Before engaging in a discussion of why the Spanish Supreme Court has considered the events in question to be criminal acts of sedition and not crimes of rebellion, both concepts must be defined within their context in the Spanish Criminal Code.
The crime of rebellion is defined in article 472 of the Spanish Criminal Code as to ‘…violently and publicly rise up…to…repeal, suspend or amend the Constitution…or declare the independence of any part of the national territory‘. That violence be used as an INSTRUMENT to achieve the objectives of such a plan comprises an essential component of this crime.
Thus, for this particular criminal act to take place, those participating in the uprising must objectively be able to carry out the actions mentioned in article 472 of the Spanish Criminal Code..
On the other hand, article 544 of the Criminal Code establishes that: Conviction for sedition shall befall those who, without being included in the felony of rebellion, public and tumultuously rise up to prevent, by force or outside the legal channels, application of the laws, or any authority, official corporation or public officer from lawful exercise of the duties thereof or implementation of the resolutions thereof, or of administrative or judicial resolutions.
The Spanish Supreme Court holds that its role is to deliberate the penal code with relation to applicable criminal acts. It affirms that, ‘It is not our place to offer—nor even suggest or insinuate—political solutions to a problem with deep historical foundations’,…//… ‘To subject the role of the courts to the standing political circumstances and impose its power to prohibit upon events which are intimated to be connected to criminal precepts is to place the balance that defines our ability to live together in democratic harmony at serious risk.’
The Supreme Court believes that while ‘violence indisputably occurred’, no offense of rebellion was committed on the basis that, for it to have occurred, ‘Violence must be instrumental, purposeful, and directly intended, without intermediate steps, to achieve the ends that the rebels pursue’.
According to the High Court, the defendants were aware that a referendum for self-determination was clearly not legally viable and that the offer of the right to decide was a ‘decoy’ to trigger a mass demonstration.
It likewise stresses that ‘earnest’ citizens did not know that the ‘right to decide’ had become an ‘odd sort of “right to exert pressure” ‘. This was actually a ‘strategic formula of political pressure’ that the defendants wished to exert upon the Spanish government. What the defendants really wanted was a ‘direct negotiation’ with the standing government. There is no ‘right to decide’ that can be exercised outside legal limits. No international treaty exists that has codified a right to decide.
II. The criminal nature of both offences
The sentence imposed upon those who have induced or directed sedition can range from 8 to 10 years of imprisonment. However, if these persons ‘have the status of authority’, the punishment increases to a term of 10 to 15 years in prison.
The text prescribes a prison sentence of 15 to 25 years for ‘ringleaders’ of rebellion and those who ‘inducing the rebels, have promoted or sustain the rebellion’. ‘Those who act as subaltern commanders’ may be sentenced to a term of 10 to 15 years of imprisonment. Lastly, the Criminal Code stipulates prison sentences from 5 to 10 years for ‘mere participants’.
The harshest sentence, 25 to 30 years in prison, is established for rebel ringleaders in the event of the use of weapons, combat, the cutting off of communications, demand for contributions, diversion of public funds or exercise of ‘serious violence against persons’.
III. The judgement handed down by the Supreme Court
A.- Offences of sedition and misuse of public funds for the purpose of committing sedition
The Spanish Supreme Court has sentenced 9 of the 12 defendants for the crime of sedition pursuant to article 545(1) of the Spanish Criminal Code. Said article states ‘those who have induced, sustained or directed the sedition or who appear as the main doers thereof, shall be punished with a sentence of imprisonment from eight to ten years, and with that ten to fifteen years if they are persons with the status of an authority. In both cases, absolute barring for the same term shall also be imposed’.
The Chamber holds that the accused, Mr Junqueras, Mr Romeva, Mr Turull and Ms Bassa, shall be considered to have induced sedition and as such, by the authority pursuant to the terms established in article 24(1) of the Criminal Code, are subject to the criminal proceedings corresponding to those who, ‘…alone, or as a member of any corporation, board or collegiate body, have a commanding post or exercise jurisdiction pertaining thereto’, as well as ‘…members of the…Legislative Assemblies of the Autonomous Communities’.
Likewise, the Supreme Court considers the accused to have maintained a functional authority possessing the decision-making capacity to collaborate and create the conditions for collective criminal action. Mr Oriol Junqueras was the vice president of the Catalan regional government, the Generalitat, and the minister of economy and finance. He was therefore situated at the highest levels of the political-administrative organigram which was put into the service of sedition. Mr Junqueras, Mr Romeva, Mr Turull and Ms Bassa were members of the executive branch of the Catalan regional government, the Govern.
