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Offener Brief an Jean-Claude Juncker und Donald Tusk

Prof. Dr. Axel Schönberger
Germany

Nov 3, 2017 — OPEN LETTER TO
COMMISSION PRESIDENT JUNCKER AND EUROPEAN COUNCIL PRESIDENT TUSK
cc. First Vice-President Frans Timmermans
UPHOLDING THE RULE OF LAW IN THE EUROPEAN UNION
31 October 2017

Dear President Juncker, dear President Tusk:

We are scholars, politicians, public intellectuals and members of the European Parliament writing to you with the following concern:

The European Union has proclaimed the Rule of Law principle and respect for fundamental rights and freedoms to be binding on its Member States (Articles 2 and 6 of the Lisbon Treaty). The EU’s leadership has been a staunch protector of these fundamental norms, most recently in countering the Polish government’s attempts to undermine the independence of judges as well as the Hungarian government’s actions to limit civil society and media freedoms.

However, we are deeply concerned that the EU’s governing bodies are condoning the systematic violation of the Rule of Law in Spain, in particular regarding the Spanish central authorities’ approach to the 1 October referendum on Catalan independence. We do not take political sides on the substance of the dispute on territorial sovereignty and we are cognizant of procedural deficiencies in the organisation of the referendum. Our concern is with the Rule of Law as practised by an EU Member State.

The Spanish government has justified its actions on grounds of upholding or restoring the constitutional order. The Union has declared that this is an internal matter for Spain. Issues of national sovereignty are indeed a matter of domestic politics in liberal democracies. However, the manner in which the Spanish authorities have been handling the claims to independence expressed by a significant part of the population of Catalonia constitutes a violation of the Rule of Law, namely:

1/ The Spanish Constitutional Tribunal banned the referendum on Catalan independence scheduled for 1 October, as well as the Catalan Parliament session scheduled for 9 October, on grounds that these planned actions violate Article 2 of the Spanish Constitution stipulating the indissoluble unity of the Spanish nation, thus rendering secession illegal. However, in enforcing in this way Article 2, the Tribunal has violated Constitutional provisions on freedom of peaceful assembly and of speech – the two principles which are embodied by referendums and parliamentary deliberations irrespective of their subject matter. Without interfering in Spanish constitutional disputes or in Spain’s penal code, we note that it is a travesty of justice to enforce one constitutional provision by violating fundamental rights. Thus, the Tribunal’s judgments and the Spanish government’s actions for which these judgments provided a legal basis violate both the spirit and letter of the Rule of Law.

2/ In the days preceding the referendum, the Spanish authorities undertook a series of repressive actions against civil servants, MPS, mayors, media, companies and citizens. The shutdown of Internet and other telecom networks during and after the referendum campaign had severe consequences on exercising freedom of expression.

3/ On referendum day, the Spanish police engaged in excessive force and violence against peaceful voters and demonstrators – according to Human Rights Watch. Such disproportionate use of force is an undisputable abuse of power in the process of law enforcement.

4/ The arrest and imprisonment on 16 October of the activists Jordi Cuixart and Jordi Sànchez (Presidents, respectively, of the Catalan National Assembly and Omnium Cultural) on charges of sedition is a miscarriage of justice. The facts resulting in this incrimination cannot possibly be qualified as sedition, but rather as the free exercise of the right to peaceful public manifestation, codified in article 21 of the Spanish Constitution.

The Spanish government, in its efforts to safeguard the sovereignty of the state and indivisibility of the nation, has violated basic rights and freedoms guaranteed by the European Convention on Human Rights, the Universal Declaration of Human Rights, as well as by Articles 2 and 6 of the basic law of the EU (the Lisbon Treaty). The violation of basic rights and freedoms protected by international and EU law cannot be an internal affair of any government. The silence of the EU and its rejection of inventive mediation is unjustifiable.

The actions of the Spanish government cannot be justified as protecting the Rule of Law, even if based on specific legal provisions. In contrast to rule-by-law (rule by means of norms enacted through a correct legal procedure or issued by a public authority), Rule of Law implies also the safeguarding of fundamental rights and freedoms – norms which render the law binding not simply because it is procedurally correct but enshrines justice. It is the Rule of Law, thus understood, that provides legitimacy to public authority in liberal democracies.

We therefore call on the Commission to examine the situation in Spain under the Rule of Law framework, as it has done previously for other Member States.

The EU leadership has reiterated that violence cannot be an instrument in politics, yet it has implicitly condoned the actions of the Spanish police and has deemed the actions of the Spanish government to be in line with the Rule of Law. Such a reductionist, maimed version of the Rule of Law should not become Europe’s new political common sense. It is dangerous and risks causing long-term damage to the Union. We therefore call on the European Council and Commission to do all that is necessary to restore the Rule of Law principle to its status as a foundation of liberal democracy in Europe by countering any form of abuse of power committed by Member States. Without this, and without a serious effort of political mediation, the EU risks losing its citizens’ trust and commitment.

When this declaration appears, the crisis will have developed further. We follow closely the situation with the interests of democracy in Catalonia, Spain and Europe in mind, as they cannot be separated, and we insist all the more on the importance for the EU to monitor the respect of fundamental freedoms by all parties.

