Article 2.2 of the Criminal Code establishes that “those criminal laws that favor the accused shall have retroactive effect, even if a final sentence had been handed down when they entered into force and the subject was serving a sentence.” Six magistrates who judged the Catalan independence process and sentenced part of its promoters in 2019 applied this article of the Penal Code to the legal reform of the Government. With the sole objective of benefiting the pro-independence leaders, the Executive of Pedro Sánchez repealed the crime of sedition, created a new crime of aggravated public disorder and modified the regulation on embezzlement to reduce penalties in the event that there was no profit motive.
The six magistrates unanimously decided last Monday that the events that gave rise to the illegal referendum on October 1 constitute the crimes of disobedience and serious embezzlement in the case of former vice president Oriol Junqueras and three former counselors, or aggravated public disorder in the the case of Jordi Cuixart and Jordi Sànchez, or disobedience in the cases of the former president of the Catalan Parliament, Carme Forcadell, and the councilors Josep Rull and Joaquín Forn. The sentence confirms that the legal reform of the Government does not leave impunity for acts such as those that occurred on October 1, 2017, because otherwise the six Supreme Court magistrates should have acquitted all those convicted of 1-O in application of article 2.2 of the Code Penal.
There was a time when some Supreme Court magistrates pondered the possibility that if the crime of sedition had been repealed, the other crime for which they were convicted in court proceedings could not be applied to those convicted. That other crime was embezzlement, consisting of applying public funds for the illegal purpose of organizing the self-determination referendum.
Those magistrates who were contemplating an acquittal of the convicted have had to reflect in recent weeks and have come to the conclusion that the attempt to break away from the Catalan independence government continued to be a crime punishable by long prison terms, even with the new Penal Code approved by the Government of Pedro Sánchez.
Manuel Marchena, president of the Criminal Chamber, included in his court order some comments on the Government’s legal reform, where he suggested that attempts to disrupt such as the one on 1-O could go unpunished: “The creation of a regulatory framework for rupture territory that prepares the secession of a part of the territory of the State, even accompanied by massive acts that lead to the general disobservance of the laws and the non-compliance of the governmental or jurisdictional decisions that will try to put an end to it, would be alien to the intervention of criminal law ” . These facts were the ones that gave rise to the illegal referendum of 1-O and the subsequent frustrated declaration of independence. With the new Criminal Code, according to Marchena, they could not be prosecuted from a criminal point of view.
In those events described in the judicial ruling, a fundamental milestone in the independence process is missing, the holding of the referendum illegally financed with public funds, which according to Marchena himself is deserving of a harsh prison sentence for aggravated embezzlement by the authority that commits it and for the stolen money.
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A new 1-O, according to the Supreme Court ruling drafted by Manuel Marchena and supported by all the magistrates that make up the room, would never go unpunished.
The Executive made the criminal punishment of the rupturist attempts cheaper with the sole objective of benefiting a party, ERC, which gave it the necessary majority in Congress to approve the Budgets and the main laws. By the way, the President of the Government boasted of achieving the pacification of Catalonia with these measures. But he never wanted, judging by the letter of the new law, to leave unpunished the events of 1-O or other similarly serious future events.
The Government of Pedro Sánchez pardoned the nine Catalan independence leaders convicted of sedition and embezzlement to long prison terms when they had barely served a quarter of their sentence. A short time later, the Executive repealed the crime of sedition at the request of ERC (the Government only wanted to halve the penalties), created a new crime of aggravated public disorder with less punishment, and reformed embezzlement to create new attenuated types. All these measures, approved by an urgent procedure that is not very defensible, were intended to reduce the cost of criminal punishment for all the 1-O independence leaders: for those pardoned but still disqualified, for those on the run, such as former president Carles Puigdemont, and for those pending prosecutions. trial (up to 21 ex-charges of the Generalitat accused of embezzlement by 1-O).
Applying pure arithmetic, the events of 1-O would continue to be punished with high prison terms for the majority of the Catalan Government and its high charges for serious embezzlement and disobedience, according to the criteria of the Criminal Chamber of the Supreme Court.
The magistrates have rejected the possibility of lowering the sentence handed down for embezzlement despite the legal reform that the Government approved to create an attenuated type of this crime. The drafting of the legal reform has been a failure, judging by the objectives pursued and due to the interpretation that the judges have made of it.
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