The Supreme maintains the disqualification of Junqueras until 2031 despite the embezzlement reform

The Criminal Chamber of the Supreme Court has communicated this Monday its review of the sentences of the trial of the

pro-independence movement to adapt them to the reform of the Penal Code agreed between the Government and ERC and approved in December by Parliament.

The decision has been made unanimously.

With the disappearance of the crime of sedition, the former Catalan vice-president and ERC leader, Oriol Junqueras, is now convicted of a crime of disobedience in a real contest with embezzlement, but the court maintains his full sentence of disqualification of 13 years, which means that he will not be able to aspire to any public office until 2031. In the order in which he sets the new penalties, the court refutes all the arguments used by the Executive of Pedro Sánchez to defend that reform, points out that the new wording of the Penal Code "blurs the problem” and stresses that it has been able to leave future attacks on the Constitution “unpunished”.

In its resolution, the Supreme Court denies that the events of

for which Junqueras and the rest of those responsible for the Generalitat were tried fit into the new crime of public disorder —contrary to what the Government maintained when it announced the legal reform— , and warns that the Executive's initiative will leave hypothetical new secessionist processes unpunished that are not accompanied by “preordained violence”.

The Supreme Court, on the other hand, does not assume the new type of attenuated embezzlement that the Government and ERC expected to be applicable to these events (a case of non-profit embezzlement with much lower penalties): the court maintains that the embezzlement committed by the leaders of the

must continue to be punished with the highest penalties.

It wasn't public disorder

The reform of the Criminal Code, promoted with the express objective of reducing the punishment of those convicted of the

, eliminated the crime of sedition —creating in exchange a crime of aggravated public disorder— and softened that of embezzlement in certain cases.

Regarding the first, the Supreme Court maintains that it can only apply the crime of public disorder to Jordi Sànchez and Jordi Cuixart, leaders in 2017 of the pro-independence organizations ANC and Òmnium Cultural, because they "did practice specific acts of violence or intimidation against the people and things”.

The rest of those convicted of sedition —Junqueras, the former councilors Jordi Turull, Raül Romeva, Dolors Bassa, Joaquim Forn and Josep Rull, and the former president of Parliament Carme Forcadell— the court condemns for disobedience but not for public disorder, alleging that the facts for which they were tried do not fit into this new crime, but go much further.

“The authority that stubbornly disregards the requirements of the Constitutional Court, that disregards the prohibitions imposed by the Superior Court of Justice [of Catalonia], that carries out a legislative process of rupture —even though it lacks any legal viability— is not simply disturbing public order ”, remarks the car.

Whoever promotes a judicially prohibited referendum and "mobilizes thousands of people, in the delusional belief that they are going to exercise the imaginary right to decide", continues the Supreme Court, "is undoubtedly undermining the constitutional bases that define coexistence".

aggravated embezzlement

To the four former members of the Catalan Government who, in addition to sedition, were convicted of embezzlement - Junqueras, Turull, Romeva and Bassa - the Supreme Court maintains, yes, the full sentence for that crime: Junqueras and Bassa will be disabled until 2031;

Turull and Romeva, until 2030. Therefore, the court does not apply to the case of the

the assumption of attenuated embezzlement that the Government introduced into the Penal Code for cases in which there is no personal enrichment.

The Supreme Court makes it clear that the aggravated embezzlement (for which the leaders of the

) subsists even if there is no personal enrichment, because profit is also produced when other types of benefits are generated.

And he stresses that "he cannot accept" that the new criminal offense introduced by the reform "operates as a type that is attenuated due to the simple fact that the destination of public funds is presented as a decision issued by the authority or official with the capacity to administer these funds" and be covered with "the formalities that accompany administrative acts."

“It would be contrary to the most elementary legal logic to understand that whoever makes public funds their own incurs a penalty that can reach eight 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.”

A space for impunity

When arguing his decision, the Supreme Court slides a serious criticism of the government's penal reform.

With the elimination of the crime of sedition, he maintains, there is now an "intermediate space", decriminalized, between rebellion and public disorder.

And that space "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 violence preordained for those purposes or did not imply acts of violence or intimidation of people or things, would go unpunished”.

The court cites at this point its 2019 ruling on the

to underline that the criminal offense of sedition protected "the interest of society in the acceptance of the constitutional framework, the laws and the decisions of the legitimate authorities, as a prerequisite for the exercise and enjoyment of fundamental rights."

And he insists that, by eliminating this crime, the penal reform opens "cracks" in that shield of the Rule of Law, given that "constitutional disloyalty aimed at generalized non-observance of the laws and non-compliance with judicial decisions no longer has treatment penal".

From now on, "the fracture of the legal framework that makes coexistence possible,

For the Supreme Court, therefore, it is a fact that, after the penal reform introduced by the Government, "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 to the general disobservance of the laws and the failure to comply with the governmental or jurisdictional decisions that tried to put an end to it, would be alien to the intervention of criminal law”.

That is, they would go unpunished.

"In short," added the court, "any attempt to reduce the scope of the criminality offered by the crime of sedition to a problem of public order, identifiable with mobilizations or riots, blurs the problem."

“The seriousness of the penalties associated by the 1995 [Penal] Code to the crime of sedition 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 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'.

After the penal reform and the review of the sentences, the only leaders of the

that continue to be disqualified are Junqueras and Bassa (until 2031), and Romeva and Turull (until 2030).

The disqualification imposed on Forcadell, Forn, Rull, Sànchez and Cuixart has now expired.

The prison sentences of all of them decreased when they were pardoned by the Government, in June 2021.