2017 and

confirmed the decision to impose detention on 4 December 2017.

18.

Following the dissolution of the parliament of Catalonia, elections were held on 21

December 2017, in which Mr. Sánchez and Mr. Junqueras were elected.

19.

On 9 January 2018, Mr. Junqueras requested to be transferred to a place of detention

closer to Barcelona and to be released temporarily so as to be able to attend the opening

session of parliament on 17 January. On 12 January, his request was denied on the grounds

that there was a risk of a public confrontation.

20.

The source notes that, on 24 January 2018, another detainee and co-defendant in the

trial who had been elected as a member of parliament resigned from his post and undertook

not to engage in political activities or to form part of the Government of Catalonia. It is

alleged that he did this in order to secure his release.

21.

On 5 March 2018, Mr. Sánchez accepted the nomination to be sworn in as President

of the Government of Catalonia. He therefore requested to be released to attend the

ceremony, but his request was denied on 9 March 2018. He therefore had to turn down the

nomination.

22.

On 21 March 2018, Mr. Sánchez submitted a request for interim measures to the

Human Rights Committee, which were granted on 23 March 2018. The Committee asked

the Government to take the measures necessary to enable Mr. Sánchez to exercise his

political rights. According to the source, the Government did not comply with this request.

23.

On 21 March 2018, the Supreme Court issued an indictment for rebellion in respect

of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras, confirming their detention.

24.

According to the source, the detainees’ defence counsel has filed several petitions

for amparo, which have been rejected or ignored. All applications for release have been

refused in general terms, without reference to individual cases and simply on the grounds

that the desire for independence generates a risk of recidivism.

25.

The source argues that the detainees could not have been accused of committing,

planning or instigating violence. In the indictment of 21 March 2018, it is acknowledged

that the defendants’ actions consisted of participating in public demonstrations. The

violence of a few individuals unconnected with the accused cannot be attributed to them.

26.

The source puts forward a decision handed down by a high court in Germany, which,

in considering a request for the extradition of a co-defendant, the former President of the

Government of Catalonia found that no violence of the kind that constitutes the offence of

rebellion had been committed. It was noted that the accused had not planned to use or

actually used violence or force, but rather had opted for the use of democratic means, such

as the referendum.

27.

The source claims that the detention results from the exercise of rights and freedoms

enshrined in articles 18–21 of the Universal Declaration of Human Rights and articles 19,

21, 22 and 25 of the Covenant.

28.

Regarding the order of 16 October 2017, which imposed detention for the offence of

sedition, the source claims that the charges brought by the Public Prosecution Service were

based solely on the events of 20 and 21 September 2017. The detention order, however,

refers to a wide range of events that occurred before, during and after those days.

A/HRC/WGAD/2019/6

4

GE.19-09609

29.

According to the source, as regards the participation of Mr. Cuixart, Mr. Sánchez

and Mr. Junqueras in the events of 20 and 21 September 2017, the investigation revealed

only that they had freely exercised their right to protest. The source considers that such acts

do not constitute a legal basis for detention but are, on the contrary, protected by human

rights law.

30.

According to the source, the demonstrations were organized by many individuals

and organizations, trade unions, universities, political parties and associations, none of

whom are facing criminal prosecution or detention. The demonstrations were in support of

exercising the right to self-determination through a referendum.

31.

The source notes that Mr. Cuixart called for the demonstrations to be peaceful. Mr.

Cuixart and Mr. Sánchez are known for promoting non-violence. None of the protests

organized by the Òmnium Cultural association in its 56 years of existence have been

violent. According to the source, the National High Court acknowledged that Òmnium

Cultural had legitimate objectives.

32.

It is noted that one National High Court judge considered that the events of 20 and

21 September 2017 reflected the legitimate exercise of the right to peaceful demonstration,

in accordance with the law. Citizens were called to mobilize in order to protest against a

situation that had arisen and that they did not agree with. The aim of the demonstration was

not to defy and violate court orders but to exercise the right to protest. It was therefore a

matter of individuals and their organizations exercising a legitimate right within the

framework of the law.

33.

The source mentions that the indictment included, as part of the criminal

proceedings, other actions that are not punishable and that are protected by articles 21 and

22 of the Covenant, such as organizing massive, peaceful, one-off, mobile and spectacular

gatherings, calling for a strike, and participating in rallies and demonstrations. In other

words, the legitimate exercise of a political activity, which does not justify detention.

34.

In addition, the source argues that the detention resulted from the exercise of their

right to freedom of opinion and expression, which was allegedly treated as a criminal

offence. The detention was the result of giving public and peaceful expression to a desire

for independence.

35.

The source notes that calling for support for a referendum was decriminalized in

Spain through Organic Act 2/2015 on the basis that it is a legitimate means of exercising

freedom of expression, in accordance with articles 20 and 21 of the Constitution.

36.

