A misguided sentence

The impact of the Supreme Court ruling on the Catalan conflict will not only be political, as everyone expects, but especially legal , because it is a resolution that could have amended the sadly ruling on the Statute of Catalonia, the which, despite having consumed five years in its writing, was a real calamity that we have continued to pay since then.

But I fear that this sentence will worsen the possible even more - if there is one - a solution to the Catalan lawsuit. A first reading of its 500 pages has given me the impression of containing two clear purposes: on the one hand, to satisfy as much as possible the detained Catalan separatists and, on the other hand, to hide a possible secret pact of the Government with the Catalan independence workers. In other words, it is a precooked sentence that cannot satisfy the decent jurists in Spain.

The case is that this judicial decision comes to or puts on the table the eternal problem of the principle of separation of powers . At this point in the functioning of the parliamentary regime in the world, it is assumed that there is a certain connection between the executive and the legislative power through the party or the majority bloc that governs. From this irrefutable fact, the doctrine wonders if the theory of the three powers formulated by Montesquieu is accurate or, rather, there are only two, taking for granted that the judiciary has no more function than to apply the laws and Consequently, it is only a branch of the Executive. In honor of the truth, this traditional theory has not adapted to contemporary regimes. Does this mean that the idea of ​​an autonomous judiciary should be renounced? The answer is clearly no, because if so, the rule of law would go to a better life. Precisely, the experience of the socialist parties with a single party show us that the principle of unity of power, based on their concentration, leads to a totalitarian power, a tyranny. In sum, we cannot admit that the number and division of power envisaged by Montesquieu do not apply exactly to modern regimes. This does not mean at all that there is no different judiciary from the other powers. What happens is that the modern judiciary, contrary to what Rousseau thought, is not the guarantor of the law, expression of national sovereignty or general will, but whose main objective is respect and interpretation of the Constitution. Because today the expression of sovereignty is not the law, but the Constitution , from which emanate all the laws and powers of the State. Hence, rather than talking about the rule of law, we must talk about the State of the Constitution. The judge, therefore, has a political mission to fulfill, consisting in enforcing the principles and freedoms desired by the sovereign people that are contained in the Constitution, annulling the laws that contradict it. Certainly, his function makes him a power like the others, but clearly independent and separate from those who make the laws. It is a political power created by the Constitution itself for its realization.

I found this legal introito necessary to understand the substance of the sentence. Because one has the impression that if the Criminal Chamber of the Supreme Court has opted for unanimity it is because they seem to be clear that it is a crime of sedition and not of rebellion, although it only seems so, because it is impossible for seven Prestigious jurists see it so clearly, unless they have renounced, as I said, to defend the Constitution before any law . And the Criminal Code is a law. To begin with, as what they had to prosecute is an act against the Constitution, which belongs to all Spaniards, they should limit themselves to checking whether there has been a crime against the Constitution, regulated in Title XXI of the Criminal Code, chapter I, which deals with about the "rebellion." But they do not know, it seems, that in every judge, as I have said, the Constitution must prevail over other laws and have instead focused on Title XXII, which deals with "Crimes against public order." That already indicated the bad path started, as, for example, demonstrate certain precedents. Thus, in the Criminal Code of the Second Republic, Title II, regulated the "Crimes against the Constitution" and in its article 167 stated: "Those who execute any kind of government are criminals against the form of Government established by the Constitution. acts aimed directly at achieving one of the following objectives by force or outside the legal channels: replace the Republican Government established by the Constitution by a monarchist government or by another unconstitutional one .... ". And, later, in Title III, on "Crimes against public order", it first defines the rebellion, with the objectives very similar to those set forth in article 167. And, in chapter II, article 245, it indicates that "Sedition prisoners are those who rise publicly and tumultuarially to achieve by force or out of legal means any of the following objectives: 1. Prevent the enactment or enforcement of laws ..." And another example to show that rebellion is always a crime against the Constitution, while sedition is aimed at dealing with public disorders or similar crimes. After the Civil War, in the Penal Code of 1944, reforms were successively made until reaching the new Criminal Code of 1995. One of them was the one established by the Royal Decree-Law of March 18, 1977, introducing a chapter III on the rebellion, although there was already another one about sedition, in whose article 218 it was pointed out that "it is prisoners of sedition who are raised publicly and tumultuarially to obtain by force or out of legal means any of the following purposes: 1. Prevent the enactment or enforcement of laws or the free holding of elections ... "What I want to demonstrate is that our criminal legislation clearly distinguishes the crimes of rebellion that refer to the Constitution and constitutional bodies from those of the sedition, which seek only to cause public disorders. In the case I just mentioned in 1977, the Monarchy was already in force and the constitutional process had begun, although there was still no Constitution. But it was already wanted to make a difference between the crime of rebellion and the crime of sedition.

