Comparing the crime of sedition in Spain with the regulation in other European countries is a difficult puzzle. The announced intention of the Government to undertake its reform and harmonize it with European codes already shows the imbalance of this crime for which the procés leaders were convicted. An analysis that, on the other hand, does not occur with the rebellion, which can be compared with other European laws. "Our problem -points out Ujala Yoshi, Professor of Criminal Law (UB)- is that for a historical reason sedition is regulated as a small rebellion, and it shouldn't be that way".
To approach this complex comparison, Germany can be taken as a reference, where the crime similar to sedition (Aufrurh) was eliminated in 1970. Today it could be framed in the crime of resistance, which entails a three-year prison sentence. But at the same time, the German code contemplates the crimes of "high treason" against the federation or the federal states, with much greater penalties, where the Spanish crime of rebellion would fit.
To understand this "disengagement" of sedition in Spain and the penalties considered excessive by numerous jurists, Professor Yoshi points out that the first thing that must be taken into account is that in the Penal Code the chapter on sedition is under the title "crimes against public order” and rebellion corresponds to the title “against the Constitution”, two very different concepts.
A fundamental issue, he underlines, because it is incongruous that a crime against public order carries such high penalties. Here lies one of the main reasons for the different prison sentences in Spain and in most European countries. Sedition in Spain – where violence may or may not occur – is punishable by 8 to 10 years in prison, and 10 to 15 if they are public authorities. The other European country with higher penalties is Portugal, with up to 8 years in prison.
For this reason, the UB professor indicates that what should be done, and in line with other European codes, is not to reduce the penalties but to redraft the article, clarify what it is and, also, change the name of "sedition" to end the confusion.
The Minister of Justice, Pilar Llop, pointed out this week that the Government has not talked about how much it is going to reduce the penalties, but about adapting the behavior of this criminal type. And she precisely remembered that in the reform of the Penal Code of 1995, sedition was included in the block of crimes against public order, while rebellion is framed in crimes against the constitutional order.
For the lawyer Xavier Melero, who defended former Ministers Joaquim Forn and Meritxell Borràs, the setting of the crime of sedition in the European context is difficult to find. He points out that one of the important variations is based on specifying whether or not there is violence. In countries like Italy or France, it is not considered a crime if there is no violence, a fundamental aspect when analyzing the situation of politicians convicted by the procés.
Although it is unknown at the moment what the negotiations are between the Government and the ERC to address the reform of the crime of sedition, one of the issues that the Republicans have pointed out is that the crime is limited only to cases in which there has been violence. Melero points out that one of the ways to standardize the crime with European penalties would be the express introduction of the existence of violence. And introduce a proportionality criterion. If violence is expressly incorporated, the crime could not be applied to the charges condemned by the procés. And it should therefore have a retroactive effect since it benefits the prisoner.
When in 2020 the possibility of reforming the crime was raised for the first time with the Minister of Justice Juan Carlos Campo, the need to harmonize it under the concept of "serious resistance" was already noted.
