Emmerson demana per carta a l'ONU que investigui l'estat espanyol per menystenir l'informe sobre els

21 June 2019

URGENT

Subject: (1) Cuixart, Sanchez and Junqueras v Spain; (2) Forn, Rull, Romava and Bassa v Spain

Dear WGAD Secretariat, Introduction 1. I am writing to bring the immediate attention of the WGAD to some alarming developments in the case of Cuixart, Sanchez and Junqueras v Spain, and to formally request urgent action from the Chairman and/or Members of the WGAD to address the current situation.

Urgency 2. The urgency derives from a decision of the Spanish Supreme Court today, refusing to give effect to the decision of the WGAD. The Court declined to order the release of the applicants, and made a number of contemptuous findings against the WGAD based upon false information that was supplied by the Government of Spain. The Court described the decision of the WGAD as “extravagant” “illogical” and “insidious”. It suggested that the WGAD had exceeded its mandate, which was “purely auxiliary and informative”. In particular, the Court held the WGAD decision was of no relevance in considering the release (even the provisional release) of the applicants. And all of these findings are premised upon entirely spurious complaints that were improperly and misleadingly presented by the Government of Spain, with the malicious intent of smearing and undermining the WGAD itself, its Secretariat and counsel representing the victims in this matter.

Background 3. In its decision on the merits, the WGAD found that the period of detention of the applicants up until the date of the decision was arbitrary since it was both incompatible with their political rights under the ICCPR, and discriminatory on grounds of their political opinion.

The WGAD indicated that Spain should release the applicants and order an inquiry into the conduct of those public officials who were responsible, with a view to providing reparations to the applicants in accordance with the relevant principles of international law.

The Government’s Complaints 4. Shortly after the ruling was made public, representatives of the Spanish Government informed the media that Spain had submitted two complaints to the WGAD concerning aspects of the process by which the decision was reached and made public.

5. In its complaints, the Government alleged (a) that two members of the WGAD should have recused themselves on grounds of apparent bias and (b) that the Secretariat had “leaked” the decision to me personally in advance of the official time at which I was entitled to see the decision (ie 48 hours after it had been given to the Government) and that I had subsequently leaked it to the media.

6. Even the most cursory examination of the facts would have revealed that there is no validity whatsoever in either of these allegations. They are entirely devoid of substance and could not have been put forward in good faith. Indeed, in two respects they can be shown to have been put forward with an intent to mislead, and to discredit the WGAD. a. In one instance, the Government omitted crucial information that would have led to the automatic dismissal of its unfounded complaint (see below). b. In the other instance, the Government made a complaint that it knew or ought to have known was false. Worse, it alleged that the Secretariat and myself had leaked the decision in breach of the rules of procedure, when it was in fact the Government that deliberately leaked the decision, nearly 24 hours before it was even sent to the applicant’s representatives by the Secretariat. Regrettably, it appears that the Government set up this entire course of events with the specific intention of creating an entirely false smear.

7. The Spanish Government has thus engaged in a classic “dirty tricks” operation against the UN itself. The facts prove conclusively that (a) an employee or agent of the Government was in fact responsible for the leak, and (b) that the Government then falsely alleged to the United Nations that the Secretariat and myself were responsible for the leak.

8. This clearly amounts to bad faith conduct on the part of the Government, dishonestly designed to manufacture a complaint against two members of the WGAD, its Secretariat and myself with the express intention of undermining the human rights mechanisms of the United Nations. The very lowest it can be put is that an employee or agent of the Government who was responsible for the leak stood by and did nothing when the Government made an entirely false complaint and briefed the media about it.

9. The misleading objections lodged by the Government of Spain are a political smokescreen, designed to undermine the findings of the WGAD by making allegations which the Government knows to be unfounded. That is an extremely serious situation, and casts grave doubt over Spain’s good faith participation in the work of the United Nations.

Abuse of the process of the WGAD 10. This extraordinary abuse of the United Nations human rights protection mechanisms demands immediate action in the form of a formal rebuke to the Government of Spain by the Human Rights Council. As will become apparent, it is not the result of an honest mistake, made in good faith. Rather, it involves the deliberate and dishonest manipulation of the process in order to discredit the United Nations itself. This is conduct incompatible with Article 2 of the UN Charter, which provides that the founding principles of the UN include the promotion and protection of human rights, an objective that is put on an equal footing with the promotion of international peace and security.

11. The inevitable inference from the facts outlined below is that the Government has deliberately and dishonestly staged this sequence of events in order to frame the Secretariat for a breach of procedures, and at the same time defame myself and two members of the WGAD for failing to disclose a conflict of interest or to recuse themselves. At the time when all of these allegations were made in an official Government communication to the UN, the Government knew (or is to be taken as having known that they were false.

