Article 18 or the chance that Spain is convicted for its hidden agenda against Catalonia

In March 2013, Rashad Hasanov, a leader of the NIDA youth movement and one of the most prominent civil rights activists in Azerbaijan, was arrested together with several others. They had taken part in peaceful protests against the government to denounce non-combat deaths in the military. However, in spite of the peaceful nature of the demonstrations, the detainees were accused of engaging in illegal activities to plot violence and inciting public disorder; they were also charged with “terrorism” for the possession of Molotov cocktails, held in pre-trial detention, and later sentenced by a Baku court to between six and eight years in prison. Hasanov was pardoned by the government after having served three of a seven-year sentence. A year later, in 2018, the European Court of Human Rights (ECHR) ruled that Azerbaijan had violated Hasanov’s right to liberty and, more significantly, it had violated Article 18 of the European Convention on Human Rights. In other words, the court found Azerbaijan guilty of trying to silence political dissent by means of illegal incarceration.

The parallels between this case and the detention of Jordi Cuixart and Jordi Sànchez following the events of 20 September and 1 October are so apparent that the former’s defence team presented them to the Spanish Constitutional Court and subsequently to the ECHR. The Hasanov case establishes a clear precedent which ought to lead to Spain being found guilty, for the first time ever, of having violated Article 18.

In its ruling against Azerbaijan, the ECHR took into account a number of points which are remarkably similar to those made by Cuixart’s defence team. The ECHR stated that: “The Attorney General and the Ministry of National Security made public statements insinuating, without proof, that NIDA’s activities, collectively, were illegal attempts to socially destabilize the country”. It took into account “the fact that the detainees were civil society leaders”, that “special courts and police forces were used”, and alluded to “reports by international human rights groups exposing a deterioration of human rights, especially in relation to the detention of civil society activists”.

Cuixart’s defence team reminded the Constitutional Court, though the Spanish judges failed to take note, that the parallels were abundantly clear: the state Attorney General’s speech at the opening of the 2016 judicial year directly criticizing the Catalan independence movement, calling it a “danger to democracy”; the name of the document of which initiated the whole case, “the harder the fall”; Cuixart’s position as a civil society leader; the use of special courts, such as the Spanish High Court and the Supreme Court, undermining the defendants’ right to a judge appointed by law and the right of appeal to a higher court, together with the positions of international organizations criticizing Cuixart’s arrest, persecution and subsequent conviction.

When Van den Eynde became aware of it

These elements form the basis of the case against Spain for violating Article 18. It is one of the few areas in which the lawyers defending the prisoners were all in agreement: the opportunity to have the Spanish state found guilty of limiting the  fundamental rights of politicians and activists as part of a hidden agenda to silence them. Article 18 was first mentioned on 12 February 2019, the start of the trial against the Catalan political prisoners at the Spanish Supreme Court. In his opening statement, Andreu Van den Eynde, the lawyer representing Oriol Junqueras and Raül Romeva, referred to a highly significant article of the European Convention on Human Rights, the 18^th, which the ECHR is increasingly taking an interest in. At the time, neither the court nor anyone else paid much attention to Van den Eynde’s remarks. However, Article 18 forms the backbone of the former prisoners legal strategy in their attempt to have the Spanish state found guilty.

Van den Eynde said: “Article 18 of the Convention limits the abuse of power. Though it is recognised that fundamental rights may be limited for a number of reasons, these mustn’t be arbitrary, or exceed certain limits. Any limitations on rights must be justified. In Spain however, in this case, all manner of rights have been restricted! Every right in the constitution. I looked at the constitution and I found it hard to find a right which hadn’t been affected. And I’m not talking about the violation of a right, but its restriction: degrading treatment, freedom, privacy, the inviolability of one’s home, the secrecy of communications, freedom of movement, freedom of expression, assembly and demonstration, the right to political participation, procedural rights, due process, freedom of thought…”

Van den Eynde also referred to the speech by the President of the ECHR, Guido Raimondi, at the opening of the trial just a fortnight ago. “President Raimondi stated that democracy is at risk as a result of treating the political opposition like the enemy of the State.” Indeed, in his speech, Raimondi explicitly mentioned the importance of Article 18 and concerns as to the growing number of convictions for states which had violated it.” This provision, which is crucial for a pluralistic democracy, has been breached only twelve times, but five times during the year 2018 alone. This is both a worrying and a tell-tale sign.” Van den Eynde stated that this reveals a tendency to attempt to “silence an opponent.”

Georgia, Russia, Turkey…

One of the five cases recorded in 2018 involved the Azerbaijani dissident Rashad Hasanov. Earlier, in 2017, the ECHR had issued another ruling which is considered crucial in establishing the doctrine currently applicable to Article 18: it found Georgia guilty of having violated the rights of opposition leader Vano Merabishvili. This set another key precedent for Catalonia’s pro-independence political leaders, since the court ruled that the state had abused its power in order to neutralize political opposition by improperly prolonging Merabishvili’s pre-trial detention.

Merabishvili was a prominent leader during the 2003 Rose Revolution which put an end to the Soviet era. For a number of years he was a minister in Mikheil Saakashvili’s cabinet, while for a brief period in 2012 he served as prime minister until he lost the election. After the new government took office, Merabishvili was charged and convicted of abuse of office, concealment of evidence and other crimes, as a result of which he spent nearly seven years in jail. The ECHR’s 2017 ruling declared that his fundamental rights had been violated. Jordi Pina, Josep Rull and Jordi Turull’s lawyer, cites Merabishvili’s case in their appeals to the ECHR.

According to Pina: “The clearest proof of this ideological persecution by an incompetent and partial court is that members of the Catalan government who left office following the events were only punished for disobedience, a crime which does not carry a prison sentence. As the then Spanish deputy prime minister Soraya Sáenz de Santamaría euphorically proclaimed, thanks to the jailing of its leaders, the ruling Partido Popular had ‘beheaded’ the Catalan independence movement. The ECHR naturally considers ‘political or economic motivation behind criminal prosecution’ to be at odds with Article 18 (Merabishvili v. Georgia [GC], § 332).”

More recent cases which establish precedents are also worth considering. Russia was convicted of violating Article 18 for keeping the opposition leader Alexei Navalny under house arrest for political reasons. Meanwhile, in November 2018, Turkey was also found to have violated Article 18 for detaining the Kurdish leader Selahattin Demirtas, among other reasons. The court ruled that his imprisonment served an ulterior purpose which went beyond the persecution of an alleged crime; the aim was to prevent him from carrying out his political activities in Turkey at a crucial time when a constitutional reform was underway in an attempt to bestow the President of the Republic with greater powers.

Obviously there are differences between all these cases and that of the persecution of Catalan independence leaders. But there are also many disturbing similarities and parallels. As lawyer Benet Salellas explained in an interview with this newspaper, a highly significant precedent could be set if the ECHR were to address this issue. “We would be witnessing something unprecedented, since no state in Western Europe has ever been found guilty of violating Article 18 in relation to the right to protest and political opposition. We want to raise the issue in relation to what we have always said about the political trial, throwing down the gauntlet before the ECHR, challenging it to delve deeper into a Western Europe state. It’s an all-in approach, but we think it’s worth trying, since it would allow us to build a united defence strategy with all the other political trials which are pending, such as the ‘case of the 13’, and other court cases involving demonstrations and protests. They all have in common the abuse of the legal system to silence the opposition.”