Head of Government Pedro Sánchez confirmed on Thursday that the PSOE and Unidas Podemos will register a proposal in Congress this Friday to reform the Penal Code to reduce the sentences of those who commit – or have committed – crimes of incitement. . This is a request by the Esquerra Republica de Catalunya (ERC), which Sánchez has fulfilled, if not all, and which will have a direct benefit for the most famous (and the only ones in recent years) accused of sedition in Spain: its leaders process Catalan independence. Both those who have been convicted and those who have fled from justice.
What does the Penal Code say now?
As in the TCK, the crime of sedition is punished for “those who rebelled openly and with revolt in order to prevent the implementation of the laws by force or other legal means” or “to prevent any authority, official institution or public institution”. performs its “official” legitimate functions or enforces “administrative or judicial decisions”. The penalties involved are of three degrees, depending on the severity: four to eight years’ imprisonment (and the same year’s disqualification from public office) for those involved in sedition; eight to ten years for inductors or leaders; up to 15 years if the crime is committed by public authorities process).
Theoretically this offense could be practiced in any case of mass mobilization to try to forcibly prevent the enforcement of laws or penalties (for example, the execution of a eviction), but the reality is that these are very rare (and non-existent). See evictions) The vast majority of cases involving charges of sedition in Spain have not gone to trial or been convicted, and none, even remotely, convictions process.
Who will benefit from the reform?
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The President did not go into details, but parliamentary sources explain to EL PAÍS that the crime of sedition (Article 544 of the Penal Code) will be outright banned, and in parallel the crime of “keeping order” (Article 557) will be eliminated. will be amended to punish those who act “in the community and with the intent to threaten public peace” and those who “seriously affect public order”; This new crime will require the existence of “violence or intimidation” and will have far lower penalties than sedition: imprisonment from three to five years and disqualification from public office; If the crime is committed by an authorized person, the penalty for disqualification (not imprisonment) will be between six and eight years. PSOE, in this new type of litigation action, process. In such a case, there are two groups of people who will benefit in the short term from this great reduction in the crime of sedition: process and fugitives.
Can Oriol Junqueras run for election?
Nine people sentenced to prison (among them Oriol Junqueras) pardoned by the government, but only out of jail; For this reason, they are still sentenced to be barred from public office. When the government reduces sentences for these events, this reduction will be applied retrospectively to those convicted (as legal changes are applied retroactively when they benefit the prisoner) and will wait for them to return to active politics if they wish; Junqueras, for example, is disabled until July 2031, but could arrive in time to participate in the 2025 Catalan regional elections if he implements the new six to eight years window. So if the penalty for embezzlement doesn’t prevent that, it’s something that should be mentioned when his sentence is adjusted under the new Penal Code.
Will Carles Puigdemont get out of jail? And Martha Rovira?
The situation with the fugitives is more complex. Four members of the Generalitat Government are on the run in Brussels. Declaring its independence unilaterally in 2017: the old president Carles Puigdemont and former directors Toni Comín, Clara Ponsatí and Lluís Puig. The first three are on trial for sedition, embezzlement and disobedience; fourth, only for embezzlement and disobedience. In the hypothetical case where they returned to Spain and were convicted at a trial, reducing the crime of sedition – or rather, the application of the new offense of “aggravated public order” – would greatly reduce, but not reduce, their sentencing. if proven guilty of embezzlement, it will necessarily prevent them from getting out of jail, as this amounts to up to eight years’ imprisonment and up to 20 years’ disqualification. It is also unlikely that they would have been released from pre-trial detention given the seriousness of the embezzlement offense and also the risk of escape in their case already confirmed.
Marta Rovira, the ERC’s general secretary, could have a much better outlook. escape in switzerland. He is on trial for sedition, but not for embezzlement, so the maximum prison sentence for him would be between three and five years; and medium).
There is also the possibility that Rovira and other fugitives may have been released earlier by another means: with the maximum sentence being reduced to five years, the statute of limitations for the offense is also five years (according to Article 131 of the Criminal Code), a period long past. In the case of the “Authorities” (Rovira was a member of Parliament and the rest were members of the Government), this would increase the statute of limitations to 10 if the maximum penalty taken as a reference was eight years of disqualification. year: in 2027. Facts with the current Penal Code process They were going to write a prescription in 2037.
However, these statutory statutes of limitations do not apply automatically and even less so in a problematic and complex case such as the case. process: First of all, it is necessary to clarify whether (and for how long) the cases brought by the Court of Cassation against the defendants, which faced numerous obstacles in Europe, cut this period.
What about the senior charges being prosecuted?
In addition to the leaders who fled, there are—or still are—more than 30 politicians (deputies and former MPs, middle or front-line positions, former directors of public radio and television…) who are senior officials of the Generalitat. They are awaiting trial for their involvement. process. None of them are on trial for sedition, but twenty of them are on trial for embezzlement. They will not be affected by the reform prepared by the government. Thus, the paradox may arise that these intermediate charges, if they are eventually convicted and not pardoned, are more likely to stay in jail than their bosses.
Is sedition worse in Spain than in the rest of Europe?
Yes, according to the Government; and no, according to the Supreme Court. In Spain, the crime of sedition – despite its specific gravity – is framed by attempts “against public order”. As the government announced it would reform as required by the ERC, it argued, it was doing so to “harmonize” with similar offenses applicable in most EU countries and punishable by much lower penalties: a maximum of three years, five years in Germany, France and Switzerland, Italy and five years in Belgium, eight years in Portugal. The Supreme Court, on the other hand, came to the opposite conclusion when it wrote its report in 2021. opposed the amnesty of its leaders. process: The court stressed at the time that the actions convicted of pro-independence leaders constituted “more than a crime against public order” as they attacked the “foundation of coexistence” and were aimed at blowing up. are the pillars of the constitutional order. these facts, the Supreme Court continued. What happened was that they were not called fitna, they were simply not sent as an offense “against public order.”
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