Last weekend we woke up to the news that the Second Chamber of the Supreme Court was going to condemn for the crime of sedition and not for that of rebellion. The leak was from some or some of the magistrates of the Chamber and with evident intention to obtain in its day some benefit of the current Executive power.
The crime of sedition was what supported the State Advocacy and, therefore, the Government . And in a few months, important positions in the judiciary must be resolved by the Executive branch, such as the members of the CGPJ, presidencies of the Supreme Court Chamber, appointment of emeritus magistrates, extensions of the retirement date ... More clearly impossible . The leak was interested and, moreover, it was a joy for the current government in office.
After reading the sentence several times it seems impossible that, after the proven facts, no crime of rebellion can be seen. There is an uprising, it is public, it is violent and it is for some of the purposes required by the Criminal Code in article 472: to declare the independence of a part of the national territory, that is, to declare the independence of Catalonia. Violence clearly exists from reading the facts and is a very serious and permanent violence over time. It is both physical and psychological violence . You just have to remember the statements as witnesses of several members of both the National Police and the Civil Guard.
But the most important of the crime of rebellion is the purpose. In this case, the declaration of independence of Catalonia and the constitution of an independent republic. How can the Second Chamber say that the Declaration of Independence of Catalonia voted on October 27, 2017 at the Plenary Session of the Catalan Parliament is "symbolic and ineffective"? Is incredible. The independence was not achieved by the actions of the State Security Forces and Bodies and by the application of article 155 of the Constitution. If these measures are not adopted today, independence would be a reality. In any case, and legally speaking, we could face a rebellion in a degree of attempt, since it could not be consummated by not achieving the desired result . In this case the penalty would be reduced by one or two degrees, that is, the penalty would be very similar to that which has been convicted of sedition.
Let us not deceive ourselves or make mistakes to our readers: the crime of rebellion is against the Constitution and against the main powers of the State: Legislative, Executive and Judicial. It is not a public order crime, much less a crime against the established constitutional order .
We know that it is very difficult to condemn for consummate rebellion because it would then be to prosecute the victors for the defeated. But the intention of the defendants in the case that the Supreme Court has judged was clear and evident: the independence of Catalonia. At this point, the judgment of the Second Chamber creates a very dangerous jurisprudential precedent : only the consummate rebellion fits. Not in degree of attempt or conspiracy. And for that it would be better to remove it from the Criminal Code. After the sentence it will be impossible to prosecute anyone for rebellion when the result has not been achieved. It is a mistake of the Supreme Court with impressive consequences . And the worst part is that if the sentence is already firm, it creates jurisprudence in that criminal type.
The crime of sedition, for which they have been convicted, is a crime against public order and not against the Constitution. Sedition is all tumultuous rampage against the Law or against authority. Undoubtedly, all sedition carries with it violence: highway cuts, railroad tracks, airport collapse ... A recent example of sedition is the occupation of the Prat Airport by thousands of people, publicly, violently and disobeying the legal system and the authority. While the rebellion, as a crime against the Constitution, attacks the main powers of the State - Legislative, Executive and Judicial -, the sedition is against the secondary powers: breaching the Law or not respecting the authority. That is why at the Law School they taught us that "sedition is a rebellion but in a small way" . The difference is not, therefore, in violence, which exists in both crimes, but in the purpose intended by those responsible. Therefore, we are facing a book rebellion as all jurists say with full freedom of expression.
As the Prosecutor's Office has maintained since the beginning of the case in the presentation of the complaint by the then Attorney General of the State, Mr. José Manuel Maza , we are facing a real coup d'etat. The Prosecutor's Office maintained that "what is being prosecuted is a concerted, thorough and pluriconvergent plan to carry out a violent and public uprising to challenge the constitutional order" and what they intended was "to expel the Constitution and the Statute for a parallel legality." You can disagree with the law but you cannot disobey it and less those who are obliged by their charges to demand compliance from the rest of the citizens.
Condemning sedition for the impossibility of achieving unanimity in the seven judges of the Chamber does not justify the decision of the Chamber under any circumstances. The magistrates are obliged to comply with the Law and the possible particular and dissenting votes of other comrades is not a reason to change the majority decision in favor of the rebellion, as they justified at the time when resolving the appeals against the prison cars and processing
If that is an important and criticizable point of the sentence, it is no less the non-application of article 36.2 of the Criminal Code that allows in serious crimes to wait to grant the third degree of penitentiary compliance until at least half of the sentence has been fulfilled. the penalty imposed. The Office of the Prosecutor, who in this procedure has had at all times an action adjusted to law and with an extraordinary legal level, requested the application of said article 36.2 of the current Criminal Code. This article was included by the legislator with the intention that the sentences be fulfilled in their entirety or, at least, an important part. That is to say, what the reform intended was that the third degree would not be remembered quickly after a sentence was passed and after only a small part of the sentence was served.
Well, unexpectedly, the Second Chamber does not see the need to apply this article and relies fully on the prison authorities. But does the Chamber forget that the only Autonomy that has transferred the powers in penitentiary matters is Catalan? How can the application of the third degree to the convicted be left to the Generalitat when they are people who have an obvious relationship with those responsible Penitentiaries of Catalonia ?, How do they explain this situation of obvious inequality to the thousands of prisoners in Spain who cannot have this favor treatment that those convicted by the Supreme Court ruling will have ? , Why speak of pardon when The enforcement of penalties depends precisely on your colleagues in the Generalitat? It is a total shame. The rule of law cannot allow such behavior favorable to prisoners. Hadn't we studied that the Law is the same for everyone? We cannot understand why the room does not appreciate the application of said article. Isn't it how many people think the solution to the Catalan problem is by talking about consensus, pact, agreement ...?
Let us not forget that in a rule of law the courts, all the courts and tribunals, should only apply the Law, whether they like it or not, whether or not it is favorable to their political ideology. A judge when judging should only be a judge , leaving out all kinds of political, social, religious beliefs ...
That is why it would be convenient if, in the face of the very serious errors of the judgment of the Second Chamber, the Prosecutor's Office was the one who went to the Constitutional Court, or to the competent European courts, to ensure that the sentence of October 14 is modified and does not form part of the jurisprudence of the Second Chamber of the High Court. We have to give back to citizens the confidence in the rule of law and the primacy of the Law.
Ignacio Gordillo Álvarez-Valdes is a lawyer and attorney on leave.
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