The repeal of the Spanish crime of sedition, which the governing PSOE and Podemos parties have presented at parliament in a bill this Friday, has been formulated to equate Spain's Penal Code with European legislation, but in particular, was prompted by the international controversy over conviction of the Catalan pro-independence leaders in the Supreme Court for sedition and misuse of public funds, as well as the situation of the leaders who are in exile. Under the planned reform, sedition is to be replaced by a crime of aggravated public disorder. It is "complex", said some defence lawyers when asked about the real impact of this change, while waiting to see the reform of the Penal Code in detail. In theory, the amendments favour those convicted only of the crime of sedition: Jordi Sànchez and Jordi Cuixart, each sentenced to 9 years in prison; Joaquim Forn and Josep Rull, sentenced to 10 years and 6 months in prison, and Carme Forcadell, to 11 years and 6 months in prison. As for the exiles, the two who are being prosecuted for sedition without other charges are Marta Rovira, general secretary of ERC, and MEP for Junts Clara Ponsatí. They may be able to take advantage of this modification and return to Catalonia.
It is more difficult for those convicted of sedition committed concurrently with a crime of aggravated misuse of public funds due to the quantity of funds involved, since their punishment would now need to be broken down into two offences, that of misuse of funds and aggravated public disorder. Those affected are: Oriol Junqueras, with a sentence of 13 years' prison and the same period of being banned from holding public office, and Raül Romeva, Jordi Turull and Dolors Bassa, sentenced to 12 years' prison and a 12 year ban.
And as far as the leaders in exile are concerned, president Carles Puigdemont, and former minister Toni Comin are being prosecuted for sedition and misuse of funds, and this reform, agreed between the PSOE, Comuns and ERC, according to their lawyer Gonzalo Boye, doesn't favour them at all. The former Catalan minister Lluís Puig only has the crime of misuse of funds.
The danger in the offence of misuse of funds
Currently, the Spanish Penal Code punishes with prison terms of 4 to 8 years' jail and bans from public office of 10 to 20 years an offence of misappropriation of public funds if the value of the money involved exceeds 250,000 euros. These are the numbers that the pro-independence leaders need to assume because the funds involved have been calculated at more than 3 million euros, although this is under dispute in a procedure in the Court of Accounts.
In addition, to this misuse of funds penalty, what must also be taken into account is the new crime of aggravated public disorder, which in the case of authority figures - such as many of these leaders - ranges from 3 to 5 years in prison with office-holding bans from 6 to 8 years. When the reform is passed, the defence will have to ask the Supreme Court to review the sentence and apply the most favourable one.
The Supreme Court will review whether the facts fit the new crime
However, different politicians make opposing interpretations. On the one hand, the PSOE spokesperson, Patxi López, has affirmed this Friday that with this reform, no European country will be able to refuse to extradite president Puigdemont. It must be remembered that Germany wanted to hand him over only for the crime of misuse of funds and Spanish judge Pablo Llarena did not accept that. And for Unidas Podemos spokesperson Jaume Asens, an ideologue of the pardons and the sedition reform, the definition of the new offence does not fit with the conviction for sedition of the leaders of the independence process, and, therefore, nothing can be equated or reduced. In other words, those convicted only of sedition would have to be acquitted.
If the defence does not ask for a review of the conviction, the Supreme Court will do it anyway ex officio. It remains to be seen if the court presided over by Manuel Marchena will break down the sentence into two separate crimes or will treat them as "concurrent". Lawyers consulted say that the latter course of action would be "strange". They ask, did the Catalan authorities spend public money with the intention of creating public disorder? Aside from the penalties, the court must review whether the facts for which they were tried fit into the new crime of public disorder. And those who are convicted for the crime of misuse of funds, like Oriol Junqueras, could find themselves going from a current 13-year ban on office to a maximum of 20 years.
The Supreme Court verdict was heavily criticized by some judges of the Constitutional Court (TC) because they claimed that the sentences were excessive and disproportionate, in addition to the difficulties in the way the crime of sedition was treated in the court resolution, which caused legal uncertainty.