Mr. Cuixart, Mr. Sánchez and Mr. Junqueras have repeatedly expressed their

political opinion on the situation in Catalonia in a peaceful manner. There is no evidence

that their actions were violent, that they incited violence or that they actually caused

violence. The only acts of violence mentioned in the indictment are those of the Spanish

police, which cannot be attributed to the accused.

37.

It is noted that the political opinion of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras

is the basis for their detention, as implied in the order of 5 January 2018. The judge stated

that the detention of Mr. Junqueras was justified not by the danger that he posed but by the

likelihood that he would continue to engage in the same political activities. This is

tantamount to detaining a person because of his or her opinions and beliefs.

38.

It is claimed that the detention results from the exercise of the right to participate in

political affairs. According to the source, there is a broad consensus that the defendants, and

citizens in general, had the right to vote in the referendum of 1 October 2017. The aim and

effect of the detention is to restrict the right to transmit ideas, including the call to vote, and

to prevent the defendants from standing as candidates and from taking office, if elected.

39.

The source notes that, in various decisions, the judges have concluded that the risk

of criminal activity is linked to political responsibilities and that the practical purpose of the

detention is to prevent the defendants from taking part in public affairs.

40.

Mr. Sánchez was a candidate in the parliamentary elections of 21 December 2017,

yet he was unable to participate in the campaign or to vote, despite the role he played and

his subsequent victory. He was then prevented from taking office as a member of

A/HRC/WGAD/2019/6

GE.19-09609

5

parliament. The aim and consequence of his detention is to deprive him of his right to

political participation.

41.

According to the source, Mr. Junqueras was also deprived of his right to take part in

the campaign and to be elected. He was prevented from taking office as a member of

parliament and from attending the opening session of parliament.

42.

The source refers to the case of another Catalan leader, who was also detained and

prosecuted, and who gave up his role in politics in exchange for a promise of release. It is

alleged that, by being placed in detention, he was forced to give up his rights in the hope of

regaining his freedom.

43.

The source argues that the Government’s objective is clear from statements made by

the then Deputy Prime Minister of Spain, in which she congratulated the Prime Minister for

successfully decapitating and eliminating the leaders of the independence movement. The

source also draws attention to statements made by the Minister of the Interior, in which he

threatened to prosecute and detain two other politicians for preparing lists for the elections

of December 2017.

44.

The source alleges that the detention is arbitrary because it violates the international

standards set forth in articles 9–11 of the Universal Declaration of Human Rights, articles 9

and 14 of the Covenant, and the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment.

45.

The source also argues that the National High Court has no jurisdiction over the case,

since it claimed to have jurisdiction on the basis that the offence of sedition, when

committed with the aim of changing the territorial organization of the State, should be

considered an offence against the form of government in place. The source argues that this

is an erroneous interpretation of the law, which is being used to give the National High

Court jurisdiction over the case in accordance with article 65 (1) of the Organic Act on the

Judiciary.

46.

The source argues that the offence over which the National High Court has

jurisdiction has, in the past, been applied only to attacks on the form of government

established in the Constitution, namely a parliamentary monarchy, and is not applicable to

situations involving structural change and reorganization at the regional level. It is

unprecedented and unjustifiable to extend the scope of the offence to cover the allegations

made against the detainees.

47.

According to the source, the National High Court has jurisdiction only over certain

specific offences, which do not include sedition. In a ruling handed down on 2 December

2008, the Court established that rebellion had never fallen within its jurisdiction. The Court

has not provided any justification for its change of approach in this regard.

48.

The source argues that transferring the case to the Supreme Court does not

compensate for these 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. The source claims that the competent court is the High Court of

Catalonia, since the territory of Catalonia is where the alleged offence was committed.

49.

According to the source, the events described show that the courts that are keeping

Mr. Cuixart, Mr. Sánchez and Mr. Junqueras in detention are not competent, independent or

impartial. The source claims that the statement made by the Deputy Prime Minister clearly

indicates that the trial is not being conducted independently, not only because she referred

to the decapitation of political leaders but also because she described this act as an

achievement by the Prime Minister.

50.

The source considers that the courts’ lack of jurisdiction over these matters and their

lack of independence and impartiality affected their decisions, including the decision to

place Mr. Cuixart, Mr. Sánchez and Mr. Junqueras in detention. This deprivation of liberty

would therefore constitute a violation of articles 9 and 10 of the Universal Declaration of

Human Rights and articles 9 and 14 of the Covenant.

51.

As regards Mr. Cuixart and Mr. Sánchez, the judge ordered their detention on the

basis of the sedition charges brought in connection with the events of 20 and 21 September

A/HRC/WGAD/2019/6

6

GE.19-09609

2017; however, he also referred to a series of events that had occurred before and after

those dates and to places where the accused had not been present. In a hearing on 11

January 2018, Mr. Cuixart’s defence counsel asked the judge to provide details of the

specific acts and offences with which he was being charged, as there was some uncertainty

on this point. No response was given to this request.

