Two years ago, Dolors Bassa, Jordi Cuixart, Oriol Junqueras, Raul Romeva, Josep Rull, Joaquim Forn and Jordi Sánchez took their case to the UN Working Group on Arbitrary Detention (UNWGAD). The United Nations and its members have established a number of mechanisms to monitor the international protection of human rights, and to identify states that appear to reveal a consistent pattern of human rights violations. The Working Group on Arbitrary Detention is one of these mechanisms. It is a body composed of five independent human rights experts with a specific mandate directly from the UN Human Rights Council to investigate individual complaints of arbitrary detention and to adopt legal opinions as to whether a detention is compatible with the relevant international legal standards and with states’ obligations under international law.
Since its establishment in 1991, it has adopted more than 1,200 case opinions and conducted more than fifty country missions. It monitors compliance with one of the central elements of the international bill of rights – the right to liberty of the person. This right is protected by the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1966. Article 9.1 of the Covenant states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Violations of this right are particularly grave, and the Working Group was created to provide a faster and more effective remedy against such violations than existed in the UN context before.
One year ago, the Working Group made public its opinion in these cases, severely condemning Spain for a violation of international human rights and demanding the immediate release of the jailed political leaders and an appropriate compensation. The Opinion found that the criminal accusations “were designed to coerce them for their political opinions on Catalan independence and to prevent them from continuing to pursue their claims by political means”. As a result, Spain had not only detained the applicants arbitrarily, but had also violated the rights to freedom of expression and assembly in an attempt at silencing their claims in favor of self-determination, which are not prohibited. The Opinion also states that the jailed leaders’ actions around the September 20-21 demonstrations ‘were not violent and nor did they incite violence.’ Hence, ‘they consisted of the peaceful exercise of the rights to opinion, expression, association, assembly and participation.’
The Working Group’s opinion is thus strongly worded, and it is especially striking as it concerns a rare Western European case. Only one other of the 85 cases decided by the WGAD in 2019 concerned a Western European country – France – and that case ended without a violation being found. The opinion places Spain in the company of countries like China, Cuba, Egypt, Iran, or Venezuela, which are regular targets of condemnations by the UNWGAD.
Yet, instead of complying with the findings and freeing immediately the political prisoners, the Spanish government began a campaign of discrediting the Working Group. It claimed it had not properly understood the issue and was not impartial. It even attempted to suggest an improper influence of the leading lawyer that brought the case, Mr. Ben Emmerson QC, who had previously been UN Special Rapporteur on Counter Terrorism and Human Rights. All these reactions aim at shooting the messenger rather than dealing with the message, and consistently failed to address the legal grounds that are central in the Opinion in the first place.
Although the Working Group is not formally a court, its reputation and influence as a human rights mechanism created within the UN’s institutional framework is beyond doubt. Its role is different to that of a national or regional court, and it applies an independent and exacting standard of review to national authorities. The adversarial nature of its procedure is crucial. After receiving a communication, this is sent to the government concerned through diplomatic channels with an invitation to communicate within 90 days its comments and observations on the allegations made, both as regards the facts and on the progress and outcome of any investigation that may have been ordered. Also, as a self-imposed institutional constraint to foster independence and objectivity, when the case in question concerns a country of which one of the members of the group is a national, that member will not participate in the proceedings.
A UN WGAD ruling is the highest expression of the review of arbitrary detention that can be made by a human rights body. The European Court of Human Rights has recognized that it should be viewed as “another procedure of international investigation or settlement”. Since the deadline given by the WG expired without any action being undertaken, it seems clear that, in ignoring the international human rights bodies, Spain is acting as an outlaw state, displaying a disregard for its international human rights obligations, which have become a benchmark for a modern consolidated democracy to rise up to standards of international political legitimacy.
Neus Torbisco Casals, professor of Human Rights, Graduate Institute of International and Development Studies, Geneva; Senior Research Fellow at the Albert Hirschman Centre on Democracy and Associate Professor of Law at Pompeu Fabra University, Barcelona.
Nico Krisch, professor of international law and former co-director of the Global Governance Centre at the Graduate Institute for International and Development Studies, Geneva.
Ralph Bunche, lawyer and General Secretary of UNPO (Unrepresented Nations & Peoples Organization)