ARTICLE 19 is watching with concern the events unfolding in Catalonia, and calls on local authorities to respect and guarantee free expression, freedom of assembly, and the right to protest of all citizens.
At the beginning of September, the Catalan regional parliament passed a law that instituted a referendum on Catalan secession, to be held on 1 October 2017. When the Spanish Constitutional Court suspended the law and thus the referendum itself, the Catalan government refused to abide by this ruling.
The Spanish government and judiciary have taken several steps in order to ensure that the referendum does not take place. These actions have ranged from suspending the financial and law enforcement autonomy of the Catalan government, to detaining public officers directly involved in the organization of the referendum. While some of these measures may be legal, others constitute a disproportionate restriction of the right to freedom of expression and of assembly, and are contrary to Spain’s obligations under international law.
Now more than ever, freedom of expression, freedom of assembly and the right to protest must be respected, protected and fulfilled by Spanish and Catalan authorities. In particular:
- Spanish and Catalan authorities must ensure that any restriction on freedom of expression and freedom of assembly complies with the requirements of legality, necessity and proportionality set by international law. So far, Spanish authorities have failed to discharge this obligation by suspending public events in support of the referendum all across Spain, in cities such as Vitoria (September 15) or Madrid (17 September). They have also blocked dozens of websites of private organizations and particulars that support Catalan independence, such as the site of the political association Assamblea Nacional de Catalunya (Catalonian National Assembly), which has been blocked at least since 26 September.
- Spanish and Catalan authorities must protect and facilitate public demonstrations, including spontaneous protests, both in favour and against the referendum. In the coming days, authorities in Spain must refrain from surveilling and identifying indiscriminately those participating in pro-referendum protests, and from criminalising such participation. They should also avoid a disproportionate police deployment, both in Catalonia in general and in pro-referendum protests in particular. The ongoing deployment of 10,000 additional policemen in Catalonia is especially worrying.
- In parallel to the political clash between Catalan and the Spanish authorities, the social tension within Catalonia has reached an unprecedented level. As Reporters Without Border has pointed out, the social and legal cost of free speech has risen significantly, even for journalists. It falls on all authorities to protect the right of all citizens to state their views without fear of harassment or retribution, and to scale down the political tension.
Restrictions to these rights must be proportionate, necessary, and strictly aimed at accomplishing a legitimate aim, even when it would be more politically expedient to act otherwise. There is no political end, regardless of its importance, that justifies bypassing international human rights law.
Disproportionate and unnecessary restrictions to freedom of expression
The right to freedom of expression is envisaged in Article 10 of the European Convention of Human Rights and in Article 19 the International Convention on Civil and Political Rights. Spain is bound by both treaties. In order to comply with them, any restriction on freedom of speech by Spanish authorities must comply with the following requirements.
- First, any limitation must take into account that political discourse is an extremely valuable category of speech. Political debate on the Catalan referendum is entitled to the highest degree of protection under international law.
- Secondly, any limitation must be provided by a clear, predictable legal rule. Law enforcement actions against the referendum that have a restrictive effect on freedom of speech and that lack a clear legal basis do not comply with international human rights law.
- In third place, any limitation must have a legitimate aim, such as upholding public order or national security, and must be strictly targeted to that aim. Measures aimed at preventing the referendum from taking place cannot be used in order to stifle pro-independence and pro-referendum speech.
- Lastly, any limitation must be necessary and proportionate. Government actions fail to meet this requirement when there are alternative ways of achieving a legitimate aim that are less restrictive to freedom of expression.
Some of the actions taken by the Spanish government in order to prevent the Catalan referendum do not meet the requirements of legality, legitimate aim, proportionality and necessity. Thus, they are contrary to international law.
- The Spanish government has attempted to search the Barcelona headquarters of a pro-independence political party Candidatura d’Unitat Popular (CUP) on 20 September without judicial warrant, and it might have succeeded in carrying similar unauthorised searches in the offices of particulars and private companies in Terrassa (19 September) and Vilanova i la Geltrú (21 September). In doing so, it has failed to meet the legality requirement.
- Spanish authorities have suspended public events and talks concerning the Catalan referendum in several cities across Spain, including Madrid (17 September), and Gijón (16 September). These events had no relation to the logistics of the organization of the referendum. Their prohibition had no legitimate aim, and was not necessary in order to prevent the referendum from taking place.
- Since at least September 26, the Spanish government has blocked dozens of websites owned by particulars and private organizations that encouraged the participation in the referendum, but that did not contribute to the logistics of its actual organization (some examples might be the blocking of http://assamblea.eu; http://www.vullvotar.cat, or http://www.webdelsi.cat). In addition to being unnecessary in order to prevent the referendum, blanket website blocking measures are disproportionate by default, as they curtail both legal and illegal content. In carrying out these measures, the Spanish government has censored large amounts of political speech.
Protestors must be protected, not intimidated
Freedom of assembly and the right to protest is an essential part of the public debate. As we highlighted in our 2016 Principles on the Protection of Human Rights in Protests, public protests are not an exception or an anomaly in a well-ordered society, but an integral part of it.
In its 2016 Guidelines on Freedom of Peaceful Assembly, the Organisation for Security and Co-operation in Europe (OSCE) has stated that spontaneous protests are an inherent part of the right to freedom of assembly. Governments have a positive duty to protect and facilitate them.
ARTICLE 19 is concerned that the actions of authorities in Spain may have a chilling effect on the exercise of freedom of assembly and the right to protest in Catalonia. In order to ensure that this is not the case, the following steps should be taken.
- The role of police forces in public demonstrations is to protect the right to protest, not to intimidate citizens. In the coming days, police forces must refrain from indiscriminately surveilling and identifying protestors taking part in pro-referendum demonstrations.
- No criminal prosecution should be instituted against individuals merely for taking part in pro-referendum protests, including as authors of a crime of sedition. This principle extends to both the actual institution of such criminal proceedings, and the threat of doing so, which will have a chilling effect.
- As the OSCE has pointed out, the presence of police in protests should be proportionate to the public order risks. The current massive concentration of police forces in Barcelona, and the provocative statements issued by certain police officers in social media, will only contribute to aggravate the political tension, and may intimidate citizens in the exercise of their rights.
The chilling effect of social and political tension
The ongoing political clash between Spanish and Catalan authorities has resulted in unprecedented social and political tension in Catalonia. Such tension has an inevitable chilling effect on the freedom of expression of some of its citizens, which may be reluctant to make their views public in fear of social, political and law enforcement backlash.
In view of this, we call on Spanish and Catalan authorities to take the following actions.
- Under international law, Spanish and Catalan authorities have a positive obligation to ensure that freedom of expression and freedom of assembly are not hindered by particulars and non-state actors. Therefore, all citizens must be effectively protected from aggression and intimidation by other particulars and organizations.
- Furthermore, in the days prior to and after 1 October 2017, the authorities should make sure that their actions do not increase social tension in Catalonia. On the contrary, they should promote dialogue, tolerance and acceptance of different views, radical as they might be perceived to be. Strict adherence to international human rights law will contribute to this end, and will serve as a basis for finding a solution to the ongoing political conflict.