52.

The source claims that sedition requires a riotous public uprising, which is different

from a declaration of independence and demonstrations in favour of a referendum. Spanish

doctrine has established that it is impossible for the legislator to have criminalized peaceful

collective opposition to the actions of law enforcement officers or public servants.

Supporting self-determination is not a crime but a right, protected by articles 16 and 22 of

the Constitution.

53.

According to the source, Mr. Cuixart and Mr. Sánchez called for a civic and

peaceful demonstration and insisted that there should be no violence of any kind. The

damage to vehicles that has been attributed to them was caused by unidentified individuals

with whom they have no connection. The Civil Guard has acknowledged that other

participants in the demonstration tried to protect vehicles from damage.

54.

The source notes that, in a dissenting opinion, one of the National High Court judges

urged his colleagues to take care to establish the facts from an objective, criminal justice

perspective and not to stray from the facts as a result of supposition, subjectivity and

prejudice. When the facts are analysed, it is not possible to identify any offence.

55.

According to the source, Mr. Junqueras was detained for rebellion, another offence

for which there is no evidence. Article 472 of the Criminal Code defines rebellion as a

violent public uprising staged for various purposes, such as declaring the independence of a

part of national territory. In order to constitute rebellion, the act must have been committed

in the context of an armed, or at least violent, confrontation.

56.

The source reports that the former chief prosecutor of the High Court of Catalonia

stressed that the democratic behaviour of more than 1 million citizens who were exercising

their right to demonstrate peacefully could not be considered to constitute violence, let

alone rebellion.

57.

According to the source, declaring the independence of a part of national territory

cannot be classed as rebellion. An act cannot be considered to constitute rebellion unless it

involves violence. The source claims that there was no violence at any stage of the process,

except that of the national police, for which the detainees cannot be held responsible.

58.

Sedition, meanwhile, is an offence that is defined in article 544 of the Criminal Code,

that requires a violent collective uprising aimed at the repeal of legislation. The source

argues that a peaceful protest cannot be classed as sedition. The acts of calling and

participating in a referendum were decriminalized in 2005.

59.

The source reports that the courts of Catalonia have been receiving complaints of

sedition relating to pro-independence acts for years (for example, the decisions of 24 March

2014 and 8 January 2015). Since 2014, the courts have been rejecting these complaints

(over which they have exclusive territorial jurisdiction), on the grounds that they do not

involve violence and the persons concerned cannot be held responsible for specific acts.

60.

According to the source, the judge deemed that Mr. Junqueras was responsible for

the violence but that he did not take part in, anticipate or cause the violence. The detention

order did not specify the acts allegedly committed by Mr. Junqueras and failed to establish

whether his conduct warranted deprivation of liberty.

61.

The source draws attention to the principle that the presumption of innocence is

considered to have been violated if an official statement about an accused person suggests

that he or she is guilty when no such verdict has been reached by a court. It claims that such

a violation occurred when the Prime Minister described the independence movement and its

leaders as reckless, and even dangerous, rebels, and when the Deputy Prime Minister

announced that the Government had successfully decapitated the movement’s leaders.

62.

The source adds that, contrary to the presumption of innocence, the court of appeal

of the National High Court declared that some facts are common knowledge and do not

A/HRC/WGAD/2019/6

GE.19-09609

7

need to be proved. It stated, for example, that it was a known fact that Mr. Cuixart stood on

top of a national police vehicle. However, this fact must be interpreted in context, as it is a

source of disagreement: while standing on the vehicle, Mr. Cuixart called on the crowd to

stop the demonstration, so this act cannot be used against him without any explanation of

the context.

63.

According to the source, the detention clearly violates the principle of the

presumption of innocence, which is enshrined in article 11 (1) of the Universal Declaration

of Human Rights and article 14 (2) of the Covenant.

64.

The source also alleges a violation of the right of defence, which implies that the

individual should have the time and means to prepare arguments and evidence in his or her

favour. Mr. Cuixart and Mr. Sánchez were summoned on 3 October 2017 to appear at a

hearing on 6 October. Mr. Junqueras was given even less time, as he was summoned on 1

November 2017 to make a statement on 2 November 2017, after which he was placed in

detention. Nevertheless, the order of 2 November 2017 stated that the accused had had

sufficient time to prepare his defence, despite the fact that his lawyer was not present.

65.

The source explains that the court received the complaint from the Public

Prosecution Service on 31 October. The following day (1 November, a public holiday), Mr.

Junqueras received a summons, which meant that he and his lawyer had to set off

immediately in order to arrive in time for the hearing, as Madrid is 630 km away from

Barcelona. This did not give the defence lawyer enough time to read, process and respond

to the 117-page indictment, let alone the whole case file.

66.