That said, let's see how the crime of rebellion committed by Catalan separatists. In effect, the current Criminal Code establishes in its article 472, which initiates Title XXI crimes of the Constitution, the following: "Those who are violently and publicly raised for any of the following cases are convicted of the crime of rebellion." And then seven cases are described, although one is enough to be convicted of rebellion . However, so that there is no doubt, the magistrates of the Supreme Court Chamber should wear the appropriate glasses to read the next four assumptions that all Spaniards have witnessed, although it seems that they do not. Let's see each one of them. From the outset, the first point says that it constitutes rebellion to repeal, suspend or totally or partially modify the Constitution. Indeed, this is what the Catalan Parliament approved on October 6, 2017. Next, the second point, in a somewhat confusing paragraph, what it is saying is that it is rebellious prisoners who suppress the prerogatives and powers to the King, what he means is to end the Monarchy. This was precisely what he wanted to do on October 10, 2017, when the former president of the Generalitat Carles Puigdemont shouted in favor of the republic. Thirdly, the fifth point says that those who declare the independence of a part of the Spanish territory are rebellious. It is not necessary to declare the number of times that the possible leaders are willing to declare the DUI. And, fourthly, it is also prisoners of rebellion who subtract any kind of armed force from the Government's obedience. There seems to be no doubt that on October 1, 2017, and even later, the Mossos d'Esquadra, then led by Major Trapero, did not enjoy the confidence of the superior organs of the Civil Guard and the Police National in Catalonia, to the point that said authority was dismissed.

Therefore, the rebellion in our current Criminal Code considers that with only one, as I said, of these requirements, it can be considered rebellion . Let us now go to the other criteria used to distinguish whether the crime of rebellion exists or not. It is true that at the beginning of article 472 there is talk of violent uprising, which is a completely confusing expression, because it does not tell us where the violent uprising begins and where it ends. But the bad wording on the force cited in this article can be clarified if we complete it with section two of article 473, in which three assumptions that turn crime into rebellion with violence are indicated: 1. If weapons have been used or if there has been combat between the forces of his command and the sectors loyal to the legitimate authority. 2. If the rebellion had wreaked havoc on public or private property, cut off rail, telegraphic or telephone communications. AND 3. If there had been serious violence against people. What I want to point out is that in the same article a diffuse violence is distinguished from another concrete one that I just mentioned. Therefore, manifest violence is not necessary for rebellion. But it's more. What I have just pointed out has ordinarily occurred in these months in Catalonia, for example, the blockade of El Prat airport the day before yesterday. On the other hand, it should be noted that, for example, the Criminal Code of the Second Republic indicated that when it came to rebellion or sedition, the means to obtain the respective purposes could be "force or something outside the legal channels" , expression that also used the Criminal Code of 1973. In short, it is very clear that what defines a crime is the purpose pursued and not the means used in general.

For the rest, the sentence has some really divine paragraphs , such as when it indicates that there is no rebellion if there is no violence "instrumental, executive, pre-ordered and with a potential suitability for the achievement of secession." Another of the glorious phrases contained in the sentence is that the criminal type of rebellion "as a crime of danger cannot be limited to the author's voluntarism." Really surprising. Finally, I will remind the prestigious magistrates of the Supreme Court that the modality of the rebellion and its similar are crimes that are characterized because they can only be punished when the authors do not achieve their objectives. But loving them did want them.

Jorge de Esteban is a professor of Constitutional Law and president of the Editorial Board of EL MUNDO.

According to the criteria of The Trust Project

• Catalonia
• Supreme Court
• National Police
• Mossos d'Esquadra
• Civil Guard
• Spain
• Carles Puigdemont
• Reviewable permanent prison

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