The Order of the Second Chamber of the Supreme Court of February 13, 2023 constitutes the last, for now, judicial episode of the independence process of Catalonia. It is forced by the need to review the conviction, as a consequence of the eventual favorable effects for the prisoners derived from the reform of the Penal Code of December 22, which, among other modifications, repeals the crime of sedition and alters that of embezzlement of public funds. , distinguishing between cases of greater or less seriousness depending on whether or not the profit motive exists in the authors. And these two aspects are to which the review undertaken by the Chamber that sentenced must be referred to, with the absence due to retirement of one of its components, Judge Luciano Varela.
The Order, whose rapporteur was President Manuel Marchena, has been approved unanimously and, therefore, without any particular vote or disagreement.
In the first of the issues to be reviewed, the one derived from the suppression of sedition, the Chamber considers the eventual incardination of the conducts in the new crime of aggravated public disorder. And for this he formulates some reflections that go well beyond those necessary to obtain a conclusion. The new precept is characterized, as literally stated in the court decision, by a "narrow typicity" since, unlike the repealed precept, it requires concurrence in the objective type of violence and intimidation while, logically, altering the subjective that is limited to “attacking public peace”. This will lead to the fact that the retroactive application of the new precept is limited to the convicted Cuixart and Sánchez, since only with respect to them were violent behaviors included in the proven facts. With respect to others, the repeal of sedition makes this part of their behavior atypical. The analysis is made regarding whether or not there is a strict “succession of laws” between sedition and public disorder.
The judicial decision makes it clear that we are dealing with very different crimes. Because sedition meant much more than public disorder, no matter how aggravated. But to reach this conclusion, otherwise obvious and probably unnecessary because it is not a question of rejudging the conduct from the perspective of sedition but from that of the current norm, a series of highly critical assessments of the applicable law are contained. The verification of the absence of typical requirements would have allowed the Court to arrive at its same correct decision. But the Auto stops at some critical statements that go much further. There is talk of the effects of the new regulation, which creates a "regulatory vacuum" ranging from rebellion to disorder, in which non-violent actions whose purpose is to "undermine the constitutional bases" are not pursued, even if they are carried out “out of legal channels”. The alleged atypicality of the facts does not prevent the appearance of the crime of disobedience that is now going to be applied in a real contest regime, and not medial, without any explanation, with the embezzlement of public funds. The Court makes a criticism that is very close to legal and political-criminal disqualification.
Already in the sentence itself and in the report unfavorable to the granting of pardons, he had expressed criticisms that do not correspond to "judge and have the judged executed", but rather with the adoption of an openly critical position towards the Government and Parliament. And that necessarily leads to the question of whether or not the division of powers so often claimed from the judicial perspective is respected.
Regarding the second question to be analyzed, if the conduct of the convicted continues to constitute a crime of embezzlement for profit, there is a very scant analysis of its possible fit into the new crime of "private uses" since the attenuation requires the return in ten days, which did not occur in these cases. However, the reflection was not very necessary either, since what it is about is to determine if there was a profit motive or, as typified by the new article 433, if it does not exist, the public patrimony is given "a public application different from that to which it was intended." If, as the defenses claimed – and the parties that approved the law with the amendment presented by ERC – this precept had been applied, the effect of retroactivity would have been very beneficial in terms of the duration of the disqualifications. Well then, abruptly and before analyzing the question, it is stated in a single line paragraph “And we already anticipate that the answer is negative”. The Court recalls that the principle of minimum intervention itself supports the punitive irrelevance of the simple diversion of funds when the destination continues to be public. But then it denies that character to an unlawful activity, such as "the financing of a popular consultation...oriented to a secessionist process." "It can never be understood," they continue saying, "that it was an action that was not for profit."
The Court makes an interpretation that is completely removed from the claim explained in the explanatory statement and, above all, from the legal literalness, contrary to the defendant. And it does so by completely ignoring the normal use of language. Causing damage to public property is a crime; no one denies that; but ignoring that the introduction of a norm that distinguishes the cases in which the deviation, as expressively said, is directed to the pocket of the official or to a public purpose, whether legal or illegal, that does not imply his enrichment, is a judicial construction against legem and detrimental to the prisoner. At best, it is judicial creation of law. With which, once again, we will have to ask what remains of the division of powers. The only democratic legitimacy held by the Judiciary is that which derives from the application of the general will. And precisely the Judiciary is the only one of the powers of the State not subject to any control. Its necessary independence cannot lead to the substitution of the general will for its own, because that would mean, at least, the loss of its constitutional role, as well as the bankruptcy of the principle of legality. In this case, the condition of the defendants who were sentenced has led to a single instance throughout the procedure, with no other resources than those that may be presented, for breach of fundamental rights, before the Constitutional Court and the European Court of Human Rights. The retroactive non-application of a penal law favorable to the accused undoubtedly opens those doors. That give way to the only democratic control of the judiciary.
