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Home » Content » Constitutional Conflicts: Catalonia events of September and October 2017
Before I argue my case, let me be clear that I fully share Martí’s opinion, powerfully articulated in previous posts, that the events we witnessed in September and October 2017 in Catalonia amounted to a “coup d’etat from the standing point of Spanish constitutional legality”. That’s exactly how we should characterize the grave attempt at subverting the constitutional order that took place at that time.

Victor Ferreres Comella
Fr 25 Okt 2019

Victor Ferreres Comella is a Professor of Constitutional Law at Pompeu Fabra University, Barcelona. 

In a recent post, my good friend and colleague José Luis Martí usefully describes the decision recently rendered by the Spanish Supreme Court convicting several Catalan secessionist leaders of a number of crimes in connection with the political events that developed in Catalonia in September and October 2017. According to Martí, the Supreme Court’s ruling is not only “unjust and legally wrong”, but is also unconstitutional, “since it compromises the fundamental democratic rights of protest -the freedom of expression, the freedom of assembly, and the right to demonstrate”. I disagree with his conclusion and with some of the points he makes to support it. 

Before I argue my case, let me be clear that I fully share Martí’s opinion, powerfully articulated in previous posts, that the events we witnessed in September and October 2017 in Catalonia amounted to a “coup d’etat from the standing point of Spanish constitutional legality”. That’s exactly how we should characterize the grave attempt at subverting the constitutional order that took place at that time. 

To make the story short, readers should recall that in September 2017 the Catalan parliament passed two crucial statutes that explicitly cancelled the effects of the Spanish Constitution in the Catalan territory. Working on the assumption that the Catalan people is sovereign, the Catalan legislature enacted a statute (Law 19/2017) that established the rules for holding a referendum on independence. Importantly, the statute provided that if more votes were cast in favor of independence than against it, the automatic legal consequence would be the declaration of independence of Catalonia. The other statute (Law 20/2017) regulated all the issues that would arise if Catalonia declared its independence from Spain, regarding nationality, the status of civil servants working for the Spanish institutions, taxes, international relations, and a host of other matters. 

The Spanish Constitutional Court, at the request of the Spanish government, ordered the Catalan authorities to stop the implementation of those statutes. The judicial orders were patently disregarded, however, and the referendum was held on October 1. The “Yes” vote won (89%), though only 43% of citizens participated, so the Catalan parliament formally declared independence on October 27, after some weeks of hesitation. As a response, the Spanish government used article 155 of the Spanish Constitution, which empowers it to adopt extraordinary measures to neutralize decisions by regional governments that breach constitutional and legal norms or gravely imperil the general interest of Spain. The authorization of the Senate is needed for these purposes. On the basis of article 155, the Spanish government dissolved the Catalan parliament and called early elections in Catalonia. The members of the regional cabinet were removed. In those elections, the secessionist parties did not get the majority of the popular vote, but they obtained a majority of the legislative seats, so they managed to install a president that insists on breaking away from Spain. The extraordinary measures taken by the Spanish government were lifted once the new Catalan government was formed. Uncertainty remains concerning the future steps the secessionist leaders will take. One of the catchphrases they are currently using is “We’ll do it again”. Whether this is mere rhetoric or something more serious, only time will tell.

So I side with Martí when he characterizes the events just described as a coup d’état, even if it is different from the traditional military coup. The next question, then, is whether the actions perpetrated by the leaders of the secessionist movement can be understood to be crimes under Spanish law, and whether the Spanish Constitution or international law protects those actions in the name of fundamental rights, including the right to protest. The Spanish Supreme Court deals with these issues in its lengthy opinion. Martí contends that the Court goes wrong in several places. 

Formal aspects

Martí makes a preliminary point that goes to the formal aspects of the Court’s opinion. He asserts that it is “telling” that the Court “spends less than 40 pages describing the proven facts of the case, and only 10 pages to justify the charge of sedition, while it spends 193 pages, 40% of the whole text, arguing that no fundamental right of the defendants had been violated during the process”. He contends that the Court has issued a “defensive ruling”, as if judges were concerned about appeals to the Constitutional Court and the European Court of Human Rights. 

