FREEDOM OF EXPRESSION AND OPINION IN THE SPANISH STATE European Parliament, Brussels, 2 June of 2015 Santiago Vidal

Dear Members of Parliament, It is an honour to participate in this panel among such prestigious personalities and to be able to do so in such an important setting as the European Parliament. It is not common for a judge to appear publicly to explain the serious reversal of fundamental human rights -such as freedom of expression, opinion and intellectual property- which Spanish people assumed to be well-established after 37 years of democratic transition. This reversal is due to a clearly authoritarian policy followed by the Partido Popular ( Popular Party) since it came to power four years ago, and benefited from an absolute majority both in Congress and in the Senate, a party which has in turn generated a flood of ultra conservative laws that have been adopted, despite strong opposition from all other political parties represented in both chambers, and against the opinion of a large number of social organizations, which have for years struggled to defend individual rights. This reversal has, unfortunately, found shelter in the leadership of the Spanish judiciary, so we can clearly affirm that the essential separation of powers (legislative, executive and judicial) does not exist in Spain today. The reason for this can be found in the fact that the system for appointing both members of the Constitutional Court and the General Council of the Judiciary, is more closely based on political affinities than on professional merit. The most recent examples of this attitude, aimed at recovering a form of government reminiscent of the absolutist time in our history, before the demise of the dictatorship, are the latest reforms of the Penal Code (Act 4/15 of 27 April) and the Law on Public Safety (Organic Law 2/15 of 14 March), that the Spanish government has decided to publish in the Official Gazette despite a firm rejection from all civil and political society. Both rules severely restrict the right of citizens to express their opinion in the media, publicly to reject certain aspects of State policy by means of peaceful demonstrations, or to put in writing a draft of an alternative Catalan constitution to raise a debate among public opinion. The 1978 Spanish Constitution is characterized by its rigidness. It has never been changed except for the norm -requested by the European Union- on the external deficit ceiling, and the interpretation of many of its provisions is clearly ambiguous. By now, many of you may be wondering about the attitude of the courts when facing this authoritarian tendency, given our constitutional role in the protection of fundamental rights. In other words, have judicial top representatives done anything to rectify this undemocratic diversion of

power? I fear that the answer to your question will only increase your concern. That the Spanish judicial system has many accumulated deficiencies -as highlighted in the 2014 report of the Commission of Justice of the European Union- is both an undeniable and a necessary fact to be borne in mind, as it is up to judges to ensure complete respect for the basic rights of all citizens. Having said that, excessive bureaucracy and slow judicial processes linked to a chronic shortage of judges on active duty (the ratio in Spanish is 10.3 per 1000 inhabitants, whereas the European Union average is 14.7), makes it impractical to carry out this responsibility in an efficient manner. It also shows the urgent need to completely reform the judicial system if we want to guarantee the fundamental right of everyone to effective judicial protection as enacted in Art. 6.1 of the ECHR and Art. 24.1 CE. The situation has been so since the year 2000 because the Spanish State has not been at all interested in providing the financial and material resources that would be needed to remedy this disgraceful situation. This is not, however, the result of negligence or incompetence on the part of our leaders. On the contrary, it is a well-thought out intention. The less resources courts have, the less will be their real operational capacity to control the excesses that may be committed by the Administration in the, what I dare to call, diverted exercise of its functions. But, unfortunately, this is not the worst aspect of our legal system, because the interpretation of the law made by the judiciary, particularly by the Constitutional Court and the General Council of the Judiciary (Consejo General del Poder Judicial) shows that the Spanish system falls considerably short of the established parameters ensured in international legislation and justice. And, as I said earlier, this is mainly due to the mechanisms used for appointing the members of judicial bodies. In accordance with Art. 10 of the ECHR, it is quite true that Art. 20 of the Spanish Constitution literally guarantees the right to freedom of expression and opinion as an inherent part of any democratic system. But we should ask ourselves what this general declaration means if, in practice, emerging laws and the courts responsible for making these laws effective are limiting their use to levels which were totally unthinkable a decade ago, with the imposition of severe disciplinary sanctions on any natural or legal person who dares speak his mind when, of course, the authorities do not like it. Please allow me to give you some concrete examples: 1. Since 2012, all requests addressed to the Government of Spain both from the Catalan Parliament and the Government of Catalonia, to call a democratic referendum on self-determination, have been systematically rejected. 2. On 9 November 2014 the Government of Catalonia and over 100 civil organizations merely called for a public enquiry into the right to decide the future of the Catalan nation, to find out the number of people entitled to vote who wished to continue the process for a national transition. The enquiry was banned by the Spanish government with the support of the Constitutional Court

