Published on 9 October 2023

FIFTH SECTION

Application no. 30096/21
Jordi TURULL I NEGRE against Spain
and 8 other applications
(see list appended)
communicated on 19 September 2023

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  In September 2017 the Catalan regional government (Generalitat) and the Parliament of Catalonia, with the assistance of several civil society organisations, unilaterally decided to secede from Spain. On 6 and 7 September 2017 the Parliament of Catalonia passed two laws providing for a referendum on the independence of Catalonia and the establishment of the Republic of Catalonia. Those laws were suspended, and later declared unconstitutional by the Spanish Constitutional Court on the grounds that they entailed serious procedural breaches and were in direct contradiction with the Spanish Constitution and the Statute of Autonomy of Catalonia (Estatuto de Autonomía).

2.  Notwithstanding the suspension of the laws, on 1 October 2017 the referendum took place. The Catalan regional government proclaimed that the proposal to secede had prevailed.

3.  On 27 October 2017 the President of the Catalan regional government formally declared the independence of Catalonia but suspended the effect of the declaration with a view to “negotiating with the Spanish Government”.

4.  The declaration was suspended and later quashed by the Constitutional Court. Article 155 of the Spanish Constitution (see paragraph 11 below) was applied by the Spanish Government jointly with the national Parliament: the Catalan regional government was dismissed, the Parliament of Catalonia was dissolved and new elections were called for December 2017. The President of the Catalan regional government and several politicians left Spain in order to escape prosecution.

5.  On 30 October 2017 the Spanish Attorney General lodged a complaint against the applicants, all of whom were either members of the Catalan regional government or leaders of civil society organisations (see the appendix). In November 2017 they were all remanded in custody. Criminal proceedings were brought before the Supreme Court, which, on 14 October 2019, convicted the applicants on counts of sedition and embezzlement and sentenced them to terms of imprisonment and disqualification from holding public office (see the appendix).

6.  In brief, the judgment of the Supreme Court found it established that all the applicants had participated in a concerted strategy that included a functional distribution of roles among the members of the Catalan regional government, the president of the Parliament of Catalonia and the heads of various institutional, cultural and citizens’ organizations, which maintained as a common political program the creation of an independent Catalan State in the form of a republic. The immediate objective of that joint action had been the establishment of an apparent regulatory framework, outside the provisions of the Constitution and the Statute of Autonomy of Catalonia, as well as in opposition to the execution of the decisions of the Constitutional Court and other courts aimed at the protection of the legal system, which would mobilise supporters of independence by making them believe that when they cast their votes in a referendum called for this purpose by the regional government, they would be contributing to the founding act of a republic in Catalonia. The holding of a binding referendum, the suspension of which had been ordered by the Constitutional Court, had a particular importance in that common strategy. A favourable result, whatever the rate of citizen participation was, would justify the proclamation of Catalonia as an independent State.

7.  By judgments delivered on dates from 11 May 2021 to 22 April 2022, the Constitutional Court dismissed amparo appeals which had been lodged by the applicants against the Supreme Court’s judgment (see the appendix). The Constitutional Court found that the Criminal Chamber of the Supreme Court had not breached the principle of legality in criminal matters by considering that the crime of sedition was defined in Article 544 of the Criminal Code (the CC) with sufficient clarity. In particular, the Supreme Court had rightly considered that the relevant question had been whether the definition of sedition was vague such as to render it impossible to identify the punishable conduct with a sufficient degree of clarity. It had correctly concluded that it was not. Nor did the Constitutional Court consider that the Supreme Court had carried out an interpretation of Article 544 of the CC in malam partem or extensively to the detriment of the convicted persons contrary to the principle of legality in criminal law. It found that in its judgment, the Supreme Court had set out the specific aspects of the applicants’ conduct on which their conviction as co-perpetrators of the crime of sedition had been based. The criminally relevant conduct of the applicants, who had each played their role in the concerted common strategy, consisted of providing legal cover and promoting the holding of a referendum on self-determination, despite repeated warnings from the Constitutional Court, with the aim of disregarding the procedures for constitutional reform and the legitimate legal framework established by the Constitution and the Statute of Autonomy, and replacing them with the so-called Law of the Legal Transition and Foundation of the Catalan Republic.

8.  In the opinion of the Constitutional Court, the penalties provided for the crime of sedition were not disproportionate, since there was no manifest, excessive or unreasonable imbalance between the nature of the criminal conduct and the penalties associated with it, nor did the court consider the penalties actually imposed on the applicants to be disproportionate in view of the seriousness of the acts committed. The Constitutional Court also stated that the conduct of the applicants had exceeded the limits of what could be considered a legitimate exercise of the freedom of expression and assembly for the purpose of protesting or criticising the actions of the public authorities. The Constitutional Court also considered that the acts perpetrated by the applicants had clearly exceeded the normal limits of the exercise of their political rights. Thus, the sentences imposed had not had a discouraging effect on the exercise of those freedoms and fundamental rights, since the behaviour of the applicants had exceeded the limits of their protection. In that sense, the Constitutional Court excluded the possibility that the criminal proceedings and the sentences were aimed at the persecution or punishment of the applicants for their political positions, given that the Catalan independence movement was not the object of persecution or discriminatory treatment by the Supreme Court or any other judicial or public authority of the State.

9.  The applicants were partially pardoned by the Government on 23 June 2021 and released. They have been at liberty since then.

10.  Organic Law 14/2022 of 2 December 2022 repealed the Article of the CC concerning the offence of sedition and amended the Article concerning the offence of embezzlement. As a consequence of that legal reform, the Supreme Court reviewed, of its own motion, the applicants’ disqualifications from holding public office and, by a decision of 13 February 2023, declared them to be extinguished in respect of the applicants convicted of sedition only. By the same decision, it upheld the disqualification of those applicants who had been convicted of embezzlement.