The appropriate response from the UN 12. The conduct of the relevant officials of the Government of Spain is an outrageous affront to the founding principles of the United Nations, and should be immediately brought to the attention of the Head of the Special Procedures Branch, the High Commissioner for Human Rights and the President of the Human Rights Council. It should also be reported immediately to the Special Rapporteur on the Independence of Judges and Lawyers, and the Special Rapporteur on the Protection of Human Rights Defenders 13. Based on the information contained in this letter, I would request that the Spanish Government’s complaint should be formally dismissed, either summarily or as expeditiously as possible. There is no merit whatsoever in the complaints and they have been advanced in bad faith 14. Once the allegations have been dismissed, please treat this letter as a formal request that the relevant entities of the Human Rights Council should forthwith set up and conduct a full and independent investigation into the conduct of the Spanish Government in this master, with a view to the tabling of a report and (if appropriate) a motion of censure against Spain at the Council, for a clear violations of the founding principles of the UN Charter.

15. The UN’s human rights protection mechanisms inevitably depend upon (and assume) good faith in the conduct of Member States, particularly in their dealings with an international supervisory jurisdiction as important as the WGAD. The conduct of Spain is a direct attack on the assumption of good faith that is meant to underpin the work of the Human Rights Council itself, which is the ultimate authority underpinning all the Special Procedures Mandates.

Conflict of Interest 16. I will deal first with the confected allegation of apparent bias. The Spanish Government has pointed to two communication letters issued by the Special Procedures branch of OHCHR jointly in my name and the names of two of the current members of the WGAD. They were issued a considerable time ago. The WGAD presumably has the details of the Government’s complaints.

17. The Government alleges that these letters are evidence that there was a close professional relationship in the past between myself and those two members of the WGAD, and claims that it would have objected to those two members being party to the WGAD decision if it had known of this. Basing itself on this obviously false proposition, the Government has asked the WGAD to withdraw the decision and arrange for it to be retaken with a different composition of the WGAD. 18. There is no justification whatsoever for this complaint. As the whole WGAD will know by now, I have never met or spoken to any of the members of the WGAD. It is true that I was the UN Special Rapporteur on Counter-Terrorism and Human Rights from 2011 to 2017.

It is also true that two current members of the WGAD are former Special Rapporteurs and that there was some overlap of time between the period of my mandate, and the periods of theirs. However, that is as far as it goes, and is obviously not a basis for any possible conflict of interest in this case.

19. As all Special Procedures Mandate Holders are aware, the UN staff of the Special Procedures Branch have a practice of liaising between mandate staff in Geneva when preparing communication letters to States. This sensible administrative arrangement was put in place many years ago to avoid duplication of effort and expense by the UN administration that provides technical support for the independent experts that make up the Special Procedures Branch of OHCHR. This was not done to ensure efficiency and consistency. It also had the important function of ensuring that where a case raises issues that fall within more than one Special Procedures mandate, the State concerned is made aware of this.

20. Importantly, this practice is a reflection of the preamble to all the relevant resolutions of the Human Rights Council establishing the Special Procedures Mandates, which expressly enjoin all Mandate Holders to avoid duplicating the work of other Mandates by combining staff resources in joint initiatives.

21. However, this does not necessarily (or even usually) imply any working contact between the two Mandate Holders whose signatures are appended to any communication. In the ordinary case, draft letters are submitted to the various mandate holders by their staff for approval or amendment. Once all relevant Mandate Holders have given their suggested amendments, the amendments are merged, and a final draft is re-circulated for approval.

It is of course possible that two Mandate Holders will know one another, or will meet each other during their period of tenure. However, I have never met or spoken to either of those members of the WGAD who were Special Rapporteurs at the same time as myself.

22. There is thus no question of an appearance of bias in the mind of an informed observer (which is the applicable legal test). This aspect of the Government’s complaint should be summarily dismissed on its merits for this reason. There is no need for the WGAD to conduct any detailed investigation because the two WGAD members will be readily able to confirm that they have never met or spoken to me.

23. However, that is not the most concerning aspect of this unfounded complaint. The really serious issue is that it represents the use by Spain of guerilla tactics directed against the WGAD itself. This is apparent from the timing of the Government’s briefing. This bogus complaint was briefed to the media less than 12 hours after the decision was made public.

24. It is inconceivable that the Spanish Government just happened to discover the existence of these joint communication letters during that 12 hour period. They must have combed carefully though the published communication reports issued by the Special Procedures Branch with the express purpose of looking for a jointly signed letter with which the Government hoped to discredit the WGAD in the event of an adverse decision in this case.