3. On 21 January 2015 the Spanish State Attorney General initiated criminal proceedings against the President of Catalonia and three Ministers, with public opposition from all Catalan prosecuting attorneys on duty, and accused them of not having prevented –by using the police force– 2,400,000 Catalan people (nearly half of the electorate) from using their right to vote. The President and the Ministers now stand accused by the Spanish High Court based in Catalonia, pending trial. 4. On 7 March 2015 the General Council of the Judiciary imposed a sanction of a three years' suspension of salary and job to myself for "disloyalty to the Spanish Constitution" for having written and published a draft constitution for a future Catalan Republic on 31 January, in cooperation with a team of 10 prestigious lawyers. 5. On 21 April 2015 the Spanish Government challenged the decrees approved by the Governing Board of the Catalan Government, which appointed the commissioners responsible for designing hypothetical future Catalan State structures, in case the elections due to take place on 27 September 2015, the democratic mandate of the Catalan people, result in a clear majority in favour of the creation of the Republic of Catalonia. These are just the latest examples of what I have described as regression, which is manifestly harmful to the fundamental right to freedom of opinion, assembly and expression, recognized in international law and European Union treaties. In this context, perhaps the time has come to analyze if this situation is in accordance with the democratic founding principles of the European Union, of which Spain is a member state. Is it consistent to prevent just under six million citizens to freely and peacefully express their will about something as momentous as if Catalonia must continue to be a simple Autonomous Community within Spain, or has the right to decide its future? It is important to clarify that the desire to vote on this issue came from civil society itself, and not from the political parties or the government of Catalonia. Public opinion surveys published by the CIS (Sociological Research Centre) show that in 2010 only 32.3% of citizens considered it necessary to exercise the right to vote on this particular issue. In 2012 the percentage had already reached a 47%, and the last survey in October 2014 registered a record percentage of 71.9%. That is, three out of every four voters are demanding to be allowed to decide on this matter. Needless to say that many of them are not separatists, but simply people who want to exercise this fundamental democratic right. At this point, we ought to put forward one of the key doubts about the legal limits that can be imposed -always by means of democratic methods- on the right to people’s free expression, as explicitly contained in section 2 of the aforementioned Art .10 of the European Convention: that is proportionality. And in the case at hand, it is obvious that the Spanish State has often argued that accepting to convene a referendum in Catalonia may affect Spain’s foreign relations, as a result in favour of independence would entail changing the boundaries. That's why Art. 2 of 1978 Spanish Constitution refers to the "indissoluble unity of the Spanish Nation". The conclusion is therefore

obvious: without prior modification of the constitutional text (that the Spanish Government has clearly stated it has no intention to bring up for discussion) it is not feasible that the Catalan people may express themselves about their future. This legal political reasoning is not compatible with the sentence of the European Court of Human Rights dated 07.12.76 (case Handyside v / UK), the sentence dated 27 February 2001 (Jerusalem v / Austria); even less so with the July 2000 sentence of the International Court of Justice which validated the unilateral declaration of independence of Kosovo from Serbia, nor with the Clarity Act based on the rulings of the Supreme Court of Canada regarding conditions for secession negotiations with Quebec. This was well understood by the UK which recently allowed the holding of the referendum on independence in Scotland. This international jurisprudence, which is mandatory for Spain, puts into context that the right of people to express their opinion on whether or not to continue united to the Spanish state it had hitherto been part of, is legitimate and worthy of support, providing it is democratically and peacefully expressed in a referendum or free plebiscite elections held with equal opportunities for all options, and which reflects the will of a qualified majority. In fact recent legislation just gives legal status to what the great Europeanist leader, Olof Palme expressed loud and clear in 1968. "Democracy demands respect for others. One cannot force a system of government upon a nation from outside. The people must have the right to decide over their own destiny. It therefore presupposes national right to self determination". I sincerely regret the permanent prohibitionist reaction on the part of the Spanish government in relation to Catalonia. This reaction can only be understood as the fear of losing one of the territories that, as before with colonies in Central and South America, provides more wealth, which is also why the Spanish government has always refused to correct the fiscal deficit (between 11,000 and 16,000 million a year) between the two communities. But history has its own evolution pace, and, as with the Constitutional Conventions or Citizen Assemblies of British Columbia in 2004, the Netherlands in 2006, Ontario in 2007, Quebec in 2009, Iceland in 2010 and Ireland in 2012, the day will come when the Catalan people -if still prevented from holding a referendum-, will decide to move forward and become a constituent nation with a republican constitution to be drafted which grants the freedom that has for so long been denied. We know that democracy is not perfect, despite it being the best possible system of government and coexistence invented by man throughout history. However, all Catalan people are asking for in this historic and unique moment, is that Spain respects the right of Catalans to decide their future, within the framework of International and European law. I am absolutely sure that we will have the support of the European Parliament when we reach this crucial moment. Thank you.