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In October 2015, in the midst of a legal fight between the Spanish Constitutional Court and the Parliament of Catalonia on the right to hold an independence referendum, Spain passed a reform of the Law governing the competencies and functioning of the Constitutional Court. The intention was to ensure "the execution of the judgments of the Constitutional Court as a guarantee of the rule of law." From the very first moment this norm was controversial among Spanish constitutionalists. The reason was not its praiseworthy objective, since no one denies the need for the decisions of the Constitutional Court to be carried out, but rather the way chosen for doing so: the Court itself received powers for imposing high pecuniary sanctions, suspending public officers, and overriding by their own initiative any public act opposed to their decisions.
The reform was challenged before the Court itself, which – as usual – validated it without going too deeply into the issues raised: The Court mainly emphasized that the configuration of the execution of court decisions falls into the competence of the legislative. The Judgment had three dissenting opinions, raising enough questions for Spanish scholars to get doubts about it.
Earlier, a committee of the Parliamentary Assembly of the Council of Europe had asked the Venice Commission, a scientific advisory body on matters constitutional to the Council of Europe, for an opinion on the adequacy of the reform to the common European standards. A few days ago, the Venice Commission has published the requested opinion.
Rarely a technical report has ever had such an impact on the Spanish public opinion. The reason is that beyond its technical content, it was presented in the media as an international statement supporting or criticising the actions taken by the Spanish Government in order to stop the Catalan independence process. That was misleading. The Venice Commission did not take a side: it clearly reaffirms the need to comply with the decisions of the Constitutional Court. It does not believe, though, that the body responsible for ensuring this compliance should be the Court itself.
The opinion emphasizes that after this legal reform, the Spanish Constitutional Court is the only one in Europe with such powers. It is, therefore, a very exceptional competence, which raises problems especially regarding the suspension from office of elected officials, the coercive penalty payments applied on individuals without the guarantees of the due process and the action of the court on its own motion for suspending public acts.
The text concludes by stating categorically: "The Venice Commission does not recommend that these powers be attributed to the Constitutional Court. However, in the light of the absence of common European standards in this field, the introduction of such powers does not contradict such standards." In other words, the Commission opposes the reform, but notes that there are no common European standards on the subject and, thus, no objective basis for a negative opinion.
The main problem remains, however, the role assigned to the Constitutional Court in the face of the so-called ’sovereignist challenge'. In this respect the High Court has clearly become a judge of the symbolic rather than a judge of the law. It is currently overriding political declarations without any legal effect, just because of the ideological principles contained in them. Therefore its decisions do not overturn any concrete legal act but issue a prohibition to the Catalan Parliament of making ideological pro-independence statements. In this context, the procedure for execution of judgments is being used to override new parliamentary acts (which should have been challenged through different constitutional processes) simply because they share the same ideological principles. Any new Catalan action that supports the start of a Catalan constituent process will be immediately considered as a further disobedience. And it will be for the Constitutional Court itself to suspend such actions, by its own motion, and to punish the elected officials involved in such symbolic declarations. This is the reason for the sudden enthusiasm of Spanish Government for giving additional powers to the court to execute its judgments, and the reluctance of Catalan authorities to accept it.
A doubt rises, however: to use the Constitutional Court as the main barricade against any attempt at starting the independence process does tremendous damage to the Court itself as it undermines its perception as neutral arbiter and, thereby, its legitimation. This is why the Venice Commission is so concerned about that law. And so are many of us.
A Spanish version of this article has previously appeared on Agenda Pública.
Tate Britain, London
The Welsh artist unveils 2km of neon suspended in mid-air – and it’s an adventure playground for the eyes
It all begins with a white neon O, hanging above our heads like the shape the lips make before an exclamation. Or a spyglass aimed at the chaos beyond.