First of all, it is not accurate to say that only 40 pages are devoted to describing the proven facts. In addition to those 40 pages, the Court spends 180 pages to describe the actions performed by each of the accused persons, and to justify its findings of fact in light of the evidence produced at the trial. 

More importantly, I don’t understand why the Court should be criticized for taking seriously all the arguments based on fundamental rights made by the lawyers in defense of the secessionist leaders. Instead of focusing on the Criminal Code exclusively, the Supreme Court takes into account the Spanish Constitution and the relevant international legal instruments to make sure that no fundamental rights are breached. Since counsel made a large number of claims based on fundamental rights, we would expect the Supreme Court to fully reason its answer. If the Court had been brief in this part of its opinion, we would rightly criticize it for its lack of constitutional sensitivity. Actually, what impresses me most when I read this section of the Court’s opinion is how carefully it deals with the arguments proffered by counsel, some of which were really very implausible, such as the argument that says that the actions in question were shielded against the operation of the Criminal Code because international law empowers Catalonia to unilaterally secede from Spain, or that no crime was committed because the leaders were exercising their “right to civil disobedience”. The Court does not quickly dismiss such claims, but it instead works out a rather pedagogical and detailed answer to them. 

I find it laudable, for example, that the first issue the Court tackles concerns the use of the Catalan language by the persons accused at trial. The Court devotes 13 pages to exploring the relevant domestic and international sources of law on this matter, and to explicating the reasons justifying the position it had taken at the beginning of the trial. The Court had allowed the accused persons to speak in Catalan, if they so wished, and had made two translators available to them who would translate their utterances after they were made, so that everybody present at trial or watching it through the public media would be able to follow. The secessionist leaders finally chose to speak in Spanish, but they were given that option.

Rebellion and sedition

Let us now turn to the content of the Court’s opinion regarding the crimes the leaders were charged with. Martí has no objection to the Court’s findings that there was disobedience of judicial orders, as well as misappropriation of public funds. 

Martí agrees with the Court that the actions cannot be classified as “rebellion. Martí argues that article 472 of the Criminal Code requires violence of a very specific kind, a form of violence that is conducive to the breach of the constitutional order. “And”, he adds, “everyone knows – in Spain and worldwide – that the Catalan secessionist movement has been, until now, essentially peaceful and civic”. 

I think there is some confusion here. Yes, the movement has been “essentially” peaceful and civil (until now), but this does not exclude that a number of violent actions were performed by some people as part of the secessionist strategy. Evidence of such actions was brought to the trial, and the Court found the evidence compelling. What drove the Court to finally reject the crime of rebellion was its judgment that those acts were clearly insufficient to achieve secession effectively. The Court further noted that, as a matter of fact, the leaders deceived the masses: while they explicitly said they were struggling for Catalan independence by way of the referendum and the laws they passed, in reality they merely wanted to bring pressure on the Spanish government to force it to negotiate the independence of Catalonia. One may agree or disagree with the Court’s holding on this point, which some commentators find a bit contradictory, but it is important for the record to note that the Court found that forms of violence had been engaged in, though not of the relevant kind for purposes of the crime of rebellion.

The Court deemed the actions in question to count instead as “sedition”, as defined by article 544 of the Criminal Code. Martí provides us with an English translation of the conduct described in this provision, but the translation is incomplete. Martí writes that the article punishes “a public and tumultuous uprising with the aim of unlawfully preventing the enforcement of the law, or the functioning of any public authority, or the enforcement of any administrative or judicial decision”. But Martí silences that the article explicitly says “by force or through illegal means” (“por la fuerza o fuera de las vías legales”). This is important, since some of Martí’s objections make no sense in light of the actual text. He argues that we should interpret the article to require some element of violence and some significant harm. Given that the article says “by force or through illegal means”, I need to hear more from Martí as to why we should read the article to require some element of violence. The particle “or” conveys a clear message that violence is not required.

