Published on 17 July 2023

FIFTH SECTION

Application no. 29780/20 Josep COSTA I ROSSELLÓ against Spain and two other applications – see appended list communicated on 27 June 2023

SUBJECT MATTER OF the CASE

1. The first application (no. 29780/20) was lodged by a Spanish national, Mr Josep Costa i Rossello, who was born in 1976, lives in Sant Adrià de Besós.

2. The second application (no. 33702/20) was lodged by a Spanish national, Mr Eusebi Campdepadros i Pucurull, who was born in 1961, lives in El Catllar and is represented before the Court by Mr G. Boye Tuset.

3. The third application (no. 48537/20) was lodged by Ms Elsa Artadi i Vila and twenty-nine other deputies of the Parliament of Catalonia (a list of the applicants is set out in the appendix). They are represented before the Court by Mr G. Boye Tuset.

4. The three applications are based on the same facts.

5. The facts of the case, as submitted by the applicants, may be summarised as follows.

6 . In September 2017 the Catalan Autonomous Government ( Generalitat) and the Catalan Parliament (with the assistance of several civil associations) unilaterally decided to secede from Spain. On 6 and 7 September 2017 the Catalan Parliament passed two laws governing a referendum on the independence of Catalonia and a “transition” law for the republic of Catalonia.

7. Those laws were suspended, and later declared unconstitutional by the Spanish Constitutional Court, both for serious procedural breaches and direct contradiction to the Spanish Constitution and the Statute of Catalonia ( Estatuto de Autonomía ).

8. Notwithstanding the suspension of the laws, on 1 October 2017 the referendum took place. The Catalan Government proclaimed that the secessionist proposal had prevailed.

9. On 27 October 2017 the Catalan regional president formally declared the independence of Catalonia but suspended its effects with a view to “negotiating with the Spanish Government”.

10. The declaration of independence was suspended and later quashed by the Constitutional Court. The Spanish government applied Article 155 of the Spanish Constitution, the Catalan regional government was dismissed, the Parliament of Catalonia was dissolved, and new elections were called for December 2017. The Catalan president and several politicians left Spain with a view to escape prosecution.

11. On 30 October 2017 the Spanish Attorney General filed a complaint for acts constituting crime of rebellion or, subsidiarily, crime of sedition, and crime of misappropriation of public funds against all those who were members of the Governing Council of the Generalitat of Catalonia as well as several social leaders.

12 . By a judgment of 14 October 2019, the Supreme Court convicted members of the Catalan regional government of the offences of sedition and embezzlement [1] .

13. In the context described above, the Parliament of Catalonia passed six resolutions from 9 November 2015 to 26 September 2019 defending the alleged right of Catalonia to become independent and criticising the response of the Spanish State to the will of the Catalan people to achieve a peaceful agreement. The resolutions mentioned, inter alia , the need to guarantee the recognition of essential democratic principles and social, civil and political rights, especially the right to self-determination in Catalonia. Those resolutions were proposed by a group of parliamentarians who comprise the applicants in the third application.

14. Some of the resolutions further stated that Catalonia had exercised the right to self-determination in the independence referendum of 1 October 2017, held in the context of threats and repression by the Spanish State before, during and after the voting; they noted the physical, institutional and legal violence exercised by the Spanish State, which had prevented the holding of the vote in the best possible conditions for normal democratic processes, and added that, instead of prosecuting those guilty of that violence, the Spanish authorities had imprisoned and/or forced into exile many of those responsible for the holding of a legitimate and legal referendum.

15 . The Spanish government brought proceedings in the Constitutional Court after each resolution was passed in order to challenge them. By six rulings from 2 December 2015 (judgment no. 259/2015) to 18 December 2018 (decision no. 181/19), the Constitutional Court quashed all the resolutions and declared them unconstitutional.

16 . In all its rulings the Constitutional Court held that the quashed resolutions had violated the principle of democracy and the primacy of the Constitution because the Parliament of Catalonia had acted as the holder of a constituent power deriving from the Catalan people, which it had recognised as a sovereign legal subject, and consequently had asserted its legitimacy to adopt all the necessary decisions for the creation of an independent State. The Constitutional Court emphasised that the unconditional primacy of the Constitution was a guarantee of democracy both because it was a source of legitimisation and because of its content, and also because it provided for procedures for its revision. In a social and democratic State under the rule of law, it was not possible to set the alleged democratic legitimacy of a legislative body against the unconditional primacy of the Constitution, since democratic legitimacy and constitutional legality could not be set against each other to the detriment of the latter. Indeed, the democratic legitimacy of a legislative body did not preclude the need to respect constitutional legality, since the legitimacy of an act of public power essentially consisted in its conformity with the Constitution and the legal system. The political aspiration of an Autonomous Community to amend the existing constitutional order could therefore be defended while respecting the Constitution and the procedures for its formal revision.

