The Council of Europe (CE) has stated that peacefully defending the independence of a territory is covered by the freedom of expression and, therefore, cannot be prosecuted. This conclusion is taken from the report of the Secretary General of the Council of Europe, Marija Pejčinović Buric, entitled "Freedom of political speech: an imperative for democracy". In this document, Pejčinović has argued that proposing structural or constitutional changes "democratically" in a state is protected by "freedom of expression". The text does not speak directly of the Catalan case, however, it is based on the Cilevics report which specifically addressed Spain's strategy against the leaders of the Catalan independence movement.
Pejčinović determined in her report that it was only valid to take legal actions against movements that defend the independence of a territory if they incite violence. With the exception of this scenario, the Council's report maintains that it is very important for states to protect freedom of expression, and that proposing changes to the structure of the territory is not something that can be pursued. This is where it points out, in particular, that such "changes" also include "the advocacy of independence for a region" in Europe.
The basis of the Pejčinović report
The secretary general of the Council of Europe has based her new report on several documents, conferences and resolutions of other departments of the Council, such as the Parliamentary Assembly, the Venice Commission, the European Commission against Racism and Intolerance, and the Group of States against Corruption (GRECO). Another of the sources on which the document is based is an academic event at the University of Geneva, held with the support of the Council of Europe, where among the participants was the UN Working Group on Arbitrary Detention, which in 2019 denounced the Spanish state for the pre-trial prison of the Catalan pro-independence leaders.
Although there is no direct reference to the Catalan process, part of the bibliography that supports Pejčinović's work is related to the Catalan independence movement. For example, the text is based on Resolution 2381 of the Parliamentary Assembly of the Council of Europe, also called the Cilevics report. That document admits that the Catalan independence leaders were "political prisoners" and urged Spain to reform its Penal Code, specifically, the crimes of rebellion and sedition. In addition, this report makes it clear that there was no violence by the public during the Catalan independence referendum on 1st October, 2017. The new report also reiterates the earlier definition of political prisoners: “politicians who are detained for making statements in the exercise of their political mandates that respect the limits of freedom of speech fall under the definition of political prisoners and should be released without delay".
The report prepared by Pejčinović is a further recognition in favour of the Catalan independence movement and its protection under the umbrella of freedom of expression. Pro-independence parties have pointed out that this text could pave the way for rulings favourable to the Catalan leaders who have taken their cases to the European Court of Human Rights (ECHR).