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The criminal chamber of Spain's Supreme Court, presided over by Manuel Marchena, has reviewed the sentences against the Catalan pro-independence leaders convicted in 2019, based on the reform of the Penal Code agreed by the PSOE-led Spanish government and the Catalan Republican Left (ERC). The main conclusion is that, following the same criteria as investigating judge Pablo Llarena, the Supreme Court convicts Oriol Junqueras, Raül Romeva, Jordi Turull and Dolors Bassa for the crimes of misuse of funds and disobedience, and maintains their bans on holding public office until 2031. However, the sentence wipes out the disqualification from holding office the other five of those jailed after the 2019 trial: Jordi Sánchez, Jordi Cuixart, Josep Rull, Joaquim Forn and Carme Forcadell after the review of their crimes and sentences. In his ruling, Marchena rejects the new offence of aggravated public disorder because he does not see it as comparable to the previous crime of sedition and warns that the new criminal framework leaves unpunished any attempt at "secessionist processes" that do not involve violence or intimidation.

The key point of the resolution is the situation in which it leaves Junqueras, Romeva, Turull and Bassa, who received the harshest sentences after the 2019 trial for crimes of sedition, and misuse of funds. Pardoned by the Spanish government - which allowed them to leave prison - the major question today was to know what would happen to the long bans on holding political office that they were left with after the partial pardons. In the ruling delivered this Monday, Marchena and his colleagues reinterpret the changes to the Penal Code and follow the line already sketched out by judge Llarena, who now has to rule on the appeals made against his reinterpretation of the law change. As it stands now, the ruling means that they maintain their convictions as guilty of disobedience in conjunction with a crime of misuse of public funds. This implies that the bans on office issued at the 2019 sentencing remain in force and will prevent them from standing in the elections in the short term. Specifically, for Junqueras and Bassa, until 2031 and for Romeva and Turull, until 2030.

The court's decision leaves better news for the rest of the pro-independence leaders who were serving sentences for sedition and were also pardoned. Reinterpreting the law change, the two pro-independence social leaders of 2017, Jordi Cuixart and Jordi Sànchez, are now found guilty of crimes of public disorder over the protest actions outside the Catalan economy ministry in 2017, while then-government ministers Rull and Forn, along with parliamentary speaker Forcadell, are convicted for disobedience. The change in these crimes means the total extinction of their respective bans on office holding, given the reduced penalties with which disobedience and public disorder are punished, and thus all five could take part in the next elections.


A reform that "leaves secession processes without violence unpunished"

In its argument, the Supreme Court's criminal chamber sets out in detail why the aggravated public disorder crime introduced in the amended Penal Code cannot be compared to the sedition for which they were convicted in 2019. Broadly speaking, the judges conclude that the current regulation falls short when it comes to characterizing the events of autumn 2017. It identifies that sedition "was something more than a crime against public order", it states that the actions of "those who promote by force or outside legal channels, the breaching of laws or judicial resolutions are not limited to disturbing the public order" and it adds that "those who mobilize thousands of people in the deluded belief that they will exercise the imaginary 'right to decide' are, without any doubt, undermining the constitutional bases that define coexistence". Therefore, it asserts that the current crime of aggravated public disorder "blurs the problem" and that it must punish "not only acts contrary to public peace", but "the development of a tumultuous mobilization called to prevent the democratic exercising of the authority of the state".

Jordi Cuixart Jordi Sánchez cotxes Guàrdia Civil registre Economia Sergi Alcàzar
The Supreme Court considers that Jordi Sànchez and Jordi Cuixart committed "acts of violence and intimidation". / Photo: Sergi Alcázar

The sentence focuses on the effects of the repeal of the crime of sedition and clearly expresses the view that the reform "would leave non-violent secessionist processes unpunished". In this regard, it warns that the new regulations leave "gaps" in the crimes defined for dealing with events such as those in autumn 2017 in Catalonia. The judges interpret that, as a result of the reform, the actions taken at that time could remain outside the scope of Spanish criminal law. "There is a gap left that could in the future accommodate behaviours that seriously threaten the constitutional system [...] and if they did not involve acts of violence or intimidation against people or things they would go unpunished".

Following this line, Marchena considers that Jordi Sánchez and Jordi Cuixart did commit the crime of public disorder provided for in the Penal Code because "they committed specific acts of violence and intimidation against people and things". He recalls the role they played during the demonstration organized at the headquarters of the Catalan economy ministry on September 20th, 2017 against the search ordered by the justice system. The resolution speaks of "the disturbance of public peace and the existence of acts of intimidation as a result of the gathering of 40,000 people who were protesting against the presence of Civil Guard officers", underlining that the police cars "were destroyed" and narrating the problems that the judicial secretary had in leaving the building after the search. And, since according to the court's point of view there was violence and intimidation used by "the Jordis", sedition can, in this case, be substituted for public disorder.

Below: for each of the 9 pro-independence leaders jailed for sedition in 2019: click on image to see original sentence, revised sentence, and date of end of sentence (in Catalan) 

No to the 'attenuated' variant of misuse of funds

The court also makes argument, aligning itself with Llarena once again, that the October 1st  2017 referendum must be prosecuted under the precepts of 'aggravated' misuse of funds and not the 'attenuated' version introduced by the legislators last year, with reduced sentences that would imply the reduction of the disqualification from office according to the new Penal Code. In this regard, it asserts that Junqueras, Romeva, Rull and Bassa cannot benefit from the reduced crime because "it will never be possible to understand that it was an action devoid of any profit motive". And it emphasizes that article 432 of the Penal Code "includes in its definition both those who appropriate the funds and those who, in breach of their loyal duty to the administration, decide to give them an unequivocally illegal purpose".

By way of conclusion, according to the court's point of view, those convicted of holding economic responsibility in the organization of the referendum are not supported by the wording of the article providing for a reduced punishment if public funds were used for a purpose proven different than what was expected. "This is not a decision in which the amounts budgeted for one purpose are allocated to another purpose that can be fitted into the ordinary provision of public services justified by administrative activity" says the ruling, which adds that "what was agreed upon by the convicts was their association with a criminal activity”. In other words, the money from the referendum was allocated to an action that is prohibited, prosecuted and suspended by justice. The chamber also recalls that the sentencing court did certify that "the public funds put into the service of financing the illegal referendum was a clear paradigmatic example of the diversion of budget funds for the exercise of an illegal activity".