The Supreme Court’s punishment also extends to the offence of misuse of public funds for the purpose of committing sedition to the accused.
Article 432(1) of the Criminal Code punishes authorities or public officers who commit the offence described in article 252 as misappropriation of public funds or property with 2 to 6 years of imprisonment and absolute barring from public employment and office for a term of 6 to 10 years.
Article 252 of the Criminal Code sanctions misappropriation as committed by ‘those who, to the detriment of another, appropriate or steal moneys, belongings or valuables or any other moveable or personal property they have received in deposit, in trust or for administration, or by any other title that produces the obligation to deliver or return them, or who deny having received them…’.
Article 432(3) establishes that aggravated cases of embezzlement correspond to amounts exceeding 250,000 euros, requiring the imposition of a sentence in the upper half of the range which may reach the maximum amount.
The Supreme Court maintains that the accused, Mr Junqueras, Mr Romeva, Mr Turull and Ms Bassa, have committed an aggravated offence of disloyal misuse of public funds, given that they placed the departments under their charge at the service of holding of the illegal referendum, the total expense for which exceeded 250,000 euros.
The Chamber believes that public funds were misused for the purpose of committing the offence of sedition. The Supreme Court holds that there is an unquestionably instrumental relationship between these two offences because the public expenditures were allocated to the holding of the referendum. The amounts used were necessarily earmarked for that purpose.
Pursuant to article 77(3) of the Criminal Code, in the event of a sole fact constituting two or more crimes, or when one of them is the necessary means to commit the other, ‘…the upper half of the punishment foreseen for the most serious crime shall be applied without, exceeding the aggregate punishment that would be applicable if the crimes were punished separately’.
Without exceeding these limits, Judges or Courts of Law shall impose individualised punishments to each convict pursuant to the criteria expressed in article 66. Notwithstanding, the maximum effective sentence to be served may not exceed what is set forth in the preceding article’.
The Chamber holds, having weighed the considerations heretofore explained, that the persons who have committed the offences of sedition and misuse of public funds for the purpose of committing the act of sedition as described in article 77(3) of the Criminal Code shall be punished with the following sentences: Mr Oriol Junqueras, 13 years in prison; Mr Raül Romeva, 12 years in prison; Mr Josep Turull, 12 years in prison; and Ms Dolors Bassa, 12 years in prison.
VI. On the application of article 36(2) of the Spanish Criminal Code and the classification of convicts as eligible for the benefits of pre-release prison rules
The Spanish Ministry of Finance requested that the Chamber apply article 36(2) of the Criminal Code such that the imprisoned convicts would not be considered eligible for the benefits of pre-release prison rules until half of their prison terms have elapsed.
Article 36(2) of the Criminal Code states that ‘When the term of the prison sentence handed down exceeds five years, the Judge or Court of Law may order that classification of the prisoner in pre-release penitentiary treatment not take place until half of the sentence handed down has been served’.
The Supreme Court believes that this power cannot be construed as a legal mechanism to forestall decisions of the prison authorities that are thought inconsistent with the severity of the offence.
Article 36(2) of the Criminal Code indeed gives the sentencing court the power to make a prediction of future danger so as to preserve the interests protected by law that were violated by the offence. The Supreme Court therefore declares that, ‘’The defendants have been penalised with custodial sanctions based on the offences of which they have been convicted, and by penalties of absolute ineligibility for public office that prevent them from standing for office at elections and from assuming responsibilities such as those they had at the time of committing the offences.’ Specifically, the Spanish Supreme Court states, ‘The power of the courts to review administrative decisions in the penitentiary domain that are thought unlawful is the best assurance that the prison terms will be served in accordance with an individual appraisal of compliance and progression’.
Based on their sentence, the convicted will undergo assessment by the Parole Board of their penitentiary institution, who, in turn, shall deliver a reasoned ruling on the most appropriate plan for each of the convicts within no more than two months’ time, which evaluates the offence committed, their sentence term and disciplinary aspects as well as preventive action, family support outside the institution, etc.
The Parole Board’s reasoned ruling shall be reviewed by the competent body within Catalonia’s regional government, the Generalitat. In the event that both of these figures decide that the most appropriate course for those convicted is pre-release penitentiary treatment, the Spanish Ministry of Finance must immediately be notified of this fact so as to facilitate the preparation of allegations or relevant claims against said ruling, if applicable, before the Parole Board approves or rejects this arrangement. Subsequently, an appeal may also be lodged with that same Parole Board Judge, as well as the Second Chamber of the Supreme Court, the corresponding judicial body, in the event that the Parole Board were to approve the penitentiary institution’s assessment at first instance.