As to harm, Martí makes a rather astonishing assertion at this juncture. He writes: “To be fair, the only real harm that was produced in those weeks of September and October of 2017, as everyone knows, was the harm of the police officers beating with their sticks hundreds of voters in the referendum trying to scare them and prevent them from voting”. To be clear, I was appalled by the images of police brutality on October 1, and I hope that the courts that are handling these cases currently under investigation will impose the pertinent legal sanctions to the officers who acted that way. But this does not detract from the fact that “real harm”, of significant quality, was caused by the secessionist leaders as well. As already noted, Martí has repeatedly written in previous posts that those leaders perpetrated acoup d’etat from a constitutional perspective. I would think that such an action causes harm. Can a coup d’état be harmless? 

Furthermore, as already observed, the Supreme Court concluded that the evidence shows that violence was resorted to by secessionists, even if it was not of the serious kind that the crime of rebellion requires. So I am surprised that Martí maintains that “everyone knows” that the only harm was caused by the police. Martí should not take for granted that “everyone knows” this, when this is actually denied by many, including the Supreme Court after assessing the evidence.

Martí also argues that, “since there is such controversy about the correct interpretation of the crime of sedition”, the Supreme Court should have picked up “the most restrictive interpretation of the crime”, which would have led to an acquittal. I don’t have enough space here to explain why I don’t think this is the way we should solve interpretive problems when applying a criminal code. But even if the Court had espoused a very narrow interpretation, under which some “element of violence and significant harm” must have been caused, as Martí suggests against the letter of the article, I still don’t see how the secessionist leaders should have been acquitted, in light of what the Court has found as to the facts.

The right to protest

Martí’s main claim, however, appears in the last section of his post, where he invokes the democratic rights of protest (freedom of expression, freedom of assembly, and the right to participate in demonstrations) to challenge the Court’s decision. According to Martí, there is an opposition between the crime of sedition and the democratic right to protest, so that an extensive interpretation of the crime leads to an unconstitutional restriction of the right.

Martí mentions some past instances where protesters who had caused public disorders were not charged with the crime of sedition. He correctly says that the Supreme Court has introduced by way of interpretation certain elements of the crime so that only certain kinds of actions will be regarded as seditious, while others will be taken to amount to lesser crimes, or no crimes at all. As Martí summarizes the Court’s holding, for an uprising to be seditious it must be (a) massive or crowded, (b) generalized in the territory, and (c) strategically planned. This holding permits the Court to implicitly distinguish this case from earlier instances of protest that had occurred in Spain. Note that the Court is actually narrowing down the scope of the crime, not expanding it. We may agree or disagree as to whether the Court has successfully distinguished the different cases. I don’t have a strong opinion on this, but I do think it makes sense to draw lines depending on the extent to which the constitutional order is endangered by the relevant conduct. It is one thing for protestors to prevent an eviction judgment to be enforced by the police, or to make it impossible for some political representatives to enter parliament, or to occupy public squares illegally. It is quite another, I submit, to hinder the task of public authorities through a set of actions that are part of a systematic plan to achieve Catalonia’s independence through a coup d’état. You might say this is a question of degree, but questions of degree often matter in the eyes of the law. It is worthy of note, by the way, that citizens who protested in September and October, and those who voted in the referendum, have not be tried, nor will they be.           

