“The worst penal reform in history,” the professor of Criminal Law at the Carlos III University Jacobo Dopico called it when it was approved nine years ago. One of the key issues of that extensive reform was the important expansion of conduct that could be treated as terrorism. In a judicial design like the Spanish one, criminal experts explain, which grants exclusive powers over terrorism to the National Court, canceling the right of the prisoner to the predetermined ordinary judge, expanding the terrorist crime increases the power of that instance, heir to the old Court of Public Order.
The professor of Criminal Law at the University of Valencia Juan Carlos Carbonell Mateu maintains, on the one hand, that the National Court should not exist, and it should be the provincial courts that hear cases of terrorism, with an appeal being possible before the higher courts of justice of each community. And at the same time he criticizes that the latest penal reform contains a deliberate lack of definition: “They have played with absolute ambiguity, with no clear definition of terrorism, thereby consolidating the expansion of the reduction of rights.”
But that’s just the added effect. Mercedes García Arán, professor of Criminal Law at the Autonomous University of Barcelona, ??explains that the Constitutional jurisprudence always demands the peremptory strictness of the norms. Laws must be exhaustive (“taxative: that limits, circumscribes and reduces a case to certain circumstances”) to guarantee legal certainty. And of all the regulations, the penal code is the one that must be most rigorous, since ambiguity is a vehicle for arbitrariness. “If the principle of strictness is to guide any law, in criminal legislation it should be a bible,” explains the professor, “but legislators have long lost their way.”
Criminal legislation throughout the West has been changing since the emergence of jihadist terrorism, starting with 9/11, whose international character and informal structure were very different from the local terrorisms that democracies knew, such as the IRA, the Baader Meinhof, the Red Brigades or ETA. In the 2010 reform, the more versatile concept of “terrorist group” was incorporated into the classic concept of “terrorist organization”, which contributes to a certain lack of definition, but only contemplated two purposes of the terrorist crime: subverting the constitutional order and disturbing the peace. public. In reality, explains García Arán, they are quite broad concepts, since many possible behaviors fit into these two purposes.
Despite this, the profound reform of 2015, which Dopico describes as the worst in history – “it is so extensive that it contains more legislative mistakes than all the others” – expanded the purposes of crimes that could be terrorism: “1 .ª Subvert the constitutional order, or seriously suppress or destabilize the functioning of political institutions or the economic or social structures of the State, or force public powers to carry out an act or to refrain from doing so. 2. Seriously alter public peace. 3. Seriously destabilize the functioning of an international organization. 4. Provoking a state of terror in the population or in a part of it.”
This reform does two things, explains Mercedes García Arán: “It eliminates the organization requirement, even though it was already a broad concept, and it expands the purposes.” And in crimes that could be terrorism, it adds so many that almost any criminal conduct can be. “Note that in the objective part it mentions, for example, crimes against property: that could be burning an ATM.” As it is written, and no longer requiring the existence of an organization behind it, any protest that seeks to “force the public authorities to do something” – the ordinary objective of all protests, such as the tractor protests of these days – and that causes Damage to heritage – like the environmentalists who sprinkled harmless beets on the façade of Congress – can be considered terrorism and therefore leave the ordinary jurisdiction to fall into the National Court.
“Terrorism is difficult to define, but the latest reforms, instead of advancing legal security and strictness, have done the opposite, they have exponentially increased the difficulties,” says García Arán. Criminal law professors explain that often, when they complain to politicians about the lack of precision of criminal legislation – therefore, its poor quality – they argue that “deep down it is understood.” That is, they appeal to the common sense of the judge who must interpret them. “We have little culture of legislative rationality left,” reflects the professor. This common sense in interpretation is the norm, until someone like Judge Manuel García-Castellón appears in the case against Tsunami Democratic, and decides to explore the possibilities of a botched wording. The paradox is that, despite the width of the criminal code to convert anything into terrorism, the judge has had to speed up his investigation to keep the case open. Carbonell points out that “there is no other case in memory of a succession of orders responding to legislative amendments in process. “It is a clear misuse of power,” he says, “and the judge can challenge it.”