Forcadell i Lluis and Others v. Spain (dec.)


Information Note on the Court’s case-law 229
May 2019
Forcadell i Lluis and Others v. Spain (dec.) - 75147/17
Decision 7.5.2019 [Section III]
Article 11
Article 11-1
Freedom of peaceful assembly
Suspension at the request of minority MPs of the convening of a regional parliament sitting in order to announce the results of an unconstitutional referendum: inadmissible
Article 34
Locus standi
Application from a group of MPs from a regional parliament acting to defend their own personal rights: locus standi granted
Article 3 of Protocol No. 1
Free expression of the opinion of the people
Regional parliament prevented from announcing the results of a referendum on self-determination organised in breach of a Constitutional Court decision: inadmissible
Facts – In September 2017 the Parliament of the Autonomous Community of Catalonia enacted a law (Law no. 19/2017) organising a self-determination referendum, section 4 of which law provided that the referendum would be binding: in the event of a result in favour, it would be followed by a declaration of independence.
A group of minority MPs applied to the Constitutional Court, which, pending a decision on the merits, immediately ordered the provisional suspension of Law no. 19/2017 (as well as Regional Law no. 20/2017 on the legal transition process towards the foundation of an independent Catalan State). The Catalan Parliament nevertheless persisted; the referendum was held on 1 October 2017.
On 4 October 2017, at the request of the majority groups, the Bureau of the Catalan Parliament convened a plenary sitting for 9 October 2017, in order to proclaim independence in accordance with the outcome of the referendum and Law no. 19/2007. The minority MPs applied to the Constitutional Court, which declared their application admissible and granted them a provisional suspension of the parliamentary sitting of 9 October, pending a determination on the merits; the parties involved were given ten days to submit their observations on this provisional measure. In fact, the scheduled proclamation was nevertheless issued the next day, but no action was taken on it.
Subsequently, the laws in question were declared unconstitutional, on the grounds, inter alia, that the holding of such a referendum, which infringed national unity, fell outside the jurisdiction of the Community and was marred by various procedural irregularities.
At the material time the applicants were Members of the Catalan Parliament and members of parliamentary groups in favour of the secession procedure.
Law
Article 34 of the Convention (locus standi): the Court accepted that the applicant MPs are acting as a “group of individuals” in order to defend their specific individual rights, which were not attributable to the Parliament of Catalonia as an institution (see, to converse effect, Demirbaş and Others v. Turkey (dec.), 1093/08 et al., 9 November 2010, Information Note 135)
Article 11: the interference in the applicants’ right to freedom of assembly had stemmed from the Constitutional Court’s decision to suspend provisionally the decision of the Catalan Parliament to hold a plenary sitting on 9 October on the results of the referendum.
(a)  Legal basis for the interference – The Organic Law on the Constitutional Court provides for the possibility of adopting any necessary preventive measures and provisional decisions in order to prevent an appeal from becoming nugatory. The interference had been foreseeable, because the decision which had been the subject of the impugned suspension had enforced Regional Law no. 19/2017, which had already – together with Regional Law no. 20/2017 on the legal transition process towards the foundation of an independent Catalan State – been under a provisional suspension order for several weeks.
Moreover, there had already been a precedent for the Constitutional Court’s position on this matter since 2015, when a resolution adopted by the Parliament of the Autonomous Community on the first measures to be put in place with a view to the progress of Catalonia towards independence had been declared unconstitutional.
(b)  Legitimacy of the aim sought to be achieved – The impugned suspension had been intended to protect the rights and freedoms of minority MPs in the Catalan Parliament against possible wrongful action by the majority in the Chamber. Such concerns could potentially be covered by several of the legitimate aims listed in Article 11, in particular the maintenance of public safety, the prevention of disorder and the protection of the rights and freedoms of others.
(c)  Necessity in a democratic society – In the present case, the decision of the Bureau of the Catalan Parliament to authorise the holding of the plenary sitting in issue had involved manifest non-compliance with the decisions of the Constitutional Court ordering the suspension of Laws nos. 19/2017 and 20/2017.
In adopting the provisional suspension order, the Constitutional Court had intended to ensure compliance with its own decisions, in order to protect the constitutional order. According to the Venice Commission of the Council of Europe, it is vital to ensure that constitutional court judgments are complied with, such courts being competent to adopt the measures which they deem appropriate for that purpose.
Regard should also be had to the irregularities in the approval procedure for Law no. 19/2017 (which had originated the convening of the impugned sitting) subsequently noted by the Constitutional Court in its decision on the merits. Indeed, while a political party is entitled to campaign for a change in the State’s legislation or legal or constitutional structures, the party in question may only do so if the means used are absolutely lawful and democratic.
Lastly, as noted by the Constitutional Court, it was essential to prevent the following situations: first of all, parliamentarians representing a minority in Parliament being impeded, by means of an unlawful procedure introduced by the majority, from legitimately discharging their duties (ius in officium) pursuant to Article 23 of the Spanish Constitution; and secondly, indirect breaches of the citizens’ constitutional right to participate in the management of public affairs through the intermediary of their representatives.
Accordingly, even in the framework of the narrower margin of appreciation available to the States, the suspension of the plenary sitting was “necessary in a democratic society”.
Furthermore, on the day after the date scheduled for the sitting, the President of the Catalan Government did in fact appear before the plenary Parliament of the Community in order to declare the independence of Catalonia, to which declaration the Parliament itself subsequently refrained from giving legal effect.
Conclusion: inadmissible (manifestly ill-founded).
Article 3 of Protocol no. 1: the aim of convening of the plenary sitting was to assess the results and effects of the referendum. While it cannot be ruled out that a democratic process designated as a referendum by a Contracting State will fall within the scope of Article 3 of Protocol No. 1, that would require the procedure to be conducted “under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” (see Moohan and Gillon v. the United Kingdom (dec.), 22962/15 and 23345/15, 13 June 2017, Information Note 209). The fact is that those conditions were not fulfilled in the present case. The plenary sitting of the Parliament had been convened pursuant to the law provisionally suspended by the Constitutional Court, and therefore in a manner manifestly at variance with the decisions of that court, which had been aimed at protecting the constitutional order.
Conclusion: inadmissible (incompatible ratione materiae).
 
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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