Martí relies heavily on the right to protest, and criticizes the Supreme Court for treating it as an “exotic right”. The Court, of course, recognizes the constitutional protection of the right to protest, but insists that it cannot be transformed into an “exotic right to physically prevent the police officers from enforcing the law or a judicial decision, and to do it in a generalized manner in the whole territory of the regional Autonomous Community”. I concur with Martí’s claim that we should be careful when defining the limits of the right to protest, and that an expansive interpretation of the Criminal Code may lead to the infringement of the right. But I suggest we should avoid a simplistic understanding of the problem. Take the case of protesters that physically prevent members of parliament from entering the assembly to do their tasks as representatives. This is not simply a conflict between the fundamental right of protesters, on the one hand, and public interests, on the other. Fundamental rights appear on both pans of the scale. Citizens have a fundamental right to protest, sure, but they also have an equally basic right to elect their representatives, and the latter have a basic right to carry out the functions for which they have been elected. There is a clash of rights, at least apparently, and we need to harmonize them. It would be naive (and I am sure Martí will agree) to suggest we should never criminalize any form of protest at all, in order to secure fundamental rights. Non-criminalization produces costs, also in terms of protection of fundamental rights.

In a more philosophical vein, Martí refers to the work of Philip Pettit to emphasize the centrality of the right to protest in a scheme of contestatory democracy. I think this reference is illuminating for our discussion, though I have reservations about Martí’s claim that, when discussing questions of political legitimacy, “everything starts with the most basic right to protest and contest the decisions made by your authorities”. I am uneasy with the notion that “everything starts with” a particular value. I am inclined to a more coherentist and holistic approach when thinking about the grounds and conditions for the construction of a legitimate political order. 

More importantly, if we think about freedom of speech in light of a republican conception of liberty, it is critical to take into account the material conditions that affect people’s choices. You may be formally free to speak your mind, but you may face circumstances of subordination that make it materially unlikely you will speak up. I say this because Martí’s argument on the chilling effect that the Supreme Court’s decision may generate when it comes to exercising one’s right to protest should be placed in a wider context. I side with Martí when he urges us to be careful about the contours of the crime of sedition and other crimes that may be applicable when citizens protest. But let us look at the broader picture from a republican perspective, to get the priorities right. Regarding protest and speech, the most serious problem in Catalonia is not that secessionists (or other movements in the future) may abstain from performing legitimate acts of protest for fear of the criminalizing consequences of the Supreme Court’s decision under examination. The gravest concern relates to the difficulty many people in Catalonia face when trying to express their rejection of secessionist ideas. Yes, those citizens are formally recognized the right to speak. As a matter of fact, however, secessionism is the hegemonic ideology held by the structures of power at the regional level in Catalonia, and it penetrates many institutional and social spheres, including public schools. The problem is especially serious in the interior parts of Catalonia, where the secessionist discourse in official and public domains is just overwhelming. Since I know Martí is sensitive to this concern, given his republican conception of liberty, I would have appreciated some mention of this issue.       

A final note

I’d like to end my comment on Martí’s thought-provoking piece with this note: I fully support his conclusion that the Catalan conflict “is not fixed by this decision”. I have met no one who thinks that fixing the problem was the Court’s call, however. It is for political actors to work out a solution to bring things back to constitutional normalcy, and to discuss legal and political changes to better accommodate the aspirations of a majority of Catalan citizens. If pardoning the secessionist leaders is part of the solution, politicians should take the appropriate steps and bear responsibility for their decisions. But we cannot require a court of justice to balance all these political considerations when adjudicating a case. The harshness of the sentences that have been imposed, moreover, will probably be softened in practice soon, through the application of the penitentiary regime, administered by the Catalan authorities, which allows for permissions to be granted to prisoners to serve part of their sentences out of prison (the so-called “semi-open regime”). Meanwhile, it will be interesting to see what the Spanish Constitutional Court and the European Court of Human Rights have to say with respect to the fundamental rights at stake. I am sure Martí will write an illuminating post on those decisions when they are handed down in the future, thus enriching our legal and philosophical discussions.       