17 . The Constitutional Court found that the above-mentioned resolutions had violated the constitutional standards that granted the Spanish people national sovereignty and accordingly affirmed the indissoluble unity of the Spanish nation. The recognition of the people of an Autonomous Community as a sovereign legal subject entailed the simultaneous denial of national sovereignty, since the same could not be attributed to any other subject or organ of the State or to any other section of that people. Lastly, the Constitutional Court’s rulings affirmed that the resolutions had also violated the provision of the Constitution that regulated its own revision procedure. The resolutions and their planned implementation meant that the Parliament of Catalonia was ruling out the use of the constitutional channels expressly provided for a redefinition of the constitutional order and had had recourse to a process that was incompatible with the rule of law.

18 . Despite the fact that the Constitutional Court had held on six occasions that the content of the above-mentioned resolutions was contrary to the Spanish Constitution, the Parliament of Catalonia initiated another two procedures with a view to having a similar resolutions adopted. In that connection, the Spanish government, by actions seeking the enforcement of the Constitutional Court’s judgment no. 259/2015, challenged the acceptance of those draft resolutions for processing by the Bureau of the Parliament of Catalonia (“the Bureau”).

19. The first draft resolution of 22 October 2019, read as follows:

“Therefore, [the Parliament] reiterates and will reiterate as many times as the members of parliament wish ... the defence of the right to self-determination and the vindication of the sovereignty of the people of Catalonia to decide their political future.”

20 . The Constitutional Court, by decision no. 9/2020 of 28 January 2020 (upheld by decision no. 53/2020 of 17 June 2020), declared the Bureau’s acceptance of that draft resolution for processing null and void. The Constitutional Court reiterated that the content of the resolution was in direct contravention of the ruling in judgment no. 259/2015. It held that the insistence of the Parliament of Catalonia on affirming the sovereignty of the people of Catalonia and the defence of the right to self-determination constituted an attempt by unacceptable de facto means to revise the Constitution by procedures other than those envisaged for that purpose, or to render the Constitution ineffective in practice. Such actions were incompatible with the rule of law.

21 . Lastly, and for the eighth time, the Constitutional Court, by means of decision no. 16/2020 of 11 February 2020 (upheld by decision no. 54/2020 of 17 June 2020), allowed an action by the Spanish government for seeking the enforcement of its judgment no. 259/2015, this time in respect of a decision by the Bureau of 29 October 2019 to accept for processing a motion with content contrary to the above ‑ mentioned judgment. The relevant paragraph of the motion read as follows:

“1. The Parliament of Catalonia: Expresses its will to concretely exercise the right to self-determination and to respect the will of the Catalan people.”

22. On 11 October 2018 the Parliament of Catalonia passed Resolution 92/XII which contained a declaration of censure against the monarch and a call for the abolition of the monarchy. The resolution rejected and condemned the stance of King Felipe VI in relation to the events of 1 October 2017 in Catalonia in the context of the holding of the “referendum of self-determination”, and reaffirmed the Parliament’s commitment to republican values. The resolution was proposed by a group of parliamentarians who comprise the applicants in the third application.

23 . In so far as relevant, the resolution contained the following statements:

“The Parliament of Catalonia, in defence of Catalan institutions and fundamental freedoms: ...

(c) Rejects and condemns the stance of King Felipe VI, his intervention in the Catalan conflict and his justification of the violence carried out by the police on 1 October 2017.

(d) Reaffirms the commitment to republican values and supports the abolition of such an outdated and anti-democratic institution as the monarchy.”

24 . That resolution was declared unconstitutional and quashed by the Constitutional Court’s judgment no. 98/2019 of 17 July 2019. The ruling found that the text of the resolution exceeded the powers conferred on the Parliament of Catalonia and was contrary to the constitutional form of the institution of the monarchy. The Constitutional Court considered that the expressions of rejection and condemnation of the King’s interventions, together with the call for the abolition of the monarchy, entailed the attribution of political responsibility to the King, which was contrary to the constitutional status of the monarch. In addition, the Constitutional Court reiterated that parliaments of Autonomous Communities did not have jurisdiction to judge the stance taken by the Head of State or parliamentary monarchy as a State system.

