Michelle Coleman, PhD Student in International Law at Middlesex University (London)
On 1 October 2017 a referendum vote in the Catalan region of Spain devolved into violence when police officers deployed by the national government attempted to prevent people from voting. According to some reports almost 900 people, including voters and potential voters, were injured. While recognising that there are disputed versions, this post follows the critics of the Spanish police’s actions, as described by the main NGOs and other academic bloggers.
This referendum asked the people of Catalonia whether they wanted the region to gain independence from Spain. This blog post explores the potential criminality that has arisen from participating in the referendum by organisers, voters and potential voters. Specifically, it will argue that participating in the referendum was not a per se criminal act. Participants could be investigated for crimes that occurred in the course of their participation, but not for the participation itself. Moreover, the police should not have targeted potential voters, using disproportionate force, because this violated the freedom of expression and did not fulfil the police’s duties of crime prevention or investigation.
Referendum’s Background and Constitutional Court Decision
Catalonia is an autonomous region in Northeastern Spain. The region’s quest for independence has a long history that has become more active in recent years. In January 2016, Carles Puigdemont was sworn in as the President of the Government of Catalonia. A staunch supporter of independence, he ran his campaign on the platform that he would hold a referendum on whether the region should become independent. The Spanish government has always opposed Catalan independence and the Constitutional Court found a previous move for Catalan independence to be unconstitutional in 2010.
On 19 September 2017 the Spanish Constitutional Court declared the proposed referendum unconstitutional on the grounds that there is no legal mechanism within Spanish law to allow a region to secede. They also held that the public prosecutor could investigate the leaders of the Catalan Parliament, as organisers of the referendum, for any potential crimes committed by organising the referendum.
Participating in an Unconstitutional Referendum is Not a Per Se Criminal Act
The Constitutional Court’s decision that the referendum was unconstitutional does not make participating in the referendum a criminal act. The decision merely means that the question that the referendum was asking was unconstitutional because there is no constitutional provision that allows for succession by referendum. As provided by the nullum crimen sine lege principle, an action is not a crime without a law criminally prohibiting that action at the time the action was committed. In Spain, there is no criminal law specifically prohibiting unconstitutional referendums, and because it is a civil law country, this law cannot be created by the Constitutional Court. Thus, the act of participating in the unconstitutional referendum is not a per se criminal act.
Just because there is no specific criminal law prohibiting unconstitutional referendums, does not mean that the act of holding or participating in such a referendum cannot result in a criminal charge. Holding or participating in the referendum may evidence a violation of an already existing criminal law. This is why the Constitutional Court stated that the public prosecutor could investigate the leaders of the Catalan Parliament; organising and holding the referendum may be evidence of treason, sedition, civil disobedience, misuse of public funds, and other crimes which already exist within Spanish criminal law. This is different however, from organising the referendum automatically becoming a criminal activity because the referendum’s topic has been held to be unconstitutional.
What About Voters or Potential Voters?
As explained above participating in the referendum itself is not a criminal offence. Further, while there is no fundamental right to vote in referendums, voting in a referendum is not in itself a criminal act, even if the referendum was held unconstitutional. Thus, voters and potential voters cannot be prosecuted for voting or attempting to vote in the referendum.
The situation for voters and potential voters is different from that of the organisers and Catalan leaders. Even without a right to vote in a referendum, voting itself is not a criminal act, it is merely an expression of opinion. Basically a referendum is someone is asking a question and someone else (a voter) providing their answer or opinion. This activity is protected under the right to freedom of expression. The fact that the referendum was declared unconstitutional does not change this; individual voters are still allowed to express their opinion on whether Catalonia should secede from Spain. Unlike organizing the referendum which could be evidence of crimes such as sedition, voting in the referendum does not have the same effect. Expressing an opinion against the Spanish government is not illiegal or criminal — people have been doing it for years. Thus, voters and potential voters merely participating in the referendum by stating their opinion are not committing a criminal act or providing evidence of a crime. They are exercising their right to express their opinions.
Of course, there can be some laws that were violated during the course of casting a vote. Among those crimes might be trespassing. Potential voters did not have proper permission to be on the property where the polling places were located. For example, many schools owned by the Spanish government. The Spanish government did not give permission for the public to use the school for holding an illegal referendum. Without proper permission, anyone entering the school for the referendum would be trespassing and could suffer criminal penalties. Whether trespassing occurred however was highly dependent on the situation. It would not occur in locations where the rightful owner of the property gave permission for the property to be opened to the public for the purpose of the referendum. Rightful owners have the ability to give permission for anyone to enter their property for any purpose they choose.
The Police Should Not Have Targeted Potential Voters
In an attempt to prevent the referendum from taking place, Spain’s paramilitary Civil Guard took charge of Mossos d’Esquadra (the Catalan police force). There were two ways for the police to prevent illegal elections from occurring: to focus on stopping the organisers and closing or preventing entry to any polling places or focus on potential voters and prevent them from entering a polling place or casting their vote. The first method focuses inward, on the referendum itself, while the second focuses outward on the general public. The police used both methods.
From the perspective of the Spanish government, closing or preventing entry to polling places may be a justified police action. The police are preventing crime by preventing an unconstitutional referendum, stopping individuals from trespassing in the polling locations, and perhaps even gathering evidence against organisers who may be liable. It is common to prevent property crime (such as trespassing) from occurring by protecting the property itself. This can be a legitimate method of suppressing an illegal action provided the police act within their normal powers. This can be done without focusing on potential voters outside of polling stations.
Police actions against voters and potential voters, who are not illegally inside polling locations, are not justified. Directing police actions toward potential voters wrongfully targets individuals who have not committed crimes. It punishes individuals by restraining them and restricting their movements and, at times, using violence against them. Essentially, targeting potential voters in the streets treats them in the same manner as those who are suspected of crimes. The result is not crime prevention or investigation but a stifling of freedom of expression. Yet, police officers may use force to restore public order. In that case, however, they should always comply with the necessity and proportionality requirements.
By focusing on the potential voters outside the occupied public buildings, the police acted as though they were the targets of crime prevention. The police took their crime prevention duties too far by targeting those whose actions were not criminal. In so doing the police exceeded the scope of their powers and reacted violently towards thousands of individuals who were merely expressing their fundamental right to freedom of expression.