José Luis Martí, So 27 Okt 2019 / 20:53 AntworteI want to thank you, Victor, for finding the time to discuss my previous post. Your reply is excellent. I agree, in fact, in many things you say, even if I keep some disagreement on others. And I appreciate, in any case, that you give me the chance to clarify a few aspects of what I argued last week.First of all, as you rightly refer, in two previous posts published in this site in 2017 I argued that the passage of the Referendum Act and the Legal Transition and Foundation of the Republic Act in September that year constituted a coup d’état. I used the purely formal Kelsenian notion, which does not require any degree of physical violence. And I reaffirm that that is what they did. However, it is worth adding that the Kelsenian notion, which is of high constitutional significance, is not necessarily relevant for the purposes of the Spanish Criminal Code. To be clear, I think it is obvious that the secessionist leaders aimed at subverting and cancelling the applicability of the Spanish constitution in the Catalan territory with the adoption of these two laws, even if, as the Supreme Court acknowledges, they were fully aware that what they were doing was totally useless or not conducive to that end. And this, the subversion or suspension of the constitution, is one of the aims -part of the subjective element- of the type of rebellion according to our Code, which they did not commit because, as the Supreme Court states, again, they did not exert the kind of violence that is functional or instrumental to make their ends minimally feasible. But apart from this, and contrary to what the Supreme Court Prosecutorial Attorney Javier Zaragoza claimed during his closing argument in the trial, this description of the facts as a Kelsenian coup d’état is not criminally relevant. Even less if, as the Supreme Court did, we focus on the crime of sedition, which is framed as a crime of public disorder, not one against the constitution.Secondly, regarding my remarks on the formal aspects of the ruling, and particularly those regarding its length, my aim was purely descriptive. I didn’t mean to criticize it for that reason. When I said I regarded it as “a defensive decision”, I was just describing. And, of course, I am glad that the court took seriously the arguments of the defenses based on fundamental right violations. I agree with all what you say on this.Thirdly, let me then take into account the rest of your points in reverse order. I agree with you that we should not ask a court to balance political considerations when adjudicating a case. Furthermore, I will make explicit something that is implicit in your final note, but I did not express myself in my post. What I said is that the Catalan conflict will not be fixed by this harsh -you seem to concede that the sentences imposed are harsh- judicial decision, and you agree with me on that. But this, now I add, is not an argument against the trial itself. If a crime is reasonably suspected of having been committed -and I conceded that at least two crimes were finally proven of having been so-, the rule of law makes it a requirement, not even optional or permissible, as you know, to prosecute those who might be guilty for such crime. I just took this for granted. Yet, I would have liked the Spanish government back in 2017 doing politics, and not simply refraining from that and leaving the courts do their job. Precisely because, we agree, we do not want the courts do any politics.I agree with all what you say regarding freedom of speech, the shadow of domination that is present in Catalonia -although I would add there is domination going on in both, or in several, directions-, and the bigger picture of constitutional values and principles at stake. Just as a clarification. When I say “everything starts with the right to protest”, I’m not adopting a foundationalist or hierarchical view that might clash with your coherentist and holistic one. I try not to take stance on this here. This is important because I am not arguing that the right to protest has any superior hierarchy regarding other fundamental rights, and that it should necessarily prevail from any conflict with them. Not at all. All what I meant is that even in non-democratic countries where there is no separation of powers and rule of law, where the right to vote, let alone more sophisticated rights to engage in public deliberation, have not been granted, the protection of the right to protest is of fundamental importance. It is, functionally speaking, the best way to push the system into the right direction and minimize public or vertical domination from the authorities of the state, as well as private or horizontal domination from other private agents.Despite its decisive importance for democracy, I do not claim, of course, that the rights of protest (freedom of speech, the right to demonstrate, etc.) are absolute or unlimited. As you rightly point out, all rights have limits. And constitutional theory has well established that such limits come actually imposed by the protection of the fundamental rights of others, as well as of other basic constitutional values. This brings me to the main point of disagreement between us. And I want to thank you again because you made me see that there is something that my post didn’t