Nicholas Garcia Rivas (Madrid, 1959), Professor of Criminal Law at the University of Castilla-La Mancha, wrote in the Comments of the Criminal Code, in 2007, many years before the start of the process, that the crime of sedition should pass to a better life. He already warned then that from a strictly normative point of view, the crime of sedition lacked the necessary limitation to provide certainty required by the Constitution. There was no room, he said, citing rulings of the Constitutional Court, “formulations so open due to their breadth, vagueness or lack of definition, that the effectiveness depends on a practically free and arbitrary decision of the judging interpreter & rdquor ;.
Bingo. This is what García Rivas believes happened to him. process. The sentence of October 19, 2019 revived a dead crime as the conviction for the crime of rebellion was not feasible. This is the dialogue that García Rivas had with El Periódico after hearing about the project to repeal the crime of sedition.
-You are one of the promoters along with other criminals of the repeal. Have you felt well interpreted or are you disappointed with the proposal?
-The parliamentary groups that have presented the bill have been bold because the repeal as such was hardly expected by anyone. Retouches, reduced sentences, yes, but a pure and simple repeal of Chapter I of Book II Title XXII in its entirety, articles 544 to 549, the change of 557 and 557 bis, the suppression of 559, of 557 ter… come on, this does not. And I completely agree. It has to disappear, period. It was perhaps necessary to reform the crime of rebellion whose configuration is as nineteenth-century as that of sedition. Let’s not forget that what has been called sedition for the Supreme Court was “a small rebellion & rdquor ;. The reform of the crime of public disorder seems good to me because the reform made by the Popular Party in 2015 meant an exorbitant expansion of the crime of public disorder, increased the penalties and the alleged aggravations and included the crime of sending messages through the networks that encouraged public disorder and was enacted on the same day as the “Gag Law & rdquor ;. An attempt to put an end to the political and social opposition that demonstrated against the cuts. Now the basic type of public disorder – apart from that which substitutes suppressed sedition – is also positive. That is to say: the reform exceeds the Catalan separatists. There is more fabric. In 2015, everyone was talking about the reviewable permanent prison, but that reform was full of traps, rather, of authoritarian gestures. The new type 557 closes what was a very open and expansive criminal type.
-Precisely, the crime of sedition is a crime against public order… Not against the Constitution.
-This crime must always be interpreted with the Penal Code in one hand and the Constitution, with the right of assembly, in the other. Because a group that disturbs the public peace is something very
“For me, in September 2017 what took place in Catalonia was the exercise of the right of assembly. And that should not have been a crime”
generic. Any demonstration can alter the public peace, a restrictive interpretation must be made. And the proposal now is a nod to what happened in Catalonia in 2017, talking about a crowd whose number, organization and purpose are suitable for seriously affecting public order. This applies to the demonstrations of 40,000 people in front of the Ministry of Economy on the Rambla de Catalunya or to the demonstrations by taxi drivers in the center of Madrid. The new description is not very exhaustive, but it is difficult for it to be. Because for me, in September 2017 what took place in Catalonia was the exercise of the right of assembly. And that shouldn’t have been a crime.
-We had already had, in the case of the siege of Parliament, in 2011, contradictory sentences in the National High Court (acquittal) and in the Supreme Court (conviction).
-That’s how it is. The ruling of March 2015 of the Supreme gives a magnitude to that demonstration of attack against State institutions quite crazy.
-But there was an attempt in the Constitutional Court, in June 2019, to annul the Supreme Court ruling that had reviewed the acquittal of the accused issued by the National High Court and sentenced them on appeal. But the threads were moved and the conservative sector of the TC prevented the appeal from being resolved at that time with the argument that this could condition the sentence of the court of the process in the Supreme scheduled for the last quarter of 2019.
-That could have been his influence, indeed.
-The speaker’s idea [Cándido Conde-Pumpido], as it transpired, was to consider some partial defenses and admit the appeal of the convicts on the basis that they had no other way to protest against the cuts, and invoked the discouragement effect caused by the conviction. That would have created a precedent to avoid a fall in the crime of sedition later, when the magistrates of the Supreme Court did not appreciate the violence of the criminal type of rebellion and favored sedition.
-But there was no sedition either. The Supreme Court instructed for rebellion, but since it could not convict for that crime, it used what was closest and could be presentable
“There is still a lot left. We must modify the crimes of expression and the crime against State Institutions.”
before the expectations that the magistrates themselves had generated. A crime that no one remembered and some of us said: “This must be repealed.” But since it was never applied, it did not matter that it was not repealed. Well, suddenly the Supreme uses this crime with penalties of up to 15 years in prison. That is the problem of maintaining obsolete crimes that can be applied undemocratically. That is to say: by politics. He has interpreted the crime of sedition in article 544 of the Penal Code in a way that recalls nineteenth-century inspiration. Note: this use is a compelling reason to eliminate sedition from the current Penal Code. But there is still a lot left. It is necessary to modify the crimes of expression and the crime against State Institutions, because, of course, three years in prison for those who demonstrated before the Parliament to protest against cuts cannot be sustained: And also, some must be eliminated, such as insults, which are pure political or social dissidence. We have a Penal Code that is very detrimental to freedoms.
-Núñez Feijóo has said that when he arrives at Moncloa he is going to reintroduce the crime of sedition, and they already said before that they want to increase the penalties.
-But citizens must know that if a crime is repealed, even if it is reinstated later, the favorable retroactivity does not cease to have its effects. It doesn’t matter if you put it back because what was judged cannot be judged again. Now it is clear that the parliamentary majority has placed itself in front of the Supreme Court. He has struck back at the Supreme Court’s political ruling of October 14, 2019.
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-But magistrates of the Supreme Court on behalf of the entire Supreme Court have reacted instantly by sending messages to the media, digging a trench in the street of the Marquis of Ensenada. Something like this had not been seen. They will have the opportunity to apply the new crime and review the sentences.
-Yes, indeed. They say that by eliminating sedition, embezzlement also disappears and they put it in the mouth of the Supreme Court. And both are false. As far as I know, there has not been a plenary session of the Criminal Chamber or of all the chambers for this. It is that they still do not know more than the bill. Embezzlement doesn’t go away at all. It was based on the fact that the illegal referendum was called with public funds. The medial contest implies that they are two different and independent crimes -sedition and embezzlement- that are linked. He is not convicted of embezzlement for committing sedition but for calling an illegal referendum with public money. For example, if Carles Puigdemont returns to Spain, he will be prosecuted for embezzlement, to which public disorder could be added. And with both sentences we can go more than ten years.