Mut o a la gàbia: how denial of referendum entails deprivation of freedom of expression

Abstract

‘Mut i a la gàbia’ is a Catalan expression, commonly used in the informal context, which is aimed at forcefully imposing silence. The two nouns comprised in it, together with the copulative nexus that unites them provide its meaning. ‘Mut’ means mute and ‘gàbia’ stands for a cage. Therefore, if literally interpreting the idiom, the message would be not to talk but also to be placed aside. However, when turning the ‘i’ into an ‘o’, the sense of the expression shifts. The locution no longer compels the receiver to remain silent. Instead, it proposes the receptor a disjunctive decision: either to remain quiet or to face imprisonment. The election of the title is by no means a matter of coincidence. Nowadays, Spain seems to consistently present this dichotomous choice to any citizen that dares to go beyond the mere acceptance and conformism, regarding the current state of affairs. In light of this situation, the recoil that freedom of expression is suffering within the country mentioned above is the primary goal of the ongoing investigation. This regression shows every sign of being common to all the acts and behaviours covered by the right. In this regard, the cases of either Pablo Hásel or Valtonyc should be highlighted. They both are singers that have faced the charges of glorification of terrorism, because of the content of their lyrics . The latter being also condemned for insults and slander to the crown and non-conditional threats . In the same line, Guillermo Martínez-Vela - the director of ‘El Jueves’ - was prosecuted on account of the crimes of obloquy, due to some of the contents published in his satire magazine. Likewise, Tamara and Adrià Carrasco - pro-independence activists - were accused of committing terrorism and rebellion, because of protest acts they performed as members of ‘Comités de Defensa de la República’, an organization that is aimed at the proclamation of the Catalan Republic . Finally and constituting the most current and transcendent of the cases, there is the ‘Causa Especial 20907/2017’. In it, the prosecution targets the leaders and promoters of the Catalan independence movement on the grounds of rebellion, sedition and disobedience as a result of the noncompliance concerning both the central government guidelines and the decisions of the courts of justice. Due to the extensive variety of cases, it is incredibly complex to examine them as a homogeneous group. Therefore, the target of this investigation will be the last proceeding mentioned. The restrictions of the political secessionist discourses and actions are becoming more frequent in Catalonia, mainly when they embody claims on the right to self-determination. That is why this investigation will try to determine whether the Spanish crimes of rebellion, sedition and disobedience collide with the right to freedom of expression, either by its literal content or by the judges’ interpretation. To be able to resolve such an inquiry, the successive study consists of three chapters. The first section will deal with a brief historical background on the Catalan history, since different past events caused the birth and growth of the Catalan nation which, in turn, constituted the reasons to claim Catalonia's independence. After that, will follow an analysis of the legislation that regulates and defines the scope and limits of the universal right in the territory. Lastly, the trial on the holding of the 1st October referendum will be examined, according to the provisions studied in the previous section. All in all, this research has the goal of determining if the prosecution of the Causa Especial constitutes a breach of either International, European or National Law with regards to freedom of expression or if, on the contrary, it respects all its provisions. That is why the subsequent investigation can be double-labelled. On the one hand, it could be qualified as expository because it will first explain all the legal provisions relating to the topic at stake. On the other hand, it is endowed with a qualitative nature, provided that it is not a comparison of multiple actions but a single, in-depth examination. About its sources, both first and secondary ones will be used. The firsts ones will be the International, the European and the National legislation. The second ones, the jurisprudence that has arisen from these texts, as the latter do pose questions regarding the extension of some of its provisions and only later opinions of the judges, address these. Likewise, articles and essays of academia will be consulted. Lastly, as for the scope, it must necessarily be narrowed down to the micro-sociological field that is the Catalan territory, due to its unique nature and the absence, in the Catalan or Spanish territory, of any conflict alike which could be correlated to and which happens to occur in a synchronous time frame. Keywords: 1-O, Catalonia, Causa Especial, Disobedience, Freedom of Expression, Independence, Politics, Rebellion, Referendum, Repression, Sedition, Self-determination, Spain.