The Standing Committee of the General Council of the Judiciary at its ordinary meeting today unanimously approved the following decision: 

‘With regard to the resolution adopted by the Parliamentary Assembly of the Council of Europe on 21 June, which makes specific recommendations to the Turkish and Spanish authorities as part of its examination of politicians’ freedom of speech in the exercise of their mandate, the Standing Committee of the General Council of the Judiciary wishes to state the following: 

1. As regards our country, the Assembly recognises that Spain is a living democracy, with a culture of free and open public debate, and that the mere expression of pro-independence views is not a ground for criminal prosecution. It is also indicated that the Assembly fully respects the constitutional order of Spain. 

2. Notwithstanding this recognition and clearly contradictory to it is the following statement:

“Nevertheless, several senior Catalan politicians were prosecuted and eventually convicted to long prison terms for sedition and other crimes, inter alia for statements made in the exercise of their political mandates, in support of the unconstitutional referendum on the independence of Catalonia in October 2017” (Section 9). 

In this regard, we would like to stress that those prosecuted in Special Case 20907/2017 were convicted, after a public trial with all procedural guarantees, for crimes of sedition and misappropriation of public funds, pursuant to the Criminal Code adopted in 1995 by the legislative branch, whose proponents designated it the “Criminal Code of Democracy”. None of the defendants was convicted for the expression of their opinions, as the Supreme Court stated in Judgment 459/2019: “No punishment is meted out for voicing opinions or doctrines contrary to the current constitutional status, nor for advocating the overriding of the existing political framework. The freedom of the defendants, in this respect, remains unaffected. Our system does not identify with those that make militant democracy one of their hallmarks (see Constitutional Court judgments 48/2003, 136/1999 and 159/1986).  The ideas advocated by the defendants have enabled them to take part in legislative elections. It is these secessionist ideas that continue to sustain the regional government of Catalonia. Their legitimacy is not in question. The object of the criminal charge - as we have declared proven - is the shattering of the constitutional agreement, and their doing so through the approval of laws in open and recalcitrant disregard of the orders of the Constitutional Court. What is sanctioned, in short, is not voicing an opinion or advocating a secessionist option, but defining a parallel, constituent legality and mobilising a mass of citizens to oppose the implementation of the legitimate decisions of the judicial authority, holding a referendum declared illegal by the Constitutional Court and the High Court of Justice of Catalonia, whose result was the necessary condition for the entry into force of the law of transition, which implied a definitive break with the structure of the State”. 

Based on the reading of the grounds for this judgment, and other grounds of a similar nature, as well as the facts declared proven, it is very clear that the Catalan secessionist politicians were not convicted for their political ideas nor for their free expression of these ideas. Neither were they convicted for the legitimate exercise of the right to assembly and protest in defence of their beliefs and convictions. 

In similar terms, in a press release issued on 3 June by the Ministry of Foreign Affairs, European Union and Cooperation, the Spanish Government expressed its opinion that the report “starts from a misguided approach, namely, the presumption that pro-independence political leaders were prosecuted for expressing their ideas in the exercise of their mandate” and that “this prejudice taints the entire text, is reflected in the resolution and recommendations, and deserves general condemnation”. 

3. Paragraph 9.8 of the resolution states that “the Assembly (...) respects the independence of the Spanish tribunals to solve pending appeals, respecting as well the right to appeal to the European Court of Human Rights in due course”, adding in Section 10.3.7 that its recommendations should be implemented “according to the principles of the rule of law as defined by the Council of Europe, paying due attention to the principle of equality of all citizens before the law”. 

4. Also in open contradiction to these statements, Section 10.3 of the resolution invites the Spanish authorities, inter alia, to consider dropping extradition proceedings against Catalan politicians living abroad, as well as dropping the remaining prosecutions of the lower-ranking officials involved in the unconstitutional referendum. 

The Standing Committee bemoans the fact that the Council of Europe - whose stated objectives include the defence, protection and promotion of the rule of law - has approved a report that includes recommendations to Spanish judges indicating that they should lean in a particular direction when making decisions in relation to the prosecution of crimes, ignoring the principles of legality, separation of powers, judicial independence and equality before the law.’