The Supreme Court yesterday withdrew the crime of sedition from the sentence of the process as a result of its repeal and took the opportunity to issue a harsh warning to the Government about the space for impunity that, in its opinion, the reform leaves regarding secessionist processes that do not go accompanied by acts of violence or intimidation. In addition, the legislative reform promoted by the ERC and the PSOE – the reform of the crime of embezzlement – ??in order to benefit the leaders of the sovereignist challenge has not been fully reflected.
Oriol Junqueras, Raül Romeva, Jordi Turull and Dolors Bassa will maintain the same disqualification sentence, which means that the leader of the Republicans will not be able to return to active political life until 2031, when he has completed his sentence. On the other hand, for the other five convicted –Carme Forcadell, Josep Rull, Jordi Sànchez, Joaquim Forn and Jordi Cuixart– their sentences have been definitively extinguished.
The reason why the convictions of the first four are maintained is that, despite withdrawing the sedition, the crime of aggravated embezzlement has been maintained in addition to another of disobedience and, therefore, the disqualification penalties are maintained. Regarding prison sentences, the Chamber does not assess them once they have expired after the pardons granted by the Government.
The Supreme Court, however, has not accepted what was intended with the reform of the crime of embezzlement because it has not interpreted, as the Government claimed, the crime of non-profit embezzlement for those cases in which the diverted money did not seek personal benefit of public office and whose sentence was reduced to a mere fine. It was the thesis of the convicts and of the State Attorney’s Office itself, which maintained that the use of public funds to organize the referendum on October 1, 2017 could not be considered profit. The court disagrees.
For the Chamber, “it would be contrary to the most basic legal logic to understand that whoever makes public funds their own incurs a penalty that can reach eight years in prison and whoever uses them for criminal or unlawful activity -in this case, the holding a judicially prohibited referendum – may be punished with a fine.”
The court, chaired by Manuel Marchena, insists that applying the Generalitat’s public funds to finance 1-O “can never be considered a different public application from the one to which those funds were budgetarily attached.”
In an order against which there is no appeal and signed unanimously, the magistrates display their jurisprudence on the concept of profit motive to knock down the arguments of the explanatory statement of the reform promoted by the Government.
The Supreme Court also takes advantage of the resolution to show its disagreement on the arguments used by the legislature to repeal the crime of sedition. He makes a harsh warning about the space for impunity that, in his opinion, the reform leaves with respect to secessionist processes that are not accompanied by acts of violence or intimidation.
“As of its entry into force, the fracture of the legal framework that makes coexistence possible, the overflow of the limits of competence inherent to the structure of the State and the tenacious disobedience to judicial requirements will only constitute a crime if they are accompanied by acts of violence or intimidation”, as provided for in the crime of public disorder or, in any case, in rebellion.
In this way, the Chamber rejects the request of the Prosecutor’s Office to impose the crime of public disorder on them because what they did was a series of actions aimed at achieving the separation of part of the territory of the State, but without violence.
Public disorders are violent acts and that is why they are only applied to the Jordis for the demonstrations on 20-S before the Ministry of Economy. However, both for Jordi Sànchez and Jordi Cuixart, the sentence has also been extinguished because the one that would remain for the disorders has already been served.
For the court, what happened in the process cannot be compared to a public disorder, because it was a series of circumstances that led to seditious acts. “The authority that stubbornly disregards the requirements of the Constitutional Court, 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 the order public”, explains the resolution.
As he maintains, the seriousness of the penalties associated by the 1995 Code to the crime of sedition finds justification in the need to punish, not only acts contrary to public peace, but also “the development of a tumultuous mobilization called to prevent the democratic exercise of the authority of the State that, in the prosecuted case, the authors framed in the creation of an alleged normative coverage of the right to decide ”.
The Court argues that what the convicts did was not only endanger public order, but that they carried out a “concerted action” with the rest of the defendants, aimed at creating a set of regulations approved by an autonomous body ” manifestly incompetent to do so.
The Supreme Court thus maintains the same thesis as that established by the instructor Pablo Llarena with respect to the former Catalan president Carles Puigdemont, pending delivery by the Belgian authorities. The best unemployed are the former president of Parliament Carme Forcadell and the former ministers Rull and Forn for disobedience. In relation to these five convicts, the entry into force of the 2022 reform determines the total extinction of the disqualification.