Shocking footage of abuse
The referendum and the related demonstrations were discussed at the European Parliament on the 4th of October. During this discussion, European Commission First Vice-President Frans Timmermans said, “Let me be clear: violence does not solve anything in politics. It is never an answer, never a solution. And it can never be used as a weapon or instrument. Europe knows it better than anywhere else. None of us want to see violence in our societies. However, it is of course a duty of any government to uphold the rule of law, and this sometimes requires the proportionate use of force.”
In the media, these sentences were understood as a sign of approval. Almost all the big media outlets published pieces indicating that a top Eurocrat approves of what has happened and does not see a need for any investigation. Liberties is of the opinion that the First Vice-President’s speech opens up too much room for interpretation and he needs to clarify what he really meant. In addition, we believe that there is indeed a need for a thorough investigation into the actions of the police.
What we saw from the footage was deeply troubling: police using violence and intimidation against demonstrators lining up to vote or sitting on the floors of polling stations. People at the polls were told to go home, as the Spanish government and the Constitutional Court had deemed the referendum to be unconstitutional.
What really matters
One should keep in mind that freedom of assembly should not depend on whether you agree with the people who exercise their rights, or even whether you agree with the way they exercise them. It should not matter if you believe that Catalans should have a separate state or not, nor should it matter what you think about the economic consequences of such a separation. It should not matter whether you believe that the organisers should have decided not to go on with the referendum once it was deemed to be unconstitutional by the Constitutional Court of Spain. What really matters is that the people who showed up at the polling stations wanted to express their opinion. You may say that such an act, once the referendum was deemed to be unconstitutional, does not merit more than a Facebook vote. But at the same time, you should understand that these people were trying to peacefully express their views, and according to the available video and photo evidence, when the police tried to prohibit them from doing this, they peacefully demonstrated by staying around polling stations.
It is to be emphasized that participating in a referendum – whether it be lawful or unlawful – is part of exercising freedom of expression. It is also to be emphasised that participating in a demonstration – whether it be lawful or unlawful – is part of one’s right to exercise their freedom of expression, as long as the demonstration is peaceful. Such participation is a way for people to express their political opinion.
Two things must be investigated
Liberties is of the opinion that there are in fact two issues that need to be investigated. First, whether the Spanish authorities’ attempt to prohibit people from exercising their freedom of expression by voting on this unconstitutional referendum was in line with international human rights standards and Spanish law. Second, it also needs to be investigated whether the way the police acted meets these legal standards.
International human rights law recognises that police may use force against individuals in certain circumstances, namely where it is both “necessary” and “proportionate” to achieve a legitimate aim. According to the report of the Committee on Legal Affairs and Human Rights at the Council of Europe, it is clear that for the use of force to be “proportionate” it must be shown that “the benefits attached to the objective pursued should outweigh the damage that would be caused through the violence”. For such force to be “necessary” it must be shown that “the lowest possible level of force necessary to achieve a legitimate objective” was used.
Liberties is of the opinion that there is an urgent need to investigate the use of force on behalf of the police. Such an investigation can only be made on a case-by-case basis. In any democratic society, law enforcement officers have a duty to restrict the use of force to the minimum extent necessary, facilitate peaceful protests and protect protesters while maintaining public order. Any abuse by law enforcement agencies is therefore “a serious threat to the rule of law”.
The Spanish police may have had legitimate reasons to try to send people home from the polling stations. In certain individual cases, even physical force could have been justified. That we do not know. But it is of no doubt that the video footage you can see clearly shows the use of excessive force. Using batons against people who do not show any sign that can be reasonably interpreted as an intention to attack, dragging them by the hair and kicking them – this can not be seen as anything other than grossly disproportionate use of force.
Commission should raise its voice
Human rights NGOs and the UN Special Rapporteur on the rights to freedom of peaceful assembly and association urged political dialogue to defuse tensions in Catalonia after the referendum. The Council of Europe Commissioner for Human Rights called on Spain to investigate allegations of disproportionate use of police force in Catalonia.
Freedom of assembly is one of the most important means by which people participate in the democratic life of their country and express their political opinion. It is a fundamental right of all European residents recognised by the Charter of Fundamental Rights, the quasi-constitution of the European Union that entered into force with the Treaty of Lisbon in 2009. Since the Commission is the guardian of the Treaties and is responsible for protecting the values on which the Union is founded, Liberties is of the opinion that the Commission should raise its voice and press for an investigation into whether fundamental rights were violated in Spain. Liberties is of the opinion that the Commission loses credibility if it does not act accordingly.
Liberties is also of the opinion that First Vice-President Frans Timmermans should clarify the meaning of his words before the European Parliament, express concern about the actions of Spanish police and ask for independent investigations of these actions. This is why Liberties wrote this open letter to him.