Frans Timmermans, First vice-president of the European Commission for better regulation, inter-institutional relations, the rule of law, and the Charter of Fundamental Rights, 2017. Wiktor Dabkowski/Press Association. All rights reserved.I just filed a complaint with the European
Commission, stating that the Spanish authorities, in their treatment of the
Catalan referendum of 1 October, have violated the basic rights and freedoms
protected by Article 2 of the EU Treaty. Every EU citizen can do this: that is,
lodge a complaint against breach of EU law by a member state, by filling out a
simple form available
here.
Friends have advised me against this, cautioning
that I might be aiding the eruption of a civil war between Spanish and Catalan
nationalists: before embarking on a juridical strategy, we need to know whom it
will serve. As I urge my fellow EU citizens, especially those in Spain, to
follow suit, I would like to state clearly the grounds for my conviction that
taking the current Spanish government to justice is not only a reasonable course
of action, but one which is likely to tame the nationalist surge and steer the
political process in Catalonia away from secession. It might in fact, be the
only such path now available.
Much public outrage has been focused on the
deployment of police force against peaceful voters, as a result of which close
to 900 people were injured. The Spanish government has defended this as being a
‘proportionate use of force’ in the protection of the rule of law, as it deemed
the referendum illegal – a position that the European Union seems to be
condoning (as per the
speech of Commission Vice-president Frans Timmermans at the European
Parliament on 4 October). During the debates in the European Parliament, no one
contested the illegality of the referendum – given that the Spanish
Constitutional Court had pronounced it illegal in its judgment of 6 September.
The Constitutional court, by the same logic, judged illegal the session of the
Catalan Parliament planned for 9 October – in the aftermath of the referendum,
on the grounds that the session might announce Catalonia’s
secession.
Even if there are no sufficient legal grounds to
hold the Spanish government to account for police brutality, I claim that its
actions based on the two above-mentioned judgments of the Spanish
Constitutional Court are in violation of the right to freedom of assembly and
the freedom of speech (which a referendum embodies). There rights are protected
by:
– Art. 10 and 11 of the European Convention on
Human rights;
– Art. 19 and 20 of the United Nations' Universal
Declaration of Human Rights;
– Art. 2 of the basic law of the EU (Lisbon
Treaty).
The acts in question are also in violation of the
Spanish Constitution and the Charter of Fundamental Rights of the European
Union. The former is an obvious dead-end; the latter, however, also is. The
rights enumerated in the EU Charter create obligations only for the
institutions of the EU and for member states when implementing EU law. Within
the jurisdiction of the EU, the only recourse, therefore, is to the short
Article 2 of the Lisbon Treaty that binds member states to respect basic rights
and freedoms (outside of the Charter of Rights).
It is my understanding that only a member state or
the European Commission can file a complaint with the European Court of Justice
that another member-state is in breach of EU law. However, any EU citizen can
file such a complaint with the European Commission, which is obliged to respond
within 12 months, and possibly bring the case to the ECJ. This is what I have
done and what I urge others to do. Beware of one caveat: one needs to specify
how one is personally affected by the breach in question. I have stated that
the Spanish government’s violation of basic rights and freedoms damages the
quality of democracy in the EU, which affects me personally.
Freedom
at the mercy of ‘the people’
Let me now clarify the grounds on which the Spanish
Constitutional Court’s decisions which have provided the legal basis for the
actions of Mariano Rajoy’s government should be pronounced in breach of EU and
international law, and for which the Spanish authorities should be sanctioned.
In liberal democracies, no piece of legislation,
not even the Constitution, is a source of basic rights and
freedoms. The formal codification of rights can help their enforcement, but
these basic rights stand above and beyond national constitutions, as ‘the will of the people’, or the decisions
of public authority. That is why the Spanish Constitutional Court cannot claim
that the Catalan referendum (i.e. the right to peaceful assembly and freedom of
speech) can be suspended by force of Art. 2 of the Spanish Constitution which
stipulates the indivisibility of the Spanish nation.
It is also unlawful to ban a session of the Catalan
Parliament, as the Court did, on the grounds that the assembly might proclaim
a secession which is prohibited by the said stipulation against secession. In
the same logic, the Court might as well ban the talk and even the thinking
about secession. Any Parliament in a liberal democracy has the right to convene
and discuss whatever it likes.
These two rulings of the Spanish Constitutional
Court purportedly give legal validity to the actions that the Spanish
government undertook in its attempt to suppress the Catalan referendum,
claiming it as illegal. However, even if the Court has given these actions of
the government the appearance of legality, these actions lack legitimacy,
as they violate basic rights and principles that stand beyond the Constitution,
and are codified in binding international law.
By doing so, the Spanish Constitutional Court is
reducing the legal doctrine of the Rule of Law that is foundational for liberal
democracies (that is, law that upholds the supremacy of unconditional and
universal basic rights in freedoms) to the doctrine of the ‘rule by law’
practiced in dictatorships.
Moreover, the Spanish Constitution makes a mockery
of the Rule of Law by equating it to the will of the people (The Constitution
pledges to “consolidate a State of Law which ensures the rule of law as the
expression of the popular will”.) The ‘will of the people’ is the mechanism of
enacting popular sovereignty – that is, it serves democracy. The Rule of Law
safeguards citizens from the abuse of power by making certain rights and
freedoms unconditional and inalienable – that is, it serves freedom. When
freedom is placed at the mercy of ‘the people’ the liberal in
‘liberal democracy’ dies.
Constitutional
starting points and EU pressure
Let me add to this a historical consideration, even
if it does not add legal weight to my arguments. The Spanish government draws
justification for its actions from its duty to protect a Spanish Constitution
that enabled the transition to democracy after the death of General Franco.
However, drafting the 1978 Constitution was
overseen by the military and excluded the people from decisions on important
matters such as the monarchy, the capitalist nature of the economy, equality of
peoples, and the country’s foreign alliances. In this sense it does not have the full legitimacy of a democratic constitution.
Mr Puigdemont is right to argue, as he did in his speech at the Catalan
Parliament when discussing the referendum results on 11 October, that the
Catalan people saw this document as the starting
point of the transition from dictatorship to democracy, not its final target,
as the Spanish authorities did. On these grounds he is right to be requesting a
revision of the basic law.
It is the systematic abuse of power by the central
Spanish authority, under the guise of protecting a democratic Constitution,
that is triggering the sense of injustice now fuelling the quest for Catalan
independence – this quest is driven by a desire for decent political rule, not
nationalist fantasies. As the Catalan Premier put it, “We are not criminals, we
are not mad. We are normal people, and we just want to vote.”
The quest for independence will subside only once
the abuse of power stops. This is what Mariano Rajoy would do if he were to act
as a statesman whose goal is to stabilise Spain as a pluralist
liberal democracy based on the consent of all Spaniards.
However, he has chosen to act as a politician instead – a leader of the nationalist
People’s Party which came to power on the platform of suppressing Catalan
autonomy. The more relentless his stance towards Catalonia, the stronger his
support among Spanish nationalists, thus securing a win in the 2020 general
elections. This is the reason why there is no hope that he will grant the
citizens of Catalonia the basic right to vote that they have been demanding,
and why he is now refusing the international meditation that might force him to
play by the rules of liberal democratic governments.
It has also become clear that the European Union
will not take, voluntarily, a formal stance against the abuse of power by the current
Spanish government. But the EU might be forced to do so under the pressure of
its citizens, and for this, it has provided both the procedure and the
channels.
I propose that therefore the only recourse we have
is a civil action of the kind I am proposing: thousands of claims filed with
the European Commission, the Council of Europe and the United Nations.