The PP proposal to be able to dissolve a party for constitutional disloyalty has put back on the table a debate that was “sleeping” as jurists recognize and that raises disparate opinions. What is widely recognized is that, in the current circumstances, the possibility of reaching the “death penalty” of a formation is an approach that has enormous complexities and legal and constitutional barriers.
The debate within the legal community exists and has now returned to the fore. The party led by Alberto Núñez Feijóo has presented this week its amendment to the entirety with alternative text to the future amnesty law. In his document he proposes the creation of a new crime of “constitutional disloyalty” that would replace the repealed sedition. And it proposes that a party can be convicted of this crime if its top officials instrumentalize the party to achieve the independence of a part of the territory or call a referendum, among other cases.
To begin with, this initiative already “squeaks” due to the way chosen by the PP to include this new crime. According to Agustín Ruiz Robledo, professor of Constitutional Law at the University of Granada, the PP should have presented a legislative initiative and not do so through an amendment to the entirety, which is to oppose the content of a bill. However, he remembers that the PSOE has already done so on other occasions, for example when it included the reform of the embezzlement of public funds in the initiative to repeal sedition. For this jurist, this way of proceeding means generating a devaluation of the legislative procedure.
Another element to analyze is whether the crime that the PP intends to include of constitutional disloyalty would pass the guarantee cut of the Constitutional Court. “This crime implies an open, indefinite criminal type that does not comply with the principle of typicality,” argues Edmundo Bal, former deputy of Citizens in Congress and State lawyer, who participated, along with other jurists, in the preparation of the reform of the Penal Code, which for the first time opened the possibility of holding legal entities criminally responsible. Bal also participated as a member of the State's legal services in several procedures for the illegalization of political parties, for example Batasuna.
In his opinion, as the PP has proposed, this crime would not pass the cut of the European Court of Human Rights (ECHR) for attempting to act criminally against an ideology.
The third element analyzed by the jurists consulted is whether a party as a legal entity can be dissolved through judicial means without going through the specific procedure established by the Political Parties Law, which leaves the exclusive power to Chamber 61 of the Supreme Court to analyze it.
In this way, Batasuna and other successor parties were illegalized for their tacit support for terrorism. It is not a simple debate. In 2010, the reform of the Penal Code was approved to include legal entities as possible criminal perpetrators in the commission of certain crimes. However, political parties are considered legal entities but with a public purpose. Initially they were exempt, but in 2012 they were included so that they could be prosecuted, in a reform expanded in 2015 then promoted by the PP.
Some jurists like Ruiz Robledo understand that if the circumstances arise and the party is convicted of any of the crimes attributable to it, there would be no constitutional problem for a party to be dissolved if it is proven that it is a cover for committing crimes. .
Others understand that the option of demanding criminal responsibility is an “easy temptation to judicialize political life,” as stated by Supreme Court magistrate Antonio del Moral in a presentation on this matter.
The debate lies in whether the dissolution of political parties contemplated in the Penal Code in the broad sense should be regulated more specifically by the consequences that the dissolution of one of said entities could have in the democratic system and if it could affect to active suffrage.
In this regard, a renowned jurist who participated in the text on legal entities warns that the law itself requires that a series of conditions be met in order to dissolve a company and therefore a party. To do this, it is necessary to take into account whether there is continuity of crime, whether this measure is necessary to stop the criminal activity that may continue to occur and whether there is recidivism, in addition to having to weigh whether the effects of closure are worse than the alternative.
In this specific case, the jurists consulted explain that the PP's approach does not take into account the difficulties that exist in imputing to a political party what its leaders do as members of an autonomous government.
In 2017, according to these sources consulted, the call for the referendum on October 1, the unilateral declaration of independence or the approval of the disconnection laws approved by the Parliament were promoted, among others, by Carles Puigdemont as president of the Generalitat not as head of Junts. Those decisions that were agreed upon were within the institutions, be it the Government or the Parliament, and therefore outside the political formations. Therefore, the question remains open: Is what the PP proposes proportional? And does it have any viability?
