The Criminal Chamber of the Supreme Court that tried and sentenced 12 responsible for the independence challenge of 1-O —sentencing nine of them to prison— has failed the objectives pursued by the Government in its legal reform of the crimes of sedition and embezzlement, intended to benefit the Catalan leaders convicted or prosecuted for the illegal referendum.
The Government tried to reduce the punishment for sedition by repealing the crime and replacing it with aggravated public disorder, with much less punishment.
But the Supreme Court has dictated the opposite: once the sedition has been eliminated, activities such as those carried out by the leaders of the Government could not be subject to criminal law since they are not subsumable under the crime of aggravated public disorder.
The Executive planned to reduce the punishment of the pro-independence leaders who used public money for the illegal referendum by creating a new, attenuated type of "non-profit" embezzlement.
But the Supreme Court magistrates understand that it cannot be applied to the behavior of the 1-O leaders.
The Criminal Chamber, made up of Manuel Marchena (president and speaker), Andrés Martínez Arrieta, Juan Ramón Berdugo, Antonio del Moral, Andrés Palomo and Ana Ferrer, also takes advantage of their unanimous ruling to notify the Government that the legal changes they create a space of impunity for events such as those that occurred in Catalonia on October 1, 2017. These are the main arguments of the sentence:
The purpose was to “prepare the way towards independence”
The court contradicts the Government when it declares that the new crime of aggravated public disorder does not replace that of sedition that included the sentence of the
procés
: "The crime of sedition was something more than a crime against public order because it included, among the purposes pursued by who stood up publicly and riotously, objectives that go beyond the concept of public order to which the reform seems to cling”, explains the Supreme Court.
And he adds: “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 disturbing public order”.
“Between the crime of sedition, as it was defined in article 544 of the Penal Code, and the crime of public disorder in article 557 —in its historical or updated regulation— there is no substantial identity that allows us to affirm that, once the first, everything that this included has now been housed in the second, ”continues the car.
“Now the subjective type is reduced to the desire to '
attack public peace'.
(…)
There is no doubt that the collective disobedience to the requirements of the Constitution 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”.
An "intermediate space" of unpunished behaviors
The Supreme Court summarizes in this paragraph the risks that, in his opinion, the repeal of the crime of sedition promoted by the Government harbors: “Prior to the reform, the crime of sedition did not require a violent mobilization.
It could experience episodes of violence —this was undoubtedly the case in the facts prosecuted—, but it was also punishable when it was simply carried out '
out of legal channels'.
As a result of the reform, between the crime of rebellion regulated in article 472 of the Penal Code and the crime of public disorder provided for in article 557, there is an intermediate space that could accommodate in the future conduct seriously infringing on the constitutional system, in which Non-compliance with the laws and non-compliance with judicial resolutions would go unpunished if they were not accompanied by pre-ordered violence for those purposes or did not imply acts of violence or intimidation against people.”
Embezzlement: "Facts cannot receive privileged treatment"
The Supreme Court considers that "applying public funds to holding the illegal referendum on October 1" does not fit into the new criminal offense of attenuated embezzlement created to reduce the sentences for the pro-independence leaders.
“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, holding a referendum. judicially prohibited, can be punished with a fine (...).
The facts declared proven in our sentence can never receive the privileged treatment that the application of article 433 of the renewed Penal Code represents.
…a different public application'
from that 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.
Article 432 of the Penal Code includes in its classification both those who appropriate these funds and those who, violating their duty of loyalty in the administration, decide to give them an unequivocally illegal purpose.
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