The expected has happened. The debate on embezzlement reform and the repeal of sedition has allowed the political and media right to dust off their old manual of incendiary rants. Certain barons of the PSOE and even former president Felipe González or Alfonso Guerra have joined the criticism. As before with the pardons, there has been talk of “lack of protection of the constitutional order”, of “covert amnesty”, of “attack on democracy”, of “interference with the judiciary” and even of “betrayal of Spain”, “authoritarianism” or “coup d’état”.
It is not necessary to be an expert in Law to notice the inconsistency of that exalted way of seeing things. In the first place, because neither embezzlement nor sedition protect “the constitutional order.” The Supreme Court itself ruled out in its ruling that what happened in 2017 in Catalonia was a blow to the constitutional order. It was – according to the judges – a problem of public order.
Secondly, because adapting the legal system to the standards of the countries around us is not an “attack on democracy”. On the contrary, doing so is a matter of democratic hygiene. Sedition was drafted in the first Spanish Penal Code of 1822. It has remained practically unchanged from then until today, totally oblivious to current historical reality. We talk about another world. A very distant world that survived, Bourbons aside, in our legal system with a crime used by the Franco regime to persecute its opponents. For this reason, it was a relic of the past without comparison in Europe. With its repeal, the footsteps of countries such as Italy or Germany are followed. With the embezzlement reform, the Spanish legal system is also at the level of comparative law. Specifically, the model of countries such as Italy, France or Portugal is followed.
Thirdly, the penal reform does not imply a “covert amnesty” towards the independence movement. The question goes beyond the Catalan conflict. Sedition was a sword of Damocles over the right to protest. In the past, unsuccessful attempts were made to apply it to certain mobilizations, but after the Supreme Court ruling in the process, a general strike or other mass mobilizations could be interpreted as acts of sedition. With the intention of condemning the independence leaders, the judges forced the law to the point of distorting the essential content of the right to demonstrate.
With the same intention, the PP approved in 2015 a reform to also disfigure the crime of embezzlement. Ignacio Escolar remembered him in these pages. The standard was drafted ad hominem to persecute the pro-independence leaders. He was made against the opposition of the rest of the political formations. Even against the opinion of the Council of Prosecutors itself and the CGPJ, with a conservative majority. Different phenomena were equated, with unequal social disvalue, with the same criminal reproach. That generated – said judges and prosecutors – legal uncertainty. Stealing public money is not the same as making diverted, excessive or insufficiently justified public spending. An example is that of the mayor who diverts a budget item to make a sports center to pay salaries to officials. In one case there is an improper appropriation, for profit, of public resources and in the other there is no profit motive. When acts of different severity are condemned with the same forcefulness, basic principles that must govern criminal law such as proportionality or minimum intervention are violated. In fact, with the current agreement between the PSOE and ERC, what before the PP reform was only done with a fine was reduced from 8 to 4 years in prison.
It must be remembered, over and over again, normalizing an injustice opens the doors to all the injustices that follow it. When exceptional measures are taken to neutralize political opponents, then the abuses are normalized and the slippery slope of rights cuts is clear for the rest. The case for sedition is clear. Without its repeal, in the future a group of trade unionists or the PAH could be considered seditious. For this reason, repealing it was a demand of collectives defending the right to housing, unions such as the UGT and CCOO, human rights entities such as Amnesty International, but also international organizations. Last year, the report of the Parliamentary Assembly of the Council of Europe called for an end to this “obsolete” crime. The same happens with the crime of embezzlement. With the reform of the PP, the door was opened for the lawfare against progressive city councils could have dire consequences, with prison terms of up to 8 years included. It is no coincidence that it is one of the favorite tricks of right-wing activism to prosecute innovative left-wing policies. A good example of this are the various causes promoted by ultra sectors against the government of Ada Colau in Barcelona or Manuela Carmena in Madrid.
Finally, approving this reform is not an “intrusion into the judiciary.” It is an inevitable step to address the open conflict in Catalonia since the political and judicial right unilaterally broke the territorial pact of the transition with the annulment of the judgment of the Statute. Any proposal to unblock this political mess involved undoing the legacy of judicialization of the PP.
The Council of Europe also recalled this in its report on the condemnation of the pro-independence leaders. In a democracy, political problems “must be resolved by political means.” Far from being an “intrusion into the judiciary”, recovering the leading role of politics is a democratic obligation. In a democracy rules the rule of law, not the rule of judges. It is the Congress of Deputies who must legislate and the judges apply their will. That is the basis of the separation of powers that the right seems to ignore.
Repealing sedition, two hundred years later, was a democratic obligation. Relics of the past like this are for museums, not for the laws of a European country. The same happens with the partial reform of the embezzlement of the PP. When in the fight against the independence movement, biased interpretations of the law are made or regulations are approved ad hoc of an exceptional nature, a “criminal author’s law” inspired by an old and never extinguished totalitarian temptation is consolidated: the idea that one must be punished not for what has been done but for what one is. A rule of law worthy of the name cannot afford this resignation. Sending to jail someone who, without resorting to violence, leads a political process like the one experienced in Catalonia in 2017 constitutes a true defeat of the rule of law. With the current penal reform, an important step is taken to remove the conflict from justice and return to political normality. For this reason, today Spanish democracy is stronger than yesterday.