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We are all aware that the criminal response to attacks on constitutional order has some cracks that need to be closed. But the solution is not to dismantle or neutralize the preventive-punitive effects of existing criminal rates, but to protect it from the new threats and aggressions of today's times. This requires, in addition to maintaining crimes of rebellion and sedition on its own terms, implementing criminal law by incorporating new legal instruments that ensure effective protection of the constitutional framework: including the crime of illegal call for consultation and/or referendum (as already announced in the election period), or the specific criminalization of repeated disobedience to the Constitutional Court, as an aggravated form of disobedience, including prison and disqualification of some severity. It is very likely that, if these criminal types had been in force at the time, their immediate application by criminal justice would have allowed to conjure or prevent many of the serious criminal episodes that were then committed, which they would have done unnecessary recourse to other criminal modalities of greater seriousness.

Javier Zaragoza

Supreme Court Prosecutor

The crime of rebellion has undergone several changes in the recent democratic stage. Until the adoption of the so-called Criminal Code of Democracy by the Organic Law 10/1995 of 23 November, the validity of the Penal Code of 1973 (approved in the aftermath of the Franquism) which defined the crime of rebellion as a public uprising and in open hostility (expression equivalent to armed aggression, according to the meaning of the dictionary of the Royal Academy of Language), with a wording identical to that contained in all criminal codes of the nineteenth and twentieth centuries.

The Organic Law 2/1981 of 4th May introduced some relevant developments: it abolished the requirement of open hostility, defining as rebellion any public uprising, even without violence and without weapons, made in order to repeal, suspend or amend all or part of the Constitution or declare the independence of a part of the national territory (art. 214 PC); sanctioned rebellion by cunning or by using anti-law means even if the uprising was not public (art. 217.1); and considered as rebellious conduct the act of attacking the integrity of the nation or the independence of all or part of the national territory by means other than those provided for in treason offences. Subsequently, by the Organic Law 14/1985 of 9 December, some more accessory aspects of these criminal provisions were changed again.

It was the Criminal Code adopted in 1995 that introduced as a typical element of the rebellion the violent nature of the uprising, an element on which the legal debates that have arisen in the very serious events that have arisen in the very took place in the Autonomous Community of Catalonia between September and October 2017.

It is therefore not correct to state that the crime of rebellion in its current wording has not been modified, arguing that it was intended exclusively for military uprisings of distant times; nor is it that the events that happened in Catalonia do not have normative fit in the said criminal type, on the pretext that we are faced with a postmodern civil rebellion devoid of typicity. A civil uprising can be configured as a crime of rebellion provided that the basic requirements that make up such a criminal offence are met. The inclusion of the civil plots of coups was precisely the reason for the reforms of 1981 and 1985.

The location of those events occurred in Catalonia during the autumn of 2017 in the criminal type of sedition remains somewhat forced. Because let’s be sincere and rigorous: to turn a rebellion against the constitutional order into a sedition against public order, to the socaire of a purported dreaming – unusual literary license rejected even by the condemned themselves in different interviews – does not seem the most legally correct solution to facts that the Supreme Court’s Appeals Chamber defined, in an order of the Act of 17-4-2018, as an institutional rebellion by the authorities of a territory legally held established, and whose gravity was manifest.

The King’s speech (with a single historical precedent of similar characteristics, that given by his father on the occasion of the coup d’état of 23-F), the sending of thousands of police men to the territory of the Catalan Autonomous Community, and the application of a mechanism constitution, which is provided for in Article 155 of the Magna Carta, are not measures taken to stifle an alteration of public order, however serious.

In a time context so far removed from the old military revolts, another essential requirement of rebel uprisings, the use of violence – when the elevations have all the springs of power (with the exception of the judiciary) – only proved necessary to navigate certain moments of the process (those which took place on 20 September and the holding of the illegal referendum of 1-O), which does not detract from the application of instrumentality and functionality to the violence that was used. At sometimes, the use of violent opposition (with aggression, battles, coercion, damage, etc.) became a necessary means of advancing the rebel process, so that the violence used played an essential role and contributed as an essential instrument for achieving its objectives.

