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They wanted a "surgical" reform to the law to distinguish "misuse of public funds" for - say - an independence referendum from misuse of funds for personal gain. And that is what the Catalan Republican Left (ERC) registered this Friday morning in Spain's Congress of Deputies, hours before the deadline for presenting amendments to the reform of the Penal Code. Thus, in addition to the abolition of the crime of sedition, they propose dividing the crime of misuse of public funds into two, as it was before 2015 - between cases where there is personal or third-party enrichment and those where there is not. Aware that a proposal for an amnesty on independence process cases does not have the numbers, ERC wants at least to achieve its practical effects. In this case, by making sure the definition of this crime is not applicable to the 1st October referendum, in either of the two variations to be created. The spotlight is on the Catalan leaders in exile and the office-holders who have been charged. In the case of the convicted leaders who were partially pardoned, the period of their ban from office holding - from which they were not excused - would be reviewed. The amendments were not agreed in advance with the Spanish government; now the negotiation begins, while the parliamentary processing continues rapidly.

How would this translate into the Penal Code? A new article would be added, 432 bis, which would be worded as follows: "The public authority or official who allocates to private uses unrelated to the public function, the public patrimony placed in his/her charge because of his functions or on the occasion of the same, without having any intention of appropriating [the funds], will incur a prison sentence of six months to three years, and a ban from holding public employment or office of from one to four years". Thus, the crime of "disloyal administration" would once again be given to its own category. But as ERC puts it, they want to end the references to "poorly defined and subjective behaviours" such as misappropriation and disloyal administration, which are "specific to the private sector". The new article does, however, maintain the following precept: "If the personal responsible does not return the same elements of the public patrimony that were removed within ten days following the start of the [court] processing, the penalties of the previous article will be imposed".

In any case, ERC sources argue that their proposal cannot be applied "to any case" related to the 2017 referendum process, because the definition is clarified and in the case of the referendum there was no appropriation for private purposes. "With this proposal, those prosecuted [under this crime] for the 1st October referendum could not be so," they explain from party headquarters. Thus, ERC maintains that the modification would benefit both former politicians and exiles such as Catalan president Carles Puigdemont, as well as those not yet tried, such as Josep Maria Jové and Lluís Salvadó.



Last Tuesday, it was Spanish PM Pedro Sánchez himself who showed himself ready to consider the reform of the crime of misuse of funds. In an informal conversation with journalists, the prime minister did not clarify how it would be carried out, but he made it clear that he would not agree to reduce the penalties for corruption-related offences because there can be "no step backward" in that fight.

Now the parliamentary processing of the bill continues. With the deadline for amendments in Congress passing this Friday, the committee to lead the reform will meet next Monday. "It is not the result of an agreement. There have been talks and now we are entering into negotiations and pacts. This is our proposal of maximums," ERC sources assert. They are confident that they will be able to move it forward and that the Penal Code reform will be passed by the lower house before the end of the year.

Both the ERC amendment, and another proposed by Together for Catalonia (Junts) along similar lines, aim to reverse the law change carried out by the People's Party (PP) government of Mariano Rajoy in 2015, shortly after Catalonia's first unofficial independence consultation, the crime of misuse of public funds was reformed to expand its coverage: no longer aimed only at those who appropriated public money for their own or another's benefit, but those who carried out "disloyal administration" of such funds. The crime of "disloyal administration" already existed, but the PP unified it with the corruption-related crime and equalized the penalties - up to twelve years prison and a 20 year ban on holding office. 

Public disorder

With the widespread concern​ about the proposals to modify the crime of public disorder, and despite ERC's defence of the approach agreed with the PSOE, the Catalan governing party has finally submitted amendments to this offence as well. A change is proposed to the Spanish government's planned amendment to the crime of public disorder, making more specific that life or property must be endangered for the action to be a crime: when, with the aim of "attacking the public peace", people "carry out acts of violence or intimidation" when public roads are obstructed "causing a danger to the life or physical integrity of people" or "invading facilities or buildings in a way that endangers life or physical integrity of people". Penalties ranged from six months to three years in prison. As for the crime of aggravated public disorder, the range of sentences proposed by the Spanish government is reduced by ERC from three to six years' prison to one to five years, although the wording of the definition remains the same - if they are perpetrated "by a crowd which, by number, organization and purpose, are well suited to seriously affecting public order". ERC also proposes the deletion of article 557ter, relating to peaceful occupations of premises and specifies that "intimidation" can only be used to trigger the offence if it is of a "serious" nature.

The aim, they say, is "to propose improvements so that the legislation offers more guarantees, is more democratic and makes it more difficult to criminalize the right to assembly and protest". ERC approves of the removal of the crime of sedition and the reform of misuse of funds and public order offences as "anti-repressive" moves, because "anything that comes close to dejudicialization and removes the state's repressive capacity is good news for any movement of protest or political dissent and therefore also for the independence movement."