Mr. Junqueras’ lawyer could not attend the hearing because he was also serving as

the defence lawyer for other members of parliament who had been summoned before the

Supreme Court the same day, a fact that the National High Court ignored. Far from

postponing the hearing, the judge decided to proceed in the absence of the defence lawyer.

That day, all the defendants raised the fact that they had been unable to prepare their

defence in the time available.

67.

Lastly, the source claims that the detention constitutes discrimination based on

political opinion, since it results from efforts to defend the right of Catalans to self-

determination. The source emphasizes the link between the detainees and the political

situation. The detainees are publicly associated with the independence movement.

Furthermore, the events in question and their arrest took place in Catalonia. These facts

provide further grounds for declaring that the detention of Mr. Cuixart, Mr. Sánchez and Mr.

Junqueras is arbitrary and violates their fundamental rights.

68.

The source concludes by requesting that the detention be declared arbitrary under

categories II, III and V.

Response from the Government

69.

On 8 August 2018, the Working Group transmitted to the Government the

allegations made by the source and requested that it provide detailed information, by 8

October 2018, on the factual and legal basis for the detention, as well as its compatibility

with the international human rights obligations of Spain. In response to a request from the

Government, the deadline for its response was extended to 8 November 2018.

70.

In its response, the Government notes that the detention of Mr. Cuixart, Mr. Sánchez

and Mr. Junqueras was ordered in a criminal case that has been brought before the Supreme

Court, joined with a case that was initially brought before the National High Court. The

detention was ordered by the investigating judge, and confirmed by the Criminal Division

of the Supreme Court, for the duration of the proceedings, in which no verdict has yet been

reached.

71.

The Government notes that article 17 of the Constitution provides for the possibility

of imposing provisional detention and that the Criminal Procedure Act gives judges the

power to impose such detention as a precautionary measure on the grounds set forth in

articles 503 and 504 of the Act.

A/HRC/WGAD/2019/6

8

GE.19-09609

72.

The Government notes that Spain is subject to the rule of law and the principle of

the separation of powers, which means that neither the legislative branch nor the executive

branch have intervened in the decisions of the judicial branch (in this case, the Supreme

Court).

73.

According to the Government, the observations that have been submitted are based

on the decisions made in the criminal case, that are a manifestation of the power of the

judicial branch of the State, which ordered the detentions. Comments made by members of

the executive branch or members of political parties are therefore according to the

Government irrelevant, since the decision to impose detention was not made by those

entities, nor is there any indication that they influenced the decisions of the judiciary.

74.

The Government specifies that it did not take over the responsibilities of the

parliament of Catalonia, since once the dissolution of the parliament had been agreed upon

and elections had been called, the parliament’s functions continued to be performed by its

Standing Committee. It notes that the Human Rights Committee dismissed the request for

interim measures in favour of Mr. Sánchez under rule 92 of its rules of procedure. It also

notes that a German high court previously considered that in Spain there is no persecution

on political grounds and there are no prisoners of conscience. Furthermore, the amparo

applications that have been submitted have been declared admissible and are still being

processed, in accordance with the criteria of the Human Rights Committee.1

75.

The Government emphasizes that the Constitution, which is not based on the

principle of “militant democracy”, allows for complete constitutional reform and

establishes a specific procedure for that purpose in its article 168.

76.

The Government adds that political parties that promote the separation of Catalonia

from the rest of Spain are therefore legal in Spain and the Constitution provides for

mechanisms that may be used to bring about such a situation, in accordance with the rule of

law. This was reaffirmed by Constitutional Court ruling No. 42/2014, which states that “the

right to decide of the citizens of Catalonia” should be exercised with due regard for the

principles of democratic legitimacy, dialogue and legality, within the framework of the

Constitution and the reform procedures established therein.

77.

According to the Government, as the independence movement did not have the

majorities it needed, it chose to flout 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, as 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, this time, as constituent power held by the Spanish people, and not by

any fraction thereof.

78.

The Government argues that, in addition, the movement did not have the majority

needed to amend the Statute of Autonomy of Catalonia, as any such amendment must be

approved by at least two thirds of the parliament of Catalonia.

79.

According to the Government, the independence movement, taking advantage of its

control over the presidency, and with the support of the institutions headed by Mr. Sánchez

and Mr. Cuixart, called an unconstitutional referendum and passed unconstitutional laws,

that were leading ultimately to a declaration of independence, even though it had neither the

support of the majority of voters nor the necessary majority of seats in the parliament of

Catalonia.

80.

According to the Government, in the referendum of 6 December 1978 on the

Spanish Constitution, 90.46 per cent of voters in Catalonia voted in favour of the

Constitution, with a participation rate of 68 per cent of the electoral roll, which means that

62 per cent of Catalans with the right to vote were in favour of it. The independence

movement, on the other hand, has never enjoyed majority support in Catalonia.

1 The Government refers to the case of Zundel v. Canada (CCPR/C/89/D/1341/2005).

A/HRC/WGAD/2019/6

GE.19-09609

9

81.

