The Criminal Chamber of the Supreme Court announced this Monday its review of the judgments of the Catalan independence process to bring them into line with the criminal code reform agreed between the government and the ERC and approved by Parliament in December. The decision was unanimous. With the crime of sedition gone, former Catalan vice-president and ERC leader Oriol Junqueras is now being convicted of a crime of disobedience in a real contest involving embezzlement, but the court is retaining his full 13-year disqualification sentence. meaning he cannot seek public office until 2031. In the order in which it establishes the new penalties, the court rejects all the arguments used by Pedro Sánchez’s executive to defend this reform, noting that the new wording of the penal code “blurs the issue” and stresses that he could leave future attacks on the constitution “unpunished”.
In its resolution, the Supreme Court denied that the events of the trial for which Junqueras and the other leaders of the Generalitat were tried fit into the new crime of public disorder – contrary to what the government said when it announced the reform of the law claimed – and warns that the executive branch’s initiative will leave with impunity hypothetical new secessionist processes not accompanied by “preordained violence”. The Supreme Court, on the other hand, does not proceed from the new type of mitigated embezzlement that the government and the ERC expected for these events (a case of embezzlement for the good with much lesser penalties): the court upholds the embezzlement that of the leaders of the Procés are committed must continue to be punished with the highest penalties.
It wasn’t public disorder
Penal Code reform, pushed with the express aim of reducing the punishment of those convicted, eliminated the crime of sedition – which in turn created a crime of serious public disorder – and mitigated the crime of embezzlement in certain cases. Regarding the first, the Supreme Court claims that it can only apply the crime of public disorder to Jordi Sànchez and Jordi Cuixart, leaders of the pro-independence organizations ANC and Òmnium Cultural in 2017, because they “practiced certain acts of violence or intimidation against people and things”. The rest of those convicted of sedition – Junqueras, former councilors Jordi Turull, Raül Romeva, Dolors Bassa, Joaquim Forn and Josep Rull, and former President of Parliament Carme Forcadell – were convicted by the court of disobedience, but not of public disturbance for the facts for which they have been accused of do not fit into this new crime but go much further.
“The agency that stubbornly disregards the requirements of the Constitutional Court, that disregards the prohibitions of the Supreme Court [de Cataluña]that carries out a legislative break – although it lacks any legal capacity – does not simply alter public policy,” the resolution states. According to the Supreme Court, whoever advocates a court-banned referendum and “mobilizes thousands of people in the delusion of exercising the imagined right to decide” “undoubtedly undermines the constitutional foundations that define coexistence.”
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serious embezzlement
For the four former members of the Catalan government convicted of embezzlement on top of sedition – Junqueras, Turull, Romeva and Bassa – the Supreme Court is maintaining, yes, the full sentence for this crime: Junqueras and Bassa are being incapacitated pending impeachment 2031; Turull and Romeva, by 2030. Therefore, in the case at hand, the court will not apply the mitigated embezzlement assumption that the government has included in the penal code for cases where there is no personal gain.
The Supreme Court clarifies that aggravated embezzlement (for which the litigants were initially convicted) exists even in the absence of personal gain because there is gain in obtaining other types of advantage as well. And he stresses that “he cannot accept” that the new criminal offense introduced by the reform “acts as a mitigated species because the destination of public funds is presented as a decision by the agency or the official’s ability to manage those funds” and with ” the formalities associated with administrative acts.” “It would be contrary to the most elementary legal logic to understand that whoever appropriates public funds is punishable by up to eight years in prison and whoever uses them for criminal or illegal activities – in in our case, the holding of a referendum prohibited by a court – can be punished with a fine.”
A space for impunity
In justifying its decision, the Supreme Court alleges serious criticism of the government’s criminal justice reform. With the abolition of the crime of incitement to hatred, there is now a decriminalized “gap” between rebellion and public disorder. And this space “can henceforth accommodate behavior in gross violation of the constitutional order, in which compliance with the law and disobedience with judicial decisions occur, if they are not accompanied by violence predetermined for those purposes or acts of constitutional violence or intimidation of people or things implied by would go unpunished.”
The court refers to its 2019 procedural ruling to underline that the offense of sedition constitutes “the interest of society in the acceptance of the constitutional framework, the laws and the decisions of the lawful authorities as a prerequisite for the exercise and the enjoyment of fundamental rights protects rights”. And he insists that criminal reform, by eliminating this crime, opens “cracks” in this shield of the rule of law, since “constitutional breaches of trust targeting general non-compliance with the law and non-compliance with court decisions , criminal treatment no longer exists”. “Breaking the legal framework that enables coexistence, exceeding the limits of competence imposed by the state structure and persistent disobedience to legal requirements will henceforth only be punishable if they are accompanied by acts of violence or intimidation, as described in the renewed Article 557, which would then be punished as a disturbance of public order”.
For the Supreme Court, therefore, it is a fact that after the criminal justice reform initiated by the government, “the creation of a normative framework of territorial rupture that would prepare the secession of part of the national territory would be accompanied even by massive acts leading to a general disregard for the laws and failure to comply with administrative or judicial decisions attempting to put an end to this would be alien to criminal law interference”. That means they would go unpunished.
“In short,” added the court, “any attempt to reduce the scope of criminality offered by the crime of sedition to a public order issue identifiable with mobilizations or rioting blurs.” penalties associated with the Code [Penal] of 1995 on the crime of sedition in the need to punish not only acts contrary to public peace, but the development of an insurgency mobilization called to obstruct the democratic exercise of state power that the authors framed in the case being prosecuted in creating a supposed normative coverage of the “right to decide”.
After prison reform and the review of sentences, the only leaders of the trial who remain disqualified are Junqueras and Bassa (until 2031) and Romeva and Turull (until 2030). The disqualification imposed on Forcadell, Forn, Rull, Sànchez and Cuixart has now expired. All had their sentences reduced when they were pardoned by the government in June 2021.