RELEVANT LEGAL FRAMEWORK

11.  The relevant provision of the Spanish Constitution reads as follows:

Article 155

“1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to obtain satisfaction, may, following approval granted by an absolute majority of the Senate, take all the measures necessary to compel the latter to meet those obligations, or to protect the above-mentioned general interests.

2. With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Autonomous Communities.”

12.  The relevant provisions of the Criminal Code (Organic Law 10/1995, of 23 November 1995), as in force at the time of the events, read as follows:

Article 432.

“1. The authority or public official who commits the crime described in Article 252 in respect of public assets [see below] shall be punished by a prison sentence of two to six years, and special disqualification from holding public office or employment and from the exercise of the right to stand for election for a period of six to ten years.

2. The same penalty shall be imposed on the authority or public official who commits the crime described in Article 253 [see below] in respect of public assets.

3. A prison sentence of four to eight years and absolute disqualification for a period of ten to twenty years shall be imposed if any of the following circumstances have accompanied the acts referred to in the two preceding paragraphs:

a) serious damage or hindrance to the public service has been caused; or

b) the value of the damage caused or of the goods or effects appropriated exceeds 50,000 euros.

If the value of the damage caused or of the appropriated goods or effects exceeds 250,000 euros, a penalty falling in the upper half of the sentence range shall be imposed and may reach the upper limit.”

Article 252.

“The penalties provided for in Article 249 or, as the case may be, in Article 250, shall be applicable to those who, having powers to administer another’s patrimony, which powers derive from the law, were entrusted by the authorities or assumed by means of a legal transaction, infringe them by exceeding the exercise thereof and, in this way, cause damage to the administered patrimony.”

Article 253.

“Those who, to the detriment of another, appropriate for themselves or for a third party, money, effects, securities or any other movable thing, which they have received in deposit, commission, or custody, or which have been entrusted to them by virtue of any other title that produces an obligation to deliver or return them, or deny having received them, shall be punished by the penalties provided for in Article 249 or, if applicable, in Article 250, unless they are already punished with a more serious penalty in another provision of this Code.”

Article 544.

“Those who, without being involved in the crime of rebellion, rise up publicly and tumultuously to prevent, by force or other means outside the legal channels, the application of the Laws or the legitimate exercise by any authority, official corporation or public official of their functions or the fulfilment of their agreements, or of administrative or judicial resolutions, are guilty of sedition.”

Article 545.

“1. Those who have induced, sustained or directed sedition or are involved in it as its main perpetrators, shall be punished with a prison sentence of eight to ten years, or of ten to fifteen years if they are persons in authority. In both cases, absolute disqualification shall also be imposed for the same period of time.

2. Apart from these cases, the penalty shall be imprisonment for a term of four to eight years, and special disqualification from holding public office or employment for a term of four to eight years.”

COMPLAINTS

13.  All the applicants complained under Article 7 of the Convention of an extensive and unforeseeable interpretation by the Supreme Court of the crime of sedition and/or embezzlement.

14.  They also considered that Articles 10 and/or 11 of the Convention had been violated because they have been convicted of sedition when, in reality, they had merely encouraged people to engage in demonstrations in defence of the independence process and to participate in a referendum on the independence of Catalonia. They considered that the criminal convictions had had a chilling effect on the exercise of the aforementioned fundamental freedoms.

15.  The applicants in applications nos. 30315/21, 35545/22, 35870/22 and 35884/22 complained under Article 5 of the Convention that their imprisonment after their conviction was disproportionate and was based on nothing more than their legitimate exercise of their right to freedom of assembly and expression.

16.  The applicant in application no. 35925/22 complained that he had suffered a violation of his defence rights under Article 6 of the Convention as he had not had access to the case file in the relevant criminal proceeding. The applicants in applications nos. 30096/21, 35545/22, 35870/22 and 35884/22 complained, under Article 6, that they had been convicted without there being any evidence against them.

17.  Furthermore, the applicants in applications nos. 18243/22, 35545/22, 35870/22 and 35884/22 also alleged a breach of Article 3 of Protocol No. 1 to the Convention on the ground that their conviction had disproportionately interfered with their political rights.​

18.  The applicants considered Article 18 of the Convention to have been violated in relation to all the above-mentioned Articles.

QUESTIONS TO THE PARTIES

1.  Has the Supreme Court, when convicting the applicants, applied an unforeseeable or expansive interpretation of the offence of sedition and/or embezzlement, contrary to Article 7 of the Convention?

2.  Have the applicants been convicted for a legitimate exercise of their rights to freedom of association and of expression, in breach of Article 10 and/or Article 11 of the Convention?

3.  As regards applications nos. 30315/21, 35545/22, 35870/22 and 35884/22, has there been a violation of Article 5 of the Convention in respect of the respective applicants’ imprisonment after their conviction by the Supreme Court?

4.  Did the applicant in application no. 35925/22 suffer a violation of his right of defence, under Article 6 of the Convention, owing to the alleged inaccessibility of the case file in the related criminal proceeding? As regards applications nos. 30096/21, 35545/22, 35870/22 and 35884/22, has there been a violation of Article 6 of the Convention, in that their conviction was allegedly not based on any evidence?

5.  Has the applicants’ conviction in applications nos. 18243/22, 35545/22, 35870/22 and 35884/22 breached Article 3 of Protocol No. 1 to the Convention?

6.  Were the applicants’ rights under the Convention provisions cited in the questions above restricted for a purpose other than those provided for in the Convention and thus in contravention of Article 18 (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 264 et seq., 28 November 2017)?

The parties are requested to submit copies of the decisions of the Supreme Court of 13 February 2023 concerning the applicants (see § 10 of the summary of facts and complaints).

APPENDIX