The Government points out that, since Spain regained the status of a full democracy

in 1977, it has established itself as a strongly democratic country, where the rights and

freedoms of all inhabitants are guaranteed, in accordance with the standards set by the most

prestigious international institutions. It is a well-known fact that the country’s democratic

transition, which was based on the 1978 Constitution, received international recognition.

82.

According to the Government, the legal action taken in this case cannot be viewed as

a reaction to a legitimate political desire for Catalan independence, but rather as nothing

other than a judicial measure imposed in response to specific acts performed outside the

rule of law.

83.

According to the Government, after the detention orders had been handed down and

various requests and appeals had been filed by the persons concerned, the decision to

impose detention was confirmed by further judicial decisions on the grounds that there was

a risk of recidivism.

84.

The Government notes that the detention of Mr. Sánchez and Mr. Cuixart was

initially ordered by the investigating judge of the National High Court on 16 October 2017,

while the detention of Mr. Junqueras was ordered on 2 November 2017. These detention

orders were subsequently confirmed by the Criminal Division of the National High Court,

the Criminal Division of the Supreme Court and decisions handed down by the

investigating judge, in response to requests for release and/or leave of absence.

85.

As far as the facts are concerned, the Government refers to those established by the

investigating judge on 21 March 2018 and taken up by the Criminal Division of the

Supreme Court, on the basis of which Mr. Cuixart, Mr. Sánchez and Mr. Junqueras are

being prosecuted for rebellion, embezzlement and disobedience and are being kept in

detention, since there is still a risk of recidivism, besides a risk of flight.

86.

The Government notes that the investigating judge set out the factual background to

the case in his decision of 21 March 2018, describing the acts that are relevant to this

communication as the offence of rebellion. The Government specifies that these acts were

initially classed as sedition but that, as the investigation progressed, the investigating judge

concluded that, in view of the circumstances, they fell within the category of rebellion.

87.

The Government notes that the judiciary considered that the conditions governing

detention and its continuation, which are set forth in article 503 of the Criminal Procedure

Act, had been met inasmuch as: (a) the facts appear to constitute an offence for which the

penalty is greater than two 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

recidivism.

88.

According to the Government, pretrial detention in Spain is legitimate provided that

it is imposed in accordance with the rule of law and the Covenant. In the present case, these

measures have been taken not in order to restrict the rights of the persons concerned but as

a consequence of their actions, which the competent judge believes may constitute very

serious offences that are contrary to the rule of law.

89.

As regards the allegation that the National High Court and the Supreme Court do not

have jurisdiction over the case because the acts in question were committed in Catalonia,

the Government points out that, as noted by the Supreme Court, some of the activities took

place outside this territory, as illustrated by the notebook seized from José María Jové, the

white paper for the independence of Catalonia and the purchase of ballot boxes and the

printing of ballot papers for the referendum abroad (in France).

90.

The Government draws attention to the above in connection with the Supreme

Court’s classification of the acts attributed to Mr. Cuixart, Mr. Sánchez and Mr. Junqueras.

91.

As regards the alleged violation of the presumption of innocence, the Government

notes that this principle may be violated only by the judiciary, not as a result of statements

made by members of the executive branch.

92.

Regarding the allegation that the accused were not given enough time to prepare

their defence, the Government notes that Mr. Junqueras did not request a suspension at the

beginning of his statement but merely filed a request for suspension through the general

A/HRC/WGAD/2019/6

10

GE.19-09609

registry, which did not reach the investigating judge until after the statements had been

given, not before.

93.

As regards Mr. Cuixart and Mr. Sánchez, the detention order handed down by the

investigating judge on 16 October 2017 makes no mention of a complaint or a request for

suspension on the grounds that they had not had time to prepare their defence. Lack of time

for preparing a defence was not stated as grounds for the appeal that was ruled upon by the

Criminal Division of the National High Court on 6 November. The Government further

notes that, in the successive requests for release and appeals that were submitted, the

defendants did not claim that their right of defence had been restricted.

94.

The Government declares that there has been no discrimination in this case and

draws attention to the arguments presented by the Criminal Division of the Supreme Court

in its decision of 5 January 2018, denying a request for release submitted by Mr. Junqueras,

in which the Criminal Division noted that the trial was not aimed at prosecuting political

dissidents.

Further information from the source

95.

The source submitted additional comments on the non-violent manner in which Mr.

Cuixart, Mr. Sánchez and Mr. Junqueras expressed their political opinions. It claimed that

the detention was arbitrary since it resulted from their exercise of the rights to freedom of

association, freedom of assembly and participation in the public affairs of their country. It

also supplied further information concerning violations of the detainees’ right to due

process.

Discussion

96.

The Working Group thanks the source and the Government for their submissions.

97.

The Working Group is mandated to investigate all cases of deprivation of liberty

imposed arbitrarily 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.

