The Supreme Court has sentenced Oriol Junqueras, Raül Romeva, Jordi Turull and Dolors Bassa for the crime of disobedience in competition with aggravated embezzlement, when reviewing the sentence of the process in light of the reform of the Penal Code that eliminated sedition and reformed embezzlement . The court argues that the organization of an illegal referendum such as that of 1-O 2017 with public funds cannot be understood as an attenuated embezzlement.
In addition, it 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 only apply it to the ‘Jordis’ for the demonstrations on 20-S before the Department of Economy.
With this order in which there is no appeal and therefore acquires firmness, the court overthrows the legislative intention of being able to modify the crime of sedition for public disorder and that of reducing embezzlement for those convicted of the process to attenuated. 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 High Court has refused to reduce the penalty for embezzlement, thus confirming the absolute disqualification for Junqueras and Bassa until 2031 and for Romeva and Turull until 2030.
On the other hand, the TS has condemned the former presidents of the sovereignist entities ANC and Òmnium Cultural Jordi Sànchez and Jordi Cuixart as perpetrators of a crime of public disorder and Forcadell, Rull and Forn for disobedience. In relation to these five convicts, the entry into force of the 2022 reform determines the total extinction of their respective disqualification sentences.
The court denies that the repealed crime of sedition can now be understood to be punished in the new crime of public disorder.
The Chamber, chaired by Manuel Marchena, rejects in its order that the repealed crime of sedition, due to a legislative reform promoted by ERC and PSOE, can now be understood to be punished in the new crime of public disorder. It warns that the reform leaves secessionist processes unpunished that are not accompanied by acts of violence or intimidation.
“The immediate effect of the reform has been to create 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,” the order explains.
“From 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 contemplated by the crime of public disorder or in any case that of rebellion.
“As a result of the reform, between the crime of rebellion and the crime of public disorder, there is an intermediate space that can accommodate in the future conduct that seriously violates the constitutional system, in which the observance of the laws and the non-compliance with judicial decisions , if they were not accompanied by pre-ordered violence for those purposes or did not imply acts of violence or intimidation against people or things, they would go unpunished,” he adds.
The Supreme Court regrets that from now on “constitutional disloyalty and contempt for the bases of coexistence”, even when followed by a public and tumultuous uprising, “not necessarily violent, would not be subject to criminal treatment.”
In other words: “the creation of a normative framework of territorial rupture that would prepare the secession of a part of the territory of the State, even accompanied by massive acts that would lead to the general disobservance of the laws and non-compliance with governmental or jurisdictional decisions that try to put an end to it, they would be alien to the intervention of criminal law”.
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.
In a resolution adopted unanimously, the magistrates criticize the repeal of the crime of sedition and warn that any attempt to reduce the scope of the classification offered by the crime of sedition “to a problem of public order, identifiable with mobilizations or riots, blurs the problem”.
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.”
Their plan was done, according to the sentence that they are now mentioning, “encouraging a citizen mobilization that included material and physical resistance and opposition, as well as international support aimed at unilaterally depriving, by way of de facto, all executive power to the decisions of the governmental and judicial authorities democratically legitimized by our constitutional system”.
Therefore, it considers that it is not possible to transfer from one crime to another and say that everything that included the crime of sedition is now included in the crime of public disorder. “There is no doubt that the collective disobedience to the requirements of the Constitutional Court 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 motor that pushed the frustrated desire to achieve the validity of transitory laws that paved the way for independence”.
In the case of Sànchez and Cuixart, they can be charged with the crime of public disorder because they did practice specific acts of violence or intimidation against people and things on September 20, 2017 before the Ministry of Economy, where it occurred a concentration to avoid a judicial search by the judge who was investigating the organization of the referendum on October 1.
According to the court, there was a disturbance of public peace and acts of intimidation as a result of the concentration of 40,000 people who protested the presence of Civil Guard agents who accompanied the lawyer from the Administration of Justice to carry out a search. judicially authorized, which had to leave through the roof of the building due to the altercations that were at the door.
In reviewing the sentence, the court should also analyze the reform of the crime of embezzlement promoted by the Socialists and ERC, in which an attenuated embezzlement is introduced as a new element if there is no profit motive, that is, if the diversion of funds Public funds are not intended for personal gain. Junqueras and the rest of the convicted requested their acquittal, understanding that the money used by the Generalitat for 1-O did not have such a benefit, despite the fact that the referendum had been explicitly prohibited by the Constitutional Court and the Superior Court of Justice of Catalonia (TSJC).
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 8 years in prison and whoever uses them for criminal or unlawful activity -in our case, the holding a judicially prohibited referendum – may be punished with a fine”.
And it warns: “an alternative interpretative solution to the one we are now adopting could be contrary not only to the axiological value that determines the penal protection of public funds, but also to the reinforced commitment assumed by our country to protect the public funds of the European Union”.
The court insists that applying the public funds of the Generalitat to finance 1-O “can never be considered ‘… a different public application’ from the one to which those funds were budgetarily assigned”.
“And what is most evident, it can never be understood that it was an action that was not for profit”, when what was done was a breach by public officials of their duty of loyalty in the administration, he decided to give them an unequivocal purpose illegal”.
In short, the Chamber denies the possibility of privileged treatment, from the point of view of the protection of the financial interests of the State, to those convicted of the crime of embezzlement.
