Maddalen Martin-Arteche , 28 octobre 2019

On 14 October 2019, the Supreme Court of Spain (the Court, hereafter) gave its judgment on the facts which led the separatist majority in the Catalan parliament to read out a declaration of independence on 27 October 2017.

The Court found some of the defendants guilty of an offence of sedition (punishable under Article 544 of the Spanish Criminal Code) and an offence of misuse of public funds (punished under Article 432 of the Spanish Criminal Code) for the purpose of committing the principal offence of sedition. Other defendants were found guilty of an offence of sedition and others of an offence of disobedience (punished under Article 410 of the Spanish Criminal Code).

It is important to note that the offence of sedition under Spanish criminal law stands in a relationship with the offence of rebellion where each is an alternative to the other. Rebellion requires a violent and public raise-up for any of the listed purposes in Article 472 of the Spanish Criminal Code, inter alia, to declare the independence of any part of the national territory. It is punishable with a sentence of imprisonment ranging from 15 to 20 years.

Sedition requires the public and tumultuous rise-up to prevent, by force or outside the legal channels, applications 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 administrative or judicial resolutions. Sedition is punishable with a sentence of imprisonment up to 15 years.

The offence of disobedience, punishable under article 410 of the Spanish Criminal Code, requires that authorities or civil servants openly refuse to duly fulfil court resolutions, decisions or orders of a higher authority, handed down within the scope of their respective powers and complying with the legal formalities. Said offence is punished with a fine and special barring from public employment and office.

Although the Court found that violence indisputably occurred at the time where the facts in dispute took place, it is not enough to qualify as rebellion. According to the Court, violence must be intended to achieve secession, rather than merely to create a climate or bring about a scenario in which subsequent negotiation of a plebiscite is more likely, as the Court found the defendants’ intention to have been.

Therefore, the Court concluded that no offence of rebellion was committed on the objective basis that the violence employed was inadequate to the purpose of secession.

On a subjective basis, the Court considered that all the defendants were aware that a referendum for self-determination, which was held out as the means for the construction of the Republic of Catalonia, was clearly not legally viable. Also, the Court stressed that they knew that merely enacting statutes, in open defiance of the democratic rules in place for any reform of the Constitution, could not bring about any form of sovereignty.

Rebellion being ruled out, the Court examined whether the requirements for the offence of sedition are met. The Court found that although political advocacy by an individual or a group for any of the purposes listed in Article 472 of the Spanish Criminal Code, such as to declare the independence of a portion of the national territory, is not in itself a criminal offence, however, it is an offence to lead citizens in a public and tumultuous rising, which, moreover, prevents the application of law and obstructs compliance with court decisions, as occurred in the case at hand.

As regards the offence of disobedience, the Court points that the defendants found guilty of such an offence disregarded the requirements received from the Spanish Constitutional Court when, as members of the Catalan Government, they were warned to refrain from executing acts of support or materialization of resolutions and parliamentary agreements which aimed at the organization of the referendum held on 1 October 2017 and which had previously been suspended by the Constitutional Court itself.

As regards the offence of misuse of public funds, the defendants found guilty of such an offence allowed, according to the Court, public funds to be employed for the holding of the illegal referendum, in a genuine display of disloyalty.

Although the defendants raised a number of exceptions to exclude any type of criminal responsibility, such as, the right to decide, the recourse to civil disobedience, ideological freedom and the right to assembly, the Court disregarded all of them.

In relation to the right to decide, for example, the Court declares that no international treaty exists which codifies such a right, nor any European constitution. More importantly, the Court emphasized that the right to decide, exercised in the way the defendants claimed, would only be enjoyed by one part of the society, while it would marginalize and disregard another enormous sector of the general public (the one which chose not to take part in the referendum).

Overall, the Court viewed the exceptions brought forward by the defendants as a mere excuse to disguise their attempt to use physical force and coercion to turn court decisions of the Constitutional Court and of the High Court of Justice of Catalonia into a “dead letter” and, therefore, endanger the Rule of Law.

The defendants have already announced that they will appeal the judgment before the Constitutional Court as well as the European Court of Human Rights. Meanwhile, the Court has issued an order for a European arrest warrant against Carles Puigdemont, former president of the Catalan government, who fled Spain following the October 2017 events.

The EU institutions have not adopted a common position on the Catalan issue, whereas  a number of Members of the European Parliament have shown their discontentment with the EU for staying silent in the aftermath of the aforementioned judgment, such as MEP Clare Daly and Pernando Barrena.

This judgement is clearly not the final step in the Catalan issue. In the framework of the European Council held in Brussels between 17 and 18 October 2019, Pedro Sanchez, president of the Spanish government, stressed during a press communication that no impunity will be granted to those who place the Rule of Law in Spain in peril. In addition, he appealed to moderation and stated that the Spanish government would not rush into taking extraordinary measures, such as the temporary suspension of regional powers in Catalonia.

Quim Torra, president of the Catalan government, has expressed his opposition to the judgment given by the Court on 14 October 2019. Moreover, he has called for the amnesty of the Catalan leaders condemned by the Court and for preparing the Catalan citizens for a new referendum on the Catalan independence.

Maddalen Martin Arteche, actualité du 28 octobre 2019, “2019 Spanish Supreme Court’s judgment on Catalan separatist leaders”, www.ceje.ch.