Strasbourg, the suspension of the plenary session of the Catalan Parliament and the freedom of assembly

JUDGMENT 

Forcadell i Lluis and others v. Spain 28.05.2019  ( no. 75147/17)

see here  

SUMMARY 

Suspension of the plenary session of the Catalan Parliament. Freedom of assembly. Suspension of law, ensuring public security and protection of the rights and freedoms of others.

The applicants complained that the temporary suspension of the Parliament’s plenary session, ordered by the Constitutional Court, violated their right of assembly and association. The European Court of Human Rights treated the applicants as a group of individuals, as  potential victims of violation of contract rights for breach of the Convention’s rights, but dismissed their application as inadmissible because the Parliament’s plenary session was convened on the basis of a suspended law and the Constitutional Court’s decision to suspend the Plenary, served legitimate purposes, namely ‘ensuring public order and security’ and ‘protecting the rights and freedoms of others’, there was therefore no violation of Articles 10 and 11 As the Convention and Article 3 of the First Protocol.

PROVISIONS 

Article 10

Article 11

Article 3 of the First Protocol

Article 6

PRINCIPAL FACTS 

The applicants are 76 Spanish nationals who live in Barcelona. The case concerns the Constitutional
Court’s decision to suspend the plenary sitting of the Parliament of the Autonomous Community of
Catalonia on 9 October 2017.

On 1 October 2017 an unauthorised referendum was held to decide on Catalonia’s secession from
Spanish territory. On 4 October 2017 two parliamentary groups (representing 56.3% of all seats in
Parliament) requested that the Bureau of the Parliament of Catalonia convene a plenary sitting of
Parliament, during which the President of the Government of Catalonia was to have assessed the
results of the 1 October referendum and the effects of those results, pursuant to section 4 of Law
no. 19/2017 on “the self-determination referendum”. The Bureau granted the request, and the
meeting was programmed for 10 a.m. on 9 October. Three other parliamentary groups (representing
43.7 % of the seats) contested the convening of that sitting on the grounds that it would infringe the
Rules of the Parliament of Catalonia. Sixteen socialist MPs applied to the Constitutional Court for the
issuing of an interim measure suspending the plenary sitting. The Constitutional Court declared the
application admissible and ordered the provisional suspension of the plenary sitting. On 10 October
2017 (the day after the date originally scheduled for the sitting), the President of the Catalan
Government appeared before a plenary session of Parliament and declared the independence of
Catalonia as a separate republic, inviting Parliament immediately to suspend the effects of that
declaration. On 26 April 2018 the Constitutional Court, judging on the merits, observed that the
procedure followed by the Bureau of the Parliament to convene the plenary sitting had disregarded
the provisional suspension of Law no. 19/2017 declared by the Constitutional Court on 7 September
2017 and had prevented the complainant MPs from discharging their duties. The Constitutional
Court pointed out that it was the task of the Parliament of Catalonia to represent the whole
population and not merely specific political factions, even if the latter represented the majority.

THE DECISION OF THE COURT 

Victim status

The Court at the outset considered the question whether there had been an infringement of the
rights invoked in respect of the applicants themselves or else of the Parliament of the Autonomous
Community of Catalonia. In the light of the circumstances of the case, it considered that the rights
and freedoms relied upon by the applicants concerned them personally and were not attributable to
the Parliament of Catalonia as an institution. It followed that the applicants could be designated as a
“group of private individuals” claiming to be victims of a violation of the rights set forth in the
Convention, within the meaning of Article 34 of the Convention.

Articles 10 and 11

The Court considered it appropriate to assess the applicants’ complaint under Article 11. It observed
in that connection that the right to freedom of assembly, like that to freedom of expression, was a
fundamental right and one of the foundations of a democratic society.

The Court observed that the Constitutional Court’s 5 October 2017 decision to provisionally suspend
the 9 October plenary sitting had had a legal basis in Spanish law, namely section 56 of the Organic
Law on the Constitutional Court, which provides for the possibility of adopting preventive measures
geared to preventing an appeal before that court from being rendered nugatory. Those measures
could be appealed within five days from notification. Furthermore, as regards foreseeability, the
plenary sitting had been convened pursuant to Law No. 19/2017, which had been provisionally
suspended by the Constitutional Court on 7 September 2017, which decision had been notified
personally to all MPs. The Court took the view that the suspension of the plenary sitting had
pursued, inter alia, the legitimate aims of “ensuring public security”, “preventing disorder” and
“protecting the rights and freedoms of others”.

It emerged from the case-law of the Court that only convincing and pressing reasons could justify
restrictions on the freedom of association. The Court observed that Parliament’s decision to
authorise the holding of the plenary sitting had stemmed, inter alia, from the failure to comply with
the suspension of Law no. 19/2017. By adopting a suspension order, therefore, the Constitutional
Court had been endeavouring to ensure compliance with its own decisions. That suspension appeared justified because, as the Court pointed out, constitutional courts were empowered to take the necessary action to guarantee compliance with their judgments.

The Court agreed with the Constitutional Court that a political party could campaign for a change in
the State’s legislation or legal or constitutional structures provided that it used lawful and
democratic means to do so and proposed changes compatible with the fundamental principles of
democracy. It also considered that it was necessary to avoid situations whereby parliamentarians
representing a minority in Parliament were prevented from discharging their duties, as pointed out
in the Constitutional Court’s judgment of 26 April 2018.

The Court concluded that the interference with the applicants’ right to freedom of assembly could
therefore be considered as meeting a “pressing social need” and was accordingly “necessary in a
democratic society”.

The Court dismissed the complaint as being manifestly ill-funded.

Article 3 of Protocol No. 1

The Court pointed out that for a case concerning referendums to fall within the scope of Article 3 of
Protocol No. 1, the proceedings in question had to be conducted under conditions such as to ensure
the free expression of the people’s opinion in the choice of the legislature.
The Court considered that those conditions had not been fulfilled in the instant case. The plenary
sitting of Parliament had been convened in pursuance of a law which had been suspended by the
Constitutional Court and had therefore been temporarily inapplicable. The decision taken by the
Bureau of the Parliament had therefore been prompted by a manifest failure to comply with
decisions given by the Constitutional Court aimed at protecting the Constitutional order.

Consequently, the Court declared the complaint inadmissible.

Article 6
The Court considered that this complaint had not been substantiated, and therefore dismissed it as
being manifestly ill-founded(echrcaselaw.com).


ECHRCaseLaw

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