25. It is an elementary principle of the international standards governing judicial independence that any challenge to a member of a tribunal on grounds of apparent bias must be taken at the earliest possible opportunity. That is the ethical duty invariably imposed on a party that discovers grounds to question the impartiality of a tribunal member. Once a party is aware of the facts that could give rise to an arguable objection, it cannot hold it back like a trump card to be played only if and when it loses the case. That would be a dishonest abuse of process. The question whether there are valid grounds for challenge should be completely unconnected to the likely outcome of the case. A party that chooses not to raise a challenge at the earliest opportunity is to be treated as having waived their objection.

Answer 26. It is clear that the Spanish Government’s apparent bias objection is wholly unfounded on its substantive merits. It is also clear that the Government advanced the objection without revealing the fact that it had been aware of it for some time, and was deliberately holding it back pending the outcome - a circumstance which would have invalidated the challenge even if it had been well-founded. Properly viewed, the Government’s decision not to raise this objection the moment it was discovered amounts to an automatic waiver of the right to raise the challenge after the decision has been issued. And that is quite apart from the fact that there is no merit in the complaint anyway.

27. One of the reasons the State party is given sight of a decision of the WGAD 48 hours in advance of its disclosure to the source is precisely to enable the Government to have one final opportunity to raise any procedural objections before it is too late for the decision to be amended or the procedural defect put right.

28. The Spanish Government must have known during that 48 hour period that its “researchers” had found two letters jointly signed by myself and two members of the WGAD. Unless the Government is able to prove that it made this discovery overnight on the day the decision was made public, the inevitable inference is that the Government set

the whole situation up as a means of smearing the WGAD. That should be a matter of grave concern to the whole Human Rights Council.

29. To eliminate any possible lingering doubts about the complete lack of merit in the complaint itself, you will find below a link to the decision of the WGAD in the case of Nasheed v Maldives.

30. In that case, the Government raised the objection at the appropriate time, namely in their written observations on the merits. The objection was that I was serving as a Special Rapporteur at the time the WGAD considered the case. The Government argued that this created a conflict of interest because the whole WGAD is itself a Special Procedures Mandate of the Human Rights Council. The WGAD summarily dismissed the objection as unfounded.

31. The present case is a fortiori. Here, the Government argues that the WGAD was infected with bias because an advocate for the victim was once a Special Rapporteur at the same time in the past as two members of the WGAD. If that was a valid objection, then the same result would necessarily have followed in the Nasheed case, since the WGAD itself is a Special Procedures Mandate Holder. If my involvement as counsel in the Nasheed case was not a disqualification, then it clearly cannot be a disqualification in the present case where the suggested connection is in the past and even more remote.

You will find the Nasheed decision here: https://www.perseus-strategies.com/wp-content/uploads/2015/10/UNWGAD-Opinion-No33-2015-Maldives.pdf The leak allegation 32. Turning to the Government’s second allegation, this can be summarily investigated and easily disproved by the simple expedient of examining the communications records of the WGAD Secretariat. As will become apparent from such an examination, the Secretariat insisted on the strict application of the 48 hour grace period. The records will show that I wrote several times during the day to ask when the report would be made available.

33. In order to see precisely how the Spanish Government set up this fraudulent complaint, it is necessary to examine the events of that day in their chronological order. There is no doubt about any of the primary facts, which are a matter of public record: a. During the morning, it became apparent that the decision of the WGAD had been leaked overnight to El Pais, which had reported the finding. The first reports had begun circulating on the internet late the night before. b. When I read the report on the El Pais website, I immediately knew two things for certain. First, I could be sure that I was the sole point of contact for the applicants’ side with the Secretariat. I was the lawyer for all three and all correspondence came to me. And I knew also that the document had not been sent to me overnight.

c. Accordingly, the only possible inference was that someone on the Government side had leaked it. It was not possible to identify which individual Government official or agent was directly responsible, or to determine whether the most senior politicians including the Prime Minister were implicated. That is not something that could be determined from the outside. What was certain however was that the leak came from the Government side. d. I also knew that El Pais was known to have good sources in the Government, and had previously been used by Government officials and others as an outlet for leaks of Government information.

34. I briefly considered, but quickly dismissed, the possibility that the leak to the newspaper had come from the Secretariat or a member of the WGAD itself. There is no conceivable reason why anyone in the Secretariat should leak a decision of the WGAD to a newspaper in the middle of the 48-hour grace period. The idea could be discounted as nonsensical, particularly since the Secretariat has always in my experience kept rigidly to the rules. Nor was it conceivable to me that a member of the WGAD could have been the source.