25 . On 25 July 2019 the Parliament of Catalonia, despite the above-mentioned judgment of the Constitutional Court, approved Resolution 534/XII reaffirming its censure of King Felipe VI for his stance and his intervention in relation to the democratic conflict caused by the denial of civil and political rights in Catalonia by the Spanish State.

26 . The resolution was declared unconstitutional in part and quashed by Constitutional Court’s decision no. 184/2019 of 18 December 2019 (upheld by decision no. 33/2020 of 25 February 2020) as being contrary to its ruling in judgment no. 98/2019.

27. The Parliament of Catalonia, disregarding the decision of the Constitutional Court, attempted to reintroduce a similar resolution on 22 October 2019 with the following text:

“Therefore, [the Parliament of Catalonia] reiterates, and will reiterate as many times as members wish, the censure against the monarchy.”

28 . The Government, by an action seeking the enforcement of judgment no. 98/2019, challenged the Bureau’s acceptance of the above-mentioned draft resolution for processing. On 28 January 2020 the Constitutional Court, by decision no. 11/2020 (upheld by decision no. 55/2020 of 17 June 2020), declared the Bureau’s decision unconstitutional and null and void, in that it was contrary to the ruling in judgment no. 98/2019.

29 . In each of the enforcement decisions challenged by the applicants (both those relating to the independence of Catalonia and those relating to the criticism of the monarchy), the Constitutional Court expressly included the obligation to give personal notice of those decisions to the first two applicants as members of the Bureau, warning them to refrain from taking any action aimed at complying with the resolutions which had been declared unconstitutional. Those addressees were reminded of their duty to thwart any initiative, legal or material, that would directly or indirectly imply disregarding or circumventing the nullity of the resolutions concerned, as well as disregarding or circumventing the rulings of the Constitutional Court in its judgments nos. 259/15 of 2 December 2015 and 98/2019 of 17 July 2019. Lastly, the Constitutional Court warned the members of the Bureau, including the first two applicants, of the possible liability, including criminal, which they might incur in the event of non-compliance with the enforcement decisions.

COMPLAINTS

30 . The applicants complained, as members of the Bureau of the Parliament of Catalonia, about the events described in paragraphs 18-21 and 25-29 above stating that the Constitutional Court had applied an extensive interpretation of its powers of enforcement in the enforcement proceedings concerning its judgments nos. 259/2015 and 98/2019. That had entailed an unacceptable interference with the autonomy of the Parliament of Catalonia and had prevented them, as vice-president and secretary of the Bureau of the Parliament, and the Parliament of Catalonia itself, from carrying out their tasks with a view to holding debate on the issues of general interest addressed by the parliamentary resolutions concerned.

31. The applicants argued that the decisions of the Constitutional Court to prohibit debate on the independence of Catalonia or on censure of the head of State had implied “coercion exercised against the members of the Bureau to make the prohibition effective, namely by ordering them to prevent the processing of initiatives that could give rise to such debates under threat of criminal sanctions that include[d] the loss of their position”. They complained of the “duty imposed, without a legal basis, by the Constitutional Court on the Bureau to prevent or paralyse any initiative” on the aforementioned subjects.

32. In that regard the applicants alleged a breach of the rights protected under Articles 10 and 11 of the Convention and Article 3 of Protocol No. 1 to the Convention, inasmuch as the Bureau had been placed under an obligation to prevent such debates from taking place. That had also entailed a breach of Article 1 of Protocol No. 12 to the Convention on account of the disregard for the political opinions of all the members of Parliament.

33 . Lastly, the applicants complained under Articles 6 and 13 of the Convention about the short time-limits for appealing against the enforcement decisions. They also complained about the absence of an oral hearing in the enforcement proceedings.

34. In their capacity as parliamentarians and as the “promoters” of the resolutions judged unconstitutional (see paragraphs 18-21 and 25-29 above), the applicants complained under Articles 10 and 11 of the Convention and Article 3 of Protocol No. 1 to the Convention about the decisions of the Constitutional Court which had obliged the Bureau to prevent debates on certain issues from taking place. That had also entailed a breach of Article 1 of Protocol No. 12 to the Convention on account of the disregard for the political opinions of all members of Parliament. They also alleged a lack of a legal basis for the Constitutional Court’s decisions.

