Before addressing the topic, it is advisable to provide brief information about what the Council of Europe entails (not to be confused with the European Union) and the institutions that comprise it. Established by the Treaty of London of May 5, 1949, it is an international organization of continental scope intended to promote the configuration of a common political and legal space, based on the values of democracy, human rights and the rule of law. . The Council of Europe consists of various internal bodies, including a Parliamentary Assembly, a Committee of Ministers and a General Secretariat. Without a doubt the best known of the international organizations linked to its organization, due to the political and legal significance of its work, is the European Court of Human Rights (ECHR). The European Convention on Human Rights and Fundamental Freedoms (ratified by Spain on October 10, 1979) creates a European Commission and the ECHR (based in Strasbourg).
In the case of the demands of the Catalan independentists, the Commission has taken them into consideration and, using article 28 of the agreement, invites the parties to reach an amicable settlement that is inspired by respect for human rights. It grants a deadline until January 12, 2024 to complete the friendly agreement. If it is reached, it will be communicated to the Committee of Ministers, who will ensure compliance with its terms.
The court's operating regulations establish that if the parties cannot reach an amicable agreement or other solution, and the chamber is convinced, in light of the respective arguments, that the matter is admissible and is in a position to be tried on the merits , it will immediately adopt a decision on admissibility. The letter that the ECtHR has sent to the parties seems sufficiently suggestive to me about the great possibilities that it will decide on the merits of the matter if an amicable agreement is not reached. It must rule on whether the Spanish Supreme Court has made an “unforeseeable or expansive interpretation of article 7 of the agreement”, which establishes that “no one may be condemned for an action or omission that at the time it was committed does not constitute an infringement under national or international law.”
To clarify this issue, the Strasbourg judges have the full text of the final ruling that the TC confirmed, by majority. The key therefore lies in the content of the account of the proven facts. The issue has already been narrowed down because, once the crime of sedition has disappeared, they will only have to rule on whether there is sufficient basis to justify a crime of embezzlement of public funds for profit due to unfair administration.
The plaintiffs denounce that articles 10 and 11 of the European Convention, referring to freedom of expression and freedom of assembly and association, were also violated. They allege that they were convicted of sedition crimes when, in their opinion, they had only encouraged citizens to participate in demonstrations in defense of the independence process and to participate in a referendum on the independence of Catalonia. It is assumed what the Government's response will be.
The court is interested in an issue that has already been addressed by the United Nations Working Group on Arbitrary Detentions. The Human Rights Committee and the Parliamentary Assembly of the Council of Europe have also harshly criticized the provisional detention suffered by the convicts, which is why they want to know the opinion of the Spanish State on the violation of article 5 of the European convention which regulates the right to liberty and security. In view of the allegations and the documentation provided (reproduction of the recording of the oral trial sessions), it will examine whether article 6 of the agreement, which enshrines the right to a fair trial, was violated. Respect for his right to defense is also questioned and he asks if there was a violation of article 3 of protocol number 1 of the convention, which refers to the free expression of the opinion of the people in the election of the legislative body.
This list of questions does not imply or anticipate the decision that the ECHR will adopt at the time, but it is worth noting that if it had not aroused their interest, they would have rejected them outright and would not have insisted on inviting the State to reach an amicable agreement. with the plaintiffs.
So far we have been able to confirm the rejection of the entire European legal community to the requests made by the Spanish court, which is an indication of its notorious deficiencies and its collision with the democratic culture of the judges of the countries to which it is referred. has required the arrest and surrender of people who are in the area of freedom, security and justice of the European Union.
The Spanish State has enough time until January 14 to make a decision that has been directly demanded by the many sectors of politics and law, and that involves an amnesty that includes, logically, not only the plaintiffs. but to the thousands of citizens, police officers and civil guards prosecuted due to the development of the events known to all. An amnesty would result in the filing of the lawsuits, avoiding condemnatory and disqualifying pronouncements for the Supreme Court. The judges of the ECtHR have laid out a carpet for us to walk towards amnesty. It is advisable not to waste it.
