Most of the convicted Catalan pro-independence leaders will, in the end, simply wait for the Supreme Court to review their convictions for the events centred on the October 1st 2017 referendum, after the entry into force this Thursday of last December's fast-track reform of the Spanish Penal Code, in which the crime of sedition disappears and penalties for misuse of funds are reduced. The nine social and political leaders have always defended that they did not commit any crime in the autumn of 2017 when Catalonia sought independence from Spain by asking citizens to vote on the question. The lawyers of the three Junts politicians in the group have been finalizing briefs, but in the end, party sources have confirmed this Wednesday that former government ministers Jordi Turull, Josep Rull and Quim Forn, will not present a request for sentence review. The lawyers of the ERC politicians - led by Andreu van den Eynde - have remained tight-lipped about the action they plan to take, since they consider that it is almost the same to ask for a review or for the court to do it ex officio: the procedure of reviewing sentences after law changes is obligatory for the court. In this case, the chamber presided over by judge Manuel Marchena must open a review file - an action which will be imminent - requesting the prosecutions - the public prosecutors and the Vox party, through its private prosecution - and defences what reviews they propose, and finally issue a ruling, in which the facts proven as contained in the 2019 sentence cannot be modified.
Initially, it had been confirmed that the lawyer Jordi Pina was finalizing the request for a review of the sentences of former ministers Turull and Rull and the former president of the ANC, Jordi Sànchez, but at the last minute the decision was made not to do so. Sources within Junts have clarified this Wednesday at noon that none of the politicians in their party will seek a review. The request was to have been submitted once the Supreme Court had issued its communication on the matter, and Pina's response was to have been simple and clear: apply the law. Now, the lawyer and the politicians have to resolve if the intend not to interact with or respond to the court, an approach they already took in the appeals against their pardons, which the Spanish unionist parties presented in the administrative disputes chamber of the Supreme Court. ERC, the party which co-promoted the reform of the Penal Code, is clear that when the Supreme Court asks, it will demand that the law be applied.
As for Jordi Cuixart - former Òmnium Cultural leader and not linked to either of the two parties - he will not ask for a review either, as Òmnium informed in a tweet this Wednesday which states: "Against the violation of fundamental freedoms by the unity of Spain, we will defend human rights at the Strasbourg Court and amnesty for all those retaliated against!" Nevertheless, whether or not the review is requested, the court is obliged to carry it out. The Jordis, Cuixart and Sánchez, do not want a request to dilute the claim they have taken to the European Court of Human Rights (ECHR), despite the fact that the nearly four years they spent in prison cannot be erased, as their lawyers say.
The interpretation of misuse of funds
Currently, the nine Catalan political and social leaders maintain the part of their sentences under which they were banned from holding public office for periods of between 9 and 13 years (the same durations as the prison sentences they had been serving) because in June 2021 the Spanish government pardoned them of the prison sentences but not the bans on office holding. When the reform of the Penal Code comes into force, the crime of sedition will disappear, and thus it is expected that those convicted for this crime alone will be granted an acquittal. They are: former speaker of Parliament, Carme Forcadell, sentenced to 11 years and 6 months in prison; the two social leaders, Jordi Cuixart and Jordi Sànchez, both sentenced to 9 years in prison; and former ministers Quim Forn and Josep Rull, both sentenced to 10 years and 6 months.
Public disorder instead of sedition?
None of the lawyers expect that the court will be able to convict them of the new crime of aggravated public disorder - which enters the Penal Code as the offence of sedition disappears - because the Supreme Court has already ruled that the events of 2017 did not have the necessary violence that this offence requires. However, Spain's highest criminal court has the final word, and it could consider this new crime to be a substitute for sedition.
A key issue will be the interpretation by the public prosecutors and the Supreme Court of the reform of the misuse of funds definition, which reduces the penalties for those accused of disloyal administration of funds in cases when there was no personal enrichment involved. In this case, the defence teams consider that the new crime does not fit with the expenses incurred in staging the 2017 referendum and, therefore, they will also have to be acquitted; or that if the sedition offence no longer exists, the misuse of funds must also fall because they were convicted of the two crimes in conjunction.
The Spanish prosecution service already announced on Tuesday that, acting "quickly, calmly and consensually", it intends to interpret the new misuse of funds law and give a directive to be applied uniformly in all cases. Consequently, its positioning will not be immediate. Those who were convicted of the misuse of funds, together with sedition, are: ERC leader Oriol Junqueras, sentenced to 13 years' imprisonment and banning from public office; and former ministers Dolors Bassa, Jordi Turull and Raül Romeva, all sentenced to 12 years in prison and a 12 year ban.
At the same time, the investigating judge in the case, Pablo Llarena, will have to decide if he can reactivate the arrest warrants against Catalan president-in-exile Carles Puigdemont and the former government ministers in exile - dependent also on whether he will be permitted to do so by the European Court of Justice, which is to announce its resolution on the all-important preliminary questions asked in the case in less than three weeks: on January 31st.