QUESTIONS TO THE PARTIES

1. oo Are the applications compatible ratione personae and materiae with the provisions of the Convention and can the applicants claim to be victims of violations of their rights as individuals, insofar as:

- the applications concern a dispute between public institutions - a regional Parliament and the State;

- the complaints, as formulated, concern the authorities’ reaction to resolutions adopted by a regional Parliament and to acts undertaken by some of the applicants in their capacity, respectively, of Vice-president and Secretary of the Bureau of the regional Parliament of Catalonia and of Members of the regional Parliament of Catalonia?

In this regard, according to the Spanish Constitutional system, can a resolution passed by a regional Parliament be considered as an act of the parliamentarians as individuals or as an act of the Parliament itself?

2. oo Assuming that the complaints of all applicants are compatible ratione personae and materiae with the provisions of the Convention, were the impugned Constitutional Court’s decisions in breach of the applicants’ individual rights under Articles 10 and 11 of the Convention, Article 3 of Protocol No. 1 to the Convention and Article 1 of Protocol no. 12, as alleged by them?

3. oo As regards applications nos. 29780/20 and 33702/20, did Article 6 of the Convention apply to the proceedings before the Constitutional Court? If so, has there been a violation of Articles 6 on account of the allegedly short time-limits to appeal against the enforcement decisions and on account of the absence of an oral hearing? Does any issue arise in this regard under Article 13 of the Convention in conjunction with some of its other provisions invoked by the applicants?

APPENDIX

No

Application

number

Applicant’s name Year of birth

Lodged on

Nationality

Place of residence

1.

29780/20

Josep COSTA I ROSELLO

1976

17/07/2020

Spanish

Spain

2.

33702/20

Eusebi CAMPDEPADROS I PUCURULL

1961

6/08/2020

Spanish

Spain

3.

48537/20

Elsa ARTADI I VILA

1976

3/11/2020

Spanish

Spain

Albert BATET I CANADELL

1979

3/11/2020

Spanish

Spain

Miquel BUCH I MOYA

1975

3/11/2020

Spanish

Spain

Narcís CLARA LLORET

1960

3/11/2020

Spanish

Spain

Francesc DE DALMASES I THIÓ

1970

3/11/2020

Spanish

Spain

Anna ERRA I SOLÀ

1965

3/11/2020

Spanish

Spain

Lluís FONT I ESPINÓS

1958

3/11/2020

Spanish

Spain

Josep Maria FORNÉ I FEBRER

1962

3/11/2020

Spanish

Spain

Elena FORT I CISNEROS

1970

3/11/2020

Spanish

Spain

Glòria FREIXA I VILARDELL

1969

3/11/2020

Spanish

Spain

Imma GALLARDO BARCELÓ

1966

3/11/2020

Spanish

Spain

Gemma GEIS I CARRERAS

1979

3/11/2020

Spanish

Spain

Anna GELI I ESPAÑA

1978

3/11/2020

Spanish

Spain

Lluís GUINÓ I SUBIRÓS

1969

3/11/2020

Spanish

Spain

Saloua LOUAJI FARIDI

1968

3/11/2020

Spanish

Spain

Montse MACIÀ GOU

1962

3/11/2020

Spanish

Spain

Aurora MADAULA I GIMÉNEZ

1978

3/11/2020

Spanish

Spain

Marta MADRENAS I MIR

1967

3/11/2020

Spanish

Spain

Antoni MORRAL I BERENGUER

1957

3/11/2020

Spanish

Spain

Jordi MUNELL I GARCIA

1965

3/11/2020

Spanish

Spain

Teresa PALLARÈS PIQUÉ

1964

3/11/2020

Spanish

Spain

Josep PUIG I BOIX

1947

3/11/2020

Spanish

Spain

Xavier QUINQUILLÀ DURICH

1969

3/11/2020

Spanish

Spain

Josep RIERA I FONT

1963

3/11/2020

Spanish

Spain

Ferran ROQUER I PADROSA

1967

3/11/2020

Spanish

Spain

Mònica SALES DE LA CRUZ

1983

3/11/2020

Spanish

Spain

Marc SOLSONA I AIXALÀ

1976

3/11/2020

Spanish

Spain

Anna TARRÉS I CAMPÀ

1967

3/11/2020

Spanish

Spain

Francesc TEN I COSTA

1968

3/11/2020

Spanish

Spain

Joaquim TORRA I PLA

1969

3/11/2020

Spanish

Spain

[1] Several applications concerning mainly the above mentioned convictions and pre-trial detentions prior to the convictions are pending before the Court.