The Geneva-based International Commission of Jurists (ICJ) warns that a guilty verdict in the current Catalan independence trial in Spain's Supreme Court could "undermine trust in the rule of law in Spain." In an interview with the ACN news agency, the lawyer and director of the association in Europe, Roisin Pillay, says that if the court condemns the 12 pro-independence leaders, it would send "a very unfortunate message" and could "create the perception that it has been a political process ". The ICJ considers that rebellion and sedition charges are "an overreach of criminal law" particularly given the apparent "lack of evidence of the use of violence." For this reason, she sees it as "worrying" that an issue "which was a legitimate exercise of political opinion and association" has been treated as a penal matter. "It's a question of legitimate political expression and engagement this is better resolved outside the criminal courts," she asserts.
In particular, Pillay argues that accusations of "such serious offences" as rebellion and sedition are being applied in a case where "apparently there was no use of violence" and that "it presents a high risk of violation of the rights of free expression, association and assembly guaranteed in international law".
To interfere with these rights through criminal charges, says Pillay, it must be shown that it is "absolutely necessary in the circumstances and proportionate to the public interest involved. We think that that's quite difficult to do in this case."
Political dimension
Pillay refuses to describe the case of the 12 Catalan pro-independence leaders as a political trial and believes that "the courts must be given an opportunity to apply the law." "We have to wait for the result of the trial" before this is assessed, she warns. However, she considers that it is a "politically sensitive" case and that it is "essential" to show that "it is a fair trial and takes Spain's international legal obligations fully into account, including its human rights obligations."
Asked about the political profile of the witnesses called, Pillay claims that the trial "is essentially about political action" and sees it as "unfortunate" that, as a consequence, this "involves a good deal of political testimony." However, she hopes that "political involvement can be reduced to a minimum". "We hope the court will decide solely on the basis of the law," she says.
Speeding up the trial
Another issue that Roisin Pillay commented on was the possibility that, because of the calling of a Spanish general election for April 28th, the conduct of the case is being affected by the proximity of the election campaign. Pillay warns that it will have to be examined whether "the speeding up of the trial has had an impact on the defendants' ability to defend their case," especially "if the reason does not have to do with the case but with the elections."
For example, she indicates that it would be problematic if the independence leaders had difficulties "in speaking to their lawyers or preparing their defence" because of the acceleration of the judicial procedure.
Exceptional case
"I don't know any case that is directly comparable with this one," says the ICJ's director for Europe. However, Pillay links the referendum trial to "a general trend" to "use criminal law in relation to political voices which are not well received by governments." As an example, she cites the use of the anti-terrorism law in Turkey "against political parties".
"It is worrying to see in Europe and in the rest of the world how criminal law is used against political action," she says.
The road to Strasbourg
With regard to the appeal path that the case may take at the European Court of Human Rights (ECHR), Pillay gives the view that, if the court accepted the case, it would then be subject to "very serious scrutiny" since it is linked to the right to freedom of political expression and involves "measures against political parties and political protesters". In the opinion of Pillay, who within the ICJ leads the body's work with the Council of Europe and the ECHR, these rights are "fundamental to any democracy, even when a speech or a protest is not well received."
"The ECHR would submit any conviction to very serious scrutiny and I think it would be quite a problematic case," she says. In this regard, she explains that states "have a very narrow margin for action and are subject to rigorous scrutiny of the criminal measures they can take against politicians."
Thus, Pillay anticipates that, if there is a conviction, the Strasbourg-based court will study the issues related to the freedom of expression, free association and assembly. In this analysis, she assures that the court "will first look at the quality of the Spanish laws" and "whether the crimes of rebellion and sedition have been defined and applied correctly" in compliance with the European Convention on Human Rights. Secondly, the court will analyze if "the restrictions of these rights were really necessary and proportionate" in the case of the 12 Catalan leaders.
The ICJ
The International Commission of Jurists, based in Geneva, was created in 1952 and is active on five continents. The first point of its mission is "to ensure that international law, especially human rights law, is utilised effectively for protection and is implemented effectively." It also has the objectives of guaranteeing civil rights, safeguarding the separation of powers and guaranteeing the independence of the judiciary and the legal profession.
The organization consists of sixty eminent judges and lawyers from all over the world.