The reform of the Criminal Code approved on Thursday in Congress and which should have the final green light next week in the Senate, unless the Constitutional Court decides otherwise, could benefit the pro-independence leaders already convicted by the process for sedition and embezzlement , to those who escaped from the Spanish justice system establishing residence in Belgium and who are being prosecuted, and to the ex-charges of the Government of Puigdemont prosecuted for embezzlement in Barcelona courts.
This is so because any legal reform that may benefit the prisoner must be taken into consideration in accordance with article 2.2 of the Penal Code.
However, calculating how it will affect the different actors seems very complicated because the circumstances of each of them are different and because ultimately everything depends, at least in the central cause of the process, on how you interpret the legal changes the sentencing court presided over by Supreme Court judge Manuel Marchena.
In any case, if the reforms are approved, the courts will have to take into account that, on the one hand, the crime of sedition, which carries prison sentences and disqualification from 10 to 15 years, has disappeared. On the other hand, the one for embezzlement has been modified, which goes from 2 to 12 years in prison and from 6 to 20 years of disqualification to between 1 and 4 years in prison and from 2 to 6 years of disqualification.
According to legal sources consulted by La Vanguardia, there would be a group of people convicted only of sedition whose prison sentences were pardoned (Jordi Sànchez, Jordi Cuixart, Carme Forcadell, Quim Forn and Josep Rull) who should see their sentences reduced to zero, the deprivation of freedom –already revoked– and those of disqualification, for the simple elimination of the crime for which they were convicted, which would even nullify the appeals filed before the Supreme Court against the grace measures granted by the Government.
To them should be added some of those who are not in Spain such as Toni Comín and Clara Ponsatí, only prosecuted for that eliminated crime. Marta Rovira continues to be claimed from Switzerland for rebellion.
Other sources consider that the new crime of aggravated public disorder could be applied to this group –thesis on which the Government insists to give way to the Euro-orders of investigating judge Pablo Llarena, which have failed until now–, which provides for penalties of disqualification from 6 to 8 years, or disobedience and disqualification from 6 months to 2 years. However, the sources consulted insist that these crimes could not be applied since neither the legal assets protected by them nor their typical structure – will and conduct of the subject – are the same.
It should also be remembered that the Supreme Court denied in the text of the 1-O sentence that the events could be classified as a crime of public disorder. And the one for aggravated public disorder did not exist at the time of the events, so the sentences could not be readjusted.
But the trickiest issue is that of embezzlement. First of all, it must be taken into account that, for example, Oriol Junqueras was sentenced by the Supreme Court to 13 years for sedition and embezzlement in a media contest. This means that the second was a necessary crime to commit the first. There is a theoretical debate about the possibility that, once sedition is eliminated, media crime should also decline, and therefore embezzlement as well.
But the sources consulted are inclined to think that the new classification will be applied, which penalizes the use other than that to which the public resources were destined, since the procés is a paradigmatic case of this criminal type.
In the case of those already convicted of this crime, who in addition to Junqueras are Jordi Turull, Raül Romeva and Dolors Bassa, the disqualification sentences – the only ones that matter since the prison sentences have expired – could range between 2 and 6 years. . The Supreme Court, in its 2019 sentence, did not limit the corresponding penalties for each crime, but the ruling can give clues as to how it distributed them.
In the case of the former president of Parliament, Carme Forcadell, the sentence, only for sedition, was 11 and a half years in prison and disqualification, while that of the former vice president of the Government was 13 for both crimes, that is, only one year. and a half more, which would place embezzlement at a very low level of the Penal Code.
This should translate into a penalty of disqualification that should not exceed three years, a period that has already elapsed since in July 2018 all of them were already disqualified. In fact, in ERC they consider that the disqualification would start counting from the first moment they were provisionally imprisoned, in November 2017.
For this reason, the sources indicate that all of them could attend elections shortly or could hold public office.
Another very different situation is that of the former president of the Generalitat Carles Puigdemont, prosecuted in absentia and who, if finally extradited, should face at least embezzlement charges with prison terms of up to 4 years and 6 years of disqualification. To this should be added the possibility that he is also tried for aggravated public disorder, with penalties of up to 5 years in prison and 8 years of disqualification.
