Read in Catalan

Here, in English, is the key text in the Spanish Penal Code reform agreed between the Spanish government and the Catalan Republican Left (ERC), which the governing PSOE and Podemos parties have now registered as a bill with the Congress of Deputies. The bill includes proposed amendments on several areas, among them, the repeal of the Spanish crime of sedition, and its replacement with amendments to the offences against public order in the Penal Code.

The first item of this section of the bill strikes out the offence of sedition from the Spanish Penal Code (Chapter One of Title XXII, which includes articles 544-549). Thus, to make sense of the new proposal, it helps to look at what it is replacing.

What does the current sedition law in Spain say?    

As defined by article 544-549 of Spain's Criminal Code, a person is considered to have committed the crime of sedition if "they rise up publicly and tumultuously to prevent, by force or outside of legal means, the application of the Law or any authority, official corporation or public official from legitimately carrying out their functions or complying with their agreements or [to prevent the application] of administrative or judicial resolutions." 

To put it in plainer language, in Spanish law, sedition requires a "public and tumultuous uprising" against the law or the authorities. This is considerably different from how the term is usually used in English, namely as being speech or writing that encourages such actions. Sedition is, in fact, defined currently in Spain as a lesser form of the offence of rebellion, and it reaches the definition of rebellion if the "uprising" goes beyond "tumultuous" to be defined as "public and violent", while being aimed at certain defined ends that breach or put in jeopardy the Spanish Constitution. 

The punishment for those who "incited, sustained or directed" sedition or were its "main perpetrators" is 8-10 years in prison, which rises to 10-15 years for those in positions of authority, with defendants also being banned from holding any public office for the same length of time.

The proposed changes

Below is the full text of the parts of the Spanish law proposition registered today that affect the offence of sedition and offences against public order. It begins (in part Fourteen) striking out the whole sedition section, and then (mostly in part Fifteen) adding new provisions in the offences against public order, first redefining an offence against public order involving violence or intimidation by a group (Point 1), and then adding an aggravated case of this with higher penalties when "committed by a crowd whose number, organization and purpose are well suited to seriously affecting public order" (in Point 2). Here is the text:       

Chapter One of Title XXII is struck out.

Article 557 is amended to read as follows:

1. “A punishment of imprisonment from six months to three years will be applied to those who, acting in a group and with the goal of threatening the public peace, carry out acts of violence or intimidation:
(a) against people or objects; or
(b) obstructing public roads causing danger to the life or health of people; or
(c) invading facilities or buildings.

2. The acts described in the previous section shall be punished with a prison sentence of three to five years and special disqualification from public employment or office for the same period of time when they are committed by a crowd whose number, organization and purpose are well suited to seriously affecting public order. If the perpetrators are found to be in positions of authority, the penalty of disqualification from office will be absolute for a period of six to eight years.

3. The penalties imposed in the previous sections will be in the upper half of their range for those who take part who carry dangerous instruments or those who carry out acts of looting. These penalties will be applied at a higher level when firearms are carried.

4. The provocation, conspiracy and proposal to carry out the behaviours foreseen in numbers two and three of this article will be punishable with the penalties one or two degrees lower than those respectively foreseen.

5. Those who, in a crowded place, cause an avalanche, stampede or other similar reaction among the public that endangers the life or health of people will be punished with a prison sentence of six months to two years.

6. The penalties indicated in this article will be imposed without prejudice to those that may correspond to the specific acts of injury, threat, coercion or damage that may have been carried out."

Article 557-bis is amended to read as follows:
“Those who, without using violence or intimidation and without being included in the previous article, acting in a group, invade or occupy, against the will of its owner, the domicile of a public or private legal entity, an office, establishment or premises, even if it is open to the public, and thereby cause a significant disturbance to the public peace and its normal activity, will be punished with a prison sentence of three to six months or a fine of six to twelve months, unless the facts were already punished with a more serious penalty in another precept of this Code.”

Article 557-ter is struck out.

Article 559 is struck out.

Section 4 of article 573-bis is amended to read as follows: 4. The crime of public disorder provided for in sections two and three of article 557, as well as the crime of rebellion, when committed by a terrorist organization or group, or individually but protected by them, will be punished with the highest level in degree of the penalties provided for such crimes.

What the PSOE and Podemos say about these changes 

In their written exposition of the new bill, the PSOE and Podemos note the "lack of clarity in the content and scope" of the offence of sedition, as well as problem areas such as its clash with "the exercise of fundamental rights and freedoms such as the right of assembly or freedom of expression." They note the "defective delimitation" that currently exists between sedition and other crimes to do with disturbances of public order, as well as the problems with the relationship between sedition and the crime of rebellion - the original charge against the Catalan pro-independence leaders.

Therefore, assert the parties, the "legal right to public order" must become the centre of the definition of the offence. "First, a new regulation of the crime of public disorder is introduced to provide it with clearer outlines, describing the necessary and convergent elements for its commission: group action, the purpose of attacking the public peace - understood as the normality of coexistence with a peaceful use of rights, especially fundamental rights - and, finally, the existence of violence or intimidation."

They add: "Second, an aggravated form of public disorder is introduced. This aggravated modality requires that the crime of public disorder be committed by a crowd whose characteristics (number, organization and purpose) are well suited to seriously affecting public order, understood as the normal functioning of public institutions and services. Thus, it is configured as a type of danger that, although it does not require public order to have been effectively affected or prevented, does require that the elements were present in a sufficient way to have endangered it."

Thus for the new offence of aggravated public disorder (with prison sentences up to five years) to be applicable to the Catalan independence political and civil leaders who were convicted for sedition, it would need to be proved, firstly, that during the events of the 2017 Catalan independence referendum, they led people who "acted in a group and, with the goal of threatening the public peace, carried out acts of violence or intimidation" against people or objects, or blocked roads causing danger to people, or invaded buildings; and secondly, that these groups constituted a mass of people whose "number, organization and purpose was well suited to seriously affecting public order."