98.

The Government requested, on the basis of paragraph 33 of the methods of work,

that part of the present complaint be referred to the Human Rights Committee, which, it

argues, is currently considering the same case. It claims that the Committee is considering

elements relating to political participation, the rights of association and assembly and the

right to freedom of opinion and expression, and that the same facts and persons are

concerned.

99.

In this regard, the Working Group wishes to recall that the purpose of paragraph 33

(a) and (d) (iii) is to strengthen the good coordination between the various human rights

bodies, including the special procedures and the treaty bodies.

100.

In the present case, the Working Group received information from the parties

regarding the facts and the law in order to determine whether there has been a violation of

the right not to be arbitrarily deprived of liberty; this information includes some elements

relating to the right to political participation, to the rights of association and assembly and

to freedom of opinion and expression. The Government has not demonstrated that the claim

submitted to the Human Rights Committee relates to the right to personal liberty and the

right not to be subjected to arbitrary detention. In the light of the foregoing, the Working

Group considers that in the present case the conditions set out in paragraph 33 (a) and (d) (ii)

have not been met, since the facts and the rights allegedly violated are not the same.

101.

Having established its position on this procedural matter in accordance with its

methods of work and practice, 2 the Working Group reaffirms that it is competent to

consider the present case.

2 Opinion No. 89/2018, paras. 64–67.

A/HRC/WGAD/2019/6

GE.19-09609

11

102.

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 the

international law governing personal liberty, constituting arbitrary detention, the burden of

proof should be understood to rest upon the Government if it wishes to refute the

allegations.3

103.

The Working Group noted that Mr. Cuixart, Mr. Sánchez and Mr. Junqueras are

public figures, who are known for their work in support of Catalan independence and who

have held positions in associations, political parties and public office.

104.

It was also able to confirm that Mr. Cuixart and Mr. Sánchez were summoned to

appear in court on 6 October 2017 and were subsequently placed in pretrial detention by

order of the court of investigation of the National High Court. Mr. Junqueras was detained

after giving testimony, by order of the court of investigation, on 2 November 2017.

Category II

105.

The source claims that the detention of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras

results 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.

106.

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

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, public order, public health or morals.4

107.

The Working Group agrees with the Human Rights Committee that freedom of

opinion and freedom of expression are indispensable for the full development of the person

and constitute the cornerstone of free and democratic societies.5 The two freedoms form a

basis for the full enjoyment of other human rights, for instance the enjoyment of freedom of

assembly and association and the exercise of the right to political participation.6

108.

The importance of the right to freedom of opinion is such that no government may

restrict other human rights on the basis of a person’s actual or perceived opinions, whether

they be of a political, scientific, historic, moral or religious nature. It is incompatible with

the Universal Declaration of Human Rights and the Covenant to criminalize the holding of

an opinion, which implies that the harassment, intimidation or stigmatization of a person –

including detention, pretrial detention, trial or imprisonment – for reasons of the opinions

he or she may hold – are not permitted.7

109.

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.”8

3 A/HRC/19/57, para. 68.

4 Opinion No. 58/2017, para. 42.

5 General comment No. 34 (2011) on freedoms of opinion and expression, para. 2.

6 Ibid., para. 4.

7 Ibid., paras. 9 and 10.

8 General comment No. 25 (1996) on the right to participate in public affairs, voting rights and the right

of equal access to public service, para. 2.

A/HRC/WGAD/2019/6

12

GE.19-09609

110.

The Working Group, noting that referendums are permitted in Spain on a wide range

of topics, including the topic at issue in the present case, considers that calls for the

organization of processes that promote public participation, whether they be made by an

individual or through organizations, are legitimate expressions of the exercise of freedom of

opinion and expression.

111.

The Working Group observed that on 20 and 21 September 2017 public

demonstrations were held in support of the organization of a referendum on Catalan

independence. During the demonstrations, there were incidents or conflicts between

demonstrators and the police. It was also noted that these specific events could not be

attributed to Mr. Cuixart, Mr. Sánchez and Mr. Junqueras.

112.

Mr. Cuixart, Mr. Sánchez and Mr. Junqueras were accused of sedition in relation to

the peaceful social protest that took place on 20 and 21 September 2017, in which they

participated alongside thousands of others. The indictment was later changed to the offence

of rebellion.

113.

The Working Group verified that violence is an essential component of the legal

classifications of the alleged offences. In its response, the Government provided

information on the independence process, but it did not put forward information relating to

any specific actions taken by the accused that might have involved violence and could

therefore be said to constitute an offence under applicable law, including international law.

114.

The Working Group observed that the actions of Mr. Cuixart, Mr. Sánchez and Mr.

