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On October 27, the Spanish Minister of Finance and Public Function, María Jesús Montero, assured in Parliament that “the will of the Government” was to “homologate to European standards the qualification of certain crimes in our country”. This statement was made in the response to Esquerra Republicana de Cataluña (ERC) in the debate on amendments to the totality of the draft General State Budget 2023.
The minister’s statements triggered the alerts and all eyes pointed to a specific crime of the Spanish Penal Code: the crime of sedition. Since the holding of the illegal independence referendum promoted by the pro-independence parties in Catalonia on October 1, 2017, Spanish public opinion has become familiar with this crime. Even more so when, in October 2019, the Supreme Court sentenced nine of the twelve accused for the events of September 20 and October 1, 2017 to sentences of between nine and thirteen years for sedition.
What is the crime of sedition?
The crime of sedition is contained in articles from 544 to 549 of the Penal Code and considers it a crime of public order. This crime is attributed to those who “without being included in the crime of rebellion, rise publicly and tumultuously to prevent, by force or outside the legal channels, the application of the Laws or any authority, official corporation or public official, the legitimate exercise of their functions”.
Currently, the penalties contemplated in the crime of sedition range from eight to ten years imprisonment. However, in the case that those responsible for the crime have positions of authority, as is the case of pro-independence politicians, the penalty to be applied will be between ten and fifteen years imprisonment. In all cases, disqualification from holding public office is also applied for the same period of time.
The crime of sedition should not be confused with the crime of rebellion. The latter, described in Article 472 of the Penal Code, condemns cases of “violent and public uprising” for different reasons. Among them is the objective of “repealing, suspending or totally or partially modifying the Constitution”. The Supreme Court’s ruling ruled out the crime of rebellion because “it is not enough to find indisputable episodes of violence to proclaim that the facts constitute a crime of rebellion”. The violence indisputably existed, but it was not enough.
Can the crime of sedition be reformed?
In June 2021, the Spanish Government approved the pardon of the nine convicted pro-independence activists. They were pardoned, via Royal Decree and for “reasons of public utility”, the pending sentences, although the disqualification remains in force. Since its publication in the Official State Gazette (BOE) on June 23, 2021, the pro-independence leaders, who less than two years earlier had been convicted of promoting an illegal referendum against the territorial integrity of Spain, were released from prison.
Now, a year and a half after the political pardon, and in the midst of negotiations to approve the General State Budget for 2023, the executive of Pedro Sánchez is considering reforming the crime of sedition. To carry it out it is necessary to reform the Penal Code, which in turn can only occur with an absolute majority. That is to say, with the vote in favor of 176 deputies.
In recent days, several members of the executive, using the loudspeaker of the national media, have tried to convey to the public opinion the idea that the reform is not due to partisan interests nor is it part of the negotiation of the public accounts for the year 2023, but rather it is a need to “homologate certain crimes in our country to European standards”.
The false dilemma of European standards
There are no “European standards” of reference. The European Union does not provide a Community framework for judging sedition offenses equally in each European country. On the contrary, each Member State has its own particular penal codes, adjusted to a greater or lesser extent to its complex socio-political reality. Therefore, when the Spanish executive justifies its plan to reform the sedition code on the basis of supposed “European standards”, a false dilemma is created.
Spain is not behind “European standards” in criminal matters. Mainly because the penal codes of European countries cannot be equated due to the fact that penalties and criminal structures are different.
Germany, for example, does not have a crime of sedition that lends itself to equating it with the Spanish one. In the German penal code there is the crime of high treason, whose penalties range from ten years to life imprisonment and punishes the use of violence or threats. In the sentence of the Supreme Court it is not hidden that the pro-independence supporters made use of violence, so ignoring the detail of each penal code is a mistake. And, on the other hand, there is also the crime of breaking or disturbing public order, which includes a punishment of between three and five years.
The comparison with France cannot be adequately drawn either. In the neighboring country, the crime of rebellion is punishable by up to three years’ imprisonment, but the crime of attack and plotting, which involves endangering institutions or territorial integrity, ranges from 30 years to life imprisonment.
Unlike in the energy field, there is no Iberian exception. In Portugal, the penalties are between ten and twenty years’ imprisonment for authorities who attempt to separate a territory from the rest of the country. And in Italy the penalties are not lesser either, since the crime of seditious assembly, which punishes ten or more people gathered with the aim of sedition, is punishable by a minimum of twelve years in prison.
In short, there is no scenario or possibility of “homologating” the Spanish Penal Code to “European standards”, because each country has its own criminal reality. What is hidden behind the reform of the crime of sedition promoted by the executive of Pedro Sánchez is, by default, the price to be paid for the parliamentary support necessary to move forward with the General State Budget for the year 2023.