highlight sufficiently. I presented the core of the issue as merely a tension between the interpretation of the crime of sedition and the contours of the rights of protest. My (too) straightforward argument intended to be that, in that balance, the constitutional rights of protest should always have priority. You rightly point out that when we come to interpret the rights of protest themselves, even independently from what the Criminal Code says, we need to take into account the protection of other constitutional values, and not only the fundamental rights of others -which I claimed had not been violated by the illegal referendum of October 1st. And you are also right, I do not deny this, that very basic constitutional values were clearly at stake during the secessionist uprising of 2017. The key, however, lies in something I’ve already mentioned in passing. That this balance of constitutional considerations is actually independent of, and therefore not necessarily relevant to, what the Criminal Code says.Let me be very clear. Imagine I concede that the right to demonstrate did not cover the acts of September 20th and October 1st -as I believe and argued in my post-, because they put the constitutional order in serious risk. That conclusion would be more plausible when applied to the acts of October 1st than for September 20th, where I don’t see any plausibility in presupposing that a constitutional harm was produced. Yet, the conclusion of such balance of constitutional considerations would not automatically imply the unlawfulness of those acts of the citizens, at least not its criminal unlawfulness. The reason is obvious. Not every attack to the constitutional legality is a crime. Any legislation that is found unconstitutional by a constitutional court is, by definition, constitutionally unlawful. But having passed such legislation is not a crime committed by the parliament. You might respond to this by saying that the reason why that is not a crime is that MPs have a constitutional right -better understood as a prerogative- to the inviolability of their actions which shields or protects them. That is true in the case of MPs. But it is not extensible to many other lower-level authorities who may also make unconstitutional decisions every day, and we do not say they are committing a crime. Whether they constitute a crime is something we must determine by reading the Criminal Code.So, if we adopt a more restrictive interpretation of the rights of protest in order to protect other constitutional values, as you seem to claim, then the actions committed by secessionists in those two days might be left unprotected or un-shielded by constitutional fundamental rights -as my argument presupposed-, and therefore potentially -although not necessarily- criminally unlawful and exposed to the typicity of article 544 (the crime of sedition). Everything, then, would be about how to interpret the Criminal Code. I would still argue in that scenario that the criminal code must be interpreted restrictively. Spanish criminal lawyers have been discussing for years how better interpret the article 544, because the notion of “public and tumultuous uprising” is actually very vague and unclear. The only other occasion in which the Spanish Supreme Court has sentenced someone for sedition was for a case of a mutiny by 18 inmates that took place in a prison in Zaragoza in 1978, when they ignited a fire, built a barricade, and even if they did not attack the police officers two other inmates died because of the flames. The 18 inmates involved were found guilty and were sentenced to 3 to 10 years. That was definitely “tumultuous”. I take it to be a clear case of application of article 544. Now, the question is whether what happened in 2017 was a tumultuous uprising or not.Many criminal lawyers -not me- believe that the crime of sedition require some degree of violence on people. They give several arguments: some say that other minor crimes against public order with much lower sentences require some violence and it would be unthinkable that the major crime in Title XXII of the Criminal Code would not; others simply say that an uprising cannot be “tumultuous” for conceptual reasons if it is not violent at all. This is not my argument, though. Imagine the secessionists on October 28th had gone to the streets again “to defend the republic”, and they said, and had sabotaged all basic infrastructures in Catalonia, like the airport, the port, the main highways, the electric grid, etc. Imagine they had managed to do that without any violence or physical harm on people, but still creating lots of trouble. For me, that would have constituted also an act of sedition. What is more, I think it’s not legally unconceivable that someone might have accused the 12 secessionist leaders for having conspired or provoked an attempt of such kind of sedition. In the end, those kinds of sabotage were constantly mentioned as possibilities. But that would have implied a much lower sentence, in any case.The thing is that, in my opinion, the acts of September 20th and October 1st cannot be equated to those of Zaragoza prison’s mutiny or to those of the hypothetical case of generalized sabotage. And they can’t because we are in front of a very serious crime of public disorder -which we know from the fact that