Junqueras, both before and after the social protest of 20 and 21 September 2017, were not

violent, nor did they incite violence, nor did their conduct result in any violent events or

acts. On the contrary, their conduct consisted in the peaceful exercise of the rights to

freedom of opinion, expression, association, assembly and participation. The Working

Group even received information relating to the opinion of one judge who stated that the

events attributable to the accused were expressions of the legitimate exercise of the right to

peaceful protest.9

115.

In this respect, the Special Rapporteur on the right to freedom of opinion and

expression has raised his concern regarding these 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 accusation of the offence of rebellion

could be considered excessive and therefore incompatible with the obligations of Spain

under international human rights law”.10

116.

The Working Group also takes notes of the decision handed down by a German

court regarding the extradition of Mr. Carles Puigdemont (co-defendant), in which it found

that the acts attributed to Mr. Puigdemont did not involve violence, which is a necessary

component of the offence of rebellion, and that his actions cannot be considered to amount

to a violent political attempt to overthrow the Government. It stated that the defendants

were seeking independence by democratic means.11

117.

The Working Group received credible information, which was not refuted by the

Government, regarding the situation of Mr. Forn, who was detained and charged in relation

to this case, and who was persuaded to give up his activism in support of independence in

exchange for his release.

118.

A criminal trial such as that being held in the present case loses credibility when one

considers the turbulent political context in which the charges have been brought and the

proximity of the trial to the possible holding of a referendum, given that Mr. Cuixart, Mr.

Sánchez and Mr. Junqueras have dedicated years of their respective political careers to the

cause of Catalan independence. Account should also be taken of the statements made by

high-ranking Government officials, which will be addressed in further detail in the next

section, referring to the decapitation of the leaders of the independence movement and

9 Separate opinion of Judge José Ricardo de Parada Solaesa of 7 November 2017.

10 AL ESP 1/2018.

11 Decision of the Regional High Court of Schleswig-Holstein, 12 July 2018.

A/HRC/WGAD/2019/6

GE.19-09609

13

attempting to qualify the conduct of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras in the

context of a social protest as violent.

119.

The absence of the factor of violence and of credible information regarding any acts

attributable to Mr. Cuixart, Mr. Sánchez and Mr. Junqueras that would link them to the sort

of conduct that constitutes the offences of which they stand accused have led the Working

Group to believe that the purpose of the criminal charges brought against them is to

intimidate them because of their political views regarding the independence of Catalonia

and to prevent them from pursuing that cause in the political sphere.

120.

The Working Group has been persuaded that the criminal charges brought against

Mr. Cuixart, Mr. Sánchez and Mr. Junqueras were brought in order to justify the fact that

they have been placed in detention for exercising their rights to freedom of opinion,

expression, association, assembly and political participation, 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

121.

In the light of the findings in relation to category II, the Working Group considers

that there was no basis for pretrial detention or a trial. Nevertheless, since a trial is taking

place, 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 components of a

fair, independent and impartial trial have been respected.

Presumption of innocence

122.

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 places an obligation on State institutions to treat the accused person as

innocent until the charge has been proved beyond any reasonable doubt. The right requires

that the public authorities refrain from prejudging the outcome of a trial, which entails

abstaining from making public statements affirming the guilt of the accused person.12

123.

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.13

124.

Similarly, 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

attempting to convince the public to believe them guilty and prejudging the assessment of

the facts by the competent judicial authority.14

125.

In response to the source’s claims regarding the violation of the presumption of

innocence, the Government posited that the statements made by the executive branch were

irrelevant, since, in its view, there is no evidence that those statements have had an

influence on the decisions taken by the judicial branch.

126.

In the present case, credible information was received regarding statements made by

the Deputy Prime Minister of Spain, in which she congratulated the Prime Minister for

successfully decapitating the Catalan pro-independence parties by arresting their leaders.

Further statements were made by the Minister of the Interior, in which he referred to the

leaders of the independence movement as reckless, dangerous rebels.

12 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial,

para. 30.

13 Opinions Nos. 90/2017 and 76/2018.

14 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 v. Russia,

para. 96; Ismoilov and Others v. Russia, para. 161.

A/HRC/WGAD/2019/6

14

GE.19-09609

127.

Furthermore, the court of appeal of the National High Court stated that some facts

ascribed to the defendants are common knowledge and do not need to be proved. For

example, in the view of the court of appeal, it is a known fact that Mr. Cuixart stood on top

of a national police vehicle on 20 September 2017. However, the Working Group received

credible information according to which at that moment Mr. Cuixart and Mr. Sánchez were

calling for the demonstration to come to a peaceful conclusion.

128.

In the light of the statements made by high-ranking State officials publically

implying that the detainees should be presumed guilty, which could influence how they are

viewed by the courts, the Working Group has been persuaded that the right to presumption

of innocence of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras has been violated, in breach

of article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the

Covenant.

Pretrial detention

129.

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 exception made 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; 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; and if the

period of pretrial detention is prolonged, the presumption in favour of bail should

preferably be applied.

130.

