THE CRIME OF SEDITION AND THE RIGHT TO PROTEST How the crime of sedition affects the fundamental right of assembly and the freedom to demonstrate The crime of sedition in European Criminal Comparative Law The cooperative Red Jurídica is a law firm based in Madrid. But we are much more than that. We are, first and foremost, people committed to the reality of our environment, seeking social transformation and involved in different causes, asso- ciations and groups. We are citizens, neighbors, daughters, sons, parents, sisters, brothers and friends. Red Jurídica (which means “legal network” in Spanish) is a gathering of people united by our critical involvement in social justice issues and by the critical way we work our craft: by using solidarity and the Law as a means of transforming our reality and understanding the social aspects of our context until we can finally change it for better. The content of this report is the sole responsability of the cooperative Red Jurídica and may not reflect the opinion of the Catalan Government. Authors: Daniel Amelang López, Eric Sanz de Bremond Arnulf and Alejandro Gámez Selma. Published on November, 2020. Design and layout: Pedro López Andradas. Review: Fernando Alonso Martín. Translation into English: Beatriz García Marín, David Amelang López and Daniel Amelang López. Translation into catalán: Montserrat Feliu. Cover photograph: Víctor Serri. Contents 1. PREAMBLE ........................................................................... 5 2. THE SUPREME COURT RULING 459/2019, OF OCTOBER 14TH: THE RULING OF THE PROCÉS .................................. 11 2.1 The proven facts of the ruling 2.1.1 The events of September 20th and 21st 2017 2.1.2 1st of October 2017 2.2 The proven facts related to Jordi Cuixart’s conduct 2.3 The crime of sedition in the Sentence of the Procés 2.3.1 Sedition is not a “minor rebellion” 2.3.1 Public Order as a legal asset of sedition 2.4 Origin and Jurisprudential Evolution of the Crime of Sedition 2.4.1 Jurisprudential evolution of the crime of sedition 2.4.2 The 1995 crime of sedition’s reform and modern jurispru- dence 2.4.3 The crime of sedition and legal certainty 3. THE CRIME OF SEDITION IN RELATION TO FUNDAMENTAL RIGHTS ............................................................................. 41 3.1 Sedition and rights of assembly and expression 3.1.1 The right of assembly 3.1.2 The restrictions on the right of assembly 3.1.3 The definition of sedition according to the Supreme Court and its interference with the freedom of assembly 3.1.4 “Calling into question the functioning of the democratic rule of law” 3.2 Civil disobedience and the crime of sedition 3.2.1. The concept of civil disobedience 3.2.2 The Procés Judgement and civil disobedience 4. THE CRIME OF SEDITION IN EUROPEAN COMPARED CRIMINAL LAW ................................................................. 59 4.1 Comparative study 4.2 Conclusions 5. AIMING TOWARDS A FAIRER LEGAL SYSTEM: CONCLUSIONS AND PROPOSALS ............................................................. 71 5.1 Conclusions on the interpretation of the crime of sedition in the Procés Judgement BIBLIOGRAPHY ..................................................................... 75 SPECIAL THANKS TO ............................................................. 81 1. PREAMBLE On February 12 2019 the trial of the Special Proceedings 20907/2017, popularly known as the Procés trial, began in Madrid’s Palacio de las Sale- sas, seat of the Spanish Supreme Court. Hundreds of people gathered from early in the morning at the doors of Marqués de la Ensenada Street; the queue of relatives, supporters and detractors, journalists and international observers reached the Plaza de la Villa de París, all vying to be able to wit- ness the beginning of what promised to be a historical hearing. Most of the defendants were in pre-trial detention, and thus that morning – as well as the following ones– all of them had to be transferred from dif- ferent penitentiary centers in Madrid to the courtroom. The former Vice-Pres- ident of the Catalan regional government during the years 2016 to 2017, Oriol Junqueras, was seated in the defendants’ dock along with most of the cabinet (Dolors Bassa, Meritxell Borràs, Josep Rull, Jordi Turull, Carles Mundó, Joaquim Forn, Raül Romeva y Santiago Vila), former President of the Catalan Parliament (Carme Forcadell) and the Presidents of the social entities Òmnium Cultural and the Catalan National Assembly (Jordi Cuixat and Jordi Sánchez respectively). The staging throughout the trial sessions remained the same throughout the trial. The seven judges of the second chamber of the Supreme Court, pre- sided by Manuel Marchena, sat on the podium in front of all twelve de- fendants1 and the public. The defense attorneys were seated to their left. 1 On Special Cause 20907/2017 only twelve people were tried, given that on December 2018 the Supreme Court decided to splinter the cause