Supreme Court judge Prego's 2008 warning: rebellion and sedition would be inapplicable

In 2008, an eminent Spanish criminal law specialist and former Supreme Court judge argued that the Criminal Code, as amended in 1995, does not allow a peaceful, democatic declaration of independence to be considered to be treason, sedition or rebellion. Both the latter require violent o tumultuous uprisings which, as we have seen, simply have not happened in Catalonia.

Click here, if need be, to read the whole post.

Moreover, organizing a referendum without the authorization of central government was also dropped fom the Criminal Code, in 2005.

In short, (serious) damage to three unlocked police cars, parked unguarded where it was perfectly foreseeable that thousands of demonstators would gather, and used for most of the day by journalists who clambered onto their roofs, is all that can be mustered by the prosecutors against two renowned pacificists who for the whole day contained people's anger, assured access to the building, and managed to get people to go home when those inside had finished their work, well into the evening.

Jordi Cuixart and Jordi Sànchez, instead of being thanked for their efforts, spent 16 months in pre-trial detention, and remain in jail duing the trial, over 600 km from home.

If the publisher objects to this post, I shall willingly delete it.

Original:

https://gaceta.es/espana/2008-magistrado-del-supremo-advirtio-al-pp-del-peligro-suprimir-del-articulo-la-secesion-20170918-1716/

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A Supreme Court judge warned the PP of the danger of removing the article on secession [from the Criminal Code]

September 18, 2017

In 2008, Adolfo Pego, a former Supreme Court judge and member of the General Council of the Judiciary (CGPJ) warned the Popular Party (PP), in a legal text, of the danger posed to the unity of Spain by the removal in 1995 of Article 214 of the Criminal Code, which had been in it since the 19th century, and which punished the proclamation of the independence of a territory of Spain, without violence being a necessay condition, with prison sentences of 6 to 12 years, typifying this as a crime of improper sedition.

As published in Confilegal, the State Prosecutor-General, José Manuel Maza, only yesterday stated he was in favour of reinstating that Penal Code article, in an interview published by the El Mundo newspaper.

Prego, who left the Supreme Court in 2011 to practise law - he is currently the lead partner of Prego Abogados -, laid out this state of affairs during a contribution of his to the Foundation for Analysis and Social Studies (FAES), the PP's foundation.

"All those present told me I was exaggerating and that I was an alarmist. Nobody paid attention to me. They did not like what I said. The facts have proved me right nine years later. The State today is disarmed when faced by a possible peaceful proclamation of independence by Catalonia", he told Confilegal yesterday.

In the text, entitled "Criminal law and defence of the constitutional order", Prego, who was a judge in the Criminal Chamber of the Supreme Court, described with a detailed legal analysis the consequences of the non-existence of Article 214 in a situation such as that being experienced. "The Popular Party had eight years, between 1996 and 2004, to change that state of affairs and did nothing," Prego explained. "Nor did it do so when it regurned to power in 2011, and it was warned."

 

According to the text written by Prego - one of the top criminal law specialists in Spain -, if there were a declaration of independence like the one called for y the separatists of Junts pel Sí  and the CUP, "No one would be committing any crime if they officially proclaimed in the Official Gazette of an Autonomous Community its independence and separation from Spain. Leaving aside its constitutional ineffectiveness, it would not be criminal behaviour. So that aside from the avenues of appeal and consequent declarations of invalidity and ineffectiveness, an enormity like the one I raise, it would be nothing in criminal terms. "

"Indeed, it would not be a crime of treason because all the typical modalities provided for in articles 581 and ff. (Chapter 1 of Title XXIII) cover exclusively cases of a war between Spain and an enemy power. All references to seditious and separatist movements have been wiped out of its articles. All types of treason, which previously provided both for war conflicts with a foreign enemy and for internal armed conflicts caused by separatist sedition, have been modified to limit them to conflicts with a foreign enemy", he explained.

 

"Nor can there be a crime of sedition. This is constructed in articles 544  and ff. on the basis of a public and tumultuous uprising. This is a concept connected with mass movements that overflow into a street scene and is related to the idea of ​​mutiny, in which public order, but not necessarily the constitutional order, is broken. Well, a declaration of independence by a Legislative Assembly or an autonomous government, though it would very seriously break the constitutional order and the unity of Spain, would not of its own affect public order, nor would it involve any uprising in the form of a tumult, so we could not talk about sedition either", he added.

"Nor would there be any rebellion. In the current 1995 Code this crime heads Title XXI that this Code - known as the democratic code - devotes to the crimes against the Constitution. And it heads it because rebellion is the most serious of attacks against the democratic organization of the State, as it affects and destroys the most elementary foundations of the constitutional political order", he points out.

"And if this were not enough, Article 217 even dropped uprisings as a means to commit, also punishing as rebels those who commit 'by cunning or any other means against the law' any of the crimes in Article 214. This meant also punishing as rebellion the accomplishment, by means other than a public uprising, of the same aims that it mentions. The legislator's intent to defend the constitutional order against secessionism was so clear that it also punished those who "subverted the integrity of the Spanish nation or the independence of all or part of the territory under a single representation of its personality as such a nation" ( article 217-3).

"All in all, the proclamation or declaration that we proposed as a hypothesis was - before the democratic regime and  during it, until 1995 - a crime of rebellion against the constitutional order. Today it is not", said Prego in his text.