If anything has become clear since the President of the Government, Pedro Sánchez, announced on Thursday night the abolition of the crime of sedition to replace it with an aggravated type of public disorder, it is that all law is subject to interpretation.
It is a debate that in reality will not be resolved until the Supreme Court has, with the reform approved by the Courts on the table, to recalculate the penalties imposed in the procés sentence and deliberate on the future of those who have not yet tried the light of new criminal code.
It goes long.
While from the progressive ranks they see the modification as a necessary step, the conservatives see in the initiative defended by the socialist group and United We Can a maneuver to force a "disguised amnesty", and this is so because, as Supreme Court sources suggest , the charge of public disorder cannot be applied in this case. And if there is no criminal type that fits, there is no possible penalty.
This criminal type was already analyzed in the sentence of the procés. And it was discarded. It was as a result of the defense of the former Minister of the Interior Joaquim Forn offered in the trial the possibility of conviction for that crime and the court ruled it out. In the resolution, it explained why: limiting the events to a few disorders would be “reductionist”, because they were not condemned for a specific act against public order, but for a series of acts aimed at independence such as massive mobilizations, 1-O, the disconnection laws and acts of judicial and police delegitimation. For this reason, these sources now insist that the events that occurred in October 2017 were not disorders, and consequently it is inapplicable to the case.
These sources open another melon. In the event that the crime of sedition can be converted into another of public disorder, the question arises as to whether the embezzlement of public funds can be maintained. This second charge was imposed on the former vice president of the Generalitat Oriol Junqueras and six other former ministers, but not as an independent crime but in ideal competition. That means that the court understood that money from the Generalitat was embezzled for a seditious purpose. If sedition no longer exists, there may be doubts that embezzlement can then be maintained.
This theory opens a new aspect, and that is that they could claim the money imposed on the bonds and in the open process in the Court of Auditors.
This is another point of controversy and by no means minor. What will happen to the escaped charges that have not been brought to justice? Carles Puigdemont, Marta Rovira, Toni Comín and Clara Ponsatí, among them. The jurists most prone to socialist theses maintain that in reality the harmonization with criminal law shared by most European countries is going to facilitate the surrender of Carles Puigdemont, because now the courts of other countries on the continent will not be able to allege that the crime of sedition does not figure in its legal system. At this point, the ERC interpretation maintains that when the matter was judged, the crime of public disorder already existed. For the PSOE, this is the path for the return of those who fled.
But that decision is in the hands of Judge Llarena, who issued the European orders, and the big question is what he will do. Withdraw the current ones – still pending a European resolution – or change the crime.
If the Supreme confirms that the events of 2017 were not mere disorders, the magistrate will be left with no room for maneuver.
The Prosecutor's Office will assess whether it can re-accuse for rebellion, but court sources see it as unrealistic once the Supreme Court has already said that there was no rebellion. The question is whether he could claim embezzlement as an individual crime. In the delivery process by the German justice, it did guarantee that Puigdemont was delivered solely for this crime, an option that the instructor rejected.
In what seems to be a certain coincidence between the magistrates consulted is that the new penal type of aggravated disorders would not affect the disqualification sentences set for the independence leaders already convicted by the procés, so that they will maintain the prohibition to occupy a public office for a few years, at least until 2026, if not longer. This would be the case, for example, of Oriol Junqueras, but not the only one.
Sánchez's announcement has caused an earthquake in the High Court, which had already been touched after the Government agreed last year on pardons for the 12 procés leaders convicted against the court's criteria. The discomfort is evident in the face of what they see as an attack by the legislature and the Executive to rectify a judicial sentence. In fact, they see this reform as more serious than the granting of a measure of grace. The latter was granted only for a few specific cases, but, as they explain, the reform of the Criminal Code will have consequences in the future that cannot be calculated today. The socialists defend that there is the conviction that what happened in the fall of 2017 will not happen again, and if it does happen, there are sufficient legal tools to stop it.