Suspended partway down the long Duveen Gallery at London’s Tate Britain, it reminds me most of an acrobat’s ring; the eye swings through it, leaping into a dense tangle of white light that smears the floors with brightness, and seems to fill the space beyond. Cerith Wyn Evans’s Forms in Space … By Light (in Time), the latest annual commission for the Duveen, is less to be looked at than moved through, a work to be paced, walked under, experienced as a journey or a piece of music. What begins as optical confusion unfolds as a sequence of complex manoeuvres, reversals, mirrorings and inversions. If the title sounds a bit dry – like some glum suprematist exercise – the work is anything but.Continue reading...
Bulgarian artist Erka has rightly protested against Sofia’s total lack of statues of women by erecting her own pop-up versions. But permanent statues don’t advance feminism – they trap people in the past
Images of women recently invaded the streets of the Bulgarian capital, Sofia. Placed there by artist Erka, working with socially engaged art platform Fine Acts, these colourful pop-up busts protest against the total absence of monumental artworks dedicated to women on Sofia’s streets.Continue reading...
While governments around the world deploy advanced surveillance tactics to monitor the communications of potential terrorists, the Iranian government goes after those who “terrorize” the sanctity of the Islamic regime on digital communication platforms.
Sina Dehghan, a 21-year-old former soldier, has experienced this firsthand. He was arrested in 2015 for his social media posts. He was convicted and sentenced to death, and is now awaiting his fate.
At the age of 19, Dehghan was completing his mandatory military service in the Tehran army barracks when the Revolutionary Guards, a hardline wing of Iran’s armed forces that is accountable to the office of the Supreme Leader, arrested him over a series of public messages he had posted on the messaging platform LINE. A source told the Center for Human Rights in Iran that his posts were against Islam and the Quran.
He was arrested alongside two others, Sahar Eliasi and Mohammad Nouri, who authorities said collaborated with Dehghan in the posts. All three were found guilty of participating in social media channels that insulted or criticized Islam. Eliasi's sentence was reduced to three years upon appeal and Nouri is still awaiting his sentence. Dehghan's death sentence was confirmed by Iran's Supreme Court in late January 2017.
The case against Dehghan rests on a confession that he was pressured to give under false pretenses. Upon his arrest, the Revolutionary Guards deceived Dehghan by telling him if he confessed to the charge of “insulting” the Prophet Mohammad and signed a letter of repentance, he would be set free.
The Revolutionary Guards deceived Dehghan by telling him if he confessed to the charge of “insulting” the Prophet Mohammad and signed a letter of repentance, he would be set free.
Iran's Islamic Penal Code, which criminalises dissent and criticism, states in Article 262 that insulting the Prophet is a crime punishable by death. However, Article 263 of the code says that the accused can have their sentence reduced to 74 lashings if they tell the court the insults were the result of anger or a mistake.
Neither Dehghan's forced confession nor his lawyer allowed him to take advantage of Article 263. Dehghan's family could not afford proper representation, so he received a court-appointed attorney, who the Center for Human Rights in Iran says failed to defend him properly during his trial.
To further complicate Dehghan's unjust situation, a source who requested anonymity for security reasons told supporters that security and judicial authorities promised his family that if they refrained from publicizing his case, Dehghan would have a better chance of being set free. As of late March, with little hope of the January sentence being overturned, Iranians both inside and out of the country have started calling for authorities to spare his life.
— Mohsen Tavoli (@MTavoli) March 24, 2017
Dehghan's case is particularly tragic as both he and his family had dedicated much effort to the country's military. His grandfather was a “martyr” (or fallen soldier) of the Iran-Iraq war, while Dehghan had served two years in the Iranian military.
— Mohsen Tavoli (@MTavoli) March 24, 2017
Sina's grandfather was a martyr of the eight-year war. Sina himself served two years. Sina has more rights to this country than most of these authorities.
Dehghan's case is a sobering reminder of the security threats Iranians face online. While keeping private communications safe from the government is often considered a person's main defence, a person's public image and words can also make them vulnerable to the ire of an unjust criminal system.
Even the strongest encryption in the world can't protect an Iranian from being penalized for exercising free speech online.
Oh le beau billet d’@hubertguillaud ! Bravo !!
L’autogouvernance : un modèle de société ?
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