is sentenced with 8 to 10, or 10 to 15 years, depending on who commits it. The facts of those two days might have constituted a minor crime of public disorder, as for instance a crime of attack or resistance to authority (article 550), with sentences of 1 to 4 years. But I do not think they are enough grave to constitute sedition. The altercations in September 20th are comparable to those generated by many other mobilizations and demonstrations that occur every day in our democracies. Regarding those of October 1st, they might have produced heavy constitutional distress -I wouldn’t say constitutional harm or even risk, since they were legally void, unable to produce any effect, and everybody knew they were useless, starting from the secessionist leaders themselves, as the Supreme Court acknowledges-, but the only altercates produced that day were originated by the police when they tried to seize the ballot boxes and the “voters” tried to prevent them from doing that. Yes, some protesters reacted violently against the police. But they were rather isolated and spontaneous -and totally unjustifiable- acts of violence, not a strategically planned, crowded, generalized and tumultuous uprising. Tumults, again, were caused by the police, in a disproportionate, and therefore illegal, use of the force.Thus, even if we leave aside the constitutional rights of protest, I think we should interpret the crime of sedition in the most restrictive way, one that does not blur such crime with the ends of the crimes against the constitution, which are located in the previous chapter of the Code, and which do fit with the actions undertaken, or planned, or tolerated by the secessionist leaders. And therefore, in my judgment, the Supreme Court ruling is legally wrong.But let me now address the main part of your argument: the balance between constitutional rights. First of all, in your reply you say that: “This is not simply a conflict between the fundamental right of protesters, on the one hand, and public interests, on the other. Fundamental rights appear on both pans of the scale. Citizens have a fundamental right to protest, sure, but they also have an equally basic right to elect their representatives, and the latter have a basic right to carry out the functions for which they have been elected. There is a clash of rights, at least apparently, and we need to harmonize them.” Okay, granted. But when do these rights to elect our representatives could have been violated? Definitely not in September 20th or October 1st. Despite the trouble in front of the building of the Ministry of Economy, no elected representative was denied the “right to carry out the functions for which” she had been elected. You might have in mind, instead, the passage of the laws of September 6th and 7th. But I never claimed that such passage was an instance of the rights of protest. To be clear, the passage of those laws was not only unconstitutional on the substance, but also violated the rights of one half of the MPs in the Catalan Parliament. This did not constitute any crime, but it produced a constitutional harm, which was nullified when the two Acts were struck down. What I claimed to be an exercise of the right to demonstrate and freedom of speech were the acts of September 20th and October 1st, and they didn’t violate any representative’s rights.Limits to fundamental rights, however, do not only come from the fundamental rights of others. I do believe that very basic constitutional principles, such as democracy, the separation of powers, and the rule of law, might ground some limits to the exercise of some fundamental rights. In other words, that we need to interpret those rights in accordance to the best reading of those principles. Notwithstanding, limitations of individual fundamental rights based on these principles may only emerge when the risk over such principles is certain and very serious. Otherwise, we might end up supporting a too restrictive notion of fundamental rights, which might ultimately undermine, in turn, those same principles. Were the principles of democracy or rule of law damaged by secessionists during their uprisings of September and October 2017. They might, had the secessionists had sufficient power to take control of the territory, to issue a realistic declaration of independence, and to run an independent country. But, as the Supreme clearly states, there never was any risk, even a little one, of that. The state officials knew it. The secessionist leaders knew it. And most reasonable people also knew it. Had the state government left the voters vote in October 1st, nothing would have happened. No altercate, no legal effect, no constitutional harm. The Catalan government might have declared independence anyway -although I’m inclined to believe that they would have not dared to do it, without the boost that police brutality injected in them-, but this would not have changed anything. As nothing really happened in 2014 after the previous “consultation”. There was no need to try to seize the ballot boxes. It was just a couple of million people in a massive, impressive political mobilization. Exercising their rights of protest. Nothing else.Thanks again for your reply, and sorry for the length of my response.

OpenKat

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