After the repeal of the crime of sedition and the embezzlement reform, the Supreme Court was obliged to review the sentence with which it condemned the leaders of the process in October 2019. Its objective was to determine if the legislative modification affects the penalty of disqualification that was imposed on the convicted and that, unlike that of prison, was not pardoned. His conclusion is that those who were condemned for sedition they must now be for disobediencebut what does not change is that this crime is understood to have been committed in real contest with another embezzlement of public funds.
That is the case of those sentenced to greater sentences, Oriol Junqueras, Raül Romeva, Jordi Turull and Dolors Bassa, They do not see the penalty imposed for embezzlement being reduced, because an illegal purpose such as the 1-O referendum can never be framed within the new formula that punishes allocating public money to another public purpose. In this way, the disqualification that remains to be served will not be extinguished, according to the liquidation of the sentence already carried out in the respective enforceable proceedings, until on July 17, 2031 in the case of Junqueras and the October 10 of that year from Bassa; until andon July 5, 2030 it will not be for Turull and Romeva.
Instead, to those who were leaders of the Catalan National Assembly (ANC) and Òmnium Cultural, Jordi Sànchez and Jordi Cuixartrespectively, yes, they are condemned now as authors of a crime of public disorder, although the penalty of disqualification that they were still serving is declared extinguished. The former president of Parliament Carmen Forcadell and the ‘former councilors’ Josep Rull and Joaqumn Forn They are the main beneficiaries of the reform, since now they are condemned as perpetrators of disobedience, and, as the penalty provided for this crime does not exceed two years of disqualification, they have already more than complied with it.
The Criminal Chamber thus shares the criteria that the instructor of the ‘procés’ in the Supreme Court, Pablo Llarenaapplied to those who fled with the former president of the Generalitat Carlos Puigdemont at the head, which allows us to predict that it will confirm its resolution, despite the appeals filed by the prosecution and the State Attorney, who wanted the sedition to be replaced by the new crime of aggravated public disorder.
impunity processes
The Supreme Court warns that the reform leaves unpunished the secessionist processes that are not accompanied by acts of violence or intimidation. The order, signed by the magistrates who handed down the sentence of the ‘procés’, affirms that the reform “has made a redefinition of crimes against public order”, but sedition “was something more”, by also punishing “who promotes by force or outside the legal channels, non-compliance with the laws or judicial decisions” without limiting itself “to disturb public order”.
“The authority that stubbornly disregards the requirements of the Constitution, that disregards the prohibitions imposed by the Superior Court of Justice, that carries out a legislative process of rupture -even though it lacks all legal viability- is not simply altering public order “, explains the resolution. “Whoever to make a referendum not endorsed by the Venice Commission of the European Council and prohibited by the Courts of Justice a reality, mobilizes thousands of people, in the delusional belief that they are going to exercise the imaginary ‘right to decide’, it is undermining, without a doubt, the constitutional bases that define coexistence”, maintains the Supreme Court.
“There is no doubt that the collective disobedience to the requirements of the Constitution or to the orders of the agents who tried to fulfill a mandate emanating from the judicial authority were something more than an attack against public peace, above all, because that will was the engine that pushed the frustrated desire to enforce transitory laws that paved the way for independence”, but it cannot be framed within the new crime of aggravated disorder, for which reason the reform has “generated a regulatory vacuum in which acts such as those that were prosecuted in the sentence that is now being reviewed can come up with visible cracks of criminality“.
From now on they can only be punished if there is violence, while before, despite what the prosecution, the State Attorney’s Office and the accusation brought by Vox, no violence was required, because “it was also punishable when it was simply carried out outside the legal channels”. With the reform, between the crime of rebellion and that of public disorder “there is an intermediate space that in the future could accommodate conduct seriously infringing on the constitutional system, in which the observance of the laws and the non-compliance with judicial decisions, if not were accompanied by violence preordained for these purposes or did not imply acts of violence or intimidation against people or things would go unpunished”.
After insisting that sedition did not penalize the exercise of the rights of assembly and demonstration, the Supreme Court addresses the situation of Sànchez and Cuixart, whose conduct it does see as falling within the new crime of public disorders for what happened at the Department of Economy during the searches, in which the detainees could not be present, vehicles of the Armed Institute were destroyed, and the judicial secretary had to leave through the adjoining building.
Last Code of Francoism
Related news
Regarding embezzlement, the sentence recalls that the reform has introduced a precept that “is a literal copy of the pre-democratic article 397 of the Penal Code”, which was punishable by a fine and disqualification and the latter with prison from 1 to 4 years for the use of public money for other public purposes. It concludes that understanding that this article is applicable to 1-O “It would be contrary to the most elementary legal logic to understand that whoever endorses public funds incurs a penalty that can reach 8 years in prison and whoever uses them for criminal or unlawful activity -in our case, holding a judicially prohibited referendum- can be punished with a fine”.
“Apply the public funds of the Generalitat to a popular consultation that went beyond the competence framework of those who promoted it, developed after repeated requirements of the Constitutional and the Superior Court of Justice to avoid it and, finally, oriented towards a secessionist process that did not came to have virtuality, it can never be considered ‘a different public application’ from the one to which those funds were budgetarily attached. And, what is more evident, it can never be understood that it was an action that was not for profit, “he says.