But imagine for a moment that in the course of the violent episodes that the court recognizes, weapons would have been used. Would the sedition’s commitment have finally been assumed?

The replacement of the Constitution with an absolutely unconstitutional parallel legality, and the proclamation of independence, characteristic ends of rebellion (art. 472 paragraphs 1 and 5th PC), beyond the guarantees of success and even for a short time, justified the normative fit of the facts in the criminal type of rebellion, and its legal-political definition as a full-blown coup.

Judging by the perception of the millions of Spanish citizens who witnessed, with undisguised surprise and greater concern, the events that took place over those two months did not seem purely symbolic acts or rhetorical statements arising from a dreamsty or chimerical universe, unable to create a risk to the constitutional order.

Nor was it perceived, then, that hypothetical mutation of the ends pursued by the leaders of the pro-proes, under which the right to decide suddenly became a right to press. This circumstance – as Professor Gimbernat rightly contends – does not alter at all the trending element of the crime of rebellion: the aim remains to obtain independence, either directly (as it did), or in a way indirectly forcing the Government of the Nation to negotiate it, as in both cases the route to its attainment was illegal and criminal.

With this background, the idea of modifying these criminal figures has been illuminated. We will have to wait to know what the wording of the criminal rates will be and the sanctions attached to them, but everything suggests that the central core of the reform, at least as regards the crime of sedition, will consist of the creation of a subtype aggravated by the misuse of public funds and in the reduction of penalties, both in prison and disqualification, including in cases where it is a sedition aggravated by the misuse of public funds. All this under the pretext of modernising a criminal type, of little application in our courts, intended to sanction disturbances of public order of a certain severity (prison riots, case of air traffic controllers, etc.).

The manic and recurrent argument that the sentences imposed on convicts in the case of the proceedings are excessive and disproportionate, this has no legal basis, and it jumps through the airs if it is taken into account that the embezzlement of public flows in quantity 250,000 euros -art. 432.3, pfo. the last Penal Code- has a prison sentence with a minimum of six years and a maximum of 12 years, and an absolute disqualification of 12 to 20 years. In good logic, the crime of sedition aggravated by embezzlement of these characteristics should not, in any case, carry minor prison and disqualification sentences than those individually designated for the aforementioned crime of embezzlement Public.

If that were the case, the ad hominen nature of the reform would be evident, and the principle of proportionality of penalties absolutely laminated. This is because, despite the greater anti-legal devalue of criminal action (embezzlement with sedition) a lower criminal penalty would be imposed, without taking into account the greater seriousness of the fact and the plurality of the legal assets concerned.

A criminal reform of this nature is justified solely on grounds of general interest, which in the present case could only be identified with the incorporation of those criminal rates that guarantee a more effective defense of the constitutional order and avoid the repetition of criminal acts as serious as those that happened.

We are all aware that the criminal response to attacks on constitutional order has some cracks that need to be closed. But the solution is not to dismantle or neutralize the preventive-punitive effects of existing criminal rates, but to protect it from the new threats and aggressions of today’s times. This requires, in addition to maintaining crimes of rebellion and sedition on its own terms, implementing criminal law by incorporating new legal instruments that ensure effective protection of the constitutional framework: including the crime of illegal call for consultation and/or referendum (as already announced in the election period), or the specific criminalization of repeated disobedience to the Constitutional Court, as an aggravated form of disobedience, including prison and disqualification of some severity.

It is very likely that, if these criminal types had been in force at the time, their immediate application by criminal justice would have allowed to conjure or prevent many of the serious criminal episodes that were then committed, which they would have done unnecessary recourse to other criminal modalities of greater seriousness.

*El Mundo ,20 February 2020.

OpenKat

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