FREEDOM!!!! [4]

«The Trivialization of the Crimes of Rebellion and Sedition»
«The undersigned, Professors of Law of Spanish Universities, once presented, by the Attorney General’s Office, the written Provisional Conclusions before the Supreme Court and the National High Court, we are obliged to express our legal opinion due to the historical significance for Spanish democracy of the criminal process that is going to take place.

The Public Prosecutor’s Office believes that certain conduct by members of the Mossos de Escuadra, the Catalan Parliament and Government, as well as the social leaders of the Catalan National Assembly and Òmnium Cultural, give rise to the crime of rebellion under article 472 of the Criminal Code. However, such a crime requires a public and violent uprising. In this regard, it should be noted that in our opinion it is an error to consider that the events that occurred on September 20 and October 1, 2017, are integrated into the concept of violence required by article 472 of the Penal Code.

In addition, the interpretation of the requirement of violence is separate from the doctrine that the Constitutional Court has established when analyzing the crime of rebellion. STC 198/1987, when constitutionally justifying the extension to the crime of rebellion of the exceptional penal and procedural measures provided for in article 55.2 of the Constitution to deal with the actions of armed gangs or terrorist elements, considers that in the parliamentary discussion of the aforementioned precept «... there is an explicit equation, in terms of attack on the democratic system and the substitution of the form of Government and State freely elected by the citizens, between terrorism and rebellion. It is true that art. 55.2 has not expressly mentioned rebels, but only armed gangs or terrorist elements ...», but ... «by definition, the rebellion is carried out by a group that has the purpose of illegitimate use of war weapons or explosives, with the purpose of producing the destruction or eversion of the constitutional order». And it concludes: «for that reason to such rebels as soon as they integrate the concept of armed band of the art. 55.2 CE, it is legitimately applicable to them the suspension of rights to which the constitutional precept enables».

Nor do we believe that the crime of sedition in article 544 of the Penal Code is present in this case, due to the fact that at no time has any indication been provided that the accused have induced, provoked or carried out any tumultuous uprising with the purpose of avoiding compliance with the law, unless it is interpreted that it is enough to incite the right to demonstrate, that is, the exercise of a fundamental right. It is not possible to attribute to the accused those individual behaviours that occurred before, after or by other different persons, since in Criminal Law the principle of objective responsibility does not apply, but rather the subjective responsibility for the facts themselves.

As for the crime of rebellion under art. 472 CP, the Public Prosecutor’s Office maintains that, from the beginning, the accused, with the final objective of achieving the independence of Catalonia and secession from the Central State, considered the use of violence. How they carried it out, he asks himself, and answers: through the tumultuous action of thousands of citizens, instigated by them, and the collaboration of the mossos. For the Public Prosecutor's Office, therefore, the danger lies in inciting mobilizations, that is, it makes the exercise of fundamental rights a crime.

In addition, we believe that the interpretation that has been made of the types of rebellion and sedition opens the door to the banalization of figures practically unheard of in democracy and with a past of sad memory, which is why the 1995 legislator restricted them to cases of a materiality that is clearly more harmful than the current one. The result of inadequate recourse to these figures is the one we are seeing, the demand for very long sentences, the consistency of which with the principle of proportionality — which must guide any legal interpretation - is highly questionable. Only by very seriously violating the principle of criminal legality can it be asserted that the accused, in view of the facts attributed to them, could have committed this crime, or that of conspiracy for rebellion, which requires a joint agreement to carry it out with the same violence.

However, the only thing the Public Prosecutor’s Office has so far demonstrated is that, with the same purpose, all the mobilizations carried out only sought a referendum through peaceful and democratic means. It is with this stubborn idea of shaping the existence of violence that the Prosecutor's Office focuses essentially on the events of 20 September, 1 and 3 October. Moreover, it goes so far as to say that the fact that the use of violence was not planned from the outset does not prevent them from considering that, after the events of those days, they adopted the decision to continue with the call, assuming the risk of the exercise of violent acts and other confrontations.

Neither the events of 20 September 2017 nor those of 1 or 3 October 2017 give rise to the violence required by Article 472 of the Penal Code.

On the other hand, as far as the crime of sedition is concerned, it should be remembered that it is systematically used (article 544) to repress and silence citizens' movements that peacefully practice the right to demonstrate, assemble and assemble.

In conclusion:

— In addition, one cannot forget the not minor question of the lack of competence of the National High Court that initiated the process vitiating the nullity of what was subsequently acted upon.

— From a strictly legal perspective (and without entering into political considerations), we call for respect for the principle of criminal legality and for them to investigate everything that the rule of law authorises and obliges, but exclusively that, because only within those margins can there be opportunity, proportion and justice.

— The first step that should be taken is the release of the nine persons who are being held on remand for non-existent offences.

Signed by:
Guillermo Portilla Contreras. Professor of Criminal Law. University of Jaén.
Nicolás García Rivas. Professor of Criminal Law at the University of Castilla-La Mancha.
María Luisa Maqueda Abreu. Professor of Criminal Law at the University of Granada.
José Ángel Brandariz García. Head of Criminal Law at the University of A Coruña.
Javier Mira Benavent. Head of Criminal Law at the University of Valencia.»

Translation by: Prof. Dr. Axel Schönberger, Goethe Universität - Frankfurt am Main