and send the accusations against Lluís Corominas, Lluís Guinó, Anna Simó, Ramona Barrufet, Joan Josep Nuet and Mireia Boya to the High Court of Justice of Catalonia. On October 19th 2020, the High Court made public its Judgement 10/2020, convicting all of the defendants except Mireia Boya (who had never been personally warned by the Spanish Constitutional Court to stand down and not hold the referendum or face criminal charges 5 On the right, the three accusing entities: the Public Prosecutor’s Office, the State’s Legal Counsel and the far-right political party Vox, this last one in the role of the acusación popular,2 or third-party prosecution. The four prosecutors of the Criminal Chamber of the Supreme Court who wrote the indictment against the defendants pretended to prove in the trial that “the secessionists’ plan included the use of all necessary means to reach their goal, including – with certainty that the State would not ac- cept this situation – the use of violence to ensure the purported criminal objective, a series of intimidation tactics which included on the one hand massive citizen strikes instigated and promoted by them, and on the other THE RULING OF PROCÉS AND RIGHT TO PROTEST the enlistment of the Mossos d’Esquadra as armed police forces composed of approximately 17.000 agents, who would only take orders exclusively from them – as it happened – and that, when needed, could actively pro- tect their criminal goals, bypassing the compliance of their true purpose to guard and preserve the constitutional order” 3. They described the events that took place during the Fall of 2017 – more specifically on the 20th and 21st of September and the 1st of October – as proof of their intent to commit the crime of rebellion, and in the case of some of the defendants also of the crime of misappropriation of public funds; as a consequence, they asked the Court to impose the highest possible sentence for Oriol Jun- queras: twenty-five years in prison. Other members of the Catalan Gover- ment faced slightly lower prison sentences. For the leaders of Catalonia’s civil entities Òmnium Cultural and the Catalan National Assembly, Cuixart and Sànchez, who were not members of Government, the prosecutors re- quested a seventeen year prison sentence. For their part, Vox also argued that the presented facts constituted a crime of rebellion and misappropriation. Moreover, the lawyer representing the for disobedience), to a 30,000 euros fine and disqualification to hold public office during 1 year and 8 months. 2 From the official translation into English of the Supreme Court’s ruling: “The institution of the acusación popular, enshrined in Article 125 of the Spanish Constitution, enables a natu- ral or legal person to acquire, on public interest grounds, standing to prosecute someone for a criminal offence, even when not personally affected by that offence”. 3 See pp. 5 and 6 of the prosecution’s report of the Public Prosecutor. 6 1. PREAMBLE party added the crime of belonging to a criminal organization and request- ed that, as an alternative to rebellion – in case that this argument would fall short – the events be classified as an act of sedition. The penalty requested for each crime of rebellion was twenty-five years, while the penalty request- ed for each crime of sedition was fifteen years. The State’s Attorney, Rosa María Seoane, on the other hand, did not clas- sify the events as a crime of rebellion, but rather as a crime of sedition (in addition to embezzlement and civil disobedience for some of the accused). According to her indictment, the defendants “instigated, supported and or- ganized the sedition”4, and in the cases of Junqueras, Forn, Turull, Romeva, Rull and Bassa, they did so while acting as members of the Government and thus deserved severer sentences. The term of imprisonment petitioned for Oriol Junqueras was of twelve years, while the term requested for Jordi Cuixart and Jordi Sánchez was of eight. The hearings lasted for 52 days, mostly with morning and afternoon ses- sions, and ended on June 12th, 2019.5 In addition to the twelve defen- dants, 422 witnesses and 16 experts (in different disciplines) also testified. The videos brought forth to the cause summed a total of 150 filmed hours and the total of sheets of paper reached approximately 60,000. Throughout the trial numerous legal debates of great depth and interest arose, such as the Supreme Court’s purview to prosecute an event; Vox’s 4 See page 54 of the prosecution’s report of the State’s Prosecutors. 5 There are numerous chronicles of the trial that allow the reconstruction of the most important sessions, such as Catalonia Year Zero. The process, the trial and the sentence (Espasa, 2019), a compilation of articles and reflections by Ernesto Ekaizer, The Judgment. A critical look at the process and its sentence that will mark the fate of Catalonia and Spain (Roca Editorial, 2019), by Íñigo Sáenz de Ugarte or Witches Box.