35. Accordingly, El Pais could only have obtained the information from the Government side.

As soon as I realized this, I wrote to the Secretariat drawing attention to the report in El Pais and saying that it was clear that the leak must have come from the Government side.

Since I still had not seen a copy of the decision at that time, I could not verify the accuracy of the detailed report in El Pais. It was apparent from the article that the author was claiming to know the details of the WGAD decision and must therefore have either seen it, or had it summarised to him, by someone on the Government side. Directly or indirectly, this could only have been a Government leak. The question was why the Government should want to leak a decision of the WGAD that was unfavourable to it. The reason became apparent when the Government announced that it had lodged a complaint to the WGAD the following day. The Government had leaked the decision in order to be able to advance a false allegation that the decision had been leaked by the Secretariat to me during the 48 hour grace period, and then leaked by me to be media. Neither of these allegations were true as the Government must have known. It follows that the whole sequence of events was dishonestly set up for the precise purpose of undermining the WGAD, its Secretariat and myself. This was entirely consistent with the bogus complaint of apparent bias and appears to have formed a part of the same strategy.

36. Not surprisingly, during the morning and the middle of the day, I was being repeatedly contacted by my clients domestic lawyers and their supporters asking whether the report in El Pais was accurate. I was unable to tell them one way or the other as I had not seen the decision. I therefore wrote to the Secretariat asking whether, in light of the Government’s leak, the decision could be released to me early.

37. The Secretariat replied strictly in accordance with the rules, saying that I would receive it that afternoon. The email did not say exactly when during the afternoon it would come. I therefore sent further messages asking for a more specific time. These did not receive a reply. Eventually, the Secretariat sent me the decision at about 16:30 my time (which

would have been around 17:30 in Geneva). However, shortly before that time, I learned that a copy of the decision that had begun circulating in Spain: a. At around 3:30 pm I received a document by email. It was a letter from the WGAD to the Government attaching the decision. It was perfectly clear therefore that the decision itself was now in circulation. But it was equally clear that the source of the circulating document was on the Government side because they had failed to remove the covering letter in an extraordinary clumsy slip. b. You will find the letter and its attachment that I received at around 3:30 from an independent source appended to this letter. I was subsequently informed by my source that the letter and the report had been obtained from El Pais itself. As you can see from the attachment, the document that was sent to me still has a covering letter from the Secretariat that was addressed to the Government, enclosing the decision of the WGAD. The very fact that I have this letter proves the point. The only way I could have come by it on the day in question was if it had been leaked by the Government to El Pais (since the only persons authorised to have possession of that letter would have been employees or agents of the Government). c. It follows that at least one Government official knew that the leak had come from the Government side. The person who originally leaked the document outside Government must have known. That person would have known whether s/he was leaking the document in breach of a duty of confidentiality owed to his or her employer. However, the authorisation may well have come from high up in Government. That is an equally plausible explanation that is consistent with the established facts. It would be wrong to speculate about this however, without a full independent inquiry into the handling of this matter by the Spanish Government.

38. Even adopting the most benign possible interpretation of these events, a Government official who knew that they had been the source of the leak allowed the Government mislead the WGAD and make false accusations against members of the WGAD itself, counsel for the victim, and the Secretariat. Obviously, in this respect, it may be important to determine how high up the decision-making chain this knowledge went, and who knew what when. However, Spain is responsible for the misconduct of all its officials, including the official who leaked the document to El Pais and then made no attempt to correct the position when the Government announced that it had lodged a complaint alleging that the leak came from the Secretariat and myself. There is simply no possible view of these facts which does not disclose a gross breach of Spain’s duty to conduct itself in good faith in its dealings with the United Nations.

The decision of the Supreme Court 39. In today’s judgment of the Supreme Court, the Court refused to accept the findings of the WGAD and denigrated it’s standing and the significance of its rulings in contemptuous language. It characterised the decision as having no weight, and as having been fatally flawed by bias and a blinkered approach to the facts.

40. Even if it is within the wide latitude of the domestic courts to express hostile criticism of the decisions of the WGAD, this case has a very significant aggravating factor that calls for definitive condemnation of the Government’s conduct. The Government has knowingly set up a false complaint to the WGAD, which was clearly premeditated and carefully planned to mislead. It has then authorised (or the very least acquiesced in) the decision of the Prosecutor to rely on these spurious complaints as a means of discrediting the WGAD, rejecting its decision, and ordering the continued detention of the applicants. The Government provided this misleading information to the Prosecutor and then stood by and failed to intervene whilst these submissions were made by the Prosecutor to the Court. This is an act of grave political corruption which should have grave consequence for those responsible, no matter how high up in Government that responsibility goes. Even the Spanish Prime Minister, or the King, cannot authorise this level of dishonest manipulation of the institutions set up by the United Nations Human Rights Council to monitor Spain’s compliance with its international law obligations.

