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Justice plans to expedite the reform of sedition to reinforce pardons

2021-06-04T02:20:42.851Z


The Government promotes legal change to reduce the penalties provided for this crime The Ministry of Justice has been working for months on the reform of the Penal Code to modify the crime of sedition and cut the penalties now provided for by half (between eight and 15 years in prison). The Government is considering starting the processing of this legal reform when it is embarking on the preparation of the pardon decrees for the 12 convicted by the Catalan independence process . T


The Ministry of Justice has been working for months on the reform of the Penal Code to modify the crime of sedition and cut the penalties now provided for by half (between eight and 15 years in prison).

The Government is considering starting the processing of this legal reform when it is embarking on the preparation of the pardon decrees for the 12 convicted by the

Catalan independence

process

.

The change in the treatment of this crime, reducing the punishment it entails with the premise that it is excessive, would help to reinforce the arguments in favor of the pardon that the ministry is preparing, according to sources from the Executive.

The hard core of the Government is already working at full machine to draft an argument for the pardons to the prisoners of the procés that is impossible to annul by the Third Chamber of the Supreme Court, before which PP and Vox will appeal. One of the elements that are on the table to reinforce these arguments is the reform of the Penal Code, which would soften the punishment awarded to sedition (the public and tumultuous uprising aimed at preventing, by force or outside the legal channels, the application of laws or compliance with judicial decisions). That is one of the crimes for which the independence leaders have been convicted, although several of them are also convicted of embezzlement.

The legal reform, announced by the Government before the pandemic, has been prepared for a long time and awaiting the right moment to begin its processing in the Congress of Deputies. The Executive is considering taking it to the Council of Ministers in the coming weeks, before even approving the pardon decrees. In any case, the final decision on the changes in the Penal Code is not finished and it will be Pedro Sánchez who decides the date to start the procedures.

This legislative initiative, according to government sources, would also serve as a way to reinforce the argument for the grace measure: if there is a legal reform underway that will reduce the penalties for sedition and allow, once it is approved and enters into force, the release of the prisoners of the

procés - it

would have retroactive effects to benefit the defendant -, it is much easier to defend the pardon, which has the same effect.

In fact, according to socialist leaders, this argument could already be used because the Executive has publicly indicated its intention to carry out the reform of the crime of sedition, and it seems clear that it has enough votes in Congress to carry it out with the majority that allowed the investiture of Pedro Sánchez, although a rule issued by the Council of Ministers or parliamentary groups will always have more force than the simple declaration of intentions of the Government.

The Executive now has on the table, for its discussion, this and other technical matters that allow reinforcing the arguments of the pardons.

In the coming weeks the horizon will clear after an intense internal debate, especially legal, in which many experts will be consulted, although the operation is headed by Juan Carlos Campo, Minister of Justice, Carmen Calvo, the first vice president, and Félix Bolaños, Secretary General of the Presidency.

The reform of the crime of sedition in the Penal Code already triggered a strong controversy when the Government defended this possibility more than a year ago.

The proposal was understood by the opposition as a way to correct the sentence against the Catalan independence leaders to set them free.

The Supreme Court sentenced in October 2019 for sedition and embezzlement of public funds, to sentences of between nine and 13 years in prison, nine leaders of the

procés

, including most of the members of the Government of Carles Puigdemont who stayed in Catalonia and they did not flee, like the president of the Generalitat, to avoid the action of justice.

The ruling considered that the Catalan political leaders, despite the judicial requirements they had received, promoted sedition by massively summoning citizens to vote in the illegal referendum of October 1, 2017. And that they did so “with the purpose of replacing the legitimate legal framework established by the Constitution and the Statute of Autonomy with the one designed by the law of legal and foundational transience of the Catalan Republic, whose validity and application had been suspended by the Constitutional Court ”.

The current penal code (Article 544) establishes that “those who, without being included in the crime of rebellion, rise up publicly and in a tumultuous manner to prevent, by force or outside the legal channels, the application of the Laws or to any authority, official corporation or public official, the legitimate exercise of its functions or the fulfillment of its agreements, or of the administrative or judicial resolutions ”.

This wording and the penalties associated with the crime have been questioned in recent weeks by two magistrates of the Constitutional Court, Juan Antonio Xiol and María Luisa Balaguer, elected in their day at the proposal of the PSOE.

Both have signed dissenting votes against the sentences that dismiss the appeals of several convicted of the

procés

.

Dissenting votes

Xiol and Balaguer argued that the sentence imposed on the Catalan independence leaders is "disproportionate."

These two dissenting magistrates understood that, although the conduct of the independence leaders deserved criminal punishment, this should have been less than that established by the Supreme Court.

Xiol and Balaguer maintain that the crime of sedition is described with special vagueness in the Penal Code and that the range of penalties - between eight and 15 years in prison - is excessive.

Their arguments are similar to those that led the Government of Pedro Sánchez to announce its intention to reform the crime of sedition in the Penal Code.

The rest of the Constitutional magistrates who endorse the sentences imposed by the Supreme Court maintain, on the contrary, in the sentences handed down so far on the 1-O trial, that the type of crime of sedition is precisely defined in the law and strict, and rejects that the wording of article 544 of the Penal Code is vague or that it makes it difficult to know what actions it contemplates and who the perpetrators are.

For this reason, the absolute majority of the Constitutional Court clearly identifies the pro-independence leaders convicted as perpetrators of a crime of sedition for their active participation in promoting a self-determination referendum, disregarding the warnings of the court itself.

The Supreme Court sees the penalty as proportionate and cites other European laws

The Supreme Court magistrates who tried and sentenced the procés pro-independence leaders for sedition reject that the penalties currently provided for this crime are "disproportionate." In the report sent last Tuesday to the Ministry of Justice to oppose the pardons, the court stops to analyze this point because a large part of the pardon requests for the prisoners of the procés that are being processed justify the measure in the bankruptcy of the principle of proportionality. The Supreme Court tries to dismantle in its writing the thesis of the promoters of the pardon, according to which the crime of sedition represents an outdated precept and without a clear equivalent in other European countries.



"The crime of sedition is not, of course, the State's criminal response to excesses in the exercise of the rights of assembly and demonstration," says the court. And he adds: “What the proven fact of our sentence declares - no matter how interested partial readings reiterate the contrary - is not identifiable with the simple overflow of the limits of public order. On the contrary, what the historical trial describes is an attack on public peace and the observance of laws and judicial decisions as the basis for coexistence within the constitutional framework ”.



The Supreme Court assures that it shares the idea, established by the jurisprudence of the Constitutional Court and the European Court of Human Rights, that “an excess of punitiveness in the repression of crimes against public order can have an inhibitory effect on the exercise of citizens' rights of meeting and demonstration ”. But this is not the case of the judgment of the procés, he stresses: “When what is at stake is not the preservation of public order, and the proven fact proclaims it, but the solidity of the pillars on which democratic coexistence is based , the approach has to be radically different ”.



The court reviews in its report the criminal treatment that other countries give to the events for which the pro-independence leaders were convicted of sedition. The Supreme Court cites the crimes of high treason for which Germany punishes with no less than 10 years in jail those who, with force or threat of force, undertake actions to alter the constitutional order; the punishments "of special gravity" provided in France for attacks on the independence or the territory of the nation; and the penalties provided in Italy (not less than 12 years), Belgium (20 to 30 years) and Portugal (10 to 20 years) for similar acts. / R. RINCÓN

Source: elparis

All news articles on 2021-06-04

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