Since the Constitution exists, there have hardly been sentences for sedition in Spain. Citizens have the right to anticipate the consequences of their actions without fear of punitive intervention by the State
Never could any Spanish penalist of the 20th century imagine that in the 21st century the crime of sedition was going to star in a political battle like the one now being waged around it. Since the promulgation of the democratic Constitution there have been practically no sentences that condemn sedition and the few that exist –cited throughout the criminal process against the Catalan independentists– clearly demonstrate their own obsolescence.
In effect, under this denomination, those who rise up in a riot are punished “to prevent, by force or outside the legal channels, the application of the laws or to any authority, official corporation or public official, the legitimate exercise of their functions or the fulfillment of their agreements, or administrative or judicial resolutions”.
What judicial precedents are there in these 40 years? Just a couple of sentences that condemn very small popular uprisings in some towns in Spain against an eviction (1979) or against the distribution of irrigation water (1991).
What does this have to do with the Catalan independence political process? Nothing, obviously; and yet the Supreme Court convicted them of this crime.
There is no more palpable proof that we are faced with a legal norm with such an elastic radius of action that it openly contradicts one of the basic constitutional guarantees: the strictness of criminal law. Citizens have the right to anticipate the consequences of their actions without fear of punitive intervention by the State, as the Spanish Constitutional Court and the European Court of Human Rights in Strasbourg have repeatedly stated.
disproportionate punishment
Legal certainty is at stake. If, in addition, such non-specific conduct is punished with sentences of up to 15 years in prison, the proportionality of criminal law is absolutely conspicuous by its absence. For this reason alone, sedition would deserve to be erased at a stroke of the pen from our Penal Code. But there is more, much more.
First of all, the Spanish Constitution guarantees the right to demonstrate peacefully and without arms. But the literal tenor of that article of the Penal Code seems to contradict said guarantee because it serves to punish even mere demonstrations of a certain entity in which citizens exercise their legitimate right to protest, because in these meetings of a multitude of people it can be obstructed or hinder the task of the agents of authority, who do not fail to represent in many cases what they are protesting against.
But this type of action is considered typical of a democratic State in the jurisprudence of the Spanish Constitutional Court and the European Court of Human Rights, which created a theory perfectly applicable to cases like this, called the “discouragement effect doctrine”, applicable whenever a State establishes legal limitations to the legitimate exercise of fundamental rights, mainly those of assembly and demonstration.
This right, linked to freedom of expression (because it is still a way of exercising it), must be protected by the State and not violated by it directly or indirectly.
And going back to what happened in Catalonia five years ago, the 40,000 people who demonstrated on Barcelona’s Gran Vía against the intervention of the Spanish police did so to protest said intervention, not to prevent the exercise of authority. However, the Supreme Court condemned the pro-independence politicians because, as it said in its sentence, they encouraged said protest and thereby tried to prevent registration with the Ministry of Economy, a true legal-criminal nonsense that sought an argument to convict of sedition. which in no way constituted rebellion, a crime for which the Prosecutor’s Office and the private accusation brought by Vox accused them.
The crime of dictatorships
Secondly, sedition has the dubious honor of having become, throughout history, the crime chosen by Spanish dictatorships to punish workers’ strikes. In that of Primo de Rivera, the Penal Code of 1928 went on to include the strike as a case of sedition, although the State Attorney General’s Office had already classified as such certain strikes called “revolutionary” for the simple fact of having a political overtone. Later, during the Franco regime, the seditious strike became a battering ram against the legitimate aspirations of the working class.
The Penal Code of 1944, which emerged in the heat of Franco’s retaliation, roughly stated in its article 222: “Workers’ strikes will be punished as criminals of sedition” (sic), as if “strikes” could be the active subjects of the crime.
When democracy arrived, a Royal Decree of 1977 slightly corrected this precept to punish “only” strikes that attempted against the internal security of the State. Precept that the Constitutional Court did not exhaustively repeal in its famous ruling on the right to strike (Sentence 11/1981, of April 8), but left its application so limited that it practically survived in a state of vegetative death until the enactment of the Code Criminal of 1995, which certified his death.
These are sufficient reasons to repeal this crime, which has served as a mixed bag to punish small neighborhood movements, workers’ strikes and, now, the Catalan peaceful independence movement. The legislative quality of democracy advises it.
Public order and sedition
Would public order be left unprotected if sedition is abolished? Absolutely. The Spanish Penal Code contains protective regulations of the same to an even exaggerated degree, especially since the 2015 reform, sponsored by the Popular Party alone, by having the absolute majority of the Congress of Deputies.
This criminal law reform limits too much the right of assembly and demonstration. Let’s see: article 577 of the Criminal Code punishes “those who, acting in a group or individually but protected by it, disturb the public peace by executing acts of violence on people or things, or threatening others to carry them out”, threatening them with a sentence of 6 months to 3 years in prison.
As if that were not enough, the same penalty is punished “those who act on the group or its individuals by inciting them to carry out the actions described… or reinforcing their willingness to carry them out.” That penalty is doubled for the simple fact of being carried out in a demonstration or on the occasion of it, which serves to confuse both phenomena and create an atmosphere of intimidation over those who exercise their legitimate right. For the rest, it is enough for someone to carry a dangerous instrument or a simulated weapon for the maximum sentence to rise to 6 years in prison.
Many people have openly criticized this regulation of public disorder because it seeks arbitrary protection of public order, especially in times of serious social conflict. For this reason, it would be convenient that these crimes were also reformed to reduce their radius of action and that they do not generate –in turn– the discouragement effect that I have already mentioned in relation to sedition.
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