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Home » Content » The Supreme Court warns that the elimination of sedition leaves non-violent secessionist processes unpunished
The court reinterprets the reform of aggravated embezzlement for 1-O and maintains Junqueras' disqualification until 2031. Magistrates believe that the spending of public money on the 'procés' cannot be punished only with a fine.

Carlota Guindal, Madrid 14 February 2023

Supreme Court magistrate Manuel Marchena / Dani Duch


The court reinterprets the reform of aggravated embezzlement for 1-O and maintains Junqueras’ disqualification until 2031.

The Supreme Court yesterday withdrew the crime of sedition from the sentence for the procés as a consequence of its repeal and took the opportunity to issue a harsh warning to the Government about the space of impunity that, in its opinion, the reform leaves for secessionist processes that are not accompanied by acts of violence or intimidation. Moreover, the legislative reform promoted by ERC and PSOE – the reform of the crime of embezzlement – in order to benefit the leaders of the sovereignty challenge has not been fully reflected.

Oriol Junqueras, Raül Romeva, Jordi Turull and Dolors Bassa will maintain the same sentence of disqualification, which means that the leader of the Republicans will not be able to return to active political life until 2031, when he has served his sentence. On the other hand, for the other five convicted -Carme Forcadell, Josep Rull, Jordi Sànchez, Joaquim Forn and Jordi Cuixart- their sentences have been definitively extinguished.

The reason why the sentences of the first four have been maintained is that, despite the withdrawal of sedition, the crime of aggravated embezzlement has been maintained in addition to another of disobedience and, therefore, the sentences of disqualification are maintained. As for the prison sentences, the Chamber does not enter into an assessment of them, as they have already been extinguished following the pardons granted by the Government.

The magistrates believe that the spending of public money on the ‘procés’ cannot be punished only with a fine.

The Supreme Court, however, has not accepted what was intended with the reform of the crime of embezzlement because it has not interpreted, as the Government intended, the crime of non-profit embezzlement for those cases in which the money diverted was not intended for the personal benefit of the public official and whose sentence was reduced to a mere fine. This was the thesis of those convicted and of the State Attorney’s Office itself, which maintained that the use of public funds to organise the referendum of 1 October 2017 could not be considered profit-making. The court disagrees.

For the Chamber, “it would be contrary to the most elementary legal logic to understand that whoever makes public funds his own incurs a penalty that can reach up to eight years in prison and whoever allocates them to a criminal or unlawful activity – in this case, the holding of a judicially prohibited referendum – can be punished with a fine”.

The court, presided over by Manuel Marchena, insists that using public funds from the Generalitat to finance 1-O “can never be considered a public use different from that to which those funds were assigned in the budget”.

Marchena follows the same thesis previously established by Judge Llarena with regard to Carles Puigdemont.

In an order against which no appeal is possible and signed unanimously, the magistrates deploy their jurisprudence on the concept of profit motive to overturn the arguments of the explanatory memorandum of the reform promoted by the Government.

The Supreme Court also uses the resolution to show its disagreement with the arguments used by the legislature to repeal the crime of sedition. It issued a stark warning about the space of impunity that, in its opinion, the reform leaves for secessionist processes that are not accompanied by acts of violence or intimidation.

“From its entry into force, the fracturing of the legal framework that makes coexistence possible, the overflowing of the competence limits of the structure of the State and the tenacious disobedience to judicial requirements will only constitute a crime if they are accompanied by acts of violence or intimidation”, as foreseen in the crime of public disorder or, in any case, the crime of rebellion

The court only imposes the public disorder for ‘the Jordis’, although the penalty is extinguished.

In this way, the Court rejects the request of the Prosecutor’s Office to impose the crime of public disorder on them because what they did was an accumulation of actions aimed at achieving the separation of a part of the territory of the State, but without violence.

Public disorder is a violent act, and that is why it is only applied to the Jordis for the demonstrations on 20-S in front of the Conselleria d’Economia. However, for both Jordi Sànchez and Jordi Cuixart, the sentence has also been extinguished because the sentence for the disorder has already been served.

For the court, what happened in the procés cannot be likened to public disorder, because it was an accumulation of circumstances that led to seditious acts. “The authority that stubbornly disregards the requirements of the Constitutional Court, that disregards the prohibitions imposed by the High Court of Justice, that carries out a legislative process of rupture – even if it lacks any legal viability – is not simply altering public order”, explains the resolution.

The Chamber rejects the Prosecutor’s thesis of changing sedition for the crime of public disorder.

It argues that the severity of the penalties associated with the 1995 Code for the crime of sedition is justified by the need to punish not only acts contrary to public peace, but also “the development of a tumultuous mobilisation aimed at preventing the democratic exercise of State authority which, in the case in question, the perpetrators framed in the creation of an alleged regulatory cover for the right to decide“.

The Court argues that what the defendants did was not only endanger public order, but that they carried out a “concerted action” with the rest of the defendants, aimed at the creation of a set of regulations approved by an autonomous body “manifestly incompetent to do so”.

The Supreme Court thus maintains the same thesis as the one set by the investigator Pablo Llarena with regard to the former Catalan president Carles Puigdemont, pending surrender by the Belgian authorities. The best offenders are the former president of the Parliament Carme Forcadell and the former ministers Rull and Forn for disobedience. With regard to these five convicted individuals, the entry into force of the 2022 reform determines the total extinction of the disqualification.



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