In the present case, the accused were detained in October and November 2017 and

have remained in pretrial detention during the trial, which is still under way. 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 the deprivation of liberty since October and November 2017 and during the trial.

Consequently, the Working Group can only conclude that this application of pretrial

detention violates article 9 (3) of the Covenant.

Right to a hearing before a competent and impartial tribunal

131.

According to article 14 (1) of the Covenant, everyone shall be entitled to a fair and

public hearing by a competent, independent and impartial tribunal established by law in the

determination of any criminal charge against him or her. The Working Group agrees that

judges must not allow their judgment to be influenced by personal bias or prejudice, nor

harbour preconceptions about the particular case before them, nor act in ways that

improperly promote the interests of the parties.15

132.

The Working Group was not convinced that the acts attributed to Mr. Cuixart, Mr.

Sánchez and Mr. Junqueras were violent in nature. On the contrary, it found that these acts

were carried out in the exercise of freedom of opinion, expression, assembly, association

and political participation, over the course of several years.

133.

Moreover, the Working Group found evidence to suggest that judges with prior

knowledge of the case harboured preconceptions about it. This is clear, for example, from

statements made during the proceedings before the court of appeals of the National High

15 General comment No. 32, para. 21.

A/HRC/WGAD/2019/6

GE.19-09609

15

Court, during which it was stated that some facts are common knowledge and do not need

to be proved.

134.

Furthermore, 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.16

135.

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 referred to in the present case is

the courts currently hearing them.

136.

For the reasons given above, the Working Group considers that the right of Mr.

Cuixart, Mr. Sánchez and Mr. Junqueras 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 not observed.

Right to adequate time and facilities for the preparation of a defence

137.

Article 14 (3) (b) of the Covenant recognizes the right of every person to “have

adequate time and facilities for the preparation of his defence”, which is an important

guarantee for a fair trial and for the equality of arms principle.17 Adequate resources for a

defence include, inter alia, early access to all materials, documents and other evidence that

the prosecution plans to offer in court.18

138.

The Working Group shares the view that if the defendant’s counsel feels that the

time offered for the preparation of a defence is not reasonably sufficient, he or she may

request the adjournment of the trial, and the authorities are, in principle, obliged to grant

such requests. 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.”19

139.

In the present case, the Working Group has been persuaded that Mr. Cuixart, Mr.

Sánchez and Mr. Junqueras 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, and given the size of the case file and the distances involved. In addition, it was

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.

140.

In the light of the foregoing, the Working Group was convinced that the deprivation

of liberty of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras undermined the fundamental

safeguards of due process and a fair trial, in particular, the presumption of innocence, the

right to a hearing by a competent and impartial tribunal and the right 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 is of such gravity as to give the

deprivation of liberty an arbitrary character under category III.

16 Opinion No. 30/2014.

17 General comment No. 32, para. 32.

18 Ibid., para. 33.

19 Ibid., para. 32.

A/HRC/WGAD/2019/6

16

GE.19-09609

Category V

141.

The source claims that the detention of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras

was discriminatory, since it resulted from their defence of the right to self-determination.

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.20

142.

In the present case, the detention of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras

was carried out as a result of a concerted effort by the national apparatus for the

enforcement and administration of justice against certain leaders of the Catalan

independence movement, which enjoyed the public political backing of high-ranking

officials within the Spanish Government, including expressions of support for the

beheading of the movement. The detention of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras

undermined the principle of the equality of human beings because it was motivated by their

political opinion, 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.

143.

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 right to freedom of opinion and expression.

Disposition

144.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Jordi Cuixart, Jordi Sánchez and Oriol Junqueras, being

in contravention of articles 2, 9–11 and 18–21 of the Universal Declaration of

Human Rights and of articles 3, 14, 19, 21, 22 and 25 of the Covenant, is arbitrary

and falls within categories II, III and V.

145.

The Working Group requests the Government to take the necessary steps to remedy

the situation of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras without delay and bring it into

conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights and the Covenant.

146.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Cuixart, Mr. Sánchez and Mr.

Junqueras immediately and accord them an enforceable right to compensation and other

reparations, in accordance with international law.

147.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Cuixart, Mr. Sánchez and Mr. Junqueras and to take appropriate measures against those

responsible for the violation of their rights.

148.

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 right to freedom of opinion

and expression.

149.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

150.

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:

20 Opinion No. 11/2017.

A/HRC/WGAD/2019/6

GE.19-09609

17

(a)

Whether Mr. Cuixart, Mr. Sánchez and Mr. Junqueras have been released and,

if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Cuixart,

Mr. Sánchez and Mr. Junqueras;

(c)

Whether an investigation has been conducted into the violation of the rights

of Mr. Cuixart, Mr. Sánchez and Mr. Junqueras 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.

151.

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.

152.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the 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.

153.

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.21

[Adopted on 25 April 2019]

21 Human Rights Council resolution 33/30, paras. 3 and 7.