Without a great deal of noise being made about it, a new path to possible release from prison or reduction in sentences has begun to open up for the Catalan pro-independence prisoners. This third way - in addition to the known options of individual pardons or a general amnesty - is a reform of the Spanish Criminal Code to attack the crime of sedition, which would protect the right to protest and, as a side effect, benefit the nine leaders sent to jail by the Supreme Court. It has been dubbed the Asens route, as the original ideologist is Jaume Asens, lawyer and leader of the left-wing Commons (En Comú Podem). Spain's PSOE-Podemos coalition government seems to have embraced this proposal conceived from within its ranks, but the pro-independence parties express their doubts, and trade union circles, who are also calling for reform, are waiting to see what emerges. They have all shared their point of view with ElNacional.cat.
Article 544 of Spain's Penal Code states that a person is guilty 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." And it set jail terms of between eight and fifteen years for those who commit such an offence. This is the crime for which the nine pro-independence political prisoners have been convicted. In the case of Junqueras, Turull, Romeva and Bassa, with an additional conviction for misuse of public funds.
There is no crime of sedition on the books in major European countries - in Germany it was abolished in 1970 - and offences that resemble it state expressly that, unlike in Spain, the use of violence must be involved. Hence the obstacles that Pablo Llarena, investigating judge for the Catalan leaders' case, has encountered in attempting to extradite the pro-independence exiles. "Adjusting" and "matching" Spanish law to European standards is the argument made by the PSOE to promote reform amid right-wing accusations of wanting to "reward the coup" and to grant "a covert pardon". The work, legal drafting, and contacts to build support for the plan have already begun. One of the purposes is to transcend the independence debate and present the proposal as a social breakthrough in the protection of the right to protest, thus bringing key unions and social activism on board. The Spanish government is clear that the current legal article "is more appropriate to the nineteenth century," or of an age when the fear was of "tanks on the streets".
Repeal, rewrite or reduce
The initial proposal outlines three possible scenarios: the total repeal of the crime of sedition, the redefinition of the wording, specifying that the use of physical violence against people is necessary, or the reduction of sentences - from the 10-15 years currently to between 3 and 5 years. The second article of the Penal Code stipulates that "those penal laws which favour the prisoner, even if they have been definitively sentenced, will have retroactive effect". This means, according to the idea's promoters, that Junqueras and company could benefit from it and be free within a few months.
It is already a year since Jaume Asens got behind this idea. One of the main reasons is that "unlike an amnesty and pardons, reform of the Penal Code has the advantage that it looks forward, has a future, and can benefit other groups, such as housing activists or unionists." All of these are groups affected by the reinterpretation that the Supreme Court made of sedition in the leaders' trial sentences, which has opened the door to the repression of dissent.
The Commons have argued openly that their ideal option would be to remove the crime of sedition from the Penal Code, but they are aware of the difficult political balancing act this would involve for the PSOE. At the same time, they recall in relation to the amnesty and pardon options that the first of these is not wanted by the PSOE and the second is rejected by the prisoners themselves.
How does the independence movement see it?
If there is one point of consensus across the Catalan independence movement, it is in the call, from all corners, for an amnesty. Asked about their views on the proposal to amend the Penal Code, senior leaders of the pro-independence parties ERC, JxCat and CUP make it clear that the end of the repression they demand could only be complete if it involved an amnesty. In that regard, they note that there are hundreds of other people facing judicial reprisals arising from the 2017 referendum, ranging from the CDR protest groups to Mossos chief Trapero, to the exiles, to the members of the referendum electoral commission who are awaiting trial and Catalan government officials facing accusations from Barcelona's court number 13.
While they still wait to learn the details of the proposal, those politically close to Oriol Junqueras tell this newspaper that they look at it with "great suspicion" and express their concern that the measure will end up being a "smokescreen". "What we won't allow is for the generals to leave prisons and the troops to enter," they say. That is, they give short shrift to any measure that "only works for the prisoners and the visible leaders" and neglects the rest of those facing penalties.
From the CUP, Mireia Vehí makes the same point, that of not leaving anyone behind, adding that if an amnesty is the priority, it is also because it implies "accepting that self-determination is a right". However, the left wing, pro-independence party does not want to close any doors and looks positively on the repeal of sedition since it "criminalizes dissent"; a position that would be compatible with continuing to back an amnesty.
In a similar vein, JxCat is open to negotiating the reform of the Penal Code. JxCat deputy in the Spanish Congress, Jaume Alonso Cuevillas, agrees that this "crime which has no meaning" today must be wiped from the books. The lawyer adds that some of the pro-independence prisoners are also convicted of misuse of public funds and that in the event of the repeal of the sedition law, the Supreme Court would have to recalculate the sentence - including only the misuse of funds offence. The problem is that "penalties for misuse of public funds to a value of more than 250,000 euros, as in this case, can reach 8 years imprisonment or more." He therefore concludes that this alternative "could be futile" if it were not accompanied by a simultaneous revision of the misuse of public funds offence.
And the trade union world?
The coalition government's strategy on this proposal would involve taking advantage of the Penal Code reform process to alter not only sedition, but also other controversial points that have long been demanded by the trade union movement. Getting major unions UGT and CCOO to climb onto the reform bandwagon would be a decisive factor. For this reason, one of the aspects proposed is the modification of article 315, which imposes penalties for up to three years of prison for those involved in pickets.
Representatives of UGT tell ElNacional.cat that they have already been contacted, but are "waiting to see the specific proposal". They emphasize that they will always be in favour of "any measure that enhances rights," but are wary of committing themselves further than that. They recall, though, that as an organization they have already requested a pardon for former Catalan labour minister Dolors Bassa, a move which has also been supported by the CCOO union.
It remains to be decided which path will be formally chosen for the proposed reform of the Penal Code, whether through a government decree or through parliamentary hearings. This could affect the timing. The Commons are optimistic and believe that it could be passed in autumn this year. In any case, a parliamentary majority would be needed to validate it. That is, the pro-independence votes will once again be decisive.