41. As a matter of international law, the State of Spain is the Respondent to this application.

The Government performs the task of representing the State, but the Respondent State itself is responsible under international law for the acts and omissions of all three branches of government - executive, legislative and judicial. And the State is vicariously liable under international law for the acts of all its agents (whether they are office-holders, employees or even in some circumstances, contractors).

42. For the purposes of international law responsibility, the State is one indivisible whole, and is responsible for the conduct of all its servants or agents. We know the State leaked the WGAD decision. We know the State lodged a complaint with the WGAD alleging that the report was leaked by the Secretariat and myself. We know they also made a spurious complaint about bias without disclosing the date on which this information was obtained, in order to hide key information that would have resulted in its automatic dismissal on grounds of waiver. Viewed overall, the most likely inference from the evidence is that these were all aspects of one single strategy to discredit the WGAD and myself during and immediately after the 48 grace period. The behavior of the Spanish Government in this matter amounts to the most flagrant possible abuse of the privileges given to States by the United Nations, and is a gross affront to the Organisation’s values. Spain cannot be allowed to behave in this way without consequences.

43. In addition, we now know that the State Prosecutor relied on the same allegations to justify the continued detention of the applicants. The Prosecutor must have obtained the information supporting these allegations from the Government itself. The Respondent State (Spain) is also responsible for the acts of the Prosecutor in relying on these baseless allegations as a purported justification for the continued detention of the applicants. It is no excuse to say that the Prosecutor did not know the allegations were baseless. The Spanish authorities as a whole failed to conduct any good faith investigation of these allegations before using them as the basis to justify continued detention. Where a person’s right to liberty is at stake, the State owes a legal duty to use reasonable care to ensure that it does not procure a person’s continued detention on the basis of incomplete or misleading information. In this case, even on the most indulgent analysis, the Prosecutor and the Supreme Court took these bare allegations at face value, and ordered the

continued detention of the applicants without conducting any kind of enquiry to verify the facts. Spain is responsible for the acts of the Government, the Prosecutor and the Court in this regard. Moreover, the Government compounded the deceit by failing to correct the misleading information that it had supplied.

Conclusion 44. On behalf of these three applicants, and the applicants in the linked case of Joaquin Forn, Josep Rull, Raul Romeva and Dolors Bassa, I formally request the WGAD (or its Chair) to: a. Immediately bring this letter to the attention of the Head of the Special Procedures Branch, the High Commissioner for Human Rights; the Special Rapporteur on the Protection of Human Rights Defenders; and the President it the Human Rights Council; b. Dismiss the Government’s complaints either summarily or as expeditiously as possible; c. After dismissing the complaints, immediately adopt and subsequently make public the WGAD’s decision on the merits in the linked case of Joaquin Forn, Josep Rull, Raul Romeva and Dolors Bassa – no further delay should be permitted since this is obviously a part of the Government’s dishonest strategy; d. Make a report to the High Commissioner and the President of the Human Rights Council concerning these events, and request them to refer the situation to the Human Rights Council.

45. Please inform the High Commissioner and the President of the Council that this letter constitutes a formal request that the relevant entities of the Human Rights Council should conduct a full and independent investigation into the conduct of the Spanish Government in this master, with a view to tabling a report and (if appropriate) a motion of censure against Spain at the Council, for its clear violations of the founding principles of the UN Charter.

46. The obvious need for Spain’s misconduct to be investigated and sanctioned by the Human Rights Council should not, however, be allowed to cause further delay to the work of the WGAD in these cases (which is one of the Government’s key objectives). Otherwise, the Government will have succeeded in its attempt to disrupt and frustrate the work of the WGAD, a vital entity of the Human Rights Council itself. The correct course now is for the WGAD to dismiss the Government’s complaints summarily or expeditiously, and then to adopt and publish its decision on the merits in the linked case of Forn, Rull, Romeva and Bassa v Spain. Only then will it be possible to begin the necessary investigation by the relevant entities of the Human Rights Council into Spain’s crude attempt to manipulate the United Nations. Unless the matter is approached in this way, the Government of Spain will

(a) continue to cast unfounded and fabricated aspertions against the WGAD, the Secretariat and myself; and (b) will have achieved one of its primary objectives which is to prevent the WGAD from issuing its decisions in the Forn, Rull, Romeva and Bassa case.

Yours ever,

Ben Emmerson QC