Signatories (in personal capacity):

Albena Azmanova, University of Kent
Barbara Spinelli, writer, Member of European Parliament Etienne Balibar, université Paris Nanterre and Kingston University London Cristina Lafont, Northwestern University, USA (Spanish citizen) David Gow, editor, Social Europe
Kalypso Nicolaidis, Oxford University, Director of the Center for International Studies Mark Davis, University of Leeds, Founding Director of the Bauman Institute Ash Amin, Cambridge University Yanis Varoufakis, DiEM25 co-founder Rosemary Bechler, editor, openDemocracy
Gustavo Zagrebelsky professor of constitutional law, University Turin Antonio Negri, Philosopher, Euronomade platform
Ulrike Guérot, Danube University Krems, Austria & Founder of the European Democracy Lab, Berlin Costas Douzinas, Birkbeck, University of London Judith Butler, University of California, Berkeley and European Graduate School, Switzerland Philip Pettit, University Center for Human Values, Princeton University (Irish citizen) Jón Baldvin Hannibalsson, former minister for foreign affairs and external trade of Iceland Anastasia Nesvetailova, Director, City Political Economy Research Centre, City University of London Craig Calhoun, President, Berggruen Institute; CentennialProfessor at the London School ofEconomics and Political Science (LSE) Jane Mansbridge, Kennedy School of Government, Harvard University Arjun Appadurai, Institute for European Ethnology, Humboldt University, Berlin Thor Gylfason, Professor of Economics at the University of Iceland and Research Fellow at CESifo, Munich/former member Iceland Constitutional Council 2011 Judith Revel, Université Paris Nanterre Robert Menasse, writer, Austria Nancy Fraser, The New School for Social Research, New York (International Research Chair in Social
Justice, Collège d’études mondiales, Paris, 2011-2016) Roberta De Monticelli, University San Raffaele, Milan. Sophie Wahnich, directrice de recherche CNRS, Paris Christoph Menke, University of Potsdam, Germany Robin Celikates, University of Amsterdam Eric Fassin, Université Paris-8 Vincennes - Saint-Denis Alexis Cukier, Université Paris Nanterre Diogo Sardinha, university Paris/Lisbon Dario Castiglione, University of Exeter Hamit Bozarslan, EHESS, Paris Frieder Otto Wolf, Freie Universität Berlin Gerard Delanty, University of Sussex Boaventura de Sousa Santos, Coimbra University and University of Wisconsin-Madison Sandro Mezzadra, Università di Bologna Camille Louis, University of Paris 8 and Paris D Philippe Aigrain, writer and publisher Yann Moulier Boutang and Frederic Brun, Multitudes journal Anne Querrien and Yves Citton, Multitudes journal Susan Buck-Morss, CUNY Graduate Center and Cornell University Seyla Benhabib, Yale University; Catedra Ferrater Mora Distinguished Professor in Girona (2005). Bruce Robbins, Columbia University Michèle Riot-Sarcey, université Paris-VIII-Saint-Denis Zeynep Gambetti, Bogazici University, Istanbul (French citizen)
Andrea den Boer, University of Kent, Editor-in-Chief, Global Society: Journal of Interdisciplinary International Relations
Moni Ovadia, writer and theatre performer Guillaume Sibertin-Blanc, Université Paris 8 Saint-Denis
Peter Osborne, Centre for Research in Modern European Philosophy, Kingston University, London Ilaria Possenti, University of Verona Nicola Lampitelli, University of Tours, France Yutaka Arai, University of Kent Enzo Rossi, University of Amsterdam, Co-editor, European Journal of Political Theory Petko Azmanov, journalist, Bulgaria Etienne Tassin, Université Paris Diderot Lynne Segal, Birkbeck College, University of London Danny Dorling, University of Oxford Maggie Mellon, social policy consultant, former executive member Women for Independence Vanessa Glynn, Former UK diplomat at UKRep To EU Alex Orr, exec mbr, Scottish National Party/European Movement in Scotland Bob Tait, philosopher, ex-chair Langstane Housing Association, Aberdeen Isobel Murray, Aberdeen University Grahame Smith, general secretary, Scottish Trades Union Congress Pritam Singh, Oxford Brookes University John Weeks, SOAS, University of London Jordi Angusto, economist at Fundació Catalunya-Europa Leslie Huckfield, ex-Labour MP, Glasgow Caledonian University Ugo Marani, University of Naples Federico II and President of RESeT Gustav Horn, Scientific Director of the Macroeconomic Policy Institute of the Hans Böckler Stiftung Chris Silver, journalist/author James Mitchell, Edinburgh University Harry Marsh, retired charity CEO Desmond Cohen, former Dean, School of Social Sciences at Sussex University Yan Islam, Griffith Asia Institute David Whyte, University of Liverpool
Katy Wright, University of Leeds Adam Formby, University of Leeds Nick Piper, University of Leeds
Matilde Massó Lago, The University of A Coruña and University of Leeds Jim Phillips, University of Glasgow Rizwaan Sabir, Liverpool John Moores University Pablo Ciocchini, University of Liverpool Feyzi Ismail, SOAS, University of London Kirsteen Paton, University of Liverpool Stefanie Khoury, University of Liverpool Xavier Rubio-Campillo, University of Edinburgh Joe Sim, Liverpool John Moores University Hannah Wilkinson, University of Keele Gareth Dale, Brunel University Robbie Turner, University of St Andrews Will Jackson, Liverpool John Moores University Louise Kowalska, ILTUS Ruskin University Alexia Grosjean, Honorary member, School of History, University of St Andrews Paul McFadden, York University Phil Scraton, Queen's University Belfast Oscar Berglund, University of Bristol Michael Lavalette, Liverpool Hope University Owen Worth, University of Limerick Ronnie Lippens, Keele University Andrew Watterson, Stirling University Steve Tombs, The Open University Emily Luise Hart, University of Liverpool David Scott, The Open University Bill Bowring, Birkbeck College, University of London Sofa Gradin,King’s College London
Michael Harrison, University of South Wales


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