On October 16, judge of the National Court of Justice, Carmen Lamela, decreed provisional detention for Jordi Sànchez and Jordi Cuixart, presidents respectively of the National Catalan Assembly (ANC) and Òmnium Cultural, accursed of a crime of sedition, pursuant to article 544 of the Criminal Code, in relation to the protest that organized on September 20 and 21 in Barcelona.
According to the judge, the protest would have tried to block a police and judicial operation based on a court order issued by a Barcelona court, which involved the registration of several government official buildings, with the objective of preventing the organization of the referendum on the independence of Catalonia on October 1, declared illegal on September 7 by the Constitutional Court, and finally annulled yesterday. Amnesty International does not question the ruling of the Constitutional Court on the referendum law or its application, but considers that, although to call protesters in order to prevent a lawful police operation, it can be prosecuted as an alteration of public order, presentation charges against Jordi Sànchez and Jordi Cuixart for a serious crime such as sedition and their provisional detention constitute excessive restrictions on their right to freedom of expression and peaceful assembly.
«We ask the authorities to withdraw the charges of sedition against Jordi Sànchez and Jordi Cuixart and immediately put an end to their provisional detention. Sedition is a crime defined in a very general wat that include a wide variety of acts, and that can also lead to sentences of up to 10 years in prision», said Esteban Beltrán, director of Amnesty International Spain.
Disproporcional judicial response, in accordance with international law
In his decision to impose provisional prision, the judge of the National Curt maintains that the defendants did not just organized a peaceful meeting, but acted in accordance with a complex strategy and a roadmap to achieve the independence of Catalonia.
However, under the international human right law, the right freedom of expression and peaceful assembly encompass the possibility for people and civil society organizations to express their views on the referendum and on independence in general at any time and individually or collectively, even in the context of public meetings. «The authorities must protect the right of individuals to express their opposition to the Constitutional Court ruling and to organize peaceful public meetings in favor of the referendum», said John Dalhuisen, director of Europe for Amnesty International.
International humans rights law also allows States to impose certains restrictions on the excercise of that right for certain legitimate aims, such as protecting public order, a legitimate operation of law enforcement or national security, provided that it can be demonstrated that those restrictions are necessary and proportionate to the intended purpose.
But also in accordance with international law, restrictions on freedom of expression «to perform its protective function […] should be the least intrusive instrument for those who can achieve the desired result». This requirement of proportionality implies that criminal sanctions, in particular those that give rise to deprivation of liberty, will often constitute a disproportionate restriction of the right to freedom of peaceful assembly and expression. In accordance with the judicial decree, the massages published in social networks as well as some of the statements they made during the events, Jordi Sànchez and Jordi Cuixart encouraged the protesters to concentrate in front of the official buildings in order to prevent a legal police operation, it does not seem that they encourage the protesters to use violence, so that sporadic acts of violence committed by protesters, such as the damage to police vehicles, should not be